NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ, P. J.
Defendant Sabas Iniguez worked for a group of drug distributors who, in turn, worked for the Sinaloa drug cartel. After the police seized 13 pounds of methamphetamine from defendant's group, the supplier began demanding payment for the drugs and threatening them and their families. They took care of the problem by kidnapping and killing the supplier and two of his men (or attempting to kill — one of the men survived). Defendant participated in these crimes by acting as a lookout.
Following his conviction for first degree murder with special circumstances and other crimes, defendant contends:
We find no error. Accordingly, we will affirm.
On June 23, 2009, three men were shot while sitting in a black Chevrolet Silverado pickup truck. The pickup was parked in a "desolate desert area" off Highway 395 between Victorville and Hesperia. The men's hands and feet were bound with zip ties. Both .40-caliber and 9-millimeter cartridge casings were found at the scene, indicating that two different guns were fired.
Two of the victims, Alejandro Martin and Eduardo Gomez, died at the scene. The third, Luis Romero, although severely wounded in the face and torso, walked to Highway 395. At about 10:30 p.m., a passing driver saw him, stopped, and called 911. When the police responded, the surviving victim told them that "Lalo" and "Junior . . . out of South Gate" had kidnapped him and the others and then shot them.
On July 2, 2009, based in part on information from the surviving victim, the police searched a house on Center Street in South Gate that was associated with one Flor Iniguez. In the garage, they found a package of zip ties. In the kitchen, they found a box of rubber gloves.
Sales records and surveillance video from a Target in South Gate showed that, on the day of the shooting, at about 12:40 p.m., one Jose Perez bought a box of rubber gloves identical to the box that was found. Perez worked for Flor Iniguez.
Also on July 2, 2009, and once again based in part on information from the surviving victim, the police went to a house on California Avenue in South Gate that was also associated with Flor Iniguez. In a van parked in front, they found 70 pounds of marijuana. The quantity and packaging was consistent with the activities of "gangs, cartels, organized crime." While at the scene, officers contacted defendant. Defendant, whose nickname was "Junior," was Flor Iniguez's nephew.
Later that day, the police interviewed defendant. He admitted owning the van containing the marijuana. He denied knowing that the murders had happened. However, he added, "I knew it was gonna happen."
He explained that one "Lalo" distributed cocaine and marijuana; his aunt worked for Lalo.
Two or three weeks earlier, defendant's aunt had phoned him. She said another cartel was threatening Lalo and his family because Lalo owed them money for 13 pounds of methamphetamine that had been seized by the police. His aunt fled to Las Vegas because she was "in the middle" and she was afraid.
On July 8, 2009, the police interviewed defendant again. Defendant said that he worked for Lalo as a driver, transporting marijuana. One "Max" was Lalo's immediate supervisor. Max was also Flor Iniguez's immediate supervisor. Lalo and Flor were equals.
Victim Martin supplied drugs to Max and Lalo. Max owed Martin for 13 pounds of methamphetamine. Martin had threatened Max; he had sent people to Max's house who had "slapped Max's family around. . . ." Max therefore "organized a hit" on Martin. Max and Lalo threatened defendant's aunt; they told her that she and defendant had to help "set up" the victims. Defendant knew the victims because he had also delivered drugs for them.
On Saturday (i.e., three days before the shooting), defendant's aunt told him that Max and Lalo were "gonna do a hit on these guys. . . ." To protect his aunt's children, defendant got a shotgun out of storage and brought it to the house on Center Street. There he encountered Lalo, who pulled a gun on him and accused him of snitching.
On Sunday (i.e., two days before the shooting), defendant met with Lalo at an El Pollo Loco. Lalo wanted defendant to deliver drugs to a certain house and to make sure the victims were there; then others would come in and tie up the victims. Defendant agreed. However, this plan fell through because one of the victims was not where he was supposed to be.
That night, defendant, accompanied by his aunt's employee Perez, went back to the Center Street house. Lalo was there, accompanied by six or seven other men. Defendant knew one of the men as "Baby." Another was a "tall guy" who worked for Max. They said they were waiting for victim Romero. Defendant and Perez left. However, Lalo and his men "set up base" in the house; they spent the night there.
On Monday or Tuesday (the latter being the day of the shooting), defendant and Perez returned to the Center Street house around noon. They found that Lalo's men had "caught" victim Romero. Romero was talking on the phone; presumably he was being forced to try to lure the other victims to the house. Lalo's men had already relieved Romero of approximately $150,000 in cash.
Lalo's men told defendant and Perez to go downstairs and "keep a lookout." They went down to the garage and started washing defendant's aunt's pickup. Baby and another man were also in the garage. The other man had a gun. Defendant admitted knowing "[t]hat they were going to rob and kidnap these guys."
After a couple of hours, victims Martin and Gomez arrived in a black or dark gray Chevrolet Silverado. Martin had a "crippled hand," and Gomez acted as his driver. They said hi to defendant and Perez and then went upstairs. Baby went upstairs behind them. The other man stayed downstairs, with "the gun pointed," so defendant and Perez would not run away.
Defendant heard a "commotion" upstairs. In response, defendant, Perez, and the other man all went upstairs. There defendant saw the victims, who were tied up with "[w]ire straps." He was ordered to go back downstairs and keep acting as a lookout. Defendant did so, followed shortly by Perez. They smoked some "weed" together.
About an hour later, defendant went upstairs again. This time, each of the victims was in a separate room. Only Romero was tied up. Lalo's men were having the victims make phone calls to try to get as much money and drugs as they could.
All of Lalo's men were wearing plastic gloves. All of them had handguns, including .40-calibers and 9-millimeters. Defendant had a .22-caliber handgun. The shotgun was in the house; it was the "house weapon." At some point, defendant took it out to show it to Lalo's men, but then he put it back. Later, he saw them passing it around.
Defendant claimed that he heard Lalo and the tall guy say they were going to release the victims, because they only intended to rob them and to scare them. When the police accused defendant of lying, however, he changed his story; he said the "main plan" was to kill Martin, by choking him at the house, but to drop Gomez and Romero off by the side of a freeway. Defendant even told Gomez, "[Y]ou're a lucky guy. . . . [Y]ou're gonna go home. . . ."
Defendant admitted, however, that, at some point, he knew that the plan was to kill all three victims. He urged Lalo not to kill Gomez because Gomez was just the driver, but Lalo said, "[H]e knows too much information, and he needs to go. They all need to go." Lalo decided to take them to Victorville, because it was far away.
Lalo's men waited until it got dark. Around 6:30 p.m., the tall guy told defendant "to go . . . peek around the block." Defendant, accompanied by Perez, drove his aunt's pickup around the block twice to make sure there were no police. When they passed the house the first time, defendant saw one of the victims go downstairs and get into the victims' black pickup truck. When they passed the house again, everybody was gone.
Defendant phoned Baby, who said, "[W]e're [o]n the 105." Defendant went east on the I-105 to the I-605. He tried to phone Baby again, but the phone was busy. When defendant finally got through, Baby said he was at the intersection of the I-710 and the I-10, so defendant doubled back and went up the I-710.
Somewhere near Victorville, defendant got lost. After getting off the freeway, he saw the others, headed in the opposite direction. Baby phoned him (or vice versa), and Baby said, "[I]t's done, . . . let's go home."
On the way back, defendant and Perez went to Buena Park to get some money from Lalo so they could go to a hotel. Defendant did not get along with Lalo, so he waited at a Denny's while Perez drove to Lalo's home. When Perez got back, he gave defendant $1,000. Defendant admitted that the money was "for helping out." He told the police that he "wasn't in [it] for no money. . . ." However, he complained that everyone else got paid while he only got a loan of $1,000.
According to a gang expert, the Sinaloa drug cartel meets all the criteria for being a criminal street gang. It has approximately 150,000 members. It has a common name. Its primary activity is drug trafficking, but its members have also committed murder, extortion, money laundering, kidnapping, and weapons violations. Its members have engaged in a pattern of criminal activity.
In the expert's opinion, defendant was a member of the Sinaloa cartel. Also in his opinion, all of the charged crimes were committed for the benefit of, at the direction of, and in association with the Sinaloa cartel.
After a jury trial, defendant was found guilty on two counts of first degree murder (Pen. Code, § 187, subd. (a)), one count of willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 187, subd. (a), 664)), three counts of kidnapping for robbery (Pen. Code, § 209, subd. (b)(1)), and one count of active gang participation (Pen. Code, § 186.22, subd. (a)).
In connection with the murder counts, a robbery-murder special circumstance (Pen. Code, § 190.2, subd. (a)(17)(A)) and a kidnapping-murder special circumstance (Pen. Code, § 190.2, subd. (a)(17)(B)) were found true. However, a financial-gain special circumstance (Pen. Code, § 190.2, subd. (a)(1)), a multiple-murder special circumstance (Pen. Code, § 190.2, subd. (a)(3)), a lying-in-wait special circumstance (Pen. Code, § 190.2, subd. (a)(15)), and a gang special circumstance (Pen. Code, § 190.2, subd. (a)(22)) were found not true.
In connection with all counts other than active gang participation, a gang enhancement (Pen. Code, § 186.22, subd. (b)) and an enhancement for the discharge of a firearm by a principal in a gang-related crime causing great bodily injury or death (Pen. Code, § 12022.53, subds. (d), (e)(1)) were found true.
The jury also found defendant guilty on additional charges and found additional enhancements true. However, pursuant to a plea bargain, which called for him to testify truthfully in the trial of his alleged accomplices, the People dismissed those charges and enhancements. Also pursuant to the plea bargain, defendant was sentenced to a total of 50 years to life in prison, along with the usual fines, fees, and miscellaneous sentencing orders.
DEFENDANT'S MOTION TO SUPPRESS HIS SECOND STATEMENT
Defendant contends that the trial court erroneously denied his motion to suppress his July 8 statement to the police as obtained in violation of Miranda.
A. Additional Factual and Procedural Background.
Defendant brought an oral motion in limine to suppress his July 8 statement to the police. As a result, the trial court held an evidentiary hearing pursuant to Evidence Code section 402.
At the hearing, Detective Steven Pennington testified that other officers contacted defendant and his sisters at their home and asked if they would come to the police department for an interview. When defendant and his sisters arrived, Detective Pennington asked defendant if he had come down voluntarily; he said he had. Detective Pennington then asked if he would talk about what had happened; he said he would. The interview took place in a break room. More than one officer was present.
At the beginning of the interview, Detective Pennington had reason to believe that defendant might be a principal in the crimes. However, his objective was not to elicit incriminating information but rather to get defendant to be truthful.
After about an hour and a half, Detective Pennington told defendant that he was a suspect. After about two hours, defendant made statements admitting his involvement, so Detective Pennington Mirandized him. The interview then continued for another hour, in which defendant reconfirmed what he had said before being Mirandized. At the end of the interview, he was arrested.
Defendant never asked for an attorney and never indicated that he was unwilling to talk to Detective Pennington. He was never restrained. He was never told either that he could or could not leave.
The trial court denied the motion. It found that defendant was not in custody until he was Mirandized.
"The Fifth Amendment provides that `[n]o person . . . shall be compelled in any criminal case to be a witness against himself.' [Citations.] To safeguard a suspect's Fifth Amendment privilege against self-incrimination from the `inherently compelling pressures' of custodial interrogation [citation], the high court adopted a set of prophylactic measures requiring law enforcement officers to advise an accused of his right to remain silent and to have counsel present prior to any custodial interrogation [citation]." (People v. Jackson (2016) 1 Cal.5th 269, 339.) "A statement obtained in violation of a suspect's Miranda rights may not be admitted to establish guilt in a criminal case. [Citation.]" (Ibid.)
In determining whether a suspect is in custody for purposes of Miranda, "the ultimate inquiry is simply whether there is a `formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest. [Citation.]" (California v. Beheler (1983) 463 U.S. 1121, 1125)
"Whether custody has occurred short of a formal arrest depends upon the totality of the circumstances, including such factors as: (1) the site of the interrogation; (2) whether the investigation has focused on the suspect; (3) whether the indicia of arrest are present; and (4) the length and form of the questioning. No one factor is dispositive. [Citation.]" (People v. Morris (1991) 53 Cal.3d 152, 197, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
"In reviewing the trial court's ruling on a claimed Miranda violation, `"we accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from [those facts] whether the challenged statement was illegally obtained."' [Citation.]" (People v. Elizalde (2015) 61 Cal.4th 523, 530.)
"Miranda is not invoked simply because questioning is conducted at a police station, even where suspicion has `focused' on the subject. [Citations.]" (People v. Boyer (1989) 48 Cal.3d 247, 272, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
In Green v. Superior Court (1985) 40 Cal.3d 126, officers investigating a homicide asked the defendant to come to their office for an interview. They drove him there, although they said that "`if at any time he needed to come back, [they]'d drive him back. . . .'" (Id. at p. 131.) The interview took place in an interview room with doors that locked automatically. (Ibid.) The officers' questions were "detailed but not accusatory." (Id. at p. 132.) The defendant was not told he was free to leave. After a 55-minute initial interview, a 20-minute break, and a 35-minute detailed taped interview, the officers left the defendant waiting in the interview room for some 25 minutes while they went to the scene of the crime. While they were there, he gave them telephonic permission to examine some coveralls. When the coveralls turned out to be stained with blood, he became a suspect. (Id. at pp. 131-132.)
The trial court found that the defendant was not in custody during the interviews. (Green v. Superior Court, supra, 40 Cal.3d at p. 133.) The Supreme Court agreed with that finding. It noted that California v. Beheler, supra, 463 U.S. 1121 and Oregon v. Mathiason (1977) 429 U.S. 492 had each held that a then-suspect who agreed to go to a police station for an interview was not in custody. (Green v. Superior Court, supra, at p. 135.) It added, "Several factors distinguish this case from Beheler and Mathiason. On the one hand, defendant was not a suspect when he was asked to come to the station. On the other, the interviews here were an hour and a half longer, defendant was never expressly told he was not under arrest, and the interviews took place in a locked room." (Id. at p. 135, fn. omitted.) However, it found no evidence that the defendant knew the door was locked (ibid.), and it concluded that, "[n]otwithstanding the lock on the interview room door, the evidence does not compel the conclusion that defendant could not have left whenever he had wanted during the interview." (Id. at p. 136.)
Here, as in Green, defendant was asked to come to the police station for an interview. Once there, he was asked again if he was willing to be interviewed, and he said he was. Also as in Green, he was not specifically told during the interview that he was free to leave. The length of the interview in Green and the interview here was roughly the same. Detective Pennington was not trying to elicit incriminating information.
Admittedly, unlike in Green, defendant was a suspect even before the interview. Nevertheless, as Green indicated in discussing Beheler and Mathiason, this does not require a finding that he was in custody. (See also Green v. Superior Court, supra, 40 Cal.3d at p. 135, fn. 6.) "[A] police officer's subjective view that the individual under questioning is a suspect, if undisclosed, does not bear upon the question whether the individual is in custody for purposes of Miranda. . . . Save as they are communicated or otherwise manifested to the person being questioned, an officer's evolving but unarticulated suspicions do not affect the objective circumstances of an interrogation or interview, and thus cannot affect the Miranda custody inquiry." (Stansbury v. California (1994) 511 U.S. 318, 324.)
In addition, after about an hour and a half, Detective Pennington frankly advised defendant that he was, in fact, a suspect. But "[e]ven a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest. The weight and pertinence of any communications regarding the officer's degree of suspicion will depend upon the facts and circumstances of the particular case." (Stansbury v. California, supra, 511 U.S. at p. 325.) Here, because defendant was free to leave up until this point, because there was no other apparent change in the interrogation, and because the interrogation went on for another half an hour before defendant was arrested, there is no reason to suppose that this statement alone made defendant think he had lost his freedom to leave.
Defendant relies on People v. Aguilera (1996) 51 Cal.App.4th 1151. There, the defendant agreed to go to the police station for an interview. Two officers interviewed him in an interview room for two hours. One of them told him he was not in custody. "However, she then said they would bring him home when they were finished, explaining that `[i]t really depends on how, how long you want to take and how, how quickly you tell us the truth.'" (Id. at p. 1159.) The other officer said, "`. . . You're gonna tell us some girl's name. We're not gonna let you leave here until we go talk to the girl. . . .'" (Id. at p. 1160.) During the interview, the officers "pressure[d]" the defendant (ibid.) — they accused him of lying, stated falsely that they had evidence contradicting his story, made vague threats, and appealed to his emotions. (Id. at pp. 1160-1161.)
The appellate court held that the defendant was in custody. (People v. Aguilera, supra, 51 Cal.App.4th at pp. 1162-1166.) It noted, among other things, that the officers indicated that they were not going to let the defendant leave unless he told them what they wanted to hear. (Id. at p. 1163.) Also, "[t]he `tag-team' interrogation lasted two hours and was intense, persistent, aggressive, confrontational, accusatory, and, at times, threatening and intimidating." (Id. at pp. 1164-1165.)
Here, there was no evidence that Detective Pennington made any statements indicating that defendant could not leave. Likewise, there was no evidence that the questioning was aggressive, accusatory, or threatening. (See People v. Moore (2011) 51 Cal.4th 386, 404 [distinguishing Aguilera on these grounds].) From Detective Pennington's testimony that he was trying to get the truth from defendant, rather than just incriminating information, it is inferable that the questioning did not suggest that defendant was not free to leave.
Citing the transcript of the interview, defendant argues that the interview was in fact accusatory and was conducted by two officers in tag-team style. The transcript, however, was not introduced at the Evidence Code section 402 hearing. Thus, it was not before the trial court when it ruled. Moreover, when the interview was played at trial, defendant did not renew his motion to suppress. Accordingly, defendant cannot use the transcript to show that the trial court's ruling was erroneous.
Finally, defendant argues that, because the questioning before he was given warnings violated Miranda, the questioning after he was given warnings was tainted and inadmissible. (See generally Missouri v. Seibert (2004) 542 U.S. 600, 611-614.) Because we conclude that the pre-warning questioning did not violate Miranda, we do not reach this issue.
THE PROSECUTOR'S LEGAL THEORIES IN CLOSING ARGUMENT
Defendant contends that, in closing argument, the prosecutor advanced several legally invalid theories of attempted murder.
A. Additional Factual and Procedural Background.
In closing argument, the prosecutor conceded that there was no evidence "that defendant pulled the trigger." He argued that defendant could nevertheless be guilty of murder on four theories:
The prosecutor then stated: "Remember, Mr. Romero lived. So he's Count III, attempted murder. All of those things we talked about for murder still apply, intentional killing, intent to kill, lying in wait, felony murder. That all applies."
Defendant argues that felony murder and lying in wait are not legally valid theories of attempted murder.
"Defendant is correct . . . that the felony-murder rule has no application to a charge of attempted murder. An attempt[ed] murder requires the intent to take a human life — an element which cannot be supplied by the application of the felony-murder rule. [Citation.]" (People v. Wein (1977) 69 Cal.App.3d 79, 92.)
Defendant is also correct that lying in wait is inapplicable to attempted murder. The fact that a murder is committed by lying in wait will elevate what would otherwise be a second degree murder to a first degree murder. (Pen. Code, § 189.) Thus, a murder committed by lying in wait is first degree even if it is committed only with implied malice, without the intent to kill. (People v. Laws (1993) 12 Cal.App.4th 786, 793-794.) By contrast, attempted murder is not divided into degrees and, as mentioned, it requires the intent to kill.
Thus, "[t]he prosecutor . . . misstated some law, but such an error would merely amount to prosecutorial misconduct [citation] during argument, rather than trial and resolution of the case on an improper legal basis.
"When a defendant believes the prosecutor has made remarks constituting misconduct during argument, he or she is obliged to call them to the court's attention by a timely objection. Otherwise no claim is preserved for appeal. [Citation.]
"Defendant made no objection to the prosecutor's remarks and thus has waived his claim." (People v. Morales (2001) 25 Cal.4th 34, 43-44 (Morales); accord, People v. Nguyen (2015) 61 Cal.4th 1015, 1046-1047.)
Defendant argues that the error is "qualitatively different than a prosecutor's mere misstatement of law" and "more akin to instructional error." In support, he cites People v. Guiton (1993) 4 Cal.4th 1116 and People v. Green (1980) 27 Cal.3d 1. In Morales, however, the Supreme Court stated: "Guiton and Green are unlike this case in that in each of them, the court presented the state's case to the jury on an erroneous legal theory or theories. In Green, the instructions were deficient. . . ." (Morales, supra, 25 Cal.4th at p. 43.) "In Guiton, too, a theory unsupported by evidence was presented to the jury in the very trying of the case — [the defendant] was charged with selling cocaine despite a lack of evidence that he engaged in this conduct. Again, the trial court should have modified the instructions in light of this fact." (Ibid.) "In this case, by contrast, the court did not present to the jury a case that was premised on a legally incorrect theory." (Ibid.) Here, similarly, the trial court was not involved in the misstatement.
Defendant also argues that his trial counsel's failure to object to the prosecutor's misstatement constituted ineffective assistance. "Attorneys are not required to make every conceivable objection. Litigation is a series of tactical choices about which there are no absolute rules." (People v. Anzalone (2006) 141 Cal.App.4th 380, 394-395.) Competent defense counsel could have reasoned that, based on defendant's statement to the police, the evidence of aiding and abetting and/or conspiracy was so strong that there was no reasonable likelihood that the jury would need to resort to a theory of felony murder or lying in wait. The thrust of defense counsel's closing argument was simply that the jury should not believe defendant's statement to the police.
Finally, and in the alternative to the foregoing, the error — whether viewed as the presentation of legally invalid theories of guilt, prosecutorial misconduct, or ineffective assistance — plainly was not prejudicial. "`When the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand.' [Citation.]" (People v. Guiton, supra, 4 Cal.4th at p. 1122.) Here, however, the record demonstrates that the jury found defendant guilty of attempted murder on an aiding and abetting and/or conspiracy theory, because the evidence supporting those theories was overwhelming, as follows.
On Sunday, at the El Pollo Loco, defendant agreed to participate in a plan to tie up the victims. Although that particular plan fell through, on Monday or Tuesday, he went to the Center Street house, knowing that Lalo and his men had "set up base" there. He found that victim Romero had already been "caught" and that $150,000 had been taken from him. Defendant admitted knowing "[t]hat they were going to rob and kidnap these guys." He agreed to act as lookout. Thus, at that point, at the very latest, he joined a conspiracy to commit kidnapping and robbery and he aided and abetted the kidnapping and robbery.
In order to be guilty of first degree murder on an aiding and abetting or conspiracy theory, however, defendant had to intend to kill and to premeditate. (People v. Chiu (2014) 59 Cal.4th 155, 166-167 [aiding and abetting]; People v. Rivera (2015) 234 Cal.App.4th 1350, 1356-1357 [conspiracy].) We may assume, without deciding, that the same is true of premeditated attempted murder. (But see People v. Favor (2012) 54 Cal.4th 868, 879-880; see also People v. Chiu, supra, at pp. 162-163 [distinguishing Favor].) "An aider and abettor who knowingly and intentionally assists a confederate to kill someone could be found to have acted willfully, deliberately, and with premeditation, having formed his own culpable intent. Such an aider and abettor . . . acts with the mens rea required for first degree murder." (People v. Chiu, supra, 59 Cal.4th at p. 167.)
In his first statement, defendant admitted knowing in advance that the murders were going to occur. In his second statement, he admitted that his aunt had told him that Max and Lalo were "gonna do a hit on these guys. . . ." He claimed that, at one point, he thought the plan was to let all the victims go; however, when the police accused him of lying, he admitted knowing that victim Martin, at least, would be killed. Moreover, Lalo eventually told him that all the victims would be killed — "They all need to go." Nevertheless, he continued to participate in the conspiracy and to aid and abet the crimes, by driving around the block to look for police and by driving to Victorville. By then, multiple murder had become more than just reasonably foreseeable — defendant expected it, and he knowingly and intentionally assisted it. Thus, he premeditated it.
In light of this evidence, we are convinced that the jury found defendant guilty of attempted murder on an aiding and abetting and/or conspiracy theory. Thus, any error in presenting the jury with erroneous felony-murder and lying in wait theories of attempted murders was harmless. (Cf. People v. Harris (1994) 9 Cal.4th 407, 431 [erroneous instruction is harmless if "the evidence . . . is `of such compelling force as to show beyond a reasonable doubt' that [it] `must have made no difference in reaching the verdict obtained.' [Citation.]"].)
FAILURE TO INSTRUCT ON DURESS AS A DEFENSE
Defendant contends that the trial court erred by failing to instruct sua sponte on duress as a defense.
A. Additional Factual and Procedural Background.
When the police interviewed defendant on July 8, he said he had to participate because "they knew where my family stay at." "[T]hey know where my grandparents live, they know where all my family lives in Mexico." "[I]f I woulda split, they woulda smoked my ass too."
He did not call the police because he was "really, really afraid of" "those dudes." He and his aunt were explicitly told, "[I]f you guys don't help, then I guess you guys are with `em and you guys have to go too."
According to the gang expert, if defendant had tried to help the victims, he would have been be killed. If he had called the police, the cartel would have killed him, provided it could find him. However, he could have sought witness protection. The expert also noted that defendant knew the nature of "the business that he went into."
In the expert's opinion, defendant had options other than to participate in the crimes: "He could have drove north, east, south, west and never stopped." However, the expert acknowledged that he "would be seen as a traitor to the cartel and subject to execution[.]"
"The defense of duress is available to defendants who commit crimes, except murder, `under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.' [Citations.] Although `duress is not a defense to any form of murder,' [citation] `duress can, in effect, provide a defense to murder on a felony-murder theory by negating the underlying felony. [Citations.] If one is not guilty of the underlying felony due to duress, one cannot be guilty of felony murder based on that felony.' [Citation.] A trial court is required to instruct sua sponte on a duress defense if there is substantial evidence of the defense and if it is not inconsistent with the defendant's theory of the case. [Citation.]" (People v. Wilson (2005) 36 Cal.4th 309, 331.)
"`Duress is an effective defense only when the actor responds to an immediate and imminent danger.' [Citation.] . . . `. . . A "phantasmagoria of future harm" such as a threat of death to be carried out at some undefined time, will not diminish criminal culpability.' [Citation.]" (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1460; accord, People v. Casares (2016) 62 Cal.4th 808, 844.)
For example, in People v. McKinney (1986) 187 Cal.App.3d 583, the defendant, a prison inmate, hit a fellow inmate in the head with a hammer during metal shop class. (Id. at p. 585.) The trial court excluded evidence, offered to support a duress defense, that other inmates had threatened to kill him if he failed to use violence to settle his dispute with the victim (and also if he went into protective custody). (Id. at pp. 585, 587.) The appellate court upheld this ruling: "The other inmates who had threatened defendant were not present in the shop class at the time. In short, defendant's offer of proof established at most a threat of future harm if he failed to confront [the victim]. Thus, the trial court did not err in excluding the offered evidence." (Id. at pp. 586-587.)
Here, similarly, there was no evidence of any threat of immediate harm. At most, the evidence showed that, if defendant failed or refused to participate, the cartel would attempt to kill him and/or his family members sometime in the future.
The evidence that presents the closest question is the threat, "[I]f you guys don't help, then I guess you guys are with `em and you guys have to go too." However, defendant did not say when or under what circumstances this threat was made. This threat had been made to both defendant and his aunt, yet his aunt had subsequently left town and gone to Las Vegas. Thus, evidently it was not an immediate threat.
Defendant points to the fact that, three days before the murders, Lalo pulled a gun on him and accused him of snitching. However, there is no evidence that, at that point, Lalo either explicitly or implicitly ordered defendant to participate in a crime. Moreover, that occurred on Saturday night; on Sunday, after having all night to contact the police or to flee, defendant met Lalo at an El Pollo Loco and agreed to participate.
Defendant also points to the fact that, when two of the victims arrived, he and Perez were in the garage with Baby and another man, who was pointing a gun so they would not run away. However, this did not last long. There was a "commotion," and all four of them ran upstairs; Baby and the other man remained upstairs, while defendant and Perez went back downstairs. Defendant, however, did not take this opportunity to flee. Instead, he and Perez smoked "weed."
Separately and alternatively, we note that, as a general rule, "[t]he defense of duress is not available to one who recklessly puts himself in a position where coercion probably will be applied." (2 Robinson, Crim. Law Defenses (June 2015 Supp.) § 177(a), p. 162; e.g., United States v. Castro-Gomez (1st Cir. 2004) 360 F.3d 216, 219.) Joining a drug ring affiliated with the Sinaloa cartel is, almost by definition, recklessly putting yourself in a position where you must commit any crimes you are ordered to commit, or coercion will surely be applied. (See People v. Nafi (2015) 132 A.D.3d 1301, 1304 [18 N.Y.S.3d 233, 237] ["by voluntarily joining a gang, defendant `intentionally or recklessly place[d] himself in a situation in which it [was] probable that he [would] be subjected to duress' by the higher ranking gang members [citations]."].)
We therefore conclude that the trial court did not err by failing to instruct on duress as a defense.
The judgment is affirmed.
An appeal by Perez and his codefendants is currently pending in this court. (People v. Perez et al., case No. E060438.)