Filed 8/1/14 P. v. Rodriguez and Lopez CA4/3



                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE

THE PEOPLE,

     Plaintiff and Respondent,                                         G049804

                   v.                                                  (Super. Ct. No. FWV903084)

RODOLFO MIGUEL RODRIGUEZ and                                           OPINION
NOLAN LOPEZ,

     Defendants and Appellants.


                   Appeal from a judgment of the Superior Court of San Bernardino County,

Stephan G. Saleson, Judge. Affirmed as modified, and remanded with directions.

                   Waldemar D. Halka, under appointment by the Court of Appeal, for

Defendant and Appellant Rodolfo Miguel Rodriguez.
                   Jerome P. Wallingford, under appointment by the Court of Appeal, for

Defendant and Appellant Nolan Lopez.

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

Attorney General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez and

Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

                                          *                  *                  *
              A jury convicted Rodolfo Miguel Rodriguez and Nolan Lopez of first

degree murder on a felony murder theory (Pen. Code, § 187, subd. (a); all further

statutory references are to this code) for slaying Rafael Ochoa. The jury also convicted

defendants of carjacking (§ 215, subd. (a)) and robbery (§ 211), and found Rodriguez

guilty of being a felon in possession of a firearm (§ 12021, subd. (a)(1)). The jury found

allegations of special circumstances on the murder count to be true for murder committed

during a robbery and carjacking (§§ 190.2, subd. (a)(17)(A) & (L)), and also found true

numerous firearm allegations concerning Rodriguez, including that he personally used a

firearm (§ 12022.53, subd. (b)), personally and intentionally discharged a firearm

(§ 12022.53, subd. (c)) causing great bodily injury or death (§ 12022.53, subd. (d)), and

as to both defendants that a principal personally used a firearm (§ 12022.53, subd. (e)(1)).

The jury acquitted defendants of premeditated first degree murder and a gang penalty

enhancement (§ 186.22, subd. (b)(1)) and a gang special circumstance allegation

(§ 190.2, subd. (a)(22)). The trial court sentenced Rodriguez to life in prison without the

possibility of parole (LWOP) plus 44 years, and sentenced Lopez to an LWOP term plus

10 years.

              Defendants raise a host of issues on appeal.1 They contend the prosecutor
failed to disclose contact information for a potentially material witness, the trial court

erroneously authorized admission of Ochoa’s last words as a dying declaration or

spontaneous utterance, failed to redact or exclude a witness’s police statement that

referenced uncharged prior carjackings defendants may have committed, and Lopez

argues the court erred in failing to dismiss the gang allegations against him. Defendants

       1      Lopez joins in each of Rodriguez’s appellate contentions, and Rodriguez
does the same for each of Lopez’s arguments. For ease of reference, we discuss each
argument in the body of the opinion as raised by the respective defendant, but our
resolution of each contention applies equally to both defendants.

                                              2
contend the trial court’s accomplice instructions were inadequate, they insist conspiracy

is not a valid theory of vicarious liability, and they challenge their conviction and LWOP

sentences for felony murder. Lopez argues the trial court erred in denying his motion

under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) and his subsequent motion

under Faretta v. California (1975) 422 U.S. 806 (Faretta) to represent himself in a new

trial motion. As we explain, defendants’ petty theft convictions must be set aside as

lesser included offenses of robbery, their convictions for robbery and carjacking (and

attendant firearm enhancements) must be stayed under section 654, and a limited remand

is required for the trial court to award restitution for Ochoa’s funeral expenses to his

nearest relatives instead of an insurance company. But apart from these corrections, the

judgment is affirmed.

                                              I

                   FACTUAL AND PROCEDURAL BACKGROUND

A.     The Murder

              Ochoa owned his own trucking company and drove a Freightliner tractor-

trailer. He regularly carried cash of around $300 to $500 for fuel. He did not own a

handgun, and while he used a rifle when he went hunting, he kept neither guns nor
ammunition in his truck. Ochoa kept his truck very neat, and he would never let anyone

borrow it, even for a fee, nor did he pick up hitchhikers.

              On December 15, 2009, Ochoa drove from his home in Tulare County to

deliver frozen juice to a business in Ontario. While en route, he spoke on his cell phone

around 4:00 p.m. with his friend Maricela Martinez, who arranged to meet him at the

Truck Stop of America (TA truck stop) in Ontario. He asked Martinez to bring him a

gallon of milk, fruit, and cookies because he had used all his money for gas. He also



                                              3
spoke on his cell phone to his adult son Alejandro, who found Ochoa happy and eager to

arrive at his destination for the evening. Ochoa met Martinez at the truck stop, they had

dinner nearby, and returned to the truck stop, where Ochoa told Martinez he was tired

and would look for a parking place to sleep for the evening. Martinez departed, but

called Ochoa a half hour later; he told Martinez he parked across the street from where

she had dropped him off, and asked her to call him at 6:00 a.m. to wake him up. She

agreed and said she would bring him breakfast.

              Around 11:30 p.m. that night, Connie Lambert and her husband Steven left

the TA truck stop in their tractor-trailer, headed towards Interstate 10 west. Steven saw

Ochoa’s truck turn left from an intersection near the TA truck stop onto the Interstate 10

onramp. Steven and Connie headed in the same direction and after a short period of time,

Ochoa’s truck lurched to the left, onto the road berm. The driver corrected course, but

then the truck careened off the right side of the road, down into a ditch where it hit a

cement culvert, turned on its side, and came to rest against the wall adjoining a CarMax

car lot.

              Ochoa climbed out of the driver’s side of his truck. He hung on to the door

with one arm, fell to the ground, and stumbled down the culvert. He then crawled out of
the ditch and under the Lamberts’ trailer, where they had parked by the side of the road.

Connie noticed Ochoa was covered in blood and had a gunshot wound in his upper chest

above his heart. Connie exited her truck cab to aid Ochoa and Steven dialed 911. As

Connie assisted Ochoa, Ochoa told her he was robbed. Connie saw two dark-skinned

men wearing hoodies and long shorts exit Ochoa’s truck through the driver’s side door.

They jumped over the fence surrounding the CarMax car lot and ran away.




                                              4
             Mario Miranda, a truck driver fluent in English and Spanish, saw the crash

and stopped to help, where he found Ochoa surrounded by other truck drivers. Ochoa’s

body and clothing were covered in blood, he was in “[p]oor shape,” and clearly in

agonizing pain. Ochoa did not respond when Miranda spoke to him in English, but

nodded that he spoke Spanish, and when Miranda asked what had happened, Ochoa

answered, “Mi robaton, mi tiraron valasos,” which means, “I got robbed and I was shot.”

Ochoa used the plural, meaning more than one person robbed and shot him.

             Police and medical personnel arrived quickly. Ontario Police Officer Justin

Vanduyne saw Ochoa lying on the asphalt near the freeway, being loaded onto a gurney.

Vanduyne followed the ambulance to the Arrowhead Regional Medical Center. About

10 minutes into the trip, Vanduyne observed that Ochoa required chest compressions. At

12:22 a.m. on December 16, the emergency room doctor pronounced Ochoa dead. After

the coroner processed the body, Vanduyne could see that Ochoa suffered several gunshot

wounds. Ochoa did not have his wallet or cell phone.

B.    The Police Investigation

             Shortly after the crash, Kristina Pullen, a California Highway Patrol Officer

responded to the scene and received a dispatch that two suspects were seen fleeing on
foot through the CarMax parking lot. Finding nothing at the location, Pullen continued in

her vehicle until she noticed a pedestrian matching the suspects’ description. Pullen

exited her vehicle with her weapon drawn, ordered Rodriguez to stop, and detained him

without incident.

             Rodriguez explained his friends dropped him off there. Specks of blood

dotted his face and there was a blood smear on his left hand. Pullen’s partner asked
Rodriguez if he was okay, but Rodriguez responded, “I don’t know what you’re talking



                                            5
about.” Ontario police officers arrived and also noticed blood specks on Rodriguez’s

face, his shorts, and his socks. A forensic specialist came to take photos, but Rodriguez

kept wiping his face on his shirt and bending over to wipe his face on his shorts. He

continued to wipe his face despite numerous commands to stop, until an officer grabbed

his shirt to hold him still. He tried to prevent the forensic officer from swabbing his

hands for gunshot residue by continually moving around, wiping his hands on his shirt,

and complaining his stomach hurt. Rodriguez did not appear to be under the influence of

alcohol or narcotics. He did not possess any drug paraphernalia, but the officers found

him with Ochoa’s cell phone.

              Meanwhile, Ontario Police Officer James Mikkelsen and his canine, Rex,

searched along Inland Empire Boulevard, to the north of the CarMax lot. Around 3:00

a.m., Rex found Lopez was hiding in the bushes, where Lopez ignored Mikkelsen’s order

to show his hands and Lopez also refused to put his hands behind his back. Another

officer handcuffed Lopez, patted him down for weapons, and removed items from his

pockets, including brass knuckles, $363 in cash, and a gold ring with a horse emblem and

a Freightliner keychain belonging to Ochoa. Lopez did not appear to be under the

influence of narcotics.
              Ochoa’s autopsy revealed he suffered three gunshots and all three bullets

transected his body, including a gunshot wound on his rear, upper right shoulder. The

bullet traveled from the back of his body to the front, right to left, and exited at the

bottom of his neck. The medical examiner found another bullet entry wound, with soot,

on the upper left side of his back. The soot meant the shot was fired from close range,

within a foot and probably within a few inches; the bullet traveled back to front, left to




                                               6
right, and slightly upwards. Another bullet pierced Ochoa’s left leg and exited the sole of

his foot.

              Ochoa suffered bruises on his face, caused by a blunt object. There were

bruises and abrasions on his arms, and bruises on his shoulders, torso, legs, and shins.

Ochoa also had a patterned injury around the bottom of his rib cage which contained

three parallel marks, caused by impact with a blunt object and consistent with Lopez’s

brass knuckles. The medical examiner concluded Ochoa’s injuries were more consistent

with a physical assault than in a vehicle crash.

              The medical examiner identified the upper body gunshot wounds as the

cause of death. Both upper body bullet strikes caused internal injuries and bleeding, one

piercing Ochoa’s right lung and the other his spleen, liver, and pancreas. A person with

such injuries could remain conscious up to a few minutes, and might be able to talk.

However, he would feel the effects immediately and would understand he was grievously

wounded.

              The police investigation showed several calls from Ochoa’s cell phone after

the crash, beginning at 11:43 p.m. and repeating every 10 or 15 minutes. Most of the

calls went to a phone in the location where Lopez was hiding, and others went to a
number with a Los Angeles area code. Detectives also recovered surveillance footage

from the CarMax location, which depicted Rodriguez removing items from his waistband

and throwing them over a wall. Officers found by the wall a Ruger nine-millimeter semi-

automatic handgun, a gun magazine, and three live rounds of nine-millimeter

ammunition. Small amounts of blood smeared the left side of the gun’s slide. The

officers also found Ochoa’s wallet on the ground where Rodriguez had attempted to

throw it over the wall.



                                              7
              Detectives recovered several bullets in or near Ochoa’s truck cab, and

forensic analysis showed they had been fired by Rodriguez’s Ruger. Detectives found in

the truck cab a bullet hole in the console; the position of the hole indicated the shot had

come from behind the driver towards the console, and another bullet strike and bullet

fragments by the gas pedal marked a shot traveling from the rear of the cab to the front.

Another shot pierced the top part of the cab to the left of the driver’s seat at a 30 to 45

degree angle. The cab was in disarray and blood stained the driver’s seat.

              When a forensic specialist collected blood speck samples and DNA swabs

from Rodriguez’s cheek, he had no visible injuries. The size of the blood specks

suggested high impact blood spatter. Lopez had a couple of scratches on the right side of

his face when he was arrested and blood on his clothing, but no injuries to account for the

blood. Lopez, Rodriguez, and Ochoa each had gunshot residue particles on their hands.

A criminalist explained at trial that about 50 percent of gunshot victims are found with

traces of gunshot residue, which may be deposited when a person fires a gun and the

victim is within 12 feet of a gun when it discharges or the victim touches a surface

containing gunshot residue.

              DNA analysis showed Rodriguez was a possible major contributor to a
swab from the right grip of the nine-millimeter handgun. There were two undetermined

minor contributors. As to the left grip of the handgun, Ochoa and Lopez were possible

major contributors and Rodriguez a possible minor contributor. Lopez was a possible

major contributor to a swab on the right side of the gun’s slide, while Ochoa was a

possible minor contributor. As for the left side of the slide, Ochoa matched the major

profile while Rodriguez was a possible minor contributor. The trigger contained a DNA

mixture from three separate individuals, but forensic analysis did not disclose who they



                                               8
were. A DNA sample from the brass knuckles came from a single source matching

Lopez, but a person struck while wearing clothing would not transfer DNA material to

the brass knuckles.

C.     Nancy Lopez’s Police Interview

              Nancy Lopez was convicted of being an accessory after the fact based on

the events that occurred on December 15, 2009, and she served 16 months in prison for

the offense.2 When Nancy denied at trial any recollection of the events, the prosecution

introduced a video recording and transcript of her interview with Ontario Police

Department Detectives Kevin Dempster and Roger Planas in February 2010.

              She told the detectives she was dating Rodriguez’s brother Eddie. On the

night of the crash, she, defendants, and another friend, Eva Aguilar (known as “Denise”)

headed in her car from Los Angeles County to Fontana to pick up a friend of hers named

Zina. Nancy drove and along the way they stopped at a gas station near the TA truck

stop. Nancy claimed she simply left Rodriguez and Lopez at the gas station when they

went to use the restroom because she was in a hurry to pick up Zina. When she returned

to pick them up, the entrance to the freeway was blocked and there were police cars

everywhere.
              Nancy blurted out in her interview, “It wasn't even supposed to be like that.

They were supposed to wait for me. I was gonna come right back.” She denied knowing

Rodriguez or Lopez had a gun. She added, “Nolan [Lopez] and Mike [Rodriguez] knew

that I’m not down with that bullshit[,] that carjacking shit [and] all that.” Nancy

explained that she did not commit such crimes because she has children. She never



       2      Because she shares the same last name as defendant Lopez, we use Nancy’s
first name for convenience to distinguish the two and intend no disrespect.

                                             9
thought Rodriguez and Lopez would put her in such a situation. She let them out of her

car, told them to use the restroom, went to pick up Zina, and came back. She did not

know what happened while she was gone.

              A detective showed Nancy a photo of Ochoa and told her he was killed

hauling grape juice. The detective continued, “You knew those guys were up to that.”

Nancy responded, “No, I didn't. But, I had a clue. That's why I left them there.” Nancy

said she told Lopez, “[D]on’t do that to me.” She also told Lopez that if they were going

to “do something else,” she was leaving. After she left, Rodriguez’s brother Eddie

telephoned her. He told her to return to the truck stop to look for Rodriguez and Lopez.

When she did, the area was blocked off. She drove around for awhile, but gave up on

finding them, and returned to Lopez’s home.

              When a detective asked Nancy, “What was [their] intentions [sic],” Nancy

noted that they did not say explicitly and the plan was to pick up Zina. She observed,

however, “By that time I knew that they wanted to do something else because they were

looking everywhere. I was like, Nolan, don’t do this to me, don’t do this to me.” Lopez

asked her, “What am I doing?” Nancy told Lopez she was not stupid. At the same time,

Rodriguez kept pointing at trailers and remarking, “Did you see that?” Nancy left
because she did not want any part of it.

              The detective asked, “What did you guys talk about . . . that caused you to

leave ‘em.” Nancy responded, “That they were going to go jack the trailer.” Rodriguez

pulled a gun out of his waistband in the backseat. Aguilar said, “Whoa,” and told him to

put it away, which he did.

              Nancy also told the detectives that Lopez directed Rodriguez to put the gun

away. Rodriguez asked Lopez, “[D]o I take it with me?” Lopez said, “'Yeah, put it



                                            10
away.” At that point, Nancy left the two of them at the truck stop and went to pick up

Zina. She did not intend to go back, but changed her mind when she received a call from

Eddie.

              Nancy further explained that after she learned of the gun, she ordered

defendants out of the car. When Lopez asked her to wait, she refused and left. When

asked her what kind of trucks defendants were talking about while they were in the car,

Nancy explained they merely said they were “gonna come up big.” They walked away

when she dropped them off at the truck stop. After she left, Eddie called her to tell her

something happened, gave her Ochoa’s cell phone number with a 559 area code, and

directed her to pick up Rodriguez and Lopez. Nancy tried the number several times but

there was no answer. She returned to the area, saw a truck flipped over, and suspected

defendants were involved. She called Eddie back, who told her to keep looking for

defendants. She, Aguilar, and Zina looked for defendants until around 1:00 a.m., when

she refused Eddie’s order to continue looking.

              Nancy also explained she became worried when she exited the freeway for

gas, but found only a truck stop because she “knew what kind [of] intentions they had.”

Once she realized what was going on, she wanted to leave them there and play no part in
whatever they were going to do. When she bought a hot dog at the truck stop, Lopez

said, “You're gonna be eating better than this.” She cried as she pumped gas, begging

Lopez to tell her what he was going to do. Lopez said she should not worry, he would be

good. Rodriguez and Lopez departed, with Lopez saying to her, “Go your way and I’ll

go my way.” Lopez added that they would meet back up at his house. He told her that if

anyone asked, she should say she dropped him off at the restroom and left. Nancy told




                                            11
Lopez to get back in the car so they could pick up Zina, but Lopez responded, “No, I

need to do this.”

D.     Defense Case

              Rodriguez testified that on December 15, 2009, he, Nancy, and Aguilar

celebrated Lopez’s birthday at Lopez’s house, using methamphetamine and drinking

alcohol. They drove to Fontana to pick up Zina, a stripper. Rodriguez sat in the back

seat of Nancy’s car with Aguilar, and when he and Aguilar argued, he “jumped out of the

car,” and Lopez followed him.

              They tried to hitchhike after the two women drove away, and when Ochoa

stopped his truck and rolled down his window, Lopez told Ochoa they were stranded.

Lopez asked Ochoa for a ride to his (Lopez’s) brother’s house in La Puente and offered to

pay for the ride. Ochoa agreed and accepted the money Lopez handed him.

              Lopez and Ochoa discussed trucks, and then Ochoa let Lopez drive while

Rodriguez sat in the front passenger seat and Ochoa rode in the back of the cab. As

Lopez entered the freeway, Ochoa exclaimed, "Hey, where are you guys going? Fontana

is the other way.” But Rodriguez laughed and explained, “We’re not going to Fontana.”

Ochoa nevertheless ordered Lopez to pull over. When Lopez protested, “Are you
serious? I just paid you,” Ochoa pulled out a gun, pointed it at the back of Lopez’s head,

and said, “[S]top the truck.” Rodriguez unbuckled his seat belt and tried to get the gun

away from Ochoa, hitting Ochoa in the face and biting his wrist. Rodriguez and Ochoa

grappled in the bunk area of the truck, where Rodriguez struggled for the gun, which

discharged at least once before Rodriguez secured it. When Ochoa reached for a stick,

Rodriguez thought it was another gun so he started firing. The truck crashed and

Rodriguez fell to the floor, where he saw Ochoa’s cell phone, which he took because he



                                            12
was stranded and needed to call someone for a ride. He exited the truck through the

driver’s side window, climbed up the culvert, went to the CarMax, jumped over a wall,

and ran through the parking lot, throwing the gun and the magazine over the wall. He ran

because he was scared, he did not want to go to jail, and he had previous bad experiences

with law enforcement.

              Lopez also testified. He explained that on December 15, he, Rodriguez,

Aguilar, and Nancy had been drinking and using methamphetamine when they went in

Nancy’s car to pick up Zina. Lopez took a pair of brass knuckles with him because when

he first met Zina, she was with a “big guy” who was either her boyfriend or her pimp. As

they drove on Interstate 10, Lopez sat in front with Nancy, drinking beer, listening to

music, and talking to Zina on the phone.

              Lopez handed the phone to Rodriguez, which caused an argument between

Rodriguez and Aguilar. Nancy needed gas, so they pulled off, pumped the gas, and

returned to the car, but Rodriguez and Aguilar were still arguing. Nancy told Rodriguez,

“Get the fuck out of my car,” so Rodriguez exited the vehicle. Lopez also exited to

attempt to calm Rodriguez down. Nancy drove up, declared she did not want Rodriguez

back in the car, ignored Lopez’s entreaties to change her mind, and drove away.
              When Lopez and Rodriguez started hitchhiking, they spotted Ochoa parked

outside the truck stop, sitting in his truck doing paperwork. Ochoa initially rejected their

request for a ride because he was done driving for the night, but when they explained

their predicament and offered to pay him $60, Ochoa agreed. Lopez explained he

previously had driven trucks and Ochoa agreed to let him drive to La Puente when Lopez

showed Ochoa his driver’s license.




                                             13
              Ochoa ordered Lopez to drive on an access road to test his driving skills

before entering the freeway. Lopez complied, but when he turned onto the freeway,

Ochoa screamed, “Where are you going?” Lopez followed Ochoa’s directive to pull over

and park the truck, but Ochoa still struck him on the head with an object. Lopez saw that

Ochoa held a gun, and Rodriguez grabbed for the weapon, but a shot discharged and

Lopez veered sharply to the right, sending the truck into the culvert.

              After the crash, Lopez grabbed Ochoa’s wallet, thinking it was his, and

exited the truck through the driver’s side window. He also mistakenly picked up Ochoa’s

gold ring with the horse emblem at this time. Hearing police sirens, he panicked, ran, and

hid in some bushes, where he fell asleep until the police dog bit his leg.

E.     Prosecution rebuttal case

              The medical examiner testified Ochoa had no bite wounds anywhere on his

body. He also diagrammed from the entry and exit wounds on Ochoa’s body the

trajectory of the fatal shots, and explained the sequence of events described by defendants

was not possible.

              Detective Gary Naranjo of the Ontario Police Department testified that

when he monitored an interview with defendants at the police station, he obtained a press
release about the case. He modified the press release by placing some signature lines on

it, writing the word “shooter” below Rodriguez’s name, and writing the word

“accomplice” below Lopez’s name. He also added, “do not release info.” and “do not

give video to press.” Finally, he added “approved by” and his signature.

              Naranjo gave the press release to Sergeant David McBride, a press

information officer, who entered the interview room and told defendants he was with the
media department. He explained he would leave the press release for them to read over,



                                             14
ensure it was correct, and sign it. When McBride left the room, the police recorded the

following conversation: “Rodriguez: 52? When did you become 52? Oh — shit. We

offed the old guy. You know we’re all washed up right? [¶] Lopez: We’re what? [¶]

Rodriguez: We’re all washed up. [¶] Lopez: [Inaudible] nothing. [¶] Rodriguez: I

didn’t tell them shit. [¶] Lopez: I didn't tell them shit either. They came up with their

own. I told them I wanted a lawyer.”

                                              II

                                       DISCUSSION

A.     The Trial Court Did Not Err in Concluding Zina Was Not a Material Witness
       and Therefore Her Personal Contact Information Need Not Be Disclosed
              Rodriguez and Lopez contend the trial court erred in denying his pretrial

motion to compel the prosecutor to disclose Zina’s full identity and contact information,

arguing she was a material witness to his alleged offenses. The issue arose when

Rodriguez’s trial counsel questioned Ontario Police Detective Roger Planas about Zina,

but the detective asserted a privilege under Evidence Code section 1040 et seq.

Rodriguez viewed Zina as a police informant subject to disclosure because Planas

interviewed her about the case.

              Evidence Code section 1041 provides that a law enforcement officer may

decline to disclose the identity of an informant if it “is against the public interest because

a necessity for preserving the confidentiality of his or her identity outweighs the necessity
for disclosure in the interest of justice.” (Evid. Code, § 1041, subd. (a)(2).)

              In pertinent part, Evidence Code section 1042, subdivision (d), provides:

“When, in any . . . criminal proceeding, a party demands disclosure of the identity of the
informant on the ground the informant is a material witness on the issue of guilt, the court

shall conduct a hearing at which all parties may present evidence on the issue of


                                              15
disclosure. . . . During the hearing, if the privilege provided for in [Evidence Code]

Section 1041 is claimed by a person authorized to do so . . . , the prosecuting attorney

may request that the court hold an in camera hearing. If such request is made, the court

shall hold such a hearing outside the presence of the defendant and his counsel.” (Italics

added.)

              The in camera hearing must be conducted with a reporter present, and the

trial court must seal the transcript. (Evid. Code, § 1042, subd. (d).) Following the

hearing, “[t]he court shall not order disclosure, nor strike the testimony of the witness

who invokes the privilege, nor dismiss the criminal proceeding, if the party offering the

witness refuses to disclose the identity of the informant, unless, based upon the evidence

presented at the hearing held in the presence of the defendant and his counsel and the

evidence presented at the in camera hearing, the court concludes that there is a reasonable

possibility that nondisclosure might deprive the defendant of a fair trial.” (Ibid.)

              “An informant is a material witness if there appears, from the evidence

presented, a reasonable possibility that he or she could give evidence on the issue of guilt

that might exonerate the defendant.” (People v. Lawley (2002) 27 Cal.4th 102, 159.)

“‘The defendant must show that the informant was in a position to perceive ‘“the
commission or the immediate antecedents of the alleged crime.” [Citation.]’” (Davis v.

Superior Court (2010) 186 Cal.App.4th 1272, 1276-1277 (Davis).) Disclosure is not

necessarily required even if the informant was a percipient witness. “Rather, disclosure

occurs only if the defendant makes an adequate showing that the informant can give

exculpatory evidence.” (Id. at p. 1277.) We review a trial court’s nondisclosure ruling

for abuse of discretion. (Ibid.)




                                             16
              Here, Rodriguez and Lopez request that we review the in camera hearing,

and the Attorney General does not oppose the request. Defendants suggest Zina may

have been a material witness harboring information that could cast the case in a different

light sufficient to undermine confidence in the verdict (Kyles v. Whitley (1995) 514 U.S.

419, 432), including the credibility of key witnesses. (People v. Ruthford (1975)

14 Cal.3d 399, 406, overruled on other grounds in In re Sassounian (1995) 9 Cal.4th 535,

545, fn. 6.) Rodriguez suggests Zina “could have some knowledge about the events”

preceding or following the shooting, including “evidence which could have supported

Rodriguez’s argument that Nancy was an accomplice.” He argues, “It is hard to believe

that Nancy did not discuss in detail in Zina’s presence the events at the truck stop or en

route to Ontario.”

              But it is not enough that Nancy may have discussed the events with Zina, as

that would transform any person with whom Nancy spoke at any time into a material

witness, regardless of what was said, even if that person had nothing to do with the

alleged offense. In any event, nothing in the in camera transcript supports Rodriguez’s

unfounded suppositions. The district attorney reviewed with Planas his recollection of

his interview with Zina, and the trial court cross-examined Planas. Nothing in the
transcript suggests Zina told Planas anything different about the events of the evening

than Nancy told the detectives, or that Zina suggested Nancy was an unreliable witness

because she was under the influence of alcohol or drugs. Nor does the transcript show

that Nancy told Zina anything about her conversations with Rodriguez and Lopez,

whether they possessed a gun, or what their intentions were that evening.

              And nothing in the record suggests Zina had any independent knowledge

that would make her a material witness. She admitted she viewed the truck stop and saw



                                             17
Ochoa’s overturned trailer when she accompanied Nancy to the scene, but that was well

after the offense. Nothing suggests Zina had any meaningful personal knowledge of the

offense or the events leading up to it. The defendant’s showing “must rise above the

level of sheer or unreasonable speculation” (Davis, supra, 186 Cal.App.4th at p. 1276),

but here nothing demonstrates the trial court erred in concluding Zina was not a material

witness, and therefore the court did not abuse its discretion in declining to order full

disclosure of her identity.

B.     No Error in Admitting Victim’s Last Words as a Dying Declaration or
       Spontaneous Utterance
              Rodriguez and Lopez argue the trial court erred by granting the

prosecutor’s pretrial motion to admit under a hearsay exception the testimony of two

bystanders concerning Ochoa’s last words at the accident scene. (See Evid. Code,

§ 1200, subd. (b) [“Except as provided by law, hearsay evidence is inadmissible”].) After

Ochoa crawled out of the ditch in which his truck had crashed, and stumbled up to the

road and under the Lamberts’ trailer, Connie Lambert came to his aid and noticed he was

covered in blood and had a gunshot wound in his upper chest. Ochoa told her he had

been robbed. Similarly, Mario Miranda also stopped his truck to see if he could assist at

the scene, where he found Ochoa in agonizing pain and “poor shape,” responding briefly

in Spanish when Miranda asked him what happened, “Mi robaton, mi tiraron valasos,”

meaning in English, “I got robbed and I was shot.” Rodriguez insists these statements

fail to qualify under exceptions to the hearsay rule as a dying declaration or a

spontaneous utterance. As we explain, the trial court did not err in admitting these

statements.
              The Evidence Code sets forth an exception for dying declarations as

follows: “Evidence of a statement made by a dying person respecting the cause and


                                             18
circumstances of his death is not made inadmissible by the hearsay rule if the statement

was made upon his personal knowledge and under a sense of immediately impending

death.” (Evid. Code, § 1242.) “‘Th[e] sense of impending death may be shown in any

satisfactory mode, by the express language of the declarant, or be inspired from his

evident danger, or the opinions of medical or other attendants stated to him, or from his

conduct, or other circumstances in the case, all of which are resorted to in order to

ascertain the state of the declarant’s mind.’” (People v. Tahl (1967) 65 Cal.2d 719, 725.)

               Spontaneous statements similarly may be admitted under Evidence Code

section 1204, which provides: “Evidence of a statement is not made inadmissible by the

hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act,

condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously

while the declarant was under the stress of excitement caused by such perception.”

Spontaneous declarations are excepted from the hearsay rule because the stress of

exciting events stills the declarant’s ability to reflect and deliberate, thereby lending

trustworthiness to the declarant’s comments. (People v. Saracoglu (2007)

152 Cal.App.4th 1584, 1588.) We review a trial court’s decision to admit a statement as

a dying declaration or a spontaneous utterance for abuse of discretion. (People v. Mayo
(2006) 140 Cal.App.4th 535, 553 (Mayo); People v. Ramirez (2006) 143 Cal.App.4th

1512, 1523.)

               Rodriguez argues that “[n]othing in the evidence suggests Ochoa believed

that he was in danger of ‘immediate death.’ Merely being wounded in the abdominal

cavity does not, as a matter of law, establish loss of all hope.” According to Rodriguez,

no evidence shows Ochoa’s mental state when he uttered the words attributed to him, let

alone any suggestion he knew he faced death. Instead, Rodriguez surmises from



                                              19
Lambert’s nearby 911 call that Ochoa knew paramedics were on their way, and

Rodriguez reasons that because Ochoa “was still conscious and coherent” when they

arrived, nothing indicated Ochoa believed he was near death when he earlier made his

statements to Lambert and Miranda. He similarly argues that after the altercation and

crash leading to his injuries, Ochoa had “become calm enough to understand” and answer

Lambert and Miranda “coherently,” so his statements therefore could not qualify as

spontaneous or excited utterances.

              The victim, however, need not overtly state a fear of impending death,

which the trial court may infer from the circumstances. (Mayo, supra, 140 Cal.App.4th

at p. 553.) Here, Ochoa was grievously wounded when Lambert and Miranda found him

in agonizing pain, covered in blood, and suffering from three gunshot wounds, two of

which proved fatal. (See People v. Monterroso (2004) 34 Cal.4th 743, 763 [wound “‘of

a great magnitude and dangerous in itself’” may prompt thoughts of death].) Another

bystander had been unable to understand anything Ochoa said. While the paramedics

arrived quickly and loaded Ochoa into an ambulance, he became unresponsive within

10 minutes on the way to the hospital, requiring chest compressions, and he died within

an hour of what appear to have been his final words to Lambert and Miranda. The fact
Ochoa spoke his last words coherently does not indicate he was calm and composed, as

Rodriguez infers; to the contrary, several witnesses at the scene described him in a state

of shock. Based on the foregoing, the trial court reasonably could infer Ochoa knew he

was grievously wounded and therefore admit Ochoa’s statements as a dying declaration

or spontaneous utterance; there was no error.




                                            20
C.     References to Other Possible Carjackings

              Rodriguez and Lopez each challenge the trial court’s pretrial ruling

authorizing the admission of statements Nancy made in her interview with the police

suggesting Rodriguez and Lopez previously committed carjacking offenses. The

statements occurred in several short exchanges between Nancy and the detectives

reflected in the interview transcript, which fills more than 100 pages in the record. At

trial, once Nancy claimed she did not recall any details of the events on the date of the

offense or her statements to the detectives, the trial court allowed the prosecutor to play

the video recording of her interview with the detectives.

              Over defendants’ objection, the trial court concluded Nancy’s references in

the interview to possible prior carjackings were admissible under Evidence Code

section 1250 to show Nancy’s state of mind, which in turn explained her conduct.

Specifically, the statements were admissible to explain in part why Nancy believed

Rodriguez and Lopez were going to commit a carjacking or similar offense at the truck

stop, and therefore required them to exit her car because she did not want to be part of the

offense. The trial court observed the references in Nancy’s statement were brief, and

declined the defense request to exclude the tape or redact the references.
              Defendants contend the purported prior instances Nancy alluded to in her

interview were not, as the prosecutor argued, sufficiently similar to the charged offense

for admission as evidence of motive, lack of mistake, or a common plan or scheme (Evid.

Code, § 1101, subd. (b)). None involved a large semi-trailer truck and Nancy disclaimed

any knowledge of how defendants committed the alleged prior carjackings. But

defendants also claim Nancy’s references to their supposed prior offenses were

particularly prejudicial and inadmissible as propensity evidence (Evid. Code, § 1101,



                                             21
subd. (a)) because of the similarity between carjackings and the alleged truckjacking.

Although defendants’ argument is thus somewhat inconsistent, the inconsistency does not

factor in our conclusion. As we explain, the trial court erred in admitting the carjacking

allusions under Evidence Code section 1250 without a limiting instruction that the jury

was only to consider the alleged prior instances in assessing Nancy’s state of mind and

not for their truth. But precisely because the jury was entitled to consider that Nancy’s

state of mind included her belief Rodriguez and Lopez intended to commit a carjacking

or similar offense, and in view of the other overwhelming evidence of their guilt, the

error in failing to include a limiting instruction was harmless.

       1.     Statements

              Nancy’s statements concerning carjacking in her colloquy with the

detectives included the following: “[Q]: You made a comment earlier [] you don’t get

involved in carjacking. [¶] [A]: Uh-huh. [¶] I mean, you know these guys have done it

before. [¶] [A]: I don’t know that for a fact but I – [¶] [Q]: Yeah, you do know it for a

fact because you said it not five minutes ago. Cuz that’s what got, I mean, if the guys are

sitting in a parking lot looking around and you’re not gonna know what they’re doing but

you knew that they had jacked trucks before, right? [¶] [A]: Not trucks but cars. [¶]
[Q]: Cars? [¶] [A]: Anything – I don’t know.”

              Later, “[Q]: And you’re starting to think – because you know that these

guys have jacked cars before, jacked trucks before, right? [¶] [A]: M-hm. [¶]

[Q]: How many times . . . before have they done that? [¶] [A]: I don’t know. Exactly, I

don’t know. [¶] [Q]: That’s the information we’re getting to[o]. [¶] [A]: Hm? [¶]

[Q]: This is not the first time that these guys have done this. [¶] [A]: Uh-huh. [¶] [Q]:




                                             22
And you that too, right? That’s why you got worried. [¶] [A]: Well yeah, because I

knew what kind [of] intentions they had.”

              Similarly, “[Q]: You . . . know they had jacked semis before because you

got worried when you got off the freeway and you saw the truck stop. [¶] [A]: Because

they said they were going to come up big. I never knew . . . they had ever jacked a truck

before. . . . [¶] [Q]: How many other times have they done this? [¶] [A]: That’s the

first that I know of — [¶] [Q]: That’s not what you told me earlier. [¶] [A]: That’s the

first that I know that they carjacked a big one like that. [¶] [Q]: But you told me they

have, they carjacked car[s] before? [¶] [A]: Probably. [¶] [Q]: Probably? [¶]

[A]: Yeah, they have. [¶] [Q]: When did those happen? [¶] [A]: Like they would

always talk about it. Just that that’s it, that’s how they come up. That’s it. [¶] [Q]:

How many other times? . . . [¶] [A]: They just talk about it that they [sic] done it. [¶]

[Q]: How many times? [¶] [A]: They never said how many times. They just say

remember this, remember that and that’s it. [¶] [Q]: What do you mean . . . ? [¶]

[A]: Like they would talk amongst themselves and they would say remember this and

remember that like remember when we got this and remember when we got that one. [¶]

[Q]: When we got what, I mean? [¶] [A]: The cars — stupid little cars. . . . Oh
remember when we just got a backpack full of CD’s and that’s it, stuff like that. . . . [¶]

[Q]: How many other trucks have they jacked? [¶] [A]: That I know of, none. I didn’t

even know they knew how to drive a truck.”

              Toward the end of the interview, the issue came up again: “[Q]: We were

talking about those other cars that they jacked – what did they do with those cars? [¶]

[A]: I don’t know I never [sic] seen them in another car . . . . [¶] [Q]: But the

carjacking[s] that you talked about were — [¶] [A]: I said they just talk about it, I never



                                             23
[sic] seen them do any of that. [¶] [Q]: Well they had to have told you hey we jacked

this guy for this amount, and we followed him to his pad, and — [¶] [A]: No, not like

that. I guess they would just get the cars off the street and that’s it. They wouldn’t point

no gun at nobody and stuff like that. [¶] [Q]: So they were just stealing off the street

. . . . Or were they jacking the people driving the cars? [¶] [A]: . . . stealing cars off the

street.”

              These statements about earlier carjackings Rodriguez and Lopez may have

committed did not themselves amount to descriptions of Nancy’s state of mind at the

truck stop, but they informed Nancy’s belief defendants seemed to be intent on

committing a crime to “come up” with significant robbery proceeds. Near the beginning

of her police interview, Nancy blurted out, “Nolan and Mike knew that I'm not down with

that bullshit that carjacking and all that.” She added that she never thought defendants

would involve her in this situation. She said she “had a clue” about their plans, so she

left them at the truck stop. She pleaded with Lopez, “Don’t do this to me.” She said she

“did not want anything to do with it” and if they were “going to do something else,” she

was leaving. Once she realized what was happening, she wanted to leave defendants and

have no part in their plans. Lopez told her, “I need to do this.”

       2.     Governing Law and Analysis

              In pertinent part, Evidence Code section 1250 provides: “[E]vidence of a

statement of the declarant’s then existing state of mind, emotion, or physical sensation

(including a statement of intent, plan, motive, design, mental feeling, pain, or bodily

health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is

offered to prove the declarant’s state of mind, emotion, or physical sensation at that time
or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is



                                              24
offered to prove or explain acts or conduct of the declarant.” Ordinarily, statements

admitted under Evidence Code section 1250 are received without limitation, subject only

to section 352.3 (People v. Ortiz (1995) 38 Cal.App.4th 377, 389 (Ortiz).)

              But a different analysis is required when the statements are used to infer the

declarant’s state of mind. As explained in Ortiz, supra, 38 Cal.App.4th at page 389, “[A]

statement which does not directly declare a mental state, but is merely circumstantial

evidence of that state of mind, is not hearsay. It is not received for the truth of the matter

stated, but rather whether the statement is true or not, the fact such statement was made is

relevant to a determination of the declarant’s state of mind.” The trial court must provide

the jury with a limiting instruction because “the declaration is not received for the truth of

the matter stated and can only be used for the limited purpose for which it is offered.”

(Ibid.)

              A proper limiting instruction would have explained to the jury that while

Nancy’s statements reflected her belief Rodriguez and Lopez may have committed past

carjackings, could be considered as a basis4 for her state of mind at the truck stop –

namely, that she believed they intended to commit a carjacking or similar offense – those

statements were not admitted for the jury to determine their truth or falsity, but only to
understand Nancy’s mental state and decision to leave the defendants behind. By


          3   Evidence Code section 352 provides: “The court in its discretion may
exclude evidence if its probative value is substantially outweighed by the probability that
its admission will (a) necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of misleading the jury.”

          4   Other grounds for Nancy’s belief at the time included her circumstantial
knowledge Rodriguez had armed himself and displayed a gun in the backseat of her car,
defendants’ actions in apparently surveying potential carjacking targets, their statement
they “were gonna come up big,” and Lopez’s response, “I need to do this,” when Nancy
pleaded to the contrary, “Don’t do this to me.”

                                              25
explaining the statements were not admitted for the truth of the matter asserted, such a

limiting instruction would have had the additional benefit of resolving defendants’

objection the statements amounted to improper propensity evidence. (Evid. Code,

§ 1101, subd. (a).) Nevertheless, it is not reasonably probable that omitting the limiting

instruction affected the outcome of the trial, and the error was therefore harmless. (See

People v. Carrillo (2004) 119 Cal.App.4th 94, 103 [judgment reversed only if the

defendant would have obtained a more favorable result absent the evidentiary error].)

              We are confident the lack of a limiting instruction did not change the trial

outcome for several reasons. As noted, Nancy’s knowledge defendants may have

committed other carjackings was not the only basis for her belief they intended to commit

a crime at the truck stop; rather, she knew they had a gun and their words and actions in

her presence suggested they were plotting a robbery. Additionally, her statements about

their supposed prior activities were equivocal. The detectives repeatedly characterized

Rodriguez and Lopez as experienced carjackers, but Nancy suggested the truth was much

less ominous. Instead, when the duo bragged in her presence, “remember when we got

this and when we got that one,” they were merely recalling petty thefts from parked

vehicles. As Nancy summarized: “The cars – stupid little cars. Oh remember we just
got a backpack full of CD’s and that’s it, stuff like that.” Nancy’s recollection was

consistent with defendants’ criminal history; Rodriguez had been convicted of auto theft,

not carjacking, and Lopez’s record included misdemeanor firearm possession. When the

detectives pressed their carjacking characterization, Nancy responded, “No, not like that.

I guess they would just get the cars off the street and that’s it. They wouldn’t point no

gun at nobody and stuff like that.”




                                             26
              In any event, the evidence of defendants’ guilt was overwhelming. The

jury was entitled to consider Nancy believed Rodriguez and Lopez intended to commit a

robbery, Ochoa stated he was robbed, defendants were apprehended at the scene with

Ochoa’s belongings, and the forensic evidence established defendants’ self-defense claim

was an impossible lie. Defendants’ bid for reversal therefore fails.

D.     The Trial Court Properly Denied Lopez’s Motion to Dismiss the Gang Allegations

              Lopez argues the trial court erred in denying his pretrial motion under

section 995 to dismiss the gang-related penalty enhancement allegations under

section 186.22, subdivision (b), which he asserts extended to the gang special

circumstance allegation in section 190.2, subdivision (a)(22). Lopez did not challenge

the special circumstances allegation in his motion, but insists its dismissal necessarily

was required along with the enhancement allegations for lack of evidence. Lopez sought

writ relief for the trial court’s denial of his motion, which Division Two summarily

denied, and as we explain he fares no better on appeal.

              The gang enhancement requires the prosecutor to prove: ( 1) the crime was

committed for the benefit of, at the direction of, or in association with any criminal street

gang; and (2) the crime was committed with the specific intent to promote, further, or
assist in any criminal conduct by gang members. (§ 186.22, subd. (b)(1)(A); People v.

Villalobos (2006) 145 Cal.App.4th 310, 322.) The gang murder special circumstance

similarly has two elements: (1) the defendant was an active participant in the gang when

he committed the crime; and (2) the crime was carried out to further the activities of the

gang. (People v. Carr (2010) 190 Cal.App.4th 475, 486.) A defendant actively

participates in a criminal street gang when he or she: ( a) was more than a nominal
member of the gang, (b) knew its members engage in or have engaged in a pattern of



                                             27
criminal gang activity, and (c) willfully promoted, furthered, or assisted in felonious

criminal conduct by members of that gang. (People v. Lamas (2007) 42 Cal.4th 516,

524.)

              “A defendant may utilize section 995 to strike invalid enhancement

allegations.” (Hale v. Superior Court (2014) 225 Cal.App.4th 268, 271.) The standard of

review on appeal is abuse of discretion, and the reviewing court therefore must “consider

the evidence in the light most favorable to the ruling and draw all reasonable inferences

in favor of the lower court’s decision.” (Ibid.) The issue in a set aside motion is whether

the defendant has “been committed without reasonable or probable cause.” (§ 995,

subd. (a)(2)(B).) There must be merely “some” evidence from which each element of the

charged offense can be inferred. (Williams v. Superior Court (1969) 71 Cal.2d 1144,

1148; Rideout v. Superior Court (1967) 67 Cal.2d 471, 474; Salazar v. Superior Court

(2000) 83 Cal.App.4th 840, 842.) “Thus, an . . . information should be set aside only

when there is a total absence of evidence to support a necessary element of the offense

charged. [Citations.]” (People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217,

1226.)

               Lopez correctly notes a defendant may not complain on appeal that the
trial court erred in failing to grant a a section 995 pretrial motion to dismiss unless the

defendant shows he was deprived of a fair trial or otherwise suffered prejudice as a result.

(People v. Millwee (1998) 18 Cal.4th 96, 121; People v. Arjon (2004) 119 Cal.App.4th

185, 192.) Lopez contends the trial court’s erroneous denial of his 995 motion to dismiss

the gang enhancements “opened the door to admission of extremely prejudicial testimony

linking Lopez to criminal conduct Camarillo testified was the hallmark of Florencia 13.”

Because the jury found the gang special-circumstance allegation and the gang



                                              28
enhancements not true, it is doubtful the defendants suffered prejudice from the alleged

erroneous denial of their 995 motions. True, gang evidence poses a substantial risk of

undue prejudice, but the jurors here evidently weighted the evidence dispassionately, as

demonstrated by their rejection of the gang allegations. We need not determine whether

defendants were prejudiced, however, because the trial court did not err in denying the

995 motions. Here, there was ample evidence in the form of express admissions, a body

tattoo, and possession of gang paraphernalia that Rodriguez was an active Florencia 13

gang member. A gang expert specializing in the Florencia 13 gang, Detective Dean

Camarillo, explained the gang’s pertinent primary activities included street robberies,

assault with a dangerous weapon, murder and manslaughter, and that a Florencia 13

member would not typically commit a crime of the current offense’s magnitude without

someone closely associated with the gang. He also explained a unique tractor-trailer

truck jacking would benefit Florencia 13 in myriad ways, including enhancing its

reputation for violence. The prosecution’s gang experts also noted gang members often

divulge their criminal exploits to burnish their reputation, just as Nancy’s police

interview highlighted Rodriguez’s and Lopez’s habit of openly discussing their past and

present criminal endeavors.
              This evidence exceeded the modicum necessary to support the gang

allegations and special circumstance. Specifically, the trial court reasonably could infer

from the foregoing evidence that Lopez knew Florencia 13 engaged in a pattern of

criminal gang activity and he participated in the gang in more than a nominal manner,

including his participation in the present offense, which the trial court reasonably could

conclude amounted to willfully promoting, furthering, or assisting in felonious criminal

conduct by members of the gang and similarly reflected an intent to promote, further, or



                                             29
assist in that same criminal conduct either in implicit association with Florencia 13 or in a

manner that would benefit the gang. Consequently, probable cause supported the gang

charges and the trial court did not abuse its discretion in rejecting Lopez’s set aside

motion.

E.     Accomplice Instructions

              Rodriguez contends the trial court erred in failing to instruct the jury on the

special circumstances allegations that Nancy was an accomplice as a matter of law. The

trial court instead left that determination to the jury. (CALCRIM No. 707, Special

Circumstances: Accomplice Testimony Must Be Corroborated — Dispute Whether

Witness Is Accomplice.) Lopez adds that the trial court should have given the jury an

accomplice instruction requiring corroboration of Nancy’s statements for all the charged

offenses, not just the special circumstances allegations. (See CALCRIM No. 334,

Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is

Accomplice.) Rodriguez argues there is a due process component to both of these

contentions because of a defendant’s “constitutional right to have the jury determine

every material issue presented by the evidence, to resolve disputed factual issues, to

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”
              Notably, Rodriguez’s claim based on an asserted constitutional right for

juror determination of all issues seems to conflict with his claim the trial court was

required to direct the jury that Nancy was an accomplice as a matter of law. In any event,

Rodriguez also argues California law requiring at least “slight” corroboration of

accomplice testimony for special circumstance findings violates the beyond a reasonable

doubt standard required in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) for
jury determination of any fact necessary for conviction and increased punishment. As we



                                             30
explain, defendants’ contentions concerning accomplice testimony fail to persuade us

reversal is necessary.

              First, the trial court was not required to instruct the jury that Nancy was an

accomplice as a matter of law. An accomplice is “one who is liable to prosecution for the

identical offense charged against the defendant on trial in the cause in which the

testimony of the accomplice is given.” (§ 1111.) Section 1111 further provides: “A

conviction cannot be had upon the testimony of an accomplice unless it be corroborated

by such other evidence as shall tend to connect the defendant with the commission of the

offense . . . .” An accomplice must “act with knowledge of [the] defendant’s criminal

purpose and with the intent to encourage or facilitate the commission of the offense.”

(People v. Carrington (2009) 47 Cal.4th 145, 191 (Carrington).) Whether a person is an

accomplice is ordinarily a question of fact unless the circumstances of the offense

indisputably show accomplice liability as the only possible conclusion. (Ibid.; People v.

Sully (1991) 53 Cal.3d 1195, 1227-1228.)

              Here, Nancy admitted in her testimony she was convicted as an accessory

after the fact (§ 32) for returning to the truck stop to give Rodriguez and Lopez a ride.

An accessory is not liable to prosecution for the identical offense and therefore is not an
accomplice. (People v. Fauber (1992) 2 Cal.4th 792, 833-834.) Rodriguez relies on the

rule that a getaway driver is an accomplice rather than an accessory if he or she forms the

intent to aid a robbery before the perpetrator reaches a place of temporary safety. (People

v. Cooper (1991) 53 Cal.3d 1158, 1169-1170.) But Nancy explained in her police

statement she wanted no part of defendants’ potential criminal activity and that she did

not know whether they had committed an offense when she returned to the scene at

Eddie’s direction. The jury therefore reasonably could conclude she did not share the



                                             31
requisite intent to be deemed an accomplice at the outset, nor the knowledge an offense

had been committed as necessary to be considered a getaway driver. (See Carrington,

supra, 47 Cal.4th at p. 191 [issue properly submitted to jury where witness may not have

shared jail escapee’s intent]; People v. Tewksbury (1976) 15 Cal.3d 953, 961-962 [same,

where jury could infer witness acted without guilty knowledge or intent].) Consequently,

the trial court did not err in permitting the jury to decide whether Nancy was an

accomplice instead of resolving the question as a matter of law.

              Second, the omission of accomplice instructions concerning the underlying

charges was harmless. The trial court instructed the jury to determine whether Nancy

was an accomplice and that accomplice corroboration was required for the special

circumstances allegations of murder in the course of a carjacking or robbery, and for the

special circumstance of gang-related murder, but not on the underlying offenses of

murder, carjacking, robbery, or Rodriguez’s gun possession charge. Nothing supports

this inexplicable omission, but it had no impact on the trial outcome since the special-

circumstances allegations the jury found to be true (murder in the course of carjacking

and robbery) included the underlying offenses, apart from Rodriguez’s gun possession.

              Moreover, where evidence corroborates an accomplice’s testimony, any
error in failing to give accomplice instructions is harmless. (People v. Miranda (1987)

44 Cal.3d 57, 100, overruled on another ground in People v. Marshall (1990) 50 Cal.3d

907, 933, fn. 4.) Here, Ochoa’s dying statements and the forensic evidence each amply

and independently corroborated the suggestion in Nancy’s police statement that

Rodriguez and Lopez intended to commit a robbery or carjacking, and thus did not kill

Ochoa in self-defense as they claimed. The video showing Rodriguez tossing an item the




                                            32
jury could infer was a handgun also corroborated Nancy’s statement he possessed a

handgun.

              Third, there was no due process violation in the trial court’s failure to

provide accomplice instructions on the underlying charges or in submitting the

accomplice question to the jury on the special circumstances allegation instead of

directing the jury to deem Nancy an accomplice as a matter of law. Simply put, there is

no federal due process right to accomplice instructions. Section 1111 is an independent

state law requiring corroboration of accomplice testimony; it is “not constitutionally

based.” (In re Mitchell P. (1978) 22 Cal.3d 946, 949 (Mitchell P.).) “Federal courts have

rejected the rule, holding a ‘conviction may be based on the uncorroborated testimony of

an accomplice . . . .’ [Citations.]” (Ibid.; accord, e.g., United States v. Lopez (9th Cir.

1986) 803 F.2d 969, 973.)

              Similarly, there can be no conceivable Apprendi violation in the state law

rule, as reflected in CALCRIM No. 707, that the evidence corroborating an accomplice’s

statements “may be slight,” nor that the corroborating evidence “does not need to be

enough, by itself, to prove that the defendant committed [the charged offenses], and it

does not need to support every fact (mentioned by the witness in the statement/ [or] about
which the witness testified).” (CALCRIM No. 707.) The state law requirement of

accomplice corroboration does not dilute the reasonable doubt standard of proof; to the

contrary, it adds a further requirement absent from federal law. (Mitchell P., supra,

22 Cal.3d at p. 949.) Similarly, the trial court’s submission of the accomplice question to

the jury instead of deciding it as a matter of law cannot reasonably be said to infringe

Apprendi, since that decision required juries instead of judges to decide facts affecting the

quantum of punishment. Defendants’ federal claims are thus wholly without merit.



                                              33
F.     Conspiracy Is a Valid Theory of Criminal Liability

              Lopez contends the trial court erred by instructing the jury a conspirator

may be liable for the completed offense or offenses that formed the object of an

uncharged conspiracy (CALCRIM Nos. 416 & 417). He also argues the court erred by

instructing the jury a defendant may be found guilty of felony murder not only on

alternate theories of perpetrating or aiding and abetting a murder, but also for conspiring

to commit robbery or a carjacking where a natural and probable consequence of the

offense is murder (CALCRIM No. 540B). Lopez recognizes conspiracy as a substantive

offense (§ 182), but insists “[i]t is improper to instruct a jury on uncharged conspiracy as

a theory of criminal liability.”

              According to Lopez, the trial court erred in identifying conspiracy as a

basis of liability because the Legislature has by statute in section 31 “limited criminal

liability to those who actually perpetrate a crime and those who aid and abet the actual

perpetrators, but not to those who participate in an uncharged conspiracy to commit a

crime.” Specifically, Lopez claims that because section 31 includes as “principals” in a

crime those who “directly commit the act constituting the offense” and those who “aid

and abet in its commission”—without also expressly identifying conspiracy as a basis for
liability as a principal—the Legislature did not intend to punish conspirators for

successfully completed offenses, but only for conspiracy, as defined in section 182.

              We observe that while section 31 does not use the term “conspirator,” it

defines as principals not only “perpetrators” and “aiders and abettors,” but also “[a]ll

persons concerned in the commission of a crime” (italics added), including those who

“not being present, have advised and encouraged its commission . . . .” This language

seems to incorporate conspiracy liability for underlying offenses, long recognized by the



                                             34
law. Lopez argues aiding and abetting “requires participation in the act constituting the

offense,” but conspiracy “need not go so far as aiding and abetting” because conspiracy

consists of an agreement to commit a crime.” A jury reasonably could conclude,

however, a defendant who conspires to commit a crime acts as an aider and abettor

because the agreement itself encourages and promotes other conspirators to commit the

agreed upon crime. Under this scenario, criminal liability for aiding and abetting does

not depend on whether the coconspirator was present when the crime was committed.

(See, e.g., In re Hardy (2007) 41 Cal.4th 977, 1026 [“One who conspires with others to

commit a felony is guilty as a principal. (§ 31)”].)

              In any event, as Lopez recognizes in his lengthy attack, the Supreme Court

has rejected his identical contention on numerous occasions, including most recently in

People v. Valdez (2012) 55 Cal.4th 82, 149-150 (Valdez), which Lopez fails to cite. He

simply raises the issue to preserve it for further review. We will not delve into settled

issues the Supreme Court has resolved in controlling precedent. (Auto Equity Sales, Inc.

v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity).) As the high court explained

in Valdez, ample precedent has “‘long and firmly established that an uncharged

conspiracy may properly be used to prove criminal liability for acts of a coconspirator.
[Citations.] “Failure to charge conspiracy as a separate offense does not preclude the

People from proving that those substantive offenses which are charged were committed

in furtherance of a criminal conspiracy [citation]; nor, it follows, does it preclude the

giving of jury instructions based on a conspiracy theory [citations].” [Citation.]’

[Citations.]” (Valdez, at p. 150.) Such instructions “‘correctly state[ ] the law concerning

conspiracy as an alternative theory of liability. [Citations.] Accordingly, there was no

error.’” (Ibid.)



                                             35
G.     Felony-Murder Conviction and Sentence

       1.     Erroneous Verdict Form Concerning Felony-Murder Was Harmless

              Observing that the verdict form and accompanying verdict form

instructions the trial court furnished the jury erroneously labeled felony murder as lesser-

included offenses of first degree premeditated murder, Lopez contends the error requires

reversal. (See People v. Lopez (1998) 19 Cal.4th 282, 288 [because felony murder

requires commission of a designated felony and does not require malice, it has different

elements and is not a lesser included offense of malice murder].) “[T]echnical defects in

a verdict may be disregarded if the jury’s intent to convict of a specified offense within

the charges is unmistakably clear, and the accused’s substantial rights suffered no

prejudice. [Citations.]” (People v. Webster (1991) 54 Cal.3d 411, 447.)

              Defendants suffered no prejudice here given the jury acquitted them of first

degree premeditated murder, and therefore there is no reason to suppose the jury simply

found them guilty of felony murder because it was listed as a lesser included offense.

Felony murder need not be charged separately and therefore defendants suffered no

prejudice in that respect. (People v. Morgan (2007) 42 Cal.4th 593, 616-617 [felony

special circumstance allegation provides a defendant notice the prosecution will proceed
on felony-murder theory].) Defendants articulate no prejudice arising from the technical

defect in the verdict form, and none is apparent because the trial court properly instructed

the jury on the requisite elements for felony murder. We presume the jury understood

and followed those instructions in finding defendants guilty of felony murder. (People v.

Clair (1992) 2 Cal.4th 629, 663, fn. 8; People v. Cruz (2001) 93 Cal.App.4th 69, 73.)




                                             36
       2.     LWOP for Felony Murder Is Not Unconstitutional

              Rodriguez raises several claims attacking his felony-murder conviction and

resulting LWOP sentence to preserve those claims for possible federal review because he

recognizes they have been rejected under controlling precedent by our high court. (Auto

Equity, supra, 54 Cal.2d at pp. 455-456.) For example, he argues the felony-murder

special circumstance does not meaningfully circumscribe the class of offenders eligible

for the death penalty or an LWOP sentence, and therefore violates constitutional norms.

(U.S. Const., 8th & 14th Amends.; but see, e.g., People v. Pollock (2004) 32 Cal.4th

1153, 1195; People v. Gurule (2002) 28 Cal.4th 557, 663-664.) He similarly argues

utilizing the same facts underlying a felony-murder offense to both elevate the offense to

first degree murder and to qualify the offense for special circumstance punishment

amounts to an overbroad and indiscriminate dual use of facts. And he contends the

felony-murder special circumstance violates the Eighth Amendment because it includes

unintentional killings within its ambit. As noted, our Supreme Court has found no

constitutional violation in these and related arguments, so we do not address them further.

(People v. Abilez (2007) 41 Cal.4th 472, 528; People v. Webster (1991) 54 Cal.3d 411,

456; People v. Marshall (1990) 50 Cal.3d 907, 945-946.)

H.     Lopez’s Pretrial Marsden Motion and Posttrial Faretta Motion

       1.     Marsden Motion

              Lopez argues the trial court erred in denying his Marsden motion to obtain

substitute appointed counsel on the eve of trial. (See Marsden, supra, 2 Cal.3d at p. 123

[defendant may seek to relieve and replace appointed counsel based on inadequate

representation or conflict].) Case law clearly defines court’s duty of inquiry when
confronted with a Marsden motion: “[T]he court must inquire on the record into the



                                            37
bases of defendant’s complaints and afford him an opportunity to relate specific instances

of his attorney’s asserted inadequacy. [Citations.] Depending on the nature of the

grievances related by defendant, it may be necessary for the court also to question his

attorney. [Citations.]” (People v. Hill (1983) 148 Cal.App.3d 744, 753.)

              The court provided Lopez ample opportunity to state his complaints about

his attorney’s performance. Lopez did so at length, setting forth specific examples of

what he perceived as inadequate representation. After listening and questioning both

Lopez and counsel further, the court decided there was no basis to replace counsel and

denied the Marsden motion. We review a trial court’s Marsden ruling for abuse of

discretion (People v. Vera (2004) 122 Cal.App.4th 970, 979), and find none here.

              Lopez asserted he was entitled to new counsel for several reasons: counsel

could not get the truck stop surveillance videos to play to review them with Lopez on

counsel’s most recent jail visit; counsel did not visit Lopez often enough and, except for

the last visit, counsel’s multiple jail interviews with Lopez were nonsubstantive because

they did not discuss trial strategy; Lopez thought counsel had made no effort to conduct

witness interviews, including witnesses Lopez suggested; counsel did not retain a gang

expert or DNA expert, and counsel “cussed him out” that day in court.
              Counsel explained to the trial court he subsequently reviewed the

surveillance videos when he obtained the necessary software from the district attorney,

and the videos did not depict Lopez, who had hoped they would show him in an

exculpatory manner. Counsel made multiple visits to Lopez in jail and while Lopez may

have viewed them as nonsubstantive and only consisting of “paperwork,” to the contrary

he and his paralegal each met with Lopez in lengthy interviews on different occasions to

gather information. Counsel explained his investigator contacted the detective Lopez



                                            38
suggested would vouch for his lack of gang affiliation, but the detective would not

provide a stale reference from so many years ago. The investigator had attempted to

contact Nancy Lopez to no avail, the other woman in the car (“Denise”) had been

deported, and counsel noted Lopez had not suggested any other witnesses, nor did there

appear to be other percipient witnesses. Counsel did not retain a gang expert because he

felt (and was proved correct by the verdict) that he could cross-examine the prosecution’s

gang experts effectively. Nor did he retain a DNA expert because the DNA evidence was

exculpatory to the extent the victim’s DNA was not found on Lopez’s brass knuckles.

Since Lopez admitted his presence in the truck cab and his altercation with Ochoa,

counsel did not believe further DNA testing or retaining a DNA expert would be fruitful.

              Counsel admitted he swore at Lopez, telling Lopez “‘to go fuck himself’

when he told me that I wasn’t prepared to try this case.” Counsel explained he believed

Lopez was “uncomfortable, I think, if I sense it right, with me having pitched . . . to him”

the possibility of “negotiat[ing] with the district attorney to strike the special

circumstances and the gang enhancements” given they could result in an LWOP

“sentence of him dying in prison.” It also appears counsel questioned Lopez’s intention

to proceed to trial and testify, though it remained uncertain at the time whether he would
actually testify. Lopez interjected: “I’m uncomfortable with you telling me [‘]what you

told me . . . is a fucking lie and the jury isn’t going to believe that fucking shit either.’”

The trial court immediately calmed the atmosphere by noting that while the stakes in the

case were high, it would resolve the pending motion “just like I would any other Marsden

motion or any other motion . . . .” Counsel admitted, “I shouldn’t have sworn at him and

I lost my temper and I apologize to Mr. Lopez.” Lopez responded immediately that he

accepted counsel’s apology (“Apology accepted”).



                                               39
              Before ruling on the Marsden motion, the trial court inquired whether

Lopez had anything to add, “Let me just ask, Mr. Lopez, is there anything else that you

wish to tell me?” Lopez answered, “[T]hat’s all I can recall, your Honor.” The trial court

noted: “As I said, Mr. Lopez, I’m guided by what you’re telling me. I’m guided by

Mr. Spears’ experience. There are a lot of people that appear in front of me that don’t

even have a portion of the experience that Mr. Spears has, and yet, sometimes they’re

defending people with possible life imprisonment. And they don’t get next to Mr. Spears

in terms of his understanding of juries and the process.” The court explained Lopez’s

case was a “complicated” one with “lots of issues that have been presented . . . many of

which you probably aren’t even aware of,” including issues that “relate to cases when

there’s more than one defendant. . . . So you have able counsel, who I think has done

everything he can to properly represent you, in my opinion.”

              The court acknowledged, “I realize there’s a disagreement between you and

him. I understand that but nobody wants to hear things they don’t like and [that] they

don’t want to hear. But one of the key things about being a lawyer — and I was a trial

lawyer [for] 30 years. I didn’t do the cases at the level of Mr. Spears, not even close, not

even close. Mine were more about money [rather] than freedom. But when you’re a
lawyer[,] before trial starts, you have to tell your client things they don’t want to hear,

that’s part of your job. And, yeah, you heard the old expression ‘don’t kill the

messenger.’ Well, the point is that’s what the lawyer has to do before the trial starts is to

be the messenger, usually of bad things. Because the last thing you want to hear is to get

all puffed up, that life’s going to be really good, this is going to go well and all of a

sudden see things fall apart and look at the lawyer and say[,] ‘Why the heck didn’t you




                                              40
tell me?’ And if the lawyer says[,] ‘Well, I didn’t think you’d want to hear it,’ what kind

of lawyer is that?”

              The court observed that “a lot is riding on this, your whole life and your

freedom is riding on this,” so “[i]f you aren’t upset and emotional at times and Mr. Spears

may be the same way, I’d be surprised. I don’t say that it’s unnatural or unusual. I think

it’s more usual that this might occur, given the circumstances.” The court concluded, “I

don’t see any conflict that’s irreconcilable or difficult to handle. Some personality

differences, some swearing back and forth, sure.” “But I believe that there’s no conflict

that rises to a level that Mr. Spears should be replaced.” The court ruled counsel’s

performance had not been deficient, and denied Lopez’s Marsden motion.

              On appeal, given he accepted counsel’s apology and they appeared to leave

the swearing outburst behind them, Lopez does not focus on that incident, nor does he

assert an irreconcilable conflict remained, but instead he claims the trial court put too

much stock in counsel’s experience and did not adequately inquire into counsel’s alleged

failings. In particular, he faults the court for failing to follow up on his claims that

“Spears failed to interview witnesses suggested by Lopez, and that Spears failed to

engage the services of a defense DNA expert.”
              But the trial court did not rely exclusively on counsel’s experience; to the

contrary, he elicited and considered Lopez’s complaints, followed up to learn whether

there was anything Lopez wanted to add, and specifically noted, “I’m guided by what

you’re telling me.” Despite the trial court’s request for further detail, Lopez did not

suggest he had told counsel of other witnesses to interview, nor did he voice any reason

for a DNA expert when counsel explained the DNA was consistent with Lopez’s defense.

Nothing suggests the trial court should have rejected counsel’s explanations, which the



                                              41
court was entitled to credit. (People v. Smith (1993) 6 Cal.4th 684, 696.) In any event, a

dispute over tactics and trial strategy does not justify a substitution (People v. Jackson

(2009) 45 Cal.4th 662, 688), nor does a client’s frustration (ibid.) or lack of trust (People

v. Berryman (1993) 6 Cal.4th 1048, 1070, overruled on another ground in People v. Hill

(1998) 17 Cal.4th 800, 823, fn. 1.)

               Similarly, the number of times one sees his attorney, and the way in which

one relates with his attorney, does not sufficiently establish incompetence, and

defendant’s complaints regarding inadequate investigation or trial preparation are

essentially tactical disagreements that do not by themselves constitute an irreconcilable

conflict. (People v. Cole (2004) 33 Cal.4th 1158, 1192; see United States ex rel. Kleba v.

McGinnis (7th Cir.1986) 796 F.2d 947, 954 [“We know of no case establishing a

minimum number of meetings between counsel and client prior to trial necessary to

prepare an attorney to provide effective assistance of counsel”].) The trial court did not

abuse its discretion in denying Lopez’s Marsden motion.

       2.     New Trial Motion

              Lopez contends the trial court erred in denying the Faretta request he made

on the day of sentencing to represent himself. Lopez made his request at a new trial
hearing preceding the sentencing hearing. Lopez’s attorney and Rodriguez’s attorney had

worked together to file the new trial motion, but Lopez’s attorney could not appear at the

hearing following a surgical procedure. Lopez apparently did not object to Rodriguez’s

attorney specially appearing on his behalf for the hearing on the new trial motion, but

sought leave to represent himself to file another new trial motion alleging ineffective

assistance of counsel. In seeking to represent himself, Lopez also sought a continuance




                                             42
to file his new trial motion. As we explain, the trial court did not err in denying the

motion.

              A criminal defendant has the right to self-representation under the Sixth

and Fourteenth Amendments. (Faretta, supra, 422 U.S. at p. 819 [“The Sixth

Amendment does not provide merely that a defense shall be made for the accused; it

grants to the accused personally the right to make his defense”].) “A trial court must

grant a defendant’s request for self-representation if the defendant knowingly and

intelligently makes an unequivocal and timely request after having been apprised of its

dangers.” (People v. Valdez (2004) 32 Cal.4th 73, 97-98, italics added.) As the

California Supreme Court has explained, “In most of the cases finding a [Faretta] motion

timely as a matter of law, no continuance would have been necessary.” (People v. Burton

(1989) 48 Cal.3d 843, 854.)

              A request to waive counsel made on the day of trial is untimely. (People v.

Carlisle (2001) 86 Cal.App.4th 1382, 1390.) Courts have upheld denial of self-

representation demands made several days before trial. (See People v. Scott (2001)

91 Cal.App.4th 1197, 1203 [four days in advance].) As noted in People v. Hill, supra,

148 Cal.App.3d 744, “‘[I]t is now settled that a trial court may deny a request for self-
representation made on the very eve of trial, on the ground that granting the motion

would involve a continuance for preparation . . . .’” (Id. at p. 757.) The requirement

exists “to avoid unjustifiable delay or disruption of orderly court proceedings.” (People

v. Ruiz (1983) 142 Cal.App.3d 780, 791 (Ruiz).) These considerations apply to posttrial

Faretta motions. (People v. Doolin (2009) 45 Cal.4th 390, 454-455 [“Defendant’s

request [at sentencing] was manifestly untimely. . . . He was not prepared to proceed and

could not provide a reasonable estimate of when he would be ready”].)



                                             43
              An untimely self-representation request is committed to the trial court’s

sound discretion. (Ruiz, supra, 142 Cal.App.3d at p. 792.) The court should inquire into

and consider several factors related to the request, including: “[1] the quality of

counsel’s representation of the defendant, [2] the defendant’s prior proclivity to substitute

counsel, [3] the reasons for the request, [4] the length and stage of the proceedings, and

[5] the disruption or delay which might reasonably be expected to follow the granting of

such a motion.” (People v. Windham (1977) 19 Cal.3d 121, 127-128 (Windham).) A trial

court’s ruling denying a Faretta motion may be upheld though the court does not address

these factors explicitly, if the record supports its conclusion. (People v. Perez (1992)

4 Cal.App.4th 893, 904-905.)

              Here, the trial court acted within its discretion in denying Lopez’s belated

request. The jury returned its verdict on July 9, 2012, the trial court set an initial

sentencing date for August 24, 2012, with Lopez’s express consent, and the hearing was

ultimately continued to September 21, 2012. Lopez never in that 10-week period asked

to represent himself though he recognized, as he stated at the hearing, that he could not

leave to his attorney his request based on ineffective assistance of counsel “[b]ecause . . .

I know he’s not going to file that [against] himself.”
              Lopez complains he had no opportunity “to explain why he waited to the

date of the sentencing hearing to make his motion.” The record shows, however, Lopez

registered his disagreement with the trial court’s observation that his lawyer’s courtroom

performance was not ineffective, but he offered no explanation for his late self-

representation request or object to the court’s finding his motion was untimely. Lopez

also suggests the trial court abused its discretion “by relying on its own observations at

trial to conclude” the request based on ineffective assistance was unfounded. But as



                                              44
noted he had ample time to make and explain his request in the 10 weeks after the

verdict, and the quality of counsel’s representation is a relevant factor for the trial court’s

consideration. (Windham, supra, 19 Cal.3d at pp. 127-128.)

              Postverdict self-representation motions normally do not pose “the potential

disruption of proceedings already in progress,” but still must be made “within a

reasonable time” before sentencing. (People v. Miller (2007) 153 Cal.App.4th 1015,

1024.) Here, the court reasonably could conclude under the pertinent Windham factors

that Lopez’s proclivity for filing Marsden petitions against both his initial conflict

counsel and his trial counsel for unfounded deficiencies indicated his latest motion was

another baseless request that would cause unwarranted disruption at the 11th hour of the

trial proceedings, merely to delay sentencing. There was no error.

I.      Defendants’ Petty Theft Convictions Must Be Stricken

              The Attorney General concedes Rodriguez’s and Lopez’s respective petty

theft convictions each must be stricken as a lesser-included offense of robbery. A

defendant may not be convicted of both the greater crime and a lesser included offense

(People v. Reed (2006) 38 Cal.4th 1224, 1226-1227), and theft is a lesser-included

offense of robbery, which requires the additional element of force or fear. (People v.
Whalen (2013) 56 Cal.4th 1, 69). We therefore correct the judgment (§ 1260) by striking

defendants’ petty theft convictions.

J.     654 Stay on Carjacking and Robbery Convictions and Enhancements

              The Attorney General also concedes the trial court erred in imposing

consecutive prison terms for carjacking, robbery, and their attendant firearm

enhancements because those sentences instead must be stayed under section 654.
Punishment for both felony-murder and the underlying felony is improper (People v.


                                              45
Meredith (1981) 29 Cal.3d 682, 696), and when sentencing on a substantive offense is

stayed, any penalty enhancements attached to that offense also must be stayed. (People

v. Guilford (1984) 151 Cal.App.3d 406, 411.) We therefore correct the judgment

accordingly. (§ 1260.)

K.     Remand to Order Restitution to the Victim’s Family

              Finally, the Attorney General agrees we must set aside the trial court’s

restitution order obligating Rodriguez and Lopez jointly to pay $21,473.26 to the

Wilshire Insurance Company for Ochoa’s funeral expenses. Longstanding constitutional

and statutory provisions require convicted offenders to pay restitution for economic harm

they inflict on their victims. (Cal. Const., art. I, § 28, subd. (b)(13)(B) [“Restitution shall

be ordered . . . in every case . . . in which a crime victim suffers a loss”]; § 1202.4, subd.

(f) [court must order restitution except in extraordinary circumstances].) Insurers and

other third parties who are not direct and immediate victims of the crime are not entitled

to restitution. (People v. Birkett (1999) 21 Cal.4th 226, 246-248 (Birkett); People v.

Martinez (2005) 36 Cal.4th 384, 391-394; see, e.g., People v. Busser (2010)

186 Cal.App.4th 1503, 1509 [“Insurance companies that suffer the consequences of crime

only by reimbursing the crime-related losses of their policyholders do not reasonably fall
within the definition of direct victims”].)

              Distinguishing such third parties, the Legislature has specified a crime

victim’s surviving family members qualify as “victims” within the meaning of the

restitution statute for economic losses they suffer as a result of the crime. (§ 1202.4,

subd. (k)(1), (3).) The duty and expense of providing interment services generally falls

on those family members (Health & Saf. Code, § 7100) and, similar to the collateral
source rule, the fact they or the decedent on behalf of his survivors may have obtained



                                              46
insurance to cover those expenses does not absolve the defendant of his or her restitution

obligation. (See Birkett, supra, 21 Cal.4th at p. 246 [offender entitled to “no windfall

from the fortuity that the victim was otherwise reimbursed”].) Consequently, defendants

do not object and we agree with the Attorney General that remand is necessary for the

trial court to amend its restitution order to specify the $21,473.26 must be paid to

Ochoa’s surviving next of kin rather than the insurance company.

                                             III

                                      DISPOSITION

              We modify and correct the judgment (§ 1260) by striking Lopez’s and

Rodriguez’s petty theft convictions and by entering a stay under section 654 on

defendants’ carjacking and robbery convictions and enhancements, and we remand the

matter for the trial court to amend its restitution order to reflect Rodriguez and Lopez

must pay $21,473.26 in funeral expenses to Ochoa’s relatives rather than the Wilshire

Insurance Company. In all other respects, the judgment is affirmed. The trial court is

directed to prepare and forward to the Department of Corrections and Rehabilitation a

new abstract of judgment to reflect the corrections made on appeal.




                                                   ARONSON, ACTING P. J.

WE CONCUR:



FYBEL, J.



IKOLA, J.


                                             47
