People v. Anguiano CA1/3

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Filed 7/10/24 P. v. Anguiano CA1/3

                  NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      FIRST APPELLATE DISTRICT

                                                DIVISION THREE


    THE PEOPLE,
           Plaintiff and Respondent,
                                                                        A166206
    v.
    JORGE HUMBERTO ANGUIANO,                                            (Contra Costa County
                                                                        Super. Ct. No. 05001512474)
           Defendant and Appellant.


         Defendant Jorge Humberto Anguiano pleaded guilty to voluntary
manslaughter with a firearm enhancement in 2017. In appealing the trial
court’s denial of his recent petition for resentencing pursuant to Penal Code
section 1170.95,1 defendant makes three contentions: (1) there was
insufficient evidence to support the resentencing court’s finding beyond a
reasonable doubt that he is guilty of murder under the current law; (2) the
court improperly relied on inadmissible evidence; and (3) the court failed to


1     All further undesignated statutory references are to the Penal Code.
      Defendant filed this petition pursuant to section 1170.95, but
section 1170.95 has since been renumbered to section 1172.6. (Stats. 2022,
ch. 58, § 10.) As such, we will refer to section 1172.6, but also refer to
section 1170.95 as necessary to conform to the record.


                                                               1
consider his youth in determining whether he acted with malice. Though we
reject the first two contentions, we conclude a reversal and remand is
required so the court may consider defendant’s youth in determining whether
he acted with malice.
                 FACTUAL AND PROCEDURAL BACKGROUND
      In 2015, the People charged defendant, Edwin Piedra Rodriguez, and
Jose De Jesus Hernandez by information with conspiracy to commit a felony
by active street gang participants (§ 182.5; count 1), and with the murder of
Rogelio Montelongo (§ 187; count 2). With regard to both counts, the People
alleged firearm enhancements (§ 12022.53, subds. (b)–(e)(1)) as to each
defendant, and also alleged they committed the murder for the benefit of, at
the direction of, and in association with a criminal street gang, namely, the
Norteño criminal street gang (§ 186.22, subd. (b)(1)). In 2017, defendant
pleaded guilty to one count of voluntary manslaughter (§ 192, subd. (a)) and
admitted a personal firearm use enhancement (§ 12022.5, subd. (a)). The
trial court sentenced defendant to a total of 21 years in prison.
      In 2022, defendant filed a petition for resentencing pursuant to former
section 1170.95. Defendant’s petition indicated that a charging document
filed against him allowed the prosecution to proceed under a theory of felony
murder, murder under the natural and probable consequences doctrine, or
another theory of imputed malice; he was convicted of manslaughter; and he
could not now be convicted of murder. The trial court subsequently appointed
defendant counsel and later issued an order to show cause.
      Over the course of two days in September 2022, the trial court held a
hearing to determine whether the defendant was entitled to relief (§ 1172.6,
subd. (d)(3)). The People’s evidence included defendant’s rap sheet for the
limited purpose of establishing what he pleaded to in this case, and the



                                       2
victim’s death certificate showing he died of multiple gunshot wounds to the
abdomen. The People also asked the court to take judicial notice of the court
file showing what defendant and his co-defendants pleaded to. The People
additionally presented the following witness testimony.
         On August 26, 2012, Graciela V. was inside her home on Emeric
Avenue near 23rd Street, when she heard four to five gunshots. She saw a
young Hispanic male, very thin and not very tall, running in front of her
house with a small gun in his hand. The man was running westbound on
Emeric Avenue towards 21st Street.
         On August 26, Margarita S. was outside her house when she heard
about six gunshots. Around three minutes later, she saw a young, skinny,
light skinned male in a black hoodie running down Emeric Avenue then turn
onto 21st Street. He bumped into her and told her to “Move, move.” The man
was putting a gun into the front pocket of his hoodie and then ran down
California Avenue toward 23rd Street. Subsequently, two older men ran up
to her and said the person just killed someone.
         On August 26, Maria G. was in her car parked in an alley between
Emeric Avenue and California Avenue off of 23rd Street when she heard
gunshots. Then she saw a young man running on 23rd Street toward
Richmond High School and getting into a car. The man was around 20 to 22
years old, tall with a medium build and short hair. He appeared to be
holding something on the left side of his waist, and he had a rosary-bead style
necklace that he took off and threw on the ground. She remembered
identifying someone in a photo lineup, but—on a scale of one to ten with
“ ‘one’ ” being not sure at all and “ ‘ten’ ” being absolutely certain—she was a
three.




                                        3
      On August 26, Mohammed Z. was working at a tire shop on the corner
of 23rd Street and Emeric Avenue when he heard a “big bang.” He went
outside and saw a “larger” Hispanic man, about 20 to 25 years old, running
on the opposite side of the street with a handgun in his hand, trying to put it
in his pants. The man ran southbound on 23rd Street, toward Richmond
High School and appeared to flag down and enter a car. Mohammed Z.
walked into the street to see where the man came from and saw a body on the
ground. He recalled telling the police that the man was wearing a red rosary.
      Lieutenant Daniel Wiegers of the San Pablo Police Department—a
detective at the time of the murder—arrived at the crime scene at around
12:30 p.m. the day of the murder and found the victim’s blue shoes. At the
hospital, he saw that the victim had multiple tattoos: a “VFL” tattoo on his
left hand fingers; the number “13” on the inside of his left middle finger; the
number “13” with three dots near his right shoulder; and a domino with the
numbers “ ‘1’ ” and “ ‘3’ ” on each side of the domino. Wiegers observed the
victim had gunshot wounds on both thighs, buttocks, neck, and in the
stomach and upper abdomen area. Wiegers also attended the victim’s
autopsy and determined the victim had seven separate entry gunshot
wounds. Two intact projectiles were recovered from the body at the autopsy,
and two more at the scene; the bullets were approximately the size of .38 or
.40 caliber rounds. At the victim’s home was a drawing of the victim’s left
hand with “VFL” on the knuckles, photos of the victim with what appeared to
be gang members throwing up gang signs, and a CD with “blue Sureño street
gang raps.”
      Lieutenant Wiegers reviewed surveillance video from the tire shop on
23rd Street, which showed a Hispanic male running southbound down 23rd
Street who appeared to be motioning someone down the street to pick him up.



                                       4
About three days after the shooting, Wiegers helped search a Chevy Monte
Carlo that belonged to co-defendant Rodriguez and found an iPhone that
showed at the time of the murder several incoming and outgoing calls from a
phone number that was ultimately linked to co-defendant Hernandez.
         After defendant’s name and telephone number became relevant to the
investigation, Lieutenant Wiegers searched defendant’s house and found his
cell phone, which showed calls made to Hernandez’s phone on the morning of
the murder, and also calls with Rodriguez’s phone. He also found a red hat
with a black “huelga” bird and the words “ ‘Northern Cal’ ” on it, and red
rosary beads on top of a dresser.
         Detective Robert Brady of the San Pablo Police Department was a gang
investigator who knew the victim had the moniker “ ‘Domino’ ” and was a
member of a Sureño street gang known as “Varrio Frontero Loco” or “VFL.”
Around August 2012, there was an active and serious conflict between
Norteño and Sureño street gangs, and Brady had assisted in investigating
over a dozen murders between the gangs. Brady testified that perceived
disrespect among gangs is often answered with violence, and he opined that
this murder reflected a clear “disrespect” case.
         Detective Brady testified that the area where the murder occurred was
“claimed” by both Norteños and Sureños. After the murder, there was a
memorial set up for the victim with tagging stating “ ‘RIP Domino’ ” and
referencing VFL and other Sureño subsets. Around September 3, 2012, at
another Sureño memorial for the victim, the tagging was crossed out and
there was tagging that stated “ ‘WSB got one’ ” with a “ ‘1’ ” and a “ ‘4’ ” next
to it.
         Detective Brady reviewed relevant surveillance video and saw a
potential suspect vehicle: a gold/silver 1990’s model Chevy Monte Carlo with



                                        5
large black rims. He later observed that vehicle on the road and pulled it
over. Rodriguez was the driver. Brady searched Rodriguez’s home and found
gang related items: articles of red clothing, such as bandanas, and a t-shirt
that had “ ‘West Side Berkeley’ ” (also referred to as “WSB”) written on the
front and “510” written on the back in red and black spray paint.
      Detective Brady searched Hernandez’s home and found at least one red
bandana and gang tagging related to Norteños in his room and a backyard
shed. At defendant’s home, police found a few pairs of red shoes, a black and
red rosary, and red hats, including a red hat with a huelga bird and
“ ‘Northern Cali’ ” on it. Brady explained the huelga bird is an “identifier”
commonly used by the Norteño street gang.
      Co-defendant Rodriguez testified he was convicted of a crime that took
place in August 2012. At that time, he was driving a Chevy Monte Carlo
with big rims. On the morning of the crime, co-defendant Hernandez had
sent him a text and called him, so Rodriguez went to his house and
“everybody” was there. After dropping Hernandez and defendant off close to
a tire shop, Rodriguez went to a market. Rodriguez heard gunshots as he
was leaving the market. When he picked up Hernandez and defendant, he
had to drive fast because everybody was running and he did not know what
had happened. Rodriguez recalled Hernandez and defendant “saying” they
tossed their guns after the shooting, though he later testified he probably just
thought they tossed their guns. Rodriguez testified he probably told the
police that he thought Hernandez still had his gun, and recalled telling police
that Hernandez left his gun with an uncle in Oakland. At some point prior to
the shooting, Hernandez had shown him a revolver.
      Rodriguez thought Hernandez and defendant were going to fight
someone, and he denied knowing they were going to shoot anyone. Rodriguez



                                       6
denied being affiliated with WSB, but acknowledged that WSB clothing was
found at his home and that his older sister was associated with WSB. He
testified he pleaded to a gang enhancement, and that in order to accept his
plea, his co-defendants had to accept their plea offers, too. When asked if he
recalled his statement to police that Hernandez was angry about someone
throwing bottles at him, Rodriguez remembered Hernandez was angry, but
not the part about bottles. Rodriguez thought Hernandez and defendant
recognized the man who threw bottles at them because Hernandez “said he
knew the guys.” Rodriguez recalled telling the police that Hernandez
thought he shot someone “in the ass,” but he was not sure if Hernandez was
serious.
      Mark Galios, a former police officer with the San Pablo Police
Department and the lead investigator and detective at the time of the
murder, reviewed surveillance video from a tire shop on 23rd Street and
identified the suspect vehicle: a gold, gray Chevy Monte Carlo with large
black rims. He also saw in the videos associated with the case that three
people were in the suspect vehicle. He spoke to Rodriguez, who admitted
driving defendant and Hernandez to the area of the crime that day and knew
the two were going there to “do some business.” Rodriguez explained that the
Friday before the shooting, he was with Hernandez and defendant when
bottles were thrown at them from a moving car. Hernandez was very upset
because his small child was with them. Hernandez and defendant knew the
responsible person hung out in the “23rd Street area.” Rodriguez said
Hernandez and defendant both stated they tossed their firearms after the
shooting.
      Galios spoke to Maria G. who described the person that she saw
running from the scene wearing rosary beads. Maria G. identified defendant



                                       7
in a photo lineup as the person that she saw, but said she was only 30
percent sure. During the investigation, Galios found a text message in
defendant’s cell phone asking, “You finna be getting out of the Rich?” To this,
defendant responded, “Trying to. I got nowhere to go, period. 187.”
      Galios testified that no bullet casings were recovered at the crime
scene, though a semiautomatic firearm expels casings after being fired.
Standard revolvers hold six rounds; some larger caliber revolvers hold five
rounds. In the course of his investigation, he listened to audio from a
“ShotSpotter” system set up in San Pablo and Richmond and heard eight
shots fired.
      Defendant presented no witnesses but introduced a map of the area
around 23rd Street and Emeric Avenue. The defense, with the assent of the
People, introduced into evidence a video recording of a police interview of
Rodriguez. Among other things, Rodriguez told police that he dropped off
defendant and Hernandez at Emeric Avenue and Hayes Street knowing they
were going to shoot someone. Rodriguez said he knew this based on the way
the two were dressed, and that defendant had a “40 Glock” and they told him
they were going to do “business.” After the shooting, Rodriguez first picked
up defendant, who told him to pick up Hernandez. Defendant told Rodriguez
that he threw out his gun and that he fired three or four shots from far away
but his gun jammed. Hernandez said he used his revolver and came back
with no bullets; Hernandez also said he thought he shot the victim “in the
ass.” Rodriguez thought Hernandez probably still had the gun with him after
the shooting and left it with a family member. Rodriguez told the police that
the shooting occurred because someone threw bottles at him, defendant,
Hernandez, and Hernandez’s young child, while they were walking on the
Friday before the shooting.



                                       8
      At the conclusion of the hearing, the trial court denied the petition
upon determining the evidence showed, beyond a reasonable doubt, that
defendant was guilty of murder either as an actual killer or as an aider and
abettor. This appeal followed.
                                  DISCUSSION
      A. General Principles
      In 2018, the Legislature enacted Senate Bill No. 1437 (2017–2018 Reg.
Sess.) (Senate Bill 1437) which “eliminated the natural and probable
consequences theory of liability as a basis for a murder conviction.” (People v.
Reyes (2023)
14 Cal.5th 981
, 984 (Reyes).) It did so by amending section 188
to provide that “except in cases of felony murder, ‘in order to be convicted of
murder, a principal in a crime shall act with malice aforethought.’ (§ 188,
subd. (a)(3), as amended by Stats. 2018, ch. 1015, § 2.)” (Reyes, at p. 986.)
      Additionally, Senate Bill 1437 added section 1170.95 (now
section 1172.6), which “provide[d] a procedure for convicted murderers who
could not be convicted under the law as amended to retroactively seek relief.”
(People v. Lewis (2021)
11 Cal.5th 952, 959
.) In 2021, the Legislature enacted
Senate Bill No. 775 (2021–2022 Reg. Sess.), which clarified that the law also
applied to “persons who were convicted of attempted murder or manslaughter
under a theory of felony murder and the natural probable consequences
doctrine.” (Stats. 2021, ch. 551, § 1, subd. (a).) In its current form, section
1172.6 provides that a petitioner must make a prima facie showing that:
(1) a charging document was filed that “allowed the prosecution to proceed
under a theory of felony murder, murder under the natural and probable
consequences doctrine or other theory under which malice is imputed to a
person based solely on that person’s participation in a crime, or attempted
murder under the natural and probable consequences doctrine”; (2) “[t]he
petitioner was convicted of murder, attempted murder, or manslaughter


                                        9
following a trial or accepted a plea offer in lieu of a trial at which the
petitioner could have been convicted of murder or attempted murder”; and
(3) “[t]he petitioner could not presently be convicted of murder or attempted
murder because of changes to Section 188 or 189 made effective January 1,
2019.” (§ 1172.6, subd. (a).)
      Where a petitioner makes a prima facie showing of entitlement to
relief, the trial court must issue an order to show cause then hold “a hearing
to determine whether to vacate the murder, attempted murder, or
manslaughter conviction and to recall the sentence and resentence the
petitioner on any remaining counts in the same manner as if the petitioner
had not previously been sentenced, provided that the new sentence, if any, is
not greater than the initial sentence.” (§ 1172.6, subds. (c), (d).) At the
hearing stage, the court may generally consider evidence previously admitted
at any prior hearing that is currently admissible, and the parties may “offer
new or additional evidence to meet their respective burdens.” (§ 1172.6,
subd. (d)(3).) “[T]he burden of proof shall be on the prosecution to prove,
beyond a reasonable doubt, that the petitioner is guilty of murder or
attempted murder under California law as amended by the changes to
Section 188 or 189 made effective January 1, 2019.” (§ 1172.6, subd. (d)(3).)
      B. Sufficiency of the Evidence
      Defendant argues the evidence was insufficient to support a finding
beyond a reasonable doubt that he is guilty of murder under current law. We
disagree.
      “Murder, whether in the first or second degree, requires malice
aforethought. (§ 187.) Malice can be express or implied. It is express when
there is a manifest intent to kill (§ 188, subd. (a)(1)); it is implied if someone
kills with ‘no considerable provocation . . . or when the circumstances



                                        10
attending the killing show an abandoned and malignant heart’ (§ 188,
subd. (a)(2)).” (People v. Gentile (2020)
10 Cal.5th 830, 844
(Gentile).) Case
law explains that “[m]urder is committed with implied malice when ‘the
killing is proximately caused by “ ‘an act, the natural consequences of which
are dangerous to life, which act was deliberately performed by a person who
knows that his conduct endangers the life of another and who acts with
conscious disregard for life.’ ” ’ ” (Reyes, supra, 14 Cal.5th at p. 988.)
      “All persons concerned in the commission of a crime . . . whether they
directly commit the act constituting the offense, or aid and abet in its
commission . . . are principals in any crime so committed.” (§ 31.) “[U]nder
direct aiding and abetting principles, an accomplice is guilty of an offense
perpetrated by another if the accomplice aids the commission of that offense
with ‘knowledge of the direct perpetrator’s unlawful intent and [with] an
intent to assist in achieving those unlawful ends.’ ” (Gentile, supra,
10
Cal.5th at p. 843
; People v. Beeman (1984)
35 Cal.3d 547, 561
.) “ ‘[T]o be
liable for an implied malice murder, the direct aider and abettor must, by
words or conduct, aid the commission of the life-endangering act, not the
result of that act. The mens rea, which must be personally harbored by the
direct aider and abettor, is knowledge that the perpetrator intended to
commit the act, intent to aid the perpetrator in the commission of the act,
knowledge that the act is dangerous to human life, and acting in conscious
disregard for human life.’ ” (Reyes, supra, 14 Cal.5th at p. 991, italics
omitted.)
      We review the denial of a section 1172.6 petition for substantial
evidence. (Reyes, supra, 14 Cal.5th at p. 988.) Under that familiar standard,
we review the record in the light most favorable to the judgment to determine
whether it contains evidence that is reasonable, credible, and of solid value



                                        11
that supports a finding of guilt beyond a reasonable doubt. (People v.
Clements (2022)
75 Cal.App.5th 276
, 298.)
      Here, the record contains ample evidence substantially supporting
defendant’s guilt as a direct aider and abettor to the murder who, at the very
least, acted with implied malice. As described in detail above, multiple
eyewitnesses connected defendant directly to the crime. (Ante, at pp. 3–4.)
After the gunshots, eyewitnesses saw a young, thin Hispanic male with a gun
and a larger Hispanic man with a gun and wearing a red rosary run from the
crime scene. Maria G., identified the larger man in a photo lineup as
defendant. Both Mohammed Z. and Maria G. saw the larger man get into a
car. Mohammed Z. saw a body on the ground where the larger man came
from. Surveillance video led police to identify the suspect vehicle in the
homicide, which led the police to pull over co-defendant Rodriguez, the
admitted driver of the suspect vehicle.
      Statements from Rodriguez provided additional evidence of defendant’s
guilt. Rodriguez told police he dropped off defendant and Hernandez at
Emeric Avenue and Hayes Street knowing they were going to shoot someone.
Rodriguez saw defendant with a “40 Glock.” After the shooting, defendant
said he fired three or four shots but his gun jammed. Hernandez said he
came back with no bullets and used his revolver, and he thought he shot the
victim “in the ass.” The evidence established the victim had suffered seven
separate entry gunshot wounds throughout his body, including his buttocks.
Rodriguez’s statements establish that defendant and Hernandez went to the
location where the victim was with the intent to shoot him.
      Moreover, a search of defendant’s home revealed red rosary beads and
a search of his cell phone showed calls made to Hernandez’s phone the
morning of the murder, and also calls with Rodriguez’s phone. At around



                                       12
2:36 a.m. the day after the murder, defendant received a text message
asking, “You finna be getting out of the Rich?” To this, defendant’s phone
responded, “Trying to. I got nowhere to go, period. 187.” The number “187”
represents the Penal Code section defining the crime of murder.
      There also was evidence of motive. As recounted in detail above (ante,
at pp. 5–6, 8), the victim was a member of a Sureño street gang who was
targeted because he allegedly threw bottles at defendant, Hernandez, and
Rodriguez. There was a serious conflict between Sureños and Norteños at
that time, and Detective Brady opined this murder was a “clear” case in
which disrespect of one gang was met with violence by another. For instance,
tagging at a memorial for the Sureño gang victim was crossed out with
tagging that stated “ ‘WSB got one.’ ” WSB is a Norteño gang, and there was
evidence that Rodriguez, Hernandez, and defendant all associated to some
extent with Norteños. Rodriguez admitted he had clothing items associated
with WSB and knew people in or associated with that gang, including his
sister. Hernandez had a red bandana in his room, and gang tagging specific
to Norteños appeared in his room and backyard. As for defendant, he had a
few pairs of red shoes, a red and black rosary, and red hats, including one hat
with a huelga bird on it, a common symbol used by the Norteño street gang.
      Considering the totality of the record, we find substantial evidence
supporting the trial court’s determination beyond a reasonable doubt that
defendant directly aided and abetted the murder, by knowingly participating
in the shooting of Hernandez. At the very least, the evidence establishes
defendant acted with implied malice, by intentionally seeking the victim out
while armed and intending to aid in the victim’s shooting, and thereby acting
in conscious disregard for human life. (See, e.g., People v. Nieto Benitez




                                       13
(1992)
4 Cal.4th 91
, 109–110 [“where the defendant obtains a lethal weapon
and then engages the victim in an argument, malice may be implied”].)
      C. Defendant’s Other Contentions
            1. Accomplice testimony
      Defendant challenges the trial court’s reliance on co-defendant
Rodriguez’s testimony on the ground that Rodriguez was an accomplice and
his account of the events was not sufficiently corroborated. Specifically, he
contends, there was no evidence corroborating Rodriguez’s statements that
defendant went with Hernandez to locate the victim while Rodriguez “simply
dropped them off and went to the liquor store.” We disagree.
      Section 1111 provides: “A conviction can not be had upon the testimony
of an accomplice unless it be corroborated by such other evidence as shall
tend to connect the defendant with the commission of the offense; and the
corroboration is not sufficient if it merely shows the commission of the offense
or the circumstances thereof.” An “accomplice” is “one who is liable to
prosecution for the identical offense charged against the defendant on trial in
the cause in which the testimony of the accomplice is given.” (§ 1111.) That
said, “evidence corroborating accomplice testimony ‘ “need not independently
establish the identity of the victim’s assailant” [citation], nor corroborate
every fact to which the accomplice testifies [citation], and “ ‘may be
circumstantial or slight and entitled to little consideration when standing
alone.’ ” ’ ” (People v. Perez (2018)
4 Cal.5th 421, 452
.) “ ‘ “The corroborating
evidence need not by itself establish every element of the crime, but it must,
without aid from the accomplice’s testimony, tend to connect the defendant
with the crime.” ’ ” (People v. Gomez (2018)
6 Cal.5th 243, 308
.)




                                        14
      Here, it is undisputed that Rodriguez was an “accomplice” within the
meaning of section 1111. Thus, the only question is whether there was
sufficient corroborating evidence connecting defendant to the murder.
      As already discussed in depth, there was plenty of evidence pointing to
defendant’s guilt, including the testimony of the eyewitnesses near the crime
scene, the items found in defendant’s home, the call logs from defendant’s
phone and Rodriguez’s phone, and the evidence of motivation. All this was
more than sufficient to connect the defendant to the crime independently of
Rodriguez’s testimony.
            2. Galios’s Testimony Regarding the ShotSpotter Audio
      Defendant argues the trial court erred by allowing former Officer
Galios to testify that he heard eight shots fired while listening to the
ShotSpotter audio. Defendant contends there was no expert or other
evidence explaining how the ShotSpotter technology worked in 2012, its
margin of error, or its capacity to differentiate and characterize the sound of
gunfire as distinguished from other sounds such as a car backfiring or
fireworks. Relying on People v. Hardy (2021)
65 Cal.App.5th 312
, defendant
contends the ShotSpotter technology was sufficiently novel, and its reliability
unestablished, to have required a Kelly/Frye2 hearing. Moreover, he
contends, “the prosecutor did not establish Galios’ training or experience with
the system to establish the reliability of his discernment of sounds of
gunshots versus other sounds,” nor had a foundation been laid to establish
that the audio of the eight sounds was captured at the particular location and
time of the victim’s shooting.




2     People v. Kelly (1976)
17 Cal.3d 24
(Kelly); Frye v. United States
(D.C. Cir. 1923)
293 Fed. 1013
(Frye).


                                       15
      Initially, we note that Evidence Code section 353 requires an objection
“so stated as to make clear the specific ground of the objection.” The objection
must “fairly inform the trial court, as well as the party offering the evidence,
of the specific reason or reasons the objecting party believes the evidence
should be excluded, so the party offering the evidence can respond
appropriately and the court can make a fully informed ruling.” (People v.
Partida (2005)
37 Cal.4th 428, 435
.)
      Here, when the prosecutor asked Galios how many shots he heard on
the ShotSpotter audio, defense counsel stated: “I’m going to object as lack of
foundation as it relates to what he heard in this case.” Because defense
counsel did not specifically mention Kelly/Frye or otherwise identify the basis
of her foundational objection,3 the review of the Kelly/Frye has been forfeited.
(People v. Diaz (1992)
3 Cal.4th 495, 527
[objection on grounds of “ ‘lack of
foundation’ ” and “hearsay” did not preserve the Kelly/Frye issue].)
      But even assuming it was error to admit Galios’s testimony, defendant
fails to establish that a more favorable outcome was reasonably probable had
the testimony been excluded. (People v. Venegas (1998)
18 Cal.4th 47, 93
;
Kelly, supra,
17 Cal.3d at p. 40
[applying Watson].) Defendant suggests the
error was prejudicial because the trial court made a comment about it when
denying the resentencing petition. Defendant, however, fails to provide a


3      An objection on the ground of lack of foundation can encompass a
number of different evidence rules, e.g., personal knowledge (Evid. Code,
§ 702), expert witness qualification (id., § 720), and admissibility of lay and
expert witness opinion (id., §§ 800, 801). (See id., §§ 403, 405 [preliminary
facts].)
       Though the trial court independently asked the prosecutor if a
Kelly/Frye hearing was needed, defense counsel offered no objection or
comment when the prosecutor explained that the seven gunshots found on
the victim’s body essentially corroborated Galios’s determination that he
heard eight shots fired on the ShotSpotter audio.

                                       16
record citation supporting this claim. Our review of the record reveals that
when the court denied the petition, it noted “there were seven entry wounds
on the victim so it would appear that both gentlemen shot him” insofar as a
“revolver would not hold more than five, possibly six” bullets. In any event,
as discussed, even without the challenged testimony, substantial evidence
established beyond a reasonable doubt that defendant directly aided and
abetted the murder with implied, if not express, malice. The People were not
required to prove that defendant fired the bullets that actually killed the
victim, or that his bullets even hit their mark, to support this theory. We
thus reject defendant’s claim that the court prejudicially erred in admitting
Galios’s testimony.
            3. Lieutenant Wiegers’s testimony regarding the entry wounds
      Defendant next contends Lieutenant Wiegers’s testimony regarding the
number of entry gunshot wounds on the victim’s body lacked foundation and
constituted inadmissible hearsay, as there was no showing Wiegers had
sufficient expertise to make that determination and his opinion was based on
what he was told by the coroner.
      We provide some additional context here. Lieutenant Wiegers initially
testified he has worked on well over a hundred homicide cases involving
gunshot victims over the course of his career. Wiegers observed the victim’s
body at the hospital and later counted seven total gunshot wounds. Wiegers
also documented the gunshot wounds at the autopsy.
      After the People rested, the trial court invited the prosecutor to recall
Wiegers to testify as to his experience in distinguishing between entry
wounds and exit wounds. Wiegers testified on recall that through his
training and experience as a police officer, he is familiar with gunshot
wounds, including the difference between an entry and an exit wound.



                                       17
Trajectory rods were used during the victim’s autopsy, which showed the
path that a bullet entered and exited the body. Wiegers made his “own
personal determination” that the victim had seven separate gunshot wounds.
Defense counsel indicated she had no cross-examination for Wiegers, but
objected to the re-opening of his testimony, and also on grounds of lack of
foundation and hearsay. Having anticipated and allowed further testimony
regarding the gunshot wounds, the court implicitly overruled the foundation
and hearsay objections.
      We are not persuaded that Wiegers’s recall testimony should have been
barred as hearsay. As indicated, Wiegers concluded there were seven
separate bullet wounds based on his own experience and personal
observations. Defendant’s assertion that Wiegers’s “understanding was
clearly based on what the coroner told him” is unsupported by the record.
      Defendant’s contention that Wiegers’s testimony lacked foundation is
likewise unavailing. Even if we were to overlook defendant’s failure to
specify the basis for the foundation objection (see Evid. Code, § 353), he has
not shown the court abused its discretion in implicitly overruling the
objection.
      As the Evidence Code makes clear, a witness can give an expert opinion
that is related to a subject “sufficiently beyond common experience” when
that opinion is “[b]ased on matter (including his special knowledge, skill,
experience, training, and education) perceived by or personally known to the
witness.” (Evid. Code, § 801.) “A person is qualified to testify as an expert if
he has special knowledge, skill, experience, training, or education sufficient
to qualify him as an expert on the subject to which his testimony relates. . . .
[¶] A witness’ special knowledge, skill, experience, training, or education may
be shown by any otherwise admissible evidence, including his own



                                       18
testimony.” (Id., § 720.) “When a preliminary showing is made that the
proposed witness has sufficient knowledge to qualify as an expert under the
Evidence Code, questions about the depth or scope of his or her knowledge or
experience go to the weight, not the admissibility, of the witness’s testimony.”
(People v. Jones (2013)
57 Cal.4th 899
, 949–950.)
        As the record reflects, Wiegers became familiar with the difference
between entrance and exit wounds based on his training and experience as a
police officer. Over the course of his career, Wiegers had worked on over a
hundred homicide cases involving gunshot victims. Defense counsel did not
cross-examine Wiegers concerning his experience. On this record, we cannot
say the trial court abused its discretion in allowing Wiegers to testify that his
examination of the victim’s wounds led him to conclude that the victim had
been shot seven times.
              4. Galios’s testimony about defendant’s text messages
        Former Officer Galios testified that text messages on defendant’s cell
phone shortly after the murder caught his attention. As relevant here, on
August 27, 2012, at 2:36 a.m., a text message from defendant’s phone number
to an unknown person stated, “What’s good? . . . [T]rying to get out of town.”
The unknown person responded, “You finna be getting out of the Rich?” Then
defendant’s phone number replied: “Trying to. I got nowhere to go, period.
187.”
        Defendant now contends the evidence was hearsay and did not fall
within the party admission exception (Evid. Code, § 1220) because there was
no evidentiary foundation establishing that he personally sent the text
messages. This is meritless.
        A writing, including a text message, must be authenticated before it
may be admitted into evidence. (Evid. Code, §§ 250, 1401; People v.



                                        19
Goldsmith (2014)
59 Cal.4th 258, 266
.) To authenticate a writing, the
proponent must introduce evidence sufficient to sustain a finding that it is
the writing he or she claims it is, or establish such facts “by any other means
provided by law.” (Evid. Code, § 1400.) The proponent may rely on
circumstantial evidence or the writing’s own content to authenticate it.
(People v. Skiles (2011)
51 Cal.4th 1178, 1187
.)
      Here, Lieutenant Wiegers testified, without objection by the defense,
that call logs for a cell phone found on defendant’s bed stand showed calls
were made between it and Hernandez’s phone and Rodriguez’s phone on the
morning of the murder. Wiegers also searched Rodriguez’s phone, and the
number associated with defendant’s phone was in Rodriguez’s phone under
the name “Jorge” (defendant’s first name). This was more than sufficient to
sustain a finding that the subject text messages were sent by defendant and
therefore qualified as a party admission under Evidence Code section 1220.4
      Defendant insists the prosecution provided no foundation to establish
that he—and not one of his co-defendants or someone else—sent the text
messages. But as the People point out, the defense presented no evidence
suggesting that anyone else used the phone.
      As for defendant’s contention that the “prosecution did not provide the
court a copy of the text message, nor did it establish that the criteria of
Evidence Code section 1523 [were] met for Officer Galios to simply recite
orally the content of the messages,” there was no specific objection on this
ground. As such, the contention was forfeited. (Evid. Code, § 353.)




4     Though we need not rely on this, defendant also recited his phone
number on video during his police interview, which the defense moved into
evidence.

                                       20
      In sum, the trial court did not err in admitting the testimony
concerning defendant’s text messages.
            5. Defendant’s youth
      Finally, defendant argues a remand is required because: he was 22
years old at the time of the shooting; youth is a relevant factor that a trial
court must consider in determining whether a defendant acted with malice;
and the record does not reflect the court considered defendant’s youth.
      It appears defendant has forfeited this claim. Defendant does not
indicate that he made this argument below, and our review of the record does
not show that he did. Although various documents before the trial court,
including the court’s own minute orders, reflected defendant’s date of birth,
defendant never presented any evidence concerning his youth at the time of
the crimes. (In re Aaron B. (1996)
46 Cal.App.4th 843, 846
.)
      Defendant urges that we exercise our discretionary authority to
consider the issue. Defendant cites People v. Pittman (2023)
96 Cal.App.5th
400
(Pittman) for its holding that youth—“defined, roughly, as being 25 years
of age and younger”—may be one factor in the totality of the circumstances
bearing on whether a defendant acted with implied malice and so could still
be found guilty of murder at a section 1172.6 hearing. (Id. at pp. 416–417)
Because Pittman appears to be the first case to clearly reach this holding,
and because Pittman was not decided until after the trial court in this case
denied the petition for resentencing, we will exercise our discretion to
consider the relevance of youth here. (Id. at p. 416.)
      In Pittman, the defendant, at the age of 21, was at a party with his two
co-defendants who were around 16 and 17 years old, and all were drunk.
(Pittman, supra, 96 Cal.App.5th at pp. 404, 418.) The defendant left the
party momentarily, saw the victim doing drugs in a car, and devised a plan to



                                       21
“ ‘whip [the victim’s] ass.’ ” (Id. at p. 404.) On the way to the victim’s car, the
defendant armed himself with a chisel from a neighbor’s porch and provided
chisels to his co-defendants. One of the co-defendants stabbed the victim
while the defendant threw his chisel, possibly hitting the victim. (Id. at
p. 405.) Upon noting that no evidence of youth was addressed in the trial
court at the section 1172.6 hearing, the Court of Appeal proceeded to consider
whether “there is a reasonable possibility that the failure to consider [the
defendant’s] youth impacted the trial court’s decision.” (Pittman, at p. 417.)
The court indicated “[i]nferences of immaturity and peer pressure” could be
drawn from the ages of the defendant and his co-defendants. (Id. at p. 418.)
Additionally, “the trial evidence indicates that [the defendant] and his peers
acted impulsively and under the influence of ‘transient rashness.’ The
selection of chisels as weapons appears to have been spontaneous. The
acknowledged motivation for the crime was the happenstance that, while
walking by his house, [the defendant] noticed [the victim] ‘shooting up dope
with a prostitute in his truck.’ ” (Ibid.) The court also noted the “material
characteristics of youth are exacerbated” because the defendant and his
codefendants were intoxicated and because of “ ‘negative emotional arousal’ ”
and that “issues surrounding youth were discussed at [the defendant’s] parole
hearing.” (Ibid.)
      Here, as in Pittman, the defense did not present any evidence
concerning defendant’s youth. The record establishes defendant was 22 years
old at the time of the murder, while his co-defendants were 19 years old. The
murder in this case occurred on the Sunday following the Friday when the
victim allegedly threw bottles at Hernandez, Hernandez’s young child,
Rodriguez, and defendant. There was no evidence of intoxication, and
Hernandez and defendant waited more than a day after the victim allegedly



                                        22
“disrespected” them to then arm themselves and call on Rodriguez to take
them to the victim. Nonetheless, “[i]nferences of immaturity and peer
pressure” could be drawn from the ages of defendant and his co-defendants,
as well as from the nature and timing of the murder and its motivating
cause. (Pittman, supra, 96 Cal.App.5th at p. 418.)
         Taking our cue from Pittman, we conclude that youth was a factor for
the trial court to consider at the resentencing hearing. (Pittman, supra, 96
Cal.App.5th at p. 417.) And because the matter was not addressed, we
cannot rule out a reasonable possibility that the court’s failure to consider the
defendant’s youth may have impacted its decision. (See ibid.) Accordingly, a
remand is appropriate for the court to consider how, if at all, defendant’s
youth affected his ability to form the requisite mental state for murder. We
express no opinion as to the appropriate outcome on remand.
                                   DISPOSITION
         The order denying the petition for resentencing is reversed, and the
matter is remanded to the trial court for further proceedings consistent with
this opinion.
                                       _________________________
                                       Fujisaki, Acting P. J.


WE CONCUR:


_________________________
Petrou, J.


_________________________
Rodríguez, J.


People v. Anguiano (A166206)




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