People v. Castaneda

S085348. June [No. 2011.] PEOPLE,

THE Plaintiff and Respondent, CASTANEDA,

GABRIEL Defendant and Appellant.

Counsel John L. Court, under Staley, appointment by Supreme for Defendant and Appellant. Brown, Jr.,

Edmund Harris, G. General, and Kamala D. Dane Attorneys R. Gillette, General, Chief Schons, Assistant Attorney W. Gary Assistant Attorney General, Mizell, Holly General, Wilkens Marvin E. Deputy Attorneys Plaintiff and Respondent.

Opinion

CANTIL-SAKAUYE, C. A juryconvicted Gabriel Castaneda of the first J. murder degree Code, 187, of Colleen Mary (Pen. Kennedy (a), 189), subd. §§ one count of Code, second degree (Pen. commercial 460), burglary §§ Code, one (Pen. count of kidnapping (a)), subd. one count of § sodomy Code, use (Pen. of force (c)(2)), subd. and one § count of second Code, (Pen. degree 211).1 robbery found true the jury § that allegations the murder was committed while defendant was in the commission engaged or commission of the attempted crimes of burglary, kidnapping, sodomy,

1 All further statutory references are to the Penal Code unless otherwise indicated. 190.2, true (B), (D), (G).) The also found (§ (a)(17)(A), subd. robbery. jury used a deadly dangerous weapon defendant allegations personally 12022.3, (§§ (b)(1), each of the five crimes subd. in the commission of her in a (a)), and confined the victim manner intentionally exposed subd. of death the commission of during kidnapping to a substantial likelihood (a)). further found the commission (§ during subd. Finally, victim commission sodomy, kidnapped attempted 667.61, of the victim (§ (e)(1)), binding subd. engaged tying 667.61, (§ (e)(5)), great bodily injury upon subd. inflicted personally 667.61, of a (d)(6)), and committed the offense of (§ burglary victim subd. (former establishment to the that was then closed public commercial 1997, 817, 6, 667.61, trial 5575-5577). ch. The (e)(2); subd. Stats. pp. § § true the that defendant suffered two convictions court found allegations prior 667, 1170.12). (a)(1), The court also found (§§ for serious felonies subd. free of conviction and did not remain defendant suffered a felony convic- resulting felony and did commit additional offenses custody prison to the of his prior tions conclusion during five-year period subsequent 667.5, (§ (b).) term. subd. prison trial, a verdict of returned

Following penalty phase the death The trial denied defendant’s modify death. court application 190.4, (§ without the verdict life imprisonment possibility parole penalty The (e)), and defendant to death. court also sentenced subd. sentenced and to defendant to term of life in without prison possibility parole he was charges life in with the other of which years respect prison reverse the (§ (b).) This is automatic. subd. We convicted. appeal related to findings kidnap- of conviction for vacate judgment kidnapping, and otherwise affirm the judgment. ping,

I. FACTS

A. Guilt evidence phase

1. Prosecution case victim, Basil P. Colleen was Mary Kennedy, employed Vassantachart, M.D., Montclair, San Bernardino at his medical clinic in medical some provided where she clerical tasks County, performed On services, therapy. as taking X-rays assisting physical such until a.m. at the clinic from 9:00 approximately she worked alone Mondays, was Mondays a.m. Her routine on doctor arrived at 11:00 approximately and then to in her office read newspaper finish her clerical tasks sit She the clinic door at 10:30 11:00 a.m. book until arrived or patients kept clinic, alone, could inside the she she but from her office locked while clinic, arrived. and she admitted when patients they the front door to the see accident, defendant, In February a minor following automobile brother George Castaneda and wife Gina George’s Ybarba received physical at the clinic. Their therapy first two were on 26 and appointments February Vassantachart, victim, March when Dr. and a second “nurse” were at the clinic in present After one morning. of these appointments, shoe, defendant told Ybarba that when the second nurse bent over to tie her face, she her “behind” put in his and Ybarba that the “better responded nurse not do that to Their third George.” was on March at appointment Monday, a.m., 9:30 when the victim was alone in the office. At apparently some point March, in mid- or late Dr. Vassantachart or the victim informed Ybarba that treatment, there was no insurance coverage for their but the clinic would continue treatment if would be they financially Ybarba responsible. conveyed Thereafter, this information to defendant. the three received no further treatment at the clinic. 30, 1998,

On Monday, crimes, March day Dr. Vassantachart’s office Vassantachart, manager, Shirley to the spoke victim by telephone a.m., 9:28 and perceived nothing unusual in their interactions. She placed another call to the telephone a.m., victim between 10:15 and 10:30 but the victim did not answer. a.m., Patients began at 10:30 arriving but the victim did not the clinic open Thereafter, door or answer telephone. Dr. Vassantachart unlocked the office, clinic. When he entered the victim’s he floor, noticed an book on the open which he characterized as unusual.”2 “very He proceeded clinic, to 50 feet further into the and found the victim’s dead body lying facedown across a “procedure table.” of the Photographs scene, crime which Dr. accurate, Vassantachart confirmed were show that the down, victim was naked from the waist where her except on one pants caught of her back, ankles. Her hands were bound behind her and her were legs with one splayed, leg hanging down from each side of the table. Her body askew, was so that her head also table, over one hung side of the and her area genital was near a comer of the table. An examination of the exterior of after the building crimes were committed revealed no evidence aof forced entry. Sheridan,

Dr. Frank the Chief Medical Examiner for the of San County Bernardino, described the victim’s condition. Her hands were tied tightly shoelaces, behind her back with which left marks on deep ligature her wrists. A shoelace, gag, of a sock and a comprised inwas her mouth and wrapped around her tightly forehead, neck. She had abrasions on her on either side of chin, neck, her and on her which might have resulted from a struggle against someone her face and holding on her. attempting put gag There were four areas of inside the hemorrhaging which were scalp, caused by blows with a blunt object. trial, At the victim’s husband confirmed that the book on the floor of the victim’s office

was the book she was reading days in the before her murder. that the cause of death was blood loss from multiple

Sheridan concluded wounds with a wounds to the victim’s neck. There were 29 inflicted stab her neck. The on the back sides of wounds screwdriver Phillips neck, shallow, where of the were more the bone would back over spine, were the sides of the neck. Some have on stopped they weapon; deeper caused or by to have been “jabbing” wounds superficial appeared victim, and with to these respect “scraping” “glancing” “prodding” wounds, “as Sheridan it was the screwdriver used agreed possible being At least the wounds were “fairly deep,” an intimidate.” 15 of implement and Sheridan that “it would take a amount of opined significant pressure . . . caused much Collectively, enter the skin with a screwdriver.” wounds neck, two wounds the left side into the tissues of but hemorrhaging lethal, artery jugular were the most because the carotid they opened Sheridan it was difficult to determine how the victim long vein. stated severed; because continued remained alive after these two vessels were blood neck, to and her brain on the side of her but he stated right flow from minutes,” that she survived might “it would take matter of several have He concluded of these wounds were inflicted as as minutes. that all long alive, determine the in which while the victim was but could not order occurred suggested were inflicted. The wounds’ close they they proximity time, within a short but have occurred over period they might period minutes, at an and the fairly with “inflicted earlier rest stage quickly some around the neck when most or all of gag after.” was in victim’s place inflicted, in the sock. The which gag, wounds were as evidenced holes blood, soaked the victim’s breathing, became obstructed partially death. contributed to her thereby that it from his external examination

Dr. Sheridan also testified appeared entrance, in the but he vaginal that there some the area of might bruising be the able to examination a through sample was not confirm microscopic dried tissue there was He noted a small amount of that underlying bruising. area, anal the trauma to the feces around anal but observed no apparent addition, area of the rectum and anal In his internal examination region. further that whether revealed that indicated trauma. He nothing explained how a would upon there were visible from sexual assault injuries depend when the and whether the were inflicted injuries much occurred struggling death, would relax and there dead at which time muscles victim was or near little to enable bruising. would be circulation rectal, taken the and oral found on smears vaginal,

No was spermatozoa victim, and on on two areas of revealed seminal fluid carpet from the but tests the table. beneath that was found the floor procedure a feces-stained sock addition, In found a was on the sheet that palm paper print upward-facing covered the table on was found.3 which the victim’s body

In the course of their enforcement officials obtained investigation, law and DNA from Dr. palm prints Vassantachart’s samples patients, including defendant. A latent examiner identified on defendant’s print points print and on the on the latent found that matched. He testified that he print paper was “certain” the the same A originated from source. forensic prints scientist extracted DNA from on the spermatozoa found feces-stained sock and from defendant’s saliva genetic examined seven markers sample, known using (PCR). as chain reaction” She deter- process “polymerase matched, mined that the seven two genetic markers from the and that samples Caucasians, the DNA in particular one in 19 million one in profile appears African-Americans, 524 million and one in four million Another Hispanics. scientist five markers from the DNA from the analyzed genetic extracted sock DNA, and from defendant’s using known as restriction process fragment length (RFLP). His polymorphism genetic reflected that the analysis markers matched, from the DNA two the DNA samples particular profile occurs in fewer than one six billion individuals in each of three racial categories—Caucasians, The PCR Hispanics, African-Americans. analy- sis and the RFLP analysis different statistical generated because frequencies each tested different analysis genetic markers with different variability. the two results Considering together, the scientist who the RFLP performed that, analysis concluded unless the source of the DNA extracted from the sock defendant, was an identical twin or brother of the source of the DNA was defendant.4 3 Attached body table on which paper victim’s was found was a roll of from which a piece pulled length new was table patient cover after each left the room. Several patients had been seen room physical therapy in the since defendant’s last session on addition, Monday, committed, Thursday March In9. on March before the were crimes Dr. had performed procedure Vassantachart a medical on the table. A medical assistant who blood, aided procedure Dr. Vassantachart recalled resulted in a loss of and that she and afterward, Dr. including Vassantachart cleaned up changing paper the room on the table. Finally, way roll had been affixed such a the paper that when was unrolled over the table, paper the side upwards. Accordingly, that faced core of the roll faced if a unrolled,

person touched the roll of paper paper print appear before on the would facing side of the paper paper downward when the unrolled. was probability generated The that the profile through testing the RFLP would appear in a 90,000. sibling brothers, is one in seven Defendant has four of whom were incarcerated at the analysis time of the crimes. PCR two excluded of the brothers who were free at the time of the crimes as the of the source DNA found on the sock. is no in the There indication record that the DNA of the third brother free at time analyzed. who was the relevant was Defendant does not contend perpetrator charged his brothers was the of the crimes. crimes, At the the his living girlfriend, Virginia time of was crimes, Ontario, Castaneda, he drove On the of the day California.5 a Toyo first at Tires day Nissan Sentra work Virginia’s burgundy at a.m. distribution center. Defendant to work 6:00 reported approximately break and worked until a scheduled at 9:00 day, morning approximately Tires, Love, after the break a.m. When Robert a at checked Toyo supervisor informed he that defendant had left working, to ensure that was was everyone Tello, defendant that at the break. to Francisco who worked with According a.m., defendant at break at day, morning inquired the 9:00 approximately eat, that he would have where he could find and was informed something the work Tello testified that defendant away to look for food from premises. the law left no later than five minutes after break started. Various enforcement between Tires distribution center and officers drove different routes the Toyo of time the was longest the clinic. The period trip required approximately minutes. the reflected that the time in which crimes during period evidence committed, was

were a vehicle similar to Castaneda’s vehicle Virginia parked the as the clinic. at a John Silver’s restaurant located in same block Long at restaurant between Linda testified that when she arrived to work the Salley a.m., Carter, no in the lot. Martha other vehicles were parking 9:10 9:15 restaurant, that when arrived work another testified she employee unusual, lot, a.m., was noticed a vehicle the which 9:45 she parking a.m. then went to the Salley because the restaurant did not until 11:00 open as a late model lot to and observed what she described investigate, parking vehicle. The vehicle was side of burgundy-colored parked Japanese clinic, from could not be from the clinic. restaurant farthest where it seen a.m., lot and 10:15 When Carter went to the between 10:00 parking still Carter not recall the vehicle was second vehicle was there. could whether a.m., after which time officers in the lot when she went out 11:00 police Castaneda’s had arrived in the area. When shown a of Virginia photograph vehicle, the vehicle saw in lot was “probably” testified that she Salley it in the and Carter testified that was “similar” same vehicle as photograph, Castaneda’s vehicle. Virginia Castaneda, brother, testified he had seen defendant

George defendant’s officer as a Defendant’s testified weapon. use screwdriver Phillips parole vehicle, 20, 1998, that on when he searched Castaneda’s Virginia April trunk, in the underneath screwdriver in wheel well found Phillips than was related to a violation rather The search parole panel. crimes, and the officer did seize parole investigation charged screwdriver. girlfriend, she the wife of Virginia was defendant’s At time Castaneda

brother, Juan Castaneda. 8, 1998, for a parole time defendant was custody

On at which May violation, of his Miranda6 rights, officers advised him law enforcement had He he to the officers. confirmed defendant stated he was to willing speak victim, was in the office that the victim alone received treatment from the day With to his activities on one these visits. during respect Tires, crimes, at to Toyo arriving he that drove red Nissan stated he a.m., his tires and did not want unloading he hurt thumb 6:30 approximately work, break, He then he 8:30 a.m.7 to so left at the first at approximately cousin, Monte, Salazar, at in El arriving to the of his drove residence Gloria Salazar, buy that out to or 10:00 a.m. He related he awakened went 9:00 food, to he some beer and and then returned and talked Salazar until departed at to Castaneda from her Virginia place 3:30 approximately p.m. pick up break, an officer told When the interview resumed following employment. defendant, her defendant did arrive at that Salazar said falsely, perhaps he until March 30. then stated that before residence noon on Defendant residence, brother, Arroyo, to he his half Louie traveled Salazar’s saw comer, he and in need Defendant claimed on street of heroin. standing heroin, obtain and then both to Salazar’s traveled to went Arroyo somewhere residence. 15, 1998, enforcement officers

On at defendant’s law May spoke request, interview, him he at that left Tires again. Toyo with At this defendant stated a.m., to Elizabeth traveled Pomona to residence of 9:00 approximately Ibarra, a former and then to Salazar’s Defend- traveled residence. girlfriend, with he ant stated he did not mention his visit Ibarra because previously defendant, he engaged According to be married someone else. a.m., the went arrived at at two of them Ibarra’s residence 9:30 approximately connection,”8 until somewhere “to meet a and he remained with Ibarra a.m., at which time he drove Salazar’s residence. 11:00 approximately account, see Arroyo to his earlier he stated that he did not Louie Contrary March 30. arrested, he told he needed her

Ibarra testified that after defendant was her tell the he was with at the time of the crimes. After she her investigators March he was not reconstmcted her activities of she informed defendant her, her that She recalled he insisted was with with day. that he her. She asked her to tell officers was with police repeatedly threatening. him his manner as described as she “very upset,” interpreted 1602], Miranda v. U.S. 436 86 S.Ct. L.Ed.2d Arizona Castaneda, Tuesday, girlfriend, Virginia testified that defendant told her on Defendant’s job Toyo argument after he had an quit March that he had Tires somebody there. recall of a sore thumb. complaining She did not the officers “chipping.” officers that he and Ibarra were One of Defendant disclosed to the heroin, enough “[j]ust “chipping” quantities at trial refers to use of small explained get by you regular user.” if are a heroin records reflected between that defendant’s interview on 8 and Telephone May his interview on he calls May to Ibarra.9 placed telephone Ibarra testified and also that defendant visited her March several early times in to obtain heroin and talk. to She recalled she April for heroin them when defendant When if purchased visited. asked defendant often, Ibarra, had she “Not when money, responded, very According no.” to her, defendant visited would discuss his with In they Virginia. relationship he much” about particular, spoke “very anal intercourse with it Virginia—that hurt she but and he wanted to continue in anal Virginia engaging complained, sex.10 husband,

The victim’s Steven testified that when wife Kennedy, worked, she wore round ladies’ watch with a dark gold brown black band, death, and sometimes wore a After his unable ring. wife’s was to find the or a watch with a or red did particular ring stone—he gold green know which color because he is victim to colorblind. The also carried work a cash, in which she with purse her wallet credit cards and and satchel kept residence, He did containing work-related items. searched their but not find contents, her or its or the satchel. He all purse cancelled credit missing mother, cards the first week of during April. Mary victim’s also Boyle, recalled that the victim wore at least one After her always ring. daughter’s death, victim, discovered that a she had for the which had Boyle ring bought an emerald flanked two diamond and one of by missing, was chips, victim’s watches missing. Vassantachart, the office

According Shirley manager, always victim wore one or two and a watch with a She rings black leather band. also recalled that the victim her in the area she read office where her kept purse book. She that the satchel to which the victim’s referred husband explained bills, records, was used the victim cash carry patient petty making from between change, collected Dr. Vassantachart’s payments patients office, Montclair office his Covina where victim worked on other of the week. She testified that the victim would delivered days although have sister, Castaneda, According initially to defendant’s Dianna Ibarra said was with defendant subsequently being her on but she the truth she was March claimed could not tell because detectives, officer, allegedly they by police parole threatened told her would call her who might her children be taken from her. Dianna also testified that Ibarra was Castaneda might visiting concerned husband been her that her learn defendant had her while husband status, upon parole telling was at work. Ibarra testified that detectives threatened her based her truth, go jail, her that if she did not tell the she could but she further testified that the mention detectives did not her children. intercourse, Virginia engaged testified that and defendant had never in anal Castaneda she her, anal had never attempted defendant had never to have intercourse spoken having anal about intercourse. would the victim manager Friday, the collections the office previous the crimes $40 in when Monday $30 had cash of the satchel have petty satchel, the did not find the committed. officers investigating were at the scene. or their contents crime victim’s purse, Salazar, defendant Gloria visiting In late March or while early April “this bitch got a from his told Salazar that removed watch and a ring pocket, mad,” the the freeway. and he was to throw items off me stated that going her, was unsure the items which he did. Salazar Salazar he to suggested give date, 30. that the but that it could been March She testified stated have the color of the was and had a colored stone. She could recall ring gold trial, her, the Salazar told stone at but detective who interviewed according that the to a ring the had stone. Salazar testified she took ring him a green and the watch to a friend whom she called her gave “grandfather.” pawn shop these until August She did not inform law enforcement officers of facts however, time was the gone which from ring pawn shop; watch, The still had the which he victim’s gave grandfather police. husband testified that the watch to him at trial “looks like watch shown wear, was would kind of beat and he was not certain it her she but it’s up,” off, He stated the finish rubbed but the areas that gold watch. that was mother, remained were color as his watch. victim’s Mary same wife’s did that she not know whether the watch shown at Boyle, similarly testified watch, watch was trial was her that she her daughter’s thought daughter’s and had a black band. gold, daughter’s Finally, that her watch leather brighter that the at trial looked like the victim’s Shirley Vassantachart testified watch watch, face but noted it lacked a band and that the around its gold that off.11 faded or worn

2. case Defense that have at the scene Defendant evidence he could not been presented First, when that when the crimes occurred. two officers testified they police Tello Love in each May Francisco and Robert were interviewed early the first at at said that work break Tires on March was Toyo approximately a.m., a half than which at trial. hour later the time to testified they 9:30 Second, sister-in-law, son, Gabriel, Ybarba, and

defendant’s Gina defendant’s crimes, Jr., was 16 at the that saw years they who time of testified age Ybarba, at his March 30. who lived next defendant residence midmoming defendant, at that she heard a vehicle 10:00 driveway door recalled window, and March out and defendant a.m. on looked saw band, grandfather along sent The watch retrieved from the had a black leather which was lab, a processing. to the lab for DNA At the forensic scientist removed watch crime Accordingly, cut an effort DNA from the watch pieces the band and it into to extract it. at trial did a band. exhibited not have dark-haired woman whom she as Elizabeth identified Ibarra. After the vehicle left, Gabriel, she went to the back door of asked apartment, Jr., if that was his father who He had driven into confirmed it driveway. Gabriel, Jr., weekends, was. testified he visited defendant on sometimes until He stayed Tuesday. recalled when Monday Monday came Ybarba to defendant’s to talk to On that him. apartment particular minutes, Monday, defendant came into the remained for 10 apartment, Gabriel, Jr., and then at 10:50 or 11:00 a.m. testified he departed thought these events on a because he had returned to his happened Monday, mother’s the following residence a.m. When day why 11:00 asked specifically visit, remembered this he testified that on that Monday, his father’s particular Castaneda, had called girlfriend, Virginia when repeatedly apartment work, defendant failed her after defendant had returned late up pick evening, had Virginia argued.12 Defendant also evidence that law enforcement officers have presented may obtained from defendant’s residence a sock with defendant’s semen on it. Virginia Castaneda testified that and defendant’s officer other officers parole 1998, 20, search, came to their on residence and conducted a April parole after defendant failed to to his officer. She recalled that when report parole arrived, sex, officers she and the defendant were and that having defendant and himself off or testified ejaculated with boxers socks. She that the wiped boxers, socks, officers took from dirty T-shirts the bedroom. She further testified that when the residence was searched law again enforcement 8, on officers the officers seized almost all of the May family’s clothing.13 3. Rebuttal

Several law enforcement officers testified their search of concerning parole 20, defendant’s residence on officer April 1998. Defendant’s recalled parole Castaneda, when he that first saw she was in with an Virginia bed intravenous arm, (IV) attached her looked He ill.” asked her the drip very “[s]he IV, reason the and she said that she was with her having problems search, At the of the time the officer was unaware of the pregnancy. parole crimes, charged and he did of the learn homicide of investigation defendant until three to four weeks after the search. parole only clothing seized the search was a beanie a shirt the officer during found parole 12 Virginia during Castaneda testified the prosecution’s picked up case that defendant her 30, 1998, Monday, p.m., nothing work on from March at 5:30 and there was unusual in his day. thought day, Tuesday, also testified that it behavior She she was the next they picked up argued. defendant her late and 3, 1998, A prosecution’s April began forensic scientist testified in the case that on she procedure began the the She of processing April sock from room floor. extraction DNA on completed typing April days parole of four search process DNA on before of defendant’s residence. confirmed he found the kitchen. He a cabinet in of

hidden top Sentra, he did not but of Nissan burgundy in the trunk Virginia’s screwdriver officer, also unaware who was A second seize screwdriver. parole search, time confirmed investigation parole homicide officer, seeing did not recall testimony parole except accompanied parole about A officer who a screwdriver. hearing police her as and described recalled that was attached an IV Virginia drip, officers the lead the Montclair Police Department, ill.” A detective from “obviously crimes, that no one from in the testified charged agency investigation defendant on involved in the search of April department parole after search “sometime He that he estimated learned parole 1998. 6.”May it was initially possible

Elizabeth Ibarra testified that she thought her mind after she reviewed changed had been with her on March but her that, testified unlike records and to her relatives. She-also telephone spoke Gabriel, Jr., claimed to have seen with dark-haired whom Ybarba and woman until years, defendant on March she had had blond hair for approxi- been two at trial. testified she had never weeks before She mately testifying to defendant’s residence in Ontario.

B. evidence Penalty phase

1. case Defense witnesses phase At defendant’s defense its request, presented penalty Hall, Ph.D., reviewed defendant’s first. Richard a clinical psychologist, (CDC; now the records from California of Corrections Department Rehabilitation), of Corrections and and performed psychological Department to the Adult Intelligence evaluations on defendant. Wechsler According Scale-Revised, IQ average of is in the low defendant has an which of intellectual to the Minnesota range functioning. According Multiphasic was “a (MMPI-2), defendant was and he Personality Inventory-2 depressed, defect; in male oriented Hall found no indication of mental very person.” Hall he no of or Dr. schizophrenia. found evidence particular, psychosis to a society characterized defendant’s in as difficulty adjusting personality Hall, to records from According disorder caused his environment. by a security incarceration in maximum CDC reflected that during violations, out of he rules “for either being was found of guilty prison, the general or and was isolated from by being bounds fighting,” disciplined unit. housing in a higher security population prison and in that there are four levels California security prisons, Hall explained levels, movements that levels 3 and 4 are maximum where security prisoners’ 1312

are and He highly regulated controlled. stated that a defendant to sentenced life without imprisonment of will never be possibility parole placed Television, radio, of a outside maximum an security setting. and hour in are available to a in yard levels 3 and unless the fails to prisoner prisoner that, studies, follow rules. Hall testified to con- prison according prisoners in fined levels 3 and tend and rigid structure become adapt good workers, and have difficulty outside of a structured may surviving highly environment. Hall that prison defendant could function in a opined prison “without much and that setting testified his evaluation difficulty,” nothing of defendant led him to could believe defendant not survive in prison rest of his life. M.D., Gawin,

Frank whose on psychiatrist specialty focused the effects brain, of medication and on the obtained drugs information from defendant about use. From 12 to of history drug years defendant abused age, inhalants, and at he and age began using According ethanol. marijuana Gawin, Dr. at such an drug early age use indicated that defendant was in an environment which were available and He drugs also testified permitted. maturation, use at 12 drug years limits a child’s for age capacity interfering with the and and ability social moral perceive signals correctly to remember the of one’s actions. Defendant’s consequences drug use mild from when he at two and age age was working jobs Dr. maintaining Gawin characterized defendant’s life relationship. age from stable,” 20 to as but “relatively acknowledged during this period, defendant (now was sentenced to the California Youth Division of Authority twice, Justice) Juvenile burglary assault with a deadly weapon, from the Youth was arrested for of a escaped Authority, drugs possession rifle, sawed-off and fathered children with three different At 24 women. defendant years age, began using heroin cocaine. His cocaine use ended a result of age as attack while on the experiencing drug, panic heroin, but became and used it in moderate amounts in dependent morning to stave off periodically during day, withdrawal symptoms sum, testified, and his In Dr. Gawin increasing depression. suffers disorder, from the mental illnesses of a drug dependence, major depressive and an disorder. anxiety Morales, Ph.D.,

Armando a of and professor psychiatry biobehavioral sciences, culture, who in the of received specialized study Hispanic gang record, information and about defendant’s his and interviewed family prison defendant. Defendant’s were maternal farmworkers who emi- grandparents to the United States from Mexico in 1920. Defendant’s grated grandmother drinker, from but grandfather suffered and his was a depression heavy Dr. Morales not able establish an whether was grandfather alcoholic. Defendant’s mother also that she was a moderate herself reported drinker from 17 to 22 of Dr. Morales learned heavy years age. Although sibling the mother’s among beverages”

there was use of alcoholic “heavy were alcoholics. siblings he could not confirm whether group, was 12 when she that defendant’s mother was raped Dr. Morales testified first three “marital of and thereafter had age, relationships.” years She and the man was 19. when she was 14 of years age relationship began became age this At she birth a gave daughter during relationship. this During drinker.” “heavy with a of who was a boy, years age, involved to five gave she birth which lasted from 1958 to second relationship defendant, in Each of the who was bom 1960. including and daughter, sons histories, was on drags, had and adult criminal boys dependent five juvenile with At of entered age, relationship and served time in she years prison. incarceration, had who of and and history they a man had a drug problems sons, and served time drug prison. two both of whom developed problems and his left defendant Dr. Morales that defendant’s mother reported worked, but her parents with her while she siblings during day parents children, and some his brothers had little and defendant control over numer- in “turf-oriented” Morales identified became involved Hispanic gangs. factors to gang including poverty, prob- ous related membership, parenting lems, in the or the who are in family gangs, family members violence and history, age. education and neighborhood, employment person’s poor members, and stated surrogate He described as families their gangs 21 years into a at 12 to 15 At 20 or age. defendant was initiated gang years Moreno, were siblings defendant married Elvira whose and age, parents lived defendant family. better educated than defendant’s During period from Elvira’s he obtained and dissociated himself family, employment brothers, became involved his but he was drawn back to his eventually peers, wife. again, rejected and was drugs diagnostic fit within three psychiatric Dr. Morales found abuse disorder substance mood categories: dependence, (depression), anger of his included personality. dependent Symptoms depression drive, his own or direction when was on irritability, and a lack energy, have may than institution. Morales stated that depression rather in an depen- With biological environmental components. respect 10, 11, or 12 of age, Morales stated that after years dent personality, follower, defendant became a on peers. dependent of defendant testified his behalf. Lucia relatives friends Various Castaneda, son, Jr., in December to defendant’s Gabriel gave Gonzalez birth thereafter. Their son but with defendant ended soon relationship her was three in until defendant defendant on or four weekends visited week after in one arrested for a violation 1998. April Approximately parole arrest, that defendant their a asked son claim that firearm found in Gabriel, Jr., defendant’s residence to the son. belonged confirmed defendant exerted “a bit” little on him to claim of a pressure ownership firearm, but defendant respected his decision not to claim He ownership. death, asked a to consider other than he punishment because would like to become better with defendant. acquainted ended,

At about time defendant’s with he Gonzalez relationship began Moreno, a with Elvira became relationship who married in They pregnant. 1982, and lived with her for a together almost but ended parents year, she their found when she in his She relationship syringe testified pocket. once, defendant treated her with but struck respect, her causing bruising around her Defendant eye. was incarcerated most of their during son’s childhood, son, but he wrote and letters drew for their and pictures advised school, mother, him in take care of stay stay his and from away gangs. Defendant’s father-in-law testified that defendant his complied with rules while in the residing Morenos’ home in but and “went changed other when he way” associated with his brothers and other relatives. and Louie mother

Henry Arroyó, sons of defendant’s and stepfather, testified that each of their mother’s sons to a each had eight belonged gang, served in time and most had used prison, heroin. his According Henry, father, defendant, who raised” also heroin. and “practically used Both Henry Louie testified never saw defendant strike woman. they sister, Castaneda,

Defendant’s Dianna testified that defendant was protec- her, tive towards and never she saw him abuse a woman. defendant When residence, from released she took him her and prison into months, however, became very active in her church. After a couple following rules Dianna established for stopped in her home living Castaneda, and he the wife brother began relationship Virginia of his Juan. Dianna and defendant moved out her expressed disapproval, resi- dence attending church Dianna’s friend stopped services. Yvonne Tovar testified that she had known defendant She approximately years. cordial, described him as “nice everyone, very very she respectful,” could not recall him ever a woman. striking

2. Prosecution case Castaneda, brother, testified that he and brothers George his heroin, were and raised” their had but “bom used neighborhood gang time, after from released from a second his being George stayed away prison He stated that their family without violations. completed parole obtain and alcohol for the encouraged drags the brothers stepfather their with marijuana drank and smoked and that the brothers stepfather, strike a female. had never seen defendant George stepfather. in armed defendant concerning robbery an

Testimony was presented to door his unlocking Daniel testified that as he was 1991. Hills August truck, me off up around the neck and picked an arm him grabbed “practically or the assailant would told him not to turn around His assailant ground.” all of his his and took One two searched pockets shoot him. other people tied his hands then on the ground, His assailants threw him belongings. sock, belt, the sock in his shoved his back with removed his shoe behind side, after mouth, day in his track. The kicked him in the and drove away stolen, at found defendant track was California Patrol officers Highway collision, track. Defendant a seat the scene of slumped passenger was convicted of the.offenses. Joe the San Bernardino Sheriff’s County Department, Braaten of

Deputy that an inmate testified that in June he received an note anonymous a his cell. He identified named “Gato” had in a lotion bottle in syringe “Gato,” as the cell defendant shared with another defendant and searched bottle, stored He in the lotion but he found a syringe inmate. found nothing “Gato,” a inside a labeled a needle stored inside soap deodorant container container, and a weapon a inside a key baby jar, homemade handcuff powder cross-examination, manufactured from a hard view. On plastic spoon plain cause trouble for other Braaten sometimes agreed prisoners attempt He it odd was left in plain confirmed he found weapon prisoners. view, did owned items occupants and said he not know which cell’s away in the He testified that when an inmate is from cell found cell. also for a recreation the cell door remains five during approximately period, open minutes, and it inmate to into the cell for a go would be another possible brief time. when he was in jail,

Elizabeth Ibarra testified she met defendant later, Less than six months when he was released. they began living together and were arrested following stole stereo in order obtain they drugs, from lived they together chase. After were released high-speed they prison, . . . And angry. She testified that when uses again. drugs, gets “[defendant] him, mad, sex when he he hits.” When she refused have gets “[h]e’d tie I do She that he would her mad and would have to it stated get anyway.” an when She recalled instance leaving night. to his arm her from prevent her, beat sister contacted Ibarra’s mother defendant braises on seeing to come to retrieve Ibarra. Ibarra’s mother recalled brother wrists, her had and testified that Ibarra told tried Ibarra’s neck and choke her. Psychologist Sandra Baca testified that it common for victims of abuse abuse, to minimize or and to return to the abuser. She the deny reviewed data defendant, Dr. Hall in generated the MMPI-2 test to and applying determined calculations, that Hall had made an error in his in his resulting conclusion that, calculated, that defendant was She depressed. correctly testified the MMPI-2 results reflected that defendant “meets the criteria for an antisocial and disorder with some with personality features and some alcohol depressive and substance abuse.” Dr. Baca stated that with antisocial people personality disorder not do and develop feelings other use others to people, they further goals. their own Such individuals be may outwardly gracious, doors,” contrast to they exhibit “behind closed and persona are many “master Unlike manipulators.” are depression, “personality disorders ... Baca, amenable to treatment at all.” to Dr. these individuals According know what are but do they doing, they not think about being only apprehended, after are do an they apprehended devise for their actions. they explanation Finally, she testified that defendant could have led his life but differently, “he has chosen exercise the wrong choices.”

II. DISCUSSION A. Pretrial Issue absence two hearings

Defendant’s from Defendant contends his absence from two conferences violated his right to Fifth, Sixth, be the trial under present during and Fourteenth Amendments Constitution, I, to the United States article sections and 15 of the California Constitution, and Penal (b), Code sections subdivision (a). subdivision

The first conference between the court and counsel occurred during jury selection, resume, as proceedings were about to and the trial asked to judge “see counsel for a moment.” Out of the hallway of defendant presence and the jurors, the court stated that it “needed prospective the record put and inform you both” that had told the prospective juror court’s jury someone, that coordinator “had been juror informed prospective by they who, couldn’t tell were all to be they going videotaped.” According court, coordinator had one jury “checked found no video camera outside room. And said he didn’t see jury assembly [the bailiff] out in the it I don’t know where it came from or anyone hallway. who or if know at all.” The you about it the defense anything prosecutor counsel would if a camera into responded they object brought someone court. The court reiterated its counsel was ensuring aware purpose and added coordinator did not have the name. “So report, juror’s than that little information other in a situation where we have very we are stated, it at ignore “I am just going information.” Defense counsel general do same. Finally, that he would this The added point.” prosecutor more, the information to bring if it would court stated that it learned anything counsel’s attention. after defense conference occurred selection again during jury second differences between jurors

counsel undertook to explain prospective defense trial. to the of With guilt penalty phases respect penalty phase, he had. You counsel stated that can consider what “[y]ou upbringing type The he You can consider his education.” can consider the area lived in. bench, that counsel to the and the court directed asked approach prosecutor conference, At the hallway. prosecutor objected meet with the court in incorrect statements of law. that defense counsel’s comments were but jurors, court directed defense counsel not to preinstruct prospective to only he to objecting clarified that prosecutor preinstruction, to forth.” Defense counsel then asserted “neighborhood reference so “if I versus talking aggravating mitigating, prospective jurors] start about [the it had don’t know what the heck I’m The court talking responded about.” introduced the circumstances already aggravating mitigating concepts to his com- rephrase to the and defense counsel prospective jurors, agreed resumed, When voir dire counsel noted that the court had ments. defense factors,” and asked alluded to “the factors and the aggravating mitigating is whether on the “would that once the over and anyone guilt phase feel panel what, [defendant], won’t listen you you if convict that no matter at point to the be me in case?” mitigating might factors that this presented a a be criminal defendant has to Although generally right personally “ First, trial, at this there are various limitations upon right. present ‘[u]nder clause, Amendment’s a criminal defendant does not Sixth confrontation have a to be at a unless his right personally present particular proceeding “interference with for necessary is appearance prevent opportunity [his] ’ v. Cole (People (2004) 33 Cal.4th effective cross-examination.” [Citation.]” (Cole); Kentucky v. 532, 1231 P.3d see also 95 Cal.Rptr.3d [17 811] Stincer 482 U.S. L.Ed.2d 107 S.Ct. 2658] [“the a defendant an Confrontation Clause’s functional purpose [is to] ensur[e] cross-examination”].) no explanation Defendant provides opportunity had how conferences voir dire concerning during jury proceedings any these cross-examination, nor do we relation to his for effective opportunity perceive Gray (2005) 37 Cal.4th People (See relation. v. (Gray) [litigants point must each legal 118 P3d support 496] argument].) “ clause,

Second, due a crimi- ‘under the Fourteenth Amendment’s process a at particular nal defendant does not have be right personally present unless he at finds himself . . . that is critical proceeding “stage to [the] outcome” and “his would contribute to the fairness of the presence proce- ’ (Cole, supra, Kentucky 1231; dure.” Cal.4th at see also p. [Citations.]” Stincer, supra, [same].) 482 U.S. at Defendant contends his presence the first conference concerning rumor would have contributed videotaping to the of the trial. fairness He bases his contention event upon subsequent selection: later during jury morning, the same had who prospective juror stated, to the spoken jury coordinator about in the videotaping presence other that the prospective jurors, courthouse allowed and that he videotaping was concerned about retaliation in the event the gang returned a guilty that, conference, verdict. Defendant asserts had he been at the present would have had the opportunity to not to object decision pursue Then, defendant, matter. according juror could have been prospective outside the questioned presence other and the prospective jurors, jury pool would not have been subsequently comments exposed concerning gangs. His theory is and therefore speculation, to establish that the inadequate conference was “critical” or that his would have “contributed to the presence fairness” of the procedure. (People v. Harris 1269, (2008) 1307 [78 295, v. Waidla People 727]; 690, R3d (2000) 185 see 22 Cal.Rptr.3d Cal.4th (Waidla).) 396, 742 996 P.2d Cal.Rptr.2d [94 46] conference, With to the second the respect concerning of defense propriety factors, counsel’s of description defendant mitigating asserts he “could have assisted counsel by information about himself that providing could have been used to the of a explain in that concepts aggravation mitigation way would have the avoided Defendant’s claim prosecutor’s objection.” lacks merit. The conference concerned a legal issue—whether defense counsel was misstating may factors constitute mitigating circumstances. There- fore, Perry present. (People did defendant not have to be right v. 38 302, 30, 235].) Cal.4th 312 132 P.3d Cal.Rptr.3d [42

For the same we reasons have under rejected contentions Constitution, the Sixth and Fourteenth Amendments federal we also “ reject his assertions of error under state law. ‘The state constitutional right be at trial is coextensive with the federal due present generally process v. Butler (People right. 46 Cal.4th [Citations.]’ [Citation.]” I, 596].) P.3d Cal.Rptr.3d “Under article section 15 of the Constitution, California ‘a criminal defendant does not have a to be right “either in at present chambers or bench discussions that occur personally of outside other jury’s presence of law or matters as to questions ‘ “ which does not bear a to the ‘reasonably substantial relation presence [his] ” ’ ” of fullness his to defend opportunity against charge.’ [Citations.]’ (Cole, supra, 1231.) 33 Cal.4th at Defendant no provides [Citations.]” concerning additional the asserted violation of his under the argument rights Constitution, and California we no manner in which his perceive presence relationship substantial reasonably bore either of the two conferences reason, had For the same charges. to defend against opportunity at these bench and 1043 be personally present no under sections 977 right (Cole, discussions, at p. waiver nor was a written required.

B. Phase Guilt Issues

1. concerning asportation Instruction erroneous instruction the trial an court Defendant contends provided offense of for the kidnapping, the element of concerning asportation Fifth, trial under the due and a fair violated his thereby rights process Constitution, Sixth, to the United States Amendments Fourteenth Eighth, I, and 15 of the California Constitution. and article sections 7 9.50, No. to CALJIC The trial court instructed jury, pursuant (a).) The instruction (§ subd. the crime concerning kidnapping. “for a distance movement of the victim observed that requires kidnapping taken from in character.” It further in explained, language substantial (1999) 20 Cal.4th our People opinion Martinez . that, . . whether distance (Martinez) P.2d determining 512] “[i]n character, the circum totality should consider you is substantial to, movement, not limited actual stances but attending including, increased the risk harm above moved or whether movement distance movement, the likelihood which to the or decreased existed prior detection, in a victim’s foreseeable danger both inherent increased the the attacker’s enhanced commit and attempt opportunity escape (Italics added.) additional crimes.” Martinez, supra,

The events at issue here occurred before decided, exclusively when “the standard dependent asportation [was] 233; 21 Cal.3d (Id. Caudillo People see v. the distance involved.” atp. Martinez, 274], 20 supra, P.2d overruled Cal.Rptr. Martinez, consider instead 229.) held that the should jury Cal.4th at “ In we p. ” the distance deciding whether ‘the of the circumstances’ totality “ ” (20 character.’ Cal.4th victim was moved was ‘substantial in be retroac- standard could not applied further concluded that the new We the factual basis enlargement it effected an unforeseeable tively, because distance” under the kidnap- what a “substantial constitutes determining statute, enlargement. fair of the warning and the defendant did have ping concedes, reasons, standards as the General the Attorney For the same also actions. We cannot be applied set forth in Martinez concedes, conclude, that “it is reasonably probable as General Attorney that a result more favorable to would have been reached in [defendant] absence of the error.” (1956) (People Watson Cal.2d P.2d 243].) The evidence that prosecutor it would be more difficult to presented office, hear noises made in the room than in the procedure victim’s stated that the movement was jury great distance in terms of actual “[n]ot feet,” and urged to focus whether the jury movement increased upon Thus, likelihood of the attack and decreased the risk of detection. evidence and focused of the argument upon circumstances rather totality Therefore, than the distance. the conviction for must be reversed kidnapping and the based findings upon must be vacated. kidnapping

2. concerning Instruction malice implied Defendant contends that the trial court’s instruction defining “implied malice” him of his to due deprived rights to trial and to be process, by jury, Fifth, free from the of cruel imposition and unusual under the punishment Sixth, Constitution, and Fourteenth Eighth Amendments the United States I, 7, 15, and article sections 16 and 17 of the California Constitution. The trial court instructed the who jury “[e]very person kills unlawfully a human with being malice or or aforethought commission during attempted commission of burglary, use of force kidnapping, rape, sodomy by or all life, of which are felonies robbery, to human is inherently dangerous . (CALJIC 8.10.) the crime of murder . . .” guilty No. The court further “ [|] instructed that bemay either Malice is express implied. ‘[m]alice’ when there is manifested express an intention Mil a unlawfully to human Malice is being, when: The an Mlling resulted from intentional implied [f] [][] act, life, The natural of the act are consequences dangerous to human [][] ^[1] The act was deliberately performed with knowledge danger to, for, Next, with conscious . disregard (CALJIC 8.11.) human life. . .” No. court instructed the murder which Mnd perpetrated by any “[a]ll willful, deliberate and premeditated Mlling express malice afore- “willful,” is murder of the first and it thought degree,” terms explained “deliberate,” 8.20, (CALJIC added.) No. italics “premeditated.” court murder, then instructed jury concerning first degree felony explaining intentional, unintentional, accidental, a be or Mlling may but it will be murder of the if first it is committed in the of degree course felonies. specified (CALJIC 8.21.) No. the

Defendant asserts that trial court’s instructions autho erroneously the rized to find him of first murder based jury guilty degree finding a upon “ instruction[], of malice. ‘In implied reviewing erroneous purportedly [a] “we ‘whether there is a reasonable likelihood that the inquire jury has applied the in a instruction that violates the Constitution.” challenged way’ [Citation.] “ to a jury instruction that ‘a single we are mindful conducting

In this inquiry, isolation, viewed in the context but must be artificial not be in may judged ” we must ‘Additionally, charge.’ of the overall [Citation.] [Citations.]’ and of understanding and intelligent capable that are jurors persons assume (People given.’ which are all instructions correlating jury [Citation.]” 163,. 183 P.3d Richardson 1146] Cal.4th (Richardson).) correctly, but unnecessar in the case The instructions present however, not, the inform did malice.” instructions ily, “implied explained malice. Nor murder degree upon implied that it could find first based jury the have understood a that the would jury there reasonable likelihood that addressed The two instructions finding. instructions to authorize such and 8.21—correctly Nos. 8.20 of first murder—CALJIC degree the bases found, be and murder could degree the two scenarios in which first explained willful, deliber the context of No. malice in express CALJIC 8.20 required the ate, view that would reject jury and murder. We defendant’s premeditated 8.20, murder with express CALJIC No. which referred to have understood murders, of intentional malice as subset aforethought, only encompassing of malice also would support and would have assumed that a finding implied event, In because found jury a conviction of first murder.14 degree sodomy, of and burglary, robbery that was committed in course killing murder, regardless it that the necessarily killing degree felony found was first willful, with of its of the malice in connection requirement understanding deliberate, we find no merit murder. premeditated Finally, that the have “used malice as standard jury might implied assertion with the murder.” CALJIC of a in connection finding felony commission murder, that, it must be proved No. 8.10 to find defendant explained guilty or occurred killing aforethought during was done with malice “[t]he (Italics of’ various felonies. specified commission or commission attempted added.) felony connection with charge CALJIC No. 8.21 explained intent to commit or burglary, kidnapping, rape, murder specific “[t]he thought, “I’m prosecutor’s statement that defendant must have Defendant notes the risk,” obviously great indicated to the putting person this at and asserts statement resulting degree strong in death constitutes first murder. conduct that has likelihood “you have prosecutor explained have to Defendant has taken the statement out of context. The arguing In aforethought Malice is defined as intent to kill.” the course the intent kill. [to] deliberate, intentional, willful, killing premeditated, prosecutor reviewed that the was victim, her, her, moving binding assaulting including steps various defendant had taken in her, stabbing it acts sexually assaulting times. He stated was obvious the her numerous question whether he should continue his were intentional and that defendant had much time to my something really Is I want gotten I in over head? this stop assault: I here? Have “[S]hould Yet hurting obviously putting person great this risk. obviously person. this I’m do? I’m willful, is a . after he had done this. This the defendant went ahead . . and killed his victim Thus, deliberate, prosecutor arguing that the act an intent kill.” premeditated kill, “deliberately performed with merely they were reflected an intent actions for, (CALJIC to, disregard danger human life.” knowledge with conscious 8.11.) No. force, or sodomy use . of or . . must a robbery beyond be proved Thus, reasonable doubt.” could not logically have concluded that if merely acted with conscious for human life disregard (CALJIC 8.11), felonies, No. did not intend to commit the he could specified be found guilty of first degree murder. felony

3. Sufficiency evidence sodomy, kidnapping, robbery, of of

burglary, and an independent purpose felonious Defendant contends the evidence was insufficient to convictions for support kidnapping, burglary, robbery, or to establish an sodomy, independent felonious in connection with the purpose commission of these felonies. Therefore, asserts, felonies, the convictions for these four any conviction felonies, murder these felony premised upon four and the circum- special stance that the findings murder was committed in the course commis- felonies, sion of these four violate right to due process law under the Fifth and Fourteenth Amendments the United States Constitution.

“ ‘When a to the considering challenge the evidence to sufficiency conviction, a we review the entire support record in the most light favorable to the to determine judgment whether it contains substantial evidence—that is, credible, reasonable, evidence that is and of a solid value—from which reasonable trier of fact could find the defendant beyond reasonable guilty 1, 323, (2008) doubt.’ v. (People 45 Cal.4th Lindberg Cal.Rptr.3d [82 whether, 664].) 190 P3d relevant question is after viewing ‘[T]he evidence in the most light favorable to any rational trier of prosecution, fact could have found the essential elements of the crime beyond reasonable 307, (Jackson 560, doubt.’ v. Virginia (1979) 443 U.S. L.Ed.2d 318-319 [61 2781]; 434, (2000) 99 S.Ct. see v. Staten 24 Cal.4th People 460 [101 213, 11 P.3d Cal.Rptr.2d identical standard under the applies 968] [‘An Constitution.’]; California (1995) v. Cain People Cal.4th 39 [40 481, 892 P.2d Cal.Rptr.2d same standard to the applies sufficiency 1224] [the of the evidence to sustain a circumstance special finding].)” Lewis (People v. 46 Cal.4th 1119], 1289-1290 P.3d Cal.Rptr.3d (Lewis).) fn. omitted it “Although is a defendant jury’s duty if it acquit finds the evidence circumstantial of two reasonable susceptible interpreta tions, innocence, one of which suggests guilt the other it jury, court that be appellate must convinced of guilt beyond reasonable doubt. (People [Citation.]” Kraft 68].) 1053-1054 5 P.3d

1323 a. Kidnapping our of the element of asportation,

As above in discussion explained reversed, error the relevant upon must be based conviction kidnapping Therefore, whether substantial evidence we need not address instruction. jury the conviction. supports

b. Sodomy one penis is sexual conduct of contact between consisting “Sodomy however of another sexual Any penetration, and anus person person. (a).) (§ subd. sodomy.” sufficient to the crime of slight, complete is and no there is no evidence of Defendant makes two contentions: penetration, (See alive occurred. any People evidence the victim was when penetration P.3d (2002) 28 Farnam Cal.4th 988] [the victim be alive at the time of must penetration].) bound, naked from

The evidence establishes that the victim was gagged, area, down, her anal there and in a manner that exposed waist positioned area, which defendant’s were dried feces around her anal and the sock on facts, From a rational seminal fluid was was stained with feces. these found the victim’s trier of fact could conclude that defendant’s penis penetrated asserts, however, anus. are rational Defendant there other explanations evidence, for the as or masturbation defendant by circumstantial such rape contention, In he cites with defecation the victim. of this together support 2.01, . may CALJIC No. instructed the that “a . . finding guilt which jury are not be on evidence unless the circumstances proved based circumstantial (1) with the that the defendant only theory guilty consistent crime, The but cannot be reconciled with other rational conclusion.” 2.01, No. and issue of was instructed with CALJIC resolved defendant. against penetration contention, was no evidence victim

Defendant’s second there is (1) she time also The evidence establishes alive at the fails. penetration, inflicted, and bound most all of wounds were gagged when already inflicted, and she (2) she was alive the 29 wounds her neck were when her after the lethal wounds to long have survived as as 15 minutes might facts, a trier and vein rational carotid were inflicted. From these artery jugular when defendant sodomized of fact could conclude the victim was alive addition, view, the timeline confirms her. contrary In was alive and sodomized the victim before she died. victim unperturbed a.m., at began arriving left the clinic before patients defendant 9:28 entered, this During overpowered, gagged 10:30. period, table, her, feet, victim, her bound her to 50 put procedure moved socks, shoes, off her other her clothing, stabbed stripped prodded times, and also in sexual Defendant’s there engaged activity. contention that is no the victim evidence was alive when occurred is without penetration 515, 802, (2002) merit. v. (People Bolden 29 Cal.4th 553 Cal.Rptr.2d [127 (Bolden).) 58 P.3d 931]

c. Robbery is “the Robbery taking felonious the in personal property possession another, will, from his or immediate against and person presence, (§ 211.) means of force fear.” accomplished by or Defendant contends there is no substantial evidence that he took of the victim’s or that he property, formed the intent take the to the death to victim’s property prior prior her becoming unconscious.

The the evidence reflects that victim a a typically wore watch and work, and her and ring that watch her were from ring missing her body addition, after her death. In defendant a watch a gave and to Gloria ring Salazar, that “this me stating got bitch mad.” The watch defendant gave wore, Salazar was a watch similar to the victim the time of trial its except by black leather band was and its finish worn or faded. The missing appeared stone, Salazar was a ring gave gold green and the victim’s was ring described as with an emerald stone. gold The evidence reflects that the victim area, her and wallet kept purse in the office where she was apparently book, confronted defendant as she was a that and her reading purse wallet were from the the missing scene. satchel victim carried Finally, home, $40, $30 between work and contained which cash of was petty the evidence the to the missing. Reviewing light most favorable judgment, we conclude substantial evidence the that took supports conclusion defendant watch, wallet, the ring, (See victim’s and satchel. v. DePriest purse, People 1, 896, (2007) 42 Cal.4th 47 (DePriest) 163 P.3d Cal.Rptr.3d 896] is left dead or in ‘relative that person dying proximity’ [“Where property taken, was and such is found later property possession, is entitled to infer that the victim robbed that the jury was defendant crime.”]; committed 30 Cal.4th People Maury 402 [133 68 P.3d was in Cal.Rptr.2d property possession 1] [because infer missing, victim was could that the defendant reasonably stole the certain it property].) circumstances no witness was watch, same which on the no witness saw victim was ring wearing crimes, wallet, that the satchel not day ring, were purse, recovered, used, and that the not do not this victim’s credit cards were render evidence insufficient. take the formed the intent to property,

With to when defendant respect only reflects had been sporadically,15 the evidence employed did money pay heroin and he not have using he was regularly, 1999) F.3d (9th (See often.” v. Mitchell Cir. “very U.S. drugs need lack of establishes a likelihood of desperate 1107-1109 [“addiction richer”]; v. Miranda self[-]control, interest in U.S. financial just being heroin habit (9th 1993) F.2d of the defendant’s Cir. [evidence see also robbery]; a motive to commit a bank was admissible to demonstrate 1, 117 P.3d v. Cornwell People 622] more, (Cornwell) not admissible prove without poverty, [evidence were from the missing motive for theft or wallet robbery].) purse first the victim. The area where defendant would have encountered office floor, and ring was on the an unusual location. The watch were victim’s book around her tightly when she discovered with shoelaces tied not was present back, behind her her wrists and fingers wrists. Because her hands were bound her have been in defendant’s view he with a would as directly prodded facts, these sexually her on table. From screwdriver assaulted steal, that had a motive to rational trier fact could conclude defendant he and that he formed the intent to steal from the victim before traveled to office, office, thereafter, in the bound her her or soon when he confronted her DePriest, wrists, (See 42 Cal.4th at sexually supra, assaulted her. did 46^-7 defendant’s rejected complaint pp. prosecution [court after he eliminate the the defendant formed the intent steal used possibility force, he accosted substantial evidence he intended to when his finding steal victim]; (2003) 31 Cal.4th People Cal.Rptr.3d Yeoman 128-129 [2 (Yeoman) must be before or during 72 P.3d to steal formed 1166] [intent force]; v. Navarette 30 Cal.4th application People 89, 66 P.3d can rob a living person Cal.Rptr.2d certainly 1182] [“one Therefore, and then his or her killing taking by person property”].) evidence conviction. defendant’s robbery Again, substantial supports inferences do evidence of alternative not render insufficient the substantial commission of robbery.

d. Burglary commit who or the intent to enters a room with Any person building (§ 459.) Defendant contends there felony or larceny guilty burglary. clinic, that, at he intended no substantial evidence the time entered the was therein. felony to commit March, February had Virginia early Castaneda late worked testified from days” Toyo day each at than “couple two businesses other Tires. The crimes working day Toyo first Tires. defendant’s intent . . . be inferred from all may

“[A] of the facts and circumstances disclosed evidence. v. Carter (People [Citation.]” 117 P.3d (Carter).) As noted 476] above, the evidence establishes that defendant had a motive to steal. The evidence also intercourse, reflects that he desired anal but his girlfriend addition, resisted. In the record reflects that defendant knew victim would be arrived, alone in the office when he and that he his vehicle where it parked could not be seen from inside the clinic. the evidence Finally, reflects that defendant, screwdriver, armed with a stole victim’s moved her property, clinic, her, her, back of the table, gagged bound her on the removed put clothes, her times, sodomized her and stabbed her 29 all in less than an hour. From acts, the swift execution of these a rational trier of fact could conclude clinic, that when defendant entered the he intended to rob and sodomize the victim.

The fact that the evidence also other may scenarios does not support render insufficient the evidence (Bolden, the verdict. supporting 29 Cal.4th at supra, Defendant’s suggestions that the vehicle was not the one he was or that he driving, at the parked restaurant because he to dine there planned clinic, after his visit or that he there because he missed the parked turn clinic, to drive or that the victim him angered entered the after clinic, do not preclude reasonable inference that he entered the clinic with addition, intent to commit a therein. In felony the circumstance that the victim may have admitted him into the clinic does not negate felonious 894, intent. v. (People Frye 25, 18 Cal.4th P.2d Cal.Rptr.2d [77 who enters for a person felonious 183] [“a be found purpose may of guilty even if he burglary enters with the consent”].)16 owner’s or occupant’s

e. Independent purpose felonious “ a prove felony-murder ‘[T]o special-circumstance allegation, must show that the prosecution defendant had an independent for purpose is, commission of the felony, the commission of the felony was not incidental merely to an intended murder.’ v. (People Lindberg, [Citations.]” 45 Cal.4th at supra, 27.) p. the truth jury deciding “[A] special circumstance is not allegation required assign to the defend hierarchy ant’s motives in order to determine which concurrent intents was multiple but ‘primary,’ instead need jury only determine whether commission of was or underlying felony was not merely incidental to the murder.” (Bolden, supra, 558.) 29 Cal.4th at ‘concurrent intent to kill p. and to “[A] we Because find substantial evidence that felony, defendant entered the clinic to commit a we need Attorney not address the theory entry General’s alternative that defendant’s into the procedure room with the intent felony burglary. to commit a also constituted circum- a felony-murder special will an felony support

commit independent 472, 511 Cal.4th v. (2007) 41 (People [61 Abilez stance.’ [Citation.]” (Abilez).) P3d 58] felonious of an independent there was no evidence Defendant contends sodomy, based upon circumstances special respect purpose the substantial evidence As previously, and robbery, burglary.17 explained and also burglary sodomy, robbery convictions supporting to an incidental not merely that those felonies were the conclusion supports murder, ancillary behavior was not incidental intended murder. “This in support an felonious purpose but demonstrates amply independent (Abilez, supra, Contrary the . . . circumstances.” special v. (2004) 542 U.S. 296 Blakely Washington to defendant’s suggestion, U.S. (Blakely), (2002) 536 Ring L.Ed.2d 124 S.Ct. 2531] Arizona Jersey v. New Apprendi (Ring), L.Ed.2d 122 S.Ct. 584 [153 2428] do not (Apprendi), 120 S.Ct. 530 U.S. 466 L.Ed.2d 2348] circumstance. find each element of special that the jury require expressly included second 4. Absence instructions on lesser offenses murder, involuntary manslaughter, imprisonment, degree false and grand theft second concerning

Defendant contends that the absence of instructions jury murder, theft and grand false degree involuntary manslaughter, imprisonment, trial, a determination of him to due a fair of his deprived rights process, fact, reliable death eligibility, material determination of every proper Sixth, Fifth, Eighth under determinations of guilt penalty I, Constitution, and article to the United States Fourteenth Amendments 7, 15, 16 and 17 of the California Constitution. sections on the crime only to instruct duty jury is the ‘court’s “[I]t offense that is but also on lesser any with which the charged, been the evidence to have and shown charged both included in offense 789, v. (2009) 45 Cal.4th 826 (People Gutierrez [89 committed.’ [Citation.]” 625, see Beck v. Alabama 225, 847]; (1980) 447 U.S. 637 P.3d 200 Cal.Rptr.3d 392, the court 2382].) even on “Conversely, request, L.Ed.2d 100 S.Ct. [65 there is substantial lesser offense unless ‘has no to instruct duty (Cole, supra, 33 Cal.4th such instruction’ evidence to support [Citation.]” matter ‘any evidence ... no evidence “is not merely Substantial ‘ [citation], from which a jury composed weak’ but rather “evidence how 17 in the relevant upon based error kidnapping the conviction for must be reversed Because instruction, supports the conclusion whether substantial evidence jury we need not address kidnapping with the conviction. purpose felonious in connection independent defendant had an ’ offense, concludeQ” reasonable could . . . [persons] that the lesser but not the greater, was committed. (2008) (People Cal.4th [Citations.]” Cruz “ 636, 970].) 187 P.3d ‘On Cal.Rptr.3d we review appeal, [80 independently whether the court failed question to instruct on a lesser included offense.’ (2009) v.Avila (People 46 Cal.4th [Citation.]” 634].) 208 P.3d Cal.Rptr.3d below,

As we need explained not decide whether the evidence would have murder, of second supported charge degree because the jury’s findings establish that the jury found defendant guilty first murder. In degree felony addition, because there was no substantial evidence to convictions for support theft, involuntary manslaughter grand the court was not to instruct required the jury concerning these crimes. Finally, because conviction for kidnap- reversed, instmction, must be based ping error in the relevant upon we jury need not decide whether the should jury have been instructed concerning false as a lesser included imprisonment offense of kidnapping.

a. Second murder degree The trial court instructed the two jury concerning theories of first degree willful, deliberate, (1) murder, murder: premeditated in the killing commission of (§ 189.) felonies. The specified court indicated initially that it also would instruct the the lesser jury concerning included offense of second murder, so, degree that, earlier, but declined to do ultimately it “had stating not taken into consideration the nature of the gagging binding.” verdict did not indicate whether the conviction for first murder degree was willful, deliberate, based that the murder upon finding and premedi- tated, or that the occurred in the killing commission of felonies. As specified above, however, noted the jury found true the that the allegations murder was committed while defendant was in the engaged commission or attempted 190.2, commission of the crimes of burglary, (§ sodomy, robbery. (a)(17)(A), (D), (G).) subd. Because “the elements of murder and the felony coincide, special the true as to the . . . finding[s] special circumstance[s] here that the would have convicted defendant circumstance[s] establish[] minimum, of first murder under a degree at a felony-murder theory, regard- less of whether more extensive instructions were given on second degree murder. v. Elliot (People [Citations.]” Therefore, 122 P.3d (Elliot).) the jury necessarily found 968] murder, of first guilty degree felony and error in not any instructing second jury concerning degree murder was harmless a reasonable beyond

doubt.

Defendant the court to hold that second urges degree murder is a lesser included offense of first degree murder. He notes that we declined in felony

1329 114-115, footnote 17 People (2004) Cal.Rptr.3d v. Valdez noted, however, 296], the Attorney P.3d to address this issue. We is not a included that second murder lesser degree General’s contention murder, malice is an element of second offense of first because degree felony murder, murder. We degree felony but is not an element of first degree err in failing in that the trial court did not concluded ultimately Valdez murder, because there was no substantial instruct on second jury degree (Id. than murder.” at robbery evidence “that the was other killing p. [a] murder, Here, which (1) defendant does not address how second degree malice, can be a lesser included offense of first degree felony requires malice, murder, (2) which or what substantial evidence does require that the was other than a killing burglary robbery conclusion Supports murder. sodomy Blair (2005)

Defendant Cal.4th People also cites 1145], 115 P.3d in which the defendant was charged (See murder the administration of murder ... by by poison. § [“All . means of. . ... is murder of the first We poison degree”].) acknowledged Blair either is not satisfied that a defendant acted with jury express “[i]f malice, of second degree or it find the defendant murder implied may guilty concluded, (Blair, italics.) murder at We felony theory.” original however, (1) there was no substantial evidence that the defendant victim, intended and error in to instruct merely injure failing harmless, jury concerning second murder was because degree felony intentionally found true the circumstance that the defendant killed jury special (Id. 746-747.) the victim the administration of Similarly, poison. pp. case, (1) there is no evidence that defendant intended present merely her, the victim when he bound and inflicted her injure 29 wounds to gagged neck, table, left her on the bleeding jury’s finding procedure that the in the killing was committed while defendant was commis engaged sion or commission crimes of attempted burglary, sodomy, robbery from that the murder was of the second finding degree. precluded (See committed in the or perpetration attempt perpetrate § [murder is murder of the first There robbery, burglary, sodomy degree].) forcible fore, our in Blair degree felony murder could second acknowledgement be a included murder in the lesser offense of first circumstances degree that case is of no assistance to defendant. defendant asserts that murder instructions

Finally, degree felony “[s]econd would have whether murdered presented question victim] [defendant] [the while other than sod- committing dangerous felony burglary, kidnapping, other dangerous felony but he does not what omy, robbery,” identify have committed. might

1330

b. Voluntary manslaughter court noted that After trial it had been provided proposed instructions as lesser concerning rape sodomy attempted attempted counsel, included offenses to it of defense “with rape sodomy, inquired offenses, included to lesser are there others that are aware regard you “No, of?” Defense counsel I don’t believe so.” The responded, prosecutor stated, record, then for the on that on the lesser “just particular point includeds, I have had discussions this concerning [defense counsel] in the case on And several occasions. has particular point [defense counsel] indicated that this is a tactical on his and I will thing as to part, speculate what it is and I can understand what it not be. But not to into may may go else, we have had discussions on this.” The trial court anything responded, “All and then to review other instructions. Defense right,” proceeded did not counsel statements. dispute prosecutor’s

Based this contends the doctrine of upon exchange, respondent invited error bars defendant from the absence of an instruction challenging “the doctrine of invited er concerning voluntary manslaughter. Although ror .. . if the court accedes to a defense tactical decision to attorney’s applies that lesser included offense instructions not be v. request given” (People 1179, 543, (2007) 1015]), Prince 40 Cal.4th 1265 156 P.3d Cal.Rptr.3d [57 the record not reflect that made a does defense counsel tactical decision with (See to an instruction concerning voluntary manslaughter. v. respect People Harris, reason, 43 Cal.4th at record tactical supra, 1299 shows no [“the doctrine”]; and therefore we do not the invited error v. Wilson apply People (2008) P.3d Cal.Rptr.3d 1113] [the that the court need not instruct on agreement lesser included offenses specific error, was not invited because defense counsel did not a deliberate express Valdez, tactical v. at agreeing]; Cal.4th purpose People supra, 115-116 the record was as to which lesser included ambiguous pp. [because offenses counsel had considered and the doctrine of invited error did rejected, not apply].) “is the unlawful of a human

Voluntary manslaughter killing being malice,” without committed a sudden or heat of “upon quarrel passion.” reiterated, (§ (a).) subd. As we to establish the crime of recently (1) there be the defendant killed manslaughter, must evidence voluntary an in the heat of such would be aroused in passion ordinarily passion, reasonable under the circumstances. (People Rogers person 977].) Cal.4th P.3d The evidence 1168-1169 defendant cites in of these elements is his statement to Gloria Salazar support mad,” bitch me his statement that he had his thumb got injured “this Tires, and the of the victim’s book on the floor of working Toyo presence

1331 evidence, her office. From this he that the could have inferred proposes thumb, that he traveled to the clinic to obtain treatment for his and “[o]nce clinic, arrived at the medical events out of control transpired [defendant] because became over some conduct or comment angry [defendant] victim.” We this claim. The evidence does not reflect reject any provocation, and the (See (1992) is mere 3 Cal.4th theory v. Wilson speculation. People 926, 259, 941 838 P.2d anis insufficient Cal.Rptr.2d [“Speculation [13 1212] basis which to upon of an instruction on a lesser of- require giving Further, fense.”].) his theory is odds with the evidence that he parked vehicle where it could not be seen from the There for a clinic. was no basis voluntary manslaughter instruction.

c. Grand theft above, As discussed defense counsel informed the trial court he did offenses, not believe there were other lesser included the prosecutor stated that defense counsel had made a tactical decision lesser concerning reflect, however, included offenses. The record does not that defense counsel made a tactical decision not to an instruction theft. request concerning grand Therefore, the doctrine of invited error does not to this claim. apply

“ ‘Theft is a lesser included offense of which includes robbery, additional element of force or fear.’ If intent to steal arose only [Citation.] assaulted, after the victim was the robbery element of force or stealing by fear is absent. 14 Cal.4th (People [Citations.]” Bradford Yeoman, 1055-1056 544]; P.2d Cal.Rptr.2d see 31 Cal.4th supra, at pp. 128-129 constitute intent robbery, to steal must be formed before or [to “Nevertheless, during force].) application ‘the existence of “any evidence, no matter how weak” will not on a instructions lesser justify included offense . . . .’ (DePriest, Cal.4th at supra, [Citation.]” “Instructions on intent and theft after-acquired as a lesser included offense of are robbery unwarranted absent ‘substantial evidence’ that the defendant first formed the intent to take the victim’s after force. property applying [Cita (People v. Zamudio tion.]” 105].)

181 P.3d Defendant contends there is evidence to the view that he took the support victim’s as “an property afterthought.” He cites Gloria Salazar’s testimony watch, that when he gave her the ring stated bitch me “th[e] [made] mad,” and said he to discard the items. He planned concludes “[i]t unlikely motive to commit the murder was to obtain the [defendant’s] watch and if he was ring willing throw those He also notes objects away.” that he did not from the watch and and that the victim’s credit profit ring, cards were not accessed. he characterizes the time which the Finally, within victim became unconscious as a short “only period.” does First, the victim killing fact that defendant had other motives after he ceased the intent to steal only not constitute evidence that he formed Gray, Cal.4th supra, force her. For against example, applying and feet bound and in her trailer with her hands victim was found 87-year-old had been her head and mouth. Her nightgown of towel tied around strips one leg. spermato- and her underwear was around presence pulled up rectum, She and on her external genitalia. detected in her and vagina zoa was kicked, been having punched, had suffered blunt force trauma consistent with ransacked, the victim and nickels and dimes or thrown. The home had been were $20 she in her purse, jars, along approximately kept collected murder, (Id. 180-181, 219.) rape, his conviction Following at missing. pp. should have that urged jury and the defendant sodomy, robbery, appeal Notwithstanding theft a lesser included offense. been instructed as concerning of force against that the defendant’s application inference strong and we concluded killing, victim related in to the sexual assault large part less than something robbery. the crime was there was no evidence assertions, was robbery the evidence he committed to defendant’s “Contrary victim, to the easily force was obviously applied strong. Deadly quite (§ 211.) And ample fear for robbery. the force or satisfying requirement . . . Neither the intruder had taken the victim’s property. evidence showed was evidence doubt on casting [testimony property side presented Defendant, a defense for example, presented taken and the home ransacked]. denial, evidence from neither he nor the presented prosecution simple but the victim’s property could inferred that he took which the have In other he killed her. ... larcenous intent after only formed his [Citation.] words, consideration jury’s evidence worthy there was no substantial robbery.” (Gray, supra, at less than something that the crime was focused that defendant’s attack was the inferences in this case Similarly, victim, that the was to sodomize the killing his desire to principally upon intent to that he formed the do not an inference avoid support apprehension, the victim. after he ceased force against steal only applying nor the Second, neither the Gray, supra, prosecution as in formed an inference defendant that would defense evidence support presented identified force. The circumstances the intent to steal after he only applied intended to discard him mad and he stated the victim made defendant—he cousin, did not and he the watch and to his ring he ring, gave watch not to he decided ultimately cards—reflect access the victim’s credit the missing he spent items (although presumably or use these particular keep at what point no to establish tendency circumstances have but these money), the fact that the victim. Nor does the intent to steal from in time he formed the defendant establish when lost consciousness the victim have may quickly that defendant evidence there is no substantial decided to steal. Because victim, he to the formed the intent to steal after ceased force only applying concerning the trial court an instruction theft. grand required give 5. Prosecutor’s comments evidence concerning Defendant contends the commented defendant’s failure to prosecutor upon trial, violated to remain under the Fifth testify thereby right silent and Fourteenth United He also Amendments to the States Constitution. contends that his to the counsel’s failure comment constituted object to the ineffective assistance counsel under Sixth Amendment United Constitution, I, States and article section 15 of the California Constitution. at the During argument reviewed prosecutor’s opening guilt phase, the evidence against defendant and exculpatory testimony presented by defense. With to the respect testimony, the concluded exculpatory prosecutor friend, that “the witnesses out of a to desire ... their relative their help uncle, brother, their their to him out in boyfriend, ex-boyfriend, this help situation, to tried remember were true but not that was things simply evidence, based a factual incident.” his review the upon Following of he stated, the “That is evidence in case. The this this evidence in case is not contradicted other this clear. by any evidence in case. It is It is very proof a doubt beyond reasonable that the defendant committed those crimes that he (Italics added.) with.” charged Defendant did to object not these statements.

The Fifth and Fourteenth Amendments to the United States Constitution either comment the on the by accused’s prosecution “forbid[] silence or instructions the that such court silence is evidence of guilt.” (Griffin v. U.S. L.Ed.2d 85 S.Ct. California ‘ 1229], omitted.) fn. is forbidden to comment “either “Although prosecutor ’ defense,” or directly on the defendant’s failure indirectly, to in his testify ' evidence, comment prosecutor “on the state of the on the failure of may ’ the defense introduce to material evidence or to call witnesses.” logical (Cornwell, 90.) 37 Cal.4th at supra, p. [Citation.]” Defendant forfeited (Lewis, has his claim to by failing supra, 46 object. Cal.4th at He the court to that a failure urges reject rule to object forfeits to a comment challenge defendant’s prosecutor’s upon rule, failure but he to no reason alter the testify, provides persuasive to we decline do so. failure to asserts counsel’s to Alternatively, object fails, however, constituted ineffective assistance counsel. This claim because the statement that the evidence uncontradicted was prosecutor’s true; reflected view that the evidence was not it simply exculpatory was Thus, not a comment defendant’s failure defense counsel had upon testify. statement, not declining no to the and was deficient for basis for objecting (See do 466 U.S. L.Ed.2d so. Strickland Washington (Strickland).) 104 S.Ct. 2052] Cumulative 6. prejudice had a cumula- during guilt

Defendant contends errors committed phase tive effect. We found error in trial court’s instruction have prejudicial concluded that element of and have concerning asportation kidnapping, be reversed the true related findings conviction must kidnapping error must be We have also vacated. concluded kidnapping murder was harmless jury degree to instruct second failing concerning doubt, a reasonable because the found that the murder was beyond committed while defendant commission or engaged attempted crimes and therefore sodomy, commission of the burglary, robbery, of first murder. degree Together, found necessarily guilty felony effect, and did error and the error had no cumulative prejudicial presumed trial. defendant a fair deny Phase Penalty

C. Issues 1. Counsel’s admission evidence object failure custody escapes from failure to to the admission of Defendant contends his counsel’s object consti- custody evidence of nonviolent or from attempts escapes escape his assistance under the Sixth right tuted a violation of to effective of counsel Constitution, 1, States and article and Fourteenth Amendments to the United 15, section of the California Constitution. Gawin, Hall and reviewed cross-examination of Drs.

During prosecutor record, two California Youth escapes defendant’s criminal from including from the Los In Angeles County jail. facilities one Authority escape addition, admitted to in three of documents that were included packets bur- (first degree second degree burglary, establish three convictions prior that listed were officers’ degree reports and second glary, robbery) probation record, from Finally, Deputy criminal including escapes custody. defendant’s that he “homemade” handcuff in defendant’s key Braaten testified found a the trial. in which he was incarcerated facility during cell at the inadmissible nonviolent as The evidence defendant’s escapes 190.3, (b): “The or an factor under factor presence section aggravating involved the use or the defendant which absence of criminal activity by as an aggravating . . . .” Its inadmissibility use of force violence attempted factor, however, “did not it render inadmissible on cross-examination to rebut character good evidence offered by defendant. v. (People Burgener [Citation.]” (2003) 747, 1]; 29 Cal.4th 62 P.3d see also v. Cal.Rptr.2d People Boyd 38 Cal.3d 782].) 700 P.2d In the Cal.Rptr. case, defendant evidence present his conduct in presented concerning prison, his “stable life” assertedly during when he was not period (a heroin using when he period from a California escaped Youth Authority facility), Thus, behavior when he was not associating with his brothers. an objection the admission of evidence of defendant’s from would have escapes custody Therefore, lacked merit. counsel’s was not performance “outside the wide (Strickland, range assistance.” professionally competent supra, 466 U.S. at p. however,

Defendant that the complains, mentioned his prosecutor in the escapes course Dr. Hall cross-examining factors that concerning determine a level, prisoner’s placement and that security these references were addition, unrelated to defendant’s character. In the references to his in the admitted escapes exhibits that were to establish defendant’s prior convictions were not admitted to rebut evidence concerning defendant’s character. The decision whether to to the admission object of evidence is tactical,” “inherently and a failure to will reflect object rarely deficient performance by counsel. (People Hillhouse 502 [117 754].) 40 P.3d Because the evidence was admissible to rebut evidence, good character counsel may reasonably have decided to avoid drawing further attention to defendant’s escapes objections to brief references to the in other escapes contexts. counsel could Although have objected outside the of the presence to the references in the probation officers’ reports, any oversight to do so could failing not have affected the outcome, in light admissibility of the same evidence in other cont (Strickland, exts.18 supra, 466 U.S. at must show [“The that, there is a reasonable but probability for counsel’s unprofessional errors, the result of the would proceeding different.”].) have been

2. right to present evidence mitigating Defendant’s Defendant contends that limitations the trial placed by court upon expert testimony Dr. provided by Armando Morales defendant’s impaired right evidence, present mitigating him of his to due depriving rights and to process suggestion There was no during prosecutor’s the argument jury to the that the evidence of escapes represented aggravating defendant’s contrary, evidence. On the he informed the only that the prior jurors convictions aggravating could consider as evidence were two burglaries robbery, and a “you he added that have heard a lot of other evidence of other crimes. Those are only not factors. The reason those other were presented crimes is to refute some of the brought evidence that . . you was . before in [connection defendant’s argument mitigation (k)].” for under section 190.3 factor Fifth, under the be free from the of cruel and unusual punishment imposition Constitution, and Fourteenth Amendments to the United States Eighth, I, 7 and 17 the California Constitution. article sections of below, Morales more the trial court ordered that Dr. fully As discussed not cause of concerning testify any genetic problems. (1) Dr. of a chart the criteria court also Morales’s use that listed precluded American Association’s and Statistical Psychiatric Diagnostic under the Disorders, (DSM-IV), related to “major Manual of Mental Fourth Edition Dr. criteria of member “gang Morales’s depression,” corresponding below, court For the forth we conclude the trial did depression.” reasons set not discretion. abuse its First, our “The of analysis.

Several principles guide qualification witnesses, rests in sound expert including requirements, foundational of the trial That discretion is broad: necessarily discretion court. [Citations.] one, a i.e. relative ‘The of an “is in case relative expert every competency to make about which is asked his statement.” person topic [Citation.]’ abuse, a the court’s determination will be Absent manifest [Citation.] 15 Cal.4th (People disturbed on Ramos appeal. [Citations.]” Second, 950].) P.2d “the opinion may expert’s [citation], or not be based ‘on of fact without assumptions evidentiary support of opinions or factors Exclusion conjectural expert speculative ....[][] corollary surmise an inherent conjecture rest on or guess, [citation] will testimony: admission of foundational predicate expert trier it must decide?’ assist the to evaluate issues testimony fact court in (Richardson, 1008.) Finally, supra, “[t]he [Citation.]” its exclude if its value is may substantially discretion evidence probative that its admission will . . . create substantial outweighed by probability issues, misleading undue or of confusing jury.” danger prejudice, Code, (Evid. § above, a and biobehav-

As noted Dr. Morales was professor psychiatry social, sciences, a field he as “covering] biological, ioral described He had related to behavior.” a research and issues human psychological degree minor in a master’s criminology, with a degree sociology bachelor’s not, however, work, and a in clinical social work. He was social doctorate Prior becoming professor, educated as physician geneticist. recreational as a officer worked worker” at a agency, peace as “gang group and as a senior deputy with the Los Probation Angeles County Department, In addition work as a professor, with that to his officer probation department. Youth he with the California Authority. was a consultant In the course of his Dr. described testimony, Morales some of defendant’s maternal ancestors who abused alcohol. The a rel- interposed prosecutor Outside of Dr. Morales stated that evancy objection. jury’s presence, mental health examine professionals history, “because family increasingly are they finding research information to certain genetic show connections between alcoholism and in On drug cross- dependence offspring.” examination, had conceded he no but genetics, in training “specifically” individuals,” testified that “they have addiction in and that genes [found] had another doctor “discovered connections from fathers to specific gene sons.” He also stated had not that he done on defendant any gene testing or court, of defendant’s any relatives. Dr. Morales stated Upon inquiry by that a when mental health evidence professional finds alcohol family “it conclusion, us problems, gives more information to be able to a draw not whether or there to be a ain of factor to a appears linkage heredity-type He that particular added “when we look at patient.” mother’s [defendant’s] sons, and all her history we to see a begin very strong preponderance addiction in which solid a family, again makes more particular point in alcoholism addiction this that drug have a particular family might very powerful basis to it.” When the trial genetic court to pressed by explain basis of his conclusion that there were reasons for the genetic family history, Dr. Morales how responded, “Mainly we are trained to take the But history. we are not in the area. an experts genetic I’m not in areas and expert genetic have all not had that kind of ruled particular training.” court that Dr. Morales could “but testify concerning family not with history, regard issues genetics.” involving

The trial court did not abuse its discretion in that Dr. concluding Morales was not competent basis for testify concerning genetic defendant’s drug and alcohol Dr. problems. Morales testified that he had no in training genetics an was “not in areas.” His that he expert genetic testimony reflects was trained social as a worker collect information family substance concerning abuse, but does it that he establish testify concerning qualified genetic (See basis a family’s history. People Williams 1326, 1334 is not Cal.App.4th unusual that person [“It 130] bemay as an on one qualified be expert subject yet render unqualified an matters opinion beyond subject.”].) of that scope

Defendant to cast the trial court’s attempts ruling as a violation of Evidence (b), Code section subdivision an which that provides expert’s be . opinion must on matter . . that of a type reasonably may “[b]ased be relied an by forming an to which upon expert upon opinion subject his testimony relates.” He testimony asserts “Dr. social Morales’[s] scientists look commonly genetic links between and his patient family examining the background established that a matter family genetics was relied reasonably (Italics added.) Dr. field.” upon by experts Morales’[s] 1338 a social there exist or information which

Although may genetic upon studies the causes rely reaching concerning in conclusions might reasonably scientist conditions, any or Dr. Morales did not identify of an individual’s problems to He had done any basis for the conclusions he draw. not sought such relatives. Morales on defendant or of defendant’s Dr. testing any genetic information certain they finding stated that are research to show “increasingly between in drug dependence offspring,” connections alcoholism genetic individuals,” but further genes and that have addiction in “they [found] gene that doctor had “discovered only revealed another specific inquiry not only “gene from fathers to sons.” Not were the connections” connections described, concerned defendant’s identified or but testimony proffered assertion, to Morales not testify mother’s defendant’s Dr. did family. Contrary that “social scientists base their on routinely opinions that assumption had a between and his Even if he so genetic family.” there is fink the patient testified, or that and his patient mere fact there is link between genetic not a social concerning her does scientist biological family testify qualify sum, the defend- cause of substance abuse. In which genetic “genetics” upon than claims Dr. relied was an area of rather reasonably expertise ant Morales witness, Dr. he was and Morales conceded that by information considered in not an this area. expert avoid that the trial

Defendant these conclusions attempts contending that an Evidence Code section which ruling provides court’s violated on reasons his witness state direct examination the for “may opinion expert the trial court determined the matter .. . which it is based.” Because upon there was Morales not testify concerning “genetics,” Dr. qualified his subject genetics, no other foundation for on proffered opinions allow for his testify concerning was not him to reasons court required court. . . on defendant’s assertion that trial genetics. Finally, opinions “[t]he that social workers could concluding lacked factual foundation for any of individuals” forming ignores their assessments rely genetics must establish testimony. The profferer expert profferer burden be is in the area which will expert testimony the witness an expert upon matters of a type upon the witness’s is based on given, opinion Code, 801.)19 (Evid. reasonably rely. which such experts § testify that the trial also ruled that Dr. Morales could not Defendant notes that court “alcoholics,” analysis concerning the legal provides were but he no defendants’ relatives People Therefore, (See v. Catlin ruling. we address ruling. of this need not propriety any defendant to offer Cal.Rptr.2d 26 P.3d “fails 357] [because 26 Cal.4th claim,... here”]; People v. Barnett argument it is not considered authority support or this “fails .. . P.2d 384] [because raised”].) . In reject properly . . it as not adequate argument!, that claim with support w]e event, ruling. only basis Dr. Morales’s court’s supports record trial history being reported “this relatives as alcoholics was characterization reasonably drinking problem alcoholism and so forth.” The court family of a [by members]

Next, the Dr. ruling Morales’s challenges evidentiary precluding use of an exhibit In the course of “gang member regarding depression.” disorders, about defendant’s Dr. Morales to testifying proposed psychological use a chart entitled Criteria “DSM-IV for Versus Member Depression Gang which diagnostic contrasted established criteria Depression,” depression with what he referred the in to as “cultural of gang expression” depression left members. The column of the chart Usted DSM-IV’s nine of symptoms nine and the “major right column listed criteria of depression,” corresponding member “gang depression.”

The there to objected that was no foundation “as the source of prosecutor this Dr. material.” Morales that he gathered stated had the information over more years, than 40 “based upon my clinical in experience working who gang members had been suffering various kinds of but depressions which had been undetected by various mental health because professionals they were relying on DSM-IV criteria.” dire solely During by voir prosecutor, Dr. Morales confirmed that he had a new set of developed criteria related to and he that stated he had an article and depression, published given presentations to psychiatric peers concerning differences in criteria for gang member depression versus non-gang-member depression.

After excusing the court that jury, commented the prosecutor “ap- to be Kelly/Frye pealed] going towards interrogation”20 witness. The that he did not believe Kelly/Frye hearing prosecutor stated was required, because no foundation had laid been to that establish Dr. Morales’s theory satisfied the criteria of a “scientific” The court study. view that expressed the exhibit not was a new and “suggesting Dr. theory depression,” Morales confirmed that his chart did not reflect a new scientific The theory.21 court then asked the witness whether is a expert “this towards some step adding relevant, family concluded perceptions alcohol adequate abuse were but were not an support foundation to a conclusion were relatives alcoholics. Defense counsel responded, is problem. long testify “That no as he to As is allowed about substance abuse.” The prohibit testimony trial court concerning did substance abuse. People Kelly 1240]; Frye v. U.S. 17 Cal.3d P.2d Cal.Rptr. (D.C. 1923) Cir. 293 Fed. 1013. explained Dr. data concerning gang depression Morales his was the step first in forth, journals scientific research. “Once published professional this is and so then the field react, begins to field things then will take some of in depth these conduct kinds of you just mentioning.” studies based upon prosecutor responded criteria were that the DSM-IV, “attempting category gang witness was to add depression, another to the member research, result, upon it’s based the doctor’s initial field and as we feel isn’t there foundation for the point." introduction this The witness the assertion was disputed attempting that he to DSM-IV, category add a attempting get to that he stated “to the information in the get field to work with gang might those that members. At that I some or point people feedback initiate stage. seeing scientific studies .... is the first have to begin patterns This We data work, They might say, which I have we they done. have tried the research and it doesn’t or might say, confirming your impressions we are what initial were particular group.” with the after into investigation down the road somewhere category type specific “No. The the DSM-IV.” He responded, observations your occur[s] that he was totally trying He reiterated something DSM-IV independent.” observations, “confirm others might his that scientific report inquiry arrive at some trying these behaviors totally particular disapprove of depression.” conclusion diagnostic I will “with to the chart itself. objection

The court sustained regard observations, evaluation, of the doctor as his allow make you inquiry gang and and what he’s observed about as to his expertise experience client, that and and that to which your members he’s studied relate depression the to you objected I next that are take.” going prosecutor expect step defendant, and to testimony that “there has no relation” of the proffered been the and limits It it would ruling. the court further addressed basis of its stated chart, chart that the to use the because the suggested not allow witness the concerning had been or would be performed performed scientific studies his “I will to ask him about you witness’s It then allow theory. explained, that I . . . you in members. will allow to offer gang observations of depression He’s he has the of indicated analysis depression. agrees specifically and And the from Dr. Hall Dr. Gawin. relied on reviewed documentations But I am going I will allow to make those connections to so you [defendant]. “No out.” counsel responded, problem.” Defense keep [the chart] in chart was contends the information set forth the Defendant now that it Dr. Morales’s (1) because was based rationally upon percep- admissible tions, an (2) expert may rely, those were matters which upon perceptions (Evid. her the bases of his or testify concerning an expert may opinions. Code, 801, the record (a), (b), summary As our of subd. subd. §§ the reflects, concerning Dr. testifying Morales not from precluded set forth in his chart. information not Dr. observations did require

Defendant also contends that Morales’s his focused upon validation. Although objections scientific prosecutor’s a new “scientific” testify concerning that Dr. Morales would expectation suggested concern was that chart misleadingly trial court’s study, Thus, the court criteria of gang depression. scientific basis to Morales’s some rather, observations; of scientific validation Morales’s did require of that there was scientific validation excluded evidence suggested court observations.22 ground on the Presumably the trial court excluded exhibit defendant believes because validation, of the propriety not address the theory required scientific he does

that Dr. Morales’s note, ground misleading. We on the that it was to exclude chart trial court’s decision testify however, be ruling Dr. would allowed to the trial Morales light of court’s make connections gang members .. . those depression [and] “about his observations no for the

Finally, authority presents legal proposition the exclusion of based of the witness or the testimony upon incompetence absence of foundation the exclusion of testimony, misleading exhibit, violates a evidence. As we right defendant’s present mitigating observed, have state law does not evidentiary ‘routine application “[t]he (People constitutional implicate rights.’ [a] [Citation.]” Hovarter 300].) P.3d Cal.4th hearing concerning penalty absence 3. Defendant’s from phase jury instructions Defendant contends his from a at which hearing absence the penalty phase instructions were discussed him be deprived right present Fifth, Sixth, at critical stages trial under and Fourteenth Constitution, I, to the United Amendments States article sections 7 and 15 Constitution, California (b), Penal Code sections subdivision subdivision (a). Defense counsel to court that defendant to be reported wished excused from a hearing at the concerning jury instructions The trial penalty phase. court reviewed sections and 1043 of a concerning 977 absence defendant at the defendant’s and solicited request, the views of counsel as to whether defendant was to be at the required present discussion of instructions. jury Both the and the defense a prosecution view that court expressed may allow a defendant to be absent her upon his or The court then request. addressed defendant: has that attorney indicated are to you requesting “[Y]our be excused while we go over Is that jury instructions. sir?” your request, correct, asked, Defendant responded, “That’s your honor.” court “Do you understand we are to finalize the will going instructions be jury given “Yes, tomorrow to the with jury to regard this Defendant phase?” responded, asked, I that.” understand The court “And still wish not to be you present?” confirmed, Defendant “That’s correct.” The trial court allowed defendant be excused. “ that,

Defendant matter acknowledges ‘as a of both federal and state law, constitutional ... a defendant may waive at capital validly presence v. Jackson critical of the stages (1996) trial.’ 13 Cal.4th (People [Citation.]” contends, 1254].) however, 920 P.2d He (1) his waiver failed to meet associated with waiver standards (2) constitutional trial right, court erred to obtain a failing written [defendant],” it is clear that the court did concluding trial not abuse its discretion in that the probative substantially value the chart outweighed probability that its admission Code, (See jury. 352.) would mislead the Evid. § 977, 1043),23 trial (§§ of his to be present waiver statutory right failure to with this constitutes viola- statutory court’s comply requirement (see due Hicks v. right tion of the federal constitutional law process 2227]), (1980) 447 U.S. 343 L.Ed.2d S.Ct. Oklahoma arguments the asserted were Defendant’s fail because errors prejudicial. nor a at the right he had neither a constitutional be statutory present discussion of instructions. jury penalty phase II.A., above, discussed there are various limitations upon As part “ First, at trial. the Sixth Amendment’s right to be present ‘[u]nder clause, a criminal does not have a to be right confrontation defendant unless his is neces- at a present particular proceeding appearance personally with for effective cross- “interference sary prevent opportunity [his] ’ 1231.) at Defendant (Cole, examination.” supra, p. [Citation.]” no the discussion of concerning penalty how provides explanation phase had cross- instructions relation to his effective any opportunity examination, (See nor 37 Cal.4th at Gray, supra, do we relation. perceive each [litigants legal argument].) must p. support point “ Second, clause, due a crimi- ‘under the Fourteenth Amendment’s process have a at a right present nal does not be personally particular himself at . . . that is critical to unless he finds a “stage [the] proceeding would to the outcome” “his contribute fairness proce- presence ’ contends (Cole, dure.” Cal.4th Defendant supra, [Citations.]” the use custody discussion of whether from involved during escapes 190.3, meaning use of force or violence within the of section attempted facts (b), factor he could have counsel “useful about the escapes,” provided when the but he does such facts. He also contends that identify any were admissible argued aggravating that defendant’s as escapes prosecutor violence,” has the defendant evidence because “any escape potential him did have counsel out to that his by pointing escapes “could assisted his defendant, then “defense According may not involve violence.” counsel . . . not realized of escapes proper have that evidence [defendant’s] only the of a motion to Not and should have been strike.” aggravation subject 23 felony to at any charged present defendant with a “be requires Section 977 hearing, during during preliminary portions those arraignment, plea, at the time of fact, imposition the trier and at the time of the trial when evidence is taken before or present proceedings all other unless he she personally The accused shall be at sentence. shall, court, court, right to be open a written waiver of his or her with leave of execute 977, (§ (b)(1).) (2).” requires by paragraph subd. Section 1043 personally present, provided as trial, (1) or except in case in which his charged felony present a to be at a defendant (2) charged presence, cannot on in his no disorderly is so that trial be carried her conduct (§ 1043, (b)(1), voluntarily. absent subd. punishable by death and defendant is offense however, a right “shall (2).) provisions its not limit provides, Section 1043 further 1043, (d).) (§ with Section 977.” subd. right present to waive to be accordance his

1343 is this but theory speculation, of the discussion was that premise violence, did not involve Therefore, escapes only for violence. it potential would have made no difference if defendant had been and reiterated present that his did not involve violence. Defendant failed escapes has to establish his would have contributed presence fairness of the proceedings. Third, I, Constitution, article section 15 of the California ‘a “[u]nder criminal defendant does not have a to be right “either in personally present chambers or at bench discussions that occur outside of the jury’s presence of law or questions other matters as to which does not bear a presence [his] ‘ “ substantial relation to the ‘reasonably fullness of his to defend opportunity ” ’ ” (Cole, against supra, charge.’ 33 Cal.4th at [Citations.]’ [Citations.]” 1231.) For the same reasons that p. his would not have contributed presence to the Amendment, fairness of the under the Fourteenth proceedings did presence not bear a substantial relation reasonably to the fullness of his opportunity defend.

Finally, “under sections 977 a criminal defendant does not have a right to be waiver, even in the personally present, absence of a written I, where he does have such a right under article section 15 of the California (Cole, Constitution. supra, 33 Cal.4th at p. [Citations.]” [defendant’s absence from in-court conferences related to guilt penalty phase jury instructions did not bear reasonably substantial to his relationship opportu to defend nity see People v. Riel against charge]; 22 Cal.4th 1195-1196 998 R2d Cal.Rptr.2d at presence 969] [the discussions of jury instructions would not “have affected the fullness of his Waidla, to defend opportunity against the charges”]; supra, Cal.4th at 741-742 pp. in chambers related to [conference instructions did not bear reasonably substantial relation to the fullness of the defendant’s opportunity defend]; People v. Dennis P.2d defendant, find it unlikely 1035] [“We would have layperson, contributed in to the any way discussions regarding instructions appropriate on issues of law.”].) For the same reason defendant had no under the right California discussions, Constitution to be at personally these he had present no right under sections 1043 to be nor was a personally present, (Cole, written waiver supra, required. the death

4. Imposition penalty upon individuals with of mental and emotional defendant’s deficits Defendant contends that of the death imposition penalty upon person with the mental and emotional deficits from which he suffers cruel constitutes and unusual under the punishment Eighth Fourteenth Amendments to Constitution, I, the United States and article section 17 of the California Constitution. Baca, Dr. the of testimony prosecution expert

Based upon principally deficits that and emotional that he suffers from mental defendant asserts childhood, ability his and that these deficits “impaired his during developed behavior, and substan- to from contributed right wrong, impulsive to perceive that under for the crime.” He contends diminished tially culpability L.Ed.2d (2002) 536 U.S. 304 of Atkins v. Virginia reasoning Amend, execution of retarded mentally (8th S.Ct. prohibits 2242] L.Ed.2d (2005) 543 U.S. criminals) and v. Simmons Roper Amend, minors), the execu- the execution of (8th prohibits 125 S.Ct. 1183] cruel and violates upon with such deficits prohibitions tion of an individual below, Atkins and do Roper support As unusual punishment. explained contention. that death dictate decency standards of evolving To decide whether to evidence. objective court looks first high an excessive punishment, that, Atkins, 313.) In the court noted U.S. at (Atkins v. Virginia, supra, p. 1986, numerous retarded murderer in execution of a mentally following retarded criminals. mentally the execution of had acted to states prohibit execution of such acted to reinstate the no states had the same During period, that a national say that “it is fair The court concluded individuals. 313-316, (Id. omitted.) fn. it.” at pp. has developed against consensus Simmons, court observed that 543 U.S. supra, Similarly, Roper who of individuals executing had of states majority rejected propriety acts. their criminal at the time committed they under 18 years age were 568.) (Id. at p. evidence, court the high applies considering objective

In addition to disagree whether there is reason asking “by its own judgment, (Atkins v. Virginia, and its citizenry legislators.” reached by judgment retarded mentally The Atkins court noted 536 U.S. supra, information, to communi have diminished capacities process individuals reason, and to cate, to control impulses, to learn from experience, omitted.) also fn. It (Id. at p. the reactions of others. understand than rather pursuant often act on “they impulse evidence that acknowledged . . . .” are followers settings they and that group to a plan, premeditated deficiencies that these in Atkins concluded omitted.) The court (Ibid., fn. (Ibid.) In light defendants. of such culpability” “diminish personal [the] deficiencies, excluding mentally two reasons the court identified these (1) the justifica the death penalty: individuals from imposition retarded by not served and deterrence—are the death penalty—retribution tions for retarded, execution is wrongful risk of the mentally executing factors, false confessions including possibility various enhanced counsel. and to assist mitigation evidence in ability their lesser present 318-321.) (Id. at pp. Simmons, Roper supra,

Similarly, 543 U.S. the court identified differences between and adults that juveniles “demonstrate that offenders juvenile cannot be classified the worst reliability among (Id. First, offenders.” at their lack of and their underdevel maturity behavior, sense of lead oped to reckless and this responsibility susceptibility to behavior renders their irresponsible conduct less morally reprehensible. Second, are they more and susceptible negative influences pressures, Therefore, have less control over their environment. have claim they greater Third, to forgiveness. their are personality traits more which transitory, “means it is less to conclude that even a supportable heinous crime commit ted (Id. is evidence of by juvenile character.” at irretrievably depraved 569-570.) Due pp. diminished juveniles’ case for retribu culpability, addition, tion is weaker than for adult murderers. In it is not clear whether the death has a penalty deterrent effect significant upon juveniles. Finally, the court the view rejected that these circumstances should be considered by as factors rather than mitigating as a reason for the law to preclude of the death imposition penalty juveniles, upon concluding differ “[t]he ences between and adult juvenile offenders are too marked and well under stood to risk allowing youthful to receive the death person penalty despite (Id. insufficient 572-573.) culpability.” pp.

Defendant fails to establish that his condition—an antisocial personality disorder—is analogous to mental retardation or juvenile status purposes First, imposition death there is no penalty. objective evidence that views as society the execution of inappropriate individuals who death-eligible Second, have an antisocial disorder. personality although expert testimony reflected individuals with an antisocial disorder are not personality treatment, amenable to the evidence also reflected that such individuals are aware of what are they and that doing, they have to choose not ability commit crimes. their Accordingly, disorder does not diminish their personal addition, In culpability. for the justifications death penalty—retribution be served deterrence—may of the law to application such individuals. Moreover, others, their to charm ability manipulate deny responsibility, conduct, and to provide excuses for their enhances rather than diminishes reasons, their to avoid capacity conviction and wrongful execution. For these we believe the high court would with the agree decision implied legislative to exclude individuals with an antisocial disorder from personality for the death eligibility penalty.

5. Prosecutor’s comments concerning lack remorse Defendant contends the prosecutor commented defendant’s failure upon at the testify penalty violated his phase, thereby to remain silent right Amendments to the United States under the Fifth and Fourteenth guaranteed to the that his counsel’s failure to object Constitution. He also contends of counsel under the Sixth constituted ineffective assistance comments Constitution, I, 15 of the and article section Amendment to the United States California Constitution. at the he stated

During argument penalty phase, prosecutor’s can her whatsoever. We defendant “showed no no sympathy, empathy for attack, and in of that what she was this doing during spite input only imagine cries, sounds, attack her. It he continued his upon that she was giving, to have There was she could have done nothing prevented was unprovoked. in which the victim to her. There are murder situations this crime happening result, areas, and as a dangerous does into things, goes antagonizes person, That didn’t here. That didn’t happen to that things person. happen happen And in this case. here. She was a innocent person particular completely defendant, crime, casual, it in that the appears, this so finally, particular had, had, he that he fantasy thought went to that place simply door, in, then did in a of time and on the went this all short period knocked one of the horrors leaves the scene. That’s Casually leaves scene. casually he three inside that restaurant where in this case. The two people people, He left of tires as he left. casually the car didn’t hear any squealing parked know, struck being by didn’t hear evidence of, you the scene here. We here, so do see in you the crime that he had committed as horror often is a rather case in that unique murder cases. In this types fact, other case, attached to it the crime in this has no remorse particular defendant, statements. (Italics added.) Defendant did not to these object whatsoever.” referred to evi that the italicized statements Defendant contends mind, which, asserts, could be provided only dence his state of concerning Carter, (See may 36 Cal.4th at p. prosecution defendant. by supra, [the could testimony the defendant’s only to the absence of evidence not refer (Lewis, supra, his claim to by failing object. Defendant has forfeited provide].) above, the court to 1303.) urges reject As noted to a comment forfeits a challenge prosecutor’s rule that a failure object no reason failure to but he testify, provides persuasive a defendant’s upon rule, he asserts counsel’s Alternatively, and we decline to do so. alter the This claim counsel. by constituted deficient performance failure object however, Al fails, statements were not improper. because prosecutor’s failure to it testify, to the defendant’s not refer may though prosecution Boyette (People defendant’s lack of remorse. comment may upon 391].) The 58 P.3d prosecu 453-454 Cal.4th conduct in connection of defendant’s referred to the evidence tor’s comments remorse, crime, the absence of evidence his commission of who believed he was friends or relatives been which have might presented refer to remorseful; directly indirectly comments did not the prosecutor’s Thus, objecting had no basis defense counsel testify. failure to (See do so. comments, declining deficiently did not perform to the Strickland, U.S. at p. supra, mitigating argument regarding and

6. Instruction factors No. 8.85 CALJIC modify court’s failure to (1) the trial Defendant contends factors, (2) the prosecutor’s mitigating of inapplicable to delete descriptions factors, (3) defense counsel’s certain mitigating concerning comments comments, and the prosecutor’s instruction object jury failure him determination to a reliable to due rights of his process, deprived cruel and unusual punishment, from the to be free imposition penalty, Fifth, Sixth, and Fourteenth Eighth, of counsel under to effective assistance 7, 15, I, Constitution, sections and article to the United States Amendments Constitution. and 17 of California have the trial court should the contention that

We begin at the evidence was Before presented modified the standard instruction. jury and argu of evidence following presentation and again penalty phase, 8.85, No. ment, to CALJIC the trial court instructed the jury, pursuant consider, not Defendant did it “if the factors should concerning applicable.”24 24 The was instructed: defendant, you all of shall consider determining penalty imposed which is to be on “In case, you except this as during any part of the trial of the evidence which has been received consider, guided by take into account be may hereafter instructed. You shall be factors, following applicable: if present in the “(a) defendant was convicted of the crimes of which the The circumstances to be true. circumstances found special and the existence of proceeding defendant, crimes for activity other than the “(b) by of criminal presence The or absence the use or which involved present proceedings, has been tried in the which the defendant force or violence. implied threat to use express use of force or violence or the or attempted conviction, than the crimes for which “(c) any prior felony other presence or absence of present proceedings. tried in the the defendant has been under the influence “(d) while the defendant was or not the offense was committed Whether of extreme mental or emotional disturbance. homicidal conduct or “(e) participant was a in the defendant’s Whether or not the victim to the act. consented homicidal the defendant under circumstances which “(f) offense was committed Whether or not the conduct. justification or extenuation for his reasonably believed to be a moral under the substantial under extreme duress or “(g) or not the defendant acted Whether person. domination of another appreciate of the defendant to “(h) capacity the offenses the or not at the time of Whether requirements of law was his conduct to the criminality conduct or to conform of his or the effects of intoxication. a result of mental disease or defect impaired as 1348 “ to the any clarifying instruction.

request change pattern ‘Generally, party. that an not instruction correct in law and may complain appeal responsive to the evidence was too or general unless has incomplete party requested appropriate clarifying amplifying language.’ (People v. Hudson [Citation.]” 1002, 632, (2006) 168].) 38 Cal.4th 1011-1012 136 P.3d Cal.Rptr.3d [44 190.3, CALJIC No. 8.85 factors set forth section simply quotes “we have held that instructions in the repeatedly language CALJIC No. 8.85 do violate the not and Fourteenth Amendments delete Eighth failing factors .... sentencing (People (2006) v. inapplicable [Citations.]” Ramirez 398, 64]; Cal.4th see 139 P.3d also v. Hartsch Cal.Rptr.3d People [46 Cal.4th 232 P.3d court is Cal.Rptr.3d [the 663] factors]; to delete required inapplicable statutory People Taylor [same].) 220 P.3d Because 872] the instruction is a correct statement of the law and did not request language, different has forfeited his claim that the instruction should have been modified. And not because instruction does otherwise violate his constitutional his claim also fails on the rights, merits.

Next, defendant remarks. In challenges argu prosecutor’s 190.3, at the (e) ment section penalty prosecutor stated that factors phase, asserts, however, did not case. (j) to this Defendant that through apply various statements indicated that of a the absence evidence of prosecutor factor could considered mitigating (See be an circumstance. aggravating 247, 794, (1985) v. 41 Cal.3d Davenport 288-290 People Cal.Rptr. [221 710 P.2d for a that argue the absence of improper prosecutor 861] [it factors].) certain factors rendered them did mitigating aggravating Defendant not of the object any statements prosecutor’s concerning mitigating (2010) factors. he has forfeited his claim. 48 Accordingly, (People Redd 192, 101]; Cal.4th 749 P.3d v. Clark Cal.Rptr.3d People 229 [108 (Clark).) 857 Cal.Rptr.2d P.2d 1099] claim The also fails on the merits. It is for a permissible prosecutor that there observe is no evidence of a factor. v. Gurule mitigating (People 224].) Cal.4th 51 P.3d As explained below, noted the of certain “[although absence prosecutor mitigating factors, he did or not that the absence of these implicitly argue expressly could be in aggravation. factors considered These statements were well (Clark, of range within proper prosecutorial argument. supra, [Citations.]” 1030.) 5 Cal.4th at p. “(i) age of the the time of the defendant at crime. “(j) accomplice participation Whether or not the defendant was an to the offense and his in relatively of the commission offense was minor. “(k) Any gravity though other circumstance which extenuates the of crime even it is not excuse legal any sympathetic aspect for the crime and or other defendant’s character death, as a basis for a than whether related to the offense for which

record sentence less or not (CALJIC 8.85.) he is on trial.” No. effect of 190.3, addresses the (h), which factor section respect

With “does intoxication, the factor stated the prosecutor defects and mental As a in this case. no evidence . . . We have case. in this particular [f] apply testified case. The doctors fact, in this evidence contrary we have matter of however, in this fact, addict, particular no part it played be an that he in may, illness, defect, disease, mental And, mental terms of mental of cases. group fact, as a matter of that. As nature, does not have the defendant simply of normal is, said, enough, perfectly frighteningly the defendant Dr. Hall is, enough, frighteningly “defendant statement The prosecutor’s person.” a mental absence of did not indicate normal person,” a-perfectly circumstance, considered an aggravating could be defect or intoxication (h) was that factor statements repeated light prosecutor’s particularly Rather, “defendant was indicated that the statement to the case. not applicable Argument of death. deserving than more rather leniency, less deserving (Clark, supra, Davenport.” forth in contravene the rule set this does not type Clark's invitation to overrule decline defendant’s We Cal.4th mitigating the absence of that focus upon between statements distinction evidence of mitigating the absence urging and statements evidence defendant, we Contrary perceive circumstance. constitutes an aggravating leniency less deserving that a defendant is an argument difference between of death. is more deserving an that a defendant argument 190.3, age, addresses a defendant’s (i), factor which to section With respect be reversed It can’t was “a factor in mitigation. the stated that it prosecutor (i) He that factor stated and to be a factor aggravation.” around said he or committed at a before young age, the crime when a defendant applied He or her actions. the of his or understood consequences she was socialized a who is added, just in that we have is not a factor here person “Obviously age older, had the see who’s opportunity A who is person the opposite. person himself, crimes, the to see upon of to see many, many impact the impact Yet, victims, family. his extended upon his and to see impact impact upon said, chose, this man that, Dr. Baca chose—as all of the defendant despite fun to use way, life. The very very easy way through chooses to take the really crime, life. But of through this discussing type word when we are an odd around . . . and can’t twist it that, You aggravation. it’s not a factor despite defendant’s age why comments explained him.” The use it against prosecutor’s contention, the comments factor; to defendant’s contrary a mitigating was not was a mitigating defendant’s age of evidence that did not that the absence urge factor.25 (i) factor an aggravating factor rendered 25 age aggravating factor. is an urge that a defendant’s improper prosecutor for a It is mitigating, but the aggravating nor chronological age is neither that itself have observed “[W]e suggested by the age-related matter (i) metonym any is ‘a for ‘age’ as used in factor word of reasonably the choice morality might inform or that experience common evidence 117, 145, Cal.Rptr.3d (People Carrington (2009) 201—202 v. [97 47 Cal.4th penalty’ [Citation.]” defense counsel’s failure to to CALJIC No. or to the Finally, object 8.85 statements did not constitute deficient counsel. prosecutor’s performance by law, As we explained, have instruction was an accurate statement of the Therefore, and the were comments counsel was not prosecutor’s permissible. and deficient for there is that failing object, no reasonable an probability Strickland, supra, have altered objection (See would the outcome. 466 U.S. 668, 689, 694.) Instruction concerning consideration and aggravating

7. of mitigating factors (1) Defendant contends that the failed to jury instructions convey single factor is a sufficient basis that a mitigating jury conclude death, not be (2) should sentenced to a sentence death is not of the absence He required of factors. asserts the instruc- despite mitigating tions him of to due free from thereby deprived rights to be process Fifth, of cruel and unusual under the imposition Eighth, and punishment Constitution, I, Fourteenth Amendments to the United article States sections and 17 of the California Constitution. 8.88,

The trial court instructed the to CALJIC No. jury, pursuant regarding weighing aggravating circumstances. We mitigating repeatedly have contention CALJIC 8.88 is rejected No. “unconstitutional because it fails to instruct that a could single factor mitigating outweigh factors and could verdict of multiple aggravating by itself justify (People life without the . . . .” imprisonment possibility parole [citation] D’Arcy (2010) 48 Cal.4th Cal.Rptr.3d 226 P.3d [106 949] (D’Arcy).) We also have contention the instruction fails to rejected that the return a sentence convey jury “may of life without imprisonment even parole in the absence evidence. possibility complete any mitigating v. Chatman (People 38 Cal.4th Cal.Rptr.3d [Citations.]” 621,133 v. Moon People 534]; P.3d see 591].) 117 P.3d No. 8.88 are “accurately CALJIC describes how jurors (Elliot, supra, the 37 weigh aggravating mitigating factors. [Citation.]” v. Carter 488; People 1166, (2003)

Cal.4th at see Cal.4th 30 1226 p. [135 553, 981].) 70 P.3d Defendant identifies no reason to Cal.Rptr.2d persuasive alter these established principles. Instruction on the without the meaning possibility of

8. of life parole contends the of a instruction the concerning Defendant absence jury of life without the of him of his meaning deprived rights possibility parole Carrington, 617].) age years properly P.3d For the of example, 211 in defendant’s 30 was factor, aggravating “age her her the capable appreciating viewed as an because rendered of (Id. 202.) wrongfulness her p. of conduct." at

1351 of and unusual the cruel be free from due imposition process Fifth, the Amendments to United and Fourteenth Eighth, under the punishment I, the California Constitution, 7 and 17 of and article sections States Constitution. we the rejected argument have acknowledges

Defendant for must be defined the jury, “life the of parole” in without possibility prison of Simmons v. our light but that we should reconsider conclusion asserts 133, (a S.Ct. L.Ed.2d 114 South Carolina 512 U.S. 154 2187] [129 that the alterna sentencing the jury entitled to inform capital of v. be the possibility tive of life in would without prison parole) Shafer 178, (the S.Ct. (2001) 532 36 L.Ed.2d 121 South Carolina U.S 1263] [149 nor the argument rule when neither the instruction in Simmons applied not be eligible that the defendant would capital informed sufficiently jurors the ‘life without for have held that consistently parole). phrase “[W]e informs of it in CALJIC No. 8.84 adequately as possibility parole’ appears of the that a defendant sentenced to life without possibility jury imprisonment (2008) 44 v. ineligible (People is Wallace parole parole. [Citations.]” 1032, 651,189 Simmons[, “Nothing Cal.4th P.3d Cal.Rptr.3d 1091 911]. [81 that conclusion.” v. (People 512 U.S. 154 . . . causes us to reconsider supra,] 803, 1035].) P.3d 236 Verdugo Cal.Rptr.3d , addition, U.S. 36 . . is supra,] In reliance . upon Shafer[, “[defendant’s Harris, at v. Cal.4th unavailing. (People supra, p. Shafer, [In defective court that ‘the South Carolina instructions were because explained status,’ they jury parole eligibility failed inform informed the that there jury whereas California instructions ‘explicitly (2009) 46 Cal.4th (People Dykes would be no possibility parole’].)” 1], (Dykes).) 209 P.3d fin.omitted concept “[T]he clear. We are not life in with no parole prison possibility [Citation.] claims outside record and untested made persuaded by empirical appellate (DePriest, at 42 Cal.4th at contrary supra, trial is true.” suggesting question The trial court’s decision not to answer the jury’s 9. a deadlock concerning consequences of trial failure to answer the jury’s Defendant contends court’s if reach a unani- what occur could not would question concerning him due of his rights mous verdict phase deprived process penalty of cruel and unusual under to be free from the imposition punishment Constitution, Fifth, and Fourteenth Amendments to the United States Eighth, I, and 17 of the California Constitution. and article sections 30, and resumed in in the afternoon of November began deliberations Jury 1, on the on December 1. the afternoon session December morning During 1352

the court informed counsel that the had sent jury the note: “We following want to know what if we cannot reach a unanimous decision? happens Judge makes decision? The trial re-trial/entirely? court asked re-trial/penalty?” counsel their views the to the concerning appropriate jury’s inquiry. response before, he Defense counsel stated had not this issue that his experienced decision, concern was that the were irrelevant to the and that questions jury’s People he did not know what to take. The court read a position passage from v. Hines 997, 594, (1997) 388], 15 Cal.4th 1075 P.2d 938 which Cal.Rptr.2d [64 stated that “an instruction the of a ‘would explaining hung consequences jury have the and the in unduly confusing their potential misguiding jury in the role function proper penalty process.’ determination [Citations.]” concluded, The court me that suggests “That these not be questions should answered.” Defense counsel “That’s And responded, feeling. I hadn’t read my on the The any cases issue.” court returned the written questions “The Court following response: cannot answer these questions.” jury 1, until deliberated 3:00 December resumed p.m. deliberations the morn- 2, of December at ing informed the court 11:45 a.m. that it had reached a verdict.

Defendant contends trial court erred failing inform by jury of the aof deadlock. Defendant waived consequences has this claim by the trial agreeing with court concerning to the appropriate response jury’s v. question. (People Hughes 287, (2002) 401, 402 (Hughes) 39 P.3d claim is defense waived counsel’s agreement 432] [“this with the trial court that deadlock informing consequences of a asserts, however, would have been Defendant counsel’s improper”].) his take, earlier statement that he did not know what position issue, statement had not read cases subsequent any addressing reflect that counsel did make a knowing, intelligent, voluntary decision to waive defendant’s in right. The he cites of this authority support because it proposition involves defendant’s waiver of inapposite, right v. Moran 389, (See (1993) counsel. L.Ed.2d Godinez 509 U.S. 400 [125 Johnson v. Zerbst 2680]; 113 S.Ct. U.S. L.Ed. 465 [82 here, 1019].) 58 S.Ct. In circumstances defendant must presented establish ineffective assistance of counsel to avoid the of his consequences counsel’s actions. event,

In also claim fails on merits. We have held any repeatedly that a court trial is not to educate a the conse- required jury concerning Hughes, supra, 402; (See deadlock. see also quences Cal.4th Jones United States S.Ct. U.S. L.Ed.2d court declined to exercise its in supervisory powers require 2090] [the case an every concerning consequences instruction a deadlock capital Hughes, at the we like As a case penalty phase].) explained “Especially not clear that there actually was this—in it which deadlock—an of deadlock ‘would have the a the of informing jury consequence instruction deliberate, be to the ideas open and to of duty diminished the sense jurors’ jury’s is irrelevant to the a hung jury fellow of jurors. effect of at supra, p. (Hughes, it.’ any deliberation issue [Citation.]” before of italics.) original however, cases notes, asked in by juries prior that the questions Defendant of a a the as possible consequence not articulate retrial of guilt phase did deadlock, a would occur that belief that such retrial and he contends jurors’ the regarding to reach consensus have resulted in pressure would improper The jury’s does not alter our conclusion. This contention penalty. speculative retrial the would guilt believed a of any juror phase note did not establish that Rather, that one or at the note reflected a deadlock the phase. follow penalty scenarios, includ- concerning possible more had jurors apparently speculated cases in which jurors the a retrial. in most Presumably, of ing possibility deadlock, given the of a have jurors information about consequences request That in the events follow a deadlock. might jurors some what thought not that any juror scenarios does establish case articulated various present Nor the jurors’ would follow a deadlock. did believed result particular the conse- “informing attenuate the the of jury principle speculation the of duty of ‘would have diminished sense jurors’ a deadlock quence deliberate, of jurors.” (Hughes, supra, to be the ideas fellow open Cal.4th Carolina, v. 512 U.S. supra,

Defendant’s reliance Simmons South upon In (9th 2001) Cir. 826 is Morris F.3d misplaced. Woodford Simmons, future urged the to consider defendant’s prosecution jury court refused to inform the that defendant was jury dangerousness, Morris, jury erroneously In the written instructions eligible parole. could not decide between death and life without jury stated if of of should return verdict life with possibility it parole, possibility Thereafter, concerning the court declined to answer the jury’s question parole. Thus, the agree. jurors’ sentence would be if the could not jury what imposed facts or and Morris involved principles confusion Simmons alleged In to the determination of appropriate penalty. were relevant jurors’ contrast, will occur litigation retrial of of the the issue whether any aspect a verdict is irrelevant to the determination jury’s if the cannot reach the appropriate penalty. conviction and kidnapping our reversal

10. Effect of circumstance kidnapping special finding vacation of upon penalty event circumstances

Defendant contends that special vacated, deprive of death will judgment found the jury upholding him of his to due trial right and to be free from the process, by jury, Sixth, Fifth, of cruel and unusual under the imposition punishment Eighth, Constitution, I, and Fourteenth Amendments to the United States and article 7, 16, sections the 17 of California Constitution.

We have concluded that the conviction be must reversed kidnapping vacated, and the circumstance must be due to kidnapping special finding instructional error. Three other valid circumstance remain: special findings addition, burglary, robbery, and In the the sodomy. facts found in jury victim, connection the kidnapping conviction—defendant the compelled fear, room, force or to move to the and the was through procedure movement “substantial” within the of be meaning CALJIC No. 9.50—could properly considered the as circumstances of the jury sodomy, burglary, robbery, 190.3, the (a). of murder under section the factor Because was jury circumstances, weight authorized to these of give aggravating regardless whether the circumstances constituted the at time defendant kidnapping crimes, committed the of our reversal the conviction and our kidnapping vacation of the circumstance do not kidnapping special finding require v. Brown Sanders (See reversal the penalty. (2006) 546 U.S. 220 L.Ed.2d 126 S.Ct. of a circumstance special [163 884] [invalidation will the not render if finding penalty unconstitutional “one the other the sentencing factors enables sentencer the give weight aggravating People v. Lewis circumstances”]; same facts and People Mungia 947].) 181 P.3d As in v. Cal.Rptr.3d Cal.4th 880], P.3d which we in reversed torture- murder is special-circumstance finding, no likelihood that the jury’s “[t]here consideration of mere existence of the circumstance [kidnapping] special (Id. balance toward death.” at there no tipped Similarly, conviction likelihood that the mere existence kidnapping tipped Lewis, People supra, balance death. toward as we at Finally, explained 520-522, our error pages finding kidnapping jury instruction was to the harmless with does not to a respect right violate penalty determination fact increases the penalty.

11. Cumulative prejudice Defendant at guilt asserts errors committed phase considered him of fair penalty phase, together, deprived penalty phase and, above, hearing. We have found no error at the noted as penalty phase, Therefore, there was no cumulative effect prejudicial guilt phase. defendant suffered no cumulative from the actual and prejudice presumed errors, and not of a fair phase hearing. deprived penalty scheme death penalty challenges

12. General California’s challenges rejected general we have acknowledges, As defendant California’s death scheme. penalty broad, whether California death statute is impermissibly penalty

“[T]he (Dykes, court. its face or as this interpreted by considered on [Citations.]” 547, Brady (2010) 813; Cal.4th v. 50 supra, People 46 Cal.4th at see also p. 458, 312].) 236 P.3d 590 Cal.Rptr.3d [113 190.3, (a), on its face or as factor further claim section ‘reject

“We of a and capricious imposition and arbitrary interpreted applied, permits 693, Lynch v. (2010) 50 Cal.4th 766 (People sentence of death.’ [Citations.]” 63, as (Lynch).) adjectives “The use of such 237 P.3d Cal.Rptr.3d [114 416] 190.3, 190.3, (d) and or in section ‘extreme’ in section factors ‘substantial’ (g), of an barrier the consideration factor do not serve as (g), improper 616, Cal.4th (People Jennings 50 evidence. mitigating [Citation.]” 133, 237 P.3d (Jennings).) 690 Cal.Rptr.3d [114 474] and not lack to avoid arbitrary death statute does penalty safeguards “[T]he trial, because or defendant of the right jury capricious sentencing deprive to the truth of unanimity aggravating it does not written as findings, require circumstances, or doubt that an findings beyond aggravating reasonable 190.3, evidence) circumstance (other (b) (c) than factor or has been proved, § factors, that death that the or is mitigating factors aggravating outweighed may sentence. consider jury properly appropriate [Citations.] Nor, contrary defendant’s criminal unadjudicated activity. [Citation.] claims, standard of is a of the evidence alternative preponderance exists, findings for the that an factor compelled aggravating proof factors, is the and that death aggravating mitigating factors outweigh sentence, nor the trial court to instruct required jury is appropriate (Lynch, supra, is no 50 Cal.4th there burden of proof. p. [Citations.]” or Because no burden of proof required during penalty persuasion that, death, return a of each judgment and the was instructed phase, jury “[t]o so are substan- you aggravating must be that the circumstances persuaded it death tial circumstances that warrants with the mitigating comparison ‘tie-breaking necessary.” “no rule’ instead life without parole,” 131, 577, v. Bennett P.3d 632 199 (People Cal.Rptr.3d 296, U.S. Blakely, Ring, supra, 536 supra, 535].) The decisions in 542 U.S. (D’Arcy, do not otherwise. Apprendi, supra, require and 530 U.S. that the must 48 court need not instmct supra, Cal.4th at p. [the factor; Blakely, Ring, Apprendi and do find an aggravating true unanimously conclusion]; v. Mills (2010) 48 Cal.4th People not alter this death law is not invalid penalty 226 P.3d 276] [California’s factors, failing unanimous require findings nor for aggravating consideration of permitting unadjudicated criminal activity; Blakely, Ring, do not Apprendi preclude consideration of criminal unadjudicated activity].)

“ ‘The failure to intercase does not require proportionality guarantee “arbitrary, discriminatory, of the death disproportionate impositions pen Fifth, Sixth, alty,” or violate the Eighth, Fourteenth Amendments.’ Moreover, ‘capital defendants are not noncapital similarly [Citation.] situated and therefore bemay treated differently without constitu violating tional guarantees of the laws or due equal protection of law.’ process 767; (Lynch, 50 Cal.4th at supra, see Jennings, [Citation.]” supra, Cal.4th defendants and [capital defendants are not noncapital situated].) similarly

“We again argument that California’s death reject scheme is penalty contrary international norms of and therefore humanity decency, violates and Fourteenth Eighth Amendments of the United States Constitution. ‘International law does not a sentence of prohibit [Citation.] in death rendered accordance state and federal constitutional and statutory requirements.’ Because we conclude that defendant’s [Citation.] sentence was rendered in accordance with we those need not requirements, consider whether violations of alleged such also would violate requirements international law. We also that the reject argument use of [Citations.] ‘as capital regular violates international punishment punishment’ norms and and hence violates humanity decency Amendment of the Eighth United States ‘California Constitution. does not employ punishment capital in such a manner. The death is available for the penalty only crime of murder, first degree when a only special circumstance is [allegation] true; furthermore, found administration of the governed consti penalty tutional and different from statutory provisions those applying “regular for felonies. punishment” (Jennings, supra, [Citations.]’ [Citation.]” 690-691.) Cal.4th at pp.

III. CONCLUSION We reverse the judgment of conviction for vacate the findings kidnapping, related to and otherwise affirm the kidnapping, judgment. J.,

Baxter, J., Chin, J., J., J.,* Werdegar, Corrigan, concurred. Chaney, KENNARD, J., Concurring Dissenting. convicted defendant A jury Gabriel Castaneda of first murder for a female who degree killing employee District, One, Appeal, assigned *Associate Justice the Court of Appellate Second Division VI, by the pursuant Chief Justice to article section 6 of the California Constitution. for the yet opened clinic that had not alone at a small medical working killing findings made circumstance also day. jury special and rob- burglary, of sodomy, kidnapping, the commission during occurred of death. and it returned a verdict bery, error, convic- reverses the kidnapping majority

Based on instructional Nevertheless, finding. special-circumstance tion vacates the kidnapping out, because be in its entirety can affirmed the majority points judgment underlying the facts remain and because findings three circumstance special at the penalty otherwise admissible circumstance were special kidnapping ante, I agree. (Maj. opn., phase. however, failing I the trial court erred in

Unlike the conclude that majority, included in the offense necessarily to instruct on theft as lesser did not prejudice I further conclude error offense of robbery. I fully judgment. defendant. concur Accordingly, I clinic, which defendant had body

When the victim’s was found there, were her the victim was previously working missing visited while watch, led the robbery and wallet. The those items ring, taking purse, the murder was committed and the circumstance charge special allegation a during robbery. his to steal a whether defendant formed intent

The evidence raised question included of and intimidation—which he acts force completed before her, with a victim, her her by stabbing binding sodomizing killing situation, defend In the latter those acts. screwdriver—or completed after theft, within of a offense included only necessarily ant could be lesser guilty 1, 50 v. DePriest 42 Cal.4th (2007) (People the crime of robbery. [63 (DePriest).) 896, an did not request P.3d Defendant 163 Cal.Rptr.3d 896] theft, no such gave of and the trial court instruction on lesser offense The court should have done so. instruction. here: correctly legal principles apply The majority explains

“ ‘ the addi which includes included offense of robbery, “Theft is lesser only If arose after or fear.” intent steal tional element force [Citation.] assaulted, fear is force or stealing by element of robbery the victim was 1005, 1055-1056 v. (1997) 14 Cal.4th (People absent. [Citations.]’ Bradford 1358 225, 544]; [(2003)] 929 P.2d see v. Cal.Rptr.2d [People

[60 ]Yeoman 186, [93,] Cal.4th 128-129 72 P.3d Cal.Rptr.3d constitute [2 1166] [to robbery, intent to steal must be formed before or during application ‘Nevertheless, force].) evidence, “the existence matter ‘any no how weak’ will not justify instructions on lesser included . . . .” offense [Citation.]’ (DePriest, supra, 50.) 42 Cal.4th at ‘Instructions on p. intent after-acquired and theft aas lesser included of robbery offense are unwarranted absent “substantial evidence” that the defendant first intent formed the to take the victim’s after (2008) force. v. property applying (People Zamudio [Citation.]’ 327, ante, 105].)” 181 P.3d at Cal.Rptr.3d (Maj. opn., however,

I disagree, with the here majority’s conclusion that “there is no evidence substantial that defendant formed the intent to steal after he only victim,” ceased force to the “the applying and therefore that trial court was ante, an instruction required give theft.” concerning grand (Maj. opn., at 1332-1333.) pp.

Substantial evidence of after-formed intent to steal need not be-testimony (as of the defendant it was in v. Turner People 50 Cal.3d 690 [268 887]), P.2d Cal.Rptr. similar direct As evidence. shown our decision in Ledesma People Cal.4th 657],

140 P.3d the substantial evidence needed to warrant instruction be on theft can evidence of some motive for victim that attacking unrelated to thus an inference that the robbery, intent to steal arose supporting the attack was completed. after

Here, the evidence shows that sodomy—a sexual preferred practice defendant’s—was a motive for defendant’s use of force on victim. (Maj. ante, 1308, 1323.) This evidence opn., pp. inference that supports watch, wallet, the victim’s stealing ring, and other an after- property thought that arose when the assault victim was complete. Adding strength to this inference is evidence defendant’s lack of interest suggesting cards, in He the taken. never used the victim’s credit and as for her property watch, cousin, and he showed them to to ring his said was throw going (Id. then, them and at the cousin’s them her away, gave to instead. at request, 1324, 1331.) pp. (or

In that defendant formed an intent to steal before concluding during) victim, evidence, use of on the force the to majority points such physical as the victim’s book the the on the floor in office where victim her lying kept there, visibility the struggled she defendant suggesting

purse, her. sodomizing (Maj. was opn., while defendant the and watch ring victim’s office where the ante, struggled and the victim 1324.) at That defendant p. motive, it nothing regarding the victim her kept purse proves visible to the and watch were victim’s ring is to infer because speculative the her, that he formed it the assault during defendant as he sodomized was to intent steal also defendant’s preexisting intent to steal. The infers majority (Ibid.) addiction. Again, due to his money drug from his need for presumed earlier, did As defendant I noted reasoning the is mere majority’s speculation. cards, ring the victim’s away the and he gave not use victim’s credit watch. this case to distinguishes evidence intent steal

The weak preexisting 451, 118 P.3d (2005) 37 Cal.4th 168 People Gray from v. ante, 1332-1333.) (See at 496], on which the relies. majority maj. opn., pp. assault, the and murder in victim’s mobile- involved a sexual Gray robbery, earlier, 180-181.) the in Gray at Two defendant (Gray, days home. supra, pp. the of stealing. five mobilehomes burglarized solely purpose had other (Id. 178-179.) that when the That history strongly implied pp. prior had an to steal. In broke into the home he likewise intent victim’s contrast, here the evidence of a intent to steal weak. preexisting quite here a motive for the assault summary,

In evidence that defendant had than with that defendant lacked interest in other combined evidence stealing, taken, evidence” that his intent steal constitutes “substantial property initiative, assault, court, its after the thus the trial on own arose requiring within necessarily instruct theft as lesser offense included jury regarding Zamudio, 360.) 43 Cal.4th at In not supra, the crime v. robbery. (People p. so, the now trial court erred. I turn to doing prejudice. question

H a lesser offense that is A trial court’s failure to instruct the jury “if is harmless ‘the included offense necessarily greater charged resolved necessarily factual the omitted instruction question posed by ” other, to the defendant under instructions.’ given adversely properly Here, Turner, gave Cal.3d at trial court supra, 50 (People during on the circumstance of murder a standard instruction jury special find requiring jury the commission of robbery, language robbery. murder was committed “in order out or advance” carry true, to be thereby necessarily found that circumstance allegation jury special acted with an intent to rob victim. concluding that defendant independent Hence, resolved defendant the factual adversely question posed the omitted instruction on theft as a lesser included offense robbery, the trial court’s error in (See the latter omitting instruction was harmless. Sakarias People Cal.4th P.2d 152].) I concur in the

Accordingly, affirmance of the majority’s judgment. 17, 2011, for a Appellant’s petition rehearing denied and the August was modified to read as opinion above. printed

Case Details

Case Name: People v. Castaneda

Court Name: California Supreme Court

Date Published: Jun 30, 2011

Citation: 127 Cal. Rptr. 3d 200

Docket Number: S085348

Court Abbreviation: Cal.