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Feb. 27, 2026 Get Citation Alerts Download PDF Add Note

People v. Ortega CA2/2

California Court of Appeal

• Citations: None known
• Docket Number: B325220

• Precedential Status: Non-Precedential

• Opinion

• Authorities (75)

• Cited By (0)

• Summaries (0)

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Combined Opinion

Filed 2/27/26 P. v. Ortega CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B325220

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA153495)
v.

DANIEL ORTEGA et al.,

Defendants and
Appellants.

APPEAL from judgments of the Superior Court of Los
Angeles County, Kelvin D. Filer, Judge. Affirmed as modified.
John Steinberg, under appointment by the Court of Appeal,
for Defendant and Appellant Daniel Ortega.
Alex Coolman and Cynthia Grimm, under appointment by
the Court of Appeal, for Defendant and Appellant Alfonso Keer.
Derek K. Kowata, under appointment by the Court of
Appeal, for Defendant and Appellant Jaime Chacon.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Eric J. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.

---

Daniel Ortega, Alfonso Keer, and Jaime Chacon
(collectively defendants) appeal from a judgment following a jury
trial. The jury convicted all three defendants of the murder of
Raul Avalos and convicted Ortega of the murder of Jose Baca.1
Each defendant received a sentence of life without the possibility
of parole.
Defendants argue the trial court erred in denying their
motion to sever counts eight and nine, relating to the murder of
Baca, from the rest of the counts and by admitting the hearsay
statement of Angelita Arreaga under the excited utterance
exception to the hearsay rule. Ortega makes several claims of
prosecutorial misconduct, and Keer argues the court erred in
admitting statements made by Trevizu, a coparticipant in the
Avalos murder, during a Perkins operation.2 Keer and Chacon
argue the trial court abused its discretion in denying their motion
for new trial on the ground of newly discovered evidence
regarding alleged misconduct by an investigating officer. Finally,
Keer and Chacon ask that we review the trial court’s Pitchess
ruling for error.3 We find no error concerning these issues.

1 Jonathan Cruz, Rodrigo Trevizu, and Roy Sanchez were
also charged as codefendants for their involvement in the murder
of Raul Avalos but are not parties to this appeal.
2 Illinois v. Perkins (1990) 496 U.S. 292 (Perkins).
3 Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

2
Defendants also raise sentencing errors. Keer and Chacon
argue the trial court erred by imposing parole revocation
restitution fines against them. The People agree. Chacon asserts
he is entitled to an additional day of actual presentence custody
credit because the court miscalculated the amount. The People
agree. The matter will be remanded to the superior court for the
limited purpose of correcting these sentencing errors. For the
reasons set forth below, the judgment is otherwise affirmed.

STATEMENT OF THE CASE
In a nine-count amended information, the Los Angeles
County District Attorney’s Office (the People or the prosecution)
charged Ortega, Keer and Chacon in count one with conspiracy to
commit murder (Pen. Code, § 182, subd. (a)(1)),4 and in count two
with the murder of Avalos (§ 187, subd. (a).)
The information charged Ortega in count three with the
willful, deliberate, and premeditated attempted murder of Ana R.
(§§ 187, subd. (a), 664), in counts five and nine with possession of
a firearm by a felon (§ 29800, subd. (a)(1)); and in count eight
with the murder of Baca (§ 187, subd. (a)).
As to counts one and two, a firearm special allegation
under section 12022.53, subdivisions (b), (c), (d), and (e)(1) was
alleged. As to count two, a section 190.2, subdivision (a)(10)
special circumstance was alleged. As to count three, firearm
special allegations under section 12022.53, subdivisions (b) and
(e)(1) were alleged. As to count eight, a firearm special allegation
under section 12022.53, subdivision (d) was alleged. As to count

4 All further undesignated statutory references are to the
Penal Code.

3
eight, a section 190.2, subdivision (a)(3) special circumstance was
alleged.
As to counts one, two, three, five, eight, and nine, the
information alleged Ortega had been convicted of two serious
and/or violent felonies under sections 667, subdivision (d) and
1170.12, subdivision (b). As to counts one, two, three, and eight,
the information alleged Ortega had two prior convictions of a
serious felony under section 667, subdivision (a)(1).
Ortega moved to bifurcate the trial on the prior conviction
allegations against him. The motion was granted, and he waived
a jury trial on the allegations. Ortega subsequently admitted the
allegations.
On November 18, 2021, the jury trial of Ortega, Keer and
Chacon commenced. On November 29, 2021, the People
announced they would not seek the death penalty.
On January 24, 2022, the People moved to dismiss the gang
allegations under section 1385. The court granted the motion.
On January 24, 2022, the jury commenced deliberations.
On January 25, 2022, the jury returned the following verdicts:
In count one, all three defendants were found guilty of
conspiracy to commit murder.
In count two, all three defendants were found guilty of the
murder of Avalos. The jury found true the allegation that Ortega
personally and intentionally discharged a firearm causing great
bodily injury and death, and the special circumstance that Avalos
was killed because he was a witness under section 190.2,
subdivision (a)(10).
The jury acquitted Ortega of attempted murder in count
three.

4
In counts five and nine, Ortega was found guilty of the
unlawful possession of a firearm.
In count eight, Ortega was found guilty of the second
degree murder of Baca. The jury found true the allegation that
he personally and intentionally discharged a firearm causing
great bodily injury and death, and the multiple-murder special
circumstance.
On June 20, 2022, Keer’s Pitchess motion—joined by
Chacon and Ortega—for discovery of police officer personnel
records was granted. The parties stipulated to be bound by the
rulings in Cruz’s Pitchess motion that was then pending in a
different courtroom.
On September 13, 2022, following an in camera Pitchess
review, the sealed list of discoverable material determined by
Judge Guiterrez in Department Q was filed with the court. The
discoverable material was ordered to be disclosed to defendants.
On November 30, 2022, Ortega was sentenced in count two
to a term of life imprisonment without the possibility of parole for
the murder of Avalos, plus a consecutive term of 10 years for the
firearm use enhancement. Ortega was also sentenced in count
eight to a term of life imprisonment without the possibility of
parole for the murder of Baca, plus a consecutive term of 10 years
for the firearm use enhancement. In count one, Ortega was
sentenced to a term of 25 years to life for conspiracy to commit
murder, plus 10 years for the firearm use enhancement. In
counts five and nine, Ortega was sentenced to middle terms of
two years for unlawful possession of a firearm, to be served
concurrently with count two.
Ortega was ordered to pay $7,662 restitution to the victim
compensation board, a $300 restitution fine, a $200 court

5
operations assessment, and a $150 criminal conviction
assessment. Ortega received 1,121 actual days presentence
custody credit.
Ortega filed a notice of appeal from the judgment on
November 30, 2022.
On November 30, 2022, Keer was sentenced to life
imprisonment without the possibility of parole for the murder of
Avalos. On the same day, Keer filed a motion for new trial,
which was joined by Ortega and Chacon. The motion was denied.
Keer was ordered to pay an $80 court operations
assessment and $60 criminal conviction assessment. He was also
ordered to pay a restitution fine of $300 and a “parole/postrelease
community supervision/mandatory supervision restitution fine”
in the amount of $300.
Keer filed a notice of appeal on December 27, 2022.
On November 30, 2022, Chacon was sentenced to life
imprisonment without the possibility of parole as to count two,
the murder of Avalos. Chacon’s sentence as to count one was
stayed pursuant to section 654. Chacon was ordered to make
restitution to the victim in an amount to be determined at a
restitution hearing and was given actual custody credit of 1,121
days.
Chacon filed a notice of appeal on November 30, 2022.

6
FACTUAL BACKGROUND
The murder of Avalos
The relationships between the parties
Sanchez was a member of the 40th Street gang, also known
as Cuarentas, and his moniker was “Dipz.”5 Sanchez’s brother-
in-law introduced him to Avalos, and Avalos introduced Sanchez
to Candido Ramirez for the purpose of purchasing
methamphetamine.6 Ramirez and Avalos were close friends and
lived together at Ramirez’s house, which was located in the 900
block of East 87th Place in Los Angeles. Sanchez and Ramirez
became friends, and in March or April 2019, Sanchez also moved
into Ramirez’s house. Sanchez eventually began selling drugs
from Ramirez’s home. Sanchez and Avalos also did construction
work with Ramirez. However, at some point, Sanchez stopped
showing up for the construction work and began hanging out with
defendants.
Sanchez joined the Cuarentas gang when he was 18 years
old, because he looked up to one of its members, Keer, whose
moniker was “Oso.” Keer sold drugs and employed others to sell
drugs for him, including Sanchez. Chacon was a Cuarentas
member with the moniker “Terco,” whom Sanchez also knew.

5 On September 27, 2021, Sanchez was interviewed by the
district attorney’s office after he sent word through his attorney
that he wanted to cooperate. In exchange for his cooperation, he
was offered a sentence of 15 years in state prison if he pleaded no
contest to second degree attempted murder. Sanchez accepted
the proposal.
6 Ramirez was given immunity for any charges related to the
illegal sale of narcotics in exchange for his testimony.

7
Sanchez knew Ortega, a member of Southside Watts, with the
moniker “Troubles.” Ortega also sold drugs for Keer.
Ortega introduced Sanchez to Cruz, a member of the Wynos
clique of the Southside Watts gang, who used the moniker
“Scrappy.” Sanchez also knew Cruz’s brother, Trevizu, whose
moniker was “Dopey.”
Sanchez’s relationship with Keer broke down in 2008,
resulting in the two not seeing each other for six or seven years.
During that time Sanchez met Avalos and Ramirez and moved in
with them.
In 2019, Sanchez ran into “Dice,” a gang member who was
a friend of Keer. Dice took Sanchez to see Keer, and Sanchez and
Keer renewed their relationship. Sanchez began selling drugs for
Keer out of Ramirez’s house. Keer gave Sanchez a Nissan
Sentra to drive and helped him find construction jobs. At the
time, Sanchez was using methamphetamine.
Sanchez sold methamphetamine given to him by Keer to
Avalos, although Avalos did not yet have the money to pay.
Sanchez gave Avalos some time to get the money, but Keer
wanted to be paid right away. Ortega, Keer and Chacon showed
up at Ramirez’s house and demanded the drugs back or the
money from Avalos and Ramirez, who did not have the money,
nor all the methamphetamine. They did return the
methamphetamine they had left. Chacon told Ramirez they
would have to start paying taxes.7

7 Ramirez denied ever being told he had to pay taxes or that
he had been threatened regarding the outstanding
methamphetamine debt. Sanchez testified to Chacon’s demand
for taxes.

8
Approximately two weeks later, Keer asked Sanchez, “are
they gonna pay me or what[?]” Sanchez responded, “they haven’t
mentioned it.” Keer told Sanchez, “I’m gonna need you to take
care of that.” Sanchez interpreted this remark to mean he
needed to get Avalos to pay up, move out, or to kill him. The
amount of unpaid money for the methamphetamine was about
$400.
The July 2, 2019 shooting of Avalos
Cell phone records for the evening of July 1, 2019, and the
late afternoon and evening of July 2, 2019, indicate
communications among Sanchez, Keer, and Chacon. Later in the
evening of July 2, 2019, Dice arrived at Ramirez’s house to see
Sanchez, who had not seen Dice for a few months. Sanchez knew
Dice was “there for business.” Dice asked Sanchez, “Are you with
us or are you with them?” Dice showed Sanchez he was armed
with a gun, and Sanchez said, “I’m with two guys.” Having seen
the gun, Sanchez panicked and texted Ramirez, “Come out . . .
they trying to rob you.” One minute later, he texted Ramirez to
come out immediately. Ramirez did not see the texts at the time.
Sanchez and Dice used methamphetamine that night. At
some point, Sanchez took out his gun, a .357 that belonged to
Keer.8 Eventually Dice said to Sanchez, “let’s go to the back.”
When Sanchez and Dice went to the back of the house, they saw
Avalos. Dice asked Sanchez, “so you gonna do him or what?”
Sanchez replied, “Yeah.” He walked towards Avalos and said
“hey.” Avalos turned around, and Sanchez shot him in the arm.

8 Keer would store guns at Chacon’s house. The guns were
passed around among gang members.

9
Avalos started running. Sanchez shot two or three more times,
but Avalos kept running. Sanchez ran off the other way.
Sanchez kept running until he came to the home of Ramiro
“Roly” Valencia. He told Valencia what happened and asked
Valencia to call Keer to come and get him. Valencia gave
Sanchez a change of clothes. Sanchez changed and left his old
clothes and the .357 revolver with Valencia, who gave the gun to
Keer when he arrived to pick up Sanchez. Keer later told
Sanchez he broke the gun down into pieces and threw them in
different trash cans.
Ramirez, who had been asleep during the shooting, woke
up to Avalos banging on his door. When Ramirez opened the door
Avalos said Sanchez shot him.
Los Angeles Police Department (LAPD) Officer Robert
Martinez responded to Ramirez’s house to investigate. Ramirez
told Officer Martinez that Sanchez rented the space in the back
and had shot Avalos with a revolver. Ramirez said he thought
Sanchez was with a man named Dice. The police asked Ramirez
for help moving a Nissan Sentra, later identified as belonging to
Keer, so it could be impounded. Ramirez cooperated. Avalos also
identified Sanchez as the shooter.
The next day, LAPD Detectives Jennifer Carson and Isaac
Fernandez went to Ramirez’s house to interview Avalos, who
recounted the events of July 2, 2019. Avalos indicated Sanchez
had been outside and drunk. When Avalos was walking to his
car to go get something to eat, he turned around and saw
Sanchez heading toward him. Sanchez shot him. Avalos believed
Sanchez was aiming at his face. Avalos thought Sanchez fired six
or seven shots. He ran inside the house after he was struck by
gunfire. Avalos identified Sanchez as a member of the Florencia

10
gang. At the time of the shooting, Sanchez was with a friend and
fellow gang member. Avalos had no idea what Sanchez’s motive
was for shooting him. He found Sanchez to be paranoid at times,
but he never had any problems with Sanchez. The detectives
showed Avalos photos, from which Avalos identified Sanchez.
Events following the July 2, 2019 shooting of Avalos
and Sanchez’s arrest
On July 3, 2019, Ramirez texted Sanchez, “u fucked up
because he will be okay” and “u just flipped ur life around.”
Sanchez did not see the texts until the following day, when
Chacon and Ortega went to pick up his belongings, including his
phone, which he had left at Ramirez’s house.
On July 11, 2019, Sanchez texted Ramirez, “Ima need the
car back. I had ‘til the 20th paid to have my stuff there. There is
no reason why that car was pushed out and how did you get it
out . . . without the key. That car belonged to someone else. U
[k]new that. Now he wants it back by any means.” Ramirez
responded the car had been impounded or taken by the police,
and Sanchez texted him, “so who picked it up so I can call them.”
Ramirez responded by text, “you messed up.” By text message
Ramirez informed Sanchez that his friends had picked up his
things and he had moved the car so the police could take it.
Ramirez also told Sanchez, “I was your friend. I never would
have hurt you. Good luck . . . .” Sanchez replied by text, “I didn’t
do shit. You simply kicked me out . . . .” He also asked if
Ramirez told police that he shot Avalos. Ramirez replied, “No
one kicked you out. You did this to yourself.”
Sanchez continued texting Ramirez about moving the car
and told Ramirez he would have to deal with Keer. He blamed
Ramirez for calling the cops, and Ramirez replied, “when

11
someone gets shot the cops have to get involved stupid.” Sanchez
texted, “Who got shot?,” to pretend as if he had not shot anyone.
The exchange ended with Sanchez apologizing for “everything.”
On July 15, 2019, Sanchez went to see Ramirez and Avalos
so he could apologize to them. Ramirez came out with a rifle, told
him to leave and that he called the police. They talked for a
couple of minutes before the police arrived and arrested Sanchez.
On July 16, 2019, Sanchez called Keer from jail, saying he
had been arrested and would be going to court the next day.
Sanchez also told Keer the police got their information about the
shooting from someone he used to live with. Cell phone records
indicate that following the call, Keer communicated with Ortega
and Chacon.
On the same date Sanchez called Ramirez from jail.
Sanchez asked Ramirez to change his story to say he made a
mistake, it was not Sanchez who shot Avalos.
The murder of Avalos
Social media records linked the parties and their gang
monikers. Keer had a relationship with Esmerelda Renteria,
Sanchez, and Ortega. Chacon’s social media showed
relationships with Sanchez and Keer. Records for Ortega showed
conversations with Cruz, Renteria, and Trevizu. Records for
Trevizu linked him with his gang and Cruz, as well as Sarai
Barba. Records for Sanchez showed his relationships with Keer,
Ortega, and Renteria.
Within Ortega’s records were conversations about whether
or not Sanchez would be in court after his arrest for shooting
Avalos. The discussions took place on July 15, 2019, between
Ortega and Cruz. The two also discussed needing firearms.
Conversations on July 17, 2019, indicated Ortega was at

12
Sanchez’s arraignment, where he was “making sure nobody
shows up to snitch.”
Ortega communicated with Trevizu after Sanchez’s
arraignment. Trevizu asked for Keer’s phone number. Ortega
responded that he was at Keer’s house, and Keer was sleeping.
Trevizu provided Ortega with a phone number and asked Ortega
to have Keer call him.
On the morning of July 20, 2019, before Avalos was
murdered, Ortega communicated with Cruz, who was then with
Trevizu. Cruz asked if Ortega was close by because he needed a
gun and a phone. Ortega told Cruz he was not nearby, but “we
gonna have to do that for [Sanchez]. Then you can have the
[gun]. Just don’t lose it.” Ortega said he had a government
phone, and Cruz asked, “When you wanna do this?” Ortega
replied, “I was hoping this morning.” They coordinated when
they would meet and get the guns, which were in Compton where
Chacon lived.
Ortega next communicated with Trevizu. He told Trevizu
he was on his way. Trevizu asked where they would meet, and if
they should go to Keer. Ortega responded, “No. I’m coming to
you.” Trevizu’s records showed he communicated with Barba just
before the murder.
Keer also communicated with Ortega and Chacon leading
up to Avalos’s murder.
Renteria was introduced to Chacon by her friends Keer and
Ortega. On July 19, 2019, Ortega took her to a nightclub and
drove her home in her dark blue GMC Envoy. At 2:00 a.m., on
July 20, 2019, she let Ortega borrow the car.
Barba was Trevizu’s girlfriend. Trevizu, his brother Cruz,
and Cruz’s family were staying at Barba’s home on July 20, 2019.

13
In the early morning of July 20, 2019, Cruz convinced Trevizu to
give him a ride. Trevizu, Barba, and Cruz all left in Barba’s gray
Nissan Armada. Trevizu was driving, and they met up with
Ortega, who was alone in the Envoy. Trevizu parked the
Armada, and he, Barba, and Cruz got into the Envoy with
Ortega.
Ortega drove them to a house with a black metal gate in
front. Ortega whistled, and Chacon opened the gate. Ortega
drove the Envoy past the gate, stopped the car, and he and Cruz
got out. They then got back in the car and Chacon followed them
in a gold Mercedes to a gas station. They drove back to the
Armada, where Barba got out because the others told her she
might be in danger due to driving into rival gang territory.
Barba stayed with her Armada, and the others left.
Detective Fernandez reviewed surveillance video captured
around the time of Avalos’s murder that showed a dark colored
GMC Envoy and a gold Mercedes. The driver of the Envoy
appeared to be wearing a bright orange shirt. Both vehicles
turned onto the street where Avalos lived. Detective Fernandez
saw two individuals wearing dark clothes stepping away from the
stopped Envoy and walking towards Avalos’s residence.
Thereafter, the gold Mercedes appeared. Eventually the two men
in dark clothes ran back and got into the Mercedes, which drove
south while the Envoy drove north. It appeared that one man
was on the phone. The cars later met up and were joined by a
third vehicle, a Nissan Armada. The three vehicles stopped, and
three individuals exited the Envoy. Two of them got into the
Armada, and one of the passengers from the Envoy jumped into
the driver’s seat. The Mercedes and Envoy then went in one
direction, and the Armada went in the other direction.

14
Detective Fernandez later learned Renteria owned the
Envoy. The vehicle was impounded in November 2019. The
Mercedes belonged to Chacon and was located at Chacon’s
residence. The Armada belonged to Barba and was registered to
her mother.
Cell phone records revealed at approximately 9:57 a.m. on
July 20, 2019, Ortega called Trevizu. A few seconds later,
Trevizu called Barba. Next, Trevizu conferenced Ortega into the
call with Barba. The call among the three lasted approximately
10 minutes. Additional records placed Ortega’s and Trevizu’s
phones in the vicinity of the murder at the time it occurred.
Ramirez, Avalos, and Ana R. were at Ramirez’s house
before the murder. Ramirez left for work at 9:40 a.m. Ana R.
said Ramirez tried to convince her to come to work with him that
day, but she stayed behind at the house.
Ana R. went to her car to unload paint, and “two young
men came in that . . . were dressed in black.” Both men had
guns. Ana R. stopped what she was doing and followed the two
men. The two men started shooting into Avalos’s room while
Avalos was on the bed. Ana R. yelled to Avalos, who ran to the
bathroom, followed by the men. Avalos shut the door, but one of
the two men knocked it down. The other pointed a gun at Ana R.
One man shot and killed Avalos, who sustained a total of seven
gunshot wounds. The other tried to shoot Ana R., but he was out
of ammunition. The two men then left.
LAPD Officer Andres Sandoval responded to Ramirez’s
house after the shooting. When he arrived, Ana R. directed him
to the rear unit where he entered and saw Avalos with a gunshot
wound to the head. There was a bullet casing, cell phone, and
drug paraphernalia in the room. The police determined they

15
were looking for a gold Mercedes. Ana R. informed the officers
she was aware Ramirez sold drugs at the house and explained
Avalos was shot because he was not paying taxes to sell drugs in
that area.
The police recovered seven 9-millimeter bullet casings,
some in the bathroom and some not.
Ramirez arrived home at 3:00 p.m. and was informed by
police Avalos had been killed. Ana R. was scared and didn’t know
who she could trust. Ramirez offered her $10,000 to tell him who
the shooters were, but Ana claimed to not be certain of their
identities.
At the time of the shooting Trevizu called Barba, who was
waiting in her Armada. During the call, she heard gunshots and
screaming. When Barba asked what was going on, Trevizu said
something about a shooting. Trevizu said he was coming to get
her and instructed her to follow him when he arrived. Trevizu
arrived in the Envoy while he was still on the phone with Barba.
She tried to follow him, but he was driving so fast that she lost
him. He then gave her instructions how to find him. Once she
drove to meet the Envoy and the Mercedes, Barba moved into the
Armada’s passenger seat. Trevizu got into the driver’s seat, and
Cruz got in the rear passenger seat and they drove away.
Events following Avalos’s murder
On July 20, 2019, at 1:00 p.m., Renteria sent a text
message to Ortega and told him she wanted her car returned.
Between 2:00 p.m. and 3:00 p.m., Ortega and Keer arrived in
Keer’s red Chevy Avalanche truck. They drove Renteria to some
place in Compton or Long Beach, where Ortega pulled her Envoy
out from behind a black gate. Renteria got in her car and drove
home.

16
On July 21, 2019, Ortega sent a message to someone
named Cody Westbrook and asked, “What’s the word?”
Westbrook replied he was waiting for some individuals to give
him money. Westbrook asked Ortega if he needed money, and
Ortega responded, “Can’t say much. I have to bust a ghost.”
On July 22, 2019, Ortega sent a message to someone that
read, “Say ‘yes’ before I go turn myself in.” The individual
replied, “Make sure you delete our text.” Ortega also messaged,
“If I keep running, I’m getting the death penalty. But if I turn
myself in, I’m good.” In another message using Instagram,
Ortega wrote, “I’m [in] desperate need of help. I’m on the run.”
He continued to say he needed somewhere to hide and could not
call Keer because he brought attention to Keer’s house. Ortega
sent additional messages regarding needing somewhere to hide.
On July 31, 2019, Ortega sent a message to Renteria
asking her when Sanchez had his next court date. Renteria
responded with a screenshot of Sanchez’s inmate information,
adding Sanchez’s next court date was August 15, 2019.
The death of Baca
Baca was killed on September 15, 2019, outside of El
Latino Alegre nightclub. His body was found nearby at the
corner of Beach Street and Firestone Boulevard.
Security cameras recorded Ortega entering the nightclub at
9:55 p.m. and Keer entering shortly thereafter. The camera also
captured Baca and Chacon at the nightclub, including the view of
Chacon walking to Ortega and greeting him. Keer then greeted
Chacon. Witness Arreaga was seen speaking to Chacon.
Security cameras showed Baca dancing with a woman
when Ortega walked past Baca, towards the bathroom. Ortega
then returned to where he was with Keer and Chacon. Keer

17
appeared to say something to Chacon, and then Chacon and
Ortega followed Keer out of the nightclub.
At 11:40 p.m., Baca left the nightclub. Baca approached
Ortega in the parking lot, and a few moments later, Arreaga left
the nightclub. Arreaga then returned to the inside of the
nightclub and spoke with Keer, who had reentered and was
dancing. Keer then left and reentered the nightclub multiple
times and continued dancing.
Ruby Rojas was inside a Chevy Astro van, parked in front
of the nightclub at the time of the shooting. At 11:50 p.m., she
saw two men in a verbal altercation. One, later identified as
Ortega, was thin and short, with a bald head and lots of tattoos.
The other man, later identified as Baca, was tall and slightly
chubby. Baca had followed Ortega out of the club. Baca asked
Ortega for a cigarette, and an argument ensued. Ortega went to
a red Chevy Avalanche, parked nearby, retrieved a gun from the
front passenger side, and shot Baca. Ortega then “took off
running.” Following the shooting, Rojas spoke with detectives.
From photographs, she identified Ortega as the shooter. Baca
died as a result of the gunshots.
Arreaga testified she was working as a server at the
nightclub that evening. She went outside and saw some people
fighting in the parking lot. She then returned and told Keer,
whom she knew, about the fighting.9

9 Arreaga stated she was afraid to come to testify in court
against “those who killed the young man.” She was “scared of
those Cholos because [she] kn[ew] how they work.” She stopped
working at the nightclub after the shooting because she “didn’t
want them to go after [her.]”

18
Zulma Orellana was also working at the nightclub when
the shooting occurred. She knew Keer and danced with him that
evening. While they were dancing, Arreaga approached them
and asked Keer, “How can you let your young men go around
with guns[?] She said he’s going to go and get one . . . and he’s
going to kill another guy.” After the shooting, Keer asked
Orellana to dance again. He asked for her phone number and
told her, “the police are going to come,” “just act normal,” and
“nothing happened here.” Keer asked her where the cameras
were located in the nightclub, and she showed him. He was
nervous because police were watching the recordings.
LAPD Detective Noelle Judge interviewed Orellana after
the shooting in an undercover police car because Orellana was
scared she would be identified. Orellana was “very stressed
and . . . very timid.” Orellana identified Keer as the man she had
been dancing with before the shooting and mentioned a man,
believed to have been the killer, with him. She referred to Keer
as the boss of the killer.
David Moreno Garcia was working as a DJ at the nightclub
at the time of the shooting. Before it occurred, someone in the
club yelled, “they’re fighting.” Garcia went outside and heard an
individual say, “someone’s armed.” Garcia saw the gunman
holding the gun and saw the other man launch himself at the
gunman. He then heard and saw a gunshot. The gunman fled
afterward.
Police investigation of the Baca shooting
Los Angeles County Sheriff’s Department Detective Gordon
Lukehart investigated the murder of Baca. When he arrived at
the nightclub, he saw the Astro van and the Avalanche that was
registered to Keer. Detective Lukehart also saw graffiti in the

19
area belonging to the Southside Watts gang. In a nearby alley
there was a blood trail and nine-millimeter cartridge casings.
Detective Lukehart reviewed Ortega’s social media records,
including a September 19, 2019 discussion between Ortega and
Rick Esquivel. Ortega messaged Esquivel, “so tell me who just
got smoked on Beach Firestone.” Esquivel replied, “I don’t
know.” Ortega asked, “do you know if he was from a hood or a
tagger,” to which Esquivel responded he did not know. Ortega
then confessed, “cuz I’m the one who did that.”
On October 3, 2019, sheriff’s deputies recovered a nine-
millimeter handgun from Jose Bobadilla, who was known as
“Tiny.” It was determined to be the gun used to kill Baca.
Detective Lukehart reviewed text messages on Ortega’s
phone, including those between Ortega and someone named Kane
beginning on October 4, 2019. Ortega messaged Kane, “So I
guess all the little homies are going to burn me for my heats.
First Scrappy and now Tiny and Kane supposedly list my last
nine to the cops . . . .”10 The next message from Ortega read,
“How the fuck am I going to look asking them to supply me when
I had three 9’s, two 357’s and now I’m stuck with a fucking
shotgun . . . .”
Events following defendants’ arrests
Attack on Sanchez in jail
While Sanchez was in custody, Ortega admitted to him he
killed Avalos.
Also while in custody, Sanchez feigned a mental health
issue in order to get out of the general population, where he owed
a debt for drugs he could not pay. Although he was removed from

10 Ortega was referring to a gun.

20
the general population, he was attacked on September 8, 2020,
while being held with Keer, Chacon, and Cruz at court. He
reported not knowing who hit him, and was taken to the hospital
for treatment of his wounds.
On the day of the attack, Deputy Fernando Carrillo was
working as a bailiff, and Sanchez’s attorney requested to speak
with Sanchez. Deputy Carrillo located Sanchez, who had blood
on his shirt and a laceration to the back of his head. Deputy
Carrillo asked Sanchez what happened, and Sanchez replied he
had fallen and hit the back of his head. After speaking with
Sanchez, Deputy Carrillo spoke with Keer and Chacon among
others in the holding cell. None of the men provided any
explanation as to how Sanchez was injured.
Deputy Francisco Padilla was also working as a bailiff at
the time and investigated the attack of Sanchez. He attempted to
photograph the hands of the individuals who were in the cell with
Sanchez but was denied access. They refused to talk to him and
turned their backs.
Police interviews following defendants’ arrests
Trevizu
Following Trevizu’s arrest, he was interviewed by LAPD
Detectives Michael Levant and Isaac Fernandez. Trevizu
admitted he was involved in the Avalos murder but would not
implicate anyone else in the crime.
Chacon
In an interview on November 5, 2019, Chacon told
Detective Fernandez the reason he was driving the Mercedes in
the area at the time of Avalos’s death was to visit Valencia. He
said he was following the Envoy because he wanted to flirt with

21
Renteria. Chacon explained that while he was driving around he
saw Ortega and another individual and gave them both a ride.
Ortega
On November 5, 2019, Ortega was interviewed by LAPD
Detectives Levant and Fernandez. Ortega admitted his moniker
was “Troubles,” and he was a member of the Wynos clique of
Southside Watts, though he had not been involved with the gang
for three years. He also claimed not to have a phone number, as
the phone he had was only for using Wi-Fi. People communicated
with him through “Messenger or Instagram.”
Ortega admitted he knew Sanchez but did not know him
well. Ortega said Sanchez drove a black Nissan Sentra,
confirmed where Sanchez lived, and did not know whether
Sanchez was a gang member. Ortega heard Sanchez got “busted”
for attempted murder, though he did not know the details, as he
was not there. He speculated Sanchez “[t]weaked out.”
Ortega acknowledged he was arrested with Keer, who was
someone Ortega sometimes worked for in construction. He stated
Keer’s moniker was “Oso,” and he was a member of Cuarentas.
Ortega opined Keer was no longer active in the gang. Ortega said
Keer speaks Spanish and his mother is Mexican.
Ortega admitted he knew Renteria, who he believed drove
a black Chevy SUV. He also knew Cruz and Trevizu, who were
members of the Wynos clique of Southside Watts. Ortega
admitted he knew Chacon and that Chacon’s wife drove a tan
Mercedes that Ortega had ridden in twice, once when he went
with Chacon to attend Sanchez’s July court appearance.
Ortega said he was working a construction job at the time
of Avalos’s shooting but did not recall whether he was working on
that precise date. When asked by detectives why cell phone

22
tower records placed Ortega’s phone at the crime scene, Ortega
had no explanation, but denied involvement in the shooting.
Ortega claimed to have dropped off Renteria at a nightclub
called El Malecon, keeping her SUV until the next morning,
when he was with Chacon.
Ortega later admitted he killed Avalos because he thought
the victim snitched on Sanchez. He said he was the shooter but
did not remember how many times he fired the gun. He claimed
to have acted alone and knew he was targeting a man who was
bandaged up after being recently shot. After the shooting, Ortega
walked to Ted Watkins Park with the gun, which he lost later.
He identified the gun as a “nine.”
Ortega admitted Sanchez shot Avalos in the past with his
gun, because Sanchez “was spun the fuck out” and “was
hallucinating.” Ortega had been stashing his guns in the alley
behind Chacon’s house. When asked who ordered the shooting,
Ortega replied, “Everybody made their own decision that day.”
He admitted Cruz said, “Hey, I’m in with you, dawg. I’m going to
shoot with you.”
Ortega explained he was in Renteria’s Envoy, and the
others involved were with Trevizu in a big SUV. He and the
others met up, and everyone followed Ortega. Then they went to
pick up guns in Compton, they dropped off Barba, who then got
into a Nissan Armada. He and the others then took Renteria’s
Envoy to the place of the shooting. The gate was open. Ortega
walked into the backyard and saw a woman, who began to stutter
and ran into the house. When she opened the door, Ortega
followed her in and started shooting. Ortega admitted Cruz and
Trevizu were with him, and there was another shooter. They fled
and returned to where Barba was dropped off.

23
The Perkins operation
Following Trevizu’s arrest on November 19, 2019, he was
placed in a jail cell with a confidential undercover informant, and
their conversation was recorded. Trevizu admitted being one of
the drivers to the scene of the Avalos murder, but stated, “I didn’t
know—I didn’t know that they were going to do all that, you feel
me? [Inaudible] drive me here, so I drove them there and took
off. Next thing you know—” When asked, “what’s your brother
got to do with it?,” Trevizu responded, “He’s the fuckin’ one.”
Trevizu explained that “the fools that were staying [on 87th],
snitched on my homie, for him to get life. So, they went to go get
[inaudible].” Trevizu later clarified, “They were doing him a
favor. I was just driving.” Trevizu admitted his “girl was there
that day too,” but that she was “waiting for [him] on 89th.”
Trevizu said five individuals were involved in the shooting.
He identified Keer, whom he referred to as “Oso,” as having been
involved. He described Oso as being Black, but from Cuarentas,
a Mexican gang. Trevizu added, “I was the driver . . . my girl, she
was in my car to getaway. Then it was my brother and some
other . . . the homie from the hood. Those two were the shooters.”
When asked where Oso was, Trevizu said, “Oso’s the one that
told us to go.”
Trevizu claimed he did not know about a plan to kill
Avalos, but he was aware Avalos was killed because Avalos “was
snitching.” Trevizu stated, “My brother just told me . . . we got to
go and get [Sanchez’s] stuff out from this house, you know? And
he was saying . . . we got to go get his car, his clothes . . . I’m,
like, . . . Let’s go. So I go. All right. Shit happened.”
Trevizu explained after he dropped off the passengers in
his car, his girlfriend picked him up in a different car, a truck.

24
He admitted three cars were used in connection with the killing,
and the only one not yet identified by police was his girlfriend’s
truck.
Defense evidence
Neither Chacon nor Ortega presented any affirmative
evidence.
Keer presented two witnesses: Jonathan Sabag and
Nicholas Turley. Sabag was an electrical contractor who
employed Keer and allowed Keer to bring Ortega when a job
required extra help. Sabag also allowed Keer to use his Chevy
Avalanche, which he eventually sold to Keer. He never observed
Keer engage in any criminal behavior.
Turley was a contractor who owned a home on West 90th
Street where Keer lived. Keer also worked for Turley on some
construction jobs. Sometimes Keer brought Ortega in on jobs.
Turley never saw Keer engage in any criminal behavior.

DISCUSSION
I. Motion to sever counts eight and nine
Ortega contends the trial court erred in denying his motion
to sever counts eight and nine concerning the killing of Baca.11
Keer and Chacon join this argument.
A. Relevant trial court proceedings
On June 18, 2021, Chacon moved to sever his trial from
count eight on Aranda–Bruton grounds, among others.12 The

11 Ortega was charged in count eight with the murder of Baca
(§ 187, subd. (a)) and in count nine with possession of a firearm
by a felon (§ 28900, subd. (a)(1)).
12 People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United
States (1968) 391 U.S. 123.

25
People opposed the motion. On September 27, 2021, Chacon
moved to exclude all evidence relating to him as to count eight in
the event the trial court denied his motion to sever.
At a July 28, 2021 pretrial hearing, Chacon’s counsel
argued the evidence of Chacon’s presence at the nightclub at the
time of Baca’s murder was highly prejudicial. Counsel also
argued the evidence of Chacon socializing with Ortega after the
Avalos murder could inflame the jury and prejudice his client. In
addition, counsel was concerned the jury might think Chacon was
gathering information for Ortega because he was “sort of looking
over sheriffs’ shoulders” while they watched nightclub
surveillance video of the crime. In sum, counsel argued failing to
sever count eight would violate Evidence Code section 352. Keer
concurred in the arguments made by Chacon’s counsel.
The prosecution argued the motion should be denied and
the evidence was cross-admissible due to the conspiracy charged
in count one. The prosecution claimed it was entitled to present
evidence of the defendants’ close friendship and the “nature of
their relationship,” adding the evidence would show the
defendants who were not charged in the Baca murder were
“interested and inquiring about whether or not there is
surveillance tape, and then trying to view it, [which] is important
in showing their loyalty to each other and to Mr. Ortega.” The
prosecution claimed no prejudice as Ortega admitted the Baca
murder and “takes it all on himself.”
The motion to sever count eight was denied. The court
explained it did not “think that the co-defendant being charged
with a separate murder is particularly prejudicial to these
defendants since there’s ample evidence that none of them were
involved.” The court noted Keer and Chacon were not charged in

26
count eight, and a limiting instruction ensuring their presence at
the nightclub could not be considered with the remaining counts
could be given.
Keer orally moved for severance, arguing, “The people are
using . . . evidence of this other murder [Keer’s] not charged with
which is the classic severance issue to try to strengthen their
weaker case which is Avalos against my client by just suggesting
where there’s smoke there’s fire. . . . He’s more likely to be
involved in this other murder. That’s highly prejudicial.” The
prosecution responded that evidence of the nature of defendants’
relationship was highly probative of the conspiracy charge.
Keer’s counsel claimed the prosecution had ample evidence of the
relationship among the defendants even if the court granted the
severance motion. Ortega’s counsel joined the motion for
severance, stating the court should “sever out the Baca murder
for Ortega separately. It would save court time and keep
irrelevant evidence from coming in against the three defendants
with regard to the Baca shooting.”
Chacon’s counsel asserted the defendants’ associating at a
nightclub “four” months after the Avalos murder did not mean
they trusted each other enough to be involved in a murder
conspiracy. He pointed out there was no evidence they came to
the club together or left together, arguing it was “guilt by
association.” The court rejected defendants’ arguments.
The court observed the evidence from the Baca murder was
relevant to establish the relationship among the defendants. As
a result, the motion to sever was denied, but the court explained
the jury would be instructed as to which counts pertained to
which defendants. The court later added Ortega’s statement to
the police would be redacted.

27
B. Applicable law and standard of review
Section 954 states, in part, “[a]n accusatory pleading may
charge two or more different offenses connected together in their
commission, . . . or two or more different offenses of the same
class of crimes or offenses, under separate counts.” Offenses are
connected when they are “‘“‘linked by a “‘common element of
substantial importance’”’”’” such as motive or intent. (People v.
Westerfield (2019) 6 Cal.5th 632, 686 (Westerfield).) “‘Offenses of
the same class are offenses which possess common characteristics
or attributes.’” (People v. Landry (2016) 2 Cal.5th 52, 76.)
Generally, “the law prefers trying charged offenses together
because doing so ordinarily promotes efficiency.” (People v.
Anderson (2018) 5 Cal.5th 372, 388 (Anderson); see also
Westerfield, supra, 6 Cal.5th at p. 689.) However, “the court may
order the counts tried separately.” (Anderson, supra, at p. 388.)
Section 954 provides, “[T]he court . . . , in the interests of justice
and for good cause shown, may in its discretion order that the
different offenses or counts set forth in the accusatory pleading
be tried separately or divided into two or more groups and each of
said groups tried separately.”
The defendant bears the burden of demonstrating the
denial of severance was a prejudicial abuse of discretion. (People
v. Kemp (1961) 55 Cal.2d 458, 477.) “‘In determining whether a
trial court’s refusal to sever charges amounts to an abuse of
discretion, we consider four factors: (1) whether evidence of the
crimes to be jointly tried is cross-admissible; (2) whether some
charges are unusually likely to inflame the jury against the
defendant; (3) whether a weak case has been joined with a
stronger case so that the spillover effect of aggregate evidence
might alter the outcome of some or all of the charges; and (4)

28
whether any charge carries the death penalty or the joinder of
charges converts the matter into a capital case.’” (Anderson,
supra, 5 Cal.5th at pp. 388–389.)13
Next, a reviewing court must determine whether joinder
resulted in gross unfairness to the defendant. “[E]ven if the trial
court’s ruling was proper as a matter of state law, we will reverse
the judgment if the defendant shows that joinder of the charges
actually resulted in ‘“‘gross unfairness’”’ amounting to a denial of
due process during the guilt phase.” (People v. Simon, supra, 1
Cal.5th at p. 123.) While improper joinder does not violate the
Constitution, “misjoinder would rise to the level of a
constitutional violation . . . if it results in prejudice so great as to
deny a defendant his Fifth Amendment right to a fair trial.”
(United States v. Lane (1986) 474 U.S. 438, 446, fn. 8.)
A trial court’s erroneous refusal to sever a defendant’s trial
from a codefendant’s trial requires reversal if the defendant
shows, to a reasonable probability, that separate trials would
have produced a more favorable result (People v. Tafoya (2007) 42
Cal.4th 147, 162); or if joinder was so grossly unfair that it
deprived the defendant of a fair trial (People v. Avila (2006) 38
Cal.4th 491, 575).
We review a trial court’s denial of a motion for severance
for abuse of discretion. (People v. Armstrong (2016) 1 Cal.5th
432, 455–456.) To show an abuse of discretion, a defendant must
make a clear showing of prejudice by demonstrating that the

13 We refer to these factors as the Anderson factors. Ortega
refers to the factors as the Williams factors, citing Williams v.
Superior Court (1984) 36 Cal.3d 441 (Williams), superseded by
statute as stated in People v. Simon (2016) 1 Cal.5th 98, 124,
which listed the same factors.

29
denial exceeded the bounds of reason. We evaluate a defendant’s
claim in light of the facts known by the trial court at the time of
the court’s ruling. (Westerfield, supra, 6 Cal.5th at p. 689.)
C. Application of the Anderson factors shows no
abuse of discretion
The crimes at issue at trial met the statutory requirements
for joinder under section 954. The Baca murder alleged in count
eight was the same class of crimes or offenses as alleged in the
other counts. (§ 954.)14 We therefore analyze the Anderson
factors to determine if the trial court’s refusal to sever amounted
to an abuse of discretion. (Anderson, supra, 5 Cal.5th at pp. 388–
389.)
1. Whether evidence of the crimes to be jointly tried is
cross-admissible
The People argue the evidence in count eight was
admissible to establish the relationship between defendants and,
accordingly, to show the existence of the conspiracy charged
against defendants in count one. As set forth in People v.
Bradford (1997) 15 Cal.4th 1229, 1315–1316, we ask whether
evidence on each of the joined charges would have been
admissible under Evidence Code section 1101 in separate trials
on the other charges.
The prosecution argued the evidence of the Avalos and
Baca murders was cross-admissible in light of the conspiracy
charged in count one. It showed defendants knew each other and
the nature of their relationship. Specifically, security camera

14 As defendants failed to request severance of count nine
below, any claim that count nine should have been severed has
been forfeited on appeal. (People v. Maury (2003) 30 Cal.4th 342,
392.)

30
footage showed defendants were together at the club the night of
the Baca murder, and Ortega and Chacon followed Keer outside
shortly before the Baca murder. In addition, there was evidence
Keer and Chacon were inquiring about the surveillance tape, and
trying to view it, demonstrating their loyalty to Ortega and to
each other. Orellana provided evidence Keer was with the killer
and Keer was the killer’s boss. Orellana further provided
evidence Arreaga said to Keer, “how can you let your young men
go around with guns. She said he’s going to go and get one . . .
and he’s going to kill another guy.” Keer instructed Orellana to
act as if nothing happened and took interest in the positioning of
the surveillance equipment. All this evidence, the People argue,
was cross-admissible to show Keer’s role in the conspiracy
charged in connection with the Avalos murder.
Defendants disagree the evidence of defendants socializing
at the nightclub on the night of Baca’s murder was cross-
admissible. Instead, they argue marginal and cumulative
evidence that Ortega was at a nightclub with Keer and Chacon
on the night of the Baca killing failed to justify admitting all the
evidence regarding the conspiracy to murder Avalos in the trial of
the Baca killing.
Defendants claim the evidence in the Avalos murder was
not cross-admissible for three reasons: (1) the nature of the
relationship among the coconspirators in the Avalos murder was
not relevant after termination of the conspiracy; (2) there was no
common plan, modus operandi or intent between the two
murders; and (3) the gang enhancements did not support cross-
admissibility of evidence. We discuss each argument separately.

31
a. Evidence after termination of conspiracy
Defendants first argue evidence of a conspiracy must be
limited to evidence of the “‘“conduct, relationship, interests and
activities of the alleged conspirators before and during the
alleged conspiracy.”’” (People v. Homick (2012) 55 Cal.4th 816,
870 (Homick).) The overt acts in furtherance of the conspiracy to
murder Avalos culminated on July 20, 2019. While defendants
concede evidence of the nature of the relationships among the
defendants before the murder of Avalos was unquestionably
relevant to the conspiracy to murder him, in contrast, the nature
of the relationships between defendants after the murder was not
relevant to the conspiracy and murder of Avalos, nor was it
relevant to the murder of Baca. Thus, defendants argue, the
evidence was not cross-admissible.
“‘Conspiracy requires two or more persons agreeing to
commit a crime, along with the commission of an overt act, by at
least one of these parties, in furtherance of the conspiracy.’”
(Homick, supra, 55 Cal.4th at p. 870.) “If the agreement between
the conspirators is the crux of criminal conspiracy, then the
existence and nature of the relationship among the conspirators
is undoubtedly relevant to whether such agreement was formed,
particularly since such agreement must often be proved
circumstantially.” (Ibid.)
Here, the nature of the relationships between the
defendants was relevant to the charges of conspiracy to commit
murder and murder of Avalos. While the conspiracy to murder
Avalos had ended by the time of the Baca murder, evidence of the
defendants’ interactions and concerns at the nightclub on the
night of the Baca murder illuminated the nature of those
relationships. While defendants provide citations stating the

32
general principle that evidence of the nature of the relationships
between coconspirators prior to and during a conspiracy is
admissible, they provide no citation to law expressly forbidding
the joinder of later crimes illuminating such relationships.
In Homick, the defendant objected to testimony unrelated
to the conspiracy to murder the victims. (Homick, supra, 55
Cal.4th at p. 870.) The Homick court found the trial court did not
abuse its discretion in admitting such testimony “as relevant to
establish the relationship” between the defendant and a
coconspirator. (Id. at p. 871.) People v. Rodrigues (1994) 8
Cal.4th 1060, 1134–1135, abrogated on other grounds as stated in
People v. Leon (2020) 8 Cal.5th 831, 848, concerned instructional
error and is therefore not relevant.
Defendants also cite People v. Saling (1972) 7 Cal.3d 844,
852, People v. Leach (1975) 15 Cal.3d 419, 432, and People v.
Hardy (1992) 2 Cal.4th 86, 147, for the proposition a “conspiracy
usually comes to an end when the substantive crime for which
the coconspirators are being tried is either attained or defeated.”
(Saling, supra, at p. 852.) Saling, Leach and Hardy involved
arguments that certain statements were erroneously admitted
under the coconspirators exception to the hearsay rule found in
Evidence Code section 1223. This exception to the hearsay rule is
not relevant here, therefore these cases have no bearing on the
issues before us.15 People v. Zamora (1976) 18 Cal.3d 538,

15 Krulewitch v. United States (1949) 336 U.S. 440 also
involved admission of a hearsay statement made by a
coconspirator not made in furtherance of the objectives of the
conspiracy. The Krulewitch court found the statement was “not
admissible on the theory that it was made in furtherance of the

33
involved the question of whether the indictment was barred by
the then-applicable three-year statute of limitations regarding
conspiracies to commit arson, to burn insured property with
intent to defraud insurer, and to commit grand theft. (Id. at
pp. 543–544.) No statute of limitations issue is before us,
therefore the case is inapplicable.16
None of the cases cited by defendants on this point involved
the joinder of separate counts at trial. Unlike in the cases cited
above, the prosecution here made no argument the conspiracy to
murder Avalos continued beyond the date of his murder. Instead,
they argued the evidence concerning events at the nightclub on
the night of Baca’s murder reinforced the evidence of the
relationships between the defendants. Keer, who was implicated
in the conspiracy as the leader who ordered the killing, was also
identified as the killer’s boss at the time of the Baca murder. The
evidence of the three defendants together in the club, along with
Keer and Chacon’s actions following the murder, showed their
familiarity and loyalty to each other.
Further, even if the evidence were not cross-admissible,
that alone is insufficient to show the trial court abused its
discretion by failing to sever the Baca murder count. (Alcala v.
Superior Court (2008) 43 Cal.4th 1205, 1221 (Alcala) [“even the
complete absence of cross-admissibility does not, by itself,
demonstrate prejudice from a failure to order a requested
severance”].) The Supreme Court has “repeatedly . . . found a

alleged criminal transportation undertaking.” (Id. at pp. 442–
443.)
16 Grunewald v. United States (1957) 353 U.S. 391 also
involved the statute of limitations, thus is unhelpful to
defendants.

34
trial court’s denial of a motion to sever charged offenses to be a
proper exercise of discretion even when the evidence underlying
the charges would not have been cross-admissible in separate
trials.” (Ibid.) Thus, even if the evidence were not cross-
admissible, the trial court’s ruling is not an abuse of discretion
unless the defendants can show clear prejudice. (Id. at p. 1220.)17
b. No common plan, modus operandi or
intent
Defendants next argue the evidence of the Baca murder
would not have been cross-admissible under Evidence Code
section 1101, subdivision (b), which provides, in part: “Nothing in
this section prohibits the admission of evidence that a person
committed a crime, civil wrong, or other act when relevant to
prove some fact (such as motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake or accident . . .).”
Here, defendants argue the two murders did not involve any
common plan, modus operandi or intent. (Citing People v.
Edwoldt (1994) 7 Cal.4th 380, 402.) Thus, defendants argue, the
prosecution sought to create an inference through the use of
impermissible character evidence, in violation of the Evidence
Code and defendants’ due process rights.
Ortega argues evidence of the Avalos murder constituted
impermissible character evidence as to the Baca murder, serving
to create the likely inference that a person who would execute a
witness would not have acted in self-defense, imperfect self-
defense or heat of passion in a totally unrelated incident. Keer
takes the opposite position, that evidence of his presence and
actions at the nightclub at the time of the Baca murder would not

17 Prejudice is discussed separately below in part I.D.

35
have been admissible to show he was directing Ortega’s, or any
other individual’s, actions at the time of the Avalos murder.
Defendants’ arguments regarding character evidence do not
convince us joinder was an abuse of the trial court’s discretion in
this matter. “‘The state’s interest in joinder gives the court
broader discretion in ruling on a motion for severance than it has
in ruling on admissibility of evidence.’” (Alcala, supra, 43 Cal.4th
at p. 1221.) The evidence that Keer, Chacon and Ortega were
united in loyalty and camaraderie during both events was
relevant to both the conspiracy and the murder charges in the
Avalos case. Further, as set forth above, the absence of cross-
admissibility alone is insufficient to demonstrate prejudice.
(Ibid.)
c. The gang enhancements
Defendants next argue the gang enhancements did not
support cross-admissibility of the evidence. Defendants argue
there was unrefuted testimony the Cuarentas gang no longer
existed, and even if they were still members of a viable gang,
evidence of their common gang membership was irrelevant to the
Baca shooting, as the prosecution presented no evidence the
shooting was gang-related.
The prosecution initially charged gang enhancements to
the conspiracy and both murders. However, the trial court
bifurcated the trial of the gang enhancements. Ultimately the
gang enhancements were dismissed upon motion of the
prosecution.
The prosecution does not argue the gang enhancements
provided justification for joinder. Instead, they argue the
defendants’ actions were relevant to show defendants’
relationships with each other and the social hierarchy among

36
them. Thus, defendants’ argument the gang enhancements did
not support cross-admissibility of the evidence does not convince
us that joinder was an abuse of the trial court’s discretion in this
matter.
2. Whether some charges are unusually likely to
inflame the jury
The second Anderson factor asks whether the evidence in
one of the charges was unusually likely to inflame the jury.
Defendants argue the Avalos murder was unusually
inflammatory. The evidence in the Baca case was presented after
the jury had already heard all the evidence in the Avalos murder.
Thus, when the jury heard evidence of the altercation in the
parking lot outside the nightclub, it had already heard Ortega’s
own recorded statement admitting his role as a shooter in the
execution of Avalos. In addition, Orellana testified she told a
detective that “Osito was the boss . . . of the one who killed” Baca,
and that Keer continued dancing with her after the shooting, as if
nothing happened. Defendants argue the jury was bound to link
evidence that Keer was the shot-caller in the Avalos murder with
Orellana’s testimony he was the boss of Ortega; that he reacted
callously after Baca was shot; and that Arreaga was afraid to
testify against those who killed Baca. Ortega argues nothing
could have been more prejudicial to the jury’s decision in the
Baca shooting than demonstrating his propensity for violence in
the prior execution of Avalos.
In support of this argument, defendants cite U.S. v.
Bradley (9th Cir. 1993) 5 F.3d 1317, 1321. Bradley involved a
question concerning the admission of evidence of an uncharged
crime under Federal Rules of Evidence, rule 403 (28 U.S.C.).
However, in Bradley, the court concluded the trial court abused

37
its discretion in admitting the evidence due to the vague nature
of the evidence, which did not “rise above the concept of
‘unsubstantiated innuendo.’” (Bradley, at p. 1321.) The court
explained, “Especially as Bradley is concerned, there was almost
no evidence connecting him with the [uncharged] slaying. As the
Supreme Court said . . . , the prosecution may not ‘parade past
the jury a litany of potentially prejudicial similar acts that have
been established or connected to the defendant only by
unsubstantiated innuendo.’” (Id. at p. 1320.)
Defendants cite no legal authority suggesting the evidence
regarding the Avalos murder was so inflammatory as to render
joinder erroneous. In Alcala, supra, 43 Cal.4th at page 1227, our
Supreme Court found certain prior sexual assaults and murders
the defendant had committed were not “‘unusually likely to
inflame’ a jury” that would hear similar evidence concerning
another abduction and brutal murder. Similarly, in People v.
Lamb (2024) 16 Cal.5th 400, 418, the high court rejected a
defendant’s argument that joinder was improper on the grounds
of the inflammatory nature of one of the crimes, stating,
“[n]either the murder count nor the attempted murder count was
more inflammatory than the other.” Here both crimes involved
gunshots that killed an unarmed individual. While one shooting
appeared to have involved more complex planning, this did not
render it significantly more inflammatory than the other.
3. Whether the case involved joining a weak case with
a strong one
Neither case was comparatively stronger or weaker.
Substantial evidence supported both cases.
As to the Avalos murder the evidence included Sanchez’s
testimony, cell phone and social media records, Renteria’s

38
testimony, Barba’s testimony, and surveillance video. In
addition, there was evidence gathered from a Perkins operation
and Ortega’s admission he killed Avalos.
As to the Baca murder, the evidence included the testimony
of witness Rojas, as well as other witness statements and
corroborating surveillance video. Ortega’s social media records
included a confession.
In light of this evidence, we conclude neither case was
substantially stronger or weaker than the other. “[A]s between
any two charges, it always is possible to point to individual
aspects of one case and argue that one is stronger than the other.
A mere imbalance in the evidence, however, will not indicate a
risk of prejudicial ‘spillover effect,’ militating against the benefits
of joinder and warranting severance of properly joined charges.”
(People v. Soper (2009) 45 Cal.4th 759, 781.)
Bean v. Calderon (9th Cir. 1998) 163 F.3d 1073, 1083, is
distinguishable. There, a defendant was convicted of the first
degree murders, robberies and burglaries of two women and
sentenced to death. (Id. at pp. 1074–1075.) The Ninth Circuit
found “joinder of the . . . indictments deprived [defendant] of a
fundamentally fair trial” because “consolidation of the relatively
weak . . . case with the compelling . . . charges in a single trial
violated [defendant’s] right to due process by leading the jury to
infer criminal propensity.” (Id. at p. 1083.) Such is not the case
here, where overwhelming evidence supported defendants’ roles
in each crime.
Similarly, Williams, supra, 36 Cal.3d at page 449, relied
upon heavily by defendants, involved a defendant facing two
murder charges in which “one of the crucial issues facing the jury
[was] the identity of the perpetrator(s) of the two killings and

39
related crimes.” Williams was also a capital case, and the court
noted it “must analyze the severance issue with a higher degree
of scrutiny and care than is normally applied in a noncapital
case.” (Id. at p. 454.) First, the Williams court determined
“evidence of each shooting incident would not be admissible to
prove identity in the respective trial of the other under Evidence
Code section 1101, subdivision (b).” (Id. at p. 450.) Despite
determining this factor weighed against joinder, the court
recognized “it does not necessarily follow that the trial court was
compelled to sever the two murder counts.” (Id. at p. 451.) The
court went on to analyze the other relevant factors and concluded
joinder would be very prejudicial because it involved “the joinder
of one weak and one strong case or alternatively of two relatively
weak cases.” (Id. at p. 453.) The court’s “principal concern [was]
in the danger that the jury . . . would aggregate all of the
evidence, though presented separately in relation to each charge,
and convict on both charges in a joint trial; whereas, at least
arguably, in separate trials, there might not be convictions on
both charges.” (Ibid.)
Here, identity was not at issue, and overwhelming evidence
supported the verdicts. Unlike in Williams, both cases here
would likely have resulted in convictions had they been tried
separately. We therefore conclude this factor does not weigh
against joinder in this case.
4. Whether any charge carries the death penalty or
joinder of charges converts the matter to a death
penalty case
This factor is not relevant to our analysis. The prosecutor
never sought the death penalty, thus this factor does not

40
“militate[] against the benefits of joinder in the present
proceedings.” (People v. Soper, supra, 45 Cal.4th at p. 780.)
5. Conclusion
On the record before us, considering the factors set forth
above, we conclude defendants have failed to carry their burden
of showing the trial court abused its discretion in failing to sever
count eight.
D. Prejudice
“‘[E]ven if a trial court’s ruling on a motion to sever is
correct at the time it was made, a reviewing court still must
determine whether, in the end, the joinder of counts or
defendants for trial resulted in gross unfairness depriving the
defendant of due process of law.’” (People v. Soper, supra, 45
Cal.4th at p. 783.) “[A] judgment will be reversed on this ground
only if it is ‘reasonably probable that the jury was influenced [by
the joinder] in its verdict of guilt.’” (People v. Merriman (2014) 60
Cal.4th 1, 49.)
As set forth above, Ortega argues the evidence of the
Avalos murder constituted impermissible character evidence
regarding the Baca murder trial, serving to create the likely
inference that a person who would execute a witness would not
have acted in self-defense, imperfect self-defense or heat of
passion in a different, unrelated incident.
Keer’s position is the opposite of Ortega’s in that Keer
argues the evidence presented concerning the Baca murder was
extremely harmful to him. Specifically Keer claims although he
was not charged in the Baca murder, the evidence presented
related to that case painted him as a boss of young shooters and
implied he was a leader of Ortega and Chacon. Particularly as to
the statement made by waitress Arreaga, Keer argues, “the

41
prosecutor was explicitly and powerfully using the Baca murder
evidence to retroactively imply that Keer must have orchestrated
what happened to Avalos months earlier.”
We conclude there was no reasonable probability that the
joinder of counts tainted the jury’s verdicts in this case.
Overwhelming evidence, described in detail above, supported
each conviction. Further, the record shows the jury carefully
weighed each charge, finding Ortega not guilty of the attempted
murder in count three, while finding Ortega guilty of second
degree murder as to the killing of Baca. “The acquittal[]
demonstrate[s] a careful sifting of the evidence and a properly
cautious verdict.” (People v. Moore (1986) 185 Cal.App.3d 1005,
1013; see also People v. Jones (2013) 57 Cal.4th 899, 927 [“Where
the jury returns a guilty verdict of a lesser crime, . . . we are
confident the jury was capable of, and did, differentiate among
defendant’s crimes.”].)
The trial court did not abuse its discretion in declining to
sever count eight.
II. Admission of Arreaga’s hearsay statement
Defendants argue the trial court erred when it admitted
Arreaga’s hearsay statement under the exception for excited
utterance or spontaneous statement of Evidence Code section
1240. Orellana testified that Arreaga said to Keer, “How is it
possible that you allow the guys that are with you to bring out
weapons? He went out over there to fight with the other young
man and he pulled the gun out on him!”18

18 Orellana first reported Arreaga’s statement as, “Osito, how
can you let your young men go around with guns? He’s going to
go and get one and he’s going to kill another guy.” Later in the
same interview she reported the statement as, “How can you let

42
A. Relevant proceedings
On November 18, 2021, the prosecution filed its motion in
limine seeking admission of Arreaga’s statement pursuant to
Evidence Code section 1240. Defense counsel argued the
statement should not be admitted because Orellana changed her
statement several times, Arreaga was expected to testify, and
Arreaga had denied making the statement. Defense counsel also
argued it was objectionable on multiple grounds, as it was
speculative, conclusionary, and a statement of opinion. Keer’s
counsel argued the statement was particularly inflammatory as
to his client, who was not charged in the Baca murder. The
prosecution argued that although Orellana had made multiple
statements, “the inherent meaning of them is the same
throughout.” In addition, the prosecution argued the jury should
decide “which is the true statement, what Ms. Orellana claims
she heard or what Ms. Arreaga claims she did not say.”
The trial court admitted Arreaga’s statement as a
spontaneous statement, warning it was granting the motion “so
long as the appropriate foundation is laid prior to the D.A. asking
the witness about those statements. So you have to lay
foundation that would show there was some event that supports
the fact these were spontaneous or excited utterances which
would give it an air of credibility. It’s going to be up to the jury
how much weight, if any, to give those statements.” The court
also noted the defense could challenge the statements by
impeaching the witness or through other evidence.

your guy go around with a gun? He’s going to get another one
from the other guy!”

43
At trial, the prosecutor sought to ask Orellana about
statements she made during her interview with police. Keer’s
counsel objected that the prosecution should not be permitted to
ask Orellana about Arreaga’s hearsay statement, “He’s going to
go and get one and he’s going to kill another guy.” Counsel
argued there was no evidence Arreaga ever said that, and to
allow it would be prejudicial under Evidence Code section 352.
The court disagreed, finding the statement to be an excited
utterance “given the fact that apparently there was an incident
going on outside. She comes in, you can tell from her body
language that she’s acting in an urgent fashion.” The court
further noted the statement could be used as impeachment
evidence because when asked about it, Arreaga denied making
the statement. Therefore the statement “does impeach her
testimony [and] challenges her memory as to that issue as well.”
The court saw no undue prejudice, especially because the
statement could be “argued both ways.”
The prosecutor asked Orellana, “Did you tell the police
that: (reading): [¶] ‘[H]e was dancing with me, and then the
waitress said, hey—she said because they called him Osito—hey,
she said, Osito, how can you let your young men go around with
guns. She said he’s going to go and get one she said and he’s
going to kill another guy.’ [¶] Did you tell the police that that’s
what [Arreaga] said?” Orellana responded, “I don’t remember.”
B. Applicable law
Evidence Code section 1240 permits admission of a hearsay
statement if it “[p]urports to narrate, describe, or explain an act,
condition, or event perceived by the declarant,” and “[w]as made
spontaneously while the declarant was under the stress of
excitement caused by such perception.” (Evid. Code, § 1240,

44
subds. (a) & (b).) The admissibility of an excited utterance under
Evidence Code section 1240 is reviewed for abuse of discretion.
(People v. Roberts (2021) 65 Cal.App.5th 469, 477.)
“‘To render [statements] admissible [under the spontaneous
declaration exception] it is required that (1) there must be some
occurrence startling enough to produce this nervous excitement
and render the utterance spontaneous and unreflecting; (2) the
utterance must have been before there has been time to contrive
and misrepresent, i.e., while the nervous excitement may be
supposed still to dominate and the reflective powers to be yet in
abeyance; and (3) the utterance must relate to the circumstance
of the occurrence preceding it.’” (People v. Poggi (1988) 45 Cal.3d
306, 318.)
Whether a statement in question was made while the
declarant was still under the stress and excitement of the
startling event is analyzed through a number of factors, including
“‘the passage of time between the startling event and the
statement, whether the declarant blurted out the statement or
made it in response to questioning, the declarant’s emotional
state and physical condition at the time of making the statement,
and whether the content of the statement suggested an
opportunity for reflection and fabrication.’” (People v. Sanchez
(2019) 7 Cal.5th 14, 40.) “‘[N]o one factor or combination of
factors is dispositive.’” (Ibid.)
“Whether an out-of-court statement meets the statutory
requirements for admission as a spontaneous statement is
generally a question of fact for the trial court, the determination
of which involves an exercise of the court’s discretion. [Citation.]
We will uphold the trial court’s determination of facts when they
are supported by substantial evidence and review for abuse of

45
discretion its decision to admit evidence under the spontaneous
statement exception.” (People v. Merriman, supra, 60 Cal.4th at
p. 65.)
C. Analysis
Ortega claims Arreaga’s hearsay statement did not qualify
as an excited utterance because (1) it did not relate to the
circumstance immediately preceding it, and (2) it expressed her
opinions that Keer allowed his men to carry guns and that
Ortega would get a gun and shoot Baca.
First, Ortega argues the statement manifestly failed to
relate to the occurrence Arreaga just witnessed—an altercation
between Ortega and Baca outside the nightclub. Instead, Ortega
argues, the statement related to her opinion that Keer allowed
his men to go around with guns, and her opinion that Ortega
would get a gun and shoot Baca.
The People disagree, arguing the statement was made
immediately after Arreaga witnessed the fight outside the
nightclub. It narrated her observation of the two men fighting,
one of whom she believed would retrieve a gun and use lethal
force, thus constituting a startling event.
The trial court determined it was an excited utterance
because “apparently there was an incident going on outside.” The
court also referenced Arreaga’s body language as viewed on the
surveillance video, noting: “She comes in, you can tell from her
body language that she’s acting in an urgent fashion.” In
addition, her statement, “[h]e’s going to go and get one and he’s
going to kill another guy,” related to the altercation she had
observed outside and her description of what she observed to be
happening. (Evid. Code, § 1240, subd. (a) [permitting admission

46
of excited utterance if it purports to describe an event perceived
by the declarant].)
As to Ortega’s second argument, the trial court did not
abuse its discretion in disagreeing with Ortega’s claim that
Arreaga’s excited utterance was merely a statement of opinion.
Instead, her words “purport[ed]” to describe the events she
perceived outside of the nightclub. (Evid. Code, § 1240, subd. (a).)
Arreaga purportedly witnessed one of Keer’s “young men” in a
fight, on his way to retrieve a gun and kill another individual.
The trial court noted the evidence Arreaga made the
statement could be “argued both ways.” It also may have
impeached her, as she later could not recall making the
statement.
Considering the factors set forth in People v. Sanchez,
supra, 7 Cal.5th at page 40, we find they weigh in favor of the
trial court’s decision. The statement was made immediately
following Arreaga’s observation of the startling event. She
blurted it out in response to seeing the fight outside—blaming
Keer for allowing his men to go around with guns and explaining
to him that a killing was about to take place. Arreaga was acting
in an urgent manner, having just witnessed the altercation
outside and did not have the opportunity for reflection or
fabrication. Under the circumstances, we find the trial court did
not abuse its discretion in admitting Arreaga’s statement as an
excited utterance.19

19 Because we have determined the trial court did not err in
admitting Arreaga’s statement as an excited utterance, we
decline to address the parties’ competing arguments regarding
prejudice.

47
III. Prosecutorial misconduct
Ortega argues the prosecution committed misconduct
during closing argument by arguing false evidence, shifting the
burden of proof, and making improper comments on Ortega’s
silence, thus violating his federal constitutional rights to due
process and a fair trial. (Citing U.S. Const., 5th & 14th Amends.;
Darden v. Wainwright (1986) 477 U.S. 168, 181; People v. Hill
(1998) 17 Cal.4th 800, 819.)
A. Relevant trial court proceedings
As Ortega’s claim arises from the prosecutor’s closing
argument, we set forth relevant portions of the parties’ closing
arguments below.
Ortega claimed self-defense in the Baca murder. During
Ortega’s counsel’s closing argument, counsel referenced the
witness’s descriptions of Baca as being big and Ortega as little.
He argued, “this is a really big guy and a really little guy facing
off against each other. Obviously by now you understand that’s
the point . . . .” Counsel further argued Baca lunged at Ortega,
prompting a fight before the shooting. Counsel added, “He had
no intent to kill. He was in the moment.” From this point,
counsel moved to a discussion of justifiable homicide and self-
defense.
During rebuttal, the prosecutor pointed to evidence
undermining Ortega’s claim of self-defense, referring to Rojas’s
testimony that Ortega pulled a gun on Baca after Baca asked for
a cigarette. The prosecutor added Baca did not follow Ortega
when he went to Keer’s truck to retrieve the gun, describing
Ortega as in control, pointing out he was “calmly walking” and
“cool, collected.” From this evidence, the prosecutor argued the
murder was not self-defense.

48
Counsel for Keer objected the prosecution was “burden-
shifting.” The court reminded the jury that it was obligated to
follow the jury instructions, nodding in the affirmative that it
understood the court’s admonition. The prosecutor resumed
argument, expressly stating the People had the burden of proving
the Baca killing was not done in self-defense. After detailing the
requirements to prove provocation, the prosecutor argued:
“. . . I’m going back to the second requirement. Did
Mr. Ortega actually act under the influence of that intense
emotion? Did he say, oh, my—like after he did it, oh, my God, I
can’t believe I did that. I acted out of—you know, like I couldn’t
help myself. Was that him? Was that Mr. Ortega?
Mr. Ortega . . . you know some things about him and his
temperament. He committed that murder two-and-a-half months
earlier of Mr. Avalos, and he was able to be on his phone during
this event. He’s able—you know, Mr. Ortega—and not only do
you know this—not only do you know that he is not like—this
kind of—you know, actually acted [out] of this intense emotion or
passion, at least not given that level of provocation, you know he
wasn’t. He is very capable of cold, calculated killing.
“And on top of that, you also know that he wasn’t acting out
of this intense emotion from passion rather than judgment
because you also heard what his reaction was afterwards; right?
Did he say on social media, oh, my gosh, like I couldn’t help
myself.”
Counsel for Ortega objected on the ground of Griffin
error.20 At a sidebar conference, counsel for Ortega argued the

20 Griffin v. California (1965) 380 U.S. 609 (Griffin). Under
Griffin, the Fifth Amendment bars a prosecutor from “‘suggesting
to the jury that it may treat [a] defendant’s silence as substantive

49
prosecutor had impermissibly “comment[ed] on [Ortega’s] silence
and [Ortega] is not obligated to say anything . . . . [The
prosecutor] cannot talk about what Ortega did not say.” Counsel
asked the court to admonish the prosecutor to stop and to
instruct the jury on Ortega’s right to remain silent.
The prosecutor claimed to be “talking about [Ortega’s]
actual comments after he committed the crime.” The prosecutor
clarified he was “not talking about Mr. Ortega not taking the
stand or his right to remain silent or not talking with police.”
Keer’s counsel then argued the prosecutor was “purposely
not putting up Ortega’s statement about the second murder and
then arguing to the contrary what he knows not to be the case.”
Counsel noted Ortega “claimed self-defense when he talked to the
police about the second murder, so I think . . . arguing anything
to the contrary is a problem.” The prosecutor countered he was
“merely commenting on [the] statement that he made on social
media about the second murder which is very clear and been
presented into evidence.” The prosecutor clarified he was
referring to Ortega’s statement he was the individual who
“smoked” the victim on “Beach and Firestone.”
While acknowledging the prosecution had “come close” to
making reference to the fact that Ortega did not testify, the
prosecutor “thought [he] was being clear,” and was “referring to
what he said on social media.” The trial court found no violation
but admonished the prosecutor to “be careful.”
When the prosecutor resumed his argument, he specifically
referenced Ortega’s social media comments after Baca’s murder:

evidence of guilt.’” (United States v. Robinson (1988) 485 U.S. 25,
32.)

50
“So tell me who just got smoked on Beach and Firestone . . . .
Cuz I’m the one who did that. I’m the one who did that.” The
prosecutor argued, “This is a response that isn’t a response of,
you know, I had a passion, I lost my mind. He’s bragging about
it.”
Following argument the court instructed the jury: “Now,
again, I will indicate to you that in this case the defendants have
an absolute constitutional right not to testify and they are
entitled to rely on the state of evidence and argue that the People
have the duty to prove the charges beyond a reasonable doubt.
So do not consider for any reason at all the fact that the
defendants did not testify. Do not discuss that fact during your
deliberations or let it influence your decision in any way.”
B. Applicable law and standard of review
It is prosecutorial misconduct under state law if the act
involves the use of deceptive or reprehensible methods to attempt
to persuade either the court or the jury. (People v. Hill, supra, 17
Cal.4th at p. 819.) “‘“‘A prosecutor’s . . . intemperate behavior
violates the federal Constitution when it comprises a pattern of
conduct “so egregious that it infects the trial with such unfairness
as to make the conviction a denial of due process.”’”’” (Ibid.)
Generally, “‘“[a] prosecutor is given wide latitude to vigorously
argue his or her case and to make fair comment upon the
evidence, including reasonable inferences or deductions that may
be drawn from the evidence.”’” (People v. Peoples (2016) 62
Cal.4th 718, 796.)
A claim of prosecutorial misconduct is reviewed for abuse of
discretion. (People v. Lima (2022) 80 Cal.App.5th 468, 477.) “‘To
prevail on a claim of prosecutorial misconduct based on remarks
to the jury, the defendant must show a reasonable likelihood the

51
jury understood or applied the complained-of comments in an
improper or erroneous manner.’” (Id. at pp. 477–478.) Where a
prosecutor commits misconduct, a defendant’s conviction will not
be reversed “‘“unless it is reasonably probable that a result more
favorable to the defendant would have been reached without the
misconduct.”’” (People v. Young (2019) 7 Cal.5th 905, 932–933.)
C. False evidence
Ortega first argues the prosecution presented false
evidence, claiming the prosecutor knew Ortega told police he
acted in self-defense when he shot Baca. While the prosecution
chose not to introduce Ortega’s statement into evidence, he
argued to the jury, “Did he say . . . after he did it, oh, my God, I
can’t believe I did that[?] . . . I couldn’t help myself. . . . [¶]
. . . Did he say on social media, oh, my gosh, . . . I couldn’t help
myself[?]”21
Ortega argues the prosecutor’s argument that Ortega did
not claim “I couldn’t help myself” was false in light of Ortega’s
statements to police that he was acting in self-defense, and this
false and misleading argument deprived Ortega of due process.
Ortega cites People v. Sakarias (2000) 22 Cal.4th 596, 633, for the
proposition that “[a] prosecutor’s knowing use of false evidence or

21 Ortega’s statement he acted in self-defense during the Baca
murder was not introduced at trial. Ortega’s counsel argued,
“The people are purposely not putting up Ortega’s statement
about the second murder and then arguing to the contrary what
he knows not to be the case.” “He claimed self-defense when he
talked to the police about the second murder, so I think . . .
arguing anything to the contrary is a problem.” Ortega’s counsel
informed the court it could not put on Ortega’s statement about
self-defense because Ortega was not going to testify. The court
noted, “The People could have put it on, but he didn’t.”

52
argument to obtain a criminal conviction or sentence deprives the
defendant of due process.” Ortega claims the prosecutor’s acts
constituted “the use of deceptive or reprehensible methods to
attempt to persuade either the court or the jury.” (People v.
Strickland (1974) 11 Cal.3d 946, 955.)
First, we address the People’s argument that Ortega
forfeited this claim of error by failing to raise it at trial. “Counsel
has an obligation to state the ‘specific ground for an objection in
order to preserve the issue for appeal.’” (People v. Reyes (2016)
246 Cal.App.4th 62, 77.) Here, counsel objected to this line of
argument at trial on the basis of Griffin error and never explicitly
objected the prosecutor was presenting false evidence. Thus,
defense counsel deprived the prosecution of an opportunity to
address the claim of false evidence below, clarify its comments to
the jury, or otherwise correct any misimpression of false
evidence. Given these circumstances, the prosecutor’s forfeiture
argument is well taken. However, we address Ortega’s
substantive claims and conclude that, even if he had not forfeited
this specific argument, the prosecutor did not commit
prosecutorial misconduct by presenting false evidence.
As the record shows, the prosecutor’s argument was based
on Ortega’s social media message following the Baca murder,
indicating he committed the murder of the individual who died at
Beach and Firestone. The prosecutor commented to the jury on
what the social media post did not say—“Did he say, oh, my—like
after he did it, oh, my god, I can’t believe I did that. I acted out
of—you know, like I couldn’t help myself.” Following defense
counsel’s objection and arguments before the judge, the
prosecutor clarified his comments were directed to Ortega’s social
media comments, which were in evidence. He argued, “This is a

53
response that isn’t a response of, you know, I had a passion, I lost
my mind. He’s bragging about it.” Thus, when viewed in the
context of the entire record, it is apparent the prosecutor was
fairly commenting on evidence introduced at trial. By tying his
comments specifically to the evidence, the prosecutor negated any
suggestion he was introducing false evidence.
Even if the prosecutor’s comments could be characterized
as misconduct, no prejudice arose from the comments. The
prosecutor clarified any confusion caused by his initial comments
by explaining those comments were specifically directed at
Ortega’s social media posts. Furthermore, the evidence in the
Baca murder overwhelmingly established Ortega’s guilt. Thus,
Ortega failed to show “ ‘a reasonable likelihood that the jury
construed or applied any of the complained-of remarks in an
objectionable fashion.’ ” (People v. Ochoa (1998) 19 Cal.4th 353,
427.)
D. Shifting of burden of proof
Ortega next argues the prosecutor committed prosecutorial
misconduct by shifting the burden of proof during his closing
argument. (Citing People v. Stansbury (1993) 4 Cal.4th 1017,
1057, reversed on another ground in Stansbury v. California
(1994) 511 U.S. 318.) Ortega claims the prosecution’s argument
regarding what Ortega did not say on social media signaled to the
jury that Ortega had an obligation to affirmatively make
statements to others, or on social media, that he was innocent.
Initially, the People argue the issue is forfeited because
defense counsel failed to object on this ground below. (People v.
Reyes, supra, 246 Cal.App.4th at p. 77.) As Keer’s counsel
objected the prosecution was burden-shifting, we disagree.
Counsel for Ortega and Chacon were not required to make this

54
objection a second time, as a defendant is excused from making a
timely objection or requesting an admonition if either would have
been futile. (People v. Arias (1996) 13 Cal.4th 92, 159.)
People v. Weaver (2012) 53 Cal.4th 1056 (Weaver), cited by
Ortega, discusses the law surrounding prosecutorial misconduct
when there is a claim of improper burden-shifting. Weaver
involved the trial of a defendant who was convicted of first degree
murder, with a special circumstance of robbery, among other
things. The prosecutor began his closing argument by saying,
“‘[A]s I sat here listening to counsel, I kept waiting. I kept
waiting. I kept waiting for the answer that I think the court was
probably waiting for from the defense, and that was, well, if it
wasn’t [the defendant], just who the heck was it? Who was it?’”
(Id. at p. 1076.) The prosecutor repeated this argument later,
indicating “‘I kept waiting for [defense counsel] to offer this court
some alternative, . . . some other third person who committed this
crime.’” (Ibid.) At that point defendant objected that the
prosecutor was attempting to shift the burden of proof. (Ibid.)
The defendant in Weaver argued the prosecutor’s argument
shifted the burden of proof by suggesting a defendant must
provide affirmative evidence of his innocence, not just raise a
reasonable doubt. The Weaver court stated the rule that “‘it is
improper for the prosecutor to misstate the law generally
[citation], and particularly to attempt to absolve the prosecution
from its prima facie obligation to overcome reasonable doubt on
all elements [citation].’” (Weaver, supra, 53 Cal.4th at p. 1077.)
However, the prosecutor in Weaver did not violate this rule. The
high court explained, “It was not misconduct to observe that
defense counsel had failed to explain how this evidence could be
reconciled with the conclusion that anyone other than defendant

55
had committed the charged offenses. The prosecutor permissibly
commented on the state of the evidence.” (Ibid.)
Here, as set forth above, the prosecutor similarly
permissibly commented on the state of the evidence. He walked
the jury through all of the requirements to prove self-defense and
referred the jury to the jury instructions. When Keer objected
the prosecutor was burden-shifting, the court reminded the jury
that it was obligated to follow the jury instructions, and the jury
indicated it understood the court’s admonition. The prosecutor
resumed argument and expressly told the jury he had the burden
of proving the Baca killing was not done in self-defense. He then
discussed provocation and manslaughter, and detailed the
requirements to prove provocation. The court also reminded the
jury after argument that the People have the obligation to prove
the charges beyond a reasonable doubt, and the written
instructions correctly stated the law.
The prosecutor did not misstate the law, nor did he attempt
to mislead the jury into believing the prosecutor did not bear the
burden of proof on each element of the charged crimes. Instead,
he commented on Ortega’s social media posts, which were
included as evidence at trial.
E. Griffin error
The Fifth Amendment to the United States Constitution
prohibits a prosecutor from commenting on a criminal
defendant’s invocation of his constitutional right to remain silent
in the face of criminal charges. (Griffin, supra, 380 U.S. 609.)
“Directing a jury’s attention to a defendant’s failure to testify at
trial runs the risk of inviting the jury to consider the defendant’s
silence as evidence of guilt.” (People v. Lewis (2001) 25 Cal.4th
610, 670.) The prohibition of Griffin is violated where there is a

56
“‘reasonable likelihood that any of the [prosecutor’s] comments
could have been understood, within its context, to refer to
defendant’s failure to testify.’” (People v. Sanchez (2014) 228
Cal.App.4th 1517, 1523.)
Ortega argues the prosecutor committed such error in this
case by arguing there was no evidence of self-defense or
provocation, when this argument could not be refuted by Ortega’s
testimony because Ortega exercised his right not to testify at
trial.
We find the prosecutor’s remarks did not rise to the level of
Griffin error. “[T]he rule prohibiting comment on defendant’s
silence does not extend to comments on the state of the
evidence . . . .” (People v. Medina (1995) 11 Cal.4th 694, 755.) As
discussed at length above, the prosecutor’s remarks, viewed in
context, were a fair comment on the state of the evidence. The
prosecutor was highlighting Ortega’s comments on social media
and pointing out a lack of any indication the shooting was done in
self-defense. The remarks contained no suggestion Ortega’s
silence at trial should be considered evidence of guilt.
Further, even if the prosecutor’s comments could be
characterized as misconduct, no prejudice arose from the
comments. The evidence in the Baca murder overwhelmingly
established Ortega’s guilt. Thus, Ortega failed to show “‘a
reasonable likelihood that the jury construed or applied any of
the complained-of remarks in an objectionable fashion.’” (People
v. Ochoa, supra, 19 Cal.4th at p. 427.)
IV. Cumulative error
Ortega argues the cumulative effect of prosecution
misconduct and other trial errors must be assessed in
determining whether reversal is required under the federal

57
Constitution. Ortega cites People v. Hill, supra, 17 Cal.4th at
pages 815, 844–845, where the court determined: “The most
disturbing aspect of this case was the outrageous and pervasive
misconduct on the part of the state’s representative at trial: the
public prosecutor. [A]lthough we might find any individual
instance of prosecutorial misconduct or other error harmless
standing alone, we cannot ignore the combined prejudicial effect
these many missteps had on the overall fairness of the trial.
Finding the cumulative prejudice flowing from the combination of
prosecutorial misconduct and other errors rendered defendant’s
trial fundamentally unfair . . . .” Ortega contends this court must
consider the combined effects of the erroneous denial of
severance, the erroneous admission of Arreaga’s hearsay
statements, as well as the prosecutorial misconduct in
determining prejudice.
When a defendant claims cumulative error, the “test is
whether defendant received due process and a fair trial.” (People
v. Kronemyer (1987) 189 Cal.App.3d 314, 349, disapproved on
other grounds in People v. Witmer (2014) 59 Cal.4th 733, 739–
741.) “[W]e review each allegation and assess the cumulative
effect of any errors to see if it is reasonably probable the jury
would have reached a result more favorable to defendant in their
absence.” (Ibid.)
We have reviewed each of Ortega’s allegations and
determined no error occurred, thus no cumulative error occurred,
and Ortega received a fair trial.

58
V. Hearsay objections to Trevizu’s statements in
Perkins operation
Keer argues the court erred in overruling hearsay
objections to Trevizu’s statements made during the Perkins
operation that purported to describe statements made by Keer.
A. Relevant background
On October 15, 2021, the People sought to admit
statements Trevizu made relating to the Avalos murder during
an undercover Perkins operation conducted with Trevizu. Chacon
filed a motion seeking to delete any references Trevizu made to
him during the Perkins operation. On November 18, 2021, Keer
filed his own motion to exclude the statements Trevizu made
during the Perkins operation.
The court addressed the motions on November 29, 2021.
Keer’s counsel argued Trevizu’s statements were based on
“hearsay rumors [Trevizu] heard after the fact.” “There’s nothing
to suggest that . . . Trevizu would have personal knowledge . . .
that the hit was ordered and this was going to be a shooting until
he got into it.” “So there isn’t much to suggest they had this prior
relationship or had personal knowledge that [Keer] was . . .
running things or had ordered a hit . . . .” Counsel argued, “we
don’t know the source of the knowledge as to why [Trevizu]
claims to this Perkins agent that [Keer] was the shot caller.”
Keer’s counsel argued Trevizu’s statements were therefore
unreliable. Counsel stressed that Trevizu had no personal
connection to Keer, there was no evidence of any direct
communication between the men, that Keer could not cross-
examine Trevizu, and “[w]e’re speculating about where he got
this knowledge as key evidence” against Keer. In addition, Keer’s

59
counsel argued the Perkins agent was “primed to elicit certain
information” and asked “a lot of leading questions.”
Ortega’s counsel argued the statements were not relevant
to him, as he was barely mentioned, but the statements were
nevertheless “blatant hearsay,” which the court should not admit.
Counsel further argued the prosecutor could not show Trevizu
had personal knowledge of the information he provided.
Chacon’s counsel pointed out there was a reference to
Chacon being a driver, arguing it was the Perkins agent who
suggested it was a conspiracy, and Trevizu never made any such
statement. Counsel asserted Trevizu’s statement did not support
a conspiracy charge.
The prosecutor characterized the Perkins operation to be a
“casual conversation between . . . Trevizu and what he believes to
be a fellow inmate.” The prosecutor argued Trevizu had no
reason to name Keer as the person who ordered the murder other
than it was the truth. Thus, Keer’s arguments should go to the
weight, not the admissibility, of the evidence. In reply, Keer’s
counsel argued Trevizu’s statements were made four months
after the murder, which detracts from the reliability of the
statements.
The court overruled the defendants’ objections to the
admission of the statements made by Trevizu during the Perkins
operation, relying on People v. Arceo (2011) 195 Cal.App.4th 556.
The court also noted the statements were not testimonial, but
were declarations against interest, an exception to the hearsay
rule. The court granted the People’s motion to admit Trevizu’s
statements made during the Perkins operation, noting the court
would allow the jury to determine whether Trevizu’s statements
were credible.

60
On appeal, Keer argues the most critical piece of evidence
suggesting Keer was the architect of the murder of Avalos was
the Perkins operation conducted on Trevizu, the brother of
shooter Cruz. Trevizu was alleged to have driven Cruz and fellow
shooter Ortega to the scene of the Avalos murder. Trevizu
claimed a person named “Oso” (Keer) from “Cuarentas” was “the
one that told us to go” but Oso himself “didn’t even go” to the
shooting. Trevizu appeared to agree with the undercover agent’s
statement that “Oso” was the “shot caller.”
B. Applicable law and standard of review
Hearsay, an out-of-court statement offered to prove the
truth of the matter asserted, is generally inadmissible under
California law. (Evid. Code § 1200.) However, exceptions to the
hearsay rule exist, including in Evidence Code section 1230,
which describes the exception for a declaration against interest:
“Evidence of a statement by a declarant having sufficient
knowledge of the subject is not made inadmissible by the hearsay
rule if the declarant is unavailable as a witness and the
statement, when made, . . . so far subjected him to the risk of civil
or criminal liability . . . , or created such a risk of making him an
object of hatred, ridicule, or social disgrace in the community,
that a reasonable man in his position would not have made the
statement unless he believed it to be true.”
The reasoning behind this exception is “‘“a person’s interest
against being criminally implicated gives reasonable assurance of
the veracity of his statement made against that interest,” thereby
mitigating the dangers usually associated with the admission of
out-of-court statements.’” (People v. Chhoun (2021) 11 Cal.5th 1,
47.) To satisfy the exception, the party seeking to admit the
statement must demonstrate that (1) the declarant is unavailable

61
to testify; (2) the statement, when made, was against the
declarant’s penal or other interest; and (3) the statement is
sufficiently “‘“‘reliable’”’” or trustworthy to warrant admission
despite its hearsay character. (Ibid.)
In order to qualify under the exception, the statement must
be specifically disserving to the declarant’s penal interests.
(People v. Gallardo (2017) 18 Cal.App.5th 51, 70.) “Evidence
Code section 1230 does not authorize the admission of ‘those
portions of a third party’s confession that are self-serving or
otherwise appear to shift responsibility to others.’ [Citation.]
Nor ‘does [the statute] . . . allow admission of non-self-inculpatory
statements . . . made within a broader narrative that is generally
self-inculpatory.’” (Id. at p. 71.) The “exception does not apply ‘to
collateral assertions within declarations against penal interest.’
[Citation.] For example, a hearsay statement ‘“which is in part
inculpatory and in part exculpatory (e.g., one which admits some
complicity but places the major responsibility on others) does not
meet the test of trustworthiness and is thus inadmissible.”’”
(People v. Almeda (2018) 19 Cal.App.5th 346, 364.)
However, this does not exclude all statements that
inculpate a nondeclarant. The exception permits the “admission
of those portions of a confession that, though not independently
disserving of the declarant’s penal interests, also are not merely
‘self-serving,’ but ‘inextricably tied to and part of a specific
statement against penal interest.’” (People v. Grimes (2016) 1
Cal.5th 698, 715 (Grimes).)
Evidence Code section 1230 requires a threshold
determination of trustworthiness. (People v. Cudjo (1993) 6
Cal.4th 585, 607.) “To determine whether the declaration passes
the required threshold of trustworthiness, a trial court ‘may take

62
into account not just the words but the circumstances under
which they were uttered, the possible motivation of the declarant,
and the declarant’s relationship to the defendant.’” (Ibid.)
California courts have “recognized that the trustworthiness of
such declarations is limited and that the hearsay exception
should not apply to collateral assertions within declarations
against penal interest.” (People v. Campa (1984) 36 Cal.3d 870,
882.) Keer cites Grimes, supra, 1 Cal.5th at page 713 for the
proposition that “those portions of a confession inculpating others
are not as inherently trustworthy as those portions that are
actually disserving to the declarant’s interests.” Thus,
“statements by a nontestifying codefendant that implicate the
defendant, even by name, may be admissible if they are
disserving to the codefendant’s interest and are not exculpatory,
self-serving, or collateral.” (People v. Almeda, supra, 19
Cal.App.5th at p. 364.)
A court’s decision to admit or exclude evidence is reviewed
for abuse of discretion. (People v. Ledesma (2006) 39 Cal.4th 641,
705.)
C. Analysis
Keer argues Trevizu was in custody after having been
arrested and understood the arrest pertained to the murder of
Avalos. Keer contends the overall tenor of Trevizu’s remarks was
blame-shifting in nature, as he repeatedly painted himself as an
unwitting, minor player in a larger plan, suggesting it was Keer
who was calling the shots. Thus, Keer argues, assuming
Evidence Code section 1230 applied to Trevizu’s remarks, the
provision merely permitted the jury to hear Trevizu’s statements
inculpating himself. Trevizu’s statement that Keer was the shot
caller was not supported as there was no evidence Keer conveyed

63
this directly to Trevizu. Keer thus argues the blame-shifting
remarks were not trustworthy and were not covered by any
exception to the hearsay rule, therefore it was error to admit
them.
We review the elements of the declaration-against-interest
exception and conclude the trial court did not err in admitting the
statements in question.
1. Unavailable to testify
Keer does not challenge the first required element of the
declaration against interest exception—that Trevizu was
unavailable to testify. Thus, we do not address this element.
2. Statement, when made, was against the declarant’s
penal interest
Second, it is required that the statement, when made, was
against Trevizu’s penal interest. Trevizu admitted he drove to
the scene of the killing; that his brother was the shooter; and to
the motive of the shooting, stating, “the fools that were staying
there [on 87th], snitched on my homie, for him to get life.”
Trevizu then admitted he and others were doing a favor for his
“homie,” whom Trevizu describes as “a [B]lack guy.” Trevizu
states, “They were doing him a paro. I was just driving.”22 He
admitted there were five individuals involved in the conspiracy to
murder Avalos. Trevizu later named the “black guy” as “Oso”
(Keer), from “Cuarentas.” Trevizu explained in detail, “I was the
driver, the paisa was a driver, my girl, she was in my car to
getaway. Then it was my brother and some other . . . the homie
from the hood. Those two were the shooters.” The Perkins agent
asked, “Yeah but where was Oso?” To which Trevizu responded,

22 Paro is Spanish for “favor.”

64
“Oso’s the one that told us to go.” The Perkins agent later asked
Trevizu, “You knew what you signed up for, right?” Trevizu
responded, “Yeah.”
Trevizu’s statements as a whole implicated both Keer and
Cruz, showing they were all part of a conspiracy with each other,
and had acted in concert with each other, to shoot Avalos in
retaliation for snitching. Thus, the statement “specifically
disserved his penal interest in several respects.” (People v. Cortez
(2016) 63 Cal.4th 101, 127 (Cortez).) By identifying other
individuals involved in the crime, Trevizu was increasing the
likelihood of being associated with the crime. (Ibid.) Being
linked to these individuals, and admitting to being a part of the
conspiracy to commit the murder of Avalos, specifically disserved
Trevizu’s penal interest. (Ibid.; see also People v. Cervantes
(2004) 118 Cal.App.4th 162, 176 [statement that defendant acted
in concert with declarant incriminated declarant and was thus
“disserving to the interests of the declarant”], overruled in part
on other grounds in Cortez, supra, 64 Cal.4th at p. 125, fn. 5.)
Trevizu’s statements were neither exculpatory nor self-
serving. He admitted to being the driver, and that he knew what
he signed up for. Trevizu never attempted to shift blame for his
role in the shooting.
3. Statement sufficiently reliable or trustworthy to
warrant admission despite its hearsay character
The rationale behind Evidence Code section 1230 is “‘a
person’s interest against being criminally implicated gives
reasonable assurance of the veracity of his statement made
against that interest,’ thereby mitigating the dangers usually
associated with the admission of out-of-court statements.”
(Grimes, supra, 1 Cal.5th at p. 711.) In determining whether a

65
statement is sufficiently trustworthy under this exception, “‘“[t]he
trial court must look to the totality of the circumstances in which
the statement was made.”’” (People v. Smith (2017) 10
Cal.App.5th 297, 303.)
As set forth above, Trevizu’s statements were against his
penal interest, which gives reasonable assurance of the veracity
of his statements. (Grimes, supra, 1 Cal.5th at p. 711.) Trevizu
was open with the individual he believed to be a fellow inmate,
telling him the details of the day and even going so far as to
implicate his girlfriend, stating, “I don’t give a fuck about me,
dawg, but my girl was there that day too. That’s why it’s
[inaudible] you know?” Trevizu later admitted, “I had her
waiting for me. I had her waiting for me on 89th.” He appeared
to believe he was talking to a fellow inmate when he said,
“They’re—they’re not going to find out it’s my girl. They’re not.”
The Perkins agent warned Trevizu about talking to a detective,
stating, “he could be fishing,” to which Trevizu responded,
“That’s why . . . I’m going to tell him I don’t know shit. I plea the
5th. That’s it.”
Trevizu’s statements reveal he believed he was speaking in
confidence to a fellow inmate. He did not make any of the
statements to “improve his situation with police.” (Cortez, supra,
63 Cal.4th at p. 128.) “Declarations against penal interest are
received notwithstanding that they were spoken in confidence in
the expectation they would not be repeated to the authorities.
[Citations.] Indeed, that makes such declarations more
trustworthy.” (People v. Valdez (2012) 55 Cal.4th 82, 144.)
Trevizu did not attempt to shift blame for his role, and his
statements connected him to the crime. His statements were
soundly against his interest, as they implicated him as a player

66
in the conspiracy to kill Avalos. (Cortez, supra, at p. 128.) Under
the circumstances, the trial court did not err in finding Trevizu’s
statements, including his statements implicating Keer, met the
requirement of trustworthiness.
4. Conclusion
The elements of the hearsay exception found in Evidence
Code section 1230 were met. We therefore conclude the trial
court did not abuse its discretion in admitting the statements
Trevizu made during the Perkins operation.
VI. Complaints against officers involved—Pitchess
material
A. Relevant background
On October 26, 2022, Keer filed a motion for a new trial,
arguing among other things the prosecution committed
misconduct by withholding exculpatory evidence regarding
“dishonesty and other complaints” about Detective Fernandez
and other officers until after the jury returned its verdict. Keer
asserted the disclosed material consisted of “four complaints of
dishonesty for Detective Fernandez[,] all predating the trial and
case filing, six complaints for his partner at the time of this
incident, Jennifer Carson [who did not testify but responded
along with Detective Fernandez to the first shooting of Avalos],
five complaints for Detective Michael Levant [who did not testify
but participated in the interrogations of both Trevizu and Ortega]
and a handful of complaints for other testifying officers in this
case.” The failure of the prosecution to disclose this information
before trial, Keer argued, violated Keer’s right to due process and
warranted granting a new trial.
The motion arose from an e-mail sent by the prosecution to
the defense on February 23, 2022, passing along a notice from

67
LAPD that the personnel files of several officers could contain
material leading to impeachment or exculpatory information, and
the subsequent disclosure of documents produced by a Pitchess
motion after the e-mail was received by the defense. Declarations
attached to Keer’s motion detailed interviews with two
individuals who had made allegations against Detective
Fernandez.
The prosecution opposed the new trial motion, arguing the
newly discovered evidence was neither material nor was it
probable that it would render a different result. The prosecution
argued the complaints against the officers were unsubstantiated,
mischaracterized by the defense, and had no bearing on the
evidence of guilt presented. Further, defense counsel could have
brought a Pitchess motion before trial if Detective Fernandez’s
credibility was so central to the defense.
The motion was argued on November 20, 2022. Defense
counsel suggested the prosecution was negligent in failing to turn
over the records earlier, as “all of the complaints that were
revealed on the investigating officer, Fernandez, and his partner,
Jennifer Carson, were from well before this trial.” Counsel noted
during the summer of 2021, before trial, the prosecution had
provided a disclosure of Detective Fernandez’s officer-involved
shooting, and stated “that disclosure lulled us defense counsel
into a false sense of fairness that we had received all of the
information on Isaac Fernandez.” Keer’s counsel also noted there
were complaints against Detective Fernandez for his racial bias
and his use of crass language, which were particularly concerning
as Keer was the only Black defendant.
The prosecution argued the disclosures were immaterial.
Further, the prosecutor argued defense counsel was unreasonable

68
in suggesting the prosecution purposely withheld the material
about the officers.
After hearing argument, the court denied the motion for
new trial, explaining its reasoning in detail. The court had
presided over the trial and was familiar with the evidence in the
case. In terms of challenges to the integrity of counsel “going
both ways,” the court noted it had not “been established that
there’s been any lack of candor or anything inappropriate done by
any of the counsel on this case.” The court focused on “whether
the quote, unquote ‘newly discovered evidence’ is such that it
would render a different verdict[, whether] a different verdict
[would] be reasonably probable on a new trial, and that’s the key
requirement that must be established.” The prosecution did a
good job of pointing out the evidence that came in “really didn’t
have anything to do with Detective Fernandez.” The court stated
even assuming the evidence regarding the officers would have
been admissible, “you’d have to look at what evidence did we
have in this case. The People put on a very strong case . . . .” The
court then went over some of the evidence, including the evidence
from the Perkins operation as well as testimony from Sanchez,
jail phone calls, social media, cell phone evidence, and
surveillance video. The court concluded a different verdict was
not reasonably probable based on the alleged new evidence. The
court emphasized there was no misconduct on the part of any
attorney because “some of this came about as a result of there
being a new district attorney elected for L.A. County and new
directives put out through the deputy D.A.s to turn over
everything, for lack of a better phrase.”

69
B. Applicable law and standard of review
A trial court may grant a defendant’s motion for new trial
“[w]hen new evidence is discovered material to the defendant,
and which he could not, with reasonable diligence, have
discovered and produced at the trial.” (§ 1181, subd. (8).) “‘In
ruling on a motion for new trial based on newly discovered
evidence, the trial court considers the following factors: “‘1. That
the evidence, and not merely its materiality, be newly discovered;
2. That the evidence be not cumulative merely; 3. That it be such
as to render a different result probable on a retrial of the cause;
4. That the party could not with reasonable diligence have
discovered and produced it at the trial; and 5. That these facts be
shown by the best evidence of which the case admits.’”’” (People
v. Howard (2010) 51 Cal.4th 15, 43.) The defendant bears the
burden of proof. (People v. McDaniel (1976) 16 Cal.3d 156, 178).
“‘“‘The determination of a motion for a new trial rests so
completely within the court’s discretion that its action will not be
disturbed unless a manifest and unmistakable abuse of discretion
clearly appears.’”’” (People v. Howard, supra, 51 Cal.4th 15, 42–
43).
C. Analysis
Declarations attached to the defense’s motion for new trial
included interviews with two individuals who made allegations
against Detective Fernandez.23 One individual claimed over a

23 The prosecution points out Keer’s motion failed to attach an
affidavit from his investigator or from any of the individuals
interviewed and therefore failed to meet the requirements of
section 1181, subdivision 8. Thus, the motion could have been
properly denied on this ground. (People v. Beeler (1995) 9 Cal.4th
953, 1005, abrogation on other grounds recognized in People v.
Edwards (2013) 57 Cal.4th 658, 704–706.) Keer claims this

70
period of a few years (2015–2017) he was constantly stopped in
his vehicle by Officer Fernandez, on many occasions without any
specific cause or reason. Officers also searched his car without
giving him a valid reason. On one occasion, the individual was
sitting in his vehicle when Officer Fernandez stopped the patrol
car directly next to his car and shined the police light into his car,
temporarily blinding him. He was ordered out of his vehicle and
when he complied, he was physically searched by Officer
Fernandez. During the patdown search, Officer Fernandez
became agitated, handcuffed him, and arrested him for resisting
arrest.
A second individual alleged he had been stopped and
searched by Officer Fernandez in 2014 with no probable cause.
Approximately 15 minutes after the initial stop, he was walking
to his car in the vicinity and was stopped a second time by Officer
Fernandez. He was told he was observed selling narcotics,
although he was not selling narcotics and had no narcotics or
paraphernalia on his person. He was detained for supposedly
selling narcotics, but was later released when there was no
evidence of narcotics. The individual claimed Officer Fernandez
also searched his car without permission and lied in the police
report indicating he had observed the individual selling narcotics.
There were other complaints against Officer Fernandez for
racial bias and using crass language. Officer Fernandez made
racist comments in his interviews of Hispanic defendants “about
how they are, you know, better when they commit gang crimes
than the Blacks are, who just shoot up everything.” In the

argument was forfeited on the ground the prosecution did not
raise it at trial. (People v. Tillman (2000) 22 Cal.4th 300, 302–
303.) Therefore, we address the merits of the new trial motion.

71
questioning of Ortega, Detective Fernandez told Ortega he
believed Ortega would not do drive-by shootings and did
everything “up and . . . up and, you know, personal.” Detective
Fernandez stated, “Blacks are more out of control, you know,
whatever.” In the interview of Trevizu, the detective had made
similar comments, stating “there’s certain rules that go with that
number 13. Not like black gangs. You know, [B]lack gangs is
you know?”
Defense counsel argued they should have been permitted to
use this evidence against Detective Fernandez, to show Detective
Fernandez “did not properly do his investigation and was biased.”
Keer argues Detective Fernandez played a central role in
constructing the case against Keer, taking the stand on eight
different days, for more than 400 pages of testimony. Keer
argues Detective Fernandez was essentially the narrator of the
entire case. The detective was a conduit for presenting to the
jury everything including the surveillance footage to the social
media records to the interrogation of Ortega and the Perkins
operation. Thus, defendants argue, the new trial motion was not
only about Detective Fernandez’s credibility but the fundamental
validity of a largely circumstantial case against Keer. Keer
argues the jury would have been more inclined to view the case
with skepticism had they known the detective was accused of
making racist remarks and abusing legal processes in other
cases.
Keer argues the detective’s views on race are particularly
significant because of what the detective appeared to believe
about Black versus Latino gang members. The detective
represented that Black members killed in an indiscriminate
manner, whereas Latinos did not. Thus, Keer argues, the

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prosecution’s theory of how the murder played out was framed by
a man who was operating on the basis of these crude stereotypes.
Considering the evidence as a whole in this matter, we find
the trial court did not abuse its discretion in determining the
defense failed to show a reasonable probability of a different
result. “As a general rule, ‘evidence which merely impeaches a
witness is not significant enough to make a different result
probable . . . .’” (People v. Green (1982) 130 Cal.App.3d 1, 11.)
Although Detective Fernandez testified at trial, the court
recognized “the evidence that came in, it really didn’t have
anything to do with Detective Fernandez.” The court expressed
doubt the statements of the individuals interviewed would have
even been admissible. However, even assuming they were
admissible, “the People put on a very strong case . . . that was
based upon evidence that really was not deliberate via Detective
Fernandez; for example the Perkins operation.” The Perkins
evidence came in via audio and video, where Trevizu “really laid
out what happened during the course of the [Avalos] murder.” In
addition, the court pointed out there was evidence from Sanchez
as to the “relationship between Mr. Keer and the other
individuals involved; again, laying out a motive and strategy for
committing the offense.” The jail phone calls, social media,
surveillance video, and cell phone evidence all connected the
defendants to the murders, and none of it came in via Detective
Fernandez. None of this evidence was affected by the credibility
of Detective Fernandez. In short, the new evidence did not call
into question any of the key evidence the court referred to in its
ruling. (People v. Hall (2010) 187 Cal.App.4th 282, 298 [trial
court properly denied new trial motion where new evidence was
not directed at the strongest evidence against the defendant.].)

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Under these circumstances, defendants have failed to show
an abuse of discretion in the trial court’s decision to deny the new
trial motion.
VII. Independent Pitchess review
All three defendants have requested this court
independently review the trial court’s Pitchess ruling. The People
do not object. When requested by an appellant, an appellate
court may review the transcript of the trial court’s in-camera
Pitchess hearing to determine if the trial court disclosed all
relevant complaints. (People v. Mooc (2001) 26 Cal.4th 1216,
1229–1232.)
Keer’s Pitchess motion sought evidence of any accusations
the following officers committed misconduct: Michael Levant,
Robert Martinez, Andres Sandoval, Eddie Amaral, Herbert
Ybannez, Jennifer Carson, and Isaac Fernandez. Evidence of
misconduct sought included accusations of excessive force, bias,
dishonesty, coercive conduct or acts constituting a violation of the
statutory or constitutional rights of others.
On September 7 and 8, 2022, Honorable Hector G.
Gutierrez conducted proceedings in camera concerning the
subject Pitchess motion. A city attorney and custodian of records
for LAPD were present. The court noted it reviewed every file for
each officer named and did not limit its review to the last five
years.
As to each officer, the court stated on the record the general
content of each complaint, then stated its reasons for ordering the
complaint to be disclosed or not. As to the complaints that were
ordered disclosed, the court further provided contact information
for each complaining party and available witnesses, if any. The
court provided a thorough summary of the records provided by

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the custodian of records, detailing the contents of each complaint
regardless of remoteness in time.
“Trial courts are granted wide discretion when ruling on
motions to discover police officer personnel records.” (People v.
Samayoa (1997) 15 Cal.4th 795, 827.) We have reviewed the
sealed in-camera Pitchess hearing transcript. Although the
personnel records are not before us, the trial court set forth a
sufficient summary of each record provided for each named officer
for us to determine the nondisclosed records are irrelevant to the
defendants’ request. No abuse of the trial court’s discretion
occurred.
VIII. Parole supervision restitution fines
Keer and Chacon argue the parole supervision restitution
fines described in the minute order and abstract of judgment as
having been imposed under section 1202.45 must be deleted
because the fines were not actually imposed and are
unauthorized as to both Keer and Chacon since both were
sentenced to life without parole.
The People agree the trial court should not have imposed
the challenged fines and respectfully request the court modify the
judgment by striking them. (See People v. Oganesyan (1999) 70
Cal.App.4th 1178, 1181–1182, 1185 [“Section 1202.45 indicates
that it is applicable to a ‘person . . . whose sentence includes a
period of parole.’”].) As there is no dispute the fines should be
stricken, we order them stricken.
IX. Chacon—presentence custody credit
Appellant Chacon contends he is entitled to an additional
day of actual presentence custody credit for a total of 1,122 days.
The People concede he is correct.

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Although Chacon’s counsel did not object at trial, forfeiture
of sentencing only occurs when the alleged error involved an
exercise of discretion. Because the calculation of credits is purely
mathematical, his failure to object at trial does not preclude this
court from correcting the error. (See People v. Aguirre (1997) 56
Cal.App.4th 1135, 1139.)
We modify the judgment to clarify the amount of credits
awarded and order the abstract of judgment corrected, as both
Chacon and the People request.

DISPOSITION
The section 1202.45 fines imposed against Keer and
Chacon are stricken. The judgment is modified to reflect Chacon
is to receive an award of 1,122 days of actual custody credit. The
judgment is otherwise affirmed.

CHAVEZ, J.
We concur:

LUI, P. J.

RICHARDSON, J.

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