People v. Bejarano

1

THE PEOPLE, Plaintiff and Respondent, v. RODRIGO EDWARD BEJARANO III, Defendant and Appellant.

H047892

California Court of Appeals, Sixth District

March 6, 2023

NOT TO BE PUBLISHED

(Santa Clara County Super. Ct. No. F1554600)

LIE J.

Defendant Rodrigo Edward Bejarano III was convicted of the felony murder of Robert Heiser, who was killed in his own bedroom. On appeal, Bejarano contends that the evidence adduced at trial is consistent with the conclusion that codefendant Gerardo Cruz Cisneros^[1] killed Heiser after the completion of a home-invasion robbery. Bejarano contends that the trial court prejudicially failed to adequately instruct the jury on the aspects of the felony-murder rule applicable to such a scenario. Further, Bejarano contends that the prosecution improperly failed to disclose impeachment evidence concerning the medical examiner who testified at trial. Even if his conviction is upheld, Bejarano argues that his sentence to life in prison without the possibility of parole violated the guarantee of equal protection secured by the federal and California Constitutions. Finally, Bejarano contends that the trial court improperly imposed a $300 parole revocation restitution fine and a $129.75 criminal justice administration fee. We reverse the imposition of the fine and the fee and otherwise affirm the judgment.

I. BACKGROUND

A. The Information

The Santa Clara County District Attorney charged both Bejarano and Cisneros with (1) murder (Pen. Code, §§ 187, 190.2(a)(17))^[2] committed in the commission, attempted commission, and/or immediate flight after felony robbery (§§ 211 and 212.5) and burglary (§ 459, 460(a)); (2) first degree robbery of an inhabited dwelling, voluntarily acting in concert (§§ 211-213(a)(1)(A)); and (3) first degree burglary (§§ 459, 460(a)).

B. Trial Evidence

Law enforcement identified four people who, in their view, shared responsibility for Heiser's death-Bejarano, Cisneros, Isabella Chaidez, and Gabriela Ortiz. Pursuant to a plea agreement, Ortiz testified at the trial. Her testimony was at the heart of the prosecution's case against Bejarano and Cisneros, neither of whom testified.^[3]

1. Ortiz's Testimony

Ortiz met Chaidez when both were in custody in juvenile hall. Post-release, the two became friends-Chaidez stayed in Ortiz's house about twice a week, and the two used drugs and drank alcohol together. Ortiz met Bejarano and Cisneros through Chaidez.

Chaidez, Bejarano, and Cisneros recruited Ortiz to assist them with home invasion robberies. Chaidez described a home invasion robbery that she had committed with Bejarano and Cisneros in Fremont. Chaidez met the victim online, then used drugs with him several times in person. On their final encounter, Chaidez slipped Xanax into his drink at his home. While he was incapacitated, Chaidez let Bejarano and Cisneros into the home, and Cisneros tied the victim up and punched him in the face. The three made off with electronics and $1,000. Chaidez encouraged Ortiz to help them meet men to target, telling her that she was pretty.

Chaidez, Bejarano, and Cisneros persuaded Ortiz to participate in a similar home invasion robbery in Oakland. Responding to an advertisement from a man seeking to "party and hang out with females and do drugs," Bejarano and Cisneros dropped Chaidez and Ortiz off at the man's home. Although the plan was for Chaidez and Ortiz to incapacitate the man then let Bejarano and Cisneros into the home, Ortiz balked. After several hours of drug use, they left the home without incident.

On February 15, 2015, Chaidez got ready at Ortiz's house for a "date" with Heiser. Chaidez said she was just going to have dinner with "an older man" she met online to warm him up for a future robbery. Even so, Bejarano, Cisneros, and Ortiz all went together to drop Chaidez off at an Olive Garden for the date. The plan, at the time, was to rejoin Chaidez after her dinner date and for the four to spend the evening together using drugs and drinking.

While waiting for Chaidez, Bejarano, Cisneros, and Ortiz smoked marijuana and ate fast food. At the same time, Cisneros and Ortiz began sharing a mixed drink containing a liter of vodka. Ortiz also took around two and a half Xanax pills. Ortiz had only taken Xanax once or twice before that, and Xanax tended to put her in "a dream state of mind" and make her "[s]lower, drowsy, forgetful. Like if I did something and I fall asleep, I wake up and I don't really recall everything."

After about two hours, Chaidez contacted the group telling them that Heiser was going to take her to his house, so they would meet her there. Chaidez did not yet know the address but told the group it was somewhere in Gilroy.

Due to the change in plans, Bejarano drove to a drug store, from which he and Cisneros stole white "fabric" or "cotton" gloves. Bejarano then drove them to Gilroy to await further word from Chaidez. Chaidez relayed the address and told them to she would open the door for them after Heiser fell asleep. At that time, their plan was for Cisneros to tie Heiser up so the group could ransack the house. Over the course of about two hours of waiting, Ortiz and Cisneros finished the vodka mixed drink, Ortiz took another half pill or pill-and-a-half of Xanax, and the three smoked more marijuana.

Bejarano drove Cisneros and Ortiz to Heiser's address. Heiser's house was located in a long driveway, which served multiple houses, off of a cul-de-sac at the end of Bay Tree Drive. The end of the cul-de-sac was to the left of the driveway and across an open lot from Calle Del Rey. While waiting for further instructions from Chaidez, Bejarano moved the car to Calle Del Rey, where it remained easily reachable on foot from Heiser's house.

When Chaidez texted that Heiser had fallen asleep and she was waiting for them at the end of the driveway, Bejarano, Cisneros, and Ortiz each did a key shot of crystal methamphetamine-a drug that would help Ortiz wake up-then left the car to meet Chaidez.

Chaidez led the group inside the home and directed Bejarano and Cisneros, both gloved, to the upstairs master bedroom where Heiser slept. Chaidez handed Ortiz a bag, clothing, keys, and a purse and directed Ortiz to take a laptop and a wallet. Chaidez went upstairs while Ortiz remained below to collect valuables, taking two champagne bottles in addition to the laptop and wallet.

After about five minutes, Ortiz heard Heiser scream and call for help. Chaidez appeared from upstairs and, seeing that Ortiz was shaken, called her "a pussy" and directed her to put the bag in an SUV in Heiser's garage. Ortiz complied but Chaidez went back into the house after failing to open the garage door to allow the SUV to exit. Ortiz heard no more noise from Heiser after the initial call for help.

Ortiz waited in the garage for another five minutes until the other three ran out of the house and told her to run to their car. None of the others had collected anything from the house. Ortiz grabbed the bag she had filled and ran with them out of the garage. Bejarano ran back to assist her as she struggled with the bag, and the four of them made it to the parked car.

As the group was getting into the car or immediately thereafter, Cisneros said that he had left a hat or a glove in the house and had to go back. Cisneros ran to the house alone and ran back to the car a short time later. Upon his return, Cisneros told the group that he had "punched [Heiser] one last time and put him to sleep."

While they were driving away, Chaidez, Bejarano, and Cisneros recounted for Ortiz the events in Heiser's bedroom. Bejarano said that Heiser cried out when Bejarano jumped from the doorway onto his back. Bejarano said that he sat on top of Heiser because it was hard to keep him still so he could be tied up. Cisneros said that in an attempt to pacify Heiser, someone told him, falsely, that they had a gun, but that Heiser responded by fighting more forcefully. Cisneros said that he punched Heiser, causing a nosebleed.

The group drove to a CVS or a Walgreens and then a 7-Eleven, where they tried to use Heiser's credit cards. Ortiz and Chaidez successfully obtained a prepaid card in the first store but their transactions were rejected in the second. From there, the group stopped at a gas station before meeting friends in the Alum Rock mountains to drink, smoke marijuana, and use crystal methamphetamine for a couple hours, by which time the sun had risen. The group then did laundry, sold the stolen laptop, and booked a room in a hotel the following evening, February 17, 2015.

In the hotel room, the group learned from the news that Chaidez was wanted for a burglary in Fremont and that a Gilroy man had been found dead in his home. Bejarano, Cisneros, and Chaidez attempted to persuade Ortiz to join them in leaving town, but at her insistence they dropped her off at her house instead. Ortiz turned herself in to police the next day.

In talking with Gilroy police, Ortiz said initially that she learned what had happened in Gilroy only through word-of-mouth. Later Ortiz admitted that she had been in Gilroy but claimed to have remained in the car asleep. She identified the other individuals involved using their nicknames and said that those individuals had beaten Heiser badly because he was fighting back. She told law enforcement that Bejarano sat on Heiser because Heiser kept trying to get up. Ortiz ultimately admitted entering Heiser's home and stealing things. Ortiz was arrested and charged.

Pursuant to a plea agreement, Ortiz pled guilty to eight felonies-first degree robbery; voluntary manslaughter burglary; assault with force likely to produce great bodily harm; attempted carjacking; false imprisonment; grant theft; and identity theft. The agreement...