Filed 12/16/14 P. v. Ortega CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F063612
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. MF47422B)
                   v.

URBANO MORALES ORTEGA,                                                                   OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Merced County. John D.
Kirihara, Judge.

         Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Paul E.
O’Connor, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
         Defendant Urbano Morales Ortega was tried jointly with codefendant Omar
Cebrero for the special circumstances murder of the victim, Rosa Avina. A jury found
defendant guilty of first degree murder (Pen. Code,1 § 189) and aggravated kidnapping
(§ 209, subd. (a)). Additionally, the jury found true the kidnapping and mayhem-felony-
murder special circumstances (§ 190.2, subd. (a)(17)(B), (J)), and the special
circumstance of torture (§ 190.2, subd. (a)(18)). The trial court sentenced defendant to a
term of life without the possibility of parole for the murder count and stayed a sentence of
life without the possibility of parole for the aggravated kidnapping count.2
          On appeal, defendant contends the trial court erred in denying his motion to
suppress his statement, the trial court’s exclusion of third party culpability evidence
denied him due process of law, and the evidence was insufficient to support the
kidnapping charges as well as the special circumstance allegations. We find no error and
affirm.
                                                 FACTS
          The prosecution’s main witness at trial was Luis Vazquez, an accomplice to the
crime. In exchange for his truthful testimony, Vazquez was allowed to plead to the lesser
charge of kidnapping and first degree burglary. He was to receive a total term of nine
years four months. He was still awaiting sentencing at the time of trial.
          Vazquez testified that on October 23, 2007,3 he was living with his family on
Sycamore Street in Delhi. At the time, he was 18 years old and his friend Luis Valencia,
who was 24 years old, was also living at the home. The house was on the outskirts of
town near some almond orchards.
          At approximately 8:00 or 9:00 p.m. on the day in question, Vazquez was sitting on
his porch when he observed Valencia drive up in an unfamiliar gray (sometimes
described as silver) Pontiac followed by Alvaro Reyes driving a red Lexus. Vazquez had

          1All   further references are to the Penal Code unless otherwise indicated.
          2The amended  abstract of judgment reflects a term of life with parole on count 2. We
will order the abstract amended to reflect a term of life without the possibility of parole on both
counts, with count 2 stayed pursuant to section 654.
          3Further   references to dates will be to 2007 unless otherwise indicated.


                                                    2.
met Reyes approximately four months earlier through Valencia. Reyes and Valencia
exited their cars and were having a discussion when Vazquez approached and overheard
Valencia tell Reyes he “had to call and pick her up.” Vazquez asked what was going on
and they replied, “‘we got a little thing going on.’” Vazquez understood that they were
going to do a favor for Reyes.
       Reyes left in the Lexus saying he had to get his truck, a light brown Ford F150
pickup truck. Meanwhile, Valencia told Vazquez “some Mexicans” took a pound of
marijuana, and he was going to try to get it back. Vazquez offered to help Valencia
because he knew Valencia had been assaulted in the past. He believed at the time that
they were going to confront the person, who he later learned was the victim Rosa Avina,
with guns in an attempt to get her to return the marijuana. If she did not have the drugs,
they would beat her. Before leaving, Valencia retrieved his rifle and Vazquez retrieved
some zip ties, tape, and a flashlight. Vazquez understood that Reyes was going to pick
up Avina.
       Valencia and Vazquez drove the Pontiac to a house on Clifford in Turlock.
Vazquez was familiar with the house as he had been there before to drink and to smoke
methamphetamine with Valencia and Reyes. He knew of two men who lived there
named “Cheque” and “Mosca.”
       Upon arriving at the house, Vazquez retrieved some sheets from Cheque and
covered the Pontiac at Valencia’s request. Vazquez also retrieved a plastic gun, which
looked real at night, from the trunk. Valencia armed himself with his rifle, while
Vazquez had a two-by-four. Subsequently, Vazquez, Valencia, and Cheque congregated
in a small tool shed so they would not be seen by Avina when she arrived. They smoked
methamphetamine while they waited.
       Reyes and Avina arrived in the truck, and the group in the tool shed could hear as
the two entered the house. Shortly after they entered, Valencia, Vazquez, and Cheque
approached the house with the weapons and flashlights. Vazquez noted it was dark
outside and the house had no electricity. Valencia knocked on the door and then pushed

                                             3.
it open when someone answered. The men stormed in and instructed everyone to get on
the ground. When they entered, Valencia was armed with the rifle and Vazquez had the
toy gun and the two-by-four.
       There were three people inside the home on Clifford: Reyes, the victim, and
Mosca. The victim was on the floor and her hands and feet were being bound by
Valencia and Cheque. Additionally, her face was covered with the tape and Valencia was
kicking her and telling her to be quiet. Meanwhile, Vazquez held the flashlight and
ensured the others remained on the floor. He did this as “part of the show” so the victim
would not know she had been set up. Vazquez bound Mosca with zip ties and took him
to another room. He returned for Reyes and began pushing him, when Reyes crawled to
the other room on his own. Once in the room, Vazquez told Reyes to stay there, but did
not restrain him in any way.
       While in the house, Valencia took a ring from the victim as well as a small amount
of methamphetamine and some papers. Vazquez noted the papers had some kind of
police agency or hotline number on them. He relayed this information to Valencia.
Valencia asked Vazquez to question the victim about the missing marijuana because
Vazquez spoke English. He did so, and the victim replied “Martha.” Valencia told
Vazquez to move the Pontiac closer to the door. As Reyes’s truck was in the way,
Vazquez asked Reyes for his keys. Reyes provided them and Vazquez moved both the
truck and the gray Pontiac, backing the Pontiac close to the door. Apparently not
satisfied with the location of the Pontiac, Valencia took the keys and moved the car even
closer to the house and opened the trunk. Then the three men carried the victim to the
trunk of the Pontiac. Valencia closed the trunk, told Vazquez to get into the back seat
and lie down, and drove back to their Sycamore Street house.
       Upon arriving at the Sycamore house, Valencia told Vazquez to take the rifle back
into the house. Approximately five minutes later, Reyes arrived in his truck and got into
the Pontiac with Valencia; Reyes told Vazquez he would be right back. The two returned
in the Pontiac 15 to 20 minutes later accompanied by Omar Cebrero and defendant. All

                                            4.
four men were in the Pontiac. Vazquez explained he had not met either Cebrero or
defendant prior to the day in question.
       Once they arrived, Valencia, defendant, and Reyes exited the car and stood in a
field talking. Cebrero hesitated, only exiting the car partway, but joined the group after
Valencia said something to him. Vazquez could not hear what Valencia said, but noted
Valencia never pointed a weapon at Cebrero, and to his knowledge Valencia did not have
a weapon with him. After approximately one minute, Vazquez approached the group and
asked for a cigarette. Valencia told the others how Vazquez had helped at the Clifford
house. Defendant said it was “kind of bad” the marijuana was not recovered. Vazquez
noted defendant was doing most of the talking. Based on the situation, Vazquez assumed
defendant and Cebrero were the drug dealers who owned the missing marijuana.
       During the conversation, Vazquez explained the victim just kept telling them
“Martha” but they did not find the marijuana, and it was up to the others to decide what
to do with the victim. After a while, Valencia said “‘I know what to do’” and instructed
Vazquez to get him a bottle. Vazquez retrieved a small plastic soda bottle and brought it
to Valencia, who filled it with gasoline. When Valencia returned holding the bottle filled
with gasoline, he spoke to Cebrero and defendant for approximately 30 seconds and then
began walking toward the Pontiac. Defendant joined Valencia, but Cebrero again
hesitated. Noticing this, Valencia went back and said something to Cebrero and grabbed
him by the sleeve; Cebrero then joined the men in the Pontiac and they left.
       Vazquez noted he never heard anyone say they should stop or protest in any way,
even after Valencia retrieved the gasoline. He explained he never saw Valencia threaten
Cebrero or raise his voice although he spoke loudly. Valencia seemed irritated when
speaking to Cebrero, although Vazquez explained Valencia seemed irritated throughout
the night. Vazquez never saw Valencia with any weapons when the men were talking in
the field.
       Vazquez explained Reyes had left the group and went to his truck sometime
before Valencia obtained the bottle filled with gasoline. Vazquez joined Reyes in his

                                             5.
truck when Valencia was talking to defendant and Cebrero while holding the gas-filled
bottle. Vazquez and Reyes smoked methamphetamine in the truck as Valencia and the
others left in the Pontiac.
       The Pontiac returned five to ten minutes later. Valencia exited the car, said
something to the passengers, then one of the passengers got into the driver’s seat and
drove off. Valencia joined Reyes and Vazquez in the truck and the men smoked
methamphetamine together. Sometime later, a woman Vazquez knew as Mayra walked
up and joined them in the truck. The four later went to the Clifford house where they
continued to smoke methamphetamine. At the house, Vazquez apologized to Mosca for
tying him up. To Vazquez’s knowledge the marijuana was never recovered.
       Vazquez’s recorded interview with the police was played for the jury. He made
several statements to the detectives and in prior testimony that were inconsistent with his
trial testimony. Vazquez testified he had lied to the police about a number of facts
because he was trying to protect his friends.
       At the time of the crime, Reyes was 28, Valencia was 24, Cebrero was 18 and
defendant was 27 years old.
       During that time period, Vazquez was using about a gram of methamphetamine a
day and had been awake for two days prior to the kidnapping.
       Jesus Cruz testified that on the morning of October 23 he met with the victim so
she could sell a ring for him. The two were in Livingston and at one point went to a
house with a fountain in front of it and a gray Pontiac parked in the garage. Cruz recalled
two men who went by the nicknames “Tornillo” and “Gato” gave them a ride from
Livingston to a house in Turlock in the gray Pontiac. Upon arriving at their destination,
the victim got into a brief verbal dispute with one of the men before the men left. Shortly
thereafter, Cruz saw the victim with a pound of marijuana. Although he denied it at trial,
Cruz had previously told a sheriff’s deputy in a prior interview that he had seen the
marijuana in the trunk of the Pontiac on the day in question. Cruz never saw the men
again. Cruz and the victim proceeded to walk around Turlock, going to a few different

                                                6.
houses, and then returned to the home where they had been dropped off. At the home,
they smoked methamphetamine with several other people.
       Later that evening the victim said she was going to the store and was picked up by
a Hispanic male driving a brown Ford F150 truck. The victim briefly argued with the
driver but ultimately left with him. Cruz attempted to go with her, but she told him to
stay there. He recalled he had tried to open the door to the truck, but it was locked by the
driver. Cruz never saw the victim again.
       On the morning of October 24, Merced Sheriff’s Deputy Frank Swiggart
responded to the report of a person in some bushes in a rural area of Merced County.
When he arrived, he discovered the victim severely burned and with her arms and legs
bound. She had plastic wrapped around her head. The victim asked several times
whether she was alive.
       Detective Charles Hale was notified regarding the discovery and responded to the
scene. He observed the victim had skin hanging from her body due to the burns, blisters
oozing a white substance, and foam coming from her mouth. She appeared to be in
extreme pain. Hale only briefly interviewed the victim due to her condition. The
interview was recorded and played for the jury.
       The victim told Hale she had been picked up by a man named Alvaro, who was
driving a gold truck, and he took her to a house in Turlock. She further relayed that while
at the house someone knocked, then men barged into the house with guns, tied her up,
and put tape on her face. She did not know who had done this to her. Hale observed the
victim’s face was covered with tape. There was a distinctive pattern on the tape.
       After interviewing the victim, Hale discovered the area where the victim was
burned, which was approximately seven-tenths of a mile away in a nearby orchard. At
the scene, deputies located a boat that was still smoldering, a plastic soda bottle that
smelled of gasoline, and shoe prints. The shoe prints were photographed for comparison.
He subsequently observed similar shoe prints at the Sycamore Street residence.



                                              7.
       Detective Corey Gibson testified that after learning from the victim she had been
picked up by Reyes, officers conducted surveillance on Reyes’s home. Reyes was
contacted and interviewed by detectives. They learned he owned a brown Ford F150
pickup truck. Reyes took the detectives to the location where he had picked up the victim
on the night of the kidnapping. He also directed officers to the Sycamore Street house
and pointed out Valencia. Valencia was arrested at the Sycamore house. The Sycamore
house is approximately four and one-half miles from the location where the victim was
burned.
       The following day, Reyes also directed officers to the Clifford house.
Additionally, Reyes directed the detectives to Cebrero’s home on Hammatt Avenue in
Livingston, explaining Cebrero was “responsible for” the victim’s death. The home had
a fountain in front and a silver Pontiac parked outside. The car was registered to Cebrero.
The car was later processed for fingerprints and the only identifiable print found
belonged to Cebrero. The fingerprint analyst noted the car was “extremely clean.” Blood
was found in the trunk of the Pontiac. Genetic testing on the blood revealed the blood
belonged to the victim. Ronolfo “Tornillo” Ortega,4 defendant’s brother, also lived there.
Reyes lived approximately one and one-half blocks from Cebrero.
       On October 27, Hale assisted in the service of a search warrant at the Clifford
house in Turlock. Officers discovered zip ties and the same distinctive tape used on the
victim. A search warrant was served on the Sycamore home on October 26. There
officers found a loaded rifle, and a handle with tape matching the distinctive tape used on
the victim. On November 2, officers searched defendant’s home and seized a total of
three shoes.
       The victim died on October 26 as a result of multiple system failure caused by her
extensive thermal burns. Dr. Robert Lawrence, the pathologist who performed the


       4To   avoid confusion, we will refer to Ronolfo Ortega as “Tornillo.” No disrespect is
intended.


                                                8.
autopsy, noted the victim had a pattern of burns on her body consistent with her being
splashed with an accelerant. The burns covered approximately 60 percent of her body
and were focused on the front and back of her upper body. The victim also had burns in
her airway, indicating she had inhaled flames. He described her injuries as
“excruciatingly painful” and resulted in the loss of 60 percent of her skin. Had she
survived, she would have been permanently disfigured. At the time she was admitted to
the hospital, the victim had toxic levels of methamphetamine in her system.
       Items of evidence, such as pieces of recovered tape and the plastic bottle, were
processed for prints, however, none of the suspects’ fingerprints was found. Testing of
the victim’s clothing revealed traces of gasoline.
       After Valencia’s arrest, officers monitored jail calls between Valencia and his
wife. During one of the calls, Valencia told his wife he had dropped a ring and buried it
when he was arrested. In another call, Valencia’s wife indicated someone was able to
recover the ring. Officers later contacted Valencia’s wife and seized the ring. Both Jesus
Cruz and Vazquez identified the ring as the one taken from the victim.
       Merced Sheriff’s Deputy Raymond Framstad testified as an expert regarding
marijuana. He noted a pound of marijuana was worth between $600 and $1,000 in 2007.
However, if the marijuana was a type having a high THC (tetrahydrocannabinol) content,
it could be worth up to $6,000 a pound. A person dealing in marijuana is likely to have
some indicia of the business such as pay/owe sheets or large amounts of money.
Framstad described “mules” as persons who transport drugs for someone else. They are
typically paid for their services.
       Detective Alex Barba learned through the course of investigating this case that
several suspects were known by nicknames. Specifically, he learned Cebrero used the
nickname “Gato,” Valencia used the nickname “Primo,” and defendant used the names
“Oaxaco” and “Juan.”




                                             9.
       Defendant was interviewed on November 2. Barba testified that during the
interview defendant identified Reyes, Valencia, and Cebrero in separate photographic
lineups.
       After being informed the detectives had already spoken to numerous people
involved, knew what happened, and had made several arrests, defendant asked the
detectives who specifically had been arrested. Defendant then proceeded to deny he had
any involvement in the victim’s death and that he had only heard about it from others.
After the detectives confronted him with the fact they already knew he was present when
the victim was killed, defendant stated that Cebrero had called him on the day of the
murder and informed him the victim had stolen a pound of marijuana and a half ounce of
crystal methamphetamine. Cebrero asked defendant if he knew someone who could help
get his drugs back. Defendant told Cebrero to think carefully because this is not a
“game,” but Cebrero said the victim had stolen from him too many times. Defendant
then called Reyes, telling him Cebrero needed help in getting his drugs back. Reyes said
he would call someone and defendant believed Reyes called Valencia, but defendant
explained he did not know him. Although defendant admitted calling Reyes for Cebrero,
he denied knowing the victim would be killed, saying the plan never was to kill her.
       Defendant said he later gave Reyes’s phone number to Cebrero so the two could
communicate directly. He explained he told Cebrero, “‘I’ll give you the number, and I
don’t know anything, it’s between you two.’” Sometime later, Reyes called Cebrero back
and said everything was ready, and the victim did not have his drugs. At this point Reyes
and Valencia had already abducted the victim. Defendant explained he and Cebrero were
still in Livingston, and they were not involved in kidnapping the victim.
       Defendant informed the detectives that Cebrero had loaned Reyes his car earlier in
the afternoon after the two had already devised a plan. He was unsure of how exactly
Reyes had retrieved the car because he claimed he had left to do something, but had
returned to Cebrero’s home before Reyes called. When he returned, he noted Cebrero’s



                                            10.
car was gone. Defendant told the detectives that Cebrero had never let defendant borrow
the car. Defendant claimed he was afraid for his family because he was threatened.
       Defendant explained he was at the home in Livingston with Cebrero when Cebrero
received the call telling him Reyes and Valencia had the victim. Defendant told Cebrero,
“‘If she doesn’t have your stuff, well, too bad … let her go.’” Cebrero replied that the
victim had done this too often. Valencia and Reyes brought the victim to the “Westside.”
Cebrero and defendant went to the location to meet Reyes and Valencia. When they
arrived, the victim was already in the trunk of the car. Valencia was driving the car.
While on the Westside, Valencia opened the trunk and interrogated the victim regarding
the location of the drugs. The victim replied “Martha.” Defendant claimed he did not
hear much of the questioning because he stayed near the front of the car.
       According to defendant, Valencia made the plans regarding kidnapping the victim,
but once they had the victim, it was Cebrero’s decision to kill her. Cebrero said it would
be better to kill her. Defendant did not know where Reyes and Valencia had abducted the
victim from as he was not present for the kidnapping. After meeting Valencia and Reyes,
both Cebrero and defendant joined the others in the Pontiac.
       The men went to Valencia’s home, where they dropped off Reyes. The victim was
still in the trunk. Cebrero obtained the gas at Valencia’s house after they dropped off
Reyes, and Cebrero brought it with them to the field. Defendant recalled Valencia
poured some gas into a small plastic bottle and Cebrero took it with them in the car.
Cebrero wore white cloth gloves.
       The men then went to Delhi to a field. After they had dropped off Reyes, Valencia
was in the car with Cebrero and defendant. Defendant was in the back seat. Cebrero said
they should kill the victim and Valencia told Cebrero to make the decision. Valencia
continued driving towards Ballico, the area where the victim was burned. The victim was
still in the trunk. According to defendant, Cebrero was giving the orders and Valencia
was following them.



                                            11.
       After they arrived at the field where the victim was ultimately burned, defendant
claimed he stayed in the car because he did not want to watch. Meanwhile, Cebrero and
Valencia removed the victim from the trunk and lit her on fire. Defendant claimed he did
not know who had lit the fire because he remained inside the car and did not turn to look.
After the detectives informed defendant they already knew defendant had lit the fire,
defendant admitted Cebrero and Valencia removed the victim from the trunk, placed her
in the boat in the field, and either Valencia or Cebrero threw the gas on her and he lit her
on fire. He claimed he only lit the victim on fire because Cebrero and Valencia were
unable to do so. He used a lighter from his pocket to light a small stick on fire and threw
the stick on the victim. Before he lit the victim on fire, she was screaming that she would
give back the drugs. The victim continued screaming after she was set on fire, and she
jumped out of the boat. Defendant admitted the victim suffered when she was set on fire.
She should not have had to pay with her life for taking the drugs. He continued to assert
throughout the interview that it was Cebrero’s idea to set the victim on fire.
       Defendant admitted he made two mistakes: putting Reyes in touch with Cebrero
and setting the victim on fire. Defendant said no one had a gun that night and no shots
were fired. Defendant recalled he heard Cebrero say he would pay Valencia $600 and
Reyes $300.
       Defendant thought the missing marijuana belonged both to his brother Tornillo
and Cebrero.
                                      DISCUSSION
I.     Defendant’s Statement Was Properly Admitted
       Defendant contends his statement should have been suppressed due to the officer’s
misadvisement of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436
(Miranda). Specifically, he argues that due to grammatical errors in the advisement as
well as his poor understanding of Spanish, he was not properly advised of his right to
appointed counsel at no cost to him. Because he was not adequately advised of his rights,



                                             12.
his waiver could not be considered knowing, intelligent and voluntary. We conclude
defendant’s statement was properly admitted.
Evidence Adduced At The Hearing
       Barba testified he assisted in the homicide investigation and conducted an
interview with defendant. Barba speaks Spanish, so he was able to translate during the
interview. The audio recording and the transcript were made available to the court, and
the parties stipulated the court could consider them during the hearing.
       After getting some preliminary information, Barba read defendant his Miranda
warnings from a standard card with the Miranda warnings written in English. He
translated them from English to Spanish. In his opinion, the word “sus” could mean
“your” or “their.” He testified he never specifically asked defendant if he understood the
rights or gave them up.
       Barba explained defendant was able to converse with him in Spanish without
difficulty. Defendant’s answers were logical to the questions posed and he did not have
any problems understanding defendant.
       Certified Spanish Interpreter Janet Trujillo testified she reviewed the video
recording as well as the transcripts of defendant’s interview. In her opinion, the
translation of what Barba told defendant regarding the right to counsel was “if you don’t
have … [y]ou can pay an attorney … and [t]hen the County will pay.” In her opinion the
statement the officer made in Spanish meant the county would reimburse him for an
attorney if he could not pay rather than explaining he could have an attorney free of
charge. Additionally, after he made that statement, the officer asked whether defendant
understood “their” rights instead of understanding “your” rights. The interpreter admitted
the Spanish word for “reimburse” was not used. The interpreter testified defendant was
fluent in Spanish.
       Dolores Espinosa is a counselor at Merced High School. Espinosa administered a
test to defendant to evaluate his proficiency in oral language skills in Spanish. After



                                            13.
administering the test, Espinosa determined defendant scored at the second to the lowest
level of proficiency.
       Espinosa explained defendant was able to answer the questions when he
understood them. As the test progressed, however, she noticed defendant could not
answer when she used academic language. In those instances, he did not appear to
understand the question. When defendant did not understand, he attempted to seek
clarification of some of the questions; however, the test did not allow the examiner to
provide additional clarification. Instead, Espinosa would merely repeat the question.
Defendant was unable to answer. For example, defendant was told to answer in complete
sentences. He was unable to do so, instead answering the question only with a noun.
       Espinosa noted defendant appeared to have difficulty with abstract concepts and
academic language. It appeared to Espinosa that defendant was making an effort on the
test. During the examination Espinosa learned defendant had only two years of formal
education in Mexico and no education within the United States.
       According to the test results, defendant would be classified as a non-Spanish
speaker. But Espinosa agreed defendant was in fact fluent in Spanish. Espinosa agreed
the test she employed was for academic placement and, according to the test, defendant
had failed to learn particular terminology.
       Clifford Hazeltine, a private investigator, testified he observed defendant as he
took the test and he appeared to be giving a genuine effort.
       Defense counsel argued that under the totality of the circumstances and due to
defendant’s lack of understanding of Spanish, his waiver was not knowing, intelligent,
and voluntary.
The Trial Court’s Ruling
       The trial court issued a lengthy written ruling on the issue, ultimately finding the
advisements given reasonably conveyed to defendant his rights pursuant to Miranda.
The court specifically found defendant was a fluent Spanish speaker and did not appear to
have any difficulty comprehending or answering the questions posed to him. Regarding

                                              14.
the right to have an attorney appointed at no charge, the court found the translation of
Barba’s statement was as follows: “If you don’t have, you can pay an attorney then the
county will pay an attorney so he can represent you before I ask you any question. Do
you understand your rights?” Defendant nodded his head, indicating his agreement.
       The court further found the test administered to defendant was designed
specifically for academic placement, and it did not measure the level of defendant’s
comprehension of his Miranda rights. Rather, the video of the interview itself, which
demonstrated defendant’s demeanor, was a more accurate indicator of his ability to
understand Spanish, which was his native language.
       During the interview, defendant demonstrated his ability to understand and answer
questions. He did not show any signs of being mentally challenged or delayed. The
court gave “weighted consideration” to the testimony regarding his number of years of
formal education, as well as to his prior experience with the criminal justice system.
       The court accepted the translation of the right to have appointed counsel as
follows: “If you don’t have, you can pay an attorney then the County will pay an
attorney so he can represent you before I ask you any question.” Although the court
found the “advisement is awkward, ungrammatical, and slightly confusing, it adequately
informed defendant … that he could pay an attorney or the county could pay an attorney
to represent him before questioning begins.” (Italics in original.) Taken as a whole, the
court found the advisement reasonably conveyed the right to have an attorney appointed
if defendant could not afford one. Additionally the court determined there was no
coercion present in the interview.
Analysis
       Pursuant to Miranda, a suspect must be advised of the right to remain silent, that
any statement may be used against him or her, the right to the presence of an attorney
during questioning, and the right to have an attorney appointed for him or her prior to
questioning if the suspect cannot afford an attorney. (Miranda, supra, 384 U.S. at pp.
478-479.) However, the “prophylactic Miranda warnings are ‘not themselves rights

                                            15.
protected by the Constitution but [are] instead measures to insure that the right against
compulsory self-incrimination [is] protected.’” (Duckworth v. Eagan (1989) 492 U.S.
195, 203.) Therefore, reviewing courts “need not examine Miranda warnings as if
construing a will or defining the terms of an easement.” (Ibid.) Rather, the “inquiry is
simply whether the warnings reasonably ‘convey to [a suspect] his rights as required by
Miranda.’” (Ibid., quoting California v. Prysock (1981) 453 U.S. 355, 361.)
       Before a defendant’s statement made during a custodial interrogation may be
admitted, the prosecution must demonstrate the defendant was advised of and waived his
or her rights pursuant to Miranda. (Miranda, supra, 384 U.S. at pp. 478-479.) To be
valid, a waiver must be both knowing and voluntary, that is, the waiver must be made
with a full awareness of the rights being abandoned by the consequence of that decision.
(People v. Whitson (1998) 17 Cal.4th 229, 248-249.) The prosecution bears the burden of
demonstrating a valid waiver by a preponderance of the evidence. (People v. Bradford
(1997) 14 Cal.4th 1005, 1034.) We consider the totality of the circumstances in
determining whether a defendant has validly waived his or her Miranda rights. (People
v. Duff (2014) 58 Cal.4th 527, 551.)
       In reviewing the trial court’s finding that defendant knowingly and voluntarily
waived his Miranda rights, we accept the trial court’s finding of fact and credibility
determinations where supported by substantial evidence. (People v. Whitson, supra, 17
Cal.4th at pp. 247-248.) We independently determine whether the challenged statement
was illegally obtained (People v. Bradford, supra, 14 Cal.4th at p. 1033), and we “may
‘give great weight to the considered conclusions’ of a lower court that has previously
reviewed the same evidence.” (People v. Jennings (1988) 46 Cal.3d 963, 979.)
       When examining the totality of the circumstances surrounding a Miranda waiver,
the court may take into account, among other factors, the “background, experience and
conduct of the accused.” (People v. Davis (2009) 46 Cal.4th 539, 586.) Specifically, the
court may also consider a defendant’s language abilities in determining whether there
was a valid waiver. (See, e.g., United States v. Bernard S. (9th Cir. 1986) 795 F.2d 749,

                                            16.
751, disapproved on other grounds in U.S. v. Dozier (9th Cir. 1988) 844 F.2d 701, 706;
United States v. Heredia-Fernandez (9th Cir. 1985) 756 F.2d 1412, 1415; United States
v. Martinez (9th Cir. 1978) 588 F.2d 1227, 1235.)
       “Although language barriers may inhibit a suspect’s ability to knowingly and
intelligently waive his Miranda rights, when a defendant is advised of his rights in his
native tongue and claims to understand such rights, a valid waiver may be effectuated.”
(U.S. v. Hernandez (10th Cir. 1990) 913 F.2d 1506, 1510.) “‘[The] translation of a
suspect’s Miranda rights need not be perfect if the defendant understands that he or she
need not speak to the police, that any statement made may be used against him or her,
that he or she has a right to an attorney, and that an attorney will be appointed if he or she
cannot afford one.’” (U.S. v. Perez–Lopez (9th Cir. 2003) 348 F.3d 839, 848–849, italics
omitted.) No specific wording need be used to give the Miranda warning, so long as the
warning reasonably conveys to the suspect his or her Miranda rights. (California v.
Prysock, supra, 453 U.S. at p. 359; Duckworth v. Eagan, supra, 492 U.S. at p. 202.)
       A translation of a suspect’s Miranda rights into the language spoken by the
suspect need not be perfect so long as the suspect understands the meaning of the rights.
(U.S. v. Hernandez (10th Cir. 1996) 93 F.3d 1493, 1502.) The main inquiry is whether
the translated warnings reasonably conveyed to the individual his or her Miranda rights.
(Duckworth v. Eagan, supra, 492 U.S. at p. 203.) For example, in Hernandez, the
Spanish-speaking defendant was given an imperfect translation of her Miranda warnings.
She was advised she “had the right to remain silent, that anything she said may be to her
detriment and could be used against her ‘according to the law,’ that she had the right to
‘contract’ an attorney before and during questioning, that an attorney would be provided
if she could not afford one, and that she had the right to change her mind and not answer
any questions.” (Id. at p. 1497.) Although the translation was imperfect, it was sufficient
to convey the substance of the rights and, therefore, adequate. (Id. at p. 1502.)
       Likewise, in Duckworth, the defendant was advised, inter alia, that “‘[y]ou have a
right to talk to a lawyer for advice before we ask you any questions, and to have him with

                                             17.
you during questioning. You have this right to the advice and presence of a lawyer even
if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be
appointed for you, if you wish, if and when you go to court. If you wish to answer
questions now without a lawyer present, you have the right to stop answering questions at
any time. You also have the right to stop answering at any time until you’ve talked to a
lawyer.’” (Duckworth v. Eagan, supra, 492 U.S. at p. 198.)
       The court found “inclusion of [the] ‘if and when you go to court’ language” in the
Miranda warnings was not improper, first, because it accurately described the procedure
for the appointment of counsel in the state in which the crime took place and, second,
because “Miranda does not require that attorneys be producible on call, but only that the
suspect be informed, as here, that he has the right to an attorney before and during
questioning, and that an attorney would be appointed for him if he could not afford
one.… If the police cannot provide appointed counsel, Miranda requires only that the
police not question a suspect unless he waives his right to counsel. [Citation.] Here, [the
defendant] did just that.” (Duckworth v. Eagan, supra, 492 U.S. at pp. 203-204, fn.
omitted.)
       The court distinguished the warnings given in Duckworth from “the vice referred
to in California v. Prysock[, which] was that such warnings would not apprise the
accused of his right to have an attorney present if he chose to answer questions. The
warnings in this case did not suffer from that defect. Of the eight sentences in the initial
warnings, one described [the defendant’s] right to counsel ‘before [the police] ask[ed]
[him] questions,’ while another stated his right to ‘stop answering at any time until [he]
talk[ed] to a lawyer.’ [Citation.] We hold that the initial warnings given to [the
defendant], in their totality, satisfied Miranda.” (Duckworth v. Eagan, supra, 429 U.S. at
p. 205.)
       U.S. v. Perez-Lopez, supra, 348 F.3d 839, upon which defendant relies, stands in
contrast to the above cases. There, the non-English-speaking defendant was provided
Miranda warnings in Spanish. The defendant argued that the translation of the warning

                                             18.
was flawed, resulting in an uninformed waiver of his rights. Testimony established that
regarding the right to counsel, the defendant was advised as follows: “‘[Y]ou have the
right to solicit the court for an attorney if you have no funds.’” (U.S. v. Perez-Lopez,
supra, at p. 847.) The Ninth Circuit Court of Appeals held the warning was inadequate
as it implied the defendant could be denied an attorney. By using the word “solicit,” the
phrase implied a possibility of rejection. Because the warning did not convey “the
government’s obligation to appoint an attorney” for someone who was indigent, the
warning was fatally flawed. (Id. at p. 848.)
       Unlike U.S. v. Perez-Lopez, nothing in the advisement here implied defendant
could be denied an attorney. Rather the case is more analogous to the facts present in
United States v. Soria-Garcia (10th Cir. 1991) 947 F.2d 900. The defendant there spoke
only Spanish and the officer translated the warnings into Spanish. According to the
testimony at the hearing, the officer informed the defendant that if he did not “‘have the
money to employ a lawyer one will be appointed to you before answering any questions,
if you so decide.’” (Id. at p. 901, italics omitted.) The district court had an interpreter
translate the warnings given. According to that translation, the warning stated, “‘If you
do not have the money to employ an attorney, one can be obtained for you before we ask
you any questions, if you so desire.’” (Ibid.)
       The trial court suppressed the statements, explaining the rights as given did not
convey that the defendant could have an attorney appointed to him at no cost. The Tenth
Circuit Court of Appeals disagreed, explaining that under either translation, the “thrust of
the warning” conveyed the defendant would be afforded an attorney if he did not have the
money to employ one on his own. (United States v. Soria-Garcia, supra, 947 F.2d at p.
902.) The court rejected the “suggestion that the warning, as given, left open the
possibility that [the defendant] would be ‘billed later.’” (Ibid.)
       Likewise here, the implication was not that defendant would be required to pay for
an attorney on his own and then subsequently be reimbursed. Rather, the warning
explained he could pay for an attorney or the county would pay for an attorney for him.

                                               19.
There was no implication defendant would be billed later for the attorney. Indeed, the
translated statement specifically stated the county “will pay an attorney.” The fact that
the warning referenced the county would pay the attorney dispelled any notion defendant
would have to pay first and seek reimbursement later.
       Applying the above principles, we conclude substantial evidence supports the trial
court’s findings. The trial court specifically accepted Trujillo’s translation of the right as
read to defendant. The evidence supported the trial court’s findings that the warnings,
taken as a whole, reasonably conveyed defendant’s Miranda rights. Although Trujillo
testified that the translation of the statement meant the county would reimburse defendant
if he could not afford an attorney, she admitted the word reimburse was never used. The
court could rely upon the translated sentence itself to determine whether it adequately
conveyed the right; it was not required to accept Trujillo’s interpretation of the meaning
of the sentence.
       Barba explained defendant had the right to remain silent, that anything he said
could be used against him in court, and that he had a right to have an attorney before and
during questioning. Immediately following these rights, Barba advised defendant, “‘If
you don’t have, you can pay an attorney then the County will pay an attorney so he can
represent you before I ask you any question.’” Taken in context, this advisement,
although grammatically flawed, conveyed defendant’s right to have court-appointed
counsel. The language was not so ambiguous or confusing as to lead defendant to believe
he would be required to obtain an attorney on his own and then be reimbursed later.
Rather, the advisement first referred to not having something then immediately
referenced paying an attorney, and then was immediately followed by the statement that
the county would pay an attorney. The sentence specifically stated that “the County will
pay an attorney so he can represent” defendant. Notably, the statement advised defendant
the County would pay “an attorney,” not pay defendant after the attorney was hired.
       The prophylactic Miranda warnings are not required to be conveyed in any
particular form or “talismanic incantation.” (California v. Prysock, supra, 453 U.S. at p.

                                             20.
359.) Even if the grammatically flawed sentence imperfectly conveyed the idea of the
county providing an attorney for defendant in the context of the right to have an attorney
during questioning, the inability of defendant to pay for one, and the idea that the county
would pay for an attorney, it sufficiently conveyed the concept of appointment.
Considering the entirety of the warnings, it appears to relay the concept that if defendant
did not have any money to pay an attorney, the county would pay for an attorney. This is
all that is required.
       Defendant also focuses on the question following the advisement of rights asking
whether he understood the rights. According to Trujillo, Barba asked defendant if he
understood “their” rights. Evidence at the hearing established that because Barba used
the informal form of the verb, the question could mean “do you understand your rights”
or “do you understand their rights.” In context, however, it is apparent Barba was
explaining defendant’s rights to him. Indeed, Barba began the admonishment by saying
“I’m going to talk to you, you have some rights. Right now I’m going to read to you
your rights.” After the advisement of each right, Barba asked defendant if he understood.
Taken in context, then, the final question asking if he understood the rights related to his
rights as well, even if the statement could also be interpreted to understanding someone
else’s rights. In context it was clear the rights all related to defendant. We agree with
this interpretation: that the advisements reasonably relayed defendant’s Miranda rights
and asked if he understood.
       In arguing the trial court’s ruling was erroneous, defendant further alleges the trial
court “disregarded undisputed evidence regarding [defendant’]s ability to understand and
communicate in Spanish.” He also contends the court “disregarded background
information Espinoza [sic] received from [defendant] regarding his educational
background, deeming it unreliable hearsay.” Not so.
       It is true that in determining whether there is a valid waiver of rights, the court
considers the totality of the circumstances, including the background, experience, and
conduct of the defendant. (People v. Gonzales (2012) 54 Cal.4th 1234, 1269.) This

                                             21.
includes taking into account the defendant’s language difficulties. (See, e.g., United
States v. Bernard S., supra, 795 F.2d at p. 751; United States v. Heredia-Fernandez,
supra, 756 F.2d at p. 1415; United States v. Martinez, supra, 588 F.2d at p. 1235.)
Defendant claims the trial court did not give these factors due consideration. We
disagree.
       There was conflicting evidence regarding defendant’s ability to understand and
communicate in Spanish. While Espinosa testified that, pursuant to her testing, defendant
would be classified as a non-Spanish speaker, the evidence demonstrated defendant was
indeed fluent in Spanish. Barba testified he questioned defendant in Spanish, and
defendant was able to answer the questions appropriately in Spanish. Even Espinosa
conceded defendant was fluent in Spanish. Furthermore, the video of the interview
confirms defendant was able to understand and express himself in Spanish, which
appears to be his native tongue.
       Defendant seems to take issue with the fact the court gave the testing performed
by Espinosa little weight, finding the test was not “an accurate measure of defendant’s
comprehension of Detective Barba’s Spanish recitation of the Miranda warnings.”
Instead, the court found the recording of the “interrogation, which shows his demeanor,
body language and captures his spoken words is a better and more concrete indication of
[defendant]’s ability to comprehend and communicate in Spanish with Detective Barba
than the results of the test administered by Ms. Espinoza [sic].” We find the trial court’s
findings were supported by the evidence.
       The testing revealed defendant had difficulty with certain academic terms and
abstract concepts. But Espinosa also testified defendant was able to communicate to her
when he needed clarification of a question. This demonstrates defendant was able to
communicate in Spanish and to seek clarification when he did not understand a word
used. The test Espinosa administered was directed at a person’s academic proficiency in
Spanish. However, the discussion between Barba and defendant did not take place in an
academic setting. Defendant is obviously fluent in Spanish and in no way demonstrated

                                            22.
any lack of understanding either through his body language or by asking any questions.
Rather, as the trial court found, he held eye contact with Barba when he was informed of
his rights and nodded in agreement when asked if he understood. The trial court was
entitled to find that defendant’s comprehension of Spanish was more accurately relayed
in the interview than through the academic test.
       The issue before the court was whether defendant understood his rights. The fact
defendant obviously speaks Spanish, the wording of the translated rights, and the fact
defendant nodded after being asked if he understood, and the fact that he did not ask any
questions demonstrating a lack of understanding of his rights, all support the trial court’s
conclusion defendant understood his rights.
       Defendant argues the court refused to consider the fact he could not read or write
as demonstrated on the video. However, nothing in the trial court’s ruling supports such
a conclusion. The issue before the court had little to do with defendant’s literacy as his
rights were explained to him orally. Defendant was never asked to read the rights to
himself. As we have previously explained, the evidence presented supported the trial
court’s ruling that Barba relayed defendant’s right to counsel free of charge, and its
further finding that defendant understood and voluntarily waived his rights.
       Furthermore, we reject defendant’s assertion that the trial court disregarded
information regarding defendant’s educational background, deeming it unreliable
hearsay. Nothing in the ruling compels this conclusion. Rather, the trial court simply
explained it did not make any factual findings as to defendant’s education level as the
only evidence before the court on the issue was hearsay. There was nothing improper
with the court’s evaluation of the evidence. While an expert may consider reliable
hearsay in forming an opinion, and may be permitted at times to relay the substance of
the hearsay to the trier of fact to evaluate the credibility of the opinion itself, the
underlying hearsay is not itself admissible for the truth of the matter asserted. (Evid.
Code, §§ 801, subd. (b), 802; People v. Gardeley (1996) 14 Cal.4th 605, 618-619.) By
taking note of the context and the overall evidence, the court simply seemed to be

                                               23.
relaying this principle. The court explained in its ruling that the test results labeled
defendant as a non-Spanish speaker, which was clearly in conflict with the video
recording of his statements showing defendant fluent in Spanish. The court decided to
not make any factual finding regarding defendant’s educational background, but
expressly gave the evidence “weighted consideration.”
       Considering in their totality the advisements given in this case, defendant was
clearly advised of his right to remain silent, the consequences of forgoing that right, and
his right to have an attorney present during questioning. The challenged warning, while
not a verbatim Spanish translation of the language used in Miranda, was sufficient to
accomplish what the United States Supreme Court stated as its purpose, namely, to
prevent a misunderstanding that the right to consult a lawyer is conditioned upon having
the funds to obtain one. (See Miranda, supra, 384 U.S. 436.) Defendant was effectively
advised that if he wanted a lawyer and could not afford one, the county would pay for
one. Considered in their entirety, the warnings given defendant do not imply defendant
would be billed for an attorney or he would be required to pay for an attorney only to be
reimbursed later. Consequently, the trial court’s ruling denying the motion to suppress
the statement was not in error.
II.    Third Party Culpability Evidence Was Properly Excluded
       During trial, defendant moved to admit evidence regarding a prior incident that
took place at the Clifford Street house. Defendant presented an offer of proof that
Vazquez had previously told officers Valencia participated in a crime at the Clifford
house. He argued the evidence would demonstrate third party culpability in that it
showed Mosca and Cheque were also involved in the plot. The defense theory was that
everyone at the Clifford house was in on the setup, and the modus operandi was identical
between the two crimes. Defendant claimed he also needed to impeach Vazquez with the
assertion that the others were not involved in the plot.
       Additionally, defendant argued the evidence was relevant because it demonstrated
why he would “be fearful of … Valencia after just meeting him for the first time and

                                              24.
seeing him act on this case.” He argued the “jury needs to hear a more complete aspect
of who … Valencia is and how he was acting in this place at virtually the same time.”
Defense counsel concluded:

      “I think it impeaches [Vazquez] with his statement with regard to [his]
      helping … Valencia. I think that’s not credible. He’s testified in the Reyes
      trial that that’s why he went along. I think that’s subject to cross
      examination and demonstration that that’s false, that … Valencia doesn’t
      need assistance because he is this super violent person. And it allows me to
      go ahead and put third-party culpability into Pedro Vazquez Gonzales and
      Ezequiel Rios. These are people that have not been charged in this case,
      and certainly … Vazquez was aware of that. And the fact that he didn’t
      assist in bringing them before the court here when they’re good for—
      they’re good for this homicide more directly than my client is, I think that’s
      all information that the jury needs to know.”
      During the hearing, Vazquez testified he was aware that 10 days prior to this
offense, Valencia was involved in an incident at the Clifford Street house where a young
woman was bound with tape. The incident was related to another incident where
Valencia had his gun stolen from him. Vazquez assisted Valencia in the current case
because Valencia had previously been jumped and had his gun stolen.
      After hearing the testimony, the court indicated it was not inclined to introduce the
evidence without further foundational testimony. Subsequently, the court received
transcripts of prior testimony taken during Reyes’s trial. The evidence had originally
been offered by the prosecution to demonstrate Reyes planned the details of the
kidnapping with Valencia, or at the very least knew Valencia was the type of person to
kidnap the victim in this aggravated manner.
      During the prior hearing, Savannah S. testified she occasionally stayed at the
Clifford Street house in October of 2007. On October 14, Savannah had an argument
with Myra5 and was later assaulted by Valencia. Valencia was armed with a rifle. She
denied Reyes was present and denied even knowing him. Savannah testified she was


      5This   appears to be an alternate spelling of Mayra.


                                               25.
held at the Clifford house for one night by Valencia and was released in the morning.
She had been forced to get into a suitcase and stay there overnight. Checka6 was also
there and helped tie her up. She indicated Mosca was also present but denied he did
anything. During the assault, Valencia had a rifle and tied her up with duct tape.
Specifically, he put tape over her mouth. Her hands and feet were also bound. She was
physically assaulted by Myra. Valencia had previously threatened to take her into the
country and hold her in a cage.
       Turlock Police Detective Brandon Bertram testified he investigated the assault on
Savannah S. He explained she had identified Valencia as the man who assaulted her at
the Clifford house. In addition, she identified Reyes as being present when she was
restrained and that he did nothing to help her nor did he call the police. She admitted to
knowing Reyes prior to the incident and that they had had sexual intercourse on two prior
occasions. Savannah and Myra had previously been arrested together for shoplifting.
       Detective Gibson testified he was involved in investigating the death of the victim
and had interviewed Reyes regarding his participation. In the course of the investigation
detectives asked Reyes to take them to the location where the victim was abducted.
Reyes directed the detectives around the city for approximately one hour before finally
directing them to the Clifford Street house.
       Defendant argued the above evidence would impeach Vazquez’s testimony
regarding who was involved in the kidnapping, and to demonstrate the “manner in which
this event went astray can be laid at the feet of … Vazquez, … Valencia, and … Reyes
because it’s the common scheme and plan that they used at least once, if not more.”
When both the prosecutor and the court questioned how the evidence would impeach
Vazquez, defendant explained the evidence also demonstrated third party culpability.
“We have uncharged people who are clearly involved. Now who they are is not clear



       6This   appears to be an alternate spelling of Cheque.


                                                26.
because depending on which sworn testimony you take from … Vazquez, it was either
Cheque or Mosca who assisted in the home invasion kidnap.”
       The court commented the one problem it had with the relevance of the evidence
was that “it’s undisputed and the prosecution is not claiming that your client was
involved in whatever incident took place at Clifford.” Defense counsel explained
evidence there were others involved diminished his client’s role in the kidnapping,
ultimately arguing that what happened was “not something that was contemplated by
[defendant]” and that the facts of the offense were “contrary to the manner in which …
Vazquez has testified.” It was the defense theory that there were six people inside the
Clifford house when Valencia and Vazquez came in and, in a ruse, told everyone to get
down and immediately taped the victim’s face so she would not recognize anyone and
know she had been set up. He theorized the people inside the home when the victim was
abducted included Cheque, Mosca, and Mayra as they lived at the house and were
involved in the prior incident. He related this to the victim’s recorded statement where
she mentioned there were “six of us” at the house when she was abducted.
       The court explained it failed to see how the “events that occurred at the Clifford
residence ten days before have any substantial relevance to impeach the testimony of
Vazquez or whoever here.” Additionally, the court found a “substantial prejudicial effect
… on the proceedings because it brings another entire new set of circumstances into
play.” The court further found the evidence did not necessarily impeach the victim’s
statement as it was ambiguous as to whether she was referring to the number of people in
the house or the number of people in total after the perpetrators entered. The trial court
denied the motion.
       Defendant contends the evidence would have shown Valencia was the one who
orchestrated the kidnapping and would have raised a reasonable doubt as to his liability




                                            27.
for the kidnapping, the first degree murder charge, and the kidnapping special
circumstance. We disagree.7
       In People v. Hall (1986) 41 Cal.3d 826, 833, our Supreme Court held third party
culpability evidence is admissible when it is “capable of raising a reasonable doubt of
defendant’s guilt.” The evidence is treated “like any other evidence: if relevant it is
admissible ([Evid. Code,] § 350) unless its probative value is substantially outweighed by
the risk of undue delay, prejudice or confusion ([Evid. Code,] § 352).” (Id. at p. 834.)
Improper exclusion of the evidence is evaluated under the standard articulated in People
v. Watson (1956) 46 Cal.2d 818, 837, namely, whether it is reasonably probable the
defendant would have received a more favorable result had the evidence been admitted.
(People v. Hall, supra, at p. 836; People v. Fudge (1994) 7 Cal.4th 1075, 1103.)
       It is well settled that the application of the ordinary rules of evidence do not
infringe on a defendant’s right to present a defense. (People v. Fudge, supra, 7 Cal.4th at
pp. 1102–1103; People v. Hall, supra, 41 Cal.3d at p. 834.) “Although completely
excluding evidence of an accused’s defense theoretically could rise to this level,
excluding defense evidence on a minor or subsidiary point does not impair an accused’s
due process right to present a defense.” (People v. Fudge, supra, at p. 1103.)
       In Holmes v. South Carolina (2006) 547 U.S. 319, 326-327, the United States
Supreme Court recognized this principle as it related to third party culpability evidence.
Where the evidence is capable of raising a reasonable doubt as to the defendant’s guilt, it
should be admitted. However, where the evidence serves no legitimate purpose or its
probative value is outweighed by other factors such as undue prejudice or the potential
for confusing or misleading the jury, it may properly be excluded without running afoul



       7Defendant   argues the trial court’s exclusion of the evidence denied him the right to
present a defense and was a violation of his due process rights. The People assert defendant’s
claim was forfeited, arguing he did not raise this particular ground in the trial court. We agree.
However, in order to forestall an ineffective assistance of counsel claim, we will address the
issue.


                                                28.
of the constitution. (Ibid.) Thus, we must examine the evidence in context of the trial to
determine whether it was properly excluded.
         The evidence defendant sought to admit was not capable of raising a reasonable
doubt as to his guilt. Defendant argues the evidence would have “dispelled any
conclusion that [defendant] was directing [Valencia’s] actions, and showed that
[defendant] did not share his intent, and Valencia’s actions were not contemplated by him
when [defendant] requested Reyes’s help to recover the stolen marijuana.” We disagree.
It was undisputed at trial that defendant was not present when the kidnapping occurred.
While there was evidence defendant contacted Reyes to assist in the recovery of the
drugs, virtually no evidence was introduced as to the agreement between Reyes and
defendant. It was undisputed that Reyes contacted Valencia, a person unknown to
defendant, to carry out the offense. To the extent there was evidence demonstrating
defendant knew the victim would be kidnapped, there was no evidence establishing he
knew the exact means of how that would be carried out and who exactly would be
involved. There was no evidence defendant was in contact with Valencia prior to the
kidnapping. That Valencia was in charge of the actual kidnapping was never contested.
Therefore, evidence that Valencia engaged in a similar incident sometime earlier would
shed little light on defendant’s intent. As defendant was not present during the
kidnapping, his liability stemmed from his subsequent actions. Regardless of whether
Valencia had a certain modus operandi regarding assaulting women, that evidence simply
was not probative of defendant’s intent. Defendant was not tried as a direct perpetrator
regarding the kidnapping; instead he was tried under an aiding and abetting theory. That
there may have been others who were also liable as direct perpetrators was of little
relevance. Indeed, the trial was replete with evidence that several people were involved
in the commission of the crime. But that evidence did not tend to negate defendant’s
guilt.
         The evidence would only have served to demonstrate Valencia had a proclivity to
assault and bind the victim. Notably, the evidence defendant sought to introduce did not

                                            29.
establish a prior kidnapping. The testimony only established Savannah was bound with
tape and assaulted and that Valencia carried a rifle. There was no testimony at the
hearing that Savannah was taken from the house and transported anywhere. Quite the
opposite, she was made to remain in the home, inside a suitcase. While the evidence may
have established it was Valencia’s idea to bind and assault the victim, it shed little light
on who made the decision to kidnap Avina. In any event, Valencia brought the victim to
Cebrero and defendant. With full knowledge that Avina had been abducted, defendant
met with the others and participated in the later events. Therefore, the evidence
defendant sought to introduce did not have the capability of reducing his culpability for
the crime.
       Defendant argues the evidence would demonstrate he was not the mastermind of
the kidnapping. Not so. First, the People were not required to prove defendant was the
mastermind of the kidnapping, they only had to prove defendant aided and abetted in the
kidnapping. Second, the excluded evidence did not include a kidnapping. According to
the testimony, Savannah was never transported; she was forced to remain inside the
home, inside of a suitcase. Third, there was never an argument that defendant
orchestrated the particulars of Avina’s abduction. There was evidence from which the
jury could infer defendant knew the victim would be abducted, but no evidence he knew
or masterminded the particulars. Rather, the evidence strongly indicated the abduction
was orchestrated by Valencia. Regardless, however, the excluded evidence was
irrelevant to defendant’s later actions, which consisted of the bulk of the evidence against
him. Therefore, the evidence was properly excluded.
       To the extent defendant argues the evidence demonstrated why he feared Valencia,
we note the evidence was undisputed that defendant did not know Valencia prior to
meeting him after the victim was abducted, and there was no evidence offered to show
defendant ever learned of the prior incident. Thus Valencia’s prior acts could not in any
way demonstrate defendant’s fear of Valencia.



                                             30.
       Even if we were to conclude the trial court should have admitted the evidence, we
would find any error harmless. In People v. Hall, supra, 41 Cal.3d 826, the leading case
on third party culpability evidence, the Supreme Court found the trial court erred in
excluding the proffered evidence. There, the victim was found dead in his home with
hemorrhaging on his eyelids but no external signs of trauma nor evidence of forced entry
to the home. The cause of death was initially ruled to be cardiac arrhythmia incident to
heart disease. Approximately one year later, information provided by Rhae Foust
indicated the defendant was responsible for the victim’s death. Foust provided that
information after he had been arrested on unrelated charges. According to Foust,
defendant admitted he had killed the victim with a coperpetrator. He provided details of
the crime that were corroborated by the crime scene. He claimed he had driven the
victim to the bank previously and had seen him with a large sum of money. After the
defendant’s arrest he admitted he and his coperpetrator had given the victim a ride to the
bank, but denied any participation in the murder. Rather, he claimed his coperpetrator
had told him he killed the victim. He admitted he might have boasted to Foust about
participation in the murder to impress him, however, he denied relaying any of the details
of the murder. At trial the defendant sought to introduce evidence that Foust was the
killer, he had knowledge of the details of the murder because he committed the crime,
and that Foust was left-handed. Evidence suggested the killer was left-handed. (People
v. Hall, supra, 41 Cal.3d at pp. 829-830.)
       Although the court found it was error to exclude the evidence, the error was
harmless. Much of the evidence the defendant sought to admit had already been placed
before the jury; his knowledge of the details of the murder, his left-handedness, and the
presence of a certain type of shoe print at the scene. Indeed, defense counsel argued
Foust was the murderer in closing argument. (People v. Hall, supra, 41 Cal.3d at p. 835.)
Additionally, the court found the evidence would not tend to exculpate the defendant
because “no testimony or circumstantial evidence limited the number of perpetrators,



                                             31.
Foust’s participation would not undermine the significant evidence linking defendant to
the murder.” (Id. at p. 835.)
       Likewise here, the evidence defendant sought to admit would not have
undermined the evidence linking him to the kidnapping and murder. Evidence was
already presented at trial that Cheque was involved in the kidnapping, that Valencia had
planned the particulars of the kidnapping with Reyes, and that defendant was not present
when the actual kidnapping occurred. Notably, the testimony at the prior hearing was
that only Cheque was involved, Mosca was there but did not participate. Neither did
Reyes according to Savannah. As none of the proffered evidence had any bearing on
defendant’s actions that took place after the kidnapping, any error was necessarily
harmless.
III.   The Evidence Was Sufficient to Support the Kidnapping Charge as Well as
       the Felony-Murder Special Circumstance
       Defendant contends the evidence was insufficient to support the kidnapping
charge or the three felony-murder special circumstances. He claims there was no
evidence from which the jury could infer defendant intended to aid in or facilitate a
kidnapping. He further argues, as to the felony-murder special circumstances, that the
evidence did not support a finding he harbored the intent to commit the underlying
felonies independent of the murder. Rather, he argues the felonies were simply incidental
to the murder and, therefore, the special circumstances were improperly imposed. We
disagree.
       A.     Legal Principles
       When a defendant challenges the sufficiency of the “evidence to support the
judgment, our review is circumscribed. [Citation.] We review the whole record most
favorably to the judgment to determine whether there is substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—from which a reasonable trier of
fact could have made the requisite finding under the governing standard of proof.” (In re
Jerry M. (1997) 59 Cal.App.4th 289, 298.) Further, we review


                                            32.
       “the evidence in the light most favorable to the prosecution, [asking
       whether] any rational trier of fact could have found the essential elements
       of the crime beyond a reasonable doubt. [Citation.] This familiar standard
       gives full play to the responsibility of the trier of fact fairly to resolve
       conflicts in the testimony, to weigh the evidence, and to draw reasonable
       inferences from basic facts to ultimate facts. Once a defendant has been
       found guilty of the crime charged, the fact finder’s role as weigher of the
       evidence is preserved through a legal conclusion that upon judicial review
       all of the evidence is to be considered in the light most favorable to the
       prosecution.” (Jackson v. Virginia (1979) 443 U.S. 307, 319.)
“Before a judgment of conviction can be set aside for insufficiency of the evidence to
support the trier of fact’s verdict, it must clearly appear that upon no hypothesis whatever
is there sufficient evidence to support it.” (People v. Rehmeyer (1993) 19 Cal.App.4th
1758, 1765.)
       “Whether the evidence presented at trial is direct or circumstantial, … the relevant
inquiry on appeal remains whether any reasonable trier of fact could have found the
defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Towler (1982) 31
Cal.3d 105, 118-119.)

       “‘Although it is the duty of the jury to acquit a defendant if it finds that
       circumstantial evidence is susceptible of two interpretations, one of which
       suggests guilt and the other innocence [citations], it is the jury, not the
       appellate court which must be convinced of the defendant’s guilt beyond a
       reasonable doubt. “‘If the circumstances reasonably justify the trier of
       fact’s findings, the opinion of the reviewing court that the circumstances
       might also reasonably be reconciled with a contrary finding does not
       warrant a reversal of the judgment.’” [Citations.]’ [Citation.]
       ‘“Circumstantial evidence may be sufficient to connect a defendant with the
       crime and to prove his guilt beyond a reasonable doubt.”’ [Citations.]”
       (People v. Stanley (1995) 10 Cal.4th 764, 792-793.)
       B.      The Evidence Was Sufficient to Support the Kidnapping Charge
       Defendant argues the evidence was insufficient to support the kidnapping charge
as the evidence failed to establish he aided in the kidnapping in any way. He further
contends the special circumstance must be reversed because to the extent his actions
could be viewed as aiding in the kidnapping, the kidnapping was merely incidental to the



                                            33.
murder. We find the evidence was sufficient as to both the kidnapping charge as well as
the special circumstance.
        To prove guilt on an aiding and abetting theory, the prosecution must prove: (1)
the direct perpetrator committed a crime; (2) the defendant knew of the perpetrator’s
unlawful intent and he intended to assist in the offense; and (3) the defendant engaged in
conduct that in fact assisted in the crime. (People v. Perez (2005) 35 Cal.4th 1219,
1225.) While “[m]ere presence at the scene of a crime which does not itself assist its
commission or mere knowledge that a crime is being committed and the failure to prevent
it does not amount to aiding and abetting” (In re Michael T. (1978) 84 Cal.App.3d 907,
911), it is a circumstance to be considered along with the defendant’s companionship and
conduct before and after the offense. (People v. Campbell (1994) 25 Cal.App.4th 402,
409; People v. Laster (1971) 18 Cal.App.3d 381, 388 [“while mere presence at the scene
of an offense is not sufficient in itself to sustain a conviction, it is a circumstance which
will tend to support a finding that an accused was a principal”].) A defendant may be
held liable if he “in any way, directly or indirectly, aided the perpetrator by acts or
encouraged him by words or gestures.” (People v. Fleming (1961) 191 Cal.App.2d 163,
168.)
        Whether the defendant aided and abetted the crime is a question of fact, and on
appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of
the judgment. (People v. Mitchell (1986) 183 Cal.App.3d 325, 329.)
        The doctrine of aiding and abetting “‘snares all who intentionally contribute to the
accomplishment of a crime in the net of criminal liability defined by the crime, even
though the actor does not personally engage in all of the elements of the crime.’” (People
v. Montoya (1994) 7 Cal.4th 1027, 1039.) “Aiding and abetting does not require
participation in an agreement to commit an offense, but merely assistance in committing
the offense. [Citation.]” (People v. Morante (1999) 20 Cal.4th 403, 433.) However, “if
a person in fact aids, promotes, encourages or instigates commission of a crime, the
requisite intent to render such aid must be formed prior to or during ‘commission’ of that

                                              34.
offense. [Citations.]” (People v. Cooper (1991) 53 Cal.3d 1158, 1164.) This does not
mean advance knowledge is a prerequisite for liability (People v. Swanson-Birabent
(2003) 114 Cal.App.4th 733, 742); “[a]iding and abetting may be committed ‘on the spur
of the moment,’ that is, as instantaneously as the criminal act itself. [Citation.]” (People
v. Nguyen (1993) 21 Cal.App.4th 518, 532.) Moreover, “it is not necessary that the
primary actor expressly communicate his criminal purpose to the defendant since that
purpose may be apparent from the circumstances. [Citations.]” (Id. at pp. 531-532.)
       The evidence was undisputed that the victim was kidnapped, and defendant does
not challenge that fact.8 Defendant argues only that his actions were insufficient to
facilitate the kidnapping. We disagree. The evidence established defendant initially
called Reyes after Cebrero told him the victim had stolen the drugs. He did so, he
claimed, to help get the drugs back. That he knew something nefarious would happen to
the victim could be inferred from his statement that he counseled Cebrero to think twice
about what he was going to do because this was not a “game” and from the fact he later
had Reyes and Cebrero communicate directly with each other so he would not know
anything.
       Defendant was aware Cebrero had loaned his vehicle to Reyes, and he waited with
Cebrero until Reyes recontacted him to let him know he had the victim. Defendant went
with Cebrero to meet the others where they were holding the victim in the car on the
Westside, knowing the victim had been kidnapped. He was present when the victim was
interrogated about the location of the drugs, and he joined Cebrero with the others in the
Pontiac while the victim was in the trunk. Defendant accompanied the others to the
Sycamore Street house where the men, according to Vazquez, immediately exited the car,
walked into the field, and stood together talking. When Vazquez approached, they were
discussing what to do with the victim. Specifically, Vazquez noted defendant was doing

       8Defendant  notes that kidnapping requires asportation of the victim. While the crime of
simple kidnapping indeed requires an asportation element, the crime of kidnapping for extortion
or to take something of value does not. (People v. Rayford (1994) 9 Cal.4th 1, 11-14 & fn. 8.)


                                              35.
most of the talking, and he said it was “kind of bad” that the victim did not have the
drugs. It was during that time that Valencia said he knew what to do and instructed
Vazquez to retrieve a bottle. Valencia filled the bottle with gasoline and, after a private
discussion with Cebrero and defendant, the three men got back into the Pontiac and
transported the victim to the field where defendant ultimately set her on fire. These facts
all lead to the inference that defendant knew of the plan to kidnap the victim from the
beginning and aided in the plan by calling Reyes and asking for his help.
       Additionally, when defendant told Cebrero he was going to put him in touch with
Reyes, he advised Cebrero to “‘[t]hink about it twice, because it’s not going to be easy’”
and also said it “is not a game.” Defendant claimed the plan was never to kill the victim,
however, his admission that he knew the plan was not to kill initially leads to the
inference that he knew of the original plan. One could infer he had some knowledge they
were going to kidnap the victim from the fact that he knew there was a plan, he knew
Cebrero had loaned his car to Reyes, he waited with Cebrero until Reyes contacted him
saying they had the victim, and he went with Cebrero to meet the others.
       Even if we were to assume defendant did not aid in the kidnapping until after he
accompanied Cebrero to the Westside where the victim was being held in the Pontiac, we
would still find the evidence sufficient to support the verdict. Valencia called Cebrero
and said they had the victim. Defendant knew this because he was with Cebrero at the
time. He further claimed he told Cebrero to let the victim go if she did not have the
drugs. Defendant argues these acts are insufficient to support liability on an aiding and
abetting theory. However, defendant’s argument fails to take into account the fact his
intent to aid and abet the kidnapping need not precede the initial movement against the
victim’s will. Kidnapping is a continuing crime, that “continues until such time as the
kidnapper releases or otherwise disposes of the victim and has reached a place of
temporary safety.” (People v. Barnett (1998) 17 Cal.4th 1044, 1159.) Thus, when
defendant was assisting Cebrero by providing counsel and encouragement before the
victim was ultimately set on fire, he was in fact assisting the kidnapping. (E.g., People v.

                                             36.
Burney (2009) 47 Cal.4th 203, 233-234 [kidnapping of victim still in progress when
defendant stopped car, opened trunk, and shot victim]; People v. Silva (1988) 45 Cal.3d
604, 632 [“Because [the victim] was still being detained at the time of his murder, he was
killed while defendant was engaged ‘in the commission of’ the kidnapping”]; People v.
Farmer (1983) 145 Cal.App.3d 948, 952 [“A victim forcibly transported without [his]
consent is still ‘kidnaped’ while the detention continues and an injury inflicted during
detention is inflicted ‘in the commission of’ the kidnaping”].)
       In order to be guilty as an aider and abettor of the kidnapping, the defendant need
not assist the entire kidnapping. (People v. Montoya, supra, 7 Cal.4th at p. 1039.)
Assistance given during any portion of the offense will suffice. Defendant aided in the
kidnapping while it was in progress. When defendant arrived at the Westside, the victim
had been kidnapped and was still in the trunk. When the men gathered to decide what to
do with her, the kidnapping was still ongoing. When defendant discussed what to do
with the victim, he was aiding or encouraging the kidnapping in progress. Regardless of
whether defendant intended that the victim be abducted initially, he fully participated in
the kidnapping thereafter by taking part in the planning regarding what to do with the
victim. Due to the ongoing nature of the kidnapping, the crime was not complete until
defendant, Cebrero, and Valencia fled the scene after setting the victim on fire. His
participation in the events leading up to that point constituted aiding and abetting of the
crime. His kidnapping conviction is therefore supported by substantial evidence.
       Defendant claims he was simply present at the scene with the others and his
presence was insufficient to support his conviction for aiding and abetting the
kidnapping. He relies upon In re Michael T., supra, 84 Cal.App.3d 907 to support his
contention. There, the court found facts that a minor was nearby during a murder, made a
statement that there would be a shooting, and later identified with the shooter and
approved of his actions was insufficient to support a finding that he aided and abetted in a
murder. (Id. at p. 911.) He did not, like defendant, go to the scene knowing the crime
was in progress and join the perpetrators as the crime was being committed. Rather, this

                                             37.
case is more similar to People v. Le Grant (1946) 76 Cal.App.2d 148, disapproved on
another ground in People v. Cox (2000) 23 Cal.4th 665, 675. There, the defendant was
driving a car with several companions. Alongside of his car, the victim was driving with
two female companions. Words were exchanged between the vehicles, and someone in
the defendant’s car said, “‘do you want to make something of it,’” to which the victim
responded, “‘sure.’” (People v. Le Grant, supra, at p. 150.) The defendant pulled his car
to the curb ahead of the victim’s car, and he and his companions exited and stood
together on the sidewalk. The victim approached, and one of the defendant’s companions
struck him, knocking him through a plate glass window from which he suffered fatal
injuries. The defendant did not move from where he was originally standing nor did he
physically participate in the attack. He kept onlookers back to make sure it was a fair
fight. (Id. at p. 151.) The defendant was convicted of voluntary manslaughter as an aider
and abettor. The Court of Appeal concluded the evidence was sufficient to find he had
aided and abetted in voluntary manslaughter because (1) he was the owner and operator
of the vehicle from which the challenging remarks were made, (2) it was in his power to
have ignored the challenge and driven on, (3) he turned into the curb ahead of the
victim’s vehicle and exited the car in the company of the other two male occupants, (4)
he stood with them, and (5) he sought to keep other people back. (Id. at pp. 153-154.)
The facts here supporting a finding that defendant aided and abetted the others are at least
as compelling as those in People v. Le Grant.
       After contacting Reyes to help with the problem of the victim taking the drugs,
defendant, knowing the victim had already been kidnapped, voluntarily accompanied
Cebrero to where the victim was being held, joined the others in the car while the victim
was bound in the trunk, actively took part in the discussion regarding her fate, joined the
others in transporting her to the field, ultimately set her on fire after she had been doused
with gasoline, and fled the scene with the others. This evidence was sufficient to
establish, at a minimum, that defendant aided and abetted the kidnapping of the victim.
“[P]resence at the scene of the crime, while insufficient of itself to make one an aider and

                                             38.
abettor, is one factor which tends to show intent. Other factors which may be considered
include the defendant’s failure to take steps to prevent the commission of the crime,
companionship, and conduct before and after the crime.” (People v. Pitts (1990) 223
Cal.App.3d 606, 893.) Each of these factors suggests defendant shared the intent to
kidnap the victim.
       Furthermore, we note:

       “Direct evidence of the mental state of the accused is rarely available
       except through his or her testimony. The trier of fact is and must be free to
       disbelieve the testimony and to infer that the truth is otherwise when such
       an inference is supported by circumstantial evidence regarding the actions
       of the accused. Thus, an act which has the effect of giving aid and
       encouragement, and which is done with knowledge of the criminal purpose
       of the person aided, may indicate that the actor intended to assist in
       fulfillment of the known criminal purpose.” (People v. Beeman (1984) 35
       Cal.3d 547, 558-559.)
The evidence established defendant did nothing to try to prevent the crime or to confront
the other men about what was happening. Instead, defendant voluntarily accompanied
them, participated in the planning process, joined them in the continuing crime, and fled
with them. The fact defendant joined the others in the car knowing the victim had been
kidnapped and participated in the subsequent planning demonstrated his intent to
facilitate the crime. The evidence was sufficient.
       Relying upon the rule articulated in People v. Green (1980) 27 Cal.3d 1, 59-62,
overruled on other grounds by People v. Martinez (1999) 20 Cal.4th 225, 241, defendant
argues his actions after he entered the Pontiac on the Westside were aiding in a plan to
kill the victim, and any facilitation of the kidnapping was merely incident to the murder.
We disagree. In People v. Green, our Supreme Court explained that a felony-murder
special circumstance9 cannot be sustained where the underlying felony is “merely

       9Defendant     seems to argue, without citation to authority and without any substantive
analysis, that his first degree murder conviction must likewise be reversed. As near as we can
decipher, this argument is premised upon the theory the first degree murder conviction was tried
partly upon the theory that defendant committed the murder while in the perpetration of a
kidnapping. (§ 189.) Defendant cites no authority for this proposition, nor makes any specific

                                              39.
incidental to the murder.” (People v. Green, supra, at p. 61.) The court reached this
conclusion from the fact the statute governing the felony-murder special circumstance
required the murder be committed “‘during the commission or attempted commission
of’” the crime. (Id. at p. 59.) The People conceded that “‘murder was the prime crime
and that the robbery was incidental to the murder, since the underlying motive for the
robbery was to leave [the victim’s] corpse bereft of anything whatsoever by which she
could be indentified.’” (Id. at p. 62.) Under those circumstances, the special
circumstances could not be upheld.
       Unlike Green, the evidence here established the kidnapping was the primary
crime. Indeed, the prosecution conceded at trial that the initial plan was to kidnap, not
kill, the victim. Cebrero wanted to recover his stolen drugs and enlisted Reyes for
assistance. Reyes in turn sought assistance from Valencia who conducted the
kidnapping. The victim was interrogated multiple times regarding the drugs. After it was
clear the drugs were not going to be recovered, the men discussed what steps to take next.
The plan to kill the victim was then developed.
       Defendant contends the plan to kill the victim was already in place when he
entered the Pontiac, and the only intent shown by the evidence at that point was the intent
to kill. Any further kidnapping of the victim was merely incidental to the murder. We

argument related to this theory, thus he has waived the issue. “‘Where a point is merely asserted
by counsel without any argument of or authority for its proposition, it is deemed to be without
foundation and requires no discussion.’” (People v. Dougherty (1982) 138 Cal.App.3d 278, 282;
see People v. Hardy (1992) 2 Cal.4th 86, 150.)
        Rather, the briefing is devoted to the rule that in order to support a felony-murder special
circumstance the defendant must act with an independent felonious purpose. Defendant makes
no attempt to explain how this rule, which is based upon the express language of the statute
governing the special circumstance, applies to first degree felony murder. While the merger
doctrine articulated in People v. Ireland (1969) 70 Cal.2d 522 does have some application to the
felony-murder rule, that rule has been expressly limited to second degree felony murder. Indeed,
courts have repeatedly rejected attempts to apply Ireland’s merger doctrine to the felonies
enumerated in section 189, including robbery and kidnapping, as those crimes are undertaken for
a felonious purpose independent of the homicide. (People v. Escobar (1996) 48 Cal.App.4th
999, 1012–1013 [kidnapping], abrogated on other grounds in People v. Mendoza (2000) 23
Cal.4th 896, 923; People v. Kelso (1976) 64 Cal.App.3d 538, 541–542 [same].)


                                                40.
disagree. From the evidence the jury could have found the plan to kill the victim was not
devised until the men were discussing what to do at the Sycamore house, and defendant
had the concurrent intents to both facilitate the kidnapping and murder.
          On this point, People v. Barnett, supra, 17 Cal.4th 1044 is instructive. The
defendant had been previously engaged in a gold mining enterprise with the victim.
When the defendant unexpectedly confronted the victim, along with others, in a remote
area, the defendant shot the victim in the foot, beat him, threatened to kill him, and
eventually bound him and forced him, along with the others, into a vehicle. He drove the
victim to another location, removed his clothing, and told the others he was going to tie
the victim to a tree and leave him in the wilderness. The others heard screaming for some
time that abruptly stopped. The defendant returned, saying he had left the victim with
fishing line tied to his genitals. He drove the others back to the original location and
eventually let them go, but warned them to leave the victim to suffer where he was for
several days. After their release, the others attempted to find the victim, however, they
fled when they believed they heard the defendant nearby. The following morning they
returned to look for the victim, eventually finding him dead inside a vehicle near the area
where he had been left. (People v. Barnett, supra, at pp. 1069-1075.)
          On appeal, the defendant argued the kidnapping-murder special circumstance was
not supported by the evidence as there was no evidence he committed the murder to
advance the kidnapping. The Supreme Court disagreed, explaining the jury could have
found the defendant intended to kidnap the victim apart from his intent to kill. The jury
was not required to find the defendant’s sole intent from the beginning was to kill the
victim. The court pointed out there was evidence the defendant considered letting the
victim go prior to the kidnapping, and there was additional evidence he may have killed
the victim after letting the others go. (People v. Barnett, supra, 17 Cal.4th at p. 1158.)
Further, the fact the jury was instructed it could not find the special circumstance true
where the kidnapping was merely incidental to the murder reinforced the conclusion.
(Ibid.)

                                              41.
       In addition, the court found the evidence supported a finding the murder was
committed to facilitate the kidnapping. The defendant only killed one of his multiple
victims, and the jury could have determined the defendant felt the victim was the only
one who was likely to report the crime. The evidence supported a finding that the
defendant murdered the victim “to advance the kidnappings, to facilitate his escape, or to
avoid detection. That defendant may have had concurrent intent, that is, consisting of
both an intent to kill and an intent to commit an independent felony, does not invalidate
the felony-murder special circumstance.” (Id. at p. 1159.)
       Likewise in People v. Riel (2000) 22 Cal.4th 1153, the evidence was sufficient to
support a finding the defendant intended to kidnap the victim and subsequently formed
the intent to kill him. The defendant along with two other cohorts robbed a convenience
store. They absconded with the loot from the register and forced the store clerk to depart
with them in a vehicle. As they drove away, the defendant demanded the clerk’s wallet.
Upon discovering the wallet contained only $13, the defendant stated he was going to kill
the clerk. They drove an additional distance and subsequently killed the clerk, leaving
his body. (Id. at p. 1173.) The court found sufficient evidence to support the kidnapping-
murder special circumstance because there was evidence to support a finding the intent to
kill the victim was not formed until after the kidnapping began, ostensibly due to the
defendant’s anger over the small amount of money found in the clerk’s wallet. (Id. at pp.
1201-1202.)
       In People v. Raley (1992) 2 Cal.4th 870, the defendant, a security guard, gave an
unauthorized mansion tour to two young women. During the tour he locked them in a
safe, required they disrobe, bound their hands, and sexually assaulted them.
Subsequently he beat and repeatedly stabbed the women and put them in the trunk of his
car. He drove for some time, eventually arriving home and allowing the women out of
the trunk for a short time. Later that night, he drove the women to a ravine, beat them
again and pushed them, still bound, into the ravine. One of the victims died from her
wounds but the other survived. (Id. at pp. 882-884.) In rejecting an argument the

                                            42.
kidnapping was incidental to the murder, the court held the jury was not required to
accept the prosecution theory that the defendant planned to kill the victims from the
beginning. (People v. Raley, supra, at p. 902.) Instead of immediately killing the victims
once they were in the trunk of his car, he brought them to his home. The jury could infer
the intent to kill was formed after the kidnapping had begun. (Id. at p. 903.) The court
explained:

               “… This is not a case like People v. Weidert (1985) 39 Cal.3d 836,
       in which it was overwhelmingly clear that the defendant formed a plan to
       kill a particular victim to prevent his testimony in a subsequent criminal
       proceeding, and that the kidnapping of the victim was wholly incidental to
       the planned murder. Nor is it a case like Green, supra, 27 Cal.3d 1, 62, in
       which the defendant’s primary purpose was the murder of his wife, and his
       subsequent removal of her personal property to avoid her identification was
       purely incidental to the murder.

              “Rather, this case is more like People v. Ainsworth [(1988)] 45
       Cal.3d 984, in which we explained: ‘Green and Thompson stand for the
       proposition that when the underlying felony is merely incidental to the
       murder, the murder cannot be said to constitute a “murder in the
       commission of” the felony and will not support a finding of felony-murder
       special circumstance.’ (Id. at p. 1026.) We concluded in Ainsworth, where
       defendant had kidnapped the victim, put her in his car, and let her bleed to
       death over a period of hours, that there was substantial evidence from
       which the jury could have determined that the kidnapping was not merely
       incidental to the murder.” (People v. Raley, supra, 2 Cal.4th at pp. 902-
       903.)
       Likewise here, defendant accompanied Cebrero to facilitate the kidnapping. By
planning what to do with the victim, who had been abducted and was bound in the trunk,
defendant was most certainly facilitating the kidnapping that was still in progress. That
they subsequently determined to kill her and cover up the kidnapping did not lessen
defendant’s intent to assist in the kidnapping itself. It is well settled that a defendant can
harbor multiple concurrent objectives. (People v. Gurule (2002) 28 Cal.4th 557, 628
[defendant’s primary motivation was to rob victim, murder was committed to facilitate
the robbery by eliminating sole witness]; People v. Wright (1990) 52 Cal.3d 367, 417,
disapproved on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459; People

                                             43.
v. Barnett, supra, 17 Cal.4th at pp. 1158-1159.) The jury could determine that at the time
defendant joined the men in the Pontiac the victim’s fate had not yet been determined.
The kidnapping was not incidental to the murder and defendant’s actions in planning at
the Sycamore Street house facilitated the kidnapping.
       Indeed, the evidence established the men discussed at the Sycamore house what to
do with the victim. Such a discussion would have been unnecessary if the victim’s fate
had already been decided. Defendant engaged in planning what to do with the victim
when they were unable to recover the drugs. The fact Vazquez noted defendant told the
others it was “kind of bad” the victim did not have the drugs demonstrated his intent to
engage in the kidnapping itself. After all, the reason for the kidnapping was to extort the
victim. Indeed, at the Sycamore house the men were still discussing that they did not
recover the marijuana. Vazquez testified he had told defendant and Cebrero that the
victim said “Martha” when they were looking for the drugs, and the victim was right
there, and it was up to them to decide what to do with her. Thus, it is apparent the men
were still actively engaged in the kidnapping and discussing recovering the marijuana.
Defendant knew the victim had absconded with the drugs and he wanted to recover them.
Defendant was present and contributed to planning what to do, knowing the victim had
been kidnapped and the drugs were not recovered. Defendant claimed it was Cebrero’s
idea to kill the victim. But it is clear he participated in the planning process when the
men were still deciding what to do with her. It was not until sometime later that Valencia
said he knew what to do and instructed Vazquez to get the plastic bottle. The jury could
infer that up to that point, the men were engaged in planning what to do with the victim.
(See People v. Riel, supra, 22 Cal.4th at pp. 1201-1202 [defendant may not have decided
upon victim’s fate at the time the kidnapping began and he only “‘formed the intent to
kill after the asportation,’” making the kidnapping not merely incidental to the murder].)
Once they decided it would be necessary to kill her, defendant harbored concurrent
intent. The jury could infer defendant’s intent was to facilitate the kidnapping and the



                                             44.
recovery of the drugs, and the murder was a means of covering up the original
kidnapping.
       Although the jury may have been able to infer defendant had the intent to kill the
victim at the time he entered the car on the Westside, far from what he argued at trial, it
likewise could infer the plan was not devised until much later. This question of whether
defendant was an aider and abettor was a question of fact for the jury to resolve. (People
v. George (1968) 259 Cal.App.2d 424, 429.) The jury was properly instructed regarding
when the intent must have been formed and likewise was properly instructed the felony
could not be incidental to the murder. The jury concluded kidnapping was not incidental
to the murder.
       C.     Mayhem-Felony-Murder Special Circumstance
       In order to support a felony-murder conviction and special circumstance for
mayhem-murder, the evidence must show the defendant had the specific intent to commit
mayhem. (People v. Campbell (1987) 193 Cal.App.3d 1653, 1668.) A person commits
mayhem, as relevant here, when he or she willfully and maliciously disables or disfigures
a member of another’s body. (§ 203.) Defendant argues there was no evidence he had
the intent to disfigure the victim apart from his intent to kill and, therefore, his
convictions must be reversed. We disagree.
       The chosen method of killing the victim here was one that would both cause
extreme pain and disfigurement should she survive. As we have already explained, there
was evidence both that defendant sought to kill the victim to prevent there being any
witnesses to the crime as well as to harm her for stealing the drugs. Defendant through
his own admission counseled Cebrero to think twice before calling Reyes to get the drugs
back from the victim because this was no “game.” There was evidence the victim
absconded with a pound of marijuana. Although defendant denied any ownership interest
in the drugs, the jury could have rejected that self-serving testimony. Defendant’s actions
of inserting himself into the situation, by calling Reyes and then accompanying Cebrero
to the car, joining the others at the Sycamore house, explaining the situation was “kind of

                                              45.
bad” that the victim did not have the drugs, participating in the plan of burning the
victim, and ultimately setting the victim on fire, all suggest he had some stake in the
missing drugs.
       The victim was taken to a remote field, doused with gasoline, and burned alive.
While the evidence supported intent to kill, it likewise supported an intent to maim the
victim. Indeed, the victim survived her injuries for some days. “‘[A] defendant may
intend both to kill his or her victim and to disable or disfigure that individual if the
attempt to kill is unsuccessful,’ and evidence that is sufficient to establish a defendant’s
intent to kill the victim can also be ‘sufficient to establish the intent to permanently
disable or disfigure that victim.’” (People v. Manibusan (2013) 58 Cal.4th 40, 89.)
       People v. Manibusan is instructive. There, the codefendant shot the victim in the
head from a distance of five to ten feet during the commission of an ineffectual robbery.
Miraculously, the victim survived. In rejecting the claim the evidence was insufficient to
support the intent to commit mayhem, the court explained, there was evidence the reason
for the shooting was “something other than frustration resulting from an ineffectual
robbery.” (People v. Manibusan, supra, 58 Cal.4th at p. 89.) Rather, the evidence
supported a finding the shooting was “a deliberate and calculated effort to silence her as a
witness, either by killing her or by inflicting some other ‘permanent disability’—such as
brain damage—that would prevent her from indentifying her assailants.” (Ibid.; see
People v. D’Arcy (2010) 48 Cal.4th 257, 297 [defendant’s act of killing victim by
dousing her with gasoline and lighting her on fire due to a belief she had withheld his
money supported a finding defendant had concurrent intent to kill the victim as well as
maim her]; People v. Gonzales (2011) 51 Cal.4th 894, 942-943 [mayhem-felony-murder
conviction does not violate merger doctrine as mayhem-felony-murder has independent
felonious purpose].)
       Likewise here, as we have previously explained, the evidence supported a finding
defendant harbored concurrent intents, both to kill the victim to silence any witness and
to maim her as revenge for stealing the drugs. Evidence that they chose the method of

                                              46.
burning the victim alive, they deliberated over that choice, and they were angry over the
missing drugs all support the finding defendant harbored a concurrent intent to maim.
Therefore defendant’s claim must be rejected.
       D.     The Evidence Was Sufficient to Support the Torture-Murder Special
              Circumstance
       Reiterating the same arguments, defendant claims the evidence was insufficient to
support a finding he had an independent intent to torture the victim from his intent to kill.
He argues there “was no evidence that the method for the killing was selected for the
independent purpose of either maiming [the victim] or inflicting extreme and prolonged
pain. These results were incidental to the plan to kill.” We disagree.
       Defendant was convicted of first degree murder as well as the torture-murder
special circumstance. Defendant seems to assume the rule requiring the defendant to
have an intent to commit the underlying felony independent of the murder before the
felony special circumstance can be applied relates as well to the torture special
circumstance. It does not.
       The independent purpose rule articulated in People v. Green applies specifically to
felony-murder special circumstances. Indeed, the rationale for the rule came from the
statutory language, which at the time required the murder be perpetrated “during the
commission of” an enumerated felony.10 (People v. Green, supra, 27 Cal.3d at pp. 59-
60.) Where the underlying offense is merely incidental to the murder, the murder could
not be committed in the commission of the offense. Construing the language to allow the
application of the special circumstance to a situation where the felony was incidental to
the murder would be inconsistent with the “legislative purpose underlying the special
circumstances—that of distinguishing between those murderers who deserve


       10The statutory language has been subsequently changed and now prohibits murder
committed “while the defendant was engaged in, or was an accomplice in, the commission of”
the enumerated felonies. (§ 190.2.) However, the rule that the crime must not be merely
incidental to the murder remains. (See People v. Clark (2011) 52 Cal.4th 856, 947.)


                                             47.
consideration for possible imposition of the death penalty from those who do not.”
(People v. Williams (1988) 44 Cal.3d 883, 927-928.)
       Torture murder, however, is not listed as one of the felonies for the felony-murder
special circumstance in section 190.2, subdivision (a)(17). Rather, the torture-murder
special circumstance is governed by section 190.2, subdivision (a)(18): “The murder was
intentional and involved the infliction of torture.” Defendant has cited no authority, nor
are we aware of any, that requires the torture be independent of the murder. As the plain
language of the statute requires only that the murder “involved the infliction of torture,” it
is apparent the murder need not be independent of the torture.
       Even were we to apply the rule defendant suggests, we would find defendant, at a
minimum, had a concurrent intent to torture the victim. Defendant chose to kill the
victim by lighting her on fire after she was doused with gasoline. Choosing such a
painful method of killing the victim demonstrated defendant’s intent to commit torture
concurrently with the intent to kill.
       To the extent defendant argues the evidence was insufficient to support the torture-
murder conviction and torture-murder special circumstance, we reject the claim. Torture
murder requires “a wilful, deliberate, and premeditated intent to inflict extreme and
prolonged pain” (People v. Steger (1976) 16 Cal.3d 539, 546) for the calculated
“‘purpose of revenge, extortion, persuasion or for any other sadistic purpose’” (People v.
Wiley (1976) 18 Cal.3d 162, 168). “The jury may infer intent to inflict extreme pain from
the circumstances of the crime, the nature of the killing, and the condition of the victim’s
body.” (People v. Streeter (2012) 54 Cal.4th 205, 245.)
       In People v. Streeter, the Supreme Court found a torture-murder conviction and
special circumstance was supported by the evidence where the defendant killed his
girlfriend by burning her alive. The evidence established the two had a violent
relationship and the victim took their children and left the defendant. The defendant
convinced her to meet him with the children. Upon arrival, the defendant began leading
one of the children away. The victim confronted him and a fight ensued where he beat

                                             48.
her. He then retrieved a bottle filled with gasoline and poured gas on the victim’s car and
ultimately on the victim herself. He later dragged her to his vehicle where he lit her on
fire. She subsequently died from her burns. (People v. Streeter, supra, 54 Cal.4th at pp.
211-215.)
       The court found the evidence of the prior violent relationship, the fact the victim
left with the children, and the defendant’s prior threats against the victim and her family
led to the reasonable inference the defendant intentionally set the victim on fire to cause
her extreme pain to punish her or for revenge. (People v. Streeter, supra, 54 Cal.4th at p.
245.) The defendant’s actions further demonstrated his intent to kill the victim, and in
doing so, he inflicted torture. (Id. at p. 246.)
       Likewise here there was evidence defendant participated in the planning of the
murder, and defendant’s act of lighting a stick and throwing it on the victim knowing she
had been doused with gasoline supports the finding he intended to inflict extreme pain
upon her. Defendant knew the victim had taken drugs from Cebrero, that Cebrero
claimed she had done this before, that Reyes had been tasked to get the drugs back, and
the drugs were never recovered. The jury was certainly entitled to infer defendant killed
her in such a painful manner to punish her or to exact revenge for the theft of the drugs.
There can be no question that dousing the victim in gasoline only to light her on fire and
leave her in the middle of a field while the others fled would inflict severe suffering.
(Accord, People v. Martinez (1952) 38 Cal.2d 556, 561 [“jury could reasonably conclude
that when defendant set about to burn his wife with gasoline, his intention was to inflict
cruel suffering as punishment or revenge on his victim”]; People v. Whisenhunt (2008) 44
Cal.4th 174, 201 [defendant’s actions of brutally beating the victim then methodically
pouring hot cooking oil over her body leaving numerous burns supported torture-murder
conviction and torture-murder special circumstance].)
       While the Supreme Court has “cautioned against giving undue weight to the
severity of the victim’s wounds, as horrible wounds may be as consistent with a killing in
the heat of passion, in an ‘explosion of violence,’ as with intent to inflict cruel suffering”

                                              49.
in determining whether the evidence supports a finding of torture, the evidence here
amply supports the verdict. (People v. Pensinger (1991) 52 Cal.3d 1210, 1239.) Far
from a situation indicating heat of passion or an explosion of violence, the evidence
established a deliberate choice to kill the victim after discovering she did not have the
drugs. The victim remained bound and held captive in the trunk of the car while the men
discussed what to do. Then they obtained the gasoline, took her to the field, and set her
on fire. The manner of the killing along with the surrounding circumstances supports a
finding of intentional torture murder.
       There was evidence from which the jury could infer defendant intended to kill the
victim. Indeed, defendant admits as much in his brief. Defendant stated Cebrero said
they should kill the victim. Defendant was seen talking to Cebrero and Valencia and was
present when Valencia said he knew what to do with the victim, subsequently obtaining
the bottle of gasoline. Defendant continued talking to Valencia and Cebrero for an
additional 30 seconds after Valencia had obtained the gasoline. The jury could infer that
given his admission that he knew Cebrero wanted to kill the victim, and Valencia had
obtained the gas, the three were discussing the plan for the victim’s demise. Immediately
thereafter, defendant got into the vehicle with Valencia and Cebrero without hesitation.
Defendant ultimately admitted that once they were in the field, and after the others placed
the victim in the boat, either Valencia or Cebrero doused the victim with the gasoline. He
knew they had obtained the gas and he could smell the substance. After the others tried
to light her and could not, defendant did so. Defendant, knowing the victim had been
doused in gasoline, lit a stick on fire and threw it on the victim. It is reasonable to infer
that lighting the victim on fire as a means to kill her was done with the intent to inflict
extreme pain. The evidence established the victim suffered burns over 60 percent of her
body and the injury would have been extremely painful. The victim survived for several
days in this painful condition before she ultimately expired.
       That the crime was committed for a sadistic purpose is also inferable from the
record. Defendant knew the victim had taken the drugs and he assisted Cebrero by

                                              50.
contacting Reyes to try to reacquire the contraband. Knowing the victim had been
kidnapped, he joined Cebrero in the car where the victim was bound in the trunk. He
participated in further planning regarding what to do with the victim, and he said the fact
she did not have the drugs was “kind of bad.” The jury was entitled to infer the victim
was burned alive in revenge because she had crossed the others by taking the drugs.
Choosing to kill her by burning her alive—because she had “done this too many times”—
certainly qualifies as a sadistic purpose. Thus the torture-murder special circumstance
was properly supported.
                                     DISPOSITION
       The trial court is ordered to amend the abstract to reflect the sentence on count 2,
aggravated kidnapping, was stayed pursuant to section 654. The trial court is directed to
forward copies of the amended abstract to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.


                                                         ___________________________
                                                                             PEÑA, J.
WE CONCUR:


 ________________________________
POOCHIGIAN, Acting P.J.


 ________________________________
FRANSON, J.




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