Filed 2/17/15 P. v. Rodriguez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F065807
         Plaintiff and Respondent,
                                                                                (Super. Ct. No. 1085319)
                   v.

JESUS MANUEL RODRIGUEZ,                                                                  OPINION
         Defendant and Appellant.

THE PEOPLE,

         Plaintiff and Respondent,
                                                                                (Super. Ct. No. 1085636)
                   v.

EDGAR OCTAVIO BARAJAS,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy
Ashley, Judge.
         Cara DeVito, under appointment by the Court of Appeal, for Defendant and
Appellant Jesus Manuel Rodriguez.
       S. Lynne Klein, under appointment by the Court of Appeal, for Defendant and
Appellant Edgar Octavio Barajas.
       Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and
Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.
                                           -ooOoo-
       A jury convicted Jesus Manuel Rodriguez and Edgar Octavio Barajas
(collectively, defendants) of willful, deliberate, and premeditated murder, conspiracy to
commit murder, and active participation in a criminal street gang. A firearm
enhancement also was found true. Both were juveniles at the time they committed the
murder. They challenge their convictions on the grounds the People failed to preserve
exculpatory evidence, juror misconduct, insufficient corroboration of accomplice
testimony, and instructional error. They also contend their sentences of 50 years to life
violate the Eighth Amendment to the United States Constitution. We reject all their
contentions and affirm the judgments.
                      FACTUAL AND PROCEDURAL SUMMARY
       Prosecution Evidence
       In May 2004,1 Oregon Park in Modesto was a known Norteño gang hangout.
Gina Lopez, a Police Activities League (PAL) employee, operated an after-school
recreational program at Oregon Park for children between the ages of three and 18 years.
Lopez usually set up her program under a gazebo.
       Lopez was familiar with the people who frequented the park, including Norteño
gang members. The Norteños had never caused a problem for Lopez or the PAL
program. Lopez had never seen any fights or other problems at the park caused by
Norteño gang members.

       1All   further references to dates are to the year 2004 unless otherwise noted.


                                               2.
       Also in May, 17-year-old Sureño gang member Mario G. lived in Modesto.
Rodriguez, then 15 years old, Barajas, then 16 years old, and 16- or 17-year-old Louis A.
were fellow Sureño gang members. Mario and Louis lived near Oregon Park.
Whenever the Norteños saw Mario or other Sureños hanging around, they would call
them names and throw gang signs.
       On May 20 Louis was assaulted by Norteños in Oregon Park. The Norteños broke
the windows of his van and fired a small handgun at him; Louis ran home. As a result of
the assault, Louis’s arm was broken. On May 25 Rodriguez was driving to Louis’s house
when he realized he was being followed by Norteños. When he pulled up at Louis’s
house, the Norteños used a baseball bat to break the windows of his white Chevy Blazer.
Mario was with Rodriguez when this happened.
       On May 26 Mario, Barajas, and Rodriguez used Rodriguez’s Chevy Blazer to
drive to a location to pick up a firearm. Barajas got out of the vehicle and returned
carrying a .22-caliber Savage rifle. On the ride home, the three young men discussed the
Norteños and exacting revenge.
       The three stopped at Mario’s house for a short time, at which point fellow Sureños
Pedro C. and Rigoberto M. joined them in the Chevy Blazer. Rodriguez was driving,
Pedro was in the front passenger seat and was wearing a blue bandanna over his face,
Mario was in the backseat behind Pedro, Rigoberto was in the backseat behind
Rodriguez, and Barajas was in the rear cargo area holding the .22-caliber rifle. Mario
understood they were going to drive to Oregon Park to look for Norteños.
       At that time Lopez had about 80 children in her afternoon PAL program. The
children were mostly in the area around the gazebo; older children began showing up
around 4:00 p.m. The older children included Nadia O., Charlene S., and Delphina A.
There were a couple of boys with Delphina on a bench near the gazebo. Around
5:00 p.m. Lopez was under the gazebo talking with Ernestina Tizoc (hereafter Tina or the
victim). Lopez did not consider Tina to be a Norteño.

                                             3.
       Around 5:30 p.m. Lopez and Nadia noticed a white Chevy Blazer with broken out
windows pass by the gazebo area once and drive slowly around the park. As it passed by
the gazebo area the second time, someone shouted “Puro Sur,” which is Spanish for
“Pure South.” Nadia saw the occupants of the Chevy Blazer throwing gang signs,
specifically, a “13” hand sign, and noticed one occupant with a bandanna over his face.
Charlene also heard shouting from the Chevy Blazer and noticed one passenger with a
bandanna over his face. Charlene saw a black object being lifted up through a broken
window of the Chevy Blazer. Lopez, Nadia, and Charlene then heard multiple gunshots
coming from the Chevy Blazer.
       Lopez heard Tina scream. Charlene heard Tina yell, “it hit me, it hit me.” Nadia
heard Tina scream and then someone yell, “They shot Tina, they shot Tina.” After the
shots were fired, the Chevy Blazer drove off. Lopez called 911. None of the witnesses
heard any gunshots being fired from the park. Tina died from her injuries.
       Mario, who was in the Chevy Blazer, testified that he, Rodriguez, Barajas,
Rigoberto, and Pedro passed through Oregon Park looking for Norteños. Mario thought
some people by the gazebo were Norteños because they were wearing red. As the Chevy
Blazer approached the gazebo, Barajas shouted “puro Sur” and fired multiple shots.
When Barajas stopped shooting, the Chevy Blazer sped away.
       Sheriff’s Deputy Vincent Hooper arrived at the scene and received information
that people at a residence on Thrasher Avenue were involved in the shooting. Hooper
and other deputies responded to the address and detained the people located at that
residence. Around 7:30 p.m. Hooper was dispatched to an alley, where he found the
white Chevy Blazer. Hooper arranged for the Chevy Blazer to be towed to impound for
processing. In a subsequent search of the Thrasher Avenue residence, Sheriff's Deputy
Edgar Campbell found mail addressed to Louis, gang-related drawings, and two .22-
caliber bullets.



                                            4.
        On May 27 Rodriguez led Campbell to a location where the .22-caliber rifle was
located. Discussions with Rodriguez also led Campbell to .22-caliber casings and .22-
caliber bullets at two residences. Campbell inspected the Chevy Blazer that had been
impounded; he did not notice any signs that the vehicle had sustained any damage from
gunfire.
        Sheriff’s Detective Mark Copeland first saw the Chevy Blazer the day it was
impounded. The next day, May 27, the Chevy Blazer was inspected by Campbell, Crime
Scene Officer Brook Mercer, and California Department of Justice Criminalist Duane
Lovass. Copeland did not see any bullet holes or evidence that the Chevy Blazer had
received gunfire. Lovass also inspected the vehicle and saw no evidence it had sustained
gunfire. Copeland was not aware of any exculpatory evidence found in or on the Chevy
Blazer.
        On July 2 the Chevy Blazer was removed from impound and towed to a private
towing company’s yard. Copeland testified someone of higher authority made the
decision to move the Chevy Blazer and about eight other vehicles from impound.
Copeland indicated the sheriff’s department was finished with the Chevy Blazer because
there was no evidence taken from it. Rodriguez’s family was notified it had been taken
to the towing company yard.
        Rodriguez and Barajas were charged with willful, deliberate, and premeditated
murder, conspiracy to commit murder, and active participation in a criminal street gang.
The information also alleged, as to the murder and conspiracy counts, that at least one
principal intentionally and personally used a firearm, causing great bodily injury or death.
It also was alleged that the offenses were committed for the benefit of a criminal street
gang.
        Forensic Pathologist Sung-Ook Baik testified as an expert on the cause of the
victim’s death. He testified that the cause of death was a gunshot wound to the chest and
that the victim died within 20 minutes of being shot.

                                             5.
        Lovass test fired the .22-caliber rifle and compared the expended cartridge to the
three shell casings and the bullet recovered from the victim’s body. Lovass testified the
three shell casings definitely came from the rifle he tested; he stated the bullet recovered
from the victim’s body could have come from the tested rifle, but he could not determine
this with certainty.
        Gang expert Froilan Mariscal believed Barajas, Rodriguez, Pedro, and Rigoberto
were Sureño gang members on the day of the shooting. Based upon a hypothetical fact
pattern similar to the facts of the case, Mariscal opined the drive-by shooting by Sureños
would have been intended for the benefit of the gang.
        Defense Evidence
        United States Army First Lieutenant Nicholas Garber testified for the defense as
an expert on shooting incidents. Garber testified that based upon his combat experience,
a person could be shot at and not know the true direction from which the shot was fired.
Garber further opined that the gazebo could distort sound, which would make it more
difficult to determine the origin of gunshots.
        Brothers Nicholas Jones and Jason Jones were in Oregon Park the day of the
shooting. Both testified they heard gunshots coming from the park as well as the street.
        Anthony Q. also testified he heard gunshots coming from the park that day.
        Rebuttal Evidence
        Copeland testified he interviewed the Jones brothers after the shooting. Neither
brother mentioned ever hearing gunshots being fired from the park.
        Verdict and Sentence
        The jury convicted Rodriguez and Barajas of all counts and found all allegations
true.
        On September 12, 2012, the trial court sentenced both Rodriguez and Barajas to
terms of 50 years to life and credited them with 3,022 days for time served.



                                             6.
                                       DISCUSSION
       Rodriguez and Barajas contend the People acted in bad faith by failing to preserve
exculpatory evidence, specifically, the Chevy Blazer. They further claim there was juror
misconduct and the trial court abused its discretion in denying their request for juror
identifying information and in denying their motion for new trial. Barajas argues there
was insufficient evidence independent of accomplice testimony to sustain his convictions.
They both contend it was error to instruct the jury with CALCRIM No. 370 and error to
fail to instruct the jury that the testimony of one accomplice cannot corroborate the
testimony of another accomplice. Finally, they assert that imposing a sentence of 50
years to life is a violation of the Eighth Amendment because it is the functional
equivalent of a life sentence and disproportionate to the crimes.
I.     Preservation of Evidence
       Rodriguez and Barajas both claim the trial court erred and infringed on their
constitutional due process rights when it denied their motion for dismissal and motion for
new trial, which were based upon the claim the People willfully failed to preserve
exculpatory evidence. In a related argument, defendants contend the trial court erred
when it failed to instruct the jury with modified versions of CALCRIM Nos. 300 (willful
suppression of all available evidence is a denial of a fair trial), 306 (untimely disclosure
of evidence), and 371 (suppression of evidence).
       Factual Summary
       Rodriguez’s Chevy Blazer was impounded by law enforcement on May 26.
Copeland first saw the Chevy Blazer on that date. Copeland, Mercer, and Lovass all
inspected the vehicle on May 27. Copeland did not see any bullet holes in the Chevy
Blazer and was not aware of any exculpatory evidence found in or on the Chevy Blazer.
Lovass also inspected the vehicle and found no evidence of any bullet holes in the Chevy
Blazer.



                                              7.
       The Chevy Blazer was removed from the sheriff’s department’s impound yard on
July 2 when it was towed to a yard operated by a private company. Copeland testified
that someone of higher authority than he decided to have the Chevy Blazer and about
eight other vehicles removed from the sheriff’s department’s impound yard. According
to Copeland, at the time the Chevy Blazer was towed from the impound yard, the
sheriff’s department had finished its inspection of the Chevy Blazer, no evidence was
found in the Chevy Blazer, and the Rodriguez family was notified that the Chevy Blazer
had been released to the private towing company.
       Copeland did not notify the defense attorneys in the case that the Chevy Blazer
was being towed and released to a private company. He, however, did speak with the
deputy district attorney handling the criminal case and was told that as long as no
evidence was found in the Chevy Blazer, the car could be released. After examining the
Chevy Blazer, neither the sheriff’s department nor the Department of Justice found any
evidence in the car.
       Rodriguez also filed a motion for a new trial on January 9, 2012, contending that
the prosecutor had committed misconduct by failing to assure the Chevy Blazer was
available for inspection by the defense.
       Analysis
       The United States Supreme Court has held law enforcement agencies have a duty
under the due process clause of the Fourteenth Amendment to preserve evidence “that
might be expected to play a significant role in the suspect’s defense.” (California v.
Trombetta (1984) 467 U.S. 479, 488; accord, People v. Beeler (1995) 9 Cal.4th 953, 976
(Beeler).) To fall within the scope of this duty, the evidence “must both possess an
exculpatory value that was apparent before the evidence was destroyed, and be of such a
nature that the defendant would be unable to obtain comparable evidence by other
reasonably available means.” (Trombetta, at p. 489; Beeler, at p. 976.)



                                             8.
       The state’s responsibility is further limited when the defendant’s challenge is to
“the failure of the State to preserve evidentiary material of which no more can be said
than that it could have been subjected to tests, the results of which might have exonerated
the defendant.” (Arizona v. Youngblood (1988) 488 U.S. 51, 57 (Youngblood).) In such
cases, “unless a criminal defendant can show bad faith on the part of the police, failure to
preserve potentially useful evidence does not constitute a denial of due process of law.”
(Id. at p. 58; accord, Beeler, supra, 9 Cal.4th at p. 976.)
       In California courts, the Trombetta and Youngblood standards are applied in
tandem. If evidence has an exculpatory value that is apparent before the evidence is
destroyed, the Trombetta approach applies and the state has a duty to preserve it. But
“[t]he state’s responsibility is [more] limited when” the evidence is merely potentially
useful. (Beeler, supra, 9 Cal.4th at p. 976.) In that case, the state breaches its duty only
if it acts in bad faith. (Ibid.)
       If a defendant demonstrates that significant exculpatory evidence was lost or
establishes bad faith in connection with the loss of potentially useful evidence, then the
trial court has discretion to impose appropriate sanctions. (People v. Medina (1990) 51
Cal.3d 870, 894.)
       Negligent destruction or failure to preserve potentially exculpatory evidence,
without evidence of bad faith, will not give rise to a due process violation. (Youngblood,
supra, 488 U.S. at p. 58.) A finding as to “whether evidence was destroyed in good faith
or bad faith is essentially factual: therefore, the proper standard of review is substantial
evidence.” (People v. Memro (1995) 11 Cal.4th 786, 831.) On review, this court must
determine whether, viewing the evidence in the light most favorable to the trial court’s
finding, there was substantial evidence to support its ruling. (People v. Carter (2005) 36
Cal.4th 1215, 1246 (Carter).)
       Here, substantial evidence supported the trial court’s finding that the failure to
maintain possession of the Chevy Blazer was not in bad faith and therefore not a

                                              9.
constitutional due process violation. There was no evidence further examination of the
Chevy Blazer would have disclosed exculpatory evidence or that the sheriff’s department
knew of any potential exculpatory value to the Chevy Blazer.
       The record discloses that no fewer than three law enforcement officials inspected
the Chevy Blazer, and no bullet holes were found in the vehicle. At the time the Chevy
Blazer was released, no witness had indicated that any gunshots were fired from the park.
Any claim by defendants that the Chevy Blazer had bullet holes that were missed by
three law enforcement professionals is purely speculative. The mere possibility that
evidence may ultimately prove exculpatory is not enough to trigger a duty to preserve the
evidence. (City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 8.)
       There is no indication the release of the Chevy Blazer was an attempt to deprive
defendants of potentially exculpatory evidence and thus no evidence of bad faith or any
due process violation.
       We also reject the related contention that the trial court erred when it failed to
instruct the jury with modified versions of CALCRIM Nos. 300, 306, and 371. When, as
here, there is no Trombetta/Youngblood violation, the trial court is not required to impose
any sanction, including jury instructions. (People v. Cooper (1991) 53 Cal.3d 771, 811.)
It is not error to fail to give a cautionary instruction when there is no Trombetta violation.
(People v. Huston (1989) 210 Cal.App.3d 192, 215.)
II.    Accomplice Testimony
       Barajas contends his convictions must be reversed in their entirety because the
only evidence connecting him to the crimes was the testimony of an accomplice.
       Factual Summary
       Mario, who was in the Chevy Blazer and was an accomplice to the crimes,
testified for the prosecution. He testified that the day before the shooting, rival Norteños
smashed the Chevy Blazer’s windows. He and other Sureños, including Rodriguez and



                                             10.
Barajas, talked about shooting at Norteños as payback for smashing the windows of the
Chevy Blazer.
       Mario testified that on the day of the shooting he, Rodriguez, Barajas, Rigoberto,
and Pedro drove by Oregon Park looking for Norteños. Mario saw some people standing
by the gazebo wearing red. Pedro was wearing a blue bandanna, or rag, over his face. As
the Chevy Blazer approached the gazebo, Barajas, who was in the rear cargo area of the
Chevy Blazer, shouted “puro sur” and fired multiple gunshots in the direction of the
people by the gazebo. After Barajas finished shooting, the Chevy Blazer sped away.
Mario testified that Barajas used a .22-caliber rifle in the shooting. Mario did not recall
any gunshots being fired toward the Chevy Blazer.
       Analysis
       “A conviction cannot be had upon the testimony of an accomplice unless it
be corroborated by such other evidence as shall tend to connect the defendant with the
commission of the offense.” (Pen. Code, § 1111.) Adequate corroboration of an
accomplice’s testimony need not in itself be sufficient to convict the defendant; it may be
slight and entitled to little consideration when standing alone. (People v.
Rodrigues (1994) 8 Cal.4th 1060, 1128 (Rodrigues); People v. Douglas (1990) 50 Cal.3d
468, 507 (Douglas).) It need only “tend[] to connect the defendant with the crime so that
the jury may be satisfied that the accomplice is telling the truth.” (Douglas, at p. 506.)
The corroborating evidence may be circumstantial and may consist of a defendant’s
conduct or statements. (Id. at p. 507.) It thus may be evidence that shows a
consciousness of guilt. (People v. Hurd (1970) 5 Cal.App.3d 865, 875.)
       The corroborating evidence must tend to connect the defendant to the crime, but it
has to neither establish every element of the offense nor corroborate all of the
accomplice’s testimony. (People v. Heishman (1988) 45 Cal.3d 147, 164-165.)
Although the corroborating evidence need only tend to connect the defendant to the
crime, it must do more than raise a mere conjecture or suspicion of guilt. (People v.

                                             11.
Szeto (1981) 29 Cal.3d 20, 27.) “[I]t is not sufficient to merely connect a defendant with
the accomplice or other persons participating in the crime. The evidence must connect
the defendant with the crime, not simply with its perpetrators.” (People v.
Falconer (1988) 201 Cal.App.3d 1540, 1543.)
       “‘A defendant’s own conduct, declarations and testimony may furnish adequate
corroboration for the testimony of an accomplice.’” (People v. Williams (1997) 16
Cal.4th 635, 680; accord, People v. Avila (2006) 38 Cal.4th 491, 563 (Avila)
[“Defendant’s initial attempt to conceal from the police his involvement in the activities
culminating in the murders implied consciousness of guilt constituting corroborating
evidence.”].) False and contradictory statements of a defendant regarding the charge are
material corroborating evidence. (People v. Santo (1954) 43 Cal.2d 319, 327; People v.
Taylor (1924) 70 Cal.App. 239, 244; People v. McLean (1890) 84 Cal. 480, 481
[accomplice testimony sufficiently corroborated by evidence the defendant “made
contradictory statements concerning his whereabouts on the night of the fire” and “took
measures to get the accomplice to leave that part of the country”].)
       “‘The trier of fact’s determination on the issue of corroboration is binding on the
reviewing court unless the corroborating evidence should not have been admitted or does
not reasonably tend to connect the defendant with the commission of the crime.’”
(People v. Abilez (2007) 41 Cal.4th 472, 505; People v. McDermott (2002) 28 Cal.4th
946, 986; see People v. Narvaez (2002) 104 Cal.App.4th 1295, 1303.)
       Nonaccomplice evidence corroborated the testimony of Mario. Nonaccomplice
testimony from Nadia established that the shooter was in the back of the Chevy Blazer.
Nadia also testified that one of the people in the Chevy Blazer had a bandanna over his
face. Lopez, who was not an accomplice, testified she heard “Puro Sur” shouted from the
Chevy Blazer. Nadia and Lopez both testified that the windows were broken out of the
Chevy Blazer used by the shooters.



                                            12.
       Campbell recovered three .22-caliber shell casings from near where the Chevy
Blazer was left after the shooting. Lovass testified these shell casings were fired from the
rifle identified by Mario as the murder weapon and that a .22-caliber bullet was removed
from the victim’s body.
       The People’s gang expert testified Rodriguez and Barajas were members of the
Sureño gang; the Sureños are rivals of the Norteños. Gang members commit crimes
against rival gang members to send a message to the rivals. The gang expert also
testified that Sureños use the word “sur,” which is Spanish for “south.”
       Circumstantial evidence is sufficient to corroborate the testimony of an
accomplice, and slight evidence may be sufficient corroboration. (Rodrigues, supra, 8
Cal.4th at p. 1128.) Barajas ignores the evidence when he claims the only evidence
connecting him to the crime came from an accomplice. Nadia, Lopez, Campbell, Lovass,
and the gang expert all corroborated portions of Mario’s testimony. The nonaccomplice
testimony helped establish a motive for the shooting and helped identify Barajas as the
shooter. This evidence was sufficient to tend to connect Barajas to the crime. (Douglas,
supra, 50 Cal.3d at pp. 506-507.)
III.   Instructional Issues
       Barajas contends the trial court erred when it failed to instruct the jury with the
bracketed portion of CALCRIM No. 335, which states that the testimony of an
accomplice cannot corroborate the testimony of another accomplice. Rodriguez claims
the trial court erred by instructing the jury with CALCRIM No. 370, which provides that
proof of motive is not required without further instructing that motive is an element of the
gang enhancement. Barajas joins in this argument.
       Accomplice Instruction
       The trial court instructed the jury with CALCRIM No. 335 (Accomplice
Testimony: No Dispute Whether Witness Is Accomplice). The trial court omitted the
bracketed sentence that states the evidence needed to support the statement or testimony

                                             13.
of one accomplice cannot be provided by the statement or testimony of another
accomplice. The trial court also instructed the jury that if crimes were committed, Mario
was an accomplice to those crimes as a matter of law. Additionally, the jury was
instructed that Rodriguez’s out-of-court statements could be used only against Rodriguez
and not any other defendant.
       Barajas contends the trial court should have instructed the jury that if crimes were
committed, then Rodriguez was an accomplice as a matter of law and his statement could
not be used as corroborating evidence to support Mario’s testimony. Barajas is mistaken.
       We first note that no objection to the instruction as given and no request for
modification or clarification was made by Barajas during trial. Barajas argues, however,
that his failure to object did not result in forfeiture because the alleged error affected his
substantial rights (Pen. Code, § 1259 [“The appellate court may … review any instruction
given, refused or modified, even though no objection was made thereto in the lower
court, if the substantial rights of the defendant were affected thereby”]), and a claim that
a jury instruction is legally incorrect may be raised on appeal even in the absence of an
objection below (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012).
       The instruction given by the trial court was correct. It appears, however, that
Barajas is asserting the trial court should have clarified or amplified the instruction. In
the absence of a request, however, a trial court is under no obligation to amplify or
explain an instruction. (People v. Coddington (2000) 23 Cal.4th 529, 584; People v.
Bonin (1989) 47 Cal.3d 808, 856; People v. Anderson (1966) 64 Cal.2d 633, 639.)
       We, nevertheless, shall address the merits of Barajas’s contention. It would have
been error for the trial court to instruct that Rodriguez was an accomplice as a matter of
law. (People v. Hill (1967) 66 Cal.2d 536, 555.) Whether Rodriguez was guilty of
participating in any of the crimes, or an accomplice, was a question of fact for the jury to
decide. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 104.)



                                              14.
       As for Rodriguez’s out-of-court statement, the jury was instructed that the
statement was of limited use and could be used only against Rodriguez and not against
any other defendant. The jury also was instructed to “separately consider the evidence as
it applies to each defendant” and to “decide each charge for each defendant separately.”
       Even assuming the trial court should have included the bracketed portion of
CALCRIM No. 335 that was omitted, such failure may not be reversible error. The
failure to instruct the jury regarding accomplice testimony is subject to harmless error
analysis under People v. Watson (1956) 46 Cal.2d 818, 837. (Avila, supra, 38 Cal.4th at
p. 562.)
       “A trial court’s failure to instruct on accomplice liability under [Penal Code]
section 1111 is harmless if there is sufficient corroborating evidence in the record.
[Citation.] ‘Corroborating evidence may be slight, may be entirely circumstantial, and
need not be sufficient to establish every element of the charged offense. [Citations.]’
[Citation.] The evidence ‘is sufficient if it tends to connect the defendant with the crime
in such a way as to satisfy the jury that the accomplice is telling the truth.’” (People v.
Lewis (2001) 26 Cal.4th 334, 370.)
       As set forth in part II., ante, there was sufficient corroborating evidence from
nonaccomplices to corroborate Mario’s testimony and connect Barajas to the crimes.
       In addition, the jury was instructed concerning the factors to consider in evaluating
witness testimony, including whether the witness’s testimony was “influenced by a factor
such as bias or prejudice, a personal relationship with someone involved in the case, or a
personal interest in how the case is decided,” as well as whether the witness “was
promised immunity or leniency in exchange for his or her testimony.” (See CALCRIM
No. 226.) CALCRIM No. 335, as given, instructed the jury to view with caution any
“statement or testimony of an accomplice that tends to incriminate the defendant.” Thus,
to the extent the point was not readily apparent without instruction, these factors



                                             15.
suggested that Mario’s complicity in the crimes was a factor to be considered in
determining his credibility.
       The jury is presumed to have followed all of the trial court’s instructions,
including CALCRIM No. 226, the accomplice instructions in CALCRIM No. 335, the
limiting instruction on the use of Rodriguez’s out-of-court statement, and the instruction
to consider the charges and evidence against each defendant separately. (Carter, supra,
36 Cal.4th at pp. 1176-1177.)
       Under these circumstances, it is not reasonably probable that the jury would have
reached a result more favorable to Barajas had the omitted bracketed portion of
CALCRIM No. 335 been given. (See, Avila, supra, 38 Cal.4th at p. 563.)
       CALCRIM No. 370
       Rodriguez claims the trial court erred by instructing the jury with CALCRIM No.
370, which informed the jury that the People were not required to prove defendants had a
motive to commit any of the charged crimes. He contends this was error because motive
is an element of the gang enhancement. Barajas joins in this contention. We disagree.
       Rodriguez acknowledges that this court considered, and rejected, this contention in
People v. Fuentes (2009) 171 Cal.App.4th 1133, 1139-1140 (Fuentes). He asks this court
to reconsider its conclusion; we decline to do so.
       Motive and intent are not synonymous. (People v. Bordelon (2008) 162
Cal.App.4th 1311, 1322.) “Motive describes the reason a person chooses to commit a
crime. The reason, however, is different from a required mental state such as intent or
malice.” (People v. Hillhouse (2002) 27 Cal.4th 469, 504.)
       As we stated in Fuentes, a defendant’s intent to further criminal gang activity is
not a motive any more than any other specific intent; just as intent to kill is not a motive.
(Fuentes, supra, 171 Cal.App.4th at p. 1139.) While Rodriguez and Barajas challenge
the giving of CALCRIM No. 370, only as it applies to the gang enhancement, our
decision in Fuentes applied to the gang offense as well. (Fuentes, at p. 1139.)

                                             16.
       CALCRIM No. 370 instructed the jury that the People were not required to prove
any motive to commit the charged crimes. CALCRIM No. 1401 instructed on the gang
enhancement and provided that the People must prove Rodriguez and Barajas intended to
further gang activity. These instructions correctly informed the jury that the People must
prove Rodriguez and Barajas “intended to further gang activity but need not show what
motivated” them to do so. (Fuentes, supra, 171 Cal.App.4th at pp. 1139-1140.)
IV.     Motion for Juror Contact Information
       Rodriguez filed a posttrial motion for release of juror contact information. In that
motion Rodriguez alleged jurors had committed misconduct in that they “willfully
ignored the courts [sic] instructions regarding the use of evidence and instead utilized
their personally perceived expertise, or the perceived expertise of other jurors, in place of
evidence presented at trial.” The trial court denied the motion, which Rodriguez
contends was an abuse of its discretion.
       Standard of Review
       “A criminal defendant has neither a guaranty of posttrial access to jurors nor a
right to question them about their guilt or penalty verdict.” (People v. Cox (1991) 53
Cal.3d 618, 698-699.) “‘[S]trong public policies protect discharged jurors from
improperly intrusive conduct in all cases.’ [Citations.] The uncontrolled invasion of
juror privacy following completion of service on a jury is, moreover, a substantial threat
to the administration of justice. [Citations.] These concerns, however, must be balanced
with the equally weighty public policy that criminal defendants are entitled to jury
verdicts untainted by prejudicial juror misconduct.” (Townsel v. Superior Court (1999)
20 Cal.4th 1084, 1092.)
       Code of Civil Procedure sections 206 and 237 govern petitions for disclosure of
juror identifying information, which information is automatically sealed upon the
recording of a verdict in a criminal case. (Id., § 237, subd. (a)(2).) Section 206
authorizes a criminal defendant to petition pursuant to section 237 for access to personal

                                             17.
juror identifying information when the sealed information is “necessary for the defendant
to communicate with jurors for the purpose of developing a motion for new trial or any
other lawful purpose.” (Id., § 206, subd. (g).) Section 237 provides that the petition must
be supported by a declaration that includes facts sufficient to establish good cause for the
release of juror information. If the trial court determines the petition and supporting
declaration establish a prima facie showing of good cause for release of juror
information, the trial court must set a hearing, unless the record establishes a compelling
interest against disclosure. (Id., subd. (b).) If a hearing is set, then the trial court shall
give the former juror or jurors notice they may appear in person or in writing to protest
the granting of the petition. (Id., subd. (c).) A former juror’s protest shall be sustained if,
in the trial court’s discretion, “the petitioner fails to show good cause, the record
establishes the presence of a compelling interest against disclosure … or the juror is
unwilling to be contacted by the petitioner.” (Id., subd. (d).) The trial court’s ruling is
reviewed for abuse of discretion. (People v. Jones (1998) 17 Cal.4th 279, 317.)
       Analysis
       In support of the motion for juror contact information, Rodriguez submitted a
declaration from defense investigator Mari Cicinato purporting to relate statements made
to her by Jurors Nos. 3, 7, 10, and 11 in which those jurors related statements purportedly
made by other jurors during deliberations regarding those jurors’ personal experiences
with firearms. The statements Cicinato reports in her declaration are double hearsay.
(Evid. Code, § 1200.) Hearsay does not trigger any duty on the part of the trial court to
investigate or release juror contact information. (Avila, supra, 38 Cal.4th at p. 605.)
       Moreover, even if jurors applied their personal experiences in evaluating the
evidence in the case, it is not misconduct. The Supreme Court addressed a similar issue
in People v. Steele (2002) 27 Cal.4th 1230 (Steele). The defendant argued that jurors
with military experience and medical experience offered their expertise during



                                               18.
deliberations. While discussing the issue, the Supreme Court made the
following pertinent observation:

                  “A juror may not express opinions based on asserted personal
          expertise that is different from or contrary to the law as the trial court stated
          it or to the evidence, but if we allow jurors with specialized knowledge to
          sit on a jury, and we do, we must allow those jurors to use their experience
          in evaluating and interpreting that evidence. Moreover, during the give and
          take of deliberations, it is virtually impossible to divorce completely one’s
          background from one’s analysis of the evidence. We cannot demand that
          jurors, especially lay jurors not versed in the subtle distinctions that
          attorneys draw, never refer to their background during deliberations.
          ‘Jurors are not automatons. They are imbued with human frailties as well
          as virtues.’ [Citation.]

                 “A fine line exists between using one’s background in analyzing the
          evidence, which is appropriate, even inevitable, and injecting ‘an opinion
          explicitly based on specialized information obtained from outside sources,’
          which we have described as misconduct.” (Steele, 27 Cal.4th at p. 1266.)
          Here, the jurors used their personal experiences to evaluate the evidence presented
at trial. Specifically, their own experiences with firearms led them to discredit defense
expert witness Garber’s testimony. Evaluating testimony in light of their own personal
experiences, however, does not constitute misconduct. (Steele, supra, 27 Cal.4th at
p. 1266.)
          Rodriguez failed to establish a prima facie case of misconduct warranting release
of juror contact information. Therefore, the trial court did not abuse its discretion in
denying the motion.
V.        New Trial Motion
          Rodriguez contends the trial court abused its discretion when it denied his motion
for a new trial based upon juror misconduct. Barajas joins in this contention.
          In the new trial motion filed by Rodriguez, and joined by Barajas, Rodriguez
asserted that juror misconduct had occurred in that jurors used “their personally perceived
expertise, or the perceived expertise of other jurors, in place of evidence presented at
trial.”

                                                 19.
       Here, Rodriguez and Barajas contend that jurors concealed personal information
during voir dire. Allegedly, the jurors introduced outside evidence (their personal
expertise) into the deliberations, and the outside evidence was received by all the jurors.
Rodriguez and Barajas assert these acts constitute misconduct. They are mistaken.
       Analysis
       Penal Code section 1181 sets forth the grounds upon which a new trial may be
granted, including receipt of out-of-court evidence and juror misconduct. (Id., subds. (2),
(3).) In ruling on a motion for new trial, the trial court undertakes a three-step analysis,
the first step of which is to determine whether the affidavits submitted in support of the
motion are admissible under Evidence Code section 1150. (People v. Perez (1992) 4
Cal.App.4th 893, 906.) A trial court has broad discretion in ruling on this determination
and its rulings will not be disturbed absent a clear abuse of discretion. (Ibid.)
       Here, as discussed in part IV., ante, the affidavits submitted in support of the
motion for new trial contained inadmissible hearsay. (Evid. Code, § 1200; People v.
Williams (1988) 45 Cal.3d 1268, 1318.) There was no competent evidence presented that
any juror introduced any outside information into the deliberations and that this outside
information was received by all the jurors. Lacking any competent evidence in support
of the motion, a denial of the motion on this basis alone was warranted. (People v. Dykes
(2009) 46 Cal.4th 731, 812-813 (Dykes).)
       Furthermore, as set forth in part IV., ante, even if there was competent evidence of
comments made by jurors during deliberations regarding their personal experiences with
firearms, evaluating testimony in light of their own personal experiences does not
constitute misconduct. (Steele, supra, 27 Cal.4th at p. 1266.)
       Also, the record does not support the claim that these jurors concealed relevant
disqualifying information during voir dire. Rodriguez and Barajas argue the jurors
expressly were asked whether they “had any involvement with firearms.” Defendants



                                             20.
claim these jurors concealed information about their firearm experiences and, had defense
counsel known of these experiences, peremptory challenges would have been exercised.
       The jurors, however, never were asked if they “had any involvement with
firearms.” The trial court asked the jurors if “anybody close to [them had] been charged
with firearm offenses” or if they had been a “victim of an offense of any kind.” None of
the prospective jurors ever was asked about whether he or she had personal experience
with firearms or military service. The record fails to support any claim of concealment
by a juror.
       And the claim that a peremptory challenge would have been exercised on any
juror with firearms experience is pure speculation. Presumably, if defense counsel
thought firearms experience sufficiently important to disqualify a juror, he or she would
have asked the venire panel, or would have had the trial court ask, this question.
       Conclusion
       The motion for new trial was not supported by any competent evidence;
consequently, denial was warranted on that basis alone. (Dykes, supra, 46 Cal.4th at
pp. 812-813.) Even if the statements from the jurors set forth in the defense
investigator’s declaration had been admissible, the statements did not reveal misconduct.
Jurors evaluating testimony in light of their own personal experiences does not constitute
misconduct. (Steele, supra, 27 Cal.4th at p. 1266.)
V.     Sentencing Issues
       Both Rodriguez and Barajas were sentenced to terms of imprisonment of 50 years
to life with the possibility of parole. Both contend their sentences constitute cruel and
unusual punishment and violate the Eighth Amendment. In addition, they argue the
sentences are disproportionate to the offense. We disagree.




                                            21.
       Eighth Amendment Analysis
       The Eighth Amendment to the United States Constitution prohibits the imposition
of cruel and unusual punishment. Embodied in the Eighth Amendment is the concept of
proportionality; in other words, punishment for the crime should be proportional to the
offense and sentences that are grossly disproportionate violate the Eighth Amendment.
(In re Coley (2012) 55 Cal.4th 524, 538.) In Miller v. Alabama (2012) 567 U.S. ___ [132
S.Ct. 2455] (Miller), the United States Supreme Court held that mandatory life
imprisonment without the possibility of parole for juveniles convicted of murder violates
the Eighth Amendment. (Miller, at p. ___ [132 S.Ct. at p. 2469].)
       In Graham v. Florida (2010) 560 U.S. 48, the United States Supreme Court
banned outright life without parole sentences for juveniles convicted of nonhomicide
offenses. As stated in Graham:

       “A State is not required to guarantee eventual freedom to a juvenile
       offender convicted of a nonhomicide crime. What the State must do,
       however, is give [juvenile] defendants … some meaningful opportunity to
       obtain release based on demonstrated maturity and rehabilitation. It is for
       the State, in the first instance, to explore the means and mechanisms for
       compliance. It bears emphasis, however, that while the Eighth Amendment
       forbids a State from imposing a life without parole sentence on a juvenile
       nonhomicide offender, it does not require the State to release that offender
       during his natural life. Those who commit truly horrifying crimes as
       juveniles may turn out to be irredeemable, and thus deserving of
       incarceration for the duration of their lives. The Eighth Amendment does
       not foreclose the possibility that persons convicted of nonhomicide crimes
       committed before adulthood will remain behind bars for life. It does forbid
       States from making the judgment at the outset that those offenders never
       will be fit to reenter society.” (Id. at p. 75.)
       In People v. Caballero (2012) 55 Cal.4th 262 (Caballero), the California Supreme
Court held that the proscription in Graham against life without parole for nonhomicide
offenses applied equally to sentences that were the functional equivalent of a life without
parole sentence. (Caballero, at p. 268.) “Sentencing a juvenile offender for a
nonhomicide offense to a term of years with a parole eligibility date that falls outside the


                                             22.
juvenile offender’s natural life expectancy constitutes cruel and unusual punishment in
violation of the Eighth Amendment.” (Ibid.) In People v. Mendez (2010) 188
Cal.App.4th 47, the appellate court concluded that a juvenile offender’s sentence of 84
years to life violated the Eighth Amendment because it was the functional equivalent of
life without parole. (Mendez, at pp. 50-51.) The appellate court in People v. Perez
(2013) 214 Cal.App.4th 49, however, held a sentence of 30 years to life for a 17-year-old
juvenile offender did not violate the Eighth Amendment because it was not the functional
equivalent of a life sentence. (Perez, at p. 58.)
         Here, according to the abstract of judgment, Rodriguez was 24 years old at the
time of sentencing. He received a sentence of 50 years to life, with credit for 3,022 days
in custody; the credit equates to over eight years. Barajas was 25 years old at the time of
sentencing and also received a term of 50 years to life, with credit for 3,022 days in
custody. According to the Social Security Administration’s Actuarial Life Table,2 at the
time of sentencing Rodriguez and Barajas each had a life expectancy of slightly over 77
years.
         They would be incarcerated for slightly less than 42 years after sentencing,
calculated by deducting the 3,022 days of credit from a 50-year term. This means
Rodriguez would be eligible for parole at 66 years of age and Barajas at 67 years of age,
a decade or more before the end of their anticipated life expectancy. The appellate court
in Perez did not specifically define how much anticipated life expectancy has to remain at
the time a defendant becomes eligible for parole. There must be “‘some meaningful
opportunity to obtain release based on demonstrated maturity and rehabilitation.’”
(People v. Perez, supra, 214 Cal.App.4th at pp. 57-58.)




         2Available   at <http://www.ssa.gov/OACT/STATS/table4c6.html> (as of Feb. 17,
2015).


                                              23.
       Barajas claims several studies indicate people who are incarcerated have a reduced
life expectancy. That, however, is not a factor in determining whether the sentence is the
functional equivalent of a life sentence. Barajas has not cited a case that so holds and our
review of Caballero and the authorities cited therein disclose the court was addressing a
natural life expectancy, with no modification for any factors that may lessen a normal life
expectancy. (Caballero, supra, 55 Cal.4th at pp. 266-268.) Furthermore, as the “state is
by no means required to guarantee eventual freedom to a juvenile convicted of a
nonhomicide offense,” the state can hardly be required to guarantee eventual freedom to
one, like Barajas, convicted of homicide. (Id. at p. 266.)
       The sentences of 50 years to life are not the functional equivalent of a life term.
Rodriguez and Barajas will become eligible for parole well within their natural life
expectancy. (People v. Perez, supra, 214 Cal.App.4th at p. 58.) Because the sentences
are not the functional equivalent of a life term, the trial court was not required to engage
in a proportionality analysis. (Miller, supra, 567 U.S. at p. ___ [132 S.Ct. at pp. 2463-
2464].)
       Sentence Not Disproportionate
       The Eighth Amendment also precludes punishment that is disproportionate to the
crime, and both Rodriguez and Barajas contend their sentences of 50 years to life are
disproportionate to the crime. Proportionality challenges to noncapital sentences are
rarely successful. (Rummel v. Estelle (1980) 445 U.S. 263, 374, 272.) The challenge
here is similarly unsuccessful.
       Rodriguez was on juvenile probation when the instant crimes occurred and his
performance on juvenile probation had been unsatisfactory. The victim was not a gang
member, but an innocent bystander participating in a children’s after-school program.
Rodriguez was a Sureño gang member and acting in concert with other Sureño gang
members in connection with the shooting. The nature of the offense, the gang affiliation,
the participation in previous crimes before the shooting, and the danger to society

                                             24.
presented by shooting into a group of children all are factors indicating the sentence was
not disproportionate to the crime. (People v. Em (2009) 171 Cal.App.4th 964, 972 (Em)
[sentence of 50 years to life imposed on 15-year-old aider and abettor to murder was not
disproportionate considering seriousness of crime and defendant’s gang affiliation and
danger to society].)
       The sentence imposed on Barajas also was not disproportionate. He, too, was a
member of the Sureño gang and acting in concert with other gang members at the time of
the shooting. Barajas was the shooter who fatally shot the victim. While Barajas did not
have a prior criminal record, he had a history of gang affiliation and shot a .22-caliber
rifle into a group of students at a public park. Considering the callousness of the offense,
and his gang affiliation, the sentence imposed on Barajas was not disproportionate. (Em,
supra, 171 Cal.App.4th at p. 972.)
                                      DISPOSITION
       The judgments are affirmed. Barajas’s motion to strike references in codefendant
Rodriguez’s opening brief to statements made by Barajas that the trial court ordered
stricken is granted.

                                                                 _____________________
                                                                   CORNELL, Acting P.J.


WE CONCUR


 _____________________
KANE, J.


 _____________________
POOCHIGIAN, J.




                                             25.
