Filed 3/25/15 P. v. Felix CA4/1
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               COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                             DIVISION ONE

                                      STATE OF CALIFORNIA



THE PEOPLE,                                                         D066686

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SWF1100211)

ALFREDO FELIX,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Riverside County,

Mark A. Mandio, Judge. Affirmed.

         Eric S. Multhaup, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant

Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood

and Heather F. Crawford, Deputy Attorneys General, for Plaintiff and Respondent.



         A jury found Alfredo Felix guilty of first degree murder and robbery and

found true a special circumstance that he committed the murder while engaged in
the commission of a robbery. The court sentenced Alfredo to life without the

possibility of parole for the murder conviction and special circumstance finding

and the upper term of five years on the robbery conviction. Alfredo contends

insufficient evidence corroborated an accomplice's testimony and supported the

true finding on the robbery-murder special circumstance. He also asserts the

prosecutor committed misconduct by violating an in limine ruling barring any

mention of the outcome of an earlier trial of his brother, Fabian Felix. We find

Alfredo's arguments unavailing and affirm the judgment.

               FACTUAL AND PROCEDURAL BACKGROUND

       On October 3, 2005, Fabian rented a Dodge Magnum vehicle.

(Undesignated date references are to the year 2005.) The next day, Fabian,

Alfredo and their cousin, Cristobal D'Arte, drove south from Waterford to Hemet,

California to visit Juan Molina who had asked Fabian to bring down marijuana.

Molina was married to Fabian's and Alfredo's sister.

       Molina testified that on October 4, Fabian called him and said that he was

on the road on his way down to Hemet. In the early afternoon, Fabian, Alfredo

and D'Arte arrived at Molina's apartment in the Dodge Magnum. Fabian did not

have any marijuana with him, but told Molina he was meeting with someone to get

it. The four men discussed a plan for getting the marijuana. Fabian and Alfredo

were going to meet with a person who had marijuana and rob him. They expected

the victim to have twenty pounds of marijuana on him.



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       Based on the plan, Fabian and Alfredo were going to meet with the victim

and convince him to get into their car with the marijuana. D'Arte and Molina were

supposed to wait for them at an apartment complex on Cawston Avenue. Once

Fabian, Alfredo and the victim were parked at the apartment complex, the plan

was for D'Arte and Molina to pull the victim out of the car and fight with him

while Fabian and Alfredo drove off with the marijuana. During the discussion

about the plan, Fabian and Alfredo each pulled out .45 caliber handguns.

       That same day, when Fabian and Alfredo left Molina's apartment, Molina

and D'Arte drove to the apartments on Cawston Avenue and parked. After waiting

for some time, Molina saw the Dodge Magnum arrive and park. Molina and

D'Arte approached the rear side of the Dodge.

       Molina saw Alfredo, who was seated in the rear passenger-side seat, grab

the victim in the front passenger seat around the neck and put a gun to his head.

Molina also saw Fabian, who was in the driver's seat, turn toward the victim.

Molina then heard a shot. The passenger door opened and the victim fell out of

the car. Alfredo then got into the front passenger seat and D'Arte jumped into the

back seat. As the Dodge backed up, Molina ran to his car and returned to his

apartment.

       Alfredo, Fabian and D'Arte arrived at Molina's apartment approximately

five minutes after Molina. Alfredo and Fabian were both upset about the shooting.

Fabian left that day but Alfredo stayed the night at Molina's apartment.



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       On the day of the shooting, several residents of the Cawston Avenue

apartments saw the Dodge at the apartment complex. Residents also saw two men

approach the car, heard a shot and then saw the victim fall out of the parked car.

They then saw one of the two men who had approached the car get into it and the

other man run away. Residents then observed the Dodge speed out of the

apartment complex driveway.

       Officers were dispatched to the location of the shooting at 4:41 p.m.

Officer Derek Maddox found the victim lying on his back in a flower bed. The

victim had died from a gunshot wound. If the victim had been in the front

passenger seat, his wound was consistent with being shot from close proximity on

the left side.

       Police arrested Fabian in July 2006 and prepared a wanted poster for

Alfredo. The poster included Alfredo's picture, date of birth, and physical

characteristics. It also stated, "[Alfredo], along with his brother and cousin, were

involved in a 20 [pound] marijuana drug rip off with the victim of this case. The

victim was shot to death with a .45 caliber handgun during this incident."

       The Kern County Sheriff's special operations group located Alfredo in

January 2011. When Deputy Raul Murrillo initially asked Alfredo his name,

Alfredo identified himself as "Rafael." When asked again, Alfredo repeated his

name was "Rafael." When asked if his name was Alfredo, Alfredo responded that

it was not. Deputy Murrillo showed Alfredo the wanted poster with Alfredo's

picture and asked Alfredo yet again if he was Alfredo Felix. Alfredo looked at the

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poster, shook his head to suggest "no" and then put his head down. Police found

no information connecting the name "Rafael" with Alfredo.

                                   DISCUSSION

                     I. Motion Regarding Respondent's Brief

       On January 13, 2015, Alfredo, in propria persona, filed a motion entitled

"Motion Pursuant to People v. Marsden." In that motion, Alfredo complained

about his appellate counsel's willingness to allow the Attorney General to file a

late respondent's brief. Alfredo requests that we find the Attorney General is time

barred from filing a brief. However, the Attorney General filed its respondent's

brief on May 23, 2014, nearly eight months before Alfredo's motion. Alfredo did

not file a reply brief. Moreover, we granted both parties in this case multiple

extensions of time for filing briefs. The last extension permitted the Attorney

General to file its brief by June 4, 2014. The Attorney General complied with that

order. We see no reason to strike the Attorney General's brief. Accordingly,

Alfredo's motion is denied.

                   II. Sufficiency of the Corroborating Evidence

A. Additional Background

       Police found a set of keys next to the victim's foot. The keys unlocked a

truck that had been reported abandoned in Hemet about three to four miles from

the shooting scene. Police found two cell phones in the truck. One of those

phones showed an August 20 call from a cell phone registered to Alfredo's wife,



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Christina Cervantes. Cervantes had two cell phones registered in her name, one

with a number ending in 7780 and the other in 7790.

       Cell phone records showed frequent communication between Fabian's

phone and the cell phones ending in 7780 and 7790. The cell phone records also

indicated that Fabian's cell phone and the 7790 cell phone traveled from northern

to southern California on the day of the crime and later returned to northern

California.

       On October 3, Fabian's cell phone was in the Stockton area. On October 4,

his phone was in the Los Angeles and Hemet regions. Late in the evening on

October 4, Fabian's cell phone made or received calls through a Bakersfield tower

and a Fresno tower.

       The phone number ending in 7790, which was in Cervantes's name, made

or received calls in the early afternoon of October 3 while in the Sacramento area.

Later that day, the cell phone was in the San Francisco area and then the Los

Angeles area. That phone was in the San Diego area for calls between 12:06 p.m.

on October 4 and 2:51 p.m. on October 5. The San Diego coverage area stretches

east to Arizona and possibly north of San Diego. On the night of October 5, the

phone with the number ending in 7790 was again in northern California.

B. Analysis

       Alfredo argues insufficient evidence corroborated Molina's testimony as

required by Penal Code section 1111. (Undesignated statutory references are to

the Penal Code.) We disagree.

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         A conviction cannot be based only on accomplice testimony. (§ 1111.)

There must be sufficient corroborating evidence that "shall tend to connect the

defendant with the commission of the offense; and the corroboration is not

sufficient if it merely shows the commission of the offense or the circumstances

thereof." (Ibid.) "To determine if sufficient corroboration exists, we must

eliminate the accomplice's testimony from the case, and examine the evidence of

other witnesses to determine if there is any inculpatory evidence tending to

connect the defendant with the offense. [Citations.]" (People v. Falconer (1988)

201 Cal.App.3d 1540, 1543.)

       "[C]orroborative evidence is sufficient even though slight and entitled to

little consideration when standing alone [citation]." (People v. Wood (1961) 192

Cal.App.2d 393, 396; People v. Frye (1998) 18 Cal.4th 894, 966 ["Corroboration

need only be slight."].) "Only a portion of the accomplice's testimony need be

corroborated, and the corroborative evidence need not establish every element of

the offense charged. [Citation.] All that is required is that the evidence

' " ' "connect the defendant with the commission of the crime in such a way as may

reasonably satisfy the jury that the [accomplice] is telling the truth." ' " '

[Citation.]" (People v. DeJesus (1995) 38 Cal.App.4th 1, 25.) In determining the

sufficiency of corroborative evidence, we must view the evidence in the light most

favorable to the verdict and uphold the trial court's disposition if, on the

evidentiary record, the jury's determination is reasonable. (People v. Garrison

(1989) 47 Cal.3d 746, 774.)

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       Here, the record contains minimal evidence corroborating Molina's

testimony regarding Alfredo's involvement in the crime. The cell phone record

evidence, although somewhat unclear, backed up Molina's testimony that on

October 4, Alfredo traveled from northern to southern California with Fabian and

D'Arte and thus had an opportunity to commit the crimes. Although the phone

with a number ending in 7790, which is the phone that traveled from northern to

southern California on the date of the murder, was registered to Cervantes, there

was evidence of multiple calls between the two phones registered in her name

(numbers ending in 7780 and 7790). This evidence suggests Alfredo used one

phone and Cervantes used the other. Further, cell phone evidence connected

Alfredo to the victim. Specifically, the victim's cell phone showed a call from the

7790 phone number, the phone that had traveled from northern to southern

California.

       Even without the cell phone evidence, however, Alfredo's lies to police

about his identity "warrant an inference of consciousness of guilt and may

corroborate an accomplice's testimony [citation]." (People v. Perry (1972) 7

Cal.3d 756, 772.) Multiple times during Deputy Murrillo's questioning, Alfredo

said his name was "Rafael" and denied his name was Alfredo. Further, Alfredo

denied being the person depicted in the wanted poster with his picture and

description of the crime in this case. This evidence tended to show a

consciousness of guilt. (People v. Liss (1950) 35 Cal.2d 570, 576.)



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       While the corroborating evidence was not overwhelming, it was minimally

sufficient to connect Alfredo to the commission of the crimes of which he has

been convicted and we must uphold the jury's verdict. (People v. Garrison, supra,

47 Cal.3d at p. 774.)

    III. Sufficiency of the Evidence on Robbery-Murder Special Circumstance

       Alfredo argues insufficient evidence supported the jury's true finding on the

robbery-murder special circumstance. He contends he was not a "major

participant" in the crime because Fabian instigated the plan and "was the person in

charge and the person calling the shots." Alfredo also suggests he did not act with

reckless indifference to human life because the original "plan [was] designed to

avoid any actual violence" and the record shows he was angry with Fabian for

deviating from the plan. We reject Alfredo's argument.

       Well settled standards apply to Alfredo's sufficiency of the evidence

challenge. We determine " ' "whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt." [Citations.] We

examine the record to determine "whether it shows evidence that is reasonable,

credible and of solid value from which a rational trier of fact could find the

defendant guilty beyond a reasonable doubt." [Citation.] Further, "the appellate

court presumes in support of the judgment the existence of every fact the trier

could reasonably deduce from the evidence." ' " (People v. Virgil (2011) 51

Cal.4th 1210, 1263.) Reversal for insufficient evidence "is unwarranted unless it

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appears 'that upon no hypothesis whatever is there sufficient substantial evidence

to support' " the jury's verdict. (People v. Bolin (1998) 18 Cal.4th 297, 331.) We

review a challenge to the sufficiency of the evidence to support a special-

circumstance finding in the same manner as a challenge to the sufficiency of the

evidence to support a conviction. (People v. Cole (2004) 33 Cal.4th 1158, 1229;

see People v. Burney (2009) 47 Cal.4th 203, 253 [applying standard to support

felony murder predicated on robbery].)

       "Under the felony-murder rule, a murder 'committed in the perpetration of,

or attempt to perpetrate' one of several enumerated felonies, including robbery, is

first degree murder. [Citation.] The robbery-murder special circumstance applies

to a murder 'committed while the defendant was engaged in . . . the commission

of, [or] attempted commission of' robbery. [Citation.]" (People v. Lindberg

(2008) 45 Cal.4th 1, 27-28.)

       When the defendant is an accomplice rather than the actual killer, the

People must plead and prove the defendant either intended to kill (§ 190.2, subd.

(c)) or acted with "reckless indifference to human life" while a "major participant"

in the underlying felony. (§ 190.2, subd. (d); see People v. Thompson (2010) 49

Cal.4th 79, 125-126 [for special circumstances based on the enumerated felonies

in paragraph (17) of subdivision (a) of § 190.2, which includes robbery, an aider

and abettor must have been a major participant and have acted with reckless

indifference to human life].) " '[T]he culpable mental state of "reckless

indifference to life" is one in which the defendant "knowingly engage[es] in

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criminal activities known to carry a grave risk of death" . . . .' [Citation.] This

mental state thus requires the defendant be 'subjectively aware that his or her

participation in the felony involved a grave risk of death.' " (People v. Mil (2012)

53 Cal.4th 400, 417, quoting People v. Estrada (1995) 11 Cal.4th 568, 577.)

       Courts have found substantial evidence of reckless indifference to life

under circumstances where, as here, a defendant, knowing about the presence of a

weapon, has continued to assist with a violent robbery and flee rather than come to

the injured victim's aid. (See People v. Lopez (2011) 198 Cal.App.4th 1106, 1115-

1118 [shooter's testimony that accomplice knew he had a gun and was with him

when he picked it up, as well as evidence the accomplice may have been planning

to "jack" the victim behind his back supported jury's conclusion she acted with

reckless indifference to the life of the man she lured into the alley]; People v.

Proby (1998) 60 Cal.App.4th 922, 929 [defendant knew of codefendant's

willingness to do violence and provided him with a gun, and continued to rob a

restaurant, took money and left after the codefendant shot the victim in the back of

the head]; People v. Bustos (1994) 23 Cal.App.4th 1747, 1754 [sufficient evidence

for special circumstance found where defendant was involved in planning the

robbery, knew another codefendant had a knife, went into the restroom and

struggled with the victim who was stabbed, and "fled together with his

accomplices and the robbery loot, leaving the victim to die"].)

       Here, substantial evidence supported the findings that Alfredo was a major

participant in the crime and acted with reckless indifference to human life. The

                                          11
evidence showed that Alfredo planned the robbery and actively participated in its

commission. Alfredo went with Fabian to meet with the victim, drove with Fabian

and the victim to the Cawston Avenue apartments, restrained the victim by

grabbing the victim from behind around the neck, and put a gun to the victim's

head. Alfredo's knowledge of the robbery plan and his participation in it was

substantial evidence that he had a conspicuous role and acted as a major

participant in the crime. A major participant need not be armed or participate in

the actual taking (People v. Hodgson (2003) 111 Cal.App.4th 566, 579), nor is a

major participant required to be the "ringleader." (People v. Proby, supra, 60

Cal.App.4th at p. 934.)

       Further, Alfredo and Fabian were both armed. Despite having a gun

himself and knowing that Fabian had one as well, Alfredo proceeded to participate

in the robbery. Moreover, Alfredo used his gun during the robbery, holding it to

the victim's head while restraining the victim. The use of a weapon to affect the

robbery presented a grave risk of death. Additionally, rather than coming to the

victim's aid, Alfredo fled with Fabian and D'Arte. This constitutes substantial

evidence that Alfredo knowingly engaged in criminal activity involving a grave

risk of death. (People v. Mil, supra, 53 Cal.4th at p. 417; People v. Lopez, supra,

198 Cal.App.4th at pp. 1115-1116; People v. Bustos, supra, 23 Cal.App.4th at pp.

1751, 1754-1755.)




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                      IV. Alleged Prosecutorial Misconduct

A. Background

       Alfredo moved in limine to preclude any mention of the outcome of

Fabian's earlier trial. The prosecutor agreed and the trial court made that order.

       In his closing argument, defense counsel stated, "The evidence did a good

job . . . of convicting Fabian Felix and Juan Molina. It did not do a good job of

convicting Alfredo Felix." In the prosecutor's closing argument, he stated he

agreed with defense counsel that the evidence did "a really good job of convicting

Fabian Felix." The prosecutor went on to say, "[A]s I told you before this

morning, if the evidence has done a convincing job of demonstrating that Fabian

Felix shot [the victim] in that car that day in Hemet, then the evidence

demonstrates Juan Molina told the truth when he testified November, 2010, and

when he testified for you a couple weeks ago. We apparently agree on that. I

guess the interpretation is what's different." Defense counsel did not object to the

prosecutor's statements.

B. Analysis

       Alfredo argues the prosecutor committed misconduct by violating the

court's in limine ruling barring any mention of the outcome of an earlier trial of his

brother, Fabian Felix. We reject this argument.

       "It is . . . misconduct for a prosecutor to make remarks in opening

statements or closing arguments that refer to evidence determined to be

inadmissible in a previous ruling of the trial court. Because we consider the effect

                                         13
of the prosecutor's action on the defendant, a determination of bad faith or

wrongful intent by the prosecutor is not required for a finding of prosecutorial

misconduct. [Citation.] A defendant's conviction will not be reversed for

prosecutorial misconduct, however, unless it is reasonably probable that a result

more favorable to the defendant would have been reached without the misconduct.

[Citation.] Also, a claim of prosecutorial misconduct is not preserved for appeal if

defendant fails to object and seek an admonition if an objection and jury

admonition would have cured the injury. [Citation.]" (People v. Crew (2003) 31

Cal.4th 822, 839.)

       Here, Alfredo forfeited his claim of prosecutorial error by failing to object

at trial. Even if the claim was preserved, however, it is not reasonably probable

that a result more favorable to Alfredo would have been reached without the

prosecutor's statement. If we read defense counsel's comment in his closing

argument as a statement indicating Fabian and Molina were previously convicted,

defense counsel had opened the door to such information and made the jury aware

of Fabian's and Molina's convictions before the prosecutor did so. Given defense

counsel's closing argument, the prosecutor's statement was harmless.

       An equally plausible alternative reading of defense counsel's comment that

"the evidence did a good job of convicting Fabian Felix and Juan Molina" is that

defense counsel was commenting on the strength of the evidence against Fabian

and Molina as presented in this trial as opposed to the strength of the evidence

against Alfredo. If we interpret defense counsel's statement this way, then the

                                         14
prosecutor's statement agreeing with defense counsel that the evidence "did a

really good job of convicting Fabian Felix" does not run afoul to the trial court's

ruling precluding reference to Fabian's conviction in an earlier trial. Thus, the

prosecutor did not commit misconduct.

                                   DISPOSITION

       The judgment is affirmed.



                                                                MCINTYRE, J.

WE CONCUR:

HALLER, Acting P. J.

AARON, J.




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