People v. Jimenez

majority opinion

Filed 10/6/26; on transfer

CERTIFIED FOR PARTIAL PUBLICATION ∗

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H049356

(Santa Clara County

Plaintiff and Respondent, Super. Ct. No. 216443)

MARCOS ANTONIO JIMENEZ et al.,

Defendants and Appellants.

Under the California Racial Justice Act of 2020 (RJA), “[t]he state shall not seek or obtain a criminal conviction or … sentence on the basis of race, ethnicity, or national origin,” and a defendant who proves one of four enumerated means of violating this prohibition is entitled to a remedy, including but not limited to dismissal of a special circumstance. (Pen. Code, § 745, subds. (a) & (e)(1)(C).) 1 Each of the four prohibited means targets the operation of racial bias—including implicit bias—in the arc of a criminal case. (§ 745(a)(1)–(4).) At issue in the published portion of this opinion is whether defendant Marcos Antonio Jimenez has made a prima facie showing that the prosecution “more frequently sought or obtained convictions for more serious

Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is

∗

certified for partial publication with the exception of parts I.B and II.B through and including II.K.

Unspecified statutory references are to the Penal Code. For brevity, we will omit

“subdivision” or “subd.” from future references to any subdivision of section 745. offenses”—here, first degree special-circumstance murder—“against people who share [his] race, ethnicity, or national origin” than against members of another group “who have engaged in similar conduct and are similarly situated.” (§ 745(a)(3) & (h)(1)). 2 Also at issue is whether resolution of that question should have been deferred by a continuance in the trial court or should now be deferred by our issuance of a stay and limited remand.

Jimenez argues that he established the threshold substantial likelihood of disparate charging of a special circumstance. 3 He bases this argument first on the overrepresentation of Latinx 4 defendants—relative to their share of the general population within Santa Clara County, not their share of the population who “engaged in similar conduct and are similarly situated” (§ 745(a)(3) & (h)(1))—in the population of those serving sentences of life without the possibility of parole (LWOP) in the county. And he next supplements his argument with an undefined “sample” of White murder

Appellant and codefendant Marco Antonio Ruiz did not join Jimenez’s RJA claim in the trial court or on appeal, but the RJA would permit him to bring a postconviction RJA claim.

Because Jimenez on appeal focuses on the decisionmaking of the prosecutor, not of the trier of fact, we focus our review accordingly. The RJA, however, can also be violated if a defendant was “convicted” or a more serious offense than defendants of other races, ethnicities, or national origins who have engaged in similar conduct and the prosecutor more frequently “obtained convictions” for more serious offenses against people who share a defendant’s race, ethnicity, or national origin. (See § 745(a)(3).) But as we will explain, the limitations of Jimenez’s data stop short of a prima facie showing of racially disparate frequency, whether in the prosecutor’s charging decisions or in the verdicts returned by a fact finder.

Jimenez identified as Latinx in the trial court; on appeal he occasionally uses the term “Hispanic,” and the data that he cites employ the designation “Hispanic/Mexican.” To the extent that he treats the terms as interchangeable, his claims do not require us to interrogate the differences among them. When referencing the reported data, we use the nomenclature of the dataset. We otherwise use “Latinx” to comport with Jimenez’s self-identification.

defendants potentially susceptible to the charging of a special circumstance who were nonetheless sentenced to life with the possibility of parole. But his sampling and population figures do not show a substantial likelihood that defendants of his race, ethnicity, or national origin were more frequently subjected to a special circumstance than those who have engaged in similar conduct but are from a different group. Without comparable data—for both Latinx and White murder defendants—showing how many were charged with a special circumstance and how many were not, we can draw no rational inferences about the relative frequency with which the prosecution seeks or obtains a special circumstance verdict. His argument and evidence thus miss the comparisons at the crux of section 745(a)(3).

Jimenez alternatively argues that the trial court abused its discretion in denying his request for a continuance—made for the first time after the denial without prejudice of his RJA claim and after the sentencing hearing was already in progress. But Jimenez neither showed good cause for his untimely request to continue the proceedings nor explained why he could not have made that request before the trial court ruled on the merits of his RJA motion. Nor can we justify granting his latest motion—a motion likewise made after our original disposition of both defendants’ appeals and after the California Supreme Court’s grant of review and transfer for reconsideration in light of intervening amendments to the RJA—to now stay the appeal and remand the matter to the trial court for further litigation of the claim. Like the trial court, we will not impede Jimenez’s pursuit of his plausible claim for relief under the RJA’s provisions for postjudgment writ of habeas corpus. (§ 1473, subd. (e).) But he has identified no benefit to be gained by delaying our resolution of the threshold legal questions at the heart of his claim.

In the remainder of the opinion, not certified for publication, we address each defendant’s claims of trial and sentencing error. We again affirm.

I. BACKGROUND

A. The Indictment

In November 2017, the Santa Clara County criminal grand jury indicted both Jimenez and Ruiz on charges that they murdered Humberto Salas (§ 187; count 1), attempted to murder Salas’s companion, A.P. (§§ 664, 187; count 2), and conspired to commit robbery (§§ 211, 212.5, subd. (c); count 3). The grand jury alleged as to count 1 the special circumstance that the murder of Salas was committed during a robbery (§ 190.2, subd. (a)(17)). As to both counts 1 and 2, it was alleged that Jimenez personally and intentionally discharged the firearm that caused Salas’s death (§ 12022.53, subd. (d)) and that Ruiz personally discharged a firearm (§ 12022.53, subd. (c)). B. The Trial

The prosecution’s case rested largely on testimony by S.C., Jimenez’s girlfriend and admitted coconspirator. 5 Both Jimenez and Ruiz disputed participation or even presence at the scene: The defense theory was that S.C. falsely implicated them to satisfy the prosecutor so that S.C. could reunite with her child and avoid a life in prison.

1. The Robbery and Murder

In October 2016, S.C. was with Ruiz and Jimenez when Ruiz said that he needed to make money. Ruiz suggested finding someone to rob, and he and Jimenez came across A.P.’s social media account on S.C.’s phone. S.C. knew that A.P., a former classmate, sold marijuana, and she told Jimenez that she thought A.P. could be an easy target. Ruiz agreed that A.P. “seemed like he was a bitch.”

The trio planned for S.C. to meet A.P. at Dove Hill Park on the pretext of buying marijuana and get in A.P.’s car; Ruiz, armed with a handgun, would then descend on the

The prosecution secured S.C.’s testimony by a plea bargain in which she pleaded guilty to voluntary manslaughter, accessory after the fact, and conspiracy to commit robbery.

car and rob A.P., with Jimenez on “standby” with his shotgun. Using S.C.’s phone, Ruiz sent A.P. messages to arrange the meeting.

Preparing for the robbery at the home of S.C.’s mother, Ruiz and Jimenez donned black sweatshirts, gloves, and masks. The group drove to the park in Jimenez’s car, at one point going toward the side of the park that was next to a school. Ruiz and Jimenez entered the park on foot to wait for A.P.

A.P. drove to Dove Hill Park with his friend Humberto Salas, texting S.C. at 8:36 p.m. to say he had arrived. On receiving A.P.’s message, S.C. got in the back seat of his car. Salas was in the front passenger seat; he and A.P. planned to hang out together after A.P. concluded his business with S.C. When A.P. passed S.C. a jar of marijuana, Ruiz and Jimenez ran up to the driver’s side and the rear passenger side of the car, respectively. Ruiz pistol-whipped A.P. several times and yelled at S.C. to surrender her phone.

Jimenez, meanwhile, leaned into the car’s rear passenger seat, close enough to grab S.C.’s wrist. Jimenez had his shotgun pointed toward the front passenger seat, where Salas was seated, when A.P. started driving away. S.C., still inside the car, heard three or four gunshots.

A.P., seeing that Salas had been shot, pulled over near the freeway, and S.C. fled. A.P. called 911 and proceeded to a nearby hospital minutes later, but Salas died of his injuries.

After leaving A.P. and Salas, S.C. met Jimenez and Ruiz at her mother’s house. S.C. told Ruiz and Jimenez that Salas had been shot and asked why they had not warned her they planned to shoot at the car. Jimenez said that he had fired his shotgun accidentally; Ruiz responded that he had told Jimenez he planned to shoot.

Jimenez told S.C. he threw the shotgun shells into the ocean near San Francisco. Phone records showed that, after midnight the night of the shooting, calls from Jimenez’s phone activated from a cell tower in San Francisco.

2. Forensic Evidence and the Police Investigation

Salas was killed by a shotgun wound to his back, fired from a range of roughly three to six feet, and there was blood on the front passenger seat of A.P.’s car. The shotgun blast struck nothing else in the car. The car had been hit by bullets on the driver’s side: The rear window was smashed on that side, and there were bullet strikes on the rear quarter panel. Several bullet fragments were recovered from the car.

At the scene, officers found no shotgun shells or shotgun ammunition but recovered projectiles and four .40-caliber casings. In an apartment where Ruiz had sometimes stayed before his arrest, officers found .40-caliber ammunition bearing the same headstamp as the casings found at the park. The four .40-caliber casings found at the scene were found to have been fired from the same gun.

A black hoodie and three gloves—one pair and one single glove—were found stashed in a bush near the park. Gunshot residue was detected on the recovered single glove, the left glove of the recovered pair, and on the black hoodie. Blood found inside the single glove was a mixture from two contributors, and Ruiz’s DNA was consistent with the major contributor’s. Jimenez could not be excluded as a contributor to DNA found on the pair of gloves. A stain on the black hoodie found in the bush had a mixture of DNA consistent with S.C. as a major contributor and Ruiz, Jimenez, Salas, and A.P. as possible minor contributors.

Records from Pinger, an Internet-based messaging application, showed that an account associated with Ruiz’s phone number and username “marco.ruiz1997” sent and received 10 messages between 7:55 p.m. and 8:23 p.m. the day of the shooting. The number also received a text message at around 9:16 p.m., after the shooting.

While alone in a police interrogation room after his apprehension, Ruiz was being recorded. An officer monitoring the room’s surveillance video heard Ruiz saying “ ‘snitch bitch,’ ” “ ‘murder weapon,’ ” and “ ‘glove,’ ” among less intelligible statements.

C. The Verdict

In January 2020, the jury found Ruiz guilty as charged, returning true findings on the robbery-murder special circumstance and the two firearm allegations. The jury found Jimenez guilty as to each count and found true the robbery-murder special circumstance but did not find true the firearm enhancements alleged as to the murder and attempted murder.

D. Post-Trial Motions and Sentencing

In July 2021, the trial court sentenced Ruiz to a term of life without the possibility of parole (LWOP) for Salas’s murder, consecutive to a determinate term of 28 years— seven years for the attempted murder of A.P., 20 years for the associated firearm enhancement, and one year for the conspiracy to commit robbery. In the interests of justice under section 1385, subdivision (b)(1), the trial court struck the punishment for the firearm enhancement attached to the murder conviction.

The next month, the trial court denied Jimenez’s motion to dismiss the specialcircumstance allegation under the RJA, finding that Jimenez failed to make a prima facie showing of discriminatory charging of the special circumstance. The court also rejected Jimenez’s claim that a LWOP sentence would constitute cruel or unusual punishment. Although the court opined that Jimenez “should be given an opportunity to see a parole board” in the future, the court declined to address whether he was now entitled to a youthful offender parole hearing: Jimenez had yet to serve the minimum time that section 3051 requires before consideration for such a hearing, and “many things can change, including the law,” which presently excluded him from eligibility. The court then sentenced Jimenez to LWOP for Salas’s murder, a concurrent term of seven years for A.P.’s attempted murder, and three years for the conspiracy.

II. DISCUSSION

A. Jimenez’s RJA Claim

We review de novo whether Jimenez made a prima facie showing of an RJA violation under section 745(a)(3). (People v. Howard (2024) 104 Cal.App.5th 625, 650.) As we reasoned in our now-vacated original opinion, Jimenez’s statistical and anecdotal arguments failed to compare those “who have engaged in similar conduct and are similarly situated” or to show whether the prosecution “more frequently sought or obtained convictions for more serious offenses.” (§ 745(a)(3).) On his alternative claim that the sentencing court erred in denying his late motion to continue, we found no abuse of discretion.

The Legislature then amended the RJA by enacting Assembly Bill No. 1071 (2025–2026 Reg. Sess.) (Assembly Bill No. 1071). (Stats. 2025, ch. 721, eff. Jan. 1, 2026.) The amendment did not alter the terms of section 745(a)’s four defined types of violations or section 745(h)(1)’s requirement that the frequency comparison be drawn as between “individuals who have engaged in similar conduct and are similarly situated.” (Compare Stats. 2025, ch. 721, § 2 with Stats. 2020, ch. 317, § 3.) The amendment thus did not remove from section 745(a)(3) the required like-to-like comparisons—from which the frequency of the prosecution’s charging decisions could be inferred—that were absent from Jimenez’s prosecution of his claim. But the Legislature decried the RJA’s “silent evisceration” by courts that have “misconstrue[d] the statute to apply procedural barriers or otherwise impose impediments to relief.” (Stats. 2025, ch. 721, § 1(a), citing In re Mendoza, S287251, Supreme Ct. Mins., Dec. 18, 2024 (dis. stmt. of Liu, J.).)

The California Supreme Court granted Jimenez’s petition for review of this court’s decision, denying Ruiz’s, and transferred the matter to this court with directions “to … reconsider the cause in light of the impact, if any, of Assembly Bill No. 1071.”

We understand the Legislature’s uncodified critique in Assembly Bill No. 1071 to underscore its commitment to countering racial discrimination in the criminal legal

system and to remonstrate with a judicial branch that has understood the RJA more narrowly than the Legislature intended. (Stats. 2025, ch. 721, § 1(c) [observing that “[c]ourts … have at times failed to find a prima facie showing or a violation despite evidence of disparate charging and sentencing”].) As before, however, section 745(a)(3) continues to require Jimenez to ultimately show the relative frequency with which the prosecution seeks or obtains convictions for the more serious offense (here, specialcircumstance murder) rather than the less serious alternative (murder without a special circumstance) among people who are similarly situated because they have engaged in similar conduct and that the frequency is higher for people of his race, ethnicity, or national origin than for others; to meet his prima facie burden, he had to show a substantial likelihood of a significant difference in that frequency. (See § 745(h)(1).) The statistical analysis on which Jimenez relied in the trial court did not make this showing but instead built on two errors of both logic and statutory interpretation: (1) conflating the general population with the population that has “engaged in similar conduct and [is] similarly situated” (§ 745(h)(1)) and (2) conflating the occurrences of a more serious charge (or of the less serious alternative) with the frequency of that charging decision.

So with utmost and continuing respect for the plausibility of Jimenez’s legal theory, we again conclude that the trial court properly denied without prejudice his RJA motion to dismiss the special circumstance. And because Jimenez did not explain the untimeliness of his request to continue the sentencing hearing already in progress, we again conclude that the trial court did not abuse its discretion in denying the post-ruling request. Finally, as Jimenez likewise has not shown how either justice or judicial efficiency would be served by delaying resolution of the disputed issues of law central to both his appeal and the anticipated renewal of his claim in the trial court, we deny his post-transfer motion for a stay and limited remand.

1. Section 745(a)(3)

In McCleskey v. Kemp (1987) 481 U.S. 279 (McCleskey), the United States Supreme Court held that a “discrepancy that appears to correlate with race” in death penalty cases raised no federal constitutional concern without proof of discriminatory purpose and accepted “[a]pparent disparities in sentencing” as “an inevitable part of our criminal justice system.” (Id. at p. 312.) Expressly rejecting McCleskey’s tolerance of such racial disparities, the Legislature in enacting the RJA sought “to actively work to eradicate them.” (Stats. 2020, ch. 317, § 2(i), (f).) The RJA thus targets the effects of implicit bias (Stats. 2020, ch. 317, § 2(i)) in criminal convictions and sentences and does not condition relief on proof of intentional discrimination (§ 745(c)(2)).

Subdivisions (a)(3) and (4) of section 745 represent the Legislature’s most direct counterweight to McCleskey. At issue here, section 745(a)(3) entitles a defendant to relief under the RJA if two requirements are met: First, “[t]he defendant was charged or convicted of a more serious offense than defendants of other races, ethnicities, or national origins who have engaged in similar conduct and are similarly situated” (disparate treatment at the individual level); and second, “the evidence establishes that the prosecution more frequently sought or obtained convictions for more serious offenses against people who share the defendant’s race, ethnicity, or national origin in the county where the convictions were sought or obtained” (more frequent disparate treatment at the group level). 6 Although the Legislature did not reiterate the “similar conduct … similarly situated” language in section 745(a)(3)’s second provision, it included that limitation by defining “more frequently sought or obtained” in section 745(h)(1).

Jimenez also relies on section 745(a)(4)(A), which targets disparities in discretionary sentencing for a given charge, correlating with the defendant’s race, ethnicity, or national origin. But because the charging and adjudication of the special circumstance left the trial court no discretion to impose a sentence less than LWOP (see § 190.2, subd. (a)), his RJA claim under subdivision (a)(4)(A) is subsumed within and depends upon his claim under subdivision (a)(3).

Convictions are “ ‘[m]ore frequently sought or obtained’ ” if, among other factors, “the totality of the evidence demonstrates a significant difference in seeking or obtaining convictions … comparing individuals who have engaged in similar conduct and are similarly situated, and the prosecution cannot establish race-neutral reasons for the disparity.” (§ 745(h)(1).) Individuals are “ ‘[s]imilarly situated’ ” if “factors that are relevant in charging and sentencing are similar and do not require that all individuals in the comparison group are identical.” (§ 745(h)(6).) And “similar conduct” refers to the behavior of a person on a particular occasion, or the underlying facts of the crimes. (Mosby v. Superior Court (2024) 99 Cal.App.5th 106, 129 (Mosby).)

As a threshold matter, although the special circumstance is a sentencing provision, we do not read “more serious offenses” potentially actionable under section 745(a)(3) as limited to base offenses without consideration of enhancements or special circumstances. Instead, we examine the statutory language “ ‘ “ ‘ “in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment.” ’ ” ’ ” (People v. Braden (2023) 14 Cal.5th 791, 804.) The Legislature in authorizing dismissal of enhancements as a potential remedy for an RJA violation (§ 745(e)(1)(C)) plainly understood that enhancements elevate the severity of an underlying base offense. And it has long been recognized that any fact which increases the maximum or mandatory minimum penalty has a “clear ‘elemental’ nature” vis-à-vis the underlying offense to which it applies. (Apprendi v. New Jersey (2000) 530 U.S. 466, 494 [treating sentencing factors that increase the statutory maximum penalty for an offense as elements that must be pleaded and proven to a jury]; see also Alleyne v. United States (2013) 570 U.S. 99 [extending Apprendi to facts triggering mandatory minimum sentences]; Ring v. Arizona (2002) 536 U.S. 584, 589 [overruling prior precedent to hold that death-qualifying aggravating factor is an element of the offense of capital murder].) The special circumstance thus elevates Jimenez’s first

degree murder conviction to the “more serious offense” of special-circumstance murder. (§ 745(a)(3).)

Applying the plain terms of sections 745(a)(3) and 745(h)(1), then, Jimenez’s claim for relief based on disparate charging will ultimately require a showing that (1) Jimenez was charged with special-circumstance murder and subject to mandatory LWOP when “defendants of other races, ethnicities, or national origins” who engaged in similar conduct and were similarly situated were not charged or adjudicated with a special circumstance (§ 745(a)(3)), and (2) the frequency with which the People sought or obtained a special circumstance against eligible Latinx murder defendants significantly exceeds the corresponding frequency among eligible murder defendants of another nonLatinx group (§ 745(a)(3) & (h)(1)). 7 To be entitled to an evidentiary hearing on his claim, he need only “make[] a prima facie showing of a violation.” (§ 745(c).) At the prima facie stage, “the court does not ask if the defendant proffered facts sufficient to demonstrate actual entitlement to relief.” (Finley v. Superior Court (2023) 95 Cal.App.5th 12, 22 (Finley).) A “ ‘[p]rima facie showing’ ” requires only the production of “facts that, if true, establish that there is a substantial likelihood that a violation of subdivision (a) [of section 745] occurred.” (§ 745(h)(2).) “[A] ‘substantial likelihood’ requires more than a mere possibility, but less than a standard of more likely than not.” (§ 745(h)(2).) In Assembly Bill No. 1071, the Legislature “reassert[ed] the low threshold required to establish a prima facie showing under paragraphs (1) through (4) of” section 745. (Stats. 2025, ch. 721, § 1(c).) It “again emphasize[d] its rejection of [McCleskey]” and made explicit “its intent that statistical evidence be sufficient for

Because Jimenez takes White defendants as his point of comparison for both elements of section 745(a)(3), we need not decide whether the Legislature intended section 745(a)(3)’s control group of “defendants of other races, ethnicities, or national origins” to permit aggregation of all non-Latinx defendants or requires only a comparison with a single non-Latinx race, ethnicity or national origin.

finding a prima facie case and may suffice to show an RJA violation.” (Stats. 2025, ch. 721, § 1(c).)

2. Jimenez’s Showing

Jimenez predicated his RJA motion on a report prepared by a recent J.D/Ph.D. graduate and an attorney titled “Quick Facts: LWOP vs. LIFE [S]entences in Santa Clara County, California.” Based on data from the California Department of Corrections and Rehabilitation, the report (1) compared the racial demographics of 18- to 26-year-olds sentenced to LWOP in Santa Clara County and statewide with the racial demographics of the county and state general populations, and (2) examined patterns of charges common to those serving life sentences and those serving LWOP sentences, providing an undefined sample of White defendants who fit these charging patterns and received life sentences. At the deliberately low prima facie threshold, we will assume the authors’ undefined sample of White defendants who received life sentences for murder despite a concurrent conviction for a felony listed in section 190.2, subdivision (a)(17) had “engaged in similar conduct” as Jimenez but were spared a special-circumstance allegation by prosecutorial discretion. So we assume that Jimenez has shown a substantial likelihood that he was charged with a more serious offense than some similarly situated White defendants, the first of section 745(a)(3)’s two criteria.

But neither the authors nor Jimenez meaningfully address section 745(a)(3)’s second criterion—whether “the prosecution more frequently sought or obtained convictions for more serious offenses against people who share [Jimenez’s] race, ethnicity, or national origin” than against similarly situated people of “other races, ethnicities, or national origins.” (See § 745(a)(3), italics added.) Instead, they rely on the demographics of the general population, not the similarly situated population of defendants charged with or convicted of murder; they also sample discrete occurrences of less serious outcomes for White murder defendants, without examining either a complementary sample of the more serious alternative occurring among White murder

defendants or corresponding samples for Latinx defendants. 8 Absent these additional comparisons, there is no basis to infer the relative frequency of the prosecutor’s election to charge the special circumstance across racial groups.

The Legislature has instructed that neither “statistical evidence” nor “[s]tatistical significance” is required to show greater frequency in seeking or obtaining the more serious offense. (§ 745(h)(1).) But to make a prima facie showing, Jimenez must still show a substantial likelihood of a significant difference in the frequency of the charging decision across his own and another group of different race, ethnicity, or national origin. (Ibid.) So having based his RJA claim on the report’s undefined sample of White murder defendants serving life with the possibility of parole, Jimenez would need to complete the logical loop of that theory by similarly sampling White defendants serving LWOP and examining the corresponding samples of Latinx murder defendants—sentenced both with and without the possibility of parole. He has not done so.

a. General Population versus Similarly Situated Defendants

The report discloses that 2,867 persons currently serving LWOP sentences in California were between 18 and 26 years old at the time of their offenses. Of these 2,867, more than one-third (1,073) are “Hispanic/Mexican.” Only about one-seventh of these (or 405) are “Caucasian.” 9 Jimenez also observes that young adult Latinx offenders are

One co-author of the report has submitted a declaration with additional Santa Clara County charging data and anecdotal evidence in support of Jimenez’s posttransfer motion for stay and limited remand. That evidence not having been before the trial court, we cannot consider it when reviewing on direct appeal the merits of Jimenez’s claim of RJA error. (People v. Avila (2004) 117 Cal.App.4th 771, 780, fn. 4 [“review[ing] the correctness of the trial court’s ruling at the time it was made and not by reference to evidence produced at a later date”].) We may consider the declaration only as to the propriety of the requested stay, post.

The raw numbers and corresponding percentages reflect that the authors of the report took the racial and ethnic classifications used in both the CDCR and the county data to be distinct and mutually exclusive, such that “Hispanic” as used in the analysis

“severely overrepresented” among offenders sentenced to LWOP in Santa Clara County, relative to the racial demographics of the county at large:

These data reflect that as a whole, defendants identified as Hispanic/Mexican or Black are grossly overrepresented in the LWOP population compared to their share of the county’s general population. (See, e.g., Hardin, supra, 15 Cal.5th 834, 901 (dis. opn. of Evans, J.).) But essential to Jimenez’s claim of prosecutorial bias under section 745(a)(3) is a prima facie showing that this overrepresentation of Latinx defendants stems from disparities in charging a special circumstance that, once proven in conjunction with the underlying murder, mandates LWOP as the minimum sentence rather than an indeterminate life sentence with the possibility of parole. Prosecutors cannot allege a section 190.2 special circumstance except when charging the life-eligible crime of murder, and a true finding on a special circumstance cannot be reached unless the murder is found to be of the first degree. Santa Clara County residents who have no sentencing exposure at all cannot be considered to have “engaged in similar conduct” or be “similarly situated” to Jimenez by presenting similar “factors … relevant in charging and

has no overlap with “White” (or “Caucasian”),“Black,” or “Other.” Jimenez makes no contrary claim.

sentencing” first degree special-circumstance murder. 10 (§ 745(h)(1) & (6).) So for the narrow inquiry presented by Jimenez’s challenge to his LWOP sentence, the “similarly situated” population (§ 745(h)(1)) is not the general population, most of whom will have no criminal legal exposure.

The racial demographics of the county at large may supply a relevant benchmark for whether an RJA violation “could or might have” occurred, warranting further investigation or discovery. (See Young v. Superior Court (2022) 79 Cal.App.5th 138, 159 (Young) [articulating RJA discovery standard]; Gonzales v. Superior Court (2024) 108 Cal.App.5th Supp. 36, 63; McDaniel v. Superior Court (2025) 111 Cal.App.5th 228, 243–244.) And overrepresentation relative to share of general population may be highly relevant to a prima facie showing of a different claim of racial bias. (See, e.g., Jackson v. Superior Court (2025) 109 Cal.App.5th 372, 386 [finding prima facie showing of racially biased law enforcement (§ 745(a)(1)) based in part on overrepresentation of Black drivers, relative to share of general population, in the population of drivers subjected to traffic stops and searches].) For members of different racial or ethnic groups to be similarly susceptible to discretionary traffic stops and searches, for example, they presumably need only be drivers.

But here, unknown and presumably substantial numbers in the county’s general population have never been suspected of involvement in any crime, let alone charged with murder; their inclusion as “similarly situated” thus invalidates the comparison Jimenez and the report’s authors would have us read into the data they supplied. (Cf. Mosby, supra, 99 Cal.App.5th 106, 115–117 [comparing reported percentage of murder defendants of the defendants’ ethnicity who were charged with a special circumstance with corresponding percentage for murder defendants of another race].) Although the

Jimenez does not contend that murder charging patterns (as opposed to specialcircumstance charging patterns) themselves reflect bias.

authors included comparable county data for 18- to 26-year-olds serving life sentences, here too the authors focus on overrepresentation of Hispanic defendants in this nonLWOP population as compared to the county’s general population, rather than examine how the demographics of this non-LWOP cohort compare with those of the LWOP cohort. 11 And even that comparison would not suffice without a showing that the nonLWOP cohort faced murder charges: To show that members of different racial or ethnic groups were similarly susceptible to a district attorney’s discretionary charging of a special circumstance, they must at a minimum have been subject to a murder charge.

b. Raw Numbers versus Frequency

The asymmetrical omissions from the data Jimenez supplied likewise prevent us from gauging how frequently the state seeks and obtains a special-circumstance finding and how that frequency varies across racial lines.

Jimenez argues that the disparate frequency of special-circumstance prosecution is established by the reported percentage of Hispanic LWOP defendants compared to the percentage of White LWOP defendants. But this argument conflates disparity in the frequency of seeking or obtaining the more serious special-circumstance allegation against Latinx murder defendants with disparity in representation within the LWOP population alone. The former—which Jimenez leaves unexamined—compares the

The report is silent as to whether all these non-LWOP defendants had been convicted of murder and, if so, whether they were eligible for a special-circumstance allegation. (See, e.g., §§ 209, subds. (a) & (b)(1) [certain kidnapping offenses punishable by life], 667.61, subd. (c) [“one-strike” sex offenses].) To the extent that the authors and Jimenez consider the combined life and LWOP numbers for 18- to 26-year olds is an acceptable proxy for the total number of people charged with murder and thus eligible for a special circumstance (LWOP eligible), the reported data would tend to undermine Jimenez’s claim. Accepting those premises for argument’s sake, their data appear to suggest that the percentage of Hispanic defendants sentenced to LWOP is in fact smaller than the percentage of LWOP-eligible Hispanic defendants, while the percentage of White defendants sentenced to LWOP is higher than the percentage of LWOP-eligible White defendants.

demographics of the LWOP population with the baseline demographics of the broader murder population (as a rough proxy for those potentially subject to pleading and proof of a special circumstance), examining the charging frequency across the relevant racial groups for “a significant difference in seeking or obtaining” the more serious conviction rather than a murder conviction without the special circumstance. (§ 745(h)(1).) The latter—the comparison advanced by Jimenez here—compares only each race’s share of the LWOP population, without disentangling what we have explained is a minimum relevant baseline (the population of defendants charged with murder) and the disputed charging decision or outcome (allegation of a special circumstance) that is the crux of a section 745(a)(3) claim.

The Legislature in the RJA expressly repudiated McCleskey’s requirement of “discriminatory purpose.” (Stats. 2020, ch. 317, § 2(f); Stats. 2025, ch. 721, § 1(c); see McCleskey, supra, 481 U.S. at p. 298 [requiring that “racially discriminatory effect” be explained by “racially discriminatory purpose” for equal protection challenge to capital punishment statute].) But this repudiation did nothing to relieve an RJA claimant from showing racially disparate treatment—however unintentional, unconscious, or implicit— in “[t]he state[’s] [decision to] seek or obtain” the challenged judgment. (§ 745(a).) To illustrate: If the prosecution were to seek and obtain a special-circumstance finding against every eligible murder defendant irrespective of race, ethnicity, or national origin, the frequency of discretionary LWOP charging and successful prosecution would be 100 percent across all racial groups. There would be no difference in frequency across groups similarly situated by their conduct, even if the racial composition of the LWOP population diverged significantly from the county’s general population. Those hypothetical circumstances, though alarming, would not suggest the disparate frequency of state action targeted by section 745(a)(3).

We do not doubt that the overrepresentation of Latinx young adults among those sentenced to LWOP reflects pervasive structural racism. Nor do we mean to diminish the

significance of the RJA by observing that its focus on implicit and explicit bias in the narrower context of criminal investigation, prosecution, adjudication, and sentencing does not extend to broader race-based injustice that predates a defendant’s involvement in the criminal legal system. But fundamental to section 745(a)(3)’s focus on the differential frequency of seeking or obtaining convictions of more serious offenses are (1) the People’s discretion to choose between lesser and greater charges, (2) the fraction of those similarly situated within a given racial group for whom the more serious offense was sought or obtained when a less serious alternative for the same conduct was available, and (3) how that fraction differs for defendants of a different race. Jimenez’s focus on how representation within the LWOP population differs from representation within the general population excludes these essential comparisons. There must be some effort to show the frequency with which those “engaged in similar conduct and … similarly situated”—whose charges could at least in theory implicate a special circumstance—were not subject to that allegation and how that frequency varies across racial lines. 12 (§ 745(h)(1); see, e.g., Mosby, supra, 99 Cal.App.5th 106, 115 [finding a prima facie violation under § 745(a)(3) in death penalty prosecution where, among other evidence, “only 20 percent of all murder defendants were African-American, [but] they

The trial court observed that the most relevant comparison here would be the racial makeup of defendants sentenced to LWOP for a robbery murder compared with the overall racial makeup of those who have committed robbery murders—in other words, that similar conduct requires consideration of which special circumstance applies. We assume that at the prima facie stage it will be sufficient to define “similar conduct” loosely—e.g., a comparison between murder defendants at large and those convicted of special-circumstance murder: The Legislature’s invocation of McCleskey as a paradigmatic example of unacceptable racial disparity suggests it was uninterested in interrogating the particular statutory aggravating factors that there triggered death eligibility. (See Stats. 2020, ch. 317, § 2(f); Stats. 2025, ch. 721, § 1(c); McCleskey, supra, 481 U.S. at p. 284; but see Mosby, supra, 99 Cal.App.5th at pp. 129–130 [noting in dicta that similar conduct refers to underlying facts of the crime “rather than just a recitation of the charged crime”].) But even under a looser conception of similar conduct, Jimenez has not shown disparate charging based on the data presented.

comprised 26 percent of those charged with special circumstances, 39 percent of those who received death penalty notices, and 36 percent of those who received death sentences”—figures thus reflecting rates of charging and death notices for defendants of Mosby’s race were higher than those for their White counterparts].)

Jimenez, however, argues that the “Quick Facts” data establish that similarly situated Latinx defendants were more frequently charged with special-circumstance murder, pointing to the existence of White defendants sentenced to life with the possibility of parole convicted of “comparable crimes.”

The data upon which Jimenez relies do not support his claim. Rather than examine whether and how the frequency of special-circumstance charging varies in correlation with race, ethnicity, or national origin, the “Quick Facts” authors posit eight “types of patterns [of charges] in LWOP sentencing”; tabulate “how many offenders with the same [patterns of] charges were identified from a sample of offenders in the LIFE data for the state of California”; and provide a sample of only White defendants from each type who were sentenced to life with the possibility of parole.

This, the authors contend, “proves the [racially] disparate application of LWOP v. LIFE sentences for murder and attempted murder charges” as “multiple [White] offenders were identified” as serving life sentences—with the possibility of parole—for each category. Jimenez goes further, positing that the occurrence of life sentences with the possibility of parole among White offenders “established” that similarly situated Latinx defendants were more frequently charged with a special circumstance or convicted of first degree special-circumstance murder. We appreciate the effort in this aspect of the report to identify a cohort of similarly situated defendants, but their effort nonetheless falls short of showing a substantial likelihood of racially disparate frequency in seeking and obtaining a special circumstance finding.

Preliminarily, we note potential issues—which we do not treat as dispositive at the prima facie stage (see fn. 15, ante)—with their approach to delimiting who is similarly

situated. The categories or “types of patterns” of charges the authors have defined do not reliably implicate an LWOP-triggering special circumstance or first degree murder, a special circumstance’s prerequisite. (See §§ 190.2, subd. (a) [requiring first degree murder conviction as a predicate for application of listed special circumstances], 189, subd. (a) [defining first degree murder].) For example, the largest type (655 of 1,178, or 55.6 percent) was defined as “[one] homicide charge only”; the next largest type (214 of 1,178, or 18.2 percent) was defined as “[one] homicide charge + [one] attempted homicide charge.” But because a homicide charge is necessary but not sufficient to qualify for a LWOP term, counting those defendants 13 convicted of homicide who are serving life sentences does not illuminate whether these defendants were similarly situated to Jimenez in eligibility for an LWOP-triggering special circumstance.

With the third-largest type, “[one] homicide charge + [one] other felony” (159 of 1,178, or 13.5 percent), the authors come closer to a methodologically sound proxy for a generically charged felony murder. They do not, however, identify whether the “other felony” is among the felonies listed in section 190.2, subdivision (a)(17)’s felony-murder special circumstance (and not, for example, unlawful possession of a firearm). And the authors appear to have had that information, judging from an attached spreadsheet of “cleaned” data from the sample of White offenders. 14

At the deliberately low prima facie threshold, we might look past these issues with the authors’ “ideal types” categorization. What is harder to overlook is the absence of an LWOP versus LIFE comparison across these chosen categories or a demographic

This would be so even disregarding potential questions implicated by the authors’ reliance on only a “sample of offenders,” when the authors neither disclose their sampling methodology nor provide a corresponding tabulation from a comparably selected sample of offenders (White or Latinx) in the LWOP data.

Here too, the record does not disclose what the authors’ cleaning of the data entailed. If some data were omitted because deemed irrelevant, erroneous or anomalous, the authors do not disclose the criteria used.

breakdown within the categories for both the LWOP and LIFE cohorts. With no indication of how the White defendants in the LIFE data were sampled, no corresponding tabulation or sample of Latinx defendants, and no corresponding samples of White or Latinx defendants from the LWOP data within those categories, we can infer nothing about the frequency with which defendants of either group are subject to different charging decisions or experience different outcomes.

The cleaned and sampled White offender data in the authors’ spreadsheet show, for example, that at least 20 White defendants statewide were convicted of murder and at least one felony listed in section 190.2, subdivision (a)(17) but were sentenced to life with the possibility of parole. And at the prima facie stage we will assume from the concurrent convictions for murder and another felony satisfying section 190.2, subdivision (a)(17) that the murder was committed in the perpetration of the felony, such that the felony-murder special circumstance could have been sought and obtained. But the bare fact of parole-eligible life sentences for these 20 White defendants tells us nothing about the relative frequency of that charging decision, as the authors neither disclose how many White defendants with comparable convictions were sentenced to LWOP nor provide sufficient information from which we could discern a substantial likelihood of a significant difference in the frequency of less serious convictions. Nor have the authors or Jimenez shown the corresponding data for Latinx defendants. This analysis therefore does not support a substantial likelihood that the prosecution more frequently seeks or obtains a special-circumstance finding against Latinx murder defendants than against White murder defendants (or defendants of any other group). Neither the authors nor Jimenez have explained how sampling, cleaning, and quantifying only the LIFE outcome data and only for certain White defendants—to the exclusion of both LWOP outcome data for White defendants and corresponding LIFE and LWOP data for Latinx defendants—bears on whether special circumstances were “more frequently

sought or obtained” (§ 745(h)(1)) with Latinx defendants than with similarly situated White defendants.

Absent from the record, moreover, are data that might have enabled us to fill the gaps in the analysis provided. To support a prima facie claim, Jimenez should have included “ ‘reasonably available documentary evidence’ ” from which we could evaluate the authors’ contention that a special circumstance is more frequently sought or obtained against Latinx murder defendants than against White murder defendants. (Finley, supra, 95 Cal.App.5th at p. 21.) The report reflects that the authors possess CDCR data on “All Active Offenders in California Sentenced to LWOP ages 18-26 …, All Active Offenders in California Sentenced to LWOP ages 27 and older …, and All Active Offenders in California serving LIFE.” The report also reflects that the data include racial and ethnic identification—information that would have permitted a category-by-category comparison of LWOP and LIFE outcomes by race and ethnicity, even without county charging data. Without explaining the apparent omission of this available data from the analysis presented, Jimenez’s RJA claim of disparate frequency lacks foundation. “ ‘ “Conclusory allegations made without any explanations of the basis for the allegations do not warrant relief, let alone an evidentiary hearing.” ’ ” (Ibid.) This principle extends to “expert declarations and statistical information” accompanying a motion filed under the RJA. (Id. at p. 22.)

For Jimenez’s statistics-based challenge to LWOP charging under

section 745(a)(3), we would expect an examination of (1) a clearly defined sample of those defendants who were convicted of murder in the relevant period and region (as a prima facie proxy for those charged), (2) the subset of that sample who were also found to have committed murder with a special circumstance, and (3) the racial makeup of both the murder group and the special circumstance subset. (Compare Mosby supra, 99 Cal.App.5th at p. 129 with id. at p. 134 (conc. opn. of Menetrez, J.); see, e.g., McCleskey, supra, 481 U.S. at p. 287 [study indicated that Black defendants who kill

white victims “have the greatest likelihood of receiving the death penalty,” over White defendants who kill victims of any race].) At the prima facie stage, we assume that similarity at a more granular level—in the type of special circumstance, type of predicate felony, or underlying facts—need not be shown. But a prima facie case for racial discrimination in the special-circumstance charging decision requires more than a showing that an undefined sample of White homicide defendants happens to be serving sentences of life with the possibility of parole.

Even recognizing the low bar for a prima facie showing under section 745, we cannot conclude that Jimenez has demonstrated a substantial likelihood of a violation of the RJA. (§ 745(h)(2).) We thus find no error in the trial court’s denial without prejudice of Jimenez’s motion under the RJA.

3. Post-Ruling Motion for Continuance

After the trial court denied Jimenez’s RJA motion without prejudice to a postjudgment claim, Jimenez’s counsel asked to continue the sentencing hearing to move to compel discovery under section 745, subdivision (d). Anticipating our conclusion on the merits of his RJA claim, Jimenez alternatively contends that the trial court erred by denying the requested continuance. We find no abuse of the trial court’s “ ‘ “broad discretion to determine whether good cause exists to grant a continuance of the trial.” ’ ” (People v. Alexander (2010) 49 Cal.4th 846, 934 (Alexander); see also § 1050, subd. (e) [providing for continuance “only upon a showing of good cause”].)

Good cause for a continuance requires a showing that “ ‘ “counsel and the defendant have prepared for trial with due diligence.” [Citation.] Such discretion “may not be exercised so as to deprive the defendant or his attorney of a reasonable opportunity to prepare.” ’ ” (Alexander, supra, 49 Cal.4th at p. 934.) 15 Given the breadth of the trial

We distinguish good cause for a continuance (or for a failure to timely request

one) under section 1050 from good cause for discovery under section 745,

court’s discretion, “ ‘only an unreasoning and arbitrary “insistence upon expeditiousness in the face of a justifiable request for delay” violates the right to the assistance of counsel.’ ” (Ibid.) Absent a showing of good cause for violating section 1050, subdivision (b)’s requirement of timely written notice of a motion for a continuance, “the motion for a continuance shall not be granted.” (§ 1050, subd. (d).)

Here, the jury returned its verdicts, including the special-circumstance finding, in January 2020; the RJA became effective January 1, 2021; and Jimenez’s sentencing hearing took place over two days—July 23, 2021 (a date selected without objection about 11 weeks earlier) and August 6, 2021 (a date selected on July 23, without objection, after it became apparent that the parties’ arguments would require more than their allotted time). Jimenez was represented by the same counsel throughout. It was three days before the second and final day of the sentencing hearing that counsel filed the RJA motion. But counsel did not seek a continuance to pursue Jimenez’s RJA claim until after the trial court ruled on the RJA motion on the merits. Citing for the first time her need to bring a discovery motion under section 745(d), counsel did not explain why she could not have anticipated a need for further data in time to move for a continuance of the second day of the sentencing hearing.

When she did request the post-ruling continuance, Jimenez’s counsel explained that the report’s authors had been receiving data from the CDCR “through the spring of this year” and that Jimenez’s counsel did not receive the report until the week of the sentencing hearing. On appeal, Jimenez maintains that it was “the defense” who diligently “sought data from CDCR through the spring of [2021].” But nothing in the appellate record reflects when his trial counsel (as opposed to the report’s authors) first

subdivision (d). We have no reason to doubt the latter. (Young, supra, 79 Cal.App.5th at p. 159 [good cause for RJA discovery requires only a “plausible factual foundation, based on specific facts, that a violation of the [RJA] ‘could or might have occurred’ in [the defendant’s] case”].)

contemplated an RJA claim or commenced working on the claim at any earlier point than the week of the final sentencing hearing. 16 And even if it had been Jimenez and his counsel who had promptly and diligently sought the data, he could have chosen to request a continuance before pressing the trial court to rule based on a report that on its face discloses that its authors “are informed and believe that the [necessary charging] data has been requested [of] but denied by the District Attorney, thereby necessitating [California Public Records Act] litigation.” 17 (See, e.g., § 1050, subds. (b) & (d); cf. People v. Sakarias (2000) 22 Cal.4th 596, 646–647 [no abuse of discretion to deny morning-ofsentencing request for continuance to prepare motion for new trial where defense counsel had ample time to prepare and gave no explanation for why he had not used available time to prepare].) We will not fault Jimenez’s counsel for her tactical decision to press forward on the merits of the preliminary “Quick Facts” report and her construction of the new statute. But having miscalculated her odds of prevailing on both points, she did not timely demonstrate the diligence necessary to compel the trial court to extend her time she never timely requested. (See Alexander, supra, 49 Cal.4th at p. 934.)

Jimenez’s reliance on People v. Garcia (2022) 85 Cal.App.5th 290 is

unpersuasive: Counsel there had (1) been appointed less than a week before the

As with the denial of the RJA claim, we assess Jimenez’s claim of error in the denial of his continuance motion based on the information before the trial court, not the declaration attached to Jimenez’s motion for a stay and limited remand. Nor would that declaration support a different result. According to the “Quick Facts” co-author, Jimenez’s counsel did not contact the authors about an RJA claim until two days before the sentencing hearing was set to commence, and the authors advised trial counsel to request a two-month continuance. As we have explained, the record reflects neither request for nor denial of any continuance of any duration until after the trial court’s decision on the merits of the claim.

At the hearing on the RJA motion, Jimenez’s counsel represented that it was the report’s authors who “ha[d] requested that additional data and … are waiting for that from the district attorney’s office.”

sentencing hearing and (2) timely moved for a continuance, concurrently with her sentencing memorandum. (Id. at p. 294.) Although counsel requested more time to prepare, the trial court denied the request, even while recognizing that counsel “did not have ‘time to really flesh out the statistics’ ” to demonstrate racial bias. (Id. at p. 295.) So on appeal, the First District held that the defendant’s new counsel should have been granted a “reasonable opportunity to review the trial record and gather relevant information to prepare a motion for discovery under the []RJA” and the error was prejudicial under any standard. (Id. at p. 297.) Unlike the defendant in Garcia, Jimenez was represented by the same counsel throughout the proceedings, and, unlike counsel in Garcia, Jimenez’s counsel had time to prepare a discovery motion before the sentencing hearing, had she chosen to. More importantly, Jimenez’s counsel had time to move for a continuance before the final day of sentencing. Counsel’s election to rely on the report rather than acknowledge its potential limitations did not obligate the trial court to delay the sentencing hearing merely because its denial of Jimenez’s RJA claim was without prejudice to its later renewal.

Assembly Bill No. 1071’s amendments to the RJA compel no other conclusion. The Legislature has now made explicit that discovery is available to those preparing to raise a postconviction RJA claim. (§§ 1473, subd. (e), 1473.7, subd. (e).) Even before the enactment of Assembly Bill No. 1071, however, the bar to establish good cause for discovery under the RJA was low: “[A] defendant is required only to advance a plausible factual foundation, based on specific facts, that a violation of the Racial Justice Act ‘could or might have occurred’ in his case.” (Young, supra, 79 Cal.App.5th at p. 159; In re Mendoza, supra, S287251, Supreme Ct. Mins., Dec. 18, 2024 (dis. stmt. of Liu, J.) [statewide data sufficient for discovery under the RJA].) The issue here, however, is not whether (as we assume) a request for discovery should have been granted, but whether a precursor request for a continuance to draft a discovery request should have been granted

after the court—without any prior objection to the sentencing hearing schedule—had already heard and ruled on the merits of the RJA claim.

Because Jimenez’s counsel gave no reason for her delay in requesting a continuance, we find no abuse of discretion in the trial court’s conclusion that no good cause had been shown to warrant either her delay or the requested continuance of the sentencing date. (See Alexander, supra, 49 Cal.4th at p. 934.) For these same reasons, we find no merit in Jimenez’s additional contention that denial of the continuance deprived him of the effective assistance of counsel and due process. “[A] trial court may not exercise its discretion over continuances so as to deprive the defendant or his attorneys of a reasonable opportunity to prepare.” (People v. Snow (2003) 30 Cal.4th 43, 70.) But the reasonableness of the trial court’s denial, on this record, forecloses a claim that the denial violated Jimenez’s constitutional rights. (Alexander, at pp. 935–936.)

4. Posttransfer Motion for a Stay and Limited Remand

Consistent with his post-ruling motion to continue the sentencing hearing then already in progress, Jimenez now asks that we delay rendering any opinion by staying the appeal and remanding the matter for relitigation of his RJA claim with data acquired in the intervening five years. Jimenez made this request for the first time after (1) the California Supreme Court’s transfer of the matter back to this court, (2) we set an extended schedule for supplemental briefing, and (3) he filed his post-remand supplemental brief. Jimenez argues in his motion that the “necessary data [have] been obtained and [are] being analyzed” and that a stay and remand would permit him to “supplement the record and provide the court with additional data and information for it to review his claims.” To support his motion, he has attached a declaration by one of the authors of the “Quick Facts” report, who acknowledges “problems with the data as provided by CDCR” and summarizes recently acquired data from Santa Clara County

murder and LWOP cases. 18 Jimenez has not shown good cause for delaying resolution of the very questions of law he agrees are foundational to his claim.

Contrary to the implication of Jimenez’s latest and unsolicited supplemental brief, we do not question our authority to order a stay and limited remand, only the necessity or benefit of doing so. Indeed, from the inception of Jimenez’s appeal, section 745(b) has allowed a defendant to “move to stay the appeal and request remand to the superior court to file a motion pursuant to this section.” A stay and remand is appropriate when a court finds “good cause” to stay a pending appeal and permit a limited remand to the trial court “to pursue alternative forms of relief.” (People v. Wilson (2024) 16 Cal.5th 874, 950 (Wilson).) The good cause inquiry “is not limited to whether the defendant seeks to litigate a colorable claim in an alternative forum, but instead takes into account all relevant circumstances and interests that counsel for and against a stay of appellate proceedings while that litigation occurs.” (Id. at p. 952.) A stay and remand is a “significant departure” from the normal appellate process and can cause significant delays in the adjudication of cases. (Ibid.) So “courts have uniformly understood that good cause must be based on the particular circumstances and interests at stake. The fact that an appellant may have other, colorable claims that could be raised in a different forum has never been thought sufficient, standing alone, to justify halting the adjudication of a pending appeal.” (Ibid.)

We accept that Jimenez has stated a plausible claim of racially disparate charging of special-circumstance murders, despite what we consider his failure thus far to make a

The co-author omits from his declaration any further presentation or substantive analysis of the CDCR data and takes no methodological or logical issue with our original analysis of the report. But he notes “the immensity of processing the information as provided by CDCR” and recounts his and his co-author’s uncompensated dedication to the monumental effort of providing what they could to Jimenez’s counsel. We do not doubt the authors’ dedication or diligence, only the logic of their analysis—under time pressure not of their making—of what they reported as evidence of a RJA violation.

prima facie showing. And we do not hold that section 745(b)’s reference to the opportunity to “file a motion” necessarily excludes a second motion. But Jimenez has identified no barrier to pursuing his RJA claim after judgment. (See Wilson, supra, 16 Cal.5th at p. 960 [noting that defendant had not “demonstrated that any legal or practical obstacle will delay or prevent him from raising his extrarecord RJA claims through the usual means of a petition for writ of habeas corpus”].) Section 745(b) expressly permits a defendant to file a petition for a writ of habeas corpus alleging a violation of the RJA. Even if the trial court had not made explicit that its denial of the RJA motion was without prejudice, section 1473, subdivision (e)(3) permits a renewed petition based on “new discovery provided by the state or other new evidence that could not have been previously known by the petitioner with due diligence.” 19 Neither stay nor remand is required for a defendant to litigate RJA claims that are not based on the trial record. “Under both the RJA and long-settled principles of law, appellants are entitled to file a concurrent habeas corpus petition raising extrarecord RJA claims in superior court, regardless of where the proceedings stand in the appeal.” (Wilson, at p. 944.) Nor does finality of a judgment on direct appeal limit a petitioner’s entitlement to discovery under section 745(d). Furthermore, our affirmance of the trial court’s denial of Jimenez’s motion without prejudice would not foreclose any future motion that is supported by new or additional evidence. (See People v. Barragan (2004) 32 Cal.4th 236, 246–247 [law of the case doctrine cannot be invoked when there is new material evidence].) So deciding Jimenez’s appeal would not curtail his opportunities to seek appropriate RJA remedies.

In Wilson, the California Supreme Court recognized the risk that “qualified habeas counsel” might not be available to represent the Wilson defendant in pursuing collateral relief under the RJA. (Wilson, supra, 16 Cal.5th at p. 959.) But Jimenez offered no

Our conclusion that trial counsel did not timely request a continuance does not bear on whether any later-acquired evidence “could not have been previously known … with due diligence.” (§ 1473, subd. (e)(3).)

indication that the challenge in obtaining counsel discussed in Wilson would be implicated in his case. Wilson was a capital case, implicating the “dearth of qualified counsel and funding for capital appointments.” (Wilson, at p. 969 (dis. opn. of Evans, J.).) Jimenez makes no colorable claim that his case implicates the same challenge facing capital defendants.

First, Jimenez has pleaded a “plausible allegation” of an RJA violation sufficient to entitle him to appointment of counsel if he cannot afford one. (§ 1473, subd. (e)(5); see, e.g., Harmon v. Superior Court (2026) 117 Cal.App.5th 1236, 1256 [if public defender declines appointment to represent indigent defendant for a RJA habeas corpus petition, trial court is obligated to appoint other counsel].) Second, as his appellate counsel has requested a stay and remand to litigate a motion in the trial court, it appears that Jimenez anticipates the availability of counsel to pursue his RJA motion; he has not suggested that counsel’s availability or willingness to represent him is contingent on a stay of the appellate proceedings as opposed to pursuing a concurrent or separate habeas corpus petition. At most, Jimenez suggested at oral argument that it is unclear (1) how quickly habeas counsel would be appointed in the trial court and (2) whether his trial counsel would be as available to accept an appointment as habeas counsel as she would on a limited remand. But even given Justice Evans’s dissent in Wilson, Jimenez has not suggested that an RJA claim in noncapital habeas corpus petitions will be beyond the availability of reasonably competent noncapital counsel. 20

The attorney co-author of the “Quick Facts” report emphasizes that when Jimenez’s trial counsel first approached him about an RJA claim, “there was no one else willing or able to assist [trial counsel] in the matter.” But this was two days before the scheduled sentencing hearing and 16 days before the RJA claim was ultimately heard. We thus have no basis to treat the unavailability of pro bono counsel under such constraints as predictive of the availability of appointed counsel in an RJA habeas corpus proceeding.

We do not suggest that the availability of postconviction relief under sections 1473 or 1473.7 will always foreclose a showing of good cause for a stay and limited remand. But Jimenez has also shown no benefit to staying the appeal at this late date and thereby delaying resolution of the threshold legal questions at the heart of his claim. People v. Awad (2015) 238 Cal.App.4th 215, cited by Jimenez in his motion, does not support a contrary result. In Awad, the Court of Appeal granted a stay and limited remand to permit a defendant to seek relief under Proposition 47, which reclassified certain felonies as misdemeanors but took effect during the pendency of the defendant’s appeal. (Awad, at p. 218.) The Awad court reasoned that, absent a stay and limited remand, defendants like Awad were “face[d with] a Hobson’s choice” between “wait[ing] … until they complete their appeals from the underlying judgment” and risk that “by then, it may be too late to gain any [sentencing] benefit” from reduction to a misdemeanor or “giv[ing] up any pending appeal in order to obtain speedy Proposition 47 relief from the trial court.” (Ibid.) Because the RJA expressly permits concurrent habeas corpus petitions, and because our resolution of this appeal does not foreclose the availability of RJA relief, Jimenez faces no such “jurisdictional conundrum.” (Ibid.)

None of the other considerations relevant to good cause favor a stay and remand. Although it appears that a cursory analysis of this new data has been conducted, Jimenez concedes that further analysis will be necessary to support his prima facie case. 21 Waiting for Jimenez or the original report’s coauthors to complete an adequate review

Neither Jimenez nor the report’s co-author explain how the new county data would support rather than undermine a claim that “the prosecution more frequently sought or obtained” special-circumstance findings “against people who share the defendant’s race, ethnicity, or national origin” than against other defendants. (§ 745(a)(3).) These latest data do not suggest that the percentage of LWOP sentences among those convicted of murder is higher for defendants identified as Hispanic than for defendants identified as White. Nor does aggregating the reported figures for defendants not identified as Hispanic produce a result more helpful to Jimenez’s claim.

would delay further the resolution of not only his appeal—including the many non-RJA claims of error unaffected by the special-circumstance allegation—but also Ruiz’s. 22 In this respect, we “must also consider the interests of victims’ families, witnesses, and the public as well,” which “counsels against further delaying the resolution” of those nonRJA claims. (Wilson, supra, 16 Cal.5th at p. 961.)

Finally, the principles of judicial economy do not weigh in favor of a stay and limited remand, given this exceptionally late stage of the litigation and the pure issues of law underpinning Jimenez’s RJA claim. The timing of Jimenez’s posttransfer motion loudly echoes his post-ruling continuance motion in the trial court. We are reluctant to encourage incremental and recursive litigation of the same claim, with each adverse ruling prompting a renewed attempt with more data, by shirking our duty to review the legal issues squarely presented by the RJA, Assembly Bill No. 1071, and Jimenez’s contrary theories about what they require. To do so would make the “significant departure” from normal appellate process the rule rather than the exception for any statistical claim under section 745(a)(3) or (4). (Wilson, supra, 16 Cal.5th at p. 952.)

The request is denied.

B. Exclusion of Evidence: WiFi Networks at Dove Hill Park

Given S.C.’s testimony that Ruiz had no cellular phone service when the prosecution evidence showed his Pinger user account was sending and receiving messages, Ruiz sought to introduce testimony from a defense investigator who visited Dove Hill Park during trial and found no accessible public WiFi networks. Reviewing the court’s ruling on relevance for abuse of discretion (People v. Avila (2006) 38 Cal.4th 491, 578 (Avila)), we find no error.

Although the Supreme Court denied Ruiz’s petition for review, his appeal remains before us, given the high court’s directive to vacate our prior decision.

1. Additional Background

S.C. testified to her belief that Ruiz lacked a working phone at the time of the offense: She understood that his phone could not connect to a cellular service (because he could not pay his phone bills), and she did not believe there was available WiFi at Dove Hill Park. And although Jimenez had a phone, its screen was broken.

Still, the Pinger account of user “marco.ruiz1997” sent and received 10 messages between 7:55 p.m. and 8:23 p.m. the night of the shooting. Transmission of Pinger messages requires a data connection. Pinger is a WiFi-based application that permits users to make voice calls without going through a mobile phone service provider like AT&T or T-Mobile. Pinger messages, according to Detective Brian Meeker, could thus be sent from a phone that is “tethered” to another cellular device that supplied WiFi access. And cell phone records disclosed that Ruiz’s phone received a text message at around 9:16 p.m., shortly after the shooting.

Thus, to be able to make and receive calls from Pinger, Ruiz’s phone would have to have been connected to WiFi if he was otherwise unconnected to a cell service. Therefore, to dispute that he was present at the scene, Ruiz sought to admit evidence that in January 2020, his defense investigator visited 17 locations throughout Dove Hill Park and found only WiFi networks that were either locked or unlocked but required logging in for access. Ruiz’s counsel argued that the investigator’s findings were circumstantial evidence of an alibi defense: If the January 2020 unavailability of unsecured WiFi networks in Dove Hill Park tended to suggest that WiFi networks would have been unavailable there over three years earlier, Ruiz could not have been sending and receiving Pinger messages had he been with S.C. at the park at the time.

The trial court excluded the evidence, finding the current WiFi status at the park had “very little probative value” as to “what the WiFi networks were like or existed in October of 2016.” The court also found that its admission would also prejudice the

prosecution, given the lack of opportunity to investigate the identified networks and when they had been secured.

2. Analysis

Relevant evidence is evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210; see also People v. Clark (2011) 52 Cal.4th 856, 892 [relevant evidence “ ‘tends “ ‘logically, naturally, and by reasonable inference’ to establish material facts” ’ ”].) “Any relevant evidence that raises a reasonable doubt as to a defendant’s guilt … is admissible.” (Avila, supra, 38 Cal.4th at p. 577.) “Evidence is irrelevant, however, if it leads only to speculative inferences.” (People v. Morrison (2004) 34 Cal.4th 698, 711.)

Although we agree that Ruiz’s ability to send digital messages the night of the 2016 offense was plainly relevant, we discern no abuse of discretion in the trial court’s determination that the investigator’s 2020 findings were insufficiently probative of the status of WiFi when the shooting took place. The trial court reasonably concluded that the investigator’s testimony was irrelevant to the disputed issues at trial.

The crimes took place in October 2016 and the evidence sought to be admitted by Ruiz related to the availability of WiFi in January 2020, more than three years later. And Meeker opined that the phone could have employed another cellular device for WiFi access. 23 The Pinger account associated with Ruiz could have therefore exchanged text

Ruiz argues that Meeker’s testimony about tethering to another cellular device was contradicted by the expert testimony that Ruiz’s phone needed a WiFi connection to send and receive messages. We disagree—we understand Meeker’s testimony to be that a WiFi-enabled phone without cellular service may use another phone as a WiFi hotspot, providing the necessary WiFi connection. And were these witnesses’ testimony in conflict, “ ‘it is the exclusive province of the … jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.’ ” (People v. Mumin (2023) 15 Cal.5th 176, 202 (Mumin).)

messages when connected to WiFi by a variety of means; either he was connected to WiFi over an unsecured, publicly available network connection, or the phone had access to the Internet through some other “data port,” including through another cell phone. The availability of WiFi is not static, and the variables to be considered are numerous. That an unsecured, public connection to WiFi was not discovered by an investigator at 17 spots near the park in January 2020—neither suggests nor dispels the idea that Ruiz’s phone was able to connect to WiFi or that Ruiz had an available “data port” from which to tether to at or near Dove Hill Park in 2016.

Ruiz suggests on appeal that unsecured WiFi “was likely more prevalent” in 2020 than in past years but provides no basis for this proposition. His trial counsel would have to invite the jury to speculate that all those who in October 2016 controlled any WiFi networks within range of the park would have been no less motivated or scrupulous about securing those networks against unidentified users than those who controlled available WiFi networks by the time of trial.

The court was not obliged to admit evidence that would require this speculative inference. (See, e.g., People v. Williams (1997) 16 Cal.4th 153, 212–213 [no abuse of discretion in denying defense motion to visit scene of crime because trial court “correctly reasoned that lighting and foliage conditions at the scene might be different than those prevailing at the time of the offense”]; see also People v. Lawley (2002) 27 Cal.4th 102, 158 [when trial court considers whether jury should view crime scene, it may properly consider “ ‘whether the conditions for the jury view will be substantially the same as those under which the witness made the observations’ ”].)

The evidence sought to be introduced would lead only to speculative inferences about the availability of WiFi in 2016, minimizing its probative value. To the extent that the trial court appeared to grant that the proffered evidence had some probative value, if only “very little,” we address Ruiz’s contention that the court erred in excluding the

evidence as substantially more prejudicial than probative under Evidence Code section 352. So framed, we still discern no abuse of discretion.

S.C. had already testified that she did not believe WiFi was available to Ruiz when he was at the park, and the prosecutor acknowledged this. Indeed, during closing argument, Ruiz’s counsel highlighted this part of S.C.’s testimony and the absence of any contrary evidence on this point. Given the trial court’s observation that the timing of this component of the defense investigation would deny the prosecution any opportunity to meaningfully test the evidence, it acted within its discretion to exclude cumulative evidence of questionable probative value. A trial court only exceeds its discretion if it acts in “ ‘ “an arbitrary, capricious, or patently absurd manner that result[s] in a manifest miscarriage of justice.” ’ ” (People v. Merriman (2014) 60 Cal.4th 1, 74.) No such manifest miscarriage of justice has been shown here.

And because the evidence had at best minimal probative value, we find no merit in Ruiz’s related contention that the exclusion of evidence impaired his constitutional right to present a defense. The “general rule [is] that the application of the ordinary rules of evidence under state law” does not violate a defendant’s right to present a defense, “because trial courts retain the intrinsic power under state law to exercise discretion to control the admission of evidence at trial.” (People v. Abilez (2007) 41 Cal.4th 472, 503.) C. Juror Misconduct

Ruiz relatedly argues that the jury committed prejudicial misconduct by speculating about his access to WiFi at the park based on matters not in evidence. Because the jurors merely relied on their common experiences during deliberations, we find no misconduct.

1. Additional Background

Following the jury’s verdict, Ruiz filed a motion for a new trial, in part arguing that the jury had considered matters not in evidence because the availability of WiFi connections at Dove Hill Park had been discussed during jury deliberations. Attached to

the new trial motion was a report from a defense investigator who interviewed a juror, M.L., who told the investigator that the availability of WiFi was discussed “a few times” and that the jurors had “agreed there was a possible connection somewhere from a residence, or possibly even a homework center at the school nearby.” Another juror, R.M., also spoke with the defense investigator, who reported that R.M. recalled that the deliberating jurors discussed the availability of WiFi and that jurors had “discussed that the other defendant had an active cell phone plan, and [Ruiz] could have used a hot spot type situation, like on his phone,” that “there being a school right there [near the park], and some schools do have wi-fi in this area,” and that the park being in a residential neighborhood meant that “there’s really often open wi-fi connections all around.” Ruiz filed a motion requesting juror identifying information, arguing that a prima facie showing of juror misconduct had been made and that he needed the additional disclosure to investigate and bolster his claims.

The trial court denied both of Ruiz’s motions, noting that “[t]he discussion about the fact that another phone can be used as a hotspot is a common knowledge piece of information that … jurors have,” that the discussions about the possibility of WiFi at a nearby school were not misconduct, and nothing suggested that “facts were inserted based on a juror’s knowledge beyond simple discussion of the issue generally.”

2. Legal Principles and Standard of Review

Under section 1181, a defendant may move for a new trial on several different grounds, one of which is that the jury received any evidence out of court. (§ 1181, subd. 2.) When reviewing the trial court’s denial of a motion for new trial based on juror misconduct, we accept a trial court’s factual findings and credibility determinations, including as to whether misconduct occurred, “if they are supported by substantial evidence,” but we exercise “independent judgment to determine whether any misconduct was prejudicial. [Citations.] … [Citation.] Juror misconduct raises a rebuttable presumption of prejudice; a trial court presented with competent evidence of juror

misconduct must consider whether the evidence suggests a substantial likelihood that one or more jurors were biased by the misconduct.” (People v. Dykes (2009) 46 Cal.4th 731, 809; People v. Tafoya (2007) 42 Cal.4th 147, 194–195 [finding that substantial evidence supported trial court’s finding that no misconduct occurred].)

3. Analysis

“A fine line exists between using one’s background in analyzing the evidence, which is appropriate, even inevitable, and injecting ‘an opinion explicitly based on specialized information obtained from outside sources,’ ” the latter of which is misconduct. (People v. Steele (2002) 27 Cal.4th 1230, 1266 (Steele).) The line here was not crossed. Cell phones and other personal electronic devices are prevalent, and the use of such devices and their limitations—including by logical extension whether WiFi may be publicly available to use with a personal electronic device—is a subject of common experience. (See, e.g., People v. Yeoman (2003) 31 Cal.4th 93, 162 [no misconduct when jurors discussed personal experiences with drugs during deliberations as the effect of drug use “has become a subject of common knowledge among laypersons”]; People v. Fauber (1992) 2 Cal.4th 792, 838–839 (Fauber).) For example, when asked by the court why the defense had not investigated earlier the available WiFi networks, Ruiz’s counsel relied on what he considered common knowledge in explaining to the court, “I didn’t think we needed this type of evidence” because “[t]his to me … was a no-brainer. There’s no WiFi at the park.” The trial court likewise invoked “common knowledge” that the status of WiFi networks can “change quite often.”

We cannot expect jurors to completely disregard their general experience with pervasive wireless technology: “ ‘Jurors are not automatons. They are imbued with human frailties as well as virtues.’ ” (Steele, supra, 27 Cal.4th at p. 1266.) Indeed, “ ‘ “[I]t is an impossible standard to require … [the jury] to be a laboratory, completely sterilized and freed from any external factors.” ’ ” (Fauber, supra, 2 Cal.4th at pp. 838– 839.)

Ruiz argues that the only competent evidence about WiFi in Dove Hill Park introduced into evidence was S.C.’s testimony that no WiFi was available, and the jury’s consideration of the possibility that WiFi was available from sources like the neighboring school thus contravened the court’s directive given in CALCRIM No. 200 to decide what happened “based only on the evidence that has been presented to you in this trial.” But the jury was not required to accept S.C.’s uncontradicted testimony about the availability of WiFi. S.C.’s testimony was focused on her personal knowledge. It is the exclusive function of the trier of fact to determine what testimony it considers reliable and what reasonable inferences to draw from that testimony. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.)

Ruiz also argues that jurors could only have relied on their common experience if the prosecution had presented affirmative evidence that there were publicly available WiFi networks in the area. But Ruiz essentially “incorrectly suggests misconduct occurs whenever the jury, though instructed to consider only the evidence before it, nonetheless discusses speculative, irrelevant, and/or erroneous facts or opinions.” (People v. Pride (1992) 3 Cal.4th 195, 267–268.) None of the interviewed jurors suggested that any jurors purported to hold themselves as having expertise regarding WiFi connectivity or that any juror had personally investigated or otherwise had personal knowledge of whether WiFi was available at the park. (Cf. People v. Vigil (2011) 191 Cal.App.4th 1474, 1484 [jury cannot “ ‘conduct a new investigation going beyond the evidence admitted’ ”].) The jurors were merely using their common experiences with WiFi to infer that wireless connections may be available at certain public spaces in weighing the logic of Ruiz’s alibi theory. (See Pride, at pp. 267–268 [no misconduct when jury discussed possibility of escape from prison during penalty phase of capital trial].)

For the first time in his reply brief, Ruiz argues that the prosecutor improperly asked the jurors to speculate on the availability of WiFi, despite the trial court’s exclusion of Ruiz’s evidence that WiFi was unavailable at least as of the trial date. (See People v.

Daggett (1990) 225 Cal.App.3d 751, 758 [misconduct for prosecutor to ask “jurors to draw an inference that they might not have drawn if they had heard the evidence the judge had excluded”].) Ruiz forfeited this argument by not raising it in his opening brief. (People v. Peevy (1998) 17 Cal.4th 1184, 1206 [“a contention may not be raised for the first time in a reply brief”].) And even assuming the issue has not been forfeited, Ruiz cannot point to any part of the prosecutor’s closing argument that was patently inappropriate. In rebutting Ruiz’s alibi theory, the prosecutor argued that the Pinger usage did not “exclude[] the possibility he was there” at the park because the records did not disclose “if that app is activated on any other phone or if that phone is with some other person or anything.” The prosecutor’s argument thus focused not on WiFi networks or their availability at the park but on the device that was used to send and receive the Pinger messages. We take the prosecutor to be arguing that Ruiz could have used his Pinger account on someone else’s cellular phone at the park, that someone else could have used Ruiz’s account from elsewhere, or that there were other means by which Ruiz’s phone might have been able to send and receive messages. The prosecutor’s closing argument was not misconduct.

D. Testimony about Ruiz’s Recorded Statements

Ruiz next argues that the trial court prejudicially erred by permitting the investigating officer, Detective Meeker, to testify based on his review of surveillance video of Ruiz alone in an interrogation room that Ruiz could be heard saying “ ‘snitch bitch,’ ” “ ‘murder weapon,’ ” and “ ‘glove,’ ” among other statements. “Under the secondary evidence rule, the content of a writing may … be proved either ‘by an otherwise admissible original’ [citation] or by ‘otherwise admissible secondary evidence.’ ” (People v. Goldsmith (2014) 59 Cal.4th 258, 269; Evid. Code, §§ 1520, 1521, subd. (a).) But subject to exceptions inapplicable here—and “[e]xcept as otherwise provided by statute, oral testimony is not admissible to prove the content of a writing.”

(Evid. Code, § 1523, subd. (a).) 24 A video tape is a writing for the purposes of the secondary evidence rule. (People v. Gonzalez (2021) 12 Cal.5th 367, 410.) Although we agree with Ruiz that some of Meeker’s testimony was erroneously admitted secondary evidence of Ruiz’s statements, we find any error harmless.

1. Additional Background

Ruiz’s counsel had objected after an Evidence Code section 402 hearing to Meeker “giving his opinion of what was said in that room” by Ruiz on the surveillance video. Asked to clarify whether Meeker had “heard what was being said at the time it was being said,” the prosecutor replied that Meeker had “both listened to [the statements] live and listened to [the statements] later.” The trial court thereafter deemed admissible Meeker’s testimony on what he had contemporaneously heard but invited Ruiz’s counsel to present the recording if it was inconsistent with Meeker’s account.

Before the jury, however, Meeker admitted that although he occasionally monitored Ruiz by video in real time, he “didn’t sit there and watch … from the moment [he] walked out of the room until the point in which [Ruiz] was booked at the Santa Clara County jail.” Meeker stated that he heard Ruiz make several statements while in the room, both “in real time” and upon his later review of the recording. Meeker acknowledged that some words he interpreted only after watching and replaying the

The exceptions include when “the proponent does not have possession or control of a copy of the writing and the original is lost or has been destroyed without fraudulent intent on the part of the proponent of the evidence” (Evid. Code, § 1523, subd. (b)), “the proponent does not have possession or control of the original or a copy of the writing and either of the following conditions is satisfied: [¶] (1) Neither the writing nor a copy of the writing was reasonably procurable by the proponent by use of the court’s process or by other available means. [¶] (2) The writing is not closely related to the controlling issues and it would be inexpedient to require its production” (id., subd. (c)), and when “the writing consists of numerous accounts or other writings that cannot be examined in court without great loss of time, and the evidence sought from them is only the general result of the whole” (id., subd. (d)). None of the parties argued below that any of these exceptions applied.

video several times. Meeker heard Ruiz say, “snitch bitch,” “murder weapon,” and “glove,” along with several other unintelligible statements. Neither the prosecution nor the defense moved to admit the actual recording into evidence.

2. Analysis

“[W]hen one testifies as to what he has seen or heard, his testimony is primary evidence regardless of whether or not the same matter is reduced to writing or incorporated in a sound recording.” (People v. Johnson (1974) 39 Cal.App.3d 749, 763.) But Meeker’s testimony that he could only make out certain words from his later review of the recording rendered his testimony about those words inadmissible secondary evidence: it was oral testimony of what the writing contained. (See Evid. Code, § 1523.)

That Ruiz’s statements were party admissions overcomes only the hearsay bar of Evidence Code section 1200. The hearsay exception for admissions of a party does not relieve the proponent of the evidence of other evidentiary rules. If Meeker’s knowledge of Ruiz’s statements came not from hearing the statements as Ruiz made them but from later listening to the recording, the secondary evidence rule rendered that testimony inadmissible under Evidence Code § 1523. 25

But “state law error in admitting evidence is subject to the traditional [People v.] Watson [(1956) 46 Cal.2d 818 (Watson)] test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error.” (People v. Partida (2005) 37 Cal.4th 428, 439; Watson, supra, 46 Cal.2d at p. 836.) Even if Meeker’s testimony about Ruiz’s statements had been properly excluded, it is not reasonably probable that Ruiz would have received a more favorable verdict.

Based on our conclusion, we need not reach Ruiz’s alternative argument that the

statements were improper lay opinion.

Meeker’s testimony about Ruiz’s statements was of limited probative value. Although Ruiz contends that Meeker’s testimony amounted to an “implied confession,” it is unclear what inference the jury would necessarily have made from this evidence. What Meeker described of Ruiz’s statements amounted to isolated terms, not sentences recounting or acknowledging an action. Meeker at trial acknowledged that the context of the words he recounted was unclear. The jury was thus well aware that the meaning of the statements overheard by Meeker lacked context.

The words Meeker attributed to Ruiz thus paled in comparison to the direct evidence of Ruiz’s guilt: S.C.’s testimony established Ruiz’s presence at the scene, his DNA was inside of the glove found in the bush near the shooting, and ammunition with a headstamp matching ammunition found at the crime scene was found where Ruiz had been staying around the time of his arrest.

Accordingly, given the limited probative value of the statements and the overwhelming evidence of Ruiz’s involvement in the fatal robbery, any error in the admission of Meeker’s testimony was harmless.

E. Alleged Officer Bias Against Ruiz

Ruiz next argues that the trial court prejudicially erred by prohibiting him from cross-examining Meeker about a conversation between Meeker and other officers that was recorded following Ruiz’s police interview. As the cross-examination would not have caused a reasonable jury to have a significantly different view of Meeker’s testimony, we find no error.

1. Additional Background

After interviewing Ruiz, several officers, including Meeker and Detective John Barg, conversed outside of Ruiz’s presence. The discussion veered in what Ruiz had been doing with his hand during the interview.

Barg: “Dude, anybody that touched that guy’s hand needs to fucking wash their hands. After he was fucking doing this –”

Meeker: “Yeah, I saw that.”

Barg: “Doing that. The guy’s fucking disgusting.”

Meeker: “Yeah, he needs (*).”

Barg: “(*).”

Officer 1: “I don’t itch my balls as much as this guy does.”

Officer 2: “He doesn’t have any balls. He’s touching his pussy.”

Officer 1: “(*) his schlong, dude.”

Officer 2: “(*).”

Meeker: “All right.”

After some additional discussion of Ruiz’s claim that he had not been to Dove Hill Park in “months,” Barg pointed out that Ruiz’s DNA had been found on the glove, at which the officers commented on his credibility.

Barg: “So he can’t later on say that he was out there taking a walk.”

Officer 2: “He hadn’t been there in two years? Bullshit.”

Officer 1: “Two, three years.”

Meeker: “He’s fucking lying.”

Officer 1: “He’s not fucking that girl though. He was honest about that.”

Officer 2: “It’s the only thing he told the truth about.”

After Meeker testified at trial, Ruiz’s counsel made a record of an unreported sidebar, indicating that he had wanted to cross-examine Meeker about this conversation with fellow officers. Ruiz’s counsel argued that the exchange showed that Meeker had an “attitude toward the proceedings” that was relevant to his credibility. The trial court, however, had ruled the proposed examination irrelevant because the statements counsel identified were largely not Meeker’s but merely made in Meeker’s presence. Ruiz’s counsel did not identify any statement of Meeker’s but argued that Meeker tacitly endorsed the offensive statements of the others by not objecting and continuing to participate in the discussion: “Being the individual who was in charge of these people

[who] are making these statements in his presence shows … that [Meeker’s] in agreement with those types of statements.” This was, in counsel’s view, “sufficient to provide an ample area of cross-examination.”

2. Legal Principles and Standard of Review

The confrontation clause of the Sixth Amendment guarantees a criminal defendant the right to test the credibility of adverse witnesses through cross-examination. (Del. v. Van Arsdall (1986) 475 U.S. 673, 678; U.S. Const., 6th Amend.) The confrontation clause does not prevent a trial court from restricting cross-examination of a prosecution witness under Evidence Code section 352. (People v. Quartermain (1997) 16 Cal.4th 600, 623 (Quartermain); see Evid. Code, § 352 [authorizing exclusion of relevant evidence “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury”].) But limiting cross-examination relating to the credibility of a prosecution witness violates the confrontation clause if “a reasonable jury might have received a significantly different impression of the witness’s credibility had the excluded cross-examination been permitted.” (Quartermain, at p. 624.)

When the relevant facts are undisputed, we review de novo claims that implicate a defendant’s constitutional right to confrontation. (People v. Seijas (2005) 36 Cal.4th 291, 304.)

3. Analysis

“Proof of a witness’ bias or prejudice against the specific individual who is a party in the litigation is clearly admissible.” (In re Anthony P. (1985) 167 Cal.App.3d 502, 508; Evid. Code, § 780, subd. (f).) But given Meeker’s limited participation in the conversation with the other officers—including the limited nature of his responses—the trial court did not abuse its discretion in excluding the evidence, even if relevant, as substantially more prejudicial than probative under Evidence Code section 352.

As the Attorney General notes, only a few select statements can be attributed to Meeker based on the transcript provided by Ruiz’s counsel. Arguably, Meeker’s response, “Yeah, [Ruiz] needs [(something inaudible)]” to Barg’s statement that Ruiz was “fucking disgusting” suggests Meeker’s agreement with Barg’s assessment. But the source of Barg’s “disgust” was specific to Ruiz’s hygiene only, and Meeker neither elaborated nor said anything to imply this affected his approach to the investigation. Meeker’s comment that Ruiz was “fucking lying” did not suggest bias or prejudice but an assessment about the evidence. While Meeker apparently said nothing to discourage the other officers’ commentary, the transcript does not suggest that he was an active participant. The trial court therefore reasonably concluded that the probative value of Meeker’s alleged personal bias against Ruiz was minimal. The trial court could have also reasonably concluded that cross-examination on this point would have risked confusion of the issues or required an undue consumption of time to clarify the respective investigative roles (if any) of each of the three other officers who participated in the conversation, to air their explanations for the comments deemed significant, to delve into context that went untranscribed as unintelligible, and potentially to play the recording. It was therefore not an abuse of discretion to exclude this evidence under Evidence Code section 352.

Nor does it appear that a reasonable jury would have had a significantly different impression of Meeker’s credibility if the trial court had permitted cross-examination about the exchange. (See Quartermain, supra, 16 Cal.4th at p. 624.) As we have explained, Meeker’s own comments were limited and in context did not reflect bias or prejudice. As for the comments of the other officers, even assuming, as Ruiz does, that Meeker would have objected if he disagreed with the substance or tenor of their comments, we cannot find that a jury would have found Meeker’s credibility to be significantly different in light of the conversation.

We therefore find no violation of Ruiz’s right to confrontation in the trial court’s limitation on cross-examination.

F. Instructions on Aiding and Abetting Liability

The prosecutor’s theory of the case was that Jimenez was liable for Ruiz’s attempted murder of A.P. under aiding and abetting principles. Jimenez now argues that the trial court erred by refusing to modify CALCRIM No. 401, the standard instruction on aiding and abetting liability, because the instructions permitted the jury to convict him of attempted murder under an invalid theory without finding that he had the intent to kill. Jimenez also argues that the trial court erred in its response to the jury’s questions about attempted murder and aiding and abetting liability. We find no error in the trial court’s refusal to modify the standard instruction and further find no error in its supplemental instruction to the jury.

1. The Instructions

Ruiz, joined by Jimenez, asked that the trial court in administering CALCRIM No. 401 specify that to be guilty of aiding and abetting the commission of a crime, a defendant must have “knowledge of the full extent of the criminal purpose of the perpetrator” and that for specific intent crimes such as murder, attempted murder, and conspiracy, “this standard is only met if the People prove beyond a reasonable doubt that the defendant shared the specific intent of the perpetrator.” (Boldface omitted.) The trial court declined.

The trial court instructed the jury with the standard language of CALCRIM No. 401: “To prove that a defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime. [¶] Someone aids and

abets a crime if he knows of the perpetrator’s unlawful purpose and he specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.”

Administering CALCRIM No. 600, the trial court instructed the jury that, to prove a defendant guilty of attempted murder, the People must prove: “1. The defendant took at least one direct but ineffective step toward killing another person; [¶] AND [¶] 2. The defendant intended to kill that person. [¶] A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt.”

2. Validity of the Instructions

Jimenez first argues that the trial court erred by declining to modify CALCRIM No. 401 to specify that the jury could not convict him of attempted murder under aiding and abetting principles unless it found that he harbored an intent to kill. Reviewing de novo Jimenez’s claim that the instructions incorrectly state the law (People v. Posey (2004) 32 Cal.4th 193, 218), we find no error.

Jimenez is correct that an aider and abettor to an attempted murder must harbor a specific intent to kill. “ ‘[P]roof of aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator’s actus reus—a crime committed by the direct perpetrator, (b) the aider and abettor’s mens rea’—which here includes knowledge that the direct perpetrator intends to commit the crime …, ‘and (c) the aider and abettor’s actus reus—conduct by the aider and abettor that in fact assists the achievement of the crime.’ ” (People v. Curiel (2023) 15 Cal.5th 433, 467.) As attempted murder requires

the specific intent to kill, “ ‘[t]o be guilty of attempted murder as an aider and abettor, a person must give aid or encouragement with knowledge of the direct perpetrator’s intent to kill and with the purpose of facilitating the direct perpetrator’s accomplishment of the intended killing—which means that the person guilty of attempted murder as an aider and abettor must intend to kill.’ ” (People v. Nguyen (2015) 61 Cal.4th 1015, 1054.)

Although Jimenez concedes that CALCRIM Nos. 401 and 600, as individually considered, accurately set forth the elements of aiding and abetting liability and attempted murder, he argues the instructions in combination fail to apprise the jury of the specific intent required of a direct aider and abettor. Not so. CALCRIM No. 401 instructs that an aider and abettor must know that the perpetrator intended to commit the crime—in this case, attempted murder—and that the aider and abettor intended to aid and abet the perpetrator in committing that crime. And CALCRIM No. 600 specifies that the perpetrator of attempted murder must intend to kill.

Jimenez argues that the generic wording of CALCRIM No. 401, which requires that the aider and abettor know that the perpetrator intended to commit “the crime” and that the aider and abettor intended to and did aid and abet the perpetrator’s commission of “the crime” permitted the jury to consider only whether he intended to aid and abet the crime of robbery. But Jimenez’s interpretation fails to consider that CALCRIM No. 401 begins by specifying that to prove a defendant is guilty of “a crime based on aiding and abetting that crime” (italics added), certain elements must be proven. A reasonable juror would have understood this instruction as applied to attempted murder to mean that to find a defendant guilty of attempted murder, he must have known that the perpetrator intended to commit attempted murder and that he intended to and did aid and abet the perpetrator’s commission of attempted murder. (See, e.g., People v. Johnson (2016) 62 Cal.4th 600, 640–641 [finding that CALCRIM No. 401 would not have allowed the jury to base defendant’s liability for first degree murder on the mental state of the actual shooter].) “We credit jurors with intelligence and common sense [citation] and do not

assume that these virtues will abandon them when presented with a court’s instructions.” (People v. Coddington (2000) 23 Cal.4th 529, 594 (Coddington), overruled on a different point as stated in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) 26

We recognize that the trial court would not have erred by granting Jimenez’s request to modify CALCRIM No. 401: It would be a correct statement of law to pinpoint that an aider and abettor of attempted murder must have a specific intent to kill. But the trial court was not required to effectively give three versions of CALCRIM No. 401, one for aiding and abetting murder (for Ruiz), another for aiding and abetting attempted murder (for Jimenez), and a third for aiding and abetting robbery—each with identical language but specifying each of the perpetrator’s crimes the jury must find the aider/abettor intended. A trial court need not issue instructions duplicative of those it has already given. (People v. Ramirez (2006) 39 Cal.4th 398, 470.)

We thus find no error in the trial court’s instructions as to aider and abettor liability, nor do we find error in its refusal to modify CALCRIM No. 401.

3. Jury Questions

Next, Jimenez argues that the trial court compounded the error he asserts in CALCRIM No. 401 by its response to the jury’s questions about aiding and abetting liability.

a. Additional Background

During deliberations, the jury submitted two questions to the trial court about aiding and abetting liability for attempted murder. In the first note, submitted on Friday, January 17 at 4:32 p.m., the jury asked, “[R]egarding the charge of attempted murder— did the defendant (Jimenez) have to actually know whether the perpetrator (Ruiz)

The prosecutor made a belated—and ultimately rejected—attempt to argue a

theory of natural and probable consequences during the jury’s deliberations. But nowhere in the prosecutor’s closing argument did he suggest that Jimenez could be guilty of attempted murder by aiding and abetting an attempted robbery.

intended to commit the crime? (Can the defendant be convicted without knowing the perpetrator intended to commit the attempted murder)?” At a hearing several days later when court was back in session on January 21, Jimenez’s counsel suggested in part that the trial court direct the jury back to CALCRIM No. 401 “and with the addition that attempted murder requires intent to kill.” (Italics added.) The trial court referred the jury back “to instructions No. 401 and 600” (some capitalization omitted) without additional clarification.

That same day, after the trial court had instructed the jury to consult CALCRIM Nos. 401 and 600 in response to their previous query, the jury submitted a second note asking: “Per instruction [No.] 401—aiding and abetting requirement #2[.] At what point did the defendant need to know when the perpetrator intended to commit the crime? Before(?) / During(?) / After(?)” The trial court responded “[b]efore or during.” 27 Making a record outside the jury’s presence, Jimenez’s counsel represented that she had asked the court to instruct that attempted murder required that both the perpetrator and the aider and abettor intend to kill and that the court had declined to include this in response to the jury’s note.

b. Legal Principles

Because “[a]ll criminal defendants have the right to ‘a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt,’ ” the trial court has a sua sponte duty to instruct the jury on all the essential elements of a charged offense. (People v. Merritt (2017) 2 Cal.5th 819, 824.) A failure to do so threatens the state and federal constitutional right to a jury trial. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16.) Moreover, if the jury during deliberations “desire[s] to be informed on any point of law arising in the case, … the information

As indicated ante, the second element in CALCRIM No. 401 was that “[t]he

defendant knew that the perpetrator intended to commit the crime.”

required must be given” by the trial court. (§ 1138.) The trial court “has ‘a “ ‘mandatory’ duty to clear up any instructional confusion expressed by the jury.” [Citation.]’ [Citations.] This means that a trial court’s response to a jury question can be erroneous even if it does not technically misstate the law.” (People v. Fleming (2018) 27 Cal.App.5th 754, 766.)

As with the trial court’s initial instructions, the correctness of the trial court’s response to a jury’s request for supplemental instruction “presents a question of law that we review de novo.” (People v. Franklin (2018) 21 Cal.App.5th 881, 887, fn. 4.) We examine the challenged instruction “in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner.” (People v. Houston (2012) 54 Cal.4th 1186, 1229 (Houston).)

c. Analysis

The jury’s questions about aiding and abetting liability reflect initial confusion as to whether Jimenez had to know of Ruiz’s intent to commit attempted murder to be convicted as an aider and abettor to attempted murder. The question is whether the trial court erred by referring the jury back to CALCRIM Nos. 401 and 600, which instructed the jury that Jimenez would have to know that Ruiz intended to commit attempted murder, and then by later answering the jury’s more specific question as to when Jimenez had to know of Ruiz’s intent. We conclude as to both questions that it is not reasonably probable that the jury applied the answer in an impermissible manner, so no instructional error occurred. (See Houston, supra, 54 Cal.4th at p. 1229.)

Preliminarily, we find no error in the trial court’s answer to the jury’s first question about whether Jimenez needed to know of Ruiz’s intent to commit attempted murder, which was to refer the jury back to CALCRIM Nos. 401 and 600. As we have explained, CALCRIM Nos. 401 and 600 accurately inform the jury: (1) that aiding and abetting liability requires that “[t]he defendant knew that the perpetrator intended to

commit the crime” and that “[b]efore or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime” (CALCRIM No. 401), and (2) that attempted murder requires that “[t]he defendant intended to kill that person” (CALCRIM No. 600). The jury instructions in combination provided that to convict Jimenez as an aider and abettor to attempted murder, the jury must find that Ruiz intended to kill A.P., that Jimenez knew Ruiz intended to commit attempted murder, and that Jimenez intended to aid and abet Ruiz in the commission of the attempted murder.

“Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. [Citation.] Indeed, comments diverging from the standard are often risky.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.) The trial court thus did not err by answering the jury’s query about whether Jimenez was required to know of Ruiz’s intent by directing the jury to the particular instructions that answered the question.

In fact, the jury’s follow-up question—referencing CALCRIM No. 401 and asking when Jimenez was required to know of Ruiz’s intent to “commit the crime”—suggests that the jury did as the trial court intended by rereading CALCRIM No. 401 and that in doing so the jury understood that Jimenez was required to know of Ruiz’s intent to commit attempted murder. The jury thus sought clarification only about when Jimenez was required to know of Ruiz’s intent.

Aiding and abetting liability requires “proof that an aider and abettor act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” (People v. Beeman (1984) 35 Cal.3d 547, 560 (Beeman).) Thus, an aider and abettor must know of the perpetrator’s intent to commit the crime and commit the act constituting aiding and abetting with knowledge of this unlawful purpose. (Ibid.) “Because the aider and abettor is subject to the same criminal liability and the same potential punishment as the

perpetrator, it is essential to distinguish the act and intent that constitute ‘aiding and abetting’ the commission of a crime, from conduct that will incur the lesser liability of an ‘accessory’ to the crime—defined as conduct by one who, ‘after a felony has been committed, … aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction, or punishment, having knowledge that said principal has committed such felony or has been charged with such felony.’ ” (People v. Montoya (1994) 7 Cal.4th 1027, 1039 (Montoya).)

In asking when the aider and abettor should know of the perpetrator’s intent— “Before(?) / During(?) / After(?)”—the jury did not specify whose act was the object of these three alternative prepositions. Nor did the trial court, in replying “[b]efore or during.” Assuming the jury meant to ask whether the aider and abettor should know of the perpetrator’s intent to commit the crime before, during, or after the act constituting the aiding and abetting, then the court’s answer correctly instructed on the necessary joint operation of the aider and abettor’s act and intent.

Aiding and abetting liability hinges on two acts, however—the aider and abettor’s act of assisting the perpetrator and the perpetrator’s ultimate commission of the crime. (People v. Reyes (2023) 14 Cal.5th 981, 990–991 [direct aiding and abetting is in part based on the combined actus reus of both the perpetrator and the aider and abettor].) True, an aider and abettor must know of the perpetrator’s intent to commit the crime before or during the perpetrator’s commission of the crime. (Beeman, supra, 35 Cal.3d at p. 560; People v. Sedillo (2015) 235 Cal.App.4th 1037, 1065–1066; Montoya, supra, 7 Cal.4th at p. 1039.) And if the jury meant to ask whether Jimenez had to know of Ruiz’s intent to kill A.P. before, during, or after Ruiz’s commission of the crime, then the court’s technically correct answer did not specifically clarify that an aider and abettor must know of the perpetrator’s unlawful purpose both before or during committing the act constituting the aiding abetting and before Ruiz committed the crime. (See Beeman, at p. 560.) In other words, if the jury determined that Jimenez had assisted Ruiz by

pointing his shotgun at Salas but that Jimenez realized only in the interval between his shooting Salas and Ruiz firing his handgun at the car that Ruiz intended to kill A.P., Jimenez did not commit the act constituting aiding and abetting with knowledge of Ruiz’s murderous purpose and would not have aided and abetted attempted murder.

As the parties did not originally note the ambiguity of the jury’s second question, we invited supplemental briefing on the proper interpretation of jury’s question. Jimenez instead reiterated his argument that any confusion lay in whether it was robbery or attempted murder that was “the crime” referenced in CALCRIM No. 401, which we have rejected (Ruiz did not respond). (See ante, part II.F.2.) We thus understand Jimenez to waive any claim that ambiguity in the jury’s follow-up question bears on the adequacy of the court’s response. “ ‘Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.’ ” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) Although the trial court’s answer to the jury’s second question could have been more explicit, its answer was technically correct, and we do not judge it “ ‘ “ ‘in artificial isolation,’ but … in the context of the instructions as a whole and the trial record.” ’ ” (People v. Lemcke (2021) 11 Cal.5th 644, 655.) Because the jury since its first question had apparently reread CALCRIM No. 401 and no longer expressed confusion over its other elements, appellants have supplied no basis to overcome the presumption that the jury followed the instructions as given. (See People v. Chhoun (2021) 11 Cal.5th 1, 30.). These required that the prosecution prove that “[b]efore or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime” and that “[s]omeone aids and abets a crime if he knows of the perpetrator’s unlawful purpose and he specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of the crime.” The jury was also instructed with CALCRIM No. 251, which instructed that “[t]he crimes and other allegations charged in this case require proof of the union, or joint operation, of act and wrongful intent” and

that to be convicted of attempted murder, the defendant “must not only intentionally commit the prohibited act or intentionally fail to do the required act, but must do so with a specific intent.”

On this record, we find no merit in Jimenez’s claim of instructional error: (1) The trial court’s original instructions informed the jury it could not convict Jimenez of aiding and abetting attempted murder unless it found that Jimenez had the requisite intent when committing the prohibited act; (2) the court’s response to the first question clarified that knowledge of the perpetrator’s lethal intent was necessary to an aider and abettor’s specific intent; and (3) the trial court’s answer to the jury’s second question made adequately clear that knowledge of the perpetrator’s unlawful purpose must, as a component of the essential mens rea, be “before or during” the aider and abettor’s act. Jimenez has supplied no basis to infer that “jurors with intelligence and common sense” could not comprehend the totality of the court’s instructions and answers in context. (Coddington, supra, 23 Cal.4th at p. 594, overruled on a different point as stated in Price v. Superior Court, supra, 25 Cal.4th 1046, 1069, fn. 13.)

Accordingly, it is not reasonably likely that the jury would have read the trial court’s response to the second jury note, in combination with CALCRIM No. 401 as a whole, to conclude that an aider and abettor can commit the act constituting aiding and abetting without knowledge of the perpetrator’s unlawful purpose. (Houston, supra, 54 Cal.4th at p. 1229; see also People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 918; People v. Hendrix (2022) 13 Cal.5th 933, 944; Harrington v. Richter (2011) 562 U.S. 86, 111–112.)

Arguing that the trial court’s answers were infirm, Jimenez relies on People v. Loza (2012) 207 Cal.App.4th 332, which is distinguishable. Unlike Loza, the trial court did not direct the jury merely to “ ‘ “apply … the law as you have been instructed” ’ ” (id. at p. 349) but specifically pointed the jury to CALCRIM Nos. 401 and 600—the two instructions that explained the required elements of both aiding and abetting liability and

attempted murder. (See People v. Gonzalez (1990) 51 Cal.3d 1179, 1212–1213 [no error when trial court referred jury to reread the instructional definition of malice when jury asked for clarification of implied malice], superseded by statute on another ground as stated in In re Steele (2004) 32 Cal.4th 682, 691.)

Jimenez also argues that two juror declarations, submitted with his motion for a new trial, reflect that the jury had difficulty understanding the instructions on aiding and abetting liability and that neither juror understood that Jimenez needed to share Ruiz’s intent to kill. But “ ‘ “evidence of what the juror ‘felt’ or how he understood the trial court’s instructions is not competent.” ’ ” (Steele, supra, 27 Cal.4th at p. 1261; see also People v. Sanchez (1998) 62 Cal.App.4th 460, 476 [where “affidavit or declaration suggests ‘ “ ‘deliberative error’ in the jury’s collective mental process—confusion, misunderstanding, and misinterpretation of the law,” ’ particularly regarding ‘the way in which the jury interpreted and applied the instructions,’ the affidavit or declaration is inadmissible”]; Evid. Code, § 1150, subd. (a).) So a jury’s verdict cannot be “ ‘ “impeached by inquiry into the juror’s mental or subjective reasoning processes.” ’ ” (Steele, at p. 1261.) We cannot rely on these juror declarations, which specifically discuss the jurors’ mental state and processes, to find fault with the trial court’s instructions.

In sum, the trial court did not err in its instructions to the jury, and we find no reasonable likelihood that the jury misapplied the court’s supplemental instructions. G. Instruction on Flight

Over Jimenez’s objection, the trial court instructed the jury with CALCRIM No. 372 on flight after concluding that there were “compelling arguments on both sides as to whether [the defendants’ conduct was], in fact, flight or not” but that it was “up to [the jury] to determine if someone fled and, if so, the importance of that conduct.” Jimenez now argues that the trial court prejudicially erred because there was insufficient evidence to support the instruction. We find no error.

1. Legal Principles and Standard of Review

A trial court has the sua sponte duty to instruct the jury on all general principles of law relevant to the issues raised by the evidence. (People v. Brooks (2017) 3 Cal.5th 1, 73.) But section 1127c requires a trial court to give a flight instruction “where evidence of flight … is relied upon as tending to show guilt” as follows: “The flight of a person immediately after the commission of the crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence.” “CALCRIM No. 372 is merely a distillation of the instructional duty imposed … by … section 1127c.” (People v. Pettigrew (2021) 62 Cal.App.5th 477, 499; CALCRIM No. 372 [if a defendant fled after commission of crime, “that conduct may show that (he/she) was aware of (his/her) guilt”].)

Generally, “ ‘a flight instruction “is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.” [Citations.] “ ‘[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.’ ” [Citations.] “Mere return to familiar environs from the scene of an alleged crime does not warrant an inference of consciousness of guilt [citations], but the circumstances of departure from the crime scene may sometimes do so.” ’ ” (People v. Smithey (1999) 20 Cal.4th 936, 982 (Smithey).)

Section 1127c may require an instruction on flight if the evidence is sufficient to do so, but the trial court must also “ ‘refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.’ ” (People v. Saddler (1979) 24 Cal.3d 671, 681.) “ ‘ “It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the

record which, if believed by the jury, will support the suggested inference.” ’ ” (People v. Canizales (2019) 7 Cal.5th 591, 609.) Generally, “[a] claim of instructional error is reviewed de novo.” (People v. Mitchell (2019) 7 Cal.5th 561, 579.)

2. Analysis

The evidence here supports an inference that Jimenez’s post-crime movement was motivated by a consciousness of guilt. (Smithey, supra, 20 Cal.4th at p. 982.) When S.C. called Jimenez shortly after the shooting, she thought that he sounded like he was “walking fast” when she called him by phone. One neighbor’s surveillance video recorded two men running around the time of the shooting. Although the jury could infer that Jimenez’s departure from the crime scene was innocent, it was also reasonable to infer that Jimenez and Ruiz left the scene quickly, perhaps while running, and that the defendants fled out of guilt and a desire not to be apprehended. (People v. Bonilla (2007) 41 Cal.4th 313, 328–329 [flight instruction proper where jury even if there were innocent explanation for conduct so long as guilt was a reasonable inference].) 28

But even assuming that a flight instruction had been erroneously given, any error would have been harmless under the standard of harmless error articulated in Watson, supra, 46 Cal.2d 818; that is, it is not reasonably probable that a result more favorable to Jimenez would have been reached by the jury. (People v. Clem, supra, 104 Cal.App.3d at pp. 344–345 [applying Watson standard to erroneous instruction on flight].) The flight

The cases cited by Jimenez on appeal are of no assistance to him. For example, in People v. Crandell (1988) 46 Cal.3d 833, the only evidence was that the defendant left the murder scene “to accomplish specific tasks and with the intent of returning to dispose of the bodies.” (Id. at p. 869.) In People v. Clem (1980) 104 Cal.App.3d 337, the evidence was that the victim locked her car doors and drove away after the defendant left her in the car; “[c]ommon sense requires a realistic look at just who was fleeing from whom.” (Id. at p. 344.) And in People v. Watson (1977) 75 Cal.App.3d 384, there was no evidence of the defendant’s immediate post-crime movements—the First District thus held that “the mere fact of defendant’s arrest nearly two days later and miles away from the crime scene—standing alone—is not evidence of flight that may support an inference of guilt.” (Id. at p. 403.)

instruction “did not posit the existence of flight; both the existence and significance of flight were left to the jury.” (People v. Crandell (1988) 46 Cal.3d 833, 870, abrogated on a different ground as stated in People v. Crayton (2002) 28 Cal.4th 346, 364–365; see also CALCRIM No. 372.) The jury was instructed that flight “may show” that a defendant is aware of his guilt, but that it was up to the jury to decide the meaning and importance of any alleged flight and only to do so “[i]f” a defendant tried to flee. (CALCRIM No. 372.)

Jimenez argues that we must apply the more stringent harmless-beyond-areasonable-doubt standard for federal constitutional error described in Chapman v. California (1967) 386 U.S. 18 to our review of instructional error here, reasoning that the flight instruction relieved the prosecution of proving beyond a reasonable doubt an element of the charged offenses. But the California Supreme Court has repeatedly rejected this argument. (People v. Mendoza (2000) 24 Cal.4th 130, 180–181, superseded by statute on other grounds as stated in People v. Brooks, supra, 3 Cal.5th 1, 63, fn. 8; People v. Boyce (2014) 59 Cal.4th 672, 691.) We therefore assess any alleged error under Watson and, as stated above, find that if any error occurred, it was not prejudicial. H. Cumulative Error

Both Ruiz and Jimenez raise claims of cumulative trial error. “In theory, the aggregate prejudice from several different errors occurring at trial could require reversal even if no single error was prejudicial by itself.” (In re Reno (2012) 55 Cal.4th 428, 483.) But we have found only one error in the admission of Meeker’s testimony about Ruiz’s statements on the recording and found that error not to be prejudicial. As there are no other errors to cumulate, the defendants’ claim of cumulative error must be rejected. I. Constitutionality of Section 3051, Subdivision (h)

Both Ruiz and Jimenez were 19 years old at the time of the murder. Below and on appeal, both defendants argue that section 3051, subdivision (h), which bars those between 18 and 25 years old sentenced to LWOP terms from youthful offender parole

hearings, is unconstitutional and violates equal protection principles, and that remand is thus required for a hearing under People v. Franklin (2016) 63 Cal.4th 261 (Franklin).

We agree with the trial court that the constitutionality of section 3051 as applied is not yet ripe for review. “The ripeness requirement, a branch of the doctrine of justiciability, prevents courts from issuing purely advisory opinions.” (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170 (Pacific Legal).) Even those who were under the age of 18 when they committed an LWOP offense do not become entitled to a youthful offender parole hearing until their 25th year of incarceration. (§ 3051, subd. (b)(4).) Sentenced to LWOP terms in 2021 for offenses committed in 2016, neither Jimenez nor Ruiz has come close to the eligibility date. Thus the controversy is not “ ‘definite and concrete’ ” and the “ ‘facts have [not] sufficiently congealed to permit an intelligent and useful decision to be made.’ ” (Pacific Legal, at pp. 170–171.)

In contrast, courts have addressed similar equal protection challenges to denials of requests for a Franklin hearing or a section 3051 youthful offender parole hearing. (See People v. Hardin (2024) 15 Cal.5th 834, 840 (Hardin) [defendant filed postjudgment request for a Franklin hearing]; People v. Briscoe (2024) 105 Cal.App.5th 479, 486 [defendant who was convicted and sentenced to LWOP in 1998 moved for a § 3051 hearing in 2022], review den. Dec. 11, 2024, S287744 (Briscoe).) In People v. Williams (2024) 17 Cal.5th 99, the California Supreme Court addressed an equal protection claim to section 3051’s exclusion of One Strike offenders. But there, the claim was raised on direct appeal from the judgment, on facts suggesting that there had been no request for a Franklin hearing. (Williams, at pp. 112–113.) The Williams court also granted review to resolve (as only the high court can) a split in authority among the Courts of Appeal (id. at

p. 113), and no such split in authority exists on the claim here (briefed before the First District Court of Appeal’s decision in Briscoe). 29

Crucially, none of the parties requested a Franklin hearing in the trial court, so there is no denial of a Franklin hearing for us to review. Section 3051 was amended effective January 1, 2016, to require youthful offender parole hearings. (Stats. 2015, ch. 471, § 1.) And Franklin was decided in 2016—years before defendants’ sentencing. (Franklin, supra, 63 Cal.4th 261.) Should either defendant have believed they were entitled to a hearing to present mitigating factors, they could have requested one. (People v. Medrano (2019) 40 Cal.App.5th 961, 967.) And should either defendant now believe that they are entitled to a Franklin hearing, the appropriate procedure would be to file a motion under section 1203.01 for the purpose of making a record of any mitigating youth-related evidence. (Medrano, at p. 968; In re Cook (2019) 7 Cal.5th 439, 446–447 [offenders with final convictions may file a motion under the authority of § 1203.01 for a Franklin hearing].)

J. Jimenez’s LWOP Sentence and Gross Disproportionality

As in the trial court, Jimenez individually challenges the constitutionality of his sentence for Salas’s murder on the ground that LWOP is cruel and unusual punishment,

In Hardin, supra, 15 Cal.5th 834, the California Supreme Court rejected a defendant’s broader equal protection challenge to his denial of a youthful offender parole hearing. Reasoning that “the Legislature could rationally balance the seriousness of the offender’s crimes against the capacity of all young adults for growth, and determine that young adults who have committed certain very serious crimes should remain ineligible for release from prison,” the high court concluded, “Hardin has not demonstrated that the Legislature acted irrationally in declining to grant the possibility of parole to young adult offenders convicted of special circumstance murder, even as it has granted youth offender hearings to young adults convicted of other offenses.” (Id. at p. 839.) But the Hardin court did not “foreclos[e] the possibility of other as-applied challenges to the statute” (ibid.), and in Briscoe, supra, 105 Cal.App.5th 479, the Court of Appeal held that section 3051’s exclusion of youthful offenders convicted of special circumstance felony-murder as a nonkiller (§ 190.2, subd. (d)) violated equal protection principles.

both generally for felony murder and specifically as applied to him. “There is considerable overlap in the state and federal approaches” to “ ‘prohibit[ing] punishment that is “grossly disproportionate” to the crime or the individual culpability of the defendant.’ ” (People v. Baker (2018) 20 Cal.App.5th 711, 733.) Whether a punishment is so disproportionate as to be cruel or unusual presents a pure question of law, but a reviewing court must view “ ‘the underlying disputed facts . . . in the light most favorable to the judgment.’ ” (People v. Mantanez (2002) 98 Cal.App.4th 354, 358.) And under the doctrine of separation of powers, “a court should not lightly encroach on matters which are uniquely in the domain of the Legislature,” including the definition of crimes and the determinations of the appropriate punishments. (People v. Wingo (1975) 14 Cal.3d 169, 174 (Wingo).) Although these legislative functions are subject to constitutional restraints, “the validity of enactments will not be questioned ‘unless their unconstitutionality clearly, positively and unmistakably appears.’ ” (Ibid.) In our independent judgment, Jimenez has not met the “considerable burden” of demonstrating that life without the possibility of parole for felony murder is unconstitutionally cruel or unusual. (Ibid.)

1. The Eighth Amendment

The Eighth Amendment “prohibits the imposition of inherently barbaric punishments under all circumstances.” (Graham v. Florida (2010) 560 U.S. 48, 59.) And in death penalty cases, the Eighth Amendment imposes a “narrowing requirement” that “States … limit the class of murderers to which the death penalty may be applied.” (Brown v. Sanders (2006) 546 U.S. 212, 216.) Jimenez’s sole argument under the Eighth Amendment is that the felony-murder special circumstance (§ 190.2, subdivision (a)(17)) fails to meaningfully narrow the class of felony-murder defendants subject to a specialcircumstance allegation. Jimenez reasons that the Legislature’s narrowing of felony65

murder liability in Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill No. 1437) 30 made first degree felony murder coextensive with the felony-murder special circumstance: Every person liable for first degree felony murder is now subject to the felony-murder special circumstance. But we have found no authority suggesting that the Eighth Amendment’s narrowing requirement extends to LWOP sentences in addition to death sentences, nor has Jimenez supplied any. (See also Harmelin v. Michigan (1991) 501 U.S. 957, 995–996 [no comparable requirement outside the capital context for “ ‘individualized capital sentencing doctrine’ ”].) Because Jimenez received an LWOP sentence, we need not reach his contention that Senate Bill No. 1437’s amendments to section 189 undermine the California Supreme Court’s prior rejection of his argument in capital cases. (See, e.g., People v. Winbush (2017) 2 Cal.5th 402, 488; People v. Pollock (2004) 32 Cal.4th 1153, 1195.)

2. Cruel or Unusual Punishment Under the California Constitution

Where the Eighth Amendment prohibits cruel and unusual punishment, article I, section 17 of the California Constitution prohibits “[c]ruel or unusual” punishment, and this is “a distinction that is purposeful and substantive rather than merely semantic.” (People v. Carmony (2005) 127 Cal.App.4th 1066, 1085.) We accordingly address the state prohibition separately from its federal analog.

Senate Bill No. 1437 added section 189, subdivision (e), which now states: “A participant in the perpetration or attempted perpetration of [qualifying felonies] in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.” (Stats. 2018, ch. 1015, § 3, p. 6675.)

a. Additional Background

At sentencing, Jimenez’s counsel noted that Jimenez had no adult criminal history and had met codefendant Ruiz while both were at the juvenile ranch. Moreover, counsel argued that Jimenez had acted irrationally—he had wanted to provide for his family and impress his father by committing the instant offense—but that he had now demonstrated “heartfelt remorse” about his actions. Jimenez’s counsel underscored that Salas’s killing was unintentional and a result of Jimenez’s “impulsive age,” rendering there no rational argument that Jimenez would presently pose a danger to society. Jimenez’s counsel also asked the trial court to consider Jimenez’s youthful age and that he had not yet matured beyond adolescence at the time of the crime.

The prosecutor argued in opposition, noting that the defense psychiatric reports relied on statements by Jimenez and his mother, when Jimenez’s mother had helped Jimenez cover up his participation in the murder. The prosecutor further argued that characterizing Salas’s murder as “accidental” overstated the jury’s findings. 31 The prosecutor argued that the robbery was planned: The group chose a target, lured him to the park, and Jimenez and Ruiz chose to use firearms in the robbery.

Distinguishing People v. Dillon (1983) 34 Cal.3d 441 (Dillon), on which Jimenez principally relied, the trial court rejected Jimenez’s constitutional challenge to the sentence and imposed a LWOP sentence on his conviction for murder in count 1.

b. Legal Principles

The California Supreme Court has described three “techniques” to determine whether a sentence is so disproportionate to the crime as to constitute cruel or unusual punishment under the California Constitution. Under the first technique, courts may “examine[] the nature of the offense and/ or the offender, with particular regard to the

On the first day of the sentencing hearing, one juror appeared on Jimenez’s behalf and told the court that she believed that Jimenez’s discharge of the shotgun was “a very unfortunate and a very tragic accident.”

degree of danger both present to society.” (In re Lynch (1972) 8 Cal.3d 410, 425 (Lynch).) The second technique identified in Lynch “compare[s] the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious.” (Lynch, at p. 426, italics omitted.) If more serious crimes are “punished less severely than the offense in question, the challenged penalty is to that extent suspect.” (Ibid.) And finally, the third technique requires “a comparison of the challenged penalty with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision.” (Lynch, at p. 427, italics omitted.)

c. Circumstances of the Offense and Personal Circumstances

As to the first Lynch technique, “courts are to consider not only the offense in the abstract—i.e., as defined by the Legislature—but also ‘the facts of the crime in question’ [citation]—i.e., the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant’s involvement, and the consequences of his acts.” (Dillon, supra, 34 Cal.3d at p. 479.) And courts must also consider “the particular person before the court, and ask[] whether the punishment is grossly disproportionate to the defendant’s individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.” (Ibid.) Jimenez has not shown that his LWOP sentence is grossly disproportionate based on the circumstances of the offense or his personal circumstances. 32

The trial court here acknowledged Jimenez’s remorse, which it found to be genuine, and stated that it supported the idea of Jimenez becoming eligible for parole. Given the court’s rejection of the constitutional challenge to an LWOP sentence, however, we cannot construe the court’s statements as a determination that Jimenez’s sentence was grossly disproportionate to the offense.

We acknowledge that the jury’s finding on the firearm enhancements suggests that the jury was not persuaded that Jimenez intentionally fired the shotgun, consistent with S.C.’s testimony that Jimenez was halfway in the car when A.P. started driving off and that Jimenez told her later that his firing was accidental. But there was evidence that Jimenez, Ruiz, and S.C. plotted together to commit robbery, selecting A.P. to be the victim and using S.C. to lure him to park where Jimenez and Ruiz would ambush him. S.C. also described Ruiz saying in Jimenez’s presence after the shooting “that [Ruiz] told Jimenez that [shooting at the car] was what he was gonna do.” Yet Jimenez, too, armed himself before the robbery. There was thus evidence from which it can be inferred that even if the shooting was unintentional, Jimenez was aware that this robbery presented a significant risk of harm or death and that he nonetheless participated and indeed fatally compounded that risk by bringing his own loaded shotgun and pointing it at Salas.

Jimenez analogizes his case to Dillon, supra, 34 Cal.3d 441. Dillon was a 17-year-old high school student when he was convicted of first degree felony murder and attempted robbery. (Id. at pp. 450–451.) Dillon and several friends went to a marijuana farm, arming themselves with weapons including guns. When the owner, armed with a shotgun, confronted the minors after one of the Dillon’s “hapless friend[s]” accidentally discharged his shotgun twice (id. at p. 452), Dillon rapidly fired his weapon, killing the owner. (Ibid.)

Former section 189 then required that all felony murder must be adjudged as first degree murder with an attendant sentence of death, life in prison with the possibility of parole, or LWOP. (Dillon, supra, 34 Cal.3d at p. 477.) Considering the facts at hand— and noting the jury’s repeated communications to the judge that “made plain, if it had not been for the felony-murder rule they would have returned a verdict of a lesser degree of homicide than first degree murder” (id. at p. 487)—the Dillon court concluded that the record reflected that at the time of the offenses Dillon was an “unusually immature youth … [who] had no prior trouble with the law” and “was not the prototype of a hardened

criminal who poses a grave threat to society” (id. at p. 488). Dillon concluded that “[t]he shooting … was a response to a suddenly developing situation that [Dillon] perceived as putting his life in immediate danger” and that “because of his immaturity he neither foresaw the risk he was creating nor was able to extricate himself without panicking when that risk seemed to eventuate.” (Ibid.) Dillon added that the other six youths who participated in the crime received only “petty chastisements”—none of the others were convicted of any degree of homicide nor sentenced to state prison for any crime, five of the minors were made wards of the court, only one was detained in a juvenile education and training project while the rest were placed on probation and sent back home. (Id. at p. 488.)

The comparison with Dillon is a close one. We recognize that at 19 years old, Jimenez was approximately only two years older than Dillon at the time of the killing and that his still-young age tended to diminish his culpability. (See, e.g., § 3051 [permitting some youthful offenders under age 26 with youthful offender parole hearings].) Moreover, the evidence suggests that Jimenez fired only once and—at least according to S.C.’s testimony—perhaps accidentally at that. The qualitative factual assessment in Dillon was unique to the facts presented in the case, however—evidenced by the Dillon jury’s obvious struggle with convicting Dillon of first degree felony murder; the apparent readiness to credit his claim that he fired a shotgun nine times in succession reflexively and without thinking; the sentencing court’s apparent inference that it was “unusual[] immatur[ity]” that drove Dillon’s leading an armed if youthful band persistently into confrontation with an intended victim known to be armed and bellicose. (Dillon, supra, 34 Cal.3d at p. 488.) 33 But our standard of review here requires us to draw all disputed inferences as to Jimenez and his killing of Salas in favor of the LWOP judgment.

On the strength of these factual determinations, the trial court committed Dillon to the Youth Authority, until the Court of Appeal issued a writ of mandamus directing the

Respecting these constraints, we observe that Jimenez agreed to participate in an armed ambush of the unsuspecting A.P.—someone specifically targeted as unlikely to resist a show of force—that Ruiz had purportedly told Jimenez that he planned to use his handgun, and that Jimenez participated by not only bringing a shotgun but leaning into the car and training his weapon at an apparently unarmed bystander. These circumstances distinguish his case from Dillon’s. Young as Jimenez was, he, unlike Dillon, “had reached the age of adulthood”—the significance of which his juvenile system involvement would have impressed on him—and nothing in the record suggests that he “manifested the unusual immaturity shown by [the defendant in Dillon].” (People v. Abundio (2013) 221 Cal.App.4th 1211, 1219; see also Roper v. Simmons (2005) 543 U.S. 551, 574 [“[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood”]; People v. Acosta (2021) 60 Cal.App.5th 769, 772 [LWOP sentence for 21 year old on autism spectrum disorder not cruel and unusual punishment]; People v. Edwards (2019) 34 Cal.App.5th 183, 190–192 [functional equivalent of LWOP sentence not cruel and unusual sentence for 19 year old], disapproved on a different point as stated in People v. Williams (2024) 17 Cal.5th 99, 137, fn. 12; People v. Montelongo (2020) 55 Cal.App.5th 1016, 1030–1032 [LWOP sentence for 18 year old not cruel and unusual punishment].) We cannot say these distinctions carry no weight.

To be sure, the psychological evaluation completed by Dr. Francesca Lehman on behalf of the defense discussed Jimenez’s adverse childhood experiences, including “extensive trauma and instability during critical developmental periods, which clearly impacted his psychological and emotional development.” But Dr. Lehman made no individualized findings as to Jimenez’s maturity or his capacity for reasoned risk

court to vacate that commitment as void, requiring a sentence of life imprisonment. (Dillon, supra, 34 Cal.3d at pp. 486–487.)

assessment at the time of the offense. (See also People v. Mincey (1992) 2 Cal.4th 408, 476 [evidence of a defendant’s below-average intelligence insufficient to make the sentence disproportionate to individual culpability]; People v. Castaneda (2011) 51 Cal.4th 1292, 1343–1345 [not cruel and unusual punishment to impose death penalty on individual with mental and emotional deficits], abrogated on a different point as noted in People v. Hardy (2018) 5 Cal.5th 56, 100.) Nor is this case like Dillon, where Dillon’s codefendants all received light sentences and minimal criminal penalties—like Jimenez, codefendant Ruiz was also sentenced to a LWOP term.

The California Supreme Court has cautioned that the limitation of constitutional proportionality “will rarely apply to those serious offenses and offenders currently subject by statute to life-maximum imprisonment.” (In re Dannenberg (2005) 34 Cal.4th 1061, 1071.) Although the trauma Jimenez suffered as a child and his youth may well have impacted his psychological and emotional development and mitigated his culpability, the factual record does not permit us to deem the sentence so grossly disproportional as to offend constitutional principles. “Some LWOP inmates may be more culpable than other LWOP inmates” but there is no requirement that sentences be so “finely calibrate[d].” (In re Williams (2020) 57 Cal.App.5th 427, 438 (Williams).)

Jimenez nonetheless analogizes his case to In re Nuñez (2009) 173 Cal.App.4th 709, in which the Court of Appeal found that a minor defendant’s LWOP sentence for a “nonhomicide, non-injury offense”—kidnapping for ransom—was “so freakishly rare as to constitute arbitrary and capricious punishment violating the Eighth Amendment.” (Id. at p. 715.) But Nuñez is readily distinguishable: The Nuñez defendant was a minor and his offense did not involve death or injury. In contrast, Jimenez, though still young, was legally an adult when he agreed to the robbery scheme, arming himself with a firearm, and he personally killed Salas.

Jimenez also argues that the nature of the killing and the facts surrounding the botched robbery render his sentence cruel and unusual punishment because “[t]he

evidence showed that the shooting was accidental and unintentional.” But Jimenez mistakenly conflates the jury’s not true finding as to the firearms enhancement as a factual finding that he lacked intent. Many federal and California decisions have uniformly held that “a jury verdict acquitting a defendant of a charged offense does not constitute a finding that the defendant is factually innocent of the offense or establish that any or all of the specific elements of the offense are not true.” (In re Coley (2012) 55 Cal.4th 524, 554.) Rather than constituting proof the discharge was unintentional, the jury’s verdict demonstrates only that the prosecution had not proven this enhancement beyond a reasonable doubt. We acknowledge that one juror was moved to appear at sentencing and state her belief that the shooting was unintentional. (Cf. Dillon, supra, 34 Cal.3d at p. 485 [foreman expressing “ ‘the general consensus of opinion of most or all the jurors’ … to give defendant ‘his best opportunity in life’ ”].) But the jury’s general verdict does not reflect that all jurors necessarily found that Jimenez did not intend to shoot, only that there is a reasonable doubt as to whether he did. And his conviction for attempted murder reflects that the jury found that he had the specific intent to kill at least as to A.P. (See Mumin, supra, 15 Cal.5th at p. 190 [implied malice insufficient for attempted murder as “attempted murder requires a specific intent to kill”].)

When comparing the punishment imposed with the offense and the defendant’s personal circumstances, we must give “ ‘particular regard to the degree of danger both present to society.’ ” (Dillon, supra, 34 Cal.3d at p. 479.) Despite Jimenez’s lack of a criminal record, the evidence adduced at trial was that he planned the robbery, helped select a victim, armed himself with the shotgun, and knew that his codefendant intended to shoot. Combined with the fact that Jimenez discharged his weapon, killing Salas, we do not find that he has met his “considerable burden” to show that his sentence is grossly disproportionate given the circumstances. (Wingo, supra, 14 Cal.3d at p. 174.)

d. Comparison to Other Criminal Penalties in California

Next, Jimenez argues that the second Lynch technique likewise supports his claim that his LWOP sentence is unconstitutional because it exceeds the 25 years to life that “the greater and more serious crime of premeditated first degree murder” would warrant. Although we understand Jimenez’s rationale for presuming that killing another with express malice and premeditation is more worthy of severe punishment than killing with implied malice in commission of certain serious felonies, the Legislature has singled out certain first degree murders as more serious than others. Thus, special circumstance murders have “the harshest penalties available under our penal system and are reserved for crimes of the most heinous nature.” (Williams, supra, 57 Cal.App.5th at p. 436.) Jimenez can cite no authority for concluding that the Legislature’s gradations between types of first degree murder make LWOP for murder in the commission of another serious felony grossly disproportionate as a matter of law. (People v. Covarrubias (2016) 1 Cal.5th 838, 934 [collecting cases].)

e. Comparison to Penalties in Other Jurisdictions

Finally, Jimenez argues application of this third Lynch technique is unnecessary but that if we do consider it, “in other countries, a sentence greater than 20 years is exceedingly rare.” Under the California Constitution, however, “the relevant comparison … is to other jurisdictions within the United States,” and Jimenez makes no argument that his sentence is disproportionate to those imposed in other states. (People v. Reyes (2016) 246 Cal.App.4th 62, 89.) We therefore take this “ ‘as a concession that his sentence withstands [that] constitutional challenge’ ” under this aspect of Lynch. (Reyes, at p. 89.)

As discussed ante, the circumstances of Jimenez’s offense, combined with his own personal circumstances, do not render his sentence grossly disproportionate. Jimenez planned the robbery along with Ruiz and S.C., brought a loaded firearm with him, and fired the fatal shot that killed Salas. This is not “ ‘the rare case in which a threshold

comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.’ ” (Ewing v. California (2003) 538 U.S. 11, 30.) K. Jimenez’s Parole Revocation Fine

Finally, Jimenez argues that the trial court erred in imposing a $1,000 parole revocation fine under section 1202.45 because his LWOP sentence for count 1 means that he will not be facing a sentence that includes a period of parole. In People v. Brasure (2008) 42 Cal.4th 1037, the California Supreme Court considered and rejected a similar argument. In Brasure, the defendant was sentenced to death and determinate prison terms under section 1170. Noting that section 3000, subdivision (a)(1) provides that such a term “ ‘shall include a period of parole’ ” and section 1202.45, subdivision (a) applies “ ‘[i]n every case where a person is convicted of a crime and whose sentence includes a period of parole’ ” (italics added), the California Supreme Court determined that the fine was statutorily required. (Brasure, at p. 1075.)

People v. Oganesyan (1999) 70 Cal.App.4th 1178, which Jimenez relies on, is distinguishable because there, the defendant was sentenced to no determinate terms, only LWOP and an indeterminate life sentence: A parole revocation fine was therefore categorically inapplicable, not merely unnecessary. (Id. at pp. 1185–1186; see also People v. McInnis (2021) 63 Cal.App.5th 853, 866–867 [parole revocation fine inapplicable when defendant received LWOP term and a stayed term of life with the possibility of parole]; People v. Jenkins (2006) 140 Cal.App.4th 805, 819 [parole revocation fine inapplicable when defendant was sentenced to LWOP and indeterminate life term].)

Accordingly, we find no error with the trial court’s imposition of a parole revocation fine.

III. DISPOSITION

The judgment is affirmed as to both defendants Jimenez and Ruiz.

LIE, J.

WE CONCUR:

GREENWOOD, P. J.

GROVER, J.

People v. Jimenez et al.

H049356

Trial Court: Santa Clara County Superior Court

Superior Court No.: 216443

Trial Judge: Hon. Eric S. Geffon

Counsel: Jennifer A. Mannix, under appointment by the Court of Appeal, for

Marcos Antonio Jimenez, Defendant and Appellant.

Jeffrey A. Glick, under appointment by the Court of Appeal, for

Marco Antonio Ruiz, Defendant and Appellant.

Galit Lipa, State Public Defender, and Lisa M. Romo, Senior

Deputy State Public Defender, for the Office of the State Public

Defender as Amicus Curiae on behalf of Marcos Antonio Jimenez,

Defendant and Appellant.

Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant

Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney

General, Scott A. Taryle and Chung L. Mar, Deputy Attorneys

General, for Plaintiff and Respondent.

People v. Jimenez et al.

H049356

People v. Jimenez

Authorities cited

Opinion · public domain