THE PEOPLE, Plаintiff and Respondent, v. LEE SAMUEL CAPERS, Defendant and Appellant.
S146939
IN THE SUPREME COURT OF CALIFORNIA
August 8, 2019
San Bernardino County Superior Court FBA06284
Justice Chin authored the opinion of the Court, in which Chief Justice Cantil-Sakauye and Justices Corrigan, Liu, Cuéllar, Kruger, and Groban concurred.
PEOPLE v. CAPERS
S146939
Opinion of the Court by
A San Bernardino County jury found defendant Lee Samuel Capers guilty of the first degree murders of Nathaniel Young and Consuelo
After a penalty trial, the jury returned a verdict of death.2 The court denied the automatic motion to modify the verdict and imposed a judgment of death. (
I. The Facts
A. Guilt Phase
1. Overview
The evidence showed that on Monday, November 9, 1998, defendant and three accomplices entered the Barstow T-shirt shop owned by married couple Nathaniel and Consuelo Young, robbed the store, shot and killed Nathaniel, and raped and beat Consuelo before killing her. They then set fire to both victims’ bodies.
Defendant cross-examined prosecution witnesses, but рresented no evidence of his own.
2. Prosecution Evidence
Nathaniel and Consuelo, who had been married for seven years, opened a T-shirt store in Barstow called “T‘s Galore ‘N More” in 1998. Consuelo typically managed the store because Nathaniel worked on the Marine Logistics Base nearby.
Ramon Tirado lived behind the T-shirt shop and had known defendant and defendant‘s half-brother Anthony Leatham for years. Leatham and two other
On Monday November 9, 1998, Nathaniel did not arrive for his scheduled shift at the base; he had never missed work without first calling. After he missed work the next day, Margaret Carter, the base‘s comptroller, became concerned. She called his home and left a message on his answering machine. She then asked a superior what to do about her concern. He told her to call the Barstow Police Department and request a welfare check, which she did.
At the same time Margaret called the Barstow police, two of Nathaniel‘s colleagues at the base, Loretta Becknall and Nancy Derryberry, went to the T-shirt store to check on him. They сould not see inside the store because soot covered the windows. The colleagues notified Margaret that there might have been a fire at the store. Margaret again called Barstow police and also spoke to Bonnie Hulse, an investigative assistant for the Criminal Investigation Division of the Marine Corps. Margaret was told to call the Provost Marshal, who had jurisdiction over the military base. The Provost Marshal‘s Office notified the Barstow Fire Department.
On Tuesday, November 10, 1998, Barstow Fire Department personnel inspected the victims’ T-shirt store for signs of a fire. Salvatore Carrao, the Barstow Fire Department Division Chief, and Fire Engineer Steve Ross noticed heavy black soot on the inside of the store windows. They checked the front door, but it did not open. They checked the back door, which was unlocked, and Carrao opened it to look inside. He immediately saw two corpses and concluded there had been a fire inside. He closed the door, called law enforcement, and secured the store.
Law enforcement soon arrived. Barstow Police Sergeant Andrew Espinoza and criminalist Randy Beasley entered the building. There thеy found five .45-caliber bullets and only one bullet casing. They also found a trash can that contained blood, water, and a bloody mop. Taken together, Beasley believed these items strongly suggested that someone had attempted to clean up a crime scene. Beasley found a pair of women‘s panties in a toilet that had been cut straight across, from one leg hole to the other. Beasley also found a wallet and a purse next to each other. The wallet, which belonged to Nathaniel, contained no money or credit cards. Consuelo‘s purse also contained a wallet, which, like Nathaniel‘s held no money. One of the bodies, tentatively identified as Nathaniel‘s, was stained with blood, and duct tape had been wrapped around its throat and neck. The body was partially burned.
Fire inspection specialist Rita Gay was also on the scene. She believed the fire to have been a “slow burn” that did not immediately flame up but
Law enforcement personnel identified the second body as likely belonging to Consuelo. Her body had been largely consumed by the fire; much of her remains consisted of ashes and bones. They also discovered a large amount of blood and two metal golf clubs covered in blood. They noticed human hair on the golf clubs and deemed it to have come from Consuelo‘s head because she had wavy hair while Nathaniel‘s was more tightly curled. Catherine Wojcik, a sheriff‘s department criminalist, later compared the hairs found at the crime scene with the hair of both victims. Wojcik determined that the two hairs found on the golf club were similar to samples of Consuelo‘s hair, though she could not say definitively that they came from Consuelo. She determined Nathaniel was not the source of the two hairs.
Arson investigators later concluded the perpetrators had started two fires, each originating on the body of the two victims. A thick greasy substance was observed on the floor adjacent to the bodies; investigators concluded it might have been the victims’ melted body fat.
Charlene Garcia, Nathaniel‘s daughter, cleaned out the T-shirt store. She informed the police that Nathaniel‘s gun was the only item she found missing.
Forensic pathologist and deputy medical examiner Dr. Steven Trenkle performed autopsies on both bodies. He testified that Nathaniel had been shot at least four times, and that his body contained eight entrance and exit wounds and had been moderately charred by fire. One bullet had cut through the brain stem and lodged in the base of the skull, and another went through the neck and severed the first cervical vertebrae underneath the skull. None of the injuries were consistent with having been struck with a metal golf club. Dr. Trenkle concluded Nathaniel died as a result of multiple gunshot wounds to the head, neck, and chest.
Dr. Trenkle explained that Consuelo had suffered extensive blunt force trauma and that her body had been significantly burned. As noted, much of her body had been consumed in the fire. The blunt force trauma had shattered the skull and facial bones. Dr. Trenkle concluded Consuelo died as a result of multiple blunt force heаd injuries. He could not be certain whether Consuelo was alive when her body was burned.
Lisa Martin became acquainted with defendant a month after the murders. She let defendant stay at her home. During his stay, defendant mentioned four or five times how he killed a man and woman in Barstow. Defendant described how he personally shot the man, poured gasoline on both victims, and lit them on fire. He told Lisa that the woman begged and screamed for her life and that he thought it was funny. He also told her that he committed the crimes with his younger half-brother, Antonio Leatham (whom he called “Eagle“). Lisa testified that defendant kept the lighter he used to set the victims on fire and showed no remorse for killing them. Leatham also came to Lisa‘s house at one point and defendant mentioned the murders in front of him. Blake Martin-Ramirez, Lisa‘s 14-year-old son, tеstified that he heard defendant describe his role in killing the victims and taking their sports car. About a week after defendant told Lisa about the murders, she called defendant‘s mother and told her to move him out of the apartment.
Griego‘s investigation focused on defendant and Leatham as suspects. In January 1999, Griego questioned defendant, who was incarcerated at Chino State Prison. Defendant again denied involvement in the crimes.
In December 1999, Griego collected defendant‘s biological samples so they could be compared to DNA samples obtained from evidence collected at the crime scene. All the DNA collected at the crime scene was matched to either Consuelo or Nathaniel.
Although defendant had denied involvement in the crimes and only talked about who he thought might have committed the T-shirt store murders, his version of events surrounding the murders changed when he met with detectives Steve Shumway and Ronald Sanfilipo on January 5, 2001. The interview, conducted at the Riverside Police Department, came about because defendant‘s cellmate in Riverside County Jail told authorities that defendant had discussed a Barstow double murder where the victims had been burned. Griego watched on a video monitor in an adjoining room. After being read
After a half-hour‘s conversation, Griego entered the interview room. Defendant again was read and waived his Miranda rights, and he and Griego discussed the crimes for 45 minutes to an hour. Defendant was then transported to the Barstow Police Department where detectives Griego and Keith Libby conducted an interview. During that interview, defendant, who was 24 years old (and nicknamed “Oso“) at the time of the murders, explained that he committed the crimes with 15-year-old Carlos Loomis (whom he called “Bam-Bam“), 22-year-old Ruben Romero (whom he called “Wino“), and “another guy ” (whom he sometimes called “the other juvenile” or “a 14-year-old kid.” Defendant consistently asserted the fourth perpetrator was not his half-brother Leatham.5 He said Loomis and Romero offered him “an ounce of dope and money if he agreed to act as a lookout” during a robbery. Defendant said he agreed to be a lookout because “he was real bad on dope.” Defendant maintained thаt Romero was in charge, and while they were all waiting around before the robbery, defendant went to Barstow Liquor and purchased a 40-ounce beer, half of which he drank immediately. Once the robbery commenced, Loomis
and Romero verbally and physically abused the victims and “took the couple out of [defendant‘s] line of sight.” About 10 or 15 minutes later, defendant heard gunshots. Loomis and Romero jumped into a blue or white Camaro and told defendant that they were headed to a Motel 6. Defendant then went back to his mother‘s house.
Detective Libby then told defendant that telling only “a little bit of the truth” would not be good for him, and that it would be best if he told the “whole truth.” Libby also said that if defendant wanted him to believe that Leatham was not involved in the murders, he would have to convince him that he was telling them the “complete truth.” Defendant then admitted that he entered the store and forced Consuelo and Nathaniel through the store‘s back door. Defendant claimed that Loomis hit Consuelo with a stick-like
Defendant also said that Romero then shot a .45-caliber firearm with a taped-up handle an unspecified number of times, but defendant did not say whom he shot, or how he came into possession of the gun. He said, “I know my guns . . . I‘ve been messing with guns for a long time, [so I] knew the caliber . . . right off the top.” Defendant also said, “I didn‘t pull the trigger; I didn‘t rape nobody; I didn‘t set nobody on fire.” After the rape, beating, and shooting, defendant said either Romero or Loomis used gasoline and a lighter to set the bodies on fire. When asked, defendant said he could not recall anyone cleaning up the crime scene. He also said that someone, probably Loomis, had gathered up the .45-caliber shell casings.
After completing the robbery and murders, defendant said he and the other perpetrators stole a Camaro parked at the store and drove it to a nearby Motel 6, where they went their separate ways. At the end of the interview, defendant agreed to walk the detectives through the crime scene.
The next day, officers taped defendant‘s reenactment of the crimes at the T-shirt store. Defendant reiterated what he told officers during the interviews the day before and again admitted to beating Nathaniel. At the conclusion of the reenactment, defendant said, “I‘m just as guilty as the man who pulled the trigger and the man who started the fire.” Defendant said he felt bad for the victims, that “it wasn‘t supposed to happen that way to them, you know, but that still isn‘t going to change the fact that I was actually involved here and it‘s not going to change the fact, yes, I‘m expecting a conviction out of this and whatever I receive, I deserve, that‘s it. That‘s all I got to say.” Two weeks later, Griego contacted Leatham to speak with him about the murders before transporting Leatham to the Riverside Police Department so that he could speak with defendant before his arraignment on an unrelated offense.
During a subsequent interview on January 25, 2001, defendant took full responsibility for the crimes. Defendant assured detectives that he was now confessing because he wanted to come clean. He admitted that thе crimes happened quickly and that he fired the fatal shots. He subsequently disposed of the murder weapon and the shell casings near some railroad tracks. However, he said Loomis poured the gasoline on the victims, and Romero lit them on fire. He also claimed Leatham stayed outside during the murders and
Detectives Griego and Espinoza interviewed defendant one last time at North Kern State Prison on April 16, 2002. Defendant said he met with the group to plan the robbery. During the robbery, defendant took $100 in cash and the keys to the Camaro from Nathaniel‘s pocket. He also stole Consuelo‘s wedding ring, trading it for “dope.” Since Nathaniel continued yelling during the robbery, the group bound him with duct tape. Defendant then poured gasoline on the victims to scare them into giving him their money. Defendant changed his story to say that Romero then shot the victims, but defendant used a lighter to set them on fire. He said he dropped a match on them but it “didn‘t ignite.” When asked who started the fire, defendant said, “somebody else could have . . . hit them with a match or something, I don‘t know. I do remember that when I dropped that match it did not go up.” He said he did not want to implicate anyone else because he “can‘t really identify the individuals with me.” He also said he did not feel bad for the victims and their families because he was “gonna have to do prison time.”
Detective Dennis Florence testified that a shoot-out involving a man named Jerry Corhn occurred in March 2002. Corhn fired on officers as they pursued him following an attempted narcotics transaction at a restaurant in Barstow. Corhn ultimately died from a self-inflicted gunshot wound to the head. Ballistics testing showed that the .45-caliber firearm recovered from Corhn‘s vehicle matched bullet casings recovered from the T-shirt store murders. When Griego showed defendant a photo lineup that included a picture of Corhn, defendant pointed to Corhn‘s picture and said he knew him because Corhn had purchased a firearm from him when he was staying in Barstow.
3. Defense Evidence
Defendant did not testify at trial, nor did he present any evidence. He did attempt to call one witness, Amber Renteria-Kelsey, but she successfully invoked her
Lisa Martin and her mother, Penny Bartis, testified that on January 4, 2000, a month after he moved out of Martin‘s home, defendant returned with two other men and committed a home invasion robbery. Defendant knocked on the door. When Bartis answered, defendant burst into the house. His two accomplices followed and took the victims to a back bedroom. Defendant was armed and threatened to kill Martin and her family. He then stole money and personal property. Martin testified that the robbery lasted several hours, and defendant and his accomplices stole $6,000 cash as well as jewelry, expensive vases, a safe, and important papers. Martin explained that after the robbery defendant called her and told her that her son, who was also present during the robbery, was being watched. She subsequently took her son out оf school. Bartis testified that after the robbery, she received four or five phone calls from defendant asking for Martin. Martin fled to Colorado, leaving her son with Bartis.
Misty Sedillo testified that in 1993, when she was 16 years old, she rode with defendant in a car. Defendant and his friends wanted to shoot at a house, but Misty asked them not to because her brother was playing in the front yard. Later during the ride, defendant pointed a gun at Misty‘s head.
In September 2002, a deputy sheriff found a homemade shank in defendant‘s jail cell. Defendant said he feared for his life and that he would not hesitate to use the shank and would make another. He also admitted that for two months he smuggled the shank into court because he planned to stab one of the witnesses who was testifying against him. Another deputy sheriff found a letter defendant tried to mail to elected District Attorney Michael Ramos. In the letter, defendant advised the prosecution to give him the death penalty or else there will be “a lot of blood” on the “County‘s hands.” The prosecution also presented evidence of defendant‘s 1994 felony conviction for receiving stolen property.
Charlene Garcia, Nathanial‘s daughter and Consuelo‘s stepdaughter, testified that her parents’ murder had a significant negative impact on her and her family.
Defendant presented the testimony of Albert Capers, his biological grandfather. Capers stated that he and his wife adopted and raised defendant, whom they loved.
A. Issues Regarding Guilt
1. Alleged Lack of Independent Evidence
Defendant initially contends that his statements to law enforcement about his involvement in the T-shirt store crimes were so inconsistent and contradictory that they could not serve as corroboration of one another. He does not challenge the admission of his statements on Miranda grounds. However, he contends that because there was no physical evidence or eyewitness testimony to corroborate the trustworthiness of any one of his various confessions, his conviction must be reversed. Defendant relies on the federal common law corroboration rule intended to prevent errors in convictions based on a witnesses’ untrue statement alone. (Opper v. United States (1954) 348 U.S. 84, 93.) If applied here, the rule means that defendant‘s admissions or confessions may not serve as the basis for his conviction absent “substantial independent evidence which would tend to establish the trustworthiness of the [admissions or confessions].” (Ibid.) However, as part of the federal common law, we are not bound to follow the federal corroboration rule.
Some state courts follow the federal corroboration rule (see, e.g., Armstrong v. State (Alaska 1972) 502 P.2d 440, 447), but California does not. We instead apply the corpus delicti rule, which originally required independent proof of an actual crime before extrajudicial admissions could be admitted as evidence. (See People v. Alvarez (2002) 27 Cal.4th 1161, 1169-1170 (Alvarez).) The rule derives from California common law. (Id. at p. 1173.)
In 1982, Proposition 8 abrogated much of the corpus delicti requirement when it added the Right to Truth-in-Evidence provision to article I of the California Constitution. (
considered to strengthen the case on all issues.” (Id. at p. 1181.) Alvarez made it clear, however, that the pre-2008 version of “section 28(d) did not affect the rule to the extent it (1) requires an instruction to the jury that no person may be convicted absent evidence of the crime independent of his or her out-of-court statements or (2) allows the defendant, on appeal, directly to attack the sufficiency of the prosecution‘s independent showing.” (Id. at p. 1180.)
Even though the prosecution need satisfy only one prong of section 28(d)‘s post-Proposition 8 requirement, both prongs of original section 28(d) were met here. Specifically, the record shows that the trial court instructed with CALJIC No. 2.72, which informed the jury that defendant‘s statements to law enforcement must be supported by independent evidence: “No person may be convicted of a criminal offense unless there is some proof of each element of the crime independent of any confession or admission made by him outside of this trial. [¶] The identity of the person who is аlleged to have committed a crime is not an element of the crime nor is the degree of the crime. The identity or degree of the crime may be established by a confession or admission. [¶] The corpus delicti of a felony-based circumstance need not be proved independently of a defendant‘s extrajudicial statement.” Indeed, defendant‘s words alone may establish the degree of his crime or his identity as the perpetrator. (People v. Valencia (2008) 43 Cal.4th 268, 297; People v. Ledesma (2006) 39 Cal.4th 641, 721.) The jury was also instructed that it was the exclusive judge of the truth of defendant‘s confessions and admissions; the instruction defined both a confession and an admission and instructed that the jury should view any such statements with caution.
The People‘s showing of a criminal act, independent of defendant‘s statements, satisfies the corpus delicti rule. Here, there was substantial independent evidence of “injury, loss, or harm by a criminal agency.” (Alvarez, supra, 27 Cal.4th at p. 1171.) Defendant told law enforcement that he fired the fatal shots that killed one of the victims, hid the .45-caliber gun and bullet casings, poured gasoline on the victims, and lit them on fire. Much of the physical evidence corroborates defendant‘s statements, including the victims’ burnt bodies, .45-caliber bullets and one bullet casing reсovered at the scene of the murders, and the ample physical evidence that the victims were beaten
Defendant, however, contends that his well-documented drug and alcohol abuse render all his recollections fatally suspect. Defendant advances a related argument, namely, that his statements were so contradictory, and his history of drug and alcohol abuse, including during the day of the crimes, is so clear, that none of his statements is trustworthy enough to even warrant corroboration. He notes he gave 10 separate statements to law enforcement officers during which he changed his story multiple times. According to defendant, those statements were so inconsistent and contradictory that none could serve to corroborate another.
statements to authorities. He recounts that in his first statements to Griego, he denied all involvement in the crimes. Later he claimed only to be a lookout. Still later, he confessed to pouring gasoline on the victims. Similarly, his description of the perpetrators сhanged over time and was thus unreliable.
Defendant claims that statements of someone with his history of substance abuse, who admitted to being under the influence of drugs and alcohol at the time of the event in question, do not even evidence minimal indicia of reliability and trustworthiness. Additionally, defendant asserts that when he spoke to law enforcement in 2001, he was on “psychotopic [sic] medication.”
Defendant also contends that his most inculpatory statements to law enforcement were effectively coerced, and thus even less trustworthy than some of his earlier statements because he was threatened with his half-brother‘s incarceration if he did not tell them what they wanted to hear. Additionally, he claims that his statements to Martin and Bartis lacked trustworthiness because they were biased against him because he robbed them.
Contrary to defendant‘s argument, considerations of trustworthiness, whether based on his ability to recall or on other factors, are the exclusive province of the jury. (People v. Anderson (2018) 5 Cal.5th 372, 404.) Thus, allowing the jury to judge the relevant evidence did not violate defendant‘s due process rights. (People v. Lopez (2018) 5 Cal.5th 339, 353-354.)
Initially, we note that defendant presents no evidence that investigators either tainted the evidence or coerced defendant‘s inculpatory statements. Rather, the jury was presented with ample evidence corroborating defendant‘s inculpatory statements. In addition to the physical evidence that matched defendant‘s statements, the jury heard Griego testify that law enforcement purposefully withheld from the public certain information about the crimes—e.g., the caliber of the firearm used, that Nathaniel‘s cause of death was by a firearm, and that Nathaniel had been bound with duct tape. Defendant‘s statements contained this same information. Defendant also admitted that he
We conclude the corpus delicti rule was satisfied here and that the jury properly considered all of defendant‘s independent statements regarding his participation in the robbery and murders. To the extent there was inconsistency among defendant‘s various statements, the court properly left it to the jury to decide the veracity of each statement. This is true whether defendant characterizes some of his statements as voluntary, internalized (from a susceptible or weak defendant), compliant (occurring during police interrogation), false confessions—or as the product of a memory rendered unreliable by years of substance abuse, by sleep deprivation, or by psychotropic drugs. Similarly, we find, despite defendant‘s argument to the contrary, that his statements contained sufficient indicia of reliability to satisfy what we have described as the Eighth Amendment‘s “heightened reliability standards for both guilt and penalty determinations in capital cases.” (People v. Cudjo (1993) 6 Cal.4th 585, 623.)
2. Alleged Due Process Denial
a. Background
The prosecution‘s trial theory was that four people were involved in the T-shirt store murders: Defendant, Loomis, Romero, and defendant‘s half-brother, Leatham. The prosecution‘s casе was that defendant‘s videotaped confessions supported the theory that defendant was the principal actor who had robbed and set fire to the victims.
To support his defense that he was not responsible for robbing, shooting or burning the victims, defendant sought to present the testimony of Amber Renteria-Kelsey (Renteria) who made two statements to Griego (one on May 26, 1999, and one on October 5, 1999) that she had overheard Loomis admit to another gang member nicknamed “Midget” that he and Romero were involved in robbing and burning down the victims’ T-shirt store.
On November 1, 1999, Barstow Police Department received two handwritten letters addressed to Griego from Renteria, asserting that “there was no
During the trial‘s guilt phase and outside the presence of the jury, defense counsel stated that he intended to call Renteria as a defense witness. Renteria was in custody for an unrelated case and was present in court. The court appointed supervising deputy public defender Mark Shoup to represent Renteria and to determine if her testimony might tend to incriminate her such that she might assert her Fifth Amendment right to remain silent. Later, when the court asked if Renteria‘s testimony might expose her to criminal prosecution, Shoup stated that Renteria could be charged with committing a misdemeanor offense for falsely reporting criminal offenses to a peace officer. (See
reopen the issue if it found “something different as far as the testimony of Renteria.”
During a subsequent discussion outside the presence of the jury, Shoup conceded that Renteria had no basis to assert her Fifth Amendment privilege for the
Later, the prosecutor told the court that he had spoken to Shoup, and based on that conversation, he believed Renteria would be susceptible to a
Shoup later interjected, “Just so the record‘s clear here, the only statements that I see that Amber Renteria [attributes] to Bam-Bam [Loomis] is that Bam-Bam said that he had to get out of town because he and his homie, Wino [Romero], had robbed a place on Main Street and the place burned down. And then, Renteria told me that Bam-Bam had also said that he had to burn the place to get rid of evidence. Those are the only statements that I am aware of. There is nothing in that that exonerates this defendant.”
Before the commencement of the penalty phase, Renteria again testified under oath, outside the presence of the jury. She repeated her invocation of her Fifth Amendment privilege. The court stated that it would grant Renteria immunity if it had the power to do so in order to resolve the matter, and again asked the prosecutor if his office would grant the witness immunity.
The prosecutor declined, explaining, “If we believe that Renteria had any credibility whatsoever, we would have used [her] statement to file on Carlos Loomis murder charges. We did not do that. We believe she has no credibility at all. That‘s important to put on the record.” The court observed that the case was different from cases in which false testimony led to an erroneous conviction. (See e.g., Chambers v. Mississippi (1973) 410 U.S. 284, 298.) The court then upheld Renteria‘s Fifth Amendment privilege and dismissed her as a defense witness. It concluded that the three-year statute of limitations for a violation of
b. Discussion
Defendant asserts that Renteria‘s refusal to testify and thereby admit she lied to Griego about defendant‘s involvement in the T-shirt store murders denied him his due process right to present a defense under the Sixth Amendment. We disagree.
The state and federal constitutions provide that a criminal defendant has the right “to have compulsory process for obtaining witnesses in his favor.” (
Our state compulsory process right “is independently guaranteed by the California Constitution” under
In Martin, we held that the defendant successfully demonstrated a compulsory process violation. (Martin, supra, 44 Cal.3d at p. 42.) There, the prosecutor committed prejudicial misconduct when he informed the defense witness‘s attorney that if the defense witness testified, he would not get
Defendant claims the prosecutor committed prejudicial misconduct when he told Shoup that Renteria could be charged as an accessory under
We find no constitutional violation or prosecutorial misconduct. It was Shoup who initially told the court that his client was exposed to potential misdemeanor criminal liability. The prosecutor told the court that Shoup was in the best position to determine any potential criminal liability. He also agreed with Shoup that Renteria had exposure to criminal liability. Later, in answer to a question from the court, the prosecutor opined that Renteria would be exposed to criminal liability under a different statute (
In contrast to the trial court in Martin, the court here did not deny defendant the right to “put on the stand a witness who was physically . . . capable of testifying . . . and whose testimony would have been relevant and material to the defense.” (Washington, supra, 388 U.S. at p. 23.) Renteria‘s testimony would not have exonerated defendant, or been material to his defense, either by tending to prove he did not commit the crimes charged or by diminishing his involvement. In fact, Renteria‘s proposed testimony would have reiterated the prosecution‘s theory, based in part on defendant‘s admissions, that defendant committed the crimes with Loomis and Romero. Even if
3. Alleged Fifth Amendment Privilege
Apart from asserting a compulsory process violation, defendant also claims the court erred in granting Renteria‘s Fifth Amendment privilege because the statutе of limitations to charge her had run on any violation of
The Attorney General responds that defendant forfeited this argument because he did not raise it in the trial court. Defendant effectively concedes he never raised the claim in the trial court but contends he did not forfeit his claim because it is based on “undisputed facts” contained in one of Griego‘s reports that states: “Renteria later (on 10-29-99) sent me a letter at the Barstow Police Department ‘retracting’ her statements.” (See Williams v. Mariposa County Unified School District (1978) 82 Cal.App.3d 843, 850 [if facts supporting new contention on appeal are undisputed, court may entertain the contention as a question of law on those facts].) Defendant also contends that although defense counsel might have been aware of Renteria‘s 1999 retraction letter and yet failed to raise it as a defense to her exposure to criminal liability, the prosecution team, including Griego, “had an indеpendent duty to make sure that the trial court was made aware of Renteria‘s earlier retraction.” Defendant‘s claims fail. Even if we were to assume that Renteria‘s testimony would have assisted defendant‘s defense, and that he did not forfeit his claim regarding the 1999 retraction letter, he has stated no constitutional or prosecutorial violations.
The standards governing defendant‘s contention that the court erred in granting Renteria‘s Fifth Amendment assertion are well established. The Fifth Amendment privilege provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” (
Our Evidence Code implements the privilege as follows: “Whenever the proffered evidence is claimed to be privileged under Section 940 [privilege against self-incrimination], the person claiming the privilege has the burden of showing that the proffered evidence might tend to incriminate him; and the proffered evidence is inadmissible unless it clearly appears to the court that the proffered evidence cannot possibly have a tendency to incriminate the person claiming the privilege.” (
We conclude that the federal and state constitutions supported the trial court‘s decision to grant Renteria her Fifth Amendment privilege whether or not the court was aware of the 1999 retraction letter that Renteria had sent to Griego. (See Seijas, supra, 36 Cal.4th at p. 304.) On review of a witness‘s successfully invoking the Fifth Amendment privilege, we look only to see whether it is evident from the “implications of the questiоn, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” (Hoffman, supra, 341 U.S. at pp. 486-487.) In fact, a trial court may deny Fifth Amendment privilege only if it is ” ‘perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency’ to incriminate.” (Id. at p. 488, italics omitted.) Our state jurisprudence is equally strong in its protection of the right and holds that the Fifth Amendment does not allow “the court to assess the likelihood of an actual prosecution in deciding whether to permit the privilege.” (Seijas, supra, 36 Cal.4th at p. 305; see
Renteria and her counsel could reasonably have concluded that Renteria would be subject to criminal prosecution under
We also find that the prosecution did not engage in misconduct in failing to raise Renteria‘s 1999 retraction earlier during the trial court‘s colloquy about Renteria‘s asserted Fifth Amendment privilege. We have held that “[a] prosecutor‘s conduct violates the federal Constitution when it infects the trial with such unfairness as to make the resulting conviction a denial of due process. Conduct by a prosecutor that does not rise to this level nevertheless violates California law if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” (People v. Whalen (2013) 56 Cal.4th 1, 52.) Even though the statute of limitations had passed on Renteria‘s initial alleged lie to Detective Griego in 1999, it had not passed when she allegedly lied in her second retraction letter of 2003. Here, there is no indication that the prosecutor‘s conduct rendered the trial so unfair as to deny defendant due process, or that his silence on the issue misled the court in order to persuade it in violation of California law. (Ibid.) The prosecutor thoroughly discussed the effect of Renteria‘s 2003 statement with the court in the presence of defendant‘s counsel as well as Renteria‘s counsel, as discussed ante, at pages 25 to 26. Additionally, the prosecution‘s theory was based on defendant‘s own statements that he had committed the crimes with Loomis and Romero. There is simply no indication that awareness of the 1999 retraction letter would have changed the court‘s decision to grant Renteria‘s right to silence or would have otherwise infected the trial with such unfairness that defendant‘s conviction amounted to a denial of due process.
B. Issues Regarding Penalty
1. Constitutionality of California‘s Death Penalty Statute
Defendant asserts numerous challenges to California‘s death penalty law that we have repeatedly rejected. We reiterate our previous decisions.
a. Whether Penal Code section 190.2 is impermissibly broad
Defendant asks that we reconsider our well-established holding that “special circumstances listed in section 190.2 that render a murderer eligible for the death penalty, which include felony murder and lying in wait, are not so numerous and broadly interpreted that they fail to narrow the class of death-eligible first degree murderers as required by the Eighth and Fourteenth
b. Whether Penal Code section 190.3 is arbitrary and capricious
We have repeatedly rejected the claim that
c. Whether unanimous jury findings are required
As we have many times held, “[t]he jury‘s reliance on unadjudicated criminal activity as a factor in aggravation under section 190.3, factor (b), without any requirement that the jury unanimously find that the activity was proved beyond a reasonable doubt, does not deprive a defendant of any federal constitutional rights, including the Sixth Amendment right to trial by jury and the Fourteenth Amendment right to due process.” (Brooks, supra, 3 Cal.5th at p. 115People v. Hamilton (2009) 45 Cal.4th 863, 960.) Defendant contends that we must reconsider these holdings and others, including People v. Prieto (2003) 30 Cal.4th 226, 263 (Prieto), in light of Ring v. Arizona (2002) 536 U.S. 584, 602 (Ring), which followed Blakely v. Washington (2004) 542 U.S. 296, 303-205 (and Apprendi v. New Jersey (2000) 530 U.S. 466, 490), to hold that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt before its decision that death is the appropriate sentence.
Defendant makes the same argument as the defendant made in Prieto, that Ring undermines our previous holdings that: “(1) the jury need not find that the aggravating сircumstances outweigh the mitigating circumstances beyond a reasonable doubt; (2) the jury need not find each aggravating factor beyond a reasonable doubt; (3) juror unanimity on the aggravating factors is not
Defendant also asserts that the high court‘s decision in Hurst v. Florida (2016) 577 U.S. 92, 136 S. Ct. 616, 193 L. Ed. 2d 504 (Hurst), which invalidated Florida‘s capital sentencing scheme, also invalidates California‘s capital sentencing scheme. Like Ring, Hurst requires a jury to find each fact necessary to impose the death sentence. (Ibid.) Further, defendant claims that Hurst makes it clear that our sentencing determination violates the Sixth Amendment because it collapses “the weighing finding and the sentence-selection decision into one determination and labeling it ‘normative’ rather than factfinding” by a jury beyond a reasonable doubt. It does not. (People v. Rangel (2016) 62 Cal.4th 1192, 1235 & fn. 16.) Our cases have consistently rejected similar arguments. (Ibid.) The California sentencing scheme is materially different from that in Florida, which, in contrast to our death penalty statutes, mandates that the trial court alone must find that sufficient aggravating circumstances outweigh the mitigating circumstanсes. (Hurst, supra, 577 U.S. at p. 622 [136 S.Ct. at p. 622]; see
d. Validity of California‘s Death Penalty Jury Instructions
i. Reasonable doubt
Defendant contends that the trial court erred when it did not instruct the jury that the prosecution bore the burden of proof. He argues that his “jury should have been instructed that the State had the burden of persuasion regarding the existence of any factor in aggravation, whether aggravating factors outweighed mitigating factors, and the appropriateness of the death penalty, and that it was presumed that life without parole was an appropriate sentence.” Alternatively, defendant asserts that if there is no burden of proof,
We have never held that the Sixth and Fourteenth Amendments require а jury instruction regarding the burden of proof in capital sentencing. (See People v. Williams (1988) 44 Cal.3d 883, 960.) As the Attorney General observes, the only burden of proof applicable at the penalty phase “relates to aggravating evidence of other crimes under factor (b) [People v. Foster (2010) 50 Cal.4th 1301, 1364], and aggravating evidence of prior convictions under factor (c). (See Williams, supra, 49 Cal.4th at p. 459.)” Otherwise, our cases do not require that a burden of proof be applied to aggravating evidence. (See People v. Lewis (2009) 46 Cal.4th 1255, 1319.)
ii. Unanimous agreement on aggravating factors
Defendant contends the trial court violated his rights under the Sixth, Eighth, and Fourteenth Amendments when it failed to instruct the jury that it must unanimously agree on the same factors in aggravation. We have “consistently held that unanimity with respect to aggravating factors is not required by statute or as a constitutional procedural safeguard.” (People v. Taylor (1990) 52 Cal.3d 719, 749 (Taylor).)
The same is true for prior unadjudicated criminal activity. We have repeatedly rejected claims that the jury‘s findings of prior unadjudicated crimes must be unanimous in relation to evidence admitted under