A. Guilt Phase
1. Prosecution
a. April 11, 2000: Murder of John Diaz
The city of Baldwin Park is the home of the Eastside Bolen Parque (ESBP) gang. Defendants were members of ESBP. Not long after midnight on April 11, 2000, Paul Gonzales was riding a bicycle on Merced Street in Baldwin Park. His half-brother, John Diaz, rode on the handlebars. Diaz was a member of the Monrovia gang and had a "Monrovia" tattoo above his right knee. Gonzales was not a gang member. They passed a black sport utility vehicle (SUV) sitting at a red light. The SUV made a U-turn and came back toward the brothers on the opposite side of the street, then made another U-turn and pulled alongside them. Two people were in the car. As the SUV pulled past them, the passenger shouted, "Where you from?" Gonzales saw gunfire coming from inside the vehicle, jumped off the bicycle and crouched behind a parked car. The SUV sped away. Diaz approached Gonzales, told him to call an ambulance, and fell to the ground. He died at the hospital.
Sheriff's Sergeant Kenneth Clark processed the scene. He found five expended nine-millimeter shell casings, and a bullet hole in a residence on Merced Street. Gonzales described the shooter as being between ages 18 and 22, short-haired or bald-headed with a light complexion.
Doctor Vladimir Levicky, M.D., performed the Diaz autopsy. Diaz suffered a fatal gunshot wound to his left side, which perforated his liver and inferior vena cava. A second fatal wound to the back perforated his liver, stomach, and aorta. A third wound to the buttocks perforated his bladder. The bullet from Diaz's back was retrieved and booked into evidence.
In a recorded conversation with the trial prosecutor on February 21, 2002, defendants
Baldwin Park Police Sergeant David Reynoso, testifying as a gang expert, opined the shooting was committed for the benefit of ESBP. Based on defendants' recorded conversations with the prosecutor, Reynoso believed defendants shot Diaz because he was a rival gang member in territory claimed by ESBP, and the shooting was intended to promote ESBP's reputation.
b. May 25, 2000: Murder of Arturo Madrigal and Attempted Murder of Fernando Gutierrez
On May 25, 2000, Arturo Madrigal was parking his Chevrolet Blazer near the corner
Gutierrez told police there had been four Hispanic men in the car. All were between 20 and 25 years old, with shaved heads. He testified neither he nor Madrigal belonged to a gang. He saw the assailants only briefly and was unable to identify anyone at trial.
Police Detective Mike Hemenway responded to the scene to find the Blazer parked near the corner of Maine and Rexwood Avenues with its engine running. Madrigal was dead behind the wheel; blood flowed from his ears and head. Lisa Scheinin, M.D., testified in lieu of the pathologist who performed the autopsy. She reported his conclusions that Madrigal died from a gunshot wound to the head that severed his brain stem. Several bullets were recovered and given to investigators. Madrigal also suffered a grazing wound to one knee.
A sheriff's deputy recovered four expended nine-millimeter cartridge casings and one expended bullet near the Blazer along with one expended bullet from inside the driver's door. All had been fired from outside the vehicle and from the same gun. All four bullets from the Madrigal autopsy showed six lands and grooves with a right twist, consistent with having been fired from a nine-millimeter Smith and Wesson semiautomatic pistol.
Prosecution gang expert Reynoso testified that the Madrigal shooting was committed for the benefit of ESBP. He noted that Madrigal's head was
In a recorded conversation on March 28, 2002, defendants provided trial prosecutor Levine and Detective Kerfoot with details of the shooting. Defendants were "driving around [the] neighborhood looking for people to kill." They saw "a gang member [that was] in the wrong area," driving an "older model Blazer." Amezcua was driving. Flores, using a nine-millimeter pistol, fired "two to three shots" that hit the victim in the face and neck. The passenger fled. Asked why they went out and started shooting people, defendants explained it was their "job." Flores said, "[W]e were trying to better the gang and [instill] fear to the rest of the gangs." He explained that the victim should not have been driving in "our hood"; he could have driven "the long way," but they had caught him taking "the short way," and Flores "domed him."
Katrina Barber
7
knew both Amezcua and Flores. About 11:30 p.m. on June 18, 2000, she was parked in front of her mother's house in a stolen Toyota Corolla. Defendants asked her for a ride. She drove around Baldwin Park and Alhambra until the Corolla broke down. Barber then stole
Barber drove defendants to the La Puente home of ESBP member Luis Reyes. The four watched television and used crystal methamphetamine, then left the house in two vehicles. Barber took Flores in the Cressida; Reyes drove Amezcua in his Monte Carlo. Parked near each other in a hotel lot, Barber saw Reyes talking with and giving something to a person in another car.
Barber then got on the freeway to go to her mother's house in La Puente. In Baldwin Park, Barber drove past some men sitting on a wall in front of a house on Ledford Street. At Flores's direction, Barber turned back toward the men and stopped. The Monte Carlo with Reyes and Amezcua drove up and also stopped in front of the Ledford Street house. Flores said to the men,
Robert Perez testified that on the morning of June 19, 2000, he was standing beside the wall in front of his Ledford Street home, chatting with his friends Art Martinez, Joe Mayorquin, and George Flores. Perez was not a gang member, but two of his friends were inactive members of the 22nd Street gang. All were unarmed. A Chevrolet Monte Carlo drove by, catching his attention because the men inside were staring at them. Perez's brother-in-law had been murdered in front of the house three years earlier, so he was constantly vigilant. The car turned around and approached. Perez told his friends to go to the back of the house, but Flores and Mayorquin stayed to see what would happen. The Monte Carlo and a woman driving a Toyota pulled up. Flores was seated in the Toyota and said, "Well, well, what do we have here?" Amezcua got out of the Monte Carlo holding a black pistol, said something, and fired the first shot. Perez jumped for cover and crawled toward the side of his house. He heard a metallic sound and the firing of a second gun from around the Toyota. When the shooting stopped Perez was uninjured, but George Flores lay dead from a neck wound and Joe Mayorquin had been shot in the leg. Perez later found bullet holes in his house and garage.
Sergeant Reynoso testified that, in his opinion, the Ledford Street shootings were committed for ESBP's benefit. The location of the offense was one claimed by ESBP. Victim George Flores belonged to a different gang but openly displayed his tattoos in ESBP territory. Killing him promoted ESBP's notorious reputation.
d. June 19, 2000: Murder of Luis Reyes
After the Ledford Street shooting, Flores told Barber she could not go to her mother's house. As they drove toward San Bernardino the car began to shake. Barber got off the freeway and stopped, followed by Reyes and Amezcua in the Monte Carlo. Gathering her things, she heard gunfire and saw Amezcua shoot Reyes. Flores asked Amezcua, "What are you doing that here for?" Then he and Amezcua began to pull Reyes, bleeding and choking, from the
On June 19, 2000, Andrew Quiroz saw a man lying beside the road and rushed to his side. The man had been shot but was still breathing. Quiroz called for help, which arrived within 10 minutes.
Sergeant Dean Brown responded to find Reyes lying in a pool of blood. A stolen Toyota Cressida parked nearby contained five shell casings. A bullet fell from the victim's clothing when he was lifted. Brown also found a spent bullet and shell casing in nearby weeds. An autopsy identified 19 gunshot wounds, shot from a distance of about two feet. Bullets recovered from the body came from a Ruger pistol linked to Amezcua.
Reyes's wallet contained a payment receipt for the Monte Carlo. Ontario police posted a bulletin that the car was wanted in connection with a homicide and its occupants were considered armed and dangerous.
Detective Reynoso testified that Reyes was considered to be a "rat" because he had cooperated with the police. He opined that Reyes was killed because his conduct was disrespectful to ESBP and his killing promoted ESBP's reputation.
During the evening of June 24, 2000, Amezcua, Flores and Flores's girlfriend, Carina Renteria, went to a 7-Eleven store. Renteria drove Flores in her Honda Civic. Amezcua drove the Monte Carlo. Amezcua sped out of the parking lot and was followed by San Bernardino County Sheriff's deputy Andrew Putney. Renteria and Flores followed in the Civic.
The Monte Carlo's license plate showed it was stolen. Amezcua entered the 10 Freeway. He cut in and out of lanes at speeds between 70 and 85 miles per hour. After about two miles he made a hard
Renteria testified that after they had gotten onto the freeway, Flores told her to catch the patrol car. As she drew closer, Flores rolled down the window, leaned out and began shooting. She had not known he was going to do that. Flores told her to keep driving and get off the freeway. She drove to his mother's house in Hemet. Shortly thereafter,
About 3:00 a.m. on June 25, 2000, firefighters found the Monte Carlo on fire in San Jacinto, a city adjacent to Hemet. Local police checked the license plate and contacted Ontario officers. Inside the car, police found bullets, casings and shells.
Sheriff's deputies interviewed Renteria, who thereafter pleaded guilty to being an accessory to arson. She testified at defendants' trial and received no consideration for doing so.
In a recorded conversation on February 21, 2002, prosecutor Levine told defendants, "You guys are-you're a good shot." Flores said, "Yeah, it's hard to shoot when you're in a vehicle and both vehicles are moving and one's turning." Levine said, "You hit that car a lot of times," and Flores replied, "Yeah. Oh, and ... I should've had the other gun."
f. July 4, 2000: Attempted Murders of Peace Officers; Assault with a Semiautomatic Firearm; Assault with a Firearm; False Imprisonments on Santa Monica Pier
Close to midnight on the night of July 3-4, 2000, Police Officer Robert Martinez received a radio call reporting that a triple homicide suspect had made a call from a public telephone on the Santa Monica pier. Martinez went to the pay-phone, verified the number, and waited for additional units. Martinez and six assisting officers walked toward the end of the pier and saw defendants standing outside an arcade. Flores matched the description of the suspect. Flores approached the officers, while Amezcua went into the arcade. Martinez began to pat down Flores, who tried to turn away. Martinez grabbed him and both men fell to the ground. Flores was subdued by a police dog. He had a semiautomatic AP9 handgun and a loaded semiautomatic pistol on his person.
Martinez told Sergeant Michael Braaten another suspect had gone into the arcade. As arcade patrons began to leave, officers took up various positions. Martinez yelled,
Jing Huali was leaving the arcade when she heard gunshots. She saw Amezcua holding someone and pointing a gun at her. She was wounded in the left leg during the gunfire.
Lorna Cass and Paul Hoffman were in the arcade with their respective children. They heard the sound of gunshots and took cover. Cass saw a man holding an Asian woman hostage. The man said to move the arcade machines closer together to form a barricade and told everyone still in the arcade to come together so he could see them.
Bonnie Stone and Michael Lopez were also present. Stone saw Amezcua with a gun in his hand holding an Asian woman around her neck. Amezcua
g. Defendants' Weapon Possession in Custody
On January 29, 2001, Sheriff's Deputy Armando Meneses found a homemade stabbing device, or shank, hidden under the toilet rim in Amezcua's cell.
On April 30, 2001, a deputy found two large pieces of metal capable of being made into weapons hidden in the corners of Flores's bunk. Flores occupied the cell alone.
2. Defense
The parties stipulated that Andre Acevedo would have testified that Carina Renteria told him she was driving a car with three passengers when a police car drove in between them. The two men in the back seat told her to pull alongside the officer. When she did so, "they" rolled down the window and began shooting.
B. Penalty Phase
1. Prosecution
a. Amezcua's Custodial Possession of a Weapon
On November 19, 2004, a sheriff's deputy found a shank hidden in Amezcua's jail cell.
b. Flores's Armed Robbery
On March 29, 1995, David Wachtel, Buddy Jacob, and a woman named Karen were parked in Baldwin Park, talking. Flores and another man approached and tapped on the window. Flores asked if they had any money. Initially, Wachtel refused to give him money or his wallet. Flores showed him a gun and said, "Don't make me make you." Flores took Wachtel's pager and wallet, Jacob's necklace, and $20 from Karen's purse. Flores left and police were summoned. Wachtel identified Flores at a preliminary hearing.
c. Flores's Threat Against Jail Officer
On May 10, 2001, Sheriff's Deputy Dustin Cikcel removed contraband including excess sheets and food from Flores's cell. Flores was belligerent
On June 13, 2000, Timothy Obregon was living in Baldwin Park. He was not in a gang but was a friend of ESBP member Richard Robles. That evening, Robles called and asked Obregon to give his "homeboys" a ride home. Robles brought defendants to Obregon's house, introduced them, and gave Obregon $40. Flores put a large, dark duffle bag in the trunk. Obregon's girlfriend, Alicia Garcia, went along for the ride. Garcia sat in the front passenger seat with Amezcua and Flores in the rear.
Flores told Obregon to take the 10 Freeway east. No one spoke, which made Obregon nervous. At one point, Garcia complained it was taking a long time and asked how far they were going. A minute or two later, Obregon heard gunfire. Shots went through the windshield and Garcia "squirmed" in her seat. Amezcua reloaded his gun and started to point it at Garcia's head. Flores told him not to do that. Garcia started to cry and said, "He shot me, and I am dying." Blood streamed down from a hole in her chin. Obregon felt something at the back of his neck and Flores said, "Better drive straight, motherfucker, or I will shoot you with this nine."
At Flores's direction Obregon left the freeway at the next exit. The road was lined with tall cornfields. Flores said he would let them go in a place where Obregon could get help and told him to stop in a residential neighborhood. Obregon and Flores got out of the car. Flores demanded money, which Obregon gave him. Obregon lifted Garcia from the car and put her down on the sidewalk. Flores asked Obregon, "Do you know me?" Obregon answered in the negative, saying he would "tell them that we got carjacked" and he "[wouldn't] say anything." Defendants left in the car and Obregon went to a nearby house to seek help. Getting no response, he ran to a Circle K store a half block away. Police and paramedics soon arrived and treated Garcia, who had bullet holes in her breasts and chin. Garcia survived, but the incident changed her
e. Victim Impact Evidence
Maria de Los Angeles Calvo, the mother of victim George Flores, testified he was the youngest of her four children. He was happy and friendly, much loved by family and friends, and enjoyed baseball and family gatherings. He wanted to study electronics. Attending George's funeral was the saddest, most difficult thing she ever had to do. Many things continued to remind her of
Vivian Gonzales described her son, John Diaz, as a loving and caring man. He had a daughter and was planning to marry. She heard the gunshots that killed her son, and his cousin came to tell her John had been shot. She saw her son lying on the grass, dying. She wanted to go to him and hold him but could not bear to watch him die. Attending his funeral was heartbreaking. Because visiting his grave is too sad, she made a garden and finds comfort there in her memories of him. She no longer celebrates Christmas. She is always angry and sometimes doesn't even want to get out of bed.
Neither defendant presented evidence at the penalty phase.
II. DISCUSSION
A. Jury Selection Issues
1. Trial Court's Refusal To Ask Prospective Jurors if They Would Always Vote for Death if a Defendant Were Convicted of Multiple Murders
Defendants contend the trial court deprived them of their right to a fair trial and impartial jury by rejecting a joint defense request that the juror questionnaire ask whether, if jurors found a defendant guilty of five murders with special circumstances, they would always vote for the death penalty. The court expressed concern that the question as phrased would cause prospective jurors to prejudge the evidence. It suggested asking, "If you found a defendant guilty of five murders, would you always vote for death and refuse to consider mitigating circumstances (his background, etc.)?" The prosecutor and counsel for Flores agreed to the modification. Counsel for Amezcua did not object, and the question was included.
Defendants acknowledge the trial court's wide latitude in conducting voir dire, including in the choice and format of questions to be asked. (
People v. Landry
(2016)
In
Morgan v. Illinois
(1992)
The original defense question sought to identify jurors who would always vote to impose the death sentence if they convicted defendants of five murders. Defendants cite
People v. Cash
(2002)
The argument fails. The modification eliminated a reference to special circumstances, which the court was concerned prospective jurors would not understand. It asked whether the juror would refuse to consider mitigating evidence. Such an inquiry is generally relevant to uncovering prejudgment of penalty in a case involving multiple murder. The modified question did not ask how
2. Excusal of Prospective Juror for Cause
Defendants contend that the trial court erroneously excused a prospective juror who expressed reservations about the death penalty but said she could vote for death if the aggravating evidence were strong enough. The error, they claim, violated their rights to a fair trial, an impartial jury, and a reliable penalty determination under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution.
a. Jury Selection Procedures
The questionnaire here included the following questions:
"Are you so strongly opposed to the death penalty that you would always vote for life in prison without the possibility of parole and never vote for death for a defendant convicted of first degree murder and a special circumstance?"
"Are you so strongly in favor of the death penalty you would always vote for death and never vote for life in prison without the possibility of parole for a defendant convicted of first degree murder and a special circumstance?"
"Are you so strongly opposed to the death penalty that you would always vote against death regardless of what evidence of aggravation or mitigation is presented?"
"Are you so strongly in favor of the death penalty that you would always vote for death regardless of what evidence of aggravation or mitigation is presented?"
"In a penalty phase, would you want to hear evidence of aggravation and mitigation?"
"In a penalty phase would you always vote for death, regardless of the mitigating evidence?"
"In a penalty phase would you always vote for life, regardless of the aggravating evidence?"
"Will your feelings about the death penalty impair your ability to be a fair and impartial juror in this case?"
Before voir dire examination, the court instructed, "Jurors who would never impose
Prospective Juror No. 74 wrote in her questionnaire that she had "no opinion one way or the other" about the death penalty, but "I just don't want to be the one to decide; I wouldn't choose to kill someone." She had never held a different opinion on the question. When asked in the questionnaire "Are you so strongly opposed to the death penalty that you would
always
vote for life in prison without the possibility of parole and never vote for death for a defendant convicted of first degree murder and a special circumstance?" she answered, "Yes." But in response to the question "Are you so strongly opposed to the death penalty that you would
always
vote against death regardless of what evidence of aggravation or mitigation is presented?" she answered, "Unsure." When asked, "In a penalty phase would you
always
During questioning by the trial court, Prospective Juror No. 74 initially categorized herself as "pretty much a three," but said, "It would have to be for me to put someone to death, the aggravating evidence be a lot and there would be like no mitigating evidence. So it's a good chance that I am a three." The court asked, "Well, but are you saying that you could put somebody to death?" Prospective Juror No. 74 replied, "It would have to be really harsh circumstances." The court said, "That is all right. It's up to the People to persuade you. [¶] I am saying that number threes are people who say, Judge, I know myself, I could never, regardless of what the evidence was, put somebody to death. [¶] Are you that person?" Again, she equivocated: "Well, I could be a four with three tendencies." The court replied, "Yes,
During questioning by counsel for Flores, Prospective Juror No. 74 acknowledged that in the penalty phase she would lean toward life instead of death, "but if I thought the aggravating was enough, then you know it would be hard, but I could make the decision."
Both the federal and state constitutions guarantee criminal defendants the right to trial before an impartial jury. (
Duncan v. Louisiana
(1968)
Defendants contend that Prospective Juror No. 74's questionnaire responses reflected a juror without a fixed opinion regarding the death penalty, but one with concerns about herself returning a verdict that would end someone's life. In urging error, they rely on statements she made during voir dire characterizing herself, in the trial court's taxonomy, as a "category number four" juror, one who would "lean towards ... [life] instead of death," but could vote for death, even though "it would be hard," if she "thought the aggravating was enough."
9
They observe that it was
Prospective Juror No. 74 gave equivocal and conflicting answers throughout the process. She obviously thought about her own views and did her best to explain them. Her final reply to the prosecutor's question constituted substantial evidence on which the trial court could base its excusal. (
People v. Fuiava
(2012)
B. Guilt Phase Issues
1. Courtroom Security
Defendants contend their rights to a fair trial, presentation of a defense, and the
At the start of jury selection, there were eight uniformed deputy sheriffs in the courtroom. Counsel for Amezcua objected, saying, "I think that it's onerous. I think that this is a difficult enough case without having the impression that would be left by having so many sheriff[']s deputies sitting in the courtroom throughout this trial, so I would object to the number of sheriffs that are here. [¶] My understanding is that neither of these gentlemen, Mr. Amezcua or Mr. Flores, have acted up in court and that at this point, there is no reason for that kind of a security detail to be present in front of the jury." Counsel for Flores joined in the objection. The court replied, "I normally leave security issues up to the bailiffs, to the experts. I feel that in this case, given that there have been a number of incidents at the jail, that there is understandably some concern above that present in most cases. I will watch the issue. [¶] I feel that I am going to allow the number of bailiffs to remain for today. I feel that this is going to be very quick. The jurors are going to be in and out in a matter of minutes. [ 10 ] I will give some additional thought to the number of bailiffs that are necessary, but given the fact that we have two defendants, we have had a number of incidents at the jail, I think it's important for us to have what the security people call a show of force. [¶] My thought is that once we get going with the trial, and I do expect that there will be no problems. I think that Mr. Amezcua and Mr. Flores have conducted themselves in a very appropriate manner at all times with this court, and I think that once we get going, that the sheriff will see that there is probably not the need to have such a number of bailiffs, but your objection is noted for the record."
Counsel for Amezcua noted that both defendants were belted to their chairs with one hand cuffed to their belt, and expressed
"We begin with the familiar principle that a 'trial court has broad power to maintain courtroom security and orderly proceedings. [Citations.]' [Citation.] For this reason, decisions regarding security measures in the courtroom are generally reviewed for abuse of discretion. [Citations.] [¶] However, despite our traditional deference to the trial court in this area, some extraordinary security practices carry an inordinate risk of infringing upon a criminal defendant's right to a fair trial. These exceptional practices must be justified by a particularized showing of manifest need sufficient to overcome the substantial risk of prejudice they pose. For example, visible physical restraints like handcuffs or leg irons may erode the presumption of innocence because they suggest to the jury that the defendant is a dangerous person who must be separated from the rest of the community. [Citations.] ... In addition to their prejudicial effect on the jury, shackles may distract or embarrass a defendant, potentially impairing his ability to participate in his defense or serve as a competent witness on his own behalf. [Citations.] ... [¶] Because physical restraints carry such risks, the United States Supreme Court has long considered their use inherently prejudicial. [Citations.] Thus, a criminal defendant may
In
Holbrook v. Flynn
(1986)
Defendants contend the trial court abused its discretion by deferring to the
Defendants argue that because the enumerated incidents occurred several years before the start of trial and none reflected courtroom misbehavior, they fail to support the court's ruling. They point out that the judge described their conduct during court proceedings as "very appropriate." But it is settled law that a defendant's violent custodial behavior can support a court's exercise of discretion to order extra courtroom security. (See, e.g.,
People v. Lomax
(2010)
The cited incidents of violent or nonconforming custodial behavior are likewise a particularized showing of manifest need for physical restraints. There was no abuse of discretion in the trial court's shackling order. (
People v. Stevens
,
supra
,
Even if defendants could establish an abuse of discretion, the record fails to reflect any prejudice, defendants' generic assertions to the contrary notwithstanding. (See
People v. Hernandez
(2011)
2. Admission of Autopsy Results
Defendants were convicted of the first degree murder of Arturo Madrigal during a drive-by shooting for the benefit of a criminal street gang. ( §§ 187, subd. (a), 190.2, subd. (a)(21), 186.22, subd. (b)(1).) A deputy medical examiner other than the one who performed the autopsy testified as to the results. Defendants assert the testimony violated their right of confrontation under the Sixth Amendment.
Madrigal was shot and killed on May 25, 2000. Two days later, Dr. Carrillo performed an autopsy, and wrote a report concluding that Madrigal died from a homicidal gunshot. Dr. Carrillo was away from the office during trial because his wife had just had a baby. In his stead the prosecutor called Dr. Lisa Scheinin, a medical examiner in the same office. Dr. Scheinin described Dr. Carrillo's observations and conclusions about wounds and the trajectory of the fatal bullet, as recorded in his autopsy report. The report itself was not admitted into evidence.
"The Sixth Amendment's Confrontation Clause provides that, '[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.' " (
Crawford
,
supra
,
However, we need not address the question in depth because any error here was harmless. (
Chapman v. California
(1967)
On January 7, 2002, the trial court granted defendants' requests to represent
Defendants contend that the statements should have been excluded under Penal Code section 1192.4 and Evidence Code section 1153 because they were part of settlement negotiations. Their suppression motion below did not assert this ground. Instead the defense relied on three other grounds not renewed here. Their appellate claim is thus forfeited. ( Evid. Code, § 353, subd. (a).) It also lacks merit. 14
Evidence Code section 1153 provides that "[e]vidence of a plea of guilty, later withdrawn, or of an offer to plead guilty to the crime charged or to any other crime, made by the defendant in a criminal action is inadmissible in any action or in any proceeding of any nature, including proceedings
We assume without deciding that the rule extends to mere admissions made during plea negotiations, as opposed to withdrawn pleas or offers to plead. Even so, defendants' statements do not fall under section 1192.4 because they were not made in the course of any plea negotiations. Settlement of the case was never on the table. Defendants were seeking to take credit for several uncharged murders and other crimes they had committed so that they could be tried, convicted, and sent to death row. They asked only that the prosecutor exert efforts to see they received
It is true, as defendants observe, that the subject of a non-life sentence arose during the February 21 conversation. After discussing discovery and the upcoming preliminary examination, Flores alluded to an offense (the Diaz killing) that law enforcement evidently had not yet tied to defendants. Prosecutor Levine asked defendants, "Why do you want me to make all these murders on you? I don't get it." Flores replied, "Because I enjoy staying here ...." Levine went on jocularly: "You don't have a thing for me or anything?" Flores responded, "Nah, nah, we just - we think you're cool, you know. And then after the trial we'll give you another one." Levine asked, "You can give me another murder that you did?" Flores replied, "Another one." Levine asked why. Flores answered, "Why not?" Evidently testing their sincerity, Levine reminded defendants of an earlier conversation: "When you came to me - remember last time you said to me 'give me - give me the 50 years.' [¶] ... [¶] And without the 'L [a life sentence].' [¶] ... [¶] I don't think you want the death penalty. You said that." Flores answered, "I'm gonna help. If you give me 50 years without the 'L,' I can get married and get a bone yard visit. [¶] ... [¶] But if you give me the 'L,' I have no sex." Levine said he understood the point, but firmly rejected any suggestion he
After Levine's assurance that he would pursue a death sentence, defendants continued to make statements. They shifted to diverse topics, mentioning their other criminal activities and philosophy, and a recipe for pruno [jail-made alcohol]. Eventually, Amezcua said, "Okay if we talk about these murders, right, that we did," and "Can we talk about restitution?" Flores said, "See, that's what we wanna do. Okay, we're gonna get a lot of restitution. We'll give you a murder if [you] drop our restitution, so it'll only be 200 instead of a whole (
unintelligible
) of restitution, which we'll never be able to pay." Defendants explained to Levine that death row inmates have restitution deducted from their books [money that can be spent in prison]. Flores commented, "Our thing is this, see, if we buy a TV, we're gonna have to pay restitution." He elaborated: "So, now I'm going to death row, something different, something new, right? And I
After further discussion of defendants' criminal activities, Flores again urged a $200 restitution fine. He said they had now admitted three murders and could reveal two more. Levine asked, "[W]hy are you giving it to me? [¶] ... [¶] And ... that doesn't bother you that I'm gonna use that against you[?]" Amezcua replied, "We know that already." Flores said, "We don't care. The whole thing is, we want death, right?"
During the March 28 conversation, Levine observed that "a number of times in court you guys have said that you wanted us to come talk to you about some cases and maybe work out something, either with regard to, uh, restitution issue ...." Amezcua and Flores agreed. Both defendants confirmed they understood that "all this stuff" discussed during their conversations could be used against them; that they could have an appointed lawyer present; and that they did not have to speak with Levine. They agreed that Levine and Kerfoot were present at their request and that they wanted to speak with them. Flores's only expressed concerns were that the record be clear that each defendant incriminated himself alone and that the prosecution would not "go after" Barber or Flores's mother. The conversation turned to a crime committed in Redlands, and Flores raised the possibility that defendants would admit to two more murders. Amezcua asked, "So how much of a guarantee can we have on the restitution though?" Levine told defendants the decision would be up to the judge, but he would use his best efforts to persuade the judge to order $200 in restitution fines. Defendants raised the fate of Katrina Barber. Levine said he would push for a state prison sentence that would allow her to be released immediately based on time
The February 21 and March 28 conversations never involved a potential plea to any of the offenses or allegations ultimately charged in this case. Defendants' argument to the contrary relies on the reference to their earlier exploration of a 50-year non-life sentence. Levine promptly rejected that option and defendants never again alluded to it. Nonetheless they continued to disclose information about other offenses. Defendants contend that because they were seeking resolution of "aspects" of the case, specifically restitution, this court should read Evidence Code section 1153 and section 1192.4 broadly and accord them the benefit of the exclusionary rule. We decline the invitation. Defendants would not plead to a death sentence and the prosecutor would offer nothing less. The public policy embodied in section 1192.4 and Evidence Code section 1153, which favors "the settlement of criminal cases without the necessity of a trial" (
People v. Wilson
,
supra
,
Defendants contend the trial court erred in giving the jury former CALJIC No. 3.00, which told them that each principal involved in the commission of the crime, whether as a direct perpetrator or an aider and abettor, is "equally guilty" of the offense. Neither Amezcua nor Flores objected or requested any modification of the standard language. Nonetheless, section 1259 allows us to reach the merits of any claim of instructional error that potentially affects a party's substantial rights. (
People v. Johnson
(2016)
Amezcua raises the CALJIC No. 3.00 issue in connection with his conviction as an aider and abettor in the Diaz and Madrigal murders and the attempted murder of Fernando Gutierrez during the Madrigal killing. As noted, Flores was the actual killer in those instances. Diaz was killed by nine-millimeter gunfire while riding on the handlebars of a bicycle pedaled by Paul Gonzales. Gonzales identified Flores as the shooting passenger in a black SUV that made two U-turns to drive past the bike. He did not identify
As to the Madrigal killing, evidence showed the victim was parking his Chevrolet Blazer when a car stopped alongside and someone yelled, "Where you from?" Madrigal's passenger, Gutierrez, said, "We're not from nowhere." Gutierrez told police there were four Hispanic men with shaved heads in the car and the passenger shot Madrigal. The fatal bullet was a nine-millimeter. During discussions with the prosecutor, defendants spoke of a shooting involving a Blazer. Flores said he shot the driver in the face and neck, and that the passenger ran. Amezcua agreed. Asked the reason for the shooting, Amezcua said, "He was a gang member, man," and described the act as "a vandal type of thing. You're driving around your neighborhood looking for people to kill."
Flores raises the CALJIC No. 3.00 issue in connection with his conviction of the George Flores and Reyes murders, in which Amezcua was the actual killer. Briefly, the prosecution's evidence at trial showed that defendant Flores was riding in a stolen Toyota driven by Katrina Barber. Defendant
Defendants correctly observe that, contrary to a possible implication of former CALJIC No. 3.00, an actual killer and an aider/abettor are not always guilty of the same offense. Rather, in a homicide
Here the prosecution sought to prove murder under theories of premeditation, lying in wait, and drive-by shooting. Defendants contend that as to each theory, the evidence did not clearly show that the aider/abettor shared the direct perpetrator's mens rea. Consequently, the unmodified CALJIC No. 3.00 could potentially have misled the jury into convicting the aider/abettor without making the requisite factual findings. The contention is unpersuasive.
Because the circumstances of this case reflected the defendants' joint participation in the offenses at issue with the required intent to kill, the trial court did not err in giving the jury the unmodified CALJIC No. 3.00. Neither the evidence nor any theory of defense argued at trial or cited in the briefs suggested that Amezcua and Flores entertained different states of mind rendering them guilty of different crimes. In relevant portions of statements to the prosecutor, both defendants admitted to the Diaz and Madrigal killings. Flores explained that the motivation for those offenses was "territorial" and that, by committing them, they were trying to instill fear in other gangs. The attempted murder of Fernando Gutierrez in the same incident as the Madrigal killing is indistinguishable in the relevant respect. The Mayorquin and George Flores murders fit a similar pattern of a shooting done for gang-related purposes and can be analyzed similarly for purposes of the current claim of error. The Luis Reyes murder was factually a bit different. Reyes was a fellow member of ESBP, defendants' own gang. Flores did ask Amezcua "[w]hat are you doing that here for?" But almost immediately thereafter Flores urged Katrina Barber to "run [Reyes] over" with the Monte Carlo, evidencing his own intent to kill Reyes. Reyes was still alive when defendants left the scene. The evidence thus amply supported an inference that defendants shared the same intent with respect to each of the charges, and for that reason no modification of the instruction was warranted.
Other instructions, moreover, reinforced the requirement that the jury find the intent-to-kill element proven in order to convict of murder or attempted murder on a theory of aiding and abetting. CALJIC No. 3.01, as given in this case, provided that "[a] person aids and abets the commission of a crime when he or she: [¶] (1) with knowledge of the unlawful purpose of the perpetrator, and [¶]
5. Prosecutorial Misconduct in Inviting Jury to View the Case through the Victims' Eyes
Defendants contend prosecutorial misconduct deprived them of due process and a fair trial. They assert that the prosecutor made an improper appeal to jurors' sympathy for the victims during guilt phase closing argument. The prosecutor expressed concern that jurors would find themselves benumbed by the evidence of so many murders, arguing: "My concern, and I will just tell you right now here my concern is okay, you see one murder. You look at that, wow. You see two murders, wow. [¶] Three, wow. [¶] Four, then the fifth murder you see and you start to think, wow, people really do this. This isn't a movie. This is not a movie. This is not a television show, but what worries me is over time, you can get what? More pictures you look at it, the more you can get numb to it." The prosecutor reminded the jurors to "remember what justice is." He continued: "Remember what it must have been like to be one of their victims being shot and choking and trying to get your last breath out while your blood is gurgling in your lungs. What it must be like to be one of those people." Turning to Amezcua's actions on the Santa Monica Pier, specifically the assault on Jing Huali, the prosecutor said: "What do we know? Jing Huali, while she was laying down, the defendant shot her. An assault with a firearm. I point a loaded gun at your head, the assault is complete. That's it; it's done. You do not have to fire. [¶] I put my left arm around and I put a gun to your head, a loaded gun, completed, done, proven. I bet you would feel assaulted if someone had a loaded gun pointed at your head. [¶] She was shot."
Preliminarily, defendants failed to object to the prosecutor's remarks and did not request a jury admonition. Consequently, they forfeited their misconduct claims. (
People v. Hinton
(2006)
Were this court to reach the merits of the claim, it would appear the argument crossed the line of impropriety. "The standards governing review of misconduct claims are settled. 'A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions
The remarks here constituted but a brief part of the argument, however, and the evidence of defendants' guilt, including their own admissions, was overwhelming. Accordingly, there is no reasonable probability the impropriety affected the guilt verdicts. (
People v. Pearson
,
supra
, 56 Cal.4th at pp. 441-442,
C. Penalty Phase Issues
1. Trial Court's Acquiescence in Defendants' Refusal To Allow Their Counsel To Present Penalty Phase Defense
The day before closing guilt phase arguments, defendants and their four counsel asked to meet with the court in camera. A transcript of the closed hearing covers 24 pages. Counsel told the court that each client had informed them repeatedly and emphatically that they did not want any defense presented should there be a penalty phase. We summarize that hearing in some detail.
Counsel for Amezcua reported that "throughout my representation," his client instructed that he did not want his family called as witnesses. He "has expanded that now ... he does not wish me to put on any defense, any witness in the course of the penalty phase." Amezcua agreed that counsel
The court asked if it should discuss the situation with each defendant separately. Counsel related both defendants and their lawyers had discussed the question together in the last day or two and that both defendants wished to confer with the court together.
Counsel for Flores reported that his client had the same intention. Counsel had reviewed the penalty-phase evidence he had prepared and had "explained it all to him." "I have told him we have a much better chance of avoiding the death penalty" by presenting mitigating evidence. Counsel had three family members and three experts prepared to set out nine points in mitigation. 15 After that explanation, Flores had said, " 'No, I don't want that. I don't want my parents involved. I want no witnesses on my behalf. Period.' "
The court asked Amezcua's counsel to summarize the mitigating evidence he was
The court explained to both defendants that it wanted "to make sure that it is very clear as to what [each] defendant wants" and said it would ask both of them "what it is you really want here." "It's also important for me to establish that your decision is knowing and voluntarily made."
It went on to explain, "I am also charged with the responsibility of trying to persuade one or both of you to change your mind, to encourage you to consult further with your attorney before making any final decision." The court told defendants that "a decision not to put on mitigating evidence could result in a verdict of death" and would "not be a basis for a reversal of that verdict." The judge was going to talk first with defendants together, and then separately, "just to make sure that one is not influencing the other." The court heard from Flores first.
Turning to Amezcua, the court asked: "Tell me in your own words what it is you are thinking." Amezcua replied: "I don't want nobody up there crying on my behalf, when I didn't think about them when I was out there. ... I care about them but that's my own personal thing." Told by the court that he "might very well get the death penalty," Amezcua replied: "I fully understand; right?" "Mr. Perlo and Mr. Miller [his counsel] have a done a great job in defending me. ... [¶] I talked to them and his investigators, whoever, right? And, to tell you the truth, I feel bad for not letting him do his job to the extent I hog-tied him the whole way. ... If he would have done that, I would have gone pro per."
Returning to defendant Flores, the court asked if he had any questions about what mitigating evidence was available. It reminded him that "your counsel have worked hard and have developed evidence they would like to present. You understand that?" Flores responded: "Oh, yeah," and added, "[T]hey did a great job in that."
The court told Amezcua: "You understand that your counsel have put together some information, a lot of information." He replied: "I just want really to absolve him from any lack of effort on his behalf. ... It's been my choice from way before, I mean, I ever got arrested. I understood my actions would get me to this point in life way before I ever got arrested."
The court asked both defendants if they had heard of the phrase "suicide by cop," and each confirmed he had. The court said, "[M]y fear is that's kind of what you guys are doing here." Flores rejected the notion: "I understand your feeling. I understand what you are saying. ... But my thing is I feel if I do get death, more than likely I will die on death row by natural
Asked if he intended "suicide by cop," Amezcua responded, "No, because I will tell you the reason why it's not. Because the day that I got arrested I had
Flores elaborated: "I don't want to die. If I want to die where I'm at, I'd kill myself. ... But my thing is if I do go to death row, I am going to get a way better appeal action. ... And if I go to death row, I believe there's some technicalities in my case that maybe one day with [a lawyer's] assistance with little words or something, that they will get me back out, and I may be old, but I believe I will be back in a level four one." 16
The court asked if their decision was based on concerns for their safety in prison. Amezcua said: "Never been." Flores: "No, never." The court then said: "And you both understand that if you get a death verdict, you know that this is not going to be a grounds for reversal." Flores responded they were "giving that piece only up," but that all other grounds for appeal were open. The court reminded them that they had the right to testify and ask the jury to impose a death sentence. It clarified that it was not encouraging them to do so and would, in fact,
The court ended the discussion by saying: "The main thing is to say this: You are in control of the evidence that is offered at a penalty phase; okay? [¶] You seem to know that already, but that is the law. And even though [defense counsel] have prepared and want to put on the mitigating evidence and they want to argue to the jury that you should not get the death penalty, you are the controlling person and you can say 'no, I don't want you to put that evidence on.' "
The court began the separate conversations with Flores and his counsel. It noted that the prosecutor had said Flores could have been a lawyer and the court said it had been impressed with his intelligence. It complimented him on his affection for reading and mentioned two books by a defense lawyer describing his courtroom work. It reminded him that, even if he were incarcerated for life he could help other inmates and do other worthwhile things in prison. It urged Flores to think more about his decision while the jury was deliberating on guilt. It reminded him that the presentation of mitigating evidence might make a big difference. The court asked Flores whether he had any questions.
Amezcua told the court, "I thought about it for five years. ... And I allowed Mr. Perlo to do his extensive research on my past." He assured the court it need not be concerned. The court reminded him that he would have additional time during guilt deliberations to reconsider his choice. Amezcua replied: "I could have saved you the time and trouble down the road. I am not going to sway from my decision."
The next morning the court met with all defense counsel and both defendants. It asked Flores and Amezcua if they had had a chance to think about the previous day's discussion and whether either had changed his mind. Each defendant confirmed he had thought about the question and his mind was unchanged. Both defendants confirmed they wanted no mitigating evidence presented, no prosecution witness cross-examined, and no argument made on their behalf. Amezcua offered to put his wishes in writing, but the court replied that the written transcript would serve that purpose. The court went on to discuss the case of
People v. Sanders
(1990)
The court read excerpts from the Sanders opinion and explained again that, based on that precedent, counsel on appeal could not argue it was error for the defense not to argue, present evidence, or cross-examine. Flores responded: "I am fully aware I am giving up our appeal action." Asked if he had any questions about what was being said, Amezcua replied, "None."
Amezcua and Flores rely on the principle that when a defendant elects to be represented by counsel, he has no right to control the attorney's strategic and tactical decisions regarding the defense, including requests for jury instructions. (
People v. Hamilton
(1989)
Defendants' arguments are unpersuasive. Thirty years of precedent, beginning with
Bloom
,
supra
,
McCoy v. Louisiana
(2018) --- U.S. ----,
The record clearly demonstrates defendants' objective in this case. The court engaged in extensive and careful colloquy with defendants and their counsel to ensure that each defendant understood the stakes involved in pursuing his choice. It ensured each defendant had the benefit of
2. Instruction that Death Is a Greater Punishment than Life Imprisonment without the Possibility of Parole
During voir dire, the trial court instructed prospective jurors that death is a greater punishment than life imprisonment without parole: "The law says life without parole is a lesser sentence. It's less serious than death. Many of you said [in questionnaire responses], My God, I'd rather be dead than spend my
Acknowledging that several of this court's decisions support the trial judge's ruling (see, e.g.,
People v. Tate
(2010)
D. Constitutionality of the Death Penalty Law
Defendants contend that many features of California's capital sentencing scheme, alone or in combination with each other, violate the federal Constitution. They acknowledge that this court has rejected similar claims but assert
In
People v. Anderson
(2018)
Regarding defendants' specific challenges, we adhere to views previously expressed. Thus:
The special circumstances set forth in section 190.2 adequately narrow the class of murderers subject to the death penalty. (
People v. Thomas
(2011)
Section 190.3, factor (a), does not permit the arbitrary and capricious imposition of the death penalty. (
People v. Virgil
(2011)
The death penalty law is not unconstitutional because it does not require unanimous jury findings, beyond a reasonable doubt, that particular aggravating factors (other than prior criminality) exist or that jurors all agree on which aggravating circumstances outweigh those in mitigation. (
People v. Salazar
(2016)
" 'Written findings by the jury are not constitutionally required.' " (
People v. Salazar
,
supra
,
The absence of a requirement of intercase proportionality review does not violate the Eighth Amendment. (
People v. Thompson
(2010)
"[T]he jury's consideration of unadjudicated criminal conduct pursuant to section 190.3, factor (b), does not offend the Fifth, Sixth, Eighth, or Fourteenth Amendments to the federal Constitution or analogous provisions of the California Constitution." (
People v. Young
(2005)
The inclusion in the list of potential mitigating factors of such adjectives as "extreme"
The trial court was not required to instruct that certain sentencing factors (specifically, section 190.3, factors (d), (e), (f), (g), (h), and (j) that are introduced by the phrase " 'whether or not' ") are relevant only as potential mitigators. (
People v. Mendoza
(2011)
The California sentencing scheme does not violate the equal protection clause of the Fourteenth Amendment by denying capital defendants certain procedural safeguards afforded to noncapital defendants. (
People v. Johnson
,
supra
,
California law does not violate international norms, and thus contravene the Eighth and Fourteenth Amendments, by imposing the death penalty as regular punishment for substantial numbers of crimes. (
People v. Merriman
(2014)
E. Cumulative Error
Amezcua, joined by Flores, contends that errors in his trial, even if not sufficiently prejudicial to require reversal of the judgment when considered individually, do warrant reversal when assessed cumulatively. We have concluded any error in the prosecutor's guilt phase closing was harmless, as
III. DISPOSITION
The judgment is affirmed.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
O'ROURKE, J. *
Notes
Penal Code sections 187, 190.2, subdivision (a)(3), (21). Further undesignated statutory references are to the Penal Code.
Sections 664, 187.
Section 210.5.
Section 4502, subdivision (a).
Section 186.22, subdivision (b)(1) provides an enhanced sentence for certain offenses if they are committed "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members."
The jury found defendants not guilty of several other charges and was unable to reach verdicts on yet other charges, as to each of which the court declared a mistrial.
Defendants spoke to the prosecutor on February 8 and 21 and March 28, 2002, when they were representing themselves. The circumstances of those conversations are set out in greater detail at pages
At the time she testified, Barber was in state prison. She had pled guilty to shooting at an inhabited dwelling during this incident.
The court admonished the jury to consider Flores's comments only against himself. Other evidence showed that ESBP member Paul Ponce was nicknamed Vago. Defendants were charged with Ponce's murder and related allegations, but because they were acquitted of those charges, we briefly summarize the evidence. On June 7, 2000, Katherine Schafer and Paul Ponce were in his garage when they heard knocking at the front door. A closed-circuit video monitor showed a car parked in front of the house. Ponce left the garage to answer the door. After about 10 seconds Schafer heard numerous gunshots in quick succession. Several minutes later she found Ponce's body in the living room. Ponce, who had "Bolen" tattooed on his back, had been shot many times by .22-caliber and nine-millimeter weapons. The parties stipulated that on the day of the homicide, Schafer told a deputy sheriff that she had heard a vehicle drive up and seen a male subject come up to the front door. Ponce went to the door. As soon as he opened it Schafer heard gunshots.
While we do not endorse a taxonomy like the one employed in this case, we recognize that it may be a helpful starting point for determination of a prospective juror's qualification to serve, provided the court, as here, supplements it with follow-up questions.
The day's session included introductions, distribution of questionnaires, preinstructions, and some hardship excusals, but no voir dire.
Defendants contend that the omission was ineffective assistance of counsel. (See
Strickland v. Washington
(1984)
The same reasoning obviates any need to discuss
People v. Sanchez
(2016)
"In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself - i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying
exclusively
upon the extrajudicial statements, confessions, or admissions of the defendant." (
People v. Alvarez
(2002)
Defendants contend that because they were "unrepresented" during the conversations, prosecutor Levine should be held to a "higher standard," and should have advised defendants of the exclusionary rule regarding statements made in the context of settlement negotiations. Under this "higher standard" defendants should not be held to have forfeited review. Setting aside the questionable assumption that a prosecutor has an obligation to provide legal advice to defendants who have exercised their Faretta rights, the contention is unavailing; defendants had given up their pro per status more than a year before their appointed counsel moved to suppress the February 21 and March 28 statements. We review the claim based on the actions and decisions by counsel in pursuing their objections.
Testimony would address parental criminality, drug abuse, rejection, and neglect; family instability and poverty; Flores's exposure to domestic abuse; and his asserted learning disabilities and head injuries. An expert would also describe conditions of incarceration.
Level four refers to the inmate classification housing system, a level at which Flores had been held before.
Associate Justice of the Court of Appeal, Fourth Appellate District, Division One, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.