People v. Flores

9 Cal.5th 371

462 P.3d 919

262 Cal.Rptr.3d 67

The PEOPLE, Plaintiff and Respondent,

v.Alfred FLORES III, Defendant and Appellant.

S116307

Supreme Court of California.

May 4, 2020

As Modified June 24, 2020

Robert H. Derham, San Anselmo, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala Harris and Xavier Becerra, Attorneys General, Ronald S. Matthias, Julie L. Garland and Dane R. Gillette, Assistant Attorneys General, Holly D. Wilkens, Heather F. Crawford, Ronald A. Jakob and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion of the Court by Kruger, J.

A jury found defendant Alfred Flores III guilty of the first degree murders of Ricardo Torres, Jason Van Kleef, and Alexander Ayala. ( Pen. Code, § 187, subd. (a).) It found true the special circumstance allegation of multiple murder (id. , 190.2, subd. (a)(3)), as well as the sentence enhancement allegations that defendant had personally discharged a firearm to commit each murder (id. , § 12022.53, subd. (d)). Following the penalty phase, the jury returned a death verdict, and the trial court entered a judgment of death. This appeal is automatic. ( Cal. Const., art. VI, § 11, subd. (a); Pen. Code, § 1239, subd. (b).) We affirm.

I. BACKGROUND

A. Guilt Phase

Over the course of three consecutive days in March 2001, the bodies of three teenage boys were discovered at three separate locations in San Bernardino County. The victims were subsequently identified as Torres, Van Kleef, and Ayala.

1. Evidence

a. Discovery of Torres's Body

After dark on March 19, 2001, Anita Rita Saldana and her teenage daughter, Sheila Leyerly, were passengers in a car driving uphill on Lytle Creek Road toward Lytle Creek. Saldana, sitting in the front passenger seat, noticed a Chevrolet Astro van parked facing downhill in a dirt pull-off area on the opposite side of the two-lane road. According to Saldana, three or four Latino men stood outside, by the side of the van facing Lytle Creek Road. One appeared to her to be about 40 years old. It looked like they were drinking. One of the men was wearing an oversized white T-shirt.

Approximately 15 minutes later, Saldana and Leyerly traveled in their car back toward where they had seen the van. When they passed the area where the van had been parked, Leyerly spotted a white tennis shoe. Saldana's husband, who was driving, pulled over and shined the car's headlights, which illuminated a dead body. Saldana and Leyerly both recognized the victim as one of the people they had seen standing by the van in that same area 15 minutes earlier. Saldana told police she thought the victim had been standing next to the man wearing the white T-shirt.

The victim was 15-year-old Ricardo Torres. Torres had been shot seven times, including twice in the back of the head. Crime scene personnel found a pair of eyeglasses, a plastic Pepsi bottle, a cigarette butt, multiple nine-millimeter shell casings, and one live round near Torres's body. No fingerprints were found on any of these items. Crime scene personnel also noted and photographed tire tracks and shoe prints near the body. The presence of shell casings and blood pooling underneath the body suggested Torres had been shot at the scene.

b. Discovery of Van Kleef's Body

Shortly after midnight on March 20, 2001, Tamara Phoenix was returning a tractor trailer to the trucking yard where she worked on Willow Avenue in Rialto. As she drove up the yard's dark driveway, her headlights revealed a dead body. Phoenix called the police.

The body belonged to 18-year-old Jason Van Kleef. Van Kleef had been shot once in the back of the head at close range. The size of the wound suggested a larger caliber weapon, such as a .38-caliber, .357-caliber, or nine-millimeter handgun. Van Kleef was wearing Etnies tennis shoes. Etnies-pattern shoe prints had been found at the Torres murder scene. Van Kleef's body was on top of a size XXL Stafford-brand white T-shirt and under a thin blue sheet. There were no bullet casings or signs of struggle at the scene, which suggested to investigators that Van Kleef had been killed elsewhere and then moved to where he was found. Crime scene personnel noted and photographed tire tracks arcing toward Van Kleef's body.

c. Discovery of Ayala's Body

At approximately 6:40 a.m. on March 21, 2001, Brenda Horton was driving her children to school when she noticed a body on the side of Lytle Creek Road. The body was approximately two-tenths of a mile from the location where Saldana and Leyerly had found Torres's body. Horton's son called 911.

The body belonged to 17-year-old Alexander Ayala. Despite cold weather, Ayala was found wearing only a white tank top and blue denim jeans. He had been shot five times, including twice in the head. Crime scene personnel found nine-millimeter cartridge casings and a fired bullet in a pool of blood. They also noted and photographed tire tracks curving toward the location where they believed Ayala had been shot.

d. Connection Between Victims and Defendant

Police investigation revealed all three victims were friends of 17-year-old Andrew Mosqueda, a member of the El Monte Trece gang. Mosqueda and his friends regularly spent time at an apartment on Linden Avenue in Rialto. The apartment was rented by Mosqueda's aunt, Carmen Alvarez, and her husband, Abraham Pasillas. Alvarez and Pasillas were also members of the El Monte Trece gang. They claimed they were not active in the gang at the time of the murders but admitted to associating with El Monte Trece gang members and attending gang gatherings.

Defendant was also a member of the El Monte Trece gang. He had been "jumped into" the gang at a young age and was known as either "Casper" or "Wizard." He was friends with Alvarez and Pasillas. Starting in early 2001, he frequently stayed the night at their apartment. He kept some personal belongings in the master bedroom closet.

According to Alvarez, Pasillas, and Mosqueda, defendant sought to recruit new members to El Monte Trece, including Mosqueda and his friends. Pasillas told defendant he wanted no part in any recruitment effort, and Alvarez told defendant that Mosqueda and his friends were not "gang member types." Defendant nonetheless successfully recruited Mosqueda. Mosqueda was given a gang name ("Apache") and started taking orders from defendant.

Torres, Van Kleef, and Ayala were not members of El Monte Trece. Van Kleef and Ayala had no interest in gang membership. Torres had agreed to join the gang but then did not attend his jumping-in ceremony. According to Mosqueda, this "disappointed" defendant. Mosqueda claimed to have attended the jumping-in ceremony in Torres's stead.

e. Torres's Murder

Mosqueda and Alvarez both claimed to have been present when defendant killed Torres. They testified under grants of use immunity.

On the evening of March 19, 2001, defendant, Mosqueda, Van Kleef, Torres, Ayala, and another friend, Erick Tinoco, were at Alvarez's apartment. At some point, defendant suggested they take a ride to Lytle Creek in Alvarez's Astro van. Privately, defendant told Mosqueda to put a gun in the van; he did not say why. Defendant handed Mosqueda a rifle wrapped in a towel and Mosqueda put it in the back of the van.

With Alvarez as their driver, defendant, Mosqueda, Torres, and Van Kleef entered the van. Tinoco and Ayala left separately. With the four boys in the van, Alvarez drove to an ampm convenience store where she purchased beer.

Alvarez then drove up Lytle Creek Road before pulling over into a dirt pull-off area. Everyone except Alvarez got out and began drinking beer by the back of the van. Mosqueda and Van Kleef chatted, while Torres and defendant had a separate conversation. Mosqueda heard defendant say to Torres, "Hey, don't you trust me?" Torres put his arm around defendant. Defendant suddenly shot Torres in the stomach and continued to shoot Torres after he fell to the ground.

Defendant, Mosqueda, and Van Kleef returned to the van, and Alvarez started driving. Alvarez testified that defendant was holding what looked like a pistol when he returned to the van. Alvarez dropped defendant and Van Kleef off near her apartment, then drove Mosqueda to his home. Defendant and Van Kleef were at Alvarez's apartment when she returned. Van Kleef then left the apartment; defendant followed within a few minutes, holding Alvarez's car keys. Defendant returned after about an hour. He told her that "he had gotten into an argument or something and ... somebody broke the window" of her van on the front passenger's side; she and Mosqueda both saw that the window was damaged. Mosqueda described the damage as a "bullet hole."

Defendant followed Alvarez around throughout the next day and threatened to harm her family. She testified she thought defendant would hurt her or her family if she called the police. Around 11:00 p.m. that night, defendant again borrowed Alvarez's van and left for about an hour. Ayala was found early the next morning, shot on the side of the road about two-tenths of a mile from where Torres was found. Ayala was last seen by his sister at their house around 11:00 p.m.; he was dressed for bed and said he was in for the night.

After the police started investigating the murders, defendant left the United States for Mexico. He reportedly was staying at the home of one of Alvarez's relatives. Detectives traveled to Mexico to find defendant, the van, and the murder weapon. They did not locate defendant but saw the van, which was later burned.

On a second trip to Mexico, detectives traveled with Alvarez's mother, Maria Jackson, who was helping with the investigation. The detectives and Jackson there met with Jackson's nephew, who said he had the murder weapon—a nine-millimeter handgun. Jackson paid her nephew $100 for the handgun, and the detectives reimbursed her. The gun was in a plastic bag, but two of the detectives removed it briefly to check if it was loaded. One of these detectives was a Mexican detective, Trini...