People v. Jurado

S042698. Apr. [No. 2006.] PEOPLE,

THE Plaintiff and Respondent, JURADO, JR.,

ROBERT Defendant and Appellant.

Cоunsel Hersek, Defenders, Coffin Lynne S. and Michael T. State Public under Court, Hammond, appointment Mark by and Public Supreme State Deputy Defender, for and Defendant Appellant. General, Anderson,

Bill Lockyer, Robert R. Chief Attorney Assistant Attorney General, Schons, General, Wood, W. Gary Assistant M. Attorney William Mizell, General, Larissa Hendren and Karpovics Marvin Attorneys Deputy and Plaintiff Respondent.

Opinion KENNARD, J. Jurado, Jr., Robert from of appeals judgment death his conviction upon verdict one count of murder the first jury Code, (Pen. 187),1 degree with the circumstance of special intentionally § 190.2, (§ while in wait killing (a)(15)), subd. and count of lying one (§§ 187). to commit murder conspiracy The found defendant jury used a and personally deadly commit the murder. dangerous weapon (§ subd. (b).) The jury that returned these verdicts as to guilt circumstance special also returned a verdict death for the murder. penalty 190.4, court (§ trial denied motion to modify automatic penalty (e)) and subd. sentenced defendant death. statutory All further are Penal references Code unless otherwise indicated. (§ (b).) is subd. from the of death automatic.

This judgment appeal in its entirety. We affirm the judgment Proceedings

I. Facts 17, 1991, of Teresa body (Terry) a stranded motorist saw On May She had County. 163 in Diego in a culvert beneath San Highway Holloway As the days to death two earlier. prosecution’s been beaten strangled established, killed with Holloway, help trial evidence at Humiston, disclosing her from their and Anna to prevent Denise Shigemura named Mynatt.2 to kill a dealer drug Doug plan A. Prosecution’s Guilt Phase Case-in-chief later, 1989, a they Teresa month Holloway; In Brian. Johnsen met October until late and continued 1991. together living together April began living time, on a regular was Holloway using methamphetamine this Throughout 1989, at a bar and introduced Doug In met Holloway Mynatt basis. December him to Johnsen. met defendant and bought crystal

In Brian Johnsen August July was Schmidt’s house. Defendant shar- from him Mark methamphetamine was Anna Denise but his girlfriend an with ing Shigemura, apartment Humiston, her Johnsen and student who lived with parents. school high defendant, Shigemura, and shared with drugs Teresa socialized Holloway introduced defendant to Mynatt. Humiston. Johnsen later in and remained federal In Denise arrested Shigemura October house. During when she was released to a halfway until custody April calls letters and with time in custody, Shigemura exchanged telephone her from the obtained Shigemura overnight Teresa When Holloway. passes house, lived with she at the house where Teresa Holloway halfway stayed Brian Johnsen. defendant, and their with argued

In Teresa Holloway February Humiston with Anna relationships became Holloway’s strained. relationship strained, had a that almost quarrel on one occasion they also became time, moved on Doug temporary turned Around the same Mynatt violent. 2 life degree years to to in state Shigemura guilty murder and was sentenced pled to first adult, Humiston, killing, an was tried as years at the time of the who was 17 old prison. murder, 25 years to to commit and sentenced degree conspiracy convicted of first murder (See Humiston Cal.App.4th prison. life in to state 515].) into

basis the house that Brian Johnsen and shared. Johnsen had Holloway been from buying methamphetamine Mynatt. late

In defendant March a .38-caliber gave Doug handgun Mynatt for exchange When learned that defendant stolen the drugs. Mynatt gun, had he insisted that take it back and instead for A pay money drugs. later, few weeks Mynatt and Johnsen took defendant from his to apartment Johnsen’s house. made Mynatt him there until defendant stay overnight to agreed pay Mynatt and sell threat- methamphetamine Mynatt him. ened kill did agree. defendant if he 11, 1991,

On April Brian Johnsen was arrested raid and during drug spent five He was days custody. arrested because were found under a drugs defendant, couch at his house. Some drugs but defendant belonged did not admit they were his. Johnsen felt that defendant owed him something incident, because of this and defendant agreed Johnsen with compensate marijuana. late

In April Brian Johnsen made Holloway Teresa move out they use, house had shared because of her and he continuing drug offered to let remain in Doug Mynatt the house on a more basis as his permanent Carnahan, roommate. Holloway Thomas who to let her approached agreed live in his did apartment He her a temporarily. give key, and he insisted that she either inbe 11:00 him apartment by before that p.m. telephone to let time him know she when would be arriving. 6, 1991,

On May Brian Johnsen a began serving sentence for 14-day jail driving with a suspended Doug license. continued live Mynatt to in Johnsen’s house. Defendant still owed Mynatt money. 13, 1991, conversation,

On a May during Denise told telephone Shigemura (who Brian Johnsen still in custody) was had her Doug stolen Mynatt $80, which contained a purse, to the business she then key where was and to working, the combination to According business’s safe. Shigemura, admitted Mynatt taking the and said he did it because he purse suspected Shigemura $450 from him. stealing seemed about Shigemura very upset the incident was and worried about what with the Mynatt might do business conversation, and the safe key During combination. this defendant phoned defendant, and Shigemura, three-way conversation ensued between Johnsen, Shigemura, which discussed during they possibly killing retaliation, however, were Mynatt. worried about They because potential had claimed to Mynatt have a friend who was affiliated with the Hell’s decided day. the matter further the next They to discuss Angels. They agreed because of concern about the to kill Mynatt not to tell Holloway plan Teresa she would reveal it to police. Colson, 13th, defendant David telephoned On day, Monday, May the same to borrow a and he asked had methamphetamine, with whom he used do which Colson somebody up,” said he “needed to shotgun. told intended to kill someone. Colson to mean that defendant understood did, his and he brother shotgun, that he did not own a although defendant called Colson’s number. Defendant his brother’s telephone defendant gave do,” but “had to to his he shotgun, saying job brother and asked borrow refused to lend the defendant. shotgun brother if time, Baldwin he Denise asked Steven Around the same Shigemura that she term for a (a slang gun). Shigemura explained could her a “gat” get he could not help to take care of. Baldwin told her had she needed problem her with her problem. 14th, from the his house

On Brian Johnsen Tuesday, May telephoned defend- decided to contact Denise Shigemura. They county jail spoke Mynatt. what to do about Doug could discuss ant so the three them defendant briefly house and spoke Johnsen Anna Humiston’s telephoned he deciding Defendant said was still whether about the to kill Mynatt. plan with it. go through 14th, at the Holloway May apartment

Later on same day, Tuesday, managed and Ted Meier lived. Larissa Slusher where complex had next to defendant’s. Slusher an they apartment complex, occupied seven or months. eight as a casual known Teresa Holloway acquaintance their could night apartment, asked Meier if she spend Holloway out of the and she had been locked apartment because it was after 11:00 p.m., Holloway left morning, Meier The next agreed. where she had been staying. a.m., dress Slusher with her a that taking or 9:00 around 8:00 apartment left, later that day, said she would return had her. Before she Holloway loaned 15th, but never did. May she 15th, Mark telephoned Brian Johnsen evening, May

On Wednesday to and Denise Shigemura him to defendant bring Schmidt and asked and a half Schmidt ran about two so he could talk to them. Schmidt’s house and Holloway he Teresa where found blocks to defendant’s apartment, while a Geo Metro Humiston arrived in blue defendant. Anna with Shigemura call, Schmidt was to defendant. Defendant to take Johnsen’s speaking agreed Humiston, and he came to Schmidt’s in Humiston’s car with apartment Shigemura, Holloway. and

At that 8:17 Brian Johnsen Schmidt’s p.m. evening, apartment. telephoned Schmidt answered and who said she was still passed phone Shigemura, unsure about then on to kill plan Mynatt. got phone told Johnsen that he it could wait (meaning killing Mynatt) would before Johnsen released from jail. was Johnsen said probably happen fine was with him. Teresa then on the and asked Holloway got phone whether there to Mynatt. was kill Johnsen told her not to plan get involved. Johnsen,

While Teresa was on the Holloway Brian speaking telephone Humiston; defendant had a “forceful talk” with Anna he seemed about angry something; she seemed both and scared. Defendant then asked Schmidt angry for a chain that use defendant could to tie Johnsen’s so Doug up motorcycle Mynatt could not steal it. Schmidt offered defendant an 18-inch length neck, plastic weed-eater cord. Defendant cord around his own wrapped with end one in each at fist clenched shoulder He said: “It will height. do.” Denise needed to return Shigemura to her house halfway by 9:00 At p.m. Schmidt told Holloway get off the because request, phone he needed to leave the all left apartment. Schmidt’s around They apartment 8:45 p.m.

At 9:31 defendant p.m., Christie Medlin at her telephoned He apartment. ride, told her that he was stranded and needed a and that he was from calling Silva, 7-Eleven store. Medlin asked David her boyfriend, pick up defendant and his friends. Silva found with Denise Shigemura Anna Humiston the 7-Eleven store at and Fifth He Spruce Streets. drove arrived, them to Medlin’s when Humiston apartment; they her holding ill; stomach and to be she she told Medlin had an stomach. appeared upset Defendant seemed bothered something, and seemed Shigemura agitated. socks, Noticing what to be appeared blood on defendant’s Medlin asked him what had Defendant said he into a Humiston happened. “got used fight.” Medlin’s to call her father to tell him that the blue Geo Metro had telephone broken down. Silva drove Humiston home. Medlin then drove defendant and Shigemura to defendant’s apartment. 16th, 9:30,

On Thursday morning, around tow truck driver met May defendant, Humiston, Anna and Denise Shigemura 163 near the Highway Quince Street Bridge, where the blue Geo Metro was The driver parked. He where defendant lived. observed to the towed car apartment complex signed towing Humiston receipt. about their demeanor. unusual nothing 16th, and of the same day, Thursday, May On the afternoon and the three shared went to David Silva’s apartment, Denise Shigemura her so Silva to “bruise up” and asked defendant and beer. pizza Shigemura an and would have excuse she could she had been beaten say then Defendant and Silva night. her house returning halfway to previous to later went Shigemura defendant and with their fists. When Shigemura hit show Schmidt removed her shirt to Shigemura Mark Schmidt’s apartment, been that she had She told Schmidt the bruises on her chest and arms. night. the previous “jumped” went Steven defendant and Denise Shigemura the same

During day, room, with living Schmidt. sat in They Baldwin’s house with Mark couch, on another. Shigemura defendant and Baldwin and Schmidt on one for. was asked “I no need what it I longer yоu said Baldwin: Shigemura Balboa Park.” body and We took care of the we dumped problem as an “empty face what Baldwin described Defendant said his had nothing; look.” 17th, trouble engine May Hedley morning, Joseph experienced

On Friday Balboa Park. He parked as was on driving Highway through he a van call box about walking telephone and began van beside the freeway box, he foot protruding he the call noticed a human away. As neared yards closer, he saw Approaching from a culvert that ran beneath the freeway. culvert, traveling it not visible inside the where was persons woman’s body box, the call no Using He to her but received response. on the called freeway. later arrived minutes what he had seen. Police officers Hedley reported Teresa and found that the body Holloway’s. A. Mark a deputy of Teresa

During Holloway’s body, Super, the autopsy Examiner’s Medical Diego County examiner San by medical employed torso, face, and Office, Contusions and extremities. many saw on injuries arms, with the right both and both legs abrasions were on the chest on showed of the abrasions bruised swollen. Some being hand particularly were made an they object linear marks suggesting clusters of short parallel neck, including There were bruises abrasions many with threads. manual strangulation. been by ligature some marks that could have made in the hemorrhages eyeballs; and there were bone was fractured hyoid was a bite with There strangulation. were consistent both of these findings face The most extensive were injuries in the center of the back. mark and head. The and all the facial fractured bones were and some had jaw caved in. There were many lacerations on the the skull was deep scalp, fractured. In a had jack scissor “all characteristics Super’s expert opinion, inflicted that one would in the that he observed. expect” weapon injuries The cause of death was “blunt force head injuries strangulation.” 17th, Manis,

On R. Friday May James with the San evening, sergeant Police, Diego found defendant with Anna Humiston outside defendant’s He told he apartment defendant was the death of complex. investigating Teresa Defendant said that he knew had Holloway. that he last Holloway, seen her about three at days before at the house a man named party Mark, dealers, that she a drug was user who owed money and that he drug did not trust her because she had from stolen him. Defendant led Sergeant car, Manis to Holloway’s which was about three or four blocks from parked defendant’s apartment. 18th,

On Saturday May defendant and Anna at morning, Humiston arrived David Silva’s a new car that Humiston’s apartment just had parents given her. drove They then to defendant’s where apartment, Sergeant Manis ar- rested them. Later day, Sergeant Manis found scissor in a tree jack between the midway where Teresa place was found and Holloway’s body 7-Eleven store at the comer of Spruce and Fifth Streets where David Silva defendant, had found Shigemura, and Humiston on the night murder. was jack covered with red stains and had hair attached to it. Denise was arrested on the Shigemura same day. arrest,

After his defendant made calls from the jail Brian telephone Johnsen, Medlin, Christie and David Silva. When Johnsen asked defendant why he had killed Teresa Holloway, defendant said it had to be done. To Medlin, “On, on, defendant sang bitch is gone.” to Medlin’s According trial said testimony, defendant like he doesn’t care if he has “something really this, spend rest of his life the bitch is paying When Silva gone.” asked death, defendant about told him that Holloway’s Holloway car, was killed in a that he had been in the backseat sitting with Humiston while Shigemura was driving in the Holloway sitting front passenger seat, and that an out of argument “got hand.” 19th,

Around Larissa Slusher saw the had May dress she loaned Teresa in a about Holloway 100 feet from dumpster With the apartment. wallet, dress were her Holloway’s purse, her identification papers, photo- scene, of her graphs daughter, a sandal that matched one found murder and a of shoes pair defendant. belonging Dorsett, for the San Police Diego an evidence technician Mark

Gary Lab, He collected the blue Geo Metro. samples Crime examined Department harness and seat cover and seatbelt red from the front passenger of stains side. There was no jack on the carpet passenger from the rear floorboard car. dentist, on the bite mark a forensic compared Norman Donald Sperber, defendant, Denise Shigemura, dental from back with Holloway’s impressions teeth were “highly defendant’s Anna Humiston. In Sperber’s opinion, and mark, could but neither nor Humiston Shigemura the bite consistent” with it. have made case, trial, stipulated

At as of the prosecution’s parties part and the rear on the scissor jack blood The blood analysis. results of with Teresa Holloway’s Geo Metro was consistent floorboard of the blue defendant, blood, and with the blood of Denise Shigemura, but inconsistent and on and found purse dumpster, Anna Humiston. Blood on the sandal Metro, was consistent with cover of the blue Geo the front seat passenger all of these individuals. blood of four Ten of of hair comparison analysis. also results stipulated parties the hair of hand consistent with Holloway’s in Teresa were

the hairs found defendant, or of Denise Shigemura, but not with the hair Anna Humiston with the hair both were consistent Teresa Four hairs Holloway. or Shigemura, the hair of defendant and but not with Holloway, Humiston and were not with Humiston’s hair three of the hairs were inconsistent defendant, or Shigemura, Holloway. to the hair of compared at the Guilt Phase B. Case Defense arrest, Johnsen went to the house Josephine defendant’s Brian

After mother, Jurado, one on the door her house night and knocked door, asked Johnsen who he was she around Without opening 9:30. he had lent to defendant. he wanted helmet wanted. Johnsen said what he was, it but and did not know where him she did not have the helmet She told that Teresa because she knew not leave. She was frightened Johnsen would had been charged and that defendant had Johnsen’s girlfriend been Holloway mother telephoned left after defendant’s eventually her murder. Johnsen with the police. interview, 19, 1991, Police Officer Diego San during a 10-minute

On May to describe what happened Mark Schmidt David Swiskowski asked 15, 1991, Schmidt’s on the evening of before Teresa apartment May Holloway’s murder, but Schmidt’s were and evasive. Schmidt said that replies vague defendant, Humiston, Anna came to Holloway, Denise his Shigemura o’clock, around 8 and that he received a apartment evening call phone from Brian told Johnsen. Schmidt Swiskowski that he gave phone defendant, and that defendant and were alone in his bedroom with Holloway for about 10 minutes. Schmidt phone say did to Swiskowski anything about having to leave the a story about apartment, making up having leave or that apartment, defendant a cord around his neck. put 19th, On the same May an day, during interview that lasted 10 to 15 minutes, David Silva him told Officer Swiskowski that defendant had called from after jail being arrested for Teresa Holloway’s murder. Silva told Swiskowski that that conversation not during defendant did talk about the murder that he had been except say with it. Silva did tеll charged Swiskowski that defendant said was killed she Holloway because was a snitch, did nor Silva say that defendant had where described were persons seated in car Humiston’s before or the murder. during 10, 1991, Bento,

On September Tony investigator an for the San Diego District interviewed Attorney, David Silva for around 25 minutes. During interview, Silva said he had talked to defendant on several occasions after arrest, and that always defendant had denied Teresa killing and never that Holloway said she had been killed because she had overheard conversation, or that she was killed because an argument out of hand. got interview, however, At the end of the Silva mentioned a conversation with defendant death Holloway’s which during defendant had said that before Holloway had overheard and she something “was snitch him off going about something.” 16, 1991,

On September Tony Bento interviewed Brian Johnsen for at least hour, arrest, an which during Johnsen said that after defendant’s called and told him stay away from defendant’s or “the same family thing would to them.” happen Bento understood “them” as a reference to Johnsen interview, and his Mends. In this him Johnsen never said that defendant told that Terry Holloway killed it was because had to be done. Johnsen also told Bento that he had Latimer discussed with to kill Jeffrey plan Doug Mynatt.

Jeffrey Latimer was a childhood friend of Brian Johnsen’s and him through met defendant Doug Latimer testified that he Mynatt. never discussed with Johnsen a to kill and that to his plan Mynatt, knowledge Johnsen had really “never been honest” and “was crook and thief.” always arranged toxicologist, a forensic scientist and Whalley, In Richard taken from defendant after the urine sample have a retest laboratory private aat low very found to contain methamphetamine arrest. The urine was his effect but which not have caused (130 nanograms) any level would during had used that defendant suggested probably methamphetamine two to four days. previous Pasas, investigator a licensed Marion Louise private

In January retained, Christie Medlin had interviewed whom Anna Humiston’s attorney murder Holloway’s told Pasas that after Teresa Medlin her apartment. occasion, during one but Medlin from jail defendant had called did not tell about the murder. Medlin defendant did not talk conversation he dead or that he said Holloway said he was glad Pasas that defendant of his life in jail care whether he the rest prison. did not spent in Aggravation Phase Case Penalty C. Prosecution’s and with his mother his living defendant was Before while August Marcos, and agitated he once became highly in an in San sister apartment bed, a in her face. Another his and slightly against spit mother upset, pushed his mother and sister was with living occurred later while defendant incident occasion, home very On this defendant came Diego. upset in a house in San and threatened to obtain weapons his having girlfriend, after broken with up mother, house, and her to kill his advanced toward threatened shoot the up restrained him and if strike her. Defendant’s friends with a raised hand as to tried to the telephone police, When defendant’s sister took him outside. incident, this in December her hand. After the from grabbed phone defendant removed a order to have him restraining defendant’s mother applied from her house. of mari- of was convicted felony possession

In October defendant for sale. juana body, she was Holloway’s of Teresa autopsy

In May during old, fetus, 17 weeks was which was around to have been pregnant. found womb, it showed no but to have survived outside young too and too small that would have its precluded or other condition of traumatic injury evidence befоre her not died. Some weeks and birth had Holloway to full term survival defendant did death, was but defendant that she pregnant, had told Holloway test and to a get she planning pregnancy said was Holloway not believe her. she she show it defendant prove the test result would got that when she was pregnant. for a 21, 1991, county jail Baldwin was booked into Steven July

On tank, holding him was escorting violation. As deputy probation defendant, tank, who inside the saw him and to another inmate: “I was said know that dude. the reason in I He’s I’m here. He told killed cops tank, bitch.” After the had Baldwin in an named inmate deputy placed Janssen, know, Richard Baldwin him struck whom did and approached times, directions, him. Baldwin hit from on the was then several different him, back of head and side of the face. Defendant did not strike but when the came a side and told beating defendant out of cell stopped, Baldwin: “You be in can’t this cell. You to roll out of this cell.” got up consciousness, Baldwin lost and the next he remembered was thing being the tank outside on a As a result of the Baldwin suffered gurney. beating, face, to the left injuries side his and both above including bruising swelling and below the a laceration below the and a eye, eye, fracture of nondisplaced the malar bone. 5, 1993,

On September out fight broke inmates in module 5-B of among the county in jail Diego. San at the module 15 to arriving observed Deputies inmates on one side Hispanic of the module faced off to 10 against eight Black inmates on the other side of the module. The inmates were yelling forth, throwing back and some things inmates had towels bloodstained on their arms. Defendant in wrapped was inmates and Hispanic group bars, was one at least four inmates metal 12 to holding 18 inches length diameter, inch one-quarter that had been removed from inmate bunks. The inmates were slamming these bars bunks and against making stabbing inmates, with motions them toward Black not seen although removed, strike anyone. After the inmates were the deputies many found module, items that could used be as scattered weapons throughout bars, razors, including metal seven wooden handle two one mop pieces, comb, razor blade attached ato three wooden and grate window two pieces, socks bars. containing soap

Teresa Holloway’s murder affected her and Joan James deeply parents, Cucinotta, and her who daughter, at the time of Teresa death was Holloway’s four old years and lived with her father. After the learned of her daughter death, mother’s she became sad and withdrawn and cried a lot. She often said: “I want I want my Mommy, my Mommy.”

A detective came to the of police home James and Joan Cucinotta to tell it; them Teresa of death. first not Holloway’s At Joan could she was accept and and very she tried to hit the When said upset angry, detective. he they had identified Teresa fell Holloway’s body through Joan fingerprints, apart and became Some and hysterical. friends came over to be with her. family afterwards, That and for to night she was unable eat or She days just sleep. cried and smoked She unable cigarettes. was to deal with the funeral making relatives, or arrangements so James did things. Cucinotta those telephoning Cucinotta, father, affected seriously also Terry Holloway’s James death, an in as time of her he worked law enforcement her murder. At the murder, of he his job weeks after lost learning but within two investigator, until began drinking he to function. He longer heavily because was no able wife Joan both into center. He and his he went a treatment eventually murder also deeply from for their grief. received treatment psychiatrists sistеr, children, and brother Holloway’s their two other Teresa affected of more than testimony, At the time his became family holidays very painful. death, wife James and his Teresa Cucinotta Holloway’s four after years took Joan Cucinotta sometimes every continued to visit Teresa’s week. grave to the grave. Teresa’s daughter in Penalty Mitigation

D. Phase Case Defense in San 5-B the county Bruce was one of the inmates in module jail Calvin he to his wife when 1993. He was on talking phone Diego September inmates, a confrontation two one Black and the other have Hispanic, saw between Black and resulted in face-off groups became physical threw in both wielded and during inmates which inmates groups Hispanic Bruce, original ‍‌​​‌​‌‌‌‌​‌‌​‌​​​‌‌​‌‌‌​​​​‌​​‌​‌​‌‌​​‌‌‌​‌​​‌​​‍defendant was not one metal to pipes. According incident, combatants, hand during in his any weapon he did have other the fighting. he tried inmates unsuccessfully stop persuade Jurado, Sr., Jurado—married and Josephine Defendant’s parents—Robert in and his Oralia November Defendant was bom in June sister in 1968. Once, time, he around Banos. when was At that lived Los family

1973. old, his mother. Defendant ran up defendant saw his father hit years four mother and her. hugged his and defendant began experience

In defendant’s parents separated, He also developed that would make him lot.” cry “tremendous headaches dark, with his mother. and he became more rebellious fear of sleeping more than once father his children no After the defendant’s saw separation, a year. twice divorce. In defendant’s finalized their parents

In visit, he went there to and San His father never mother moved to Diego. In father remarried. seldom. Around defendant’s telephoned very he to use In 1987 or drags. fail and began began defendant’s to grades him When he learned in a treatment program. defendant’s mother drug placed with cut all ties defendant’s father using drugs, that defendant was illegal time, that told mother this defendant’s defendant. Around psychiatrist When right away. needed to be hospitalized defendant was suicidal and defendant’s insurance to mother his father some telephoned get papers cover defendant’s defendant’s father said to the hospitalization, something effect that it be better if defendant did commit suicide. might

Defendant’s father testified that he had seen defendant once since his arrest and could now form a him because was no with defendant relationship longer using drugs.

Before his to San with mother in defendant had close moving Diego Camacho, aunt, his with Patricia and his two relationships grandmothers, Josefina Martinez and Paz each They Jurado. testified that love defend- they ant intended him in very much and to visit Defendant’s mother and prison. much, his sister Oralia both testified love they that defendant that very they arrest, had visited defendant since his and intended weekly that they continue him in visiting prison. Jury

II. Pretrial Selection Issues A. Double Jeopardy

The District Attorney San filed an County amended information Diego 187) defendant with charging (§ murder to commit murder conspiracy (§§ 182, 187), 190.2, and alleging (§ circumstance lying-in-wait special (a)(15)) subd. defendant making eligible the death penalty. filed a motion under section 995 to set aside the count and the conspiracy lying-in-wait allegation on the were not special-circumstance ground they adequately the evidence supported by at the presented hearing. preliminary The motion, court, filed prosecution written to the and the trial opposition count, after a denied the hearing, motion to dismiss as to the but conspiracy the court the granted motion as to the circumstance special allegation. after the court made its

Immediately ruling circum- dismissing speсial stance defendant allegation, announced his intention to plead guilty remaining charges. prosecutor might stated his office seek appellate review of the ruling aside the setting special circumstance petitioning mandate, Court of for a writ of and that for this reason he would Appeal sign form if change plea pled guilty remaining then charges. Defendant his previous withdrew not-guilty pleas pled guilty remaining charges.

To aside circumstance challenge ruling setting special allegation, prosecution (See Court for a writ of mandate. petitioned Appeal (Jurado) Court People Superior (1992) Cal.App.4th 242].) The Court of which had Appeal stayed sentencing hearing, 94 23, writ petition, for December 1991. In his opposition

been scheduled the remaining he had guilty that because already pled defendant argued would allegation of the circumstance further charges, any prosecution special (U.S. of the federal and state Constitutions violate the double clauses jeopardy I, Const., Amend.; Const., 15), for the Cal. art. this reason special 5th § even the trial court had not be reinstated if circumstance could allegation at (See (Jurado), v. supra, in it. Court People Superior erred dismissing 1229.) p. the the had erred in dismissing

The of held that trial court Court Appeal Superior under v. Court section 995 allegation (People circumstance special was no double 1229) 4 at and also that there (Jurado), p. supra, Cal.App.4th the circumstance of bar to reinstatement prosecution special jeopardy mandate, writ of 1235-1236). In the (id. granting petition at allegation pp. trial to enter new order denying Court directed the court the of Appeal in its thereby reinstating motion entirety, special defendant’s section 995 at (Jurado), supra, Court v. allegation. (People Superior circumstance (Ibid.) for review. Defendant This court denied defendant’s petition p. and denied the charges, then withdrew his guilty pleas, pled guilty circumstance allegation. special he raised unsuccess- raises same double issue

Defendant here jeopardy in the of writ Court petition in fully prosecutor’s pretrial opposing is barred that defendant’s claim Attorney argues General Appeal. law of case doctrine. case, a or rule that a the law of the principle

Under the doctrine of to the reviewing in and that is necessary court states an reviewing opinion in all later the same throughout proceedings must be court’s decision applied case, (2004) 34 on a v. Turner (People both in the trial court and later appeal. 182, 505); Barragan (2004) v. People 99 P.3d Cal.4th Cal.Rptr.3d [20 480]; Stanley (1995) 83 P.3d 32 Cal.4th 246 Cal.Rptr.3d [9 We 481].) P.2d apply Cal.Rptr.2d cases, when the decision in death and even penalty previous doctrine even it an we do not when apply a Court of but Appeal, was rendered by law, of rules has or clarified the controlling decision altered intervening “ of misapplication’ in the decision was a ‘manifest when rule stated prior ” Stanley, injustice.’ the law ‘substantial resulting 787; accord, (2005) 37 Cal.4th People Gray 496].) 118 P.3d to the doctrine exceptions both argues recognized in the law and manifest change misapplica- the law of case—intervening resulting injustice—are present substantial legal tion existing principles reviewing we the Court begin by Appeal’s here. To his arguments, evaluate decision.

95 The this Court of framed the issue “Jurado’s Appeal way: response whether the dismissal People’s presents petition question prejeopardy motion circumstance to Jurado’s under special allegation pursuant section and his immediate without the concurrence of the plea 995 guilty before the could review of that prosecutor and seek prosecutor pretrial dismissal result in a same would ‘second for the offense after prosecution’ ” (Jurado), or ‘conviction.’ 4 ‘acquittal’ Superior Court (People supra, concluded, first, 1229-1230.) at The court that dismissal Cal.App.4th pp. circumstance under section was a special allegation 995 prejeopardy determination. rather than a (People (Jurado), Court postjeopardy Superior concluded, second, 1230-1231.) at The supra, court that pp. lying-in-wait was not “an element special circumstance added which would create a greater murder,” offense out of the instead charged but enhancement.” “penalty (Id. 1231.) Third, concluded, at the court after p. certain distinguishing cited, decisions that defendant that case this “most resembles” Ohio v. closely (1984) Johnson 467 U.S. (Johnson). L.Ed.2d 104 S.Ct. 2536] Court (Jurado), 1233.) at Superior supra, p. Johnson, In a defendant with four charged arising offenses from the same incident to two of the pled guilty offenses—involuntary manslaughter which, motion, grand theft—after on the defendant’s the trial court dismissed the other charges—murder two that aggravated robbery—“on ground because of his further on the guilty pleas, more serious offenses prosecution was barred the double by of the Fifth and jeopardy Fourteenth prohibitions (Johnson, Amendments.” U.S. at supra, 494.) The United p. States concluded, Supreme Court to the contrary, that “prosecuting [the defendant] on the two more serious charges would not constitute the type ‘multiple prosecution’ prohibited by (Ibid.) Double Clause.” Jeopardy court the federal high explained Constitution’s double clause jeopardy (1) a second protects against for same offense prosecution after or conviction and acquittal for the same multiple punishment (Johnson, offense. 498.) U.S. at The bar against subsequent prosecution after or acquittal conviction “ensures that the does not State make individual, to convict repeated an him attempts thereby to continued exposing embarrassment, anxiety, while the risk of an expense, increasing errone sentence,” ous an conviction or enhanced while the bar impermissibly against for a multiple offense “is to ensure that punishment single designed discretion of sentencing courts is confined to the limits established at legislature.” (Id. 498-499.) The court concluded the issue of pp. was not multiple punishment because the defendant had never yet presented for, of, been tried convicted for the sentenced more serious offenses of “While (Id. murder and 499-500.) the Double aggravated robbery. pp. Clause a defendant Jeopardy may protect against punishments cumulative offense, from Clause the State on the same does prohibit convictions a single for such offenses in respondent prosecution.” multiple prosecuting (Id. at p. the murder the that further of prosecution

The court also rejected argument violate double jeopardy would the aggravated robbery charges prohibi- and “No successive interest of against prosecutions: respondent protected tion the is Double Clause by continuing prosecution the Jeopardy implicated offered only in the indictment. Here charges brought respondent remaining him, while objected of the the State charges against disposing resolve part . . has without a trial. . There against simply of counts any respondent that is overreaching been none of the double jeopardy supposed governmental hand, thе State now would ending deny On the other prosecution prevent. who violated its to one and fair to convict those have its full right opportunity (Johnson, 501-502.) 467 U.S. at supra, pp. laws.” Here, to distinguish the Court of rejected attempts Appeal Johnson, here did U.S. that the supra, argued prosecutor 493. As the Court of Appeal to defendant’s sufficiently guilty pleas. object out, however, his office advised the trial court that prosecutor pointed dismissal of the circumstance special seek review of the might appellate that the and trial court advised defendant of the possibility allegation, (Jurado), be Court Superior circumstance would reinstated. special 1234—1235.)The concluded: Appeal at Court pp. supra, Cal.App.4th circumstance, nor was he ever was for the jeopardy special “Jurado never not in of that Since circumstance is convicted charge. special acquitted murder, is reason to there no a lesser- or greater-offense relationship to trial on the maneuver to a deny right allow Jurado’s tactical (Id. 1235-1236.) that merits of allegation.” pp. first, decision in that the United States Court’s Supreme

Defendant argues, 2428], 122 S.Ct. 536 U.S. 584 L.Ed.2d Ring Arizona law that a establishing an in the intervening special constitutes change death is the penalty for the eligible circumstance making murder. We capital of an element of a offense greater functional equivalent is, for decide is correct that a circumstance special need not whether defendant of an element of a greater the functional equivalent double jeopardy purposes, otherwise, true, erred in Even if is and the Court of stating offense. Appeal Johnson, it is not a for distinguishing it does not assist defendant because basis There, Court’s the Ohio accepted Supreme 467 U.S. court supra, high 493. not be of both murder the defendant could convicted determination that for but it nonetheless concluded killing, the same involuntary manslaughter for did not bar prosecution plea involuntary manslaughter guilty (Johnson, 467 U.S. at 496-497 facts of that supra, pp. murder under the case. here, fn.& So also of double under purposes jeopardy analysis shown, facts it no makes difference whether a circumstance is or is special element, element, not an or the functional of an of a equivalent greater offense. Johnson,

Defendant’s second argument is that 467 U.S. is distinguishable, that the Court of reliance on that decision Appeal’s Johnson, law, manifest misapplication because unlike the defendant in he pled to all then guilty charges him and pending against the prosecutor openly actively of these participated taking We are pleas. unper suaded that these differences slight are significant. prosecution charged defendant with murder with a circumstance special it allegation, timely sought review of the trial court’s erroneous dismissal of the it and allegation, did not in acquiesce defendant’s to the murder guilty plea charge. The prosecutor’s in the participation of the taking guilty in the plea, primarily form of that an insisting factual adequate demonstrated, basis be an “effort to prosecute (Johnson, 500, the charges supra, 467 U.S. at p. seriatim” 9) fn. and did not the risks that pose the successive of the prosecution aspect double bar was jeopardy intended to guard against—“repeated attempts individual, convict an embarrassment, him thereby to continued exposing anxiety, expense, while the increasing risk of an erroneous conviction or Johnson, an (id. impermissibly enhanced sentence” 498-499). at As in pp. there wаs “none of the governmental overreaching double is jeopardy supposed prevent,” a double imposing bar jeopardy “would the deny State its to one full right and fair opportunity convict those who have (Id. violated its laws.” 501-502.) at pp.

Because defendant has not shown that the Court of decision Appeal’s his rejecting double law, claim jeopardy was a manifest misapplication that it resulted in substantial or that injustice, there has been an intervening law, in change the the controlling Court of decision is the law of Appeal’s the case on that issue.

B. Vindictive Prosecution 6, 1992, On after July the Court of decision Appeal’s reinstating special final, circumstance became allegation announced that his office prosecutor had decided to 20, seek the death 1992, penalty against defendant. On August defendant filed a motion bar the from prosecutor the death seeking penalty on the that the ground 4, decision to do so was vindictive. On September 1992, the motion, filed prosecutor written and on opposition September 11, 1992, defendant withdrew his and entered guilty of not pleas pleas guilty. 11, 1992, Also on September trial court denied the motion alleging vindictive prosecution. now claims the trial court erred in so ruling. 98 as a general

“Absent of invidious or vindictive prosecution, proof of a crime under capital a defendant who has been convicted duly matter heard to may appeal death statute not be complain constitutional penalty in him with charging special exercise of discretion prosecutor’s v. Lucas (1995) 12 death seeking penalty.” circumstances 525, 477 415, 373].) P.2d But the due process Cal.4th 907 Cal.Rptr.2d [48 Const., (U.S. 14th 5th & federal and state Constitutions clauses 7, Amends.; Const., I, 15) taking from Cal. art. forbid the prosecution §§ defendant, in as the charges, actions a criminal such against increasing certain (United exercise of constitutional rights. retaliation defendant’s 74, 368, 2485]; Goodwin States v. L.Ed.2d S.Ct. (1982) 457 U.S. 372 102 [73 865, 267, re Bower 880, In P.2d (1985) 700 Cal.Rptr. 38 Cal.3d fn. 7 [215 however, violation, for a to offer 1269].) prosecutor It is not a constitutional benefits, for a guilty the form charges, exchange of reduced threaten if the defendant does not plead or to to increase charges pleas, (Bordenkircher Hayes U.S. 365 L.Ed.2d guilty. [54 v. Collins People 663]; (2001) 26 Cal.4th fn. see 98 S.Ct. 726].) In the there is no pretrial setting, 27 P.3d presumption Cal.Rptr.2d or, here, as charges when the increases the of vindictiveness prosecution Goodwin, (United 381-382; States pp. potential penalty. 1032].) Michaels (2002) 28 P.3d Cal.4th Rather, that the prosecutor’s charging the defendant must “prove objectively for the something a desire to him decision was motivated by punish doing Goodwin, (United 384, supra, States at p. law allowed him to do.” plainly Michaels, supra, omitted; 515.) fn. p. to the trial court to his claim evidence defendant submitted only prove recounting was a declaration his trial attorney

of vindictive prosecution by to the announcement of the decision certain events leading up prosecutor’s 16, 1991, arraigned death On when defendant was August seek the penalty. of and Holloway information him with the murder Teresa on an charging wait, of in the prosecutor, Deputy the circumstance lying alleging special Pettine, the announced his office was not seeking Mark Attorney District 11, 1991, filed On an amended information death October penalty. 19, 15 to of to commit murder. On November charge the adding conspiracy examination, how he at a describing Brian Johnsen testified conditional how defendant Mynatt had discussed a kill and plan Doug and defendant be Two “it had to done.” Holloway days admitted Teresa because killing later later, court the circumstance special November the trial dismissed remaining charges. guilty and defendant pled allegation the of the circumstance challenged special then dismissal The prosecution of In late of for a writ mandate. the Court Appeal allegation by petitioning after the had Appeal granted or Court early April March final, Attorney had become District Deputy but before its decision petition, Pettine told defendant’s trial that if defendant withdrew his attorney guilty whether Pettine would talk to the about to seek the pleas, attorney district death if defendant did it was guilty pleas likely but not withdraw penalty, later, however, that the sought.3 death would not be A few weeks penalty Pettine he intended to discuss the death advised defense counsel that penalty with the not defendant his district whether or withdrew attorney guilty pleas, but he that the death if defendant might sought not be implied penalty circumstance admitted the at a allegation. On special July hearing case, to discuss the superior court status after defense counsel announced that this court had defendant’s for review of the denied petition Court of decision reinstating allegation, circumstance Appeal’s special District Pettine that he had with the Deputy Attorney stated met district again defendant, who had decided to seek the death attorney, against penalty that he had advised defense counsel of that decision. immediately court,

Like the trial we see in this of events no evidence that the sequence prosecution’s decision seek the death defendant was penalty against motivated a desire to by defendant for the motion to dismiss punish making circumstance special allegation under section for pleading guilty bar, to assert a double for attempting the prosecution’s jeopardy opposing writ in the Court of petition this court to Appeal, petitioning review Court of decision. the discussions between District Appeal’s Although Deputy Attorney Pettine defense suggest counsel that the decision to seek the death influenced may have been penalty some extent by decision to was not an deny special allegation, circumstance this imper 365; missible (Bordenkircher v. consideration. 434 U.S. at Hayes, supra, p. Collins, People v. Cal.4th at fn. substance, argues, decision to seek the prosecution’s

death penalty must have been a desire to against motivated him for punish challenging validity circumstance special allegation through his section 995 motion because nothing significance else of occurred 16, 1991, between when the said his was not August office prosecutor seeking 6, 1992, the death when the said it was. We penalty, July prosecutor 1991, In disagree. Brian Johnsen told of September investigators prosecution 1991, defendant’s in a involvement to kill in November the plan Doug Mynatt; 3 1992, 27, April hearing On the trial court held a to discuss the of the Defense status case. petition counsel announced that defendant review of the intended to this court for Court of Appeal’s reinstating regardless special allegation, decision the circumstance and that of the pleas. outcome of that defendant did not guilty Deputy effort intend withdraw his District Attorney attorney Pettine announced that he had with the whether to seek the discussed district penalty, attorney death and the district that no decision made until defendant said would be guilty pleas. decided would Pettine the whether he withdraw Ms said he would discuss matter attorney again with light guilty plea, the district in of decision not to Ms withdraw but he “all are explained options open.” that still credibility Briаn and assessed the examined Johnsen conditionally prosecutor 1992, and, trial the murder of at Anna Humiston’s testimony; of his in early had the of strength the an assess Holloway, Teresa prosecution opportunity to reassess its These could well have caused the prosecution its case. events in about the this case. decision appropriate penalty information been Brian could not have that Johnsen’s argues did not decide to seek the death penalty because the significant prosecution of that We Because months after information. many receiving disagree. until the Doug Mynatt, concerns for the of Brian Johnsen and safety prosecu- its disclosing examine after immediately decided to Johnsen conditionally tion examina- from him. Two after that conditional days the information obtained ended, It circumstance allegation. the trial court dismissed the tion special reinstated, and the months the circumstance was later that only special its then reassessed its decision and announced immediately prosecution Thus, the actual window of time for intention to seek the death penalty. months, as to act Johnsen’s information was many on Brian prosecution asserts, motive inference of days. but few No only improper Moreover, failure to this'brief period. arises from the act prosecution’s during did not on Johnsen’s decision to seek the death rest ultimately penalty alone, its on the to preview information but also prosecution’s opportunity trial, of Denise including testimony Shigemura. case at the Humiston for the evidence of a vindictive motive Because defendant did not present death trial did not err in court decision seek penalty, prosecution’s from that defendant’s motion to bar prosecution seeking penalty. denying C. Voir Dire Procedures 1, 80 Court Hovey (1980)

In 28 Cal.3d Superior Cal.Rptr. [168 death- 1301], 616 P.2d this court decided that capital prosecutions dire be each voir should juror’s seques portion prospective qualification tered, of other be conducted out of presence it should meaning dire was did not voir This court hold jurors. sequestered prospective instead, we this as a rule mandated constitutionally required; practice v. Vieira (See (2005) 35 Cal.4th 286-287 procedure. 990]; People Cudjo Cal.4th 106 P.3d Cal.Rptr.3d however, this 635].) abrogated P.2d In voters added section 223 Hovey by enacting Proposition which aspect That statute that “where part, practi Code of Civil Procedure. provides, other dire “in the presence the trial court must conduct voir cable” Proc., cases, cases.” Civ. (Code death including in all criminal penalty jurors § selection in this case with after jury began screening, process hardship

which the filled out remaining prospective jurors lengthy juror question- (fire naire. To in the with mandate that voir occur comply statutory Proc., (Code 223), of other “where Civ. presence jurors practicable” § dire, trial court decided to conduct voir about the death including questioning with small of 10 Before the dire of penalty, voir groups prospective jurors. the first small the defense individual voir dire of group, five requested who, counsel, in the view of defense had prospective jurors “expressed very strong attitudes toward the death in their penalty” questionnaire responses. The trial court denied the but it stated would reconsider request Thereafter, matter based on the individual jurors’ answers voir dire. during however, the court agreed voir dire of separate4 sequestered prospective whose jurors questionnaire indicated to the death responses strong opposition and the court said that it would do the penalty, same if questionnaire indicated a responses bias in favor of the death The court followed penalty. dire, this procedure the remainder of the voir during providing sequestered death-qualification voir dire for who had any juror expressed particularly views strong about the death either for or out the penalty, against, filling questionnaire, counsel to assist inviting identifying prospective for jurors whom voir dire would be After sequestered appropriate. nearly manner, had been prospective jurors on voir dire in questioned this challenges cause had been made and ruled selection upon, jury process exercise of completed by The defense peremptory challenges. selected, expressed satisfaction with the jurors were sworn to they try case.

Defendant contends that the trial court’s failure to conduct sequestered is, voir death-qualification dire—that each question prospective juror subjects to the death relating out of the penalty of other presence prospective jurors—violated his rights under the federal Constitution to due process, equal trial, counsel, protection, jury effective assistance of and a reliable penalty verdict, and his under right California law to individual voir dire juror when voir dire is not group practical.

Insofar as defendant contends that the federal Constitution requires seques tered case, voir dire every prospective juror death-qualification in a capital the claim has been this court and is without merit. frequently rejected by Stitely (2005) 35 Cal.4th 536-537 108 P.3d Cal.Rptr.3d Vieira, 182]; 286-287; People v. Box 35 Cal.4th at pp. 130].) 5 P.3d instances, In jurors strong some who expressed penalty questionnaire death views on the responses questioned were with who expressed others had similar views but out of the presence jurors who had expressed such views. 102 under his rights that the trial court violated defendant contends

Insofar as its to exercise failing California law and under the federal Constitution the record in dire was voir “practicable,” to consider whether group discretion Rather, understood the trial court clearly claim. does not his this case support dire, did so for those jurors voir and it to order individual it had discretion and disqualifying suggested strong possibly responses whose questionnaire did not abuse The trial court of the death penalty. regarding imposition views 223, nor did it violate Procedure section under Code of Civil its discretion Box, rights. defendant’s constitutional 1180-1181.) pp. Claim

D. Batson/Wheeler selection, its ninth peremptory after the used prosecution During jury woman, B.J., made an objection the defense to excuse a Black challenge 890, 583 P.2d 22 Cal.Rptr. Cal.3d 258 under v. Wheeler at the on the objection that it would hear argument The trial court stated 748]. challenge 11th then used its peremptory next recess. The prosecution N.M., had exercised 12 Black woman. After prosecutor another against chal- the defense had exercised peremptory challenges peremptory constituted, and the as jury satisfaction with both sides lenges, expressed then selected case. Alternate were jurors sworn to try were jurors sworn. recess, on the Wheeler defense argument the next presented

During under Batson v. was counsel stated that the objection Defense objection. (Batson) as L.Ed.2d 106 S.Ct. (1986) 476 U.S. 1712] Kentucky in this about talking racial we are and that group well as Wheeler “[t]he American, women.” The African American African specifically instance is race of the two jurors “based on the whether the challenge court asked on “race and that it was based Defense counsel replied were excused.” who of the three African-American had excused two that the prosecutor gender,” believed this that defense counsel jury who were on panel, women discrimination. to raise an inference impermissible was sufficient “inter- defense was improperly that the argued In response, prosecutor showed jury on the of seven women classes” and that the presence relating also noted The prosecutor women. against there had been no discrimination he had challenged on the initial panel, that of the four African-Americans one, Defense on the two, jury. and one was seated defense had challenged that, had eight used as to gender, prosecution counsel responded of an stated that “out The trial court women. against challenges peremptory to offer “the opportunity giving of caution” it was prosecution abundance to offer for care you based rationale or nonracially whatever nongender-based the challenges.”

The said he N.M. because she “indicated that she challenged prosecutor there some with the district office thought attorney’s handling was problems and because “indicated that she had a brother that had cases” she high-profile chal- been arrested and for The said he drugs.” prosecuted prosecutor office, B J. her our and she was an because “son was lenged prosecuted by most alibi witness in that case” and because “she’s one of the probably “I that hostile that I’ve ever The added: think jurors questioned.” prosecutor she feels with the of her son.” Defense counsel very, very prosecution upset reasons, declined the trial invitation to on these “We stating: court’s comment submit would for the then ruled on this court’s on it.” The trial court ruling “I think the I think aspect challenge, stating: People—their explanation convinces me that and were not challenges racially [B.J.] [N.M.] motivated or based their race.” upon

The trial court then “out of an abundance of caution” asked the prosecutor for reasons its the other six women. provide peremptory challenges against The asked for time to review his notes and and the court prosecutor papers, to take the matter later. agreed noted that the defense had up prosecutor men, used most of its as as 11 peremptory challenges against many possibly substance, out of 13 The court challenges. that it did not think that replied, was relevant on the defense “I’m not ruling challenge: sure two wrongs make a . . .” right.

The next day, for the six prosecutor provided reasons remaining peremptory women. The said he L.J. challenges prosecutor challenged “because she indicated on five different on the that she places questionnaire the death He against J.O. because she “indicated on penalty.” challenged her that she felt she was a questionnaire that she “had wishy-washy person,” mind,” difficulty] her that from other making up start “pressure jurors might herself,” her to doubt and that “she thinks she is a bad of character.” He judge challenged N.J. because she stated on her “the burden of questionnaire life was deciding too a decision for her to make.” person’s really just great He challenged F.C. because she stated on her that she would questionnaire “find it difficult” to vote for death and the she had “a clear prosecutor thought leaning against death He L.H. because “a fair penalty.” challenged of her reading is that she hasn’t made her mind” about the questionnaire up death “a fair because of her statements in court was that penalty, reading she is much really the death He B.B. because opposed challenged penalty.” she wrote on her that “she had questionnaire religious philosophical views so that she would vote always the death and because against penalty” he thought she have might difficulty understanding English. Finally, spoken he M.B. because she was challenged old to be years appeared “basically overwhelmed” and because she had in the believing apologized death penalty. the trial court in response, defense counsel’s argument

After hearing the district “I’m satisfied that stating; the defense objection, overruled which challenges per- for each of these made an explanation has attorney that they based on sufficiently gender solely me that were they suades rights.” constitutional held to have violated should be [defendant’s] erred in overruling the trial court contends for the reasons peremp- because the prosecutor’s Batson/Wheeler objection the trial in the record” and because little or no “found challenges support tory of the credibility evaluate the prosecu- “failed in its duty seriously court of whether determination purposeful and make a reasoned tor’s excuses error violated his rights contends that this existed.” Defendant discrimination law, trial, and to to due equal to a fair process under the federal Constitution law, to trial by under the state Constitution and his rights protection of the community. cross-section drawn from a representative jury jurors to remove challenges prospective use of peremptory The federal and the California violates both the of their race or gender because (J. 127, B. Alabama ex rel. T. (1994) 511 U.S. 129 E. B. v. Constitutions. 400, v. Powers Ohio 89, 1419]; (1991) U.S. 409 S.Ct. 499 L.Ed.2d 114 [128 Batson, 89; v. People 411, 1364]; 476 U.S. at supra, p. L.Ed.2d 111 S.Ct. [113 654, 946, 874].) 51 P.3d McDermott (2002) Cal.Rptr.2d 28 Cal.4th 969 [123 be Court has set out three-step process States The United Supreme discriminated has that an improperly when a claims party opponent followed First, must the complaining party challenges. in the exercise of peremptory Second, the party invidious discrimination. facie case of make out prima chal reasons for the nondiscriminatory state must challenge exercising has Third, party must decide whether complaining the trial court lenge. (Johnson (2005) U.S. 162 v. 545 discrimination. proved purposeful California 2416]; Purkett Elemv. 2410, (1995) 514 U.S. 129, 125 S.Ct. L.Ed.2d [162 v. Silva 834, 1769]; (2001) 25 Cal.4th 765, People 115 S.Ct. L.Ed.2d 767 [131 769].) 21 P.3d 384 Cal.Rptr.2d [106 the trial challenges, the peremptory explain By asking prosecutor facie showing had made a prima found that defendant court here implicitly challenges. exercise of in the peremptory discrimination impermissible 50 P.3d 723 v. Cash Cal.Rptr.2d (People [122 stated on the credibility prosecutor’s the trial court ruled 332].) Once facie reasons, showing had made a prima the defense the issue of whether L.Ed.2d New York (1991) 500 U.S. (Hernandez moot. became 92, 135 v. Arias (1996) 13 Cal.4th 1859]; People 111 S.Ct. 980].) P.2d evaluate each effort to a sincere and reasoned trial court has made When a accord great we juror, to a challenge particular for a of the stated reasons under the substantial evidence standard. to its it ruling, reviewing deference Cash, McDermott, 971; supra, 28 Cal.4th at Cal.4th at p. order in them in the taking consider each of the eight challenged jurors,

We challenges. reasons for the which the provided peremptory prosecutor that she “indi- reasons for N.M. were challenging stated prosecutor’s attorney’s cated that she there was some with district thought problems “indicated that she had а office cases” and because she handling high-profile These reasons are brother that had been arrested and for drugs.” prosecuted neutral as to race and are gender, they inherently implausible, the trial on the of this finding credibility substantial evidence court’s supports In to a on the juror asking explanation. response question questionnaire (district . whether she had for or . “any feeling against. prosecutors specific marked “There seems to be attorneys),” many she “yes” explained: another she with cases.” In problems high-profile response question, arrested, indicated that a and tried charged, close relative friend had been crime, for a and she “Brother arrested for possession drugs.” explained: are that the reasons for N.M. argues challenging prosecutor’s not credible because other whom the did not jurors challenge, prosecutor who were seated on the also had relatives who had been ultimately jury, arrested for offenses. Even if we assume we must conduct a drug-related Dretke Miller-El v. (see for first time on comparative juror analysis appeal 2317, 2326]; People (2005) 545 U.S. fn. 2 L.Ed. 2d 125 S.Ct. [162 Schmeck 451]; (2005) Cal.4th 118 P.3d Cal.Rptr.3d People Gray, supra, 188-189), 37 Cal.4th at defendant does not pp. of the seated who similar to N.M.’s on both identify any juror gave responses mentioned had some seated topics by prosecutor. Although jurors offenses, relatives who had been arrested for none of these drug-related jurors also expressed any feelings against prosecutors.

The said he B.J. because her “son was prosecutor challenged prosecuted office, our and she was an alibi witness in that case” and because “she’s one The of the most hostile that I’ve ever probably jurors questioned.” added: “I think that she feels with prosecutor very, very upset prosecution are race and are not her son.” These reasons neutral as to gender, they the trial court’s substantial evidence inherently implausible, supports dire, on the of this On voir BJ. said that she finding credibility explanation. her that the case Diego County, had been an alibi witness in son’s trial in San was dismissed after two resulted in and that her hung juries, experiences trials favorable,” denied although with the in that case “were not she very police system. or the criminal negative justice toward having feelings prosecutor When the stated that B.J. was one of the hostile most prosecutor “probably said, he had court “I recall that ever the trial same jurors” questioned, having did when we were to her.” Defense counsel impression talking dispute dire, this characterization of BJ.’s demeanor on voir instead submit- merely the matter. ting

The stated reason for L.J. was that “she indicated prosecutor’s challenging on five different on the that she was the death against places questionnaire statement, The credible and record this which a penalty.” supports provides for about the death is a gender-neutral ground challenge. Skepticism penalty for a of a challenge. basis exercise permissible prosecutor’s peremptory v. Panah 107 P.3d McDermott, 790]; 970-971.) 28 Cal.4th at pp.

The were “indi- stated reasons for J.O. that she prosecutor’s challenging cated on her she felt she a that questionnaire wishy-washy person,” mind,” she “had her from other difficulty] making jurors up “pressure herself,” start her to doubt and that “she thinks she is bad might judge reasons, character.” The record these which credible and supports provide A could be gender-neutral grounds challenge. reasonably prosecutor concerned about a who said she was a bad of character beсause juror judge she would “believe hard luck any story.” stated reason for NJ. was her challenging prosecutor’s questionnaire that “the burden of life was too deciding person’s really just great

response a decision for her to make.” This is an accurate of one of N.J.’s description in which marked the “no” she questionnaire responses, response question case, asking whether she would like to serve as a on this this juror adding “The burden of decision for a life-either the death explanation; person’s sentence or life This a legitimate imprisonment.” response provides credible reason for the challenge.

The said he F.C. because she stated on her prosecutor challenged question- naire that she would “find it difficult” to vote for death and the prosecutor she had “a clear the death In to a thought against leaning penalty.” response for her about the death F.C. wrote on her question asking “feelings penalty,” but in would “In a few cases it be I questionnaire, may necessary, general find it difficult to this recommendation.” These reservations about give death a basis for a exercise of a penalty provided permissible prosecutor’s Panah, 441; 35 Cal.4th at challenge. (People supra, peremptory McDermott, 970-971.) 28 Cal.4th at pp. “a her said he L.H. because fair challenged reading prosecutor that made her mind” about the death is she hasn’t up penalty,

questionnaire that she is really her in court was and because “a fair statements reading for asking the death In to question much to penalty.” response opposed “Well, it L.H. wrote this response: her about the death “feelings penalty,” else for someone is killing seems that the death killing person by penalty I’m not to die do for our society? What will someone confusing. sentencing what In to a asking sure of this for an sentence.” ‘eye eye’ response question ‍‌​​‌​‌‌‌‌​‌‌​‌​​​‌‌​‌‌‌​​​​‌​​‌​‌​‌‌​​‌‌‌​‌​​‌​​‍serves, “I’m not sure it does death she wrote: or penalty purpose purposes given it seems to be Unfortunately, disproportionately serve valid purpose. Also, if new to there’s no back once it’s done—what going non-whites. Her on voir dire also revealed skepticism evidence comes light?” responses the death about the death These reservations about penalty provided penalty. credible, for a exercise of a basis legitimate, gender-neutral prosecutor’s peremptory challenge.

He because she wrote on her that “she had challenged B.B. questionnaire religious views so that she would vote philosophical always against death and because he she have understand- penalty” thought might difficulty The record these reasons. The ing spoken English. questionnaire supports moral, asked the had “any religious, whether prospective jurors they would be death so philosophical strong [they] opposition penalty unable to the death of the facts.” In to this regardless impose penalty response B.B. a check mark next to with this “Thou question, “yes,” put explanation: kill, shall not one of the 10 commandments of God.” She also indicated that she had been bom in the Philippines, thereby suggesting English might neutral, not be her first These are and credible reasons language. permissible, for the of B.B. challenge peremptory said he M.B. because she was 73

Finally, prosecutor challenged years overwhelmed” old and to be and because she had appeared “basically in the death The record these apologized believing penalty. supports reasons, which are credible and neutral. The asked gender questionnaire their about the death M.B. wrote state prospective jurors “feeling penalty.” “I am but I am for the death She also response: sorry say penalty.” indicated on the like to as a juror that she would not serve questionnaire dire, this case. On voir when the asked her about this prosecutor response, boards, she said: “I have served on before and I also been on election I juries know, think else should do it. You somebody my years living.” that the trial court erred argument We are defendant’s unpersuaded by on defendant’s Batson/Wheeler motion until the next deferring argument recess, had been which occurred after the selection jury process completed to a to the Defense counsel did not object and had been sworn case. jury try time, the was satisfied this at the and in fact indicated that defense procedure Moreover, the the the of swearing with the that was sworn to case. jury try would not have made it for the trial court to effective jury impossible grant Batson/Wheeler in the the motion. Although relief event court granted Batson/Wheeler of the a motion attached with the jeopardy swearing jury, and a of double be deemed a motion for mistrial thus waiver may any v. Batts People (See defense. jeopardy 67, 68 P.3d for a mistrial waives any

Cal.Rptr.2d request 357] [a claim]; v. Yeoman (2003) 31 double see also Cal.4th jeopardy 186, 72 P.3d motions often termed motions for 1166] [Wheeler mistrial].)

We conclude that substantial evidence trial court’s rulings supports defendant’s Batson/Wheeler race on the basis of and rejecting challenges gender. Relating Special

III. to Guilt and Circumstances Issues Testimony A. Conditional Examination

Defendant contends that the trial court erred under state law in overruling his to admission trial the conditional examination of testimony objection of Johnsen, Brian and that error violated to this defendant’s constitutional rights counsel, confrontation, due to and to fair and reliable determina- process, to. Fifth, Sixth, tions under the Fourteenth guilt penalty Eighth, Amendments to the United States Constitution.

1. Factual background 1, 1991, the trial court granted On November prosecutor’s request under section for an in camera out of the hearing 1054.7 presence defendant and his to consider or limitation of discov- attorney postponement At the told the court that in ery. hearing, September prosecutor an interview with a Brian Johnsen had said during prosecution investigator, killed her had from Holloway prevent revealing plan kill a man named who was believed to have ties to the Hell’s Doug Mynatt, unknown. whereabouts was The whose Angels prosecutor expressed of this information to the defense through concern that disclosure could life or cause become discovery endanger Mynatt’s Mynatt process Humiston, threat to the lives of Johnsen and Anna who was not then testi- also stated his intention secure Johnsen’s custody. prosecutor conditional examination. The trial court granted mony by prosecutor disclosure of the information obtained one-week extension of deadline for interview Johnsen. during September 8, 1991, November the defense an gave

At a hearing prosecutor Johnsen, and the interview of Brian investigator’s report September examination of for a conditional a written motion submitted prosecutor 1336, (b)). subd. (§ in that his life was jeopardy Johnsen on the ground motion, and the time to study report asked for more Defendant’s attorney examination. The court for conditional the trial court the motion granted but convinced, observed, however, if the was under section magistrate examination, not in that Johnsen’s Ufе was on the date set for the conditional take examination would not place. then the conditional jeopardy, Johnsen, recorded on examination which was of Brian The conditional and con- on November on continued began November videotape, 6, 1992, Thereafter, the prosecutor on July cluded on November 1991. defendant, in against part that he was the death seeking penalty announced On the conditional examination. Septem- because of the evidence disclosed at 10, 1993, the conditional examina- a motion to exclude ber the defense filed trial, examinations are not on the that conditional tion at ground primarily the motion from the After receiving cases. capital opposition permitted the trial court denied motion a holding hearing, prosecution, October 1993. use barring for a writ of mandate

Defendant the Court of Appeal petitioned of denied examination at trial. The Court Appeal conditional This court granted in an on December 1993. petition unpublished opinion decision and the Court of defendant’s for review of Appeal’s petition of to reconsider in light transferred the matter back to the Court of Appeal Court (Ahnemann) (1974) 12 Cal.3d 658 People Municipal Cal.Rptr. to resolve an issue as 527 P.2d that mandate is unavailable (stating 372] reconsideration, of evidence). After the Court Appeal of admissibility Ahnemann. this time citing denied mandate again petition, 22, 1994, the trial court filed a motion asking On March examination on the ground to exclude the conditional reconsider his motion decision that the law had been clarified the Court controlling Appeal’s in Dalton Court Superior Cal.App.4th 248] not conditionally a case the could (holding capital prosecution The trial court agreed whose life was in examine witness jeopardy). denied the motion but after reconsideration it ruling, again reconsider its exclude the conditional examination. ruling by again petitioning review of this sought appellate summarily of mandate. The Court Appeal

Court of for writ Appeal review. and this court denied petition denied petition, trial, as unavailability to Brian Johnsen’s At stipulated parties the condi- continuing objection, videotape Over defendant’s witness. examination In his conditional for the jury. tional examination played 110 Johnsen described how he and Teresa had become

testimony, Holloway defendant, Humiston, with Denise Anna acquainted Shigemura, and Doug and how their had Mynatt, His relationships developed. testimony provided the evidence of the which the to kill only conversations in telephone plan was discussed and concern was not be told Mynatt expressed Holloway about the for fear she would disclose it. His also described a plan testimony conversation after murder telephone Holloway’s in which Johnsen asked he had killed and defendant had why Holloway that it had replied to be done.

2. Conditional examinations in cases capital Defendant contends that conditional examinations are not in permitted 1335, cases. He relies on (a), section subdivision which capital provides: “When a defendant has been with a triable in charged offense public any court, cases, he or she in all and the in cases other people than those for death, which the be punishment may if defendant has been may, fully law, informed of his or her to counsel as right by have witnesses provided behalf, examined in his or her or their as in this conditionally prescribed (Italics added.) Defendant that this chapter.” argues bars provision from prosecution of its witnesses in a conditionally еxamining any capital admissible, however, case. In ruling conditional examination the trial section, court (b) relied on former subdivision same which at time of defendant’s trial “When a defendant has been with a provided: charged serious if the defendant has been felony, people may, informed of his fully law, her examined to counsel as have a right by witness provided as conditionally this if the have evidence that the prescribed chapter people 1335, (§ life of the (b), witness is in former subd. as amended jeopardy.” 1985, 783, 2, 2525.)5 Stats. ch. § (a) (b)

On first subdivision and former reading, subdivision of section 1335 inconsistent. (a) Subdivision appear appears generally prohibit prosecu- tion from witnesses in cases “for which the conditionally examining punish- death,” (b) ment be whereas former may subdivision to allow the appears examine witness whose life is in prosecution conditionally jeopardy case in which the defendant any is with a serious charged felony.

To resolve this we view the in their apparent inconsistency, provisions context as of an overall statutory scheme for conditional part statutory 5 Legislature has since amended this subdivision to also allow a defendant to take a 2005, 305, (Stats. danger. conditional examination of a witness whose life is in ch. It now § charged felony, reads: “When a been with people defendant has a serious or the defendant law, may, fully right provided by if the defendant has been informed of his or her to counsel as conditionally have a prescribed chapter, witness examined as in this if there is evidence that (§ (b).) jeopardy.” the life of the is in witness subd.

111 cases, in light to harmonize seeking provisions criminal examinations in Court (2003) 30 (Robert L. v. Superior legislative purpose. apparent v. Acosta 951]; People P.3d Cal.4th 69 Cal.Rptr.2d 901 [135 Murphy 624]; P.3d 52 Cal.4th Cal.Rptr.2d 1129].) P.3d (2001) 25 Cal.4th examinations includes section for conditional scheme statutory trial, (a) that section subdivision of At the time of defendant’s former 1336. defendant, the is for the or for people, “When a material witness provided; state, to afford reasonable grounds or is so sick or infirm as about to leave the trial, the be unable to attend the for that he or she will apprehension be examined for an order that the witness defendant or the may apply people 3, 1985, 783, (b) section 2525.) Subdivision of (Stats. ch. conditionally.” p. § a the have evidence that the life of prosecution 1336 “When people provided: that the witness be the for an order may witness is in jeopardy, people apply 2525.)6 ch. (Stats. examined conditionally.” p. § sections 1335 and 1336 it that the Reading together, appears Legislature from taking have intended to the in a case may prohibit prosecution capital examination in conditional of a witness for of the reasons stated any 1336—illness, or (a) age, subdivision of section dependency, impending from the state—but the in a case capital departure permit prosecution life in This would reading examine a witness whose is conditionally jeopardy. (a) and resolve the between subdivision former subdi- inconsistency apparent 1336. (b) vision of section 1335 and harmonize those with section provisions construction, Dalton Superior this relies Arguing against Court, the there supra, 1506. The Court of Appeal expressed 19 Cal.App.4th examine a witness in conditionally view that allowing prosecution was in “would create death case when witness’s life penalty only jeopardy have no a distinction in the use of which would testimony seemingly preserved is to die before the death in that “the of a witness who justification” testimony be while that same trial because of naturаl causes could not penalty preserved, at trial be if the threat of nonattendance witness’s could testimony preserved trial, Legislature section 1336 to include witnesses Since defendant’s has amended adults, defendant, well as the years age and to authorize the as dependent or older (b). (Stats. ch. prosecution, to take a conditional examination under subdivision defendant, 2.) “(a) for the witness for the or Those subdivisions now read: When material § state, grounds as to afford reasonable people, is about to leave the or is so sick or infirm trial, years age person be unable to attend the or is a apprehension that he or she will older, adult, witness may apply for an order that the dependent people or a the defendant or the (b) life of a witness is in conditionally, When there is evidence that be examined [f] be examined may apply for an order that the witness jeopardy, people the defendant or (§ (a)-(b).) conditionally.” subds. (Dalton, were based or murder.” We upon possible kidnap irrational, do not view this distinction as however. When a prosecution causes, witness die before trial from natural risks may prosecution This same interest is at stake when the witness’s loss evidence. important violence, in from criminal there is in addition the strong life is but jeopardy in the an actual or interest criminal conduct form of deterring public murder of the of this additional witness. attempted Recognizing presence interest, decide to authorize could Legislature reasonably prosecutorial conditional examinations cases when the witness’s life is in capital violence, from criminal to remove the incentive a charged jeopardy capitally defendant or his or her allies otherwise have to murder might prosecution witnesses to them from testifying. prevent

This construction is also consistent with the of conditional examina- history tions in criminal cases in California. As enacted in the California Constitution the to authorize condi- granted Legislature power prosecutorial cases, criminal (Cal. tional examinations “in other than cases of homicide.” Const., 1, 13, 5, 1905, 1974.) In former art. Nov. the Legislature repealed § 1335, exercised this in section constitutionally granted authority by providing, for conditional examinations of witnesses in cases “other than prosecution 1905, 540, 1, 1951, In (Stats. 702.) homicide.” ch. section 1335 was p. § amended to conditional examinations of in cases witnesses permit prosecution 1951, (Stats. other than “those for which the be death.” punishment may 96, 1, 1974, 354.) ch. In the state Constitution amended to remove the p. § on conditional examinations in cases. The relevant prohibition capital provision now reads: “The for the of a witness in the Legislature may provide deposition Const., 1, (Cal. the of the defendant’s counsel.” art. presence 15, 1985, 4.) cl. In amended section 1335 to the Legislature permit § the defendant been to take conditional examination when has prosecution with a serious and there is evidence the witness’s is in charged felony life 2, that, (Stats. ch. We infer after jeopardy. § constitutional amendment removed the blanket on conditional prohibition cases, examinations in used its new by Legislature prosecution capital take examinations in 1985 to authorize conditional authority prosecution cases in the limited where the witness’s life is threatened. situation capital included in Assembly The 1985 amendment of sections 1335 and 1336 was Sess.), to the (1985-1986 Bill No. which also added section 1350 Reg. That an to the rule hearsay Evidence Code. establishes provision exception when, for a statement an unavailable declarant other by among things, that the declarant’s unavailability is clear and evidence convincing “[t]here caused aided or solicited whom by, against was knowingly by, by party the statement is offered for the arrest preventing prosecution purpose of the is the result of the death homicide or the by kidnapping party Code, (a)(1).) Like the “life in (Evid. the declarant.” subd. jeopardy” § (b)), the (§ hearsay excep- examinations subd. for conditional provision in which in criminal section 1350 applies proceedings tion of Evidence Code is defined (id., (a)), felony” and “serious a serious is subd. felony charged Evid. (c) of section 1192.7. (Compare include felonies listed in subdivision Code, Code, (c).) Those listed subd. (d), subd. with Pen. § § 1192.7, (§ death . . . .” include felony felonies “any punishable it is reasonable to infer (c)(7).) were together, subd. Because they packaged Code section 1350 and in Evidence that the adoption hearsay exception of Penal Code conditional examination provisions the amendment of the and result from sections 1335 and 1336 address a common problem against prosecu- common concern—criminal violence legislative prospective occur likely their The risk that this will testimony. tion witnesses prevent offense, for the charged increases in proportion punishment potential cases. Absent language barring and thus it is greatest capital expressly therefore, cases, it is reasonable to of these to capital application provisions to conditionally infer that the intended to Legislature permit prosecution are when there is evidence that their lives examine witnesses in cases capital in serious danger. conclude, therefore, (b) under of section

We subdivision in a conditional examination of a witness is permitted capital prosecution case when witness’s life is in jeopardy.7

3. conditional examination Required showing for next, allowed that the should not have been argues, prosecution examine Brian because there was no evidence conditionally Johnsen life his was in jeopardy. (b), the to condition

Section subdivision prosecution permits examine a “if there is evidence that the life of the is ally witness witness (b), (Italics added.) Section subdivision similarly requires jeopardy.” life is the evidence to a claim that a witness’s prosecution produce support exami that an for conditional Section jeopardy. provides application the life nation “shall be made affidavit other “that among things upon stating” that the be of the witness is in Section 1338 requires application jeopardy.” on “three to the and section 1339 provides made notice days’ opposite party,” the witness is the court or is that the examination of satisfied judge “[i]f conditionally, be examined an order must be made that the witness necessary, time therein.” at a and before a magistrate designated specified place, Here, examine Brian Johnsen the to conditionally prosecution’s application District in the form of a declaration Deputy was evidence supported by Court, Superior Dalton Cal.App.4th disapproved. is Pettine in relevant “I am informed that witness Brian Attorney stating, part: with and Jurado in a Johnsen was involved defendants directly Shigemura Johnsen, defendants, to kill to Mr. the Mynatt. acting plot Doug According Johnsen, their own and without the of Mr. killed victim Teresa knowledge so that she would not disclose the to murder Mr. Holloway Mynatt. plan Johnsen, Mr. current whereabouts is unknown. Mr. who was in Mynatt’s murder, on the date is out of Holloway currently custody. custody H] known, that once this witness Brian Declarant believes information becomes defendants, life will be their Johnsen’s Mr. and/or jeopardized Mynatt, associates.”

The trial court without the defense granted application allowing three notice in section but the court said that under days’ specified if, section 1341 the conditional examination would not take on the place day examination, set was able to conditional defense show satisfaction that Johnsen’s life not in The condi- danger.8 magistrate’s tional examination a week later. Before it defendant offered no began began, not in evidence that Johnsen’s life was danger. 1335, 1336, satisfied the of sections and 1337 prosecution requirements a declaration that Johnsen’s life was in from

by submitting stating danger codefendants, defendant and his and their associates. In Doug Mynatt, examination, for a conditional the trial granting prosecutor’s application court did not abuse the broad discretion with which the scheme statutory vested it. In it was not under the circumstances of this necessary, particular, case, for the evidence that had anyone prosecution present expressly threatened Johnsen or to harm him. Because of the evidence that conspired defendant, killed her Humiston had Shigemura, Holloway prevent from to kill the trial court—who both Mynatt, exposing plot granted for conditional examination and served as in the magistrate taking application of the examination—could conclude that defendant and justifiably persons with whom he associated would be to use force likely deadly against anyone threat, as a and that the substance of Johnsen’s testimony perceived proposed codefendants, made him an actual or threat to defendant and his potential also to Mynatt. did not receive the three notice to section days’ defendant which

Although him, 1338 entitled he was not the shortened notice because prejudiced which, during seven before the conditional examination days elapsed began trial, “If, full, place read: time and In at the time of defendant’s former section 1341 magistrate designated, so it is shown to the satisfaction of the that the witness is not about to state, infirm, jeopardy, or that the life of the witness is not in or that leave the or is not sick trial, was made to avoid the examination of the witness on the the examination application 1985, 783, 5, trial, (Stats. 2525.) place.” cannot take ch. Since defendant’s section § (Stats. years age and adults. dependent been amended to include witnesses 65 or older has ch. §

under section defendant could have evidence to contradict presented declaration that Brian Johnsen’s life was in We danger. prosecutor’s conclude that defendant has failed to show that error occurred any prejudicial in the of Brian Johnsen’s conditional examination. taking

4. Admission conditional examination at trial below, and the General in this prosecutor argued Attorney argues court, that even if the is from conditional prosecution taking prohibited cases, examinations in did not here because capital prohibition apply had not decided to seek the death and had prosecutor yet indeed penalty, announced the death would be sought, when trial court penalty for a conditional granted prosecution’s examination and when application Brian Johnsen was In conditionally examined. this response argument, that even if it was argues examine Johnsen proper conditionally because the then was not the death it was error to prosecutor seeking penalty, admit Johnsen’s conditional examination in evidence at defendant’s capital trial. Because we have concluded that the in a case prosecution capital may examine a witness whose life conditionally is we need not jeopardy, address this issue.

Defendant also that admission of Brian Johnsen’s conditional argues examination in evidence at trial denied him his under the federal rights witnesses, Constitution to due confrontation of adverse reliable process, and guilt determinations in a penalty case. But Johnsen testified under capital examination, oath at the conditional and defendant had a full fair him opportunity cross-examine at that time. For of due purposes process, confrontation, and is reliability, situation no different than if Johnsen or other any witness had testified at the or at an earlier trial preliminary hearing then, unavailable, because he had become his testimony prior admitted at trial. When a defendant has had an adequate opportunity trial, cross-examination and the witness is unavailable at use of testi prior does not mony violate under the federal rights Constitution. v. Wilson (2005) 114 P.3d 758]; see Washington 541 U.S. 55-57 L.Ed.2d Crawford 1354].) 124 S.Ct.

Defendant asserts that he did not have an to cross- adequate opportunity examine Brian Johnsen at the conditional examination because his attorneys later additional information that would have been acquired useful cross- Johnsen. In he calls our attention to the examining particular, statements 116 murder,9 made, admitting he had been with charged capital later after

Johnsen to kill Holloway. with defendant’s plan of and agreed that he was aware however, if Johnsen had testified is no different than the situation Again, defendant on the same or at a trial of hearing prior defendant’s preliminary the by disclose timely prosecution, failure wrongful Absent charges. have useful might proved of material that discovery subsequent for otherwise admissible excluding prior is not grounds in cross-examination 795, (1997) 15 Cal.4th 851 (See Samayoa at trial. testimony not violate does testimony P.2d of prior 938 Cal.Rptr.2d 2] [admission bring circumstances whether “regardless subsequent of confrontation right testimony.”].) of the earlier or the accuracy completeness into question Statement B. Shigemura’s Out-of-court defense hearsay court erred in overruling contends that the trial out-of-court statements of Steven Baldwin relating to the testimony

objections after Holloway’s testified that on day Denise Baldwin Shigemura. by As murder, house with Mark Schmidt. came to his defendant and Shigemura room, Baldwin: “I said to Shigemura in the together living the four of them sat for. We took care of the problem need what it was I asked you no longer that he thought Park.” Baldwin testified at Balboa body we dumped which she during a few earlier days to a conversation referring Shigemura she she had a her a because “gat” problem had asked him if he could get under the this evidence of. The trial court admitted needed to take care rule. to the hearsay admissions exception adoptive is not made offered against party “Evidence of a statement one of the party, rule if the statement is which inadmissible by hearsay thereof, other conduct has words or by of the content knowledge with Code, 1221.) When (Evid. in or his belief its truth.” § manifested his adoption the defendant’s alleging participa silent after a statement a defendant remains crime, the defendant an afford fairly under circumstances that tion understand, an hear, admissible as the statement is and reply, opportunity admission, an inference that circumstances support unless the adoptive Fifth of silence right guaranteed on the relying defendant was 22 (2000) Riel United States Constitution. Amendment 969]; People Mayfield P.2d Cal.Rptr.2d Cal.4th 1189 [96 485].) P.2d took problem statement—“We care out-of-court Denise Shigemura’s as an adoptive Park”—was admissible at Balboa body and we dumped crimes committed Stanislaus on June sentenced to death Brian Johnsen was County.

117 admission defendant. He must have heard and by understood statement he because was on the same couch with sitting Shigemura, circumstances inaccurate, called for a denial or if the statement was protest nothing him from prevented an inference making response, nothing supports situation, that he was on a relying constitutional of silence. In this right jury could view defendant’s silence as properly Shigemura’s statement. adopting claims admission of this evidence violated his right confrontation under the Sixth Amendment to the federal Constitution. He did not, however, make a objection constitutional at trial. specific grounds without that the issue is Assuming deciding for review preserved appellate (see 879, 908, People (1995) 547, v. Champion 9 Cal.4th fn. 6 Cal.Rptr.2d [39 v. 93]; P.2d People Partida 891 see also (2005) 37 Cal.4th 428 Cal.Rptr.3d [35 644, 765]), 122 P.3d the claim is without merit. The right confrontation is evidence, not violated when the hears jury from a witness subject cross-examination, relating defendant’s own out-of-court statements and (People Roldan (2005) admissions. adoptive 35 Cal.4th fn. 25 [27 289]; v. Combs 110 P.3d People Cal.Rptr.3d (2004) 842-843 1007].) 101 P.3d Cal.Rptr.3d [22 out, As defendant he points was not a few before present when days Shigemura asked Baldwin for a and said “gat” she needed it to take care of a so this problem, earlier statement was not admissible as an admis adoptive itself, sion. however, The for the request was gun, by an hearsay, because out-of-court statement is when it hearsay only is “offered to truth prove Code, (Evid. matter stated.” itself, Because a does request, by § fact, not assert the truth of any it cannot be offered to the truth prove matter (See stated. People Mayfield, 14 Cal.4th at 741 [pleas “were not help because hearsay they were not admitted for the truth of the stated”]; matter v. Bolden People (1996) 714-715 Cal.App.4th [request defendant “not come around 485] the house any more” was not hearsay because it was not offered for the truth of the matter stated]; Reyes Cal.App.3d Cal.Rptr. 848] of direction or authorization do not constitute [“words since are hearsay they not offered Thus, the truth of prove matter asserted any words”].) such Shigemura’s for a request gun not hearsay. earlier

Shigemura’s out-of-court statement to Baldwin was insofar hearsay as it asserted that had a Shigemura that she needed to take care of. problem General Attorney argues that it was admissible under the coconspirator Code, (Evid. 1223) rule exception hearsay because it was made to § defendant, further a conspiracy between and Brian Johnsen to kill Shigemura, trial, however, There Doug Mynatt. was no substantial evidence that these until the Mynatt to kill Doug any agreement individuals reached three murder, whereas before shortly Holloway’s of May evening Accordingly, earlier. occurred a or two day to Baldwin statement Shigemura’s exception under the coconspirator was not admissible this statement rule, in not it. excluding trial court erred and the hearsay of confrontation violated defendant’s right this error Even if we assume Constitution, because defendant is not required reversal under the federal of the earlier hearsay the substance Shigemura repeated suffered no prejudice. of) in to take care she needed (that she had а problem statement at Balboa and we dumped body of the (“We took care problem presence We as his own. that statement his conduct Park”) adopted and defendant a reasonable doubt. was harmless beyond the error conclude the Evidence C. Sufficiencyof was at the guilt phase that the evidence presented contends murder, the element of first degree to establish premeditation

insufficient conviction, circumstance, he and and the conspiracy lying-in-wait special on insufficient circumstance finding a conviction basing special asserts that Sixth, Fifth, and Fourteenth Eighth, his under rights evidence violates law, trial, a fair and due of Constitution to process to the federal Amendments in a case. verdicts capital reliable conviction, an evidence to of the sufficiency support

“To determine the most favorable to the entire record in the light reviews the court appellate reasonable, is evidence that whether it contains to determine prosecution value, could find the credible, rational trier of fact from which a of solid and (2001) 26 Kipp doubt.” v. (People a reasonable guilty beyond Silva, accord, 450]; v. People 33 P.3d Cal.4th 368.) at 25 Cal.4th p. supra, of the first deliberate is murder and

A murder that is premeditated context, means ‘considered before 189.) this (§ ‘premeditated’ “In degree. determined as a or arrived at or hand,’ upon means ‘formed ‘deliberate’ and against considerations for and weighing careful thought result of ” 767.) supra, p. v. (People Mayfield, of action.’ course proposed it as the deliberate if occurred is killing premeditated “An intentional or rash than unconsidered reflection rather thought result preexisting court 543.) A reviewing Cal.4th at p. Stitely, supra, impulse.” whether a finding to determine kinds of evidence considers three normally motive, is adequately supported—preexisting and deliberation premeditation be need not factors of killing—but and manner activity, “[t]hese planning evidence of find substantial combination in any particular present Combs, (Ibid.; People and deliberation.” see supra, premeditation also Silva, 850; 25 Cal.4th at Cal.4th at p.

The evidence of motive preexisting before ample. During days murder, defendant Holloway’s had talked to Brian Johnsen and Denise about whether Shigemura should kill but had they Doug Mynatt, decided they not to tell Teresa about this because of Holloway concern that she would murder, reveal it to the On the police. defendant told Johnsen that night he had decided to with the proceed to kill and that it could not plan Mynatt wait until Johnsen was released from jail. Teresa then Holloway got on and asked Johnsen phone whether there was a to kill From this plan Mynatt. evidence, a rational could infer juror that defendant had a motive to kill Holloway, her from prevent his of revealing planned killing Mynatt.

The evidence of planning activity was as well. ample Shortly before the murder, defendant asked Mark Schmidt for a chain. When Schmidt offered cord, defendant an 18-inch of length weed-eater plastic wrapped neck, the cord around his own with one end in each fist clenched at shoulder actions, and said: “It height, will do.” From these a rational could infer juror that defendant had decided already to use the cord to strangle Holloway. then asked Schmidt to tell Teresa off the Holloway get phone (Schmidt) because he needed to leave the A rational could apartment. juror infer that defendant made this so that request would be forced to Holloway leave Schmidt’s car, and then apartment could be lured into Anna Humiston’s car, where the fatal attack would take In the place. defendant positioned himself behind directly A Holloway. rational could infer juror that defendant did toso facilitate his planned strangulation of Holloway.

Because this evidence of motive and preexisting was planning activity by itself sufficient to the first murder support degree conviction on a of theory deliberation, and premeditation we need not review the evidence concerning the manner of killing.

The lying-in-wait circumstance of “an inten special requires proof murder, tional committed under (1) circumstances which include a conceal ment (2) of a substantial of purpose, and for an period watching waiting act, thereafter, (3) time to opportune immediately attack on an surprise victim v. Morales from a advantage.” unsuspecting position Combs, 244]; accord, 48 Cal.3d P.2d People Cal.Rptr. Michaels, 853; supra, 34 Cal.4th at p. 28 Cal.4th at There is sufficient evidence that defendant concealed from his Holloway earlier, to kill purpose her. As there is substantial evidence from explained which a rational could infer juror that defendant had formed this already used to that could be Mark Schmidt a cord from when he obtained purpose immediately Holloway did not reveal that purpose He Holloway. strangle her, into Humiston’s car. lured her but instead attacking by waiting watching evidence of a substantial period There is sufficient body Teresa Holloway’s where time to act. place for an opportune A rational apartment. miles from Mark Schmidt’s two to three found was after immediately attack Holloway did not could infer that defendant juror car, a substantial period waited for but instead her into Humiston’s luring risk there was little to a location where the car was driven while or motorists by pedestrians. be observed other attack would a suitable that once the car reached evidence there is substantial Finally, location, attack on an unsuspect- launched a surprise defendant immediately Defendant ensured position of advantage. victim from a position ing car, behind directly of Humiston’s the backseat advantage by occupying car, nature the very found in From the blood evidence Teresa Holloway. Humiston, defendant, or attack, the lack of injury of the planned was taken Holloway by surprise, infer that a rational could juror Shigemura, back. fight no to escape with little or opportunity the lying-in-wait sufficient to support the evidence is In that concluding v. circumstance, People this court’s decisions are guided by we special Morales, Combs, 48 Cal.3d v. supra, and People supra, Morales, here, the as In Combs and identical facts. nearly which involved for use in strangulation, himself suitable with weapon defendant armed automobile, positioned front seat of an victim into the an unsuspecting lured victim, reached a suitable until the car waited himself behind directly victim. location, on the unsuspecting attack and then launched a surprise Morales, 554.) In Combs, 853; at supra, p. at v. People supra, p. v. (People after an initial Morales, here, the victim to death bludgeoned as the defendant Morales, at supra, (People was unsuccessful. at strangulation attempt 554.) p. of the evidence to the sufficiency challenge consider next defendant’s

We conviction. to support conspiracy defendant and that the requires proof of conspiracy

“A conviction commit an or intent to agree conspire had the specific another person offense, elements of that offense, commit the intent to as as specific well more of the act one or ‘by of an overt of the commission with together proof Morante (People of the conspiracy.” in furtherance to such agreement’ parties accord, 1071]; P.2d 975 Cal.Rptr.2d (1999) 20 Cal.4th P.3d (2001) 25 Cal.4th v. Russo did an or who were to who the coconspirators as 641].) “Disagreement act, was, overt or what that act does not invalidate a exactly conspiracy conviction, as as a unanimous is convinced a reasonable long jury beyond doubt that a did commit some overt act in conspirator furtherance of the Russo, conspiracy.”

Here, Anna to attack and kill plan Teresa Holloway Humiston’s car of Humiston and required cooperation Denise Shigemura. There is evidence that one or both of them did or ample agree conspire commit the murder. shared defendant’s motive to kill Shigemura Holloway, and, she because also had been of the to kill like part Doug plot Mynatt defendant, would be at risk if revealed that there put Holloway plot. Although is no direct evidence that defendant and discussed in Shigemura advance killing there was evidence Holloway, that were alone at Mark they together Schmidt’s residence before the shortly which a killing, during discussion and agreement could have taken later place. Shigemura’s conduct provided additional evidence she agreed murder. She was driving attack, Humiston’s ‍‌​​‌​‌‌‌‌​‌‌​‌​​​‌‌​‌‌‌​​​​‌​​‌​‌​‌‌​​‌‌‌​‌​​‌​​‍car at the time of the fatal she did not herself separate from afterward, defendant or report killing and with defendant’s she help concocted a murder, false story on the explain why, night Holloway’s she failed to return to the halfway house where she then was to live. required Humiston, As for there was evidence that defendant in an intense engaged residence, conversation with her at Schmidt’s she allowed Shigemura to car, drive her and that she did not the murder afterward and report continued to associate evidence, with defendant. From this a rational juror could conclude beyond a reasonable doubt that defendant and either or Shigemura (or both) Humiston had the intent specific to murder agree conspire Holloway, as well as the intent specific to commit the elements of murder.

The overt act requirement also satisfied. The prosecution alleged five overt acts in support Two overt conspiracy charge. alleged acts occurred before (defendant, murder Holloway’s Denise Shigemura, and Anna Humiston met with Teresa at Mark Schmidt’s residence and Holloway defendant, Humiston, Shigemura, and left Schmidt’s residence in Holloway car); Humiston’s two acts occurred alleged (defendant, after the murder Shigemura, Humiston in the placed Holloway’s body culvert and walked to a nearby from which phone ride); defendant called to and one request act alleged was the murder itself. The returned jury “not true” on the findings overt acts preoffense but it allegations, found each of the other act overt allegations to be true.

Commission of the offense in furtherance of the target satisfies conspiracy the overt act v. Padilla 891, (People requirement. (1995) 11 Cal.4th 966 [47 Cal.Rptr.2d 388].) 906 P.2d Because the found that jury committed the murder itself in furtherance of the and because conspiracy, 122 is overt act requirement finding,

substantial evidence supports not act may that the overt requirement defendant is correct satisfied. Although (People is offense target complete conduct after occurring be satisfied by 75]), P.2d 557 Cal.Rptr. Cal.3d 560 (1976) Zаmora 18 [134 the invalid of consideration by jury’s defendant was not prejudiced overt act is of a finding single the valid allegations, overt act postoffense Padilla, (People verdict. the conspiracy sufficient support 965-966.) pp. overt on the findings preoffense “not true” that the jury’s

Defendant argues of the prosecu the jury’s rejection demonstrate conclusively act allegations (or or Humiston with Shigemura that defendant had agreed theory tion’s car, and was lured into Humiston’s both) Holloway to kill before Holloway We disagree. verdict. the conspiracy undermines inconsistency fatally that this and a verdict an overt act true” finding between a “not An inconsistency the inconsistent verdict overturning not a for ground or another is finding Cal.Rptr.2d Cal.4th 862 30 finding. Hernandez (1994) Cal.4th 446]; v. Santamaria P.3d see inconsistent that an apparently P.2d [recognizing 81] mistake, or lenity].) compromise, be the result may true finding Conspiracy Instructions on D. jury defining instructions to the the trial court’s contends that intent element of the specific omitted part offense of conspiracy

the charged deliberations, that, failing trial court erred during jury of that crime He the overt act element conspiracy. confusion about the jurors’ to dispel under the federal him his rights these errors denied further contends that a reasonable of each element beyond to due process, proof Constitution trial, in a reliable doubt, factfinding capital and to a fair and jury impartial case. versions—one spoken, two modified with jury

The trial court instructed As here the crime defining conspiracy. No. 6.10 written—of CALJIC one entered agreement is an relevant, stated: “A conspiracy version spoken crime, intent to commit with the specific two or more persons into between murder, Teresa Holloway, the murder of the crime of to be alleged in this case one or more parties act committed by followed an overt added.) As (Italics of the agreement.” the object of accomplishing purpose is an relevant, agreement “A version stated: conspiracy the written here to intent to agree with the specific more into between two or persons entered murder, committed in an overt act followed by offense of commit the public the of accomplishing for the purpose one or more parties this state by version was added.) given The written (Italics of the agreement.” object deliberations. for its use during jury

123 dual crime of requires specific court has the conspiracy As this explained, offense, and a the target specific to commit agree intents: a intent specific Russo, 1131; supra, (People 25 Cal.4th p. that offense. intent to commit 390, 593, v. Swain P.2d People 909 (1996) 12 Cal.4th 600 Cal.Rptr.2d [49 No. 6.10 to CALJIC trial courts not to 994].) modify We have cautioned v. Marks intents. (People 45 Cal.3d (1988) either of these eliminate specific 874, 1335, 260].) 756 P.2d 1345 Cal.Rptr. [248 Here, instruction of the standard neither of the modified versions instruc intents. The written mentioned both of the required specific expressly the instruction while agree, spoken tion mentioned the intent only specific offense of murder. As intent to commit the target mentioned only specific out, an instruction in both when the has received jury defendant points forms, was the two we assume the vary, jury and written versions spoken 463, v. Davis (1995) 542 written version. guided by [41 83, v. Crittenden People 826, 119]; (1994) Cal.4th 138 P.2d 9 896 Cal.Rptr.2d v. McLain People 887]; (1988) Cal.3d P.2d Cal.Rptr.2d [36 569].) fn. 2 757 P.2d Cal.Rptr. CALJIC No. 6.10 to delete the trial court erred in Although modifying murder, offense of mention of the intent to commit target required specific murder, to commit intent defendant suffered no For a prejudice. conspiracy Swain, {People an intent to kill. commit offense means target concedes, verdict that jury’s Cal.4th at As defendant included Holloway necessarily of the first murder of Teresa guilty degree however, that the had that intent. He argues, defendant himself finding Humiston, or Anna made no similar for either Denise jury finding Shigemura does not evidence identify any the other But defendant alleged conspirators. record that lead a rational to conclude that juror Shigemura in the could so, intent to to do agree Humiston to kill with agreed Holloway, specific find in the record intent to kill her. Because we actually but without specific we are satisfied finding, no evidence that could lead to such rationally (Neder v. a reasonable doubt. the instructional error was harmless beyond 35,119 1827]; United States L.Ed.2d S.Ct. 527 U.S. 9 [144 417].) Davis 115 P.3d (2005) 36 Cal.4th deliberations, It a note to the trial judge. sent During jury guilt phase acts alleged actually whether the overt read: “Is the jury merely deciding occurred, the acts do indeed meet whether or not determining or are we also The trial overt acts as defined in CALJIC requirements being 6.10[?]” states, 6.10 written “As court sent this jury response: No.] [CALJIC must find unanimously you order to find Mr. Jurado guilty conspiracy, in 6.10.” as that term is Acts, one of the Overt alleged be true at least defined added.) (Italics the

Defendant maintains that this did to answer nothing jury’s response and that there is an risk that the deter- question, unacceptable jury merely occurred, mined whether the conduct as overt acts without also charged whether of the acts was committed in furtherance of the determining any The trial directed the We court’s conspiracy. disagree. response expressly 6.10, attention to the definition of an overt act in CALJIC No. which jury’s “ stated that ‘overt act’ means taken or act committed one or any step by ... the the more of the accomplishment conspirators furtherance of the object (Italics added.) That the understood the conspiracy.” jury so court’s is shown on the overt response conclusively by jury’s findings defendant, acts. The found “not true” the overt act jury allegations Denise and Anna Humiston met with Teresa at Mark Shigemura, Holloway Schmidt’s residence and that left Schmidt’s residence with they Holloway Humiston’s car. Because evidence established that both of these undisputed occurred, acts “not true” can be by inferring jury’s finding explained only that the was not satisfied a reasonable doubt that these acts were jury beyond done in furtherance of conspiracy. Instruction on Motive

E. The trial court instructed the with this modified version of jury slightly 2.51; CALJIC No. “Motive is not an element of either one of the crimes and, therefore, However, need not be consider charged you may proved. motive or lack of motive as a circumstance in the case. Presence of motive tend to establish that an accused is Absence of motive tend may guilty. may to establish that he is not of a offense. You will therefore guilty charged give motive, be, weight or absence of as find case to presence you which find it you to be entitled.”

Defendant contends that this instruction allowed improperly jury convict him of the offenses of murder and based charged capital conspiracy motive, solely on evidence of and in so it violated his under the doing rights Fifth, Sixth, and Fourteenth Amendments to the federal Constitution Eighth, trial, to due a fair and a reliable verdict in a case. He process, capital points that in other that the court read to the out contrast to certain instructions trial falsehoods, to consciousness of based on efforts jury—relating guilt evidence, which included an after a crime—each of suppress flight admonition that the circumstance was insuffiсient itself to specified prove that motive alone instruction on motive included no admonition guilt—the was insufficient to guilt. prove instruction, and

Because it because merely clarity challenges instruction, defendant did not ask the trial court to modify clarify contention is not review. preserved appellate 302].) Cleveland P.3d 86 32 Cal.4th 750 (2004) Cal.Rptr.3d [11 contention, it on the merits. we would reject the Had defendant preserved v. Cleveland “The People with force here: equal What we wrote in applies We find no doubt standard. instructed the on the reasonable fully jury court that the motive instruction the would infer from reasonable likelihood jury Moreover, evidence of strong the given motive alone could establish guilt. motive, verdicts on solely did not base its from the jury certainly aside guilt (Ibid.) motive.” on Lesser Instruction

F. Offense in the it instructed the jury, contends the trial court erred when Defendant 8.75, verdict that that it would not accept of CALJIC No. language unani- unless the also jury defendant was of second murder guilty degree that of first murder. degree returned a verdict he was mously guilty federal this first” instruction violated his Defendant maintains that “acquittal a fair and reliable consider- jury constitutional to due and to rights process ation of included offenses in a case. lesser capital concedes, court the same conten- rejected

As defendant this has repeatedly v. Nakahara (E.g., People Cal.4th 715 (2003) tion. 30 Cal.Rptr.2d [134 Nakahara, 1190].) see no reason for 68 P.3d As we stated “[w]e (Ibid.) these decisions.” reconsidering on Guilt Instructions Consciousness of

G. trial jury contends court’s instructions consciousness of were guilt argumentative, jury impermissibly permitted inferences, to draw irrational and were misleading, were potentially unsup- evidence. ported

The trial court instructed the that it could infer consciousness jury guilt (CALJIC 2.06), No. from after a flight from efforts to evidence suppress (CALJIC (CALJIC 2.52), crime No. and from the falsehood telling the instructions 2.03). modify No. The trial court declined defense requests of a crime. to state that were to fix they degree inapplicable jury have contentions these standard rejected We repeatedly argumentative instructions on consciousness of were guilt impermissibly about a defendant’s mental to draw irrational inferences jury permitted (E.g., People offenses. state the commission of during charged 1099]; Benavides 69, 100 105 P.3d Cal.Rptr.3d Nakahara, People Kipp 713; (1998) 18 Cal.4th at 1169].) P.2d We see no reason Cal.4th stated Because the instructions as given correctly reconsider these decisions. and did not invite the to draw irrational inferences about jury law state, defendant’s mental the trial court did not abuse its discretion in the defense them. declining requests modify relies on evidence of as to show a flight tending

Whenever prosecution the trial court must instruct this guilt, jury substantially “The of a after the commission of a flight immediately language: person crime, committed, or after he is accused of a crime that has been is not which, sufficient in itself to establish his but is a fact if guilt, proved, jury or innocence. The to which such may guilt weight consider his deciding (§ 1127c.) circumstance is entitled is a matter for the to determine.” In jury context, this neither act of nor the running flight “requires physical of a haven” but it “a to being does avoid reaching faraway require purpose 833, v. Crandell (1988) (People observed or arrested.” 46 Cal.3d 869 [251 227, accord, v. 423]; (1997) 14 People Bradford 760 P.2d Cal.4th Cal.Rptr. “Mere return to familiar 544].) P.2d 929 Cal.Rptr.2d [60 environs from the scene of an crime does not warrant an inference of alleged but the circumstances [citations], consciousness of from the guilt departure v. Turner (People crime scene sometimes do so.” 50 Cal.3d may accord, v. 887]; People Bradford, supra, P.2d at Cal.Rptr. [268 p.

Here, the of defendant’s from the scene of Teresa circumstances departure inference murder were sufficient to an that his Holloway’s support purpose arrested, was to avoid observed or and thus an inference of conscious- being ness of for her death. there was a call box around 20 guilt Although yards from the culvert in which had been defendant did Holloway’s body placed, not use the call box to summon aid after Anna Humiston’s car broke down. Instead, defendant, Humiston, a half-mile to a and Denise walked Shigemura Store, 7-Eleven in a tree the scissors that had been along way hiding jack a Defendant’s used to kill before friend for assistance. Holloway, calling box, failure to use the call and the murder secreting weapon, support inference an that in the crime scene defendant acted with a to leaving purpose observation and arrest. The instruction was flight properly given. avoid Instructions Burden Affecting

H. of Proof Defendant contends that certain of the trial court’s instructions to the jury doubt standard of misled reasonable jury regarding proof imper- burden of He maintains that these missibly lightened prosecution’s proof. due a fair instructions violated his federal constitutional rights process, trial, verdict, unanimous and reliable determinations. guilt jury penalty each of the claims that defendant

We have previously rejected makes, decisions. to defendant’s Contrary and we decline reconsider these 8.83, 8.83.1, 2.01, 2.02, direct the jury which CALJIC Nos.

arguments, ones, do not permit and to unreasonable reject reasonable inferences accept than beyond less something proof a determination of guilt to base jury 310, 351 v. Harris (2005) 37 Cal.4th (People doubt. [33 reasonable v. Crew 509,118 545]; (2003) 31 Cal.4th People see also P.3d Cal.Rptr.3d Nakahara, at supra, v. 733,74 820]; 30 Cal.4th People P.3d 847 Cal.Rptr.3d 1.00, not to “infer or directs the 713-714.) jury CALJIC No. which pp. merely to be than not guilty guilty” assume” that defendant “was more likely trial, arrested, not undercut does charged, brought because he had been Crew, 847-848; v. People supra, at (People the burden of v. pp. proof. Nakahara, 2.21.2, the instruction on 714.) CALJIC No. standard supra, at p. burden of lighten proof. false does willfully testimony, prosecution’s Nakahara, Cleveland, 751; supra, v. People 32 Cal.4th at (People supra, v. p. 714; Maury (2003) 30 Cal.4th 428-429 People at p. 2.22, on weighing the standard instruction 1].) 68 P.3d CALJIC No. beyond does not undermine the standard

conflicting proof testimony, Cleveland, 751; reasonable doubt. Nakahara, 714; 429.) at People Maury, supra, Finally, at v. supra, p. p. deliberation, 8.20, does not suggest CALJIC No. defining premeditation a defendant of absolutely possibility premeditation must preclude Nakahara, v. (People supra, rather than a reasonable doubt. merely raising p.

I. Cumulative Errors at Guilt Phase Effect of error reversal of the guilt that even if no argues single requires verdicts, must be deemed the cumulative effect of the errors at guilt phase has of the verdicts. Defendant guilt to warrant reversal sufficiently prejudicial errors, error to be demonstrated and we have found each error or possible few them we likewise together, harmless considered Considering when separately. warrant reversal of guilt conclude that their cumulative effect does not verdicts. Circumstance Validity Lying-in-wait Special

J. Constitutional of 190.2, (§ circumstance Defendant contends that the lying-in-wait special court, Amendment (a)(15)), Eighth this violates subd. as interpreted the class of narrow federal Constitution by failing appropriately this “We have repeatedly rejеcted for the death eligible penalty. persons contention, warrants our to convince us the matter and defendant fails Nakahara, 721; see also Cal.4th at supra, p. reconsideration.” Vieira, 303; People Cal.4th at Gutierrez 572].) 52 P.3d Cal.4th 1148-1149 Relating Penalty IV. Issues A. Exclusion Videotape Interrogation Defendant contends that the trial court erred in excluding videotape 18, 1991, his detectives on after his arrest interrogation by May shortly police for the murder of He further contends that this error violated Terry Holloway. Fifth, Sixth, under the and Fourteenth Amendments to the Eighth, his rights federal Constitution.

As in the defense to have the jury of its case part mitigation, proposed made, watch a that was without defendant’s while he knowledge, videotape was detectives about the murder of being interrogated by Terry police defendant at first denied involvement Holloway. During interrogation, any murder, in the but he admitted and he insisted eventually killing Holloway, he had done it on his own and that neither Denise nor entirely Shigemura Anna Humiston was He said he killed because he was in Holloway present. He fear that Brian Johnsen danger danger. his family expressed him had friends in who would kill or his mother or other prison family members in retaliation for He also concern that killing Holloway. expressed reason, he would be as a snitch and killed for that or that perceived prison he would have to his entire life in this spend prison. During part emotion, considerable and at one sobbing interrogation, displayed an officer’s hand. The defense that the interrogating argued point grasping evidence of defendant’s emotional was admissible to show his responses remorse for the killing.

The that the was inadmissible under the objected videotape prosecution Code, (Evid. 1200), rule because defendant’s emotional hearsay displays § conduct, were assertive and also under Evidence Code section because the risk of the evidence’s value was probative substantially outweighed by undue confusion. After the the trial jury viewing videotape, prejudice court sustained the and excluded the evidence. The court objection hearsay with the that defendant’s emotional were a form agreed prosecution displays and not within to the rule. The court also any hearsay hearsay exception the defense that defendant’s constitutional to argument right rejected present in a case overrode the rule in this hearsay evidence mitigating capital evidence, The court noted there was no need for the instance. compelling felt, he and that because defendant could to remorse have testify any might evidence of remorse because trustworthy the evidence was not as particularly the defendant never articulated of sorrow or any feelings regret videotape her family, for Teresa or for or killing Holloway, any sympathy Holloway for and also safety well-being, he did indicate concern his own although Thus, view, in court’s it concern for his mother and for Anna Humiston. was in any way emotional display no means clear that defendant’s was by remorse, it was caused entirely by more that likely caused and it seemed by concern for his own predicament. at the after both sides had rested penalty

The defense raised the issue again to the Defense jury. his closing argument and the had given phase prosecutor to the evidence to videotape counsel play requested permission reopen assertion, jury, in argument to rebut the jury prosecutor’s out that during defendant “lacked a Defense counsel pointed consciencе.” said, to a whether asking interview defendant in response question videotaped “The only with Teresa Holloway, he had received his any injuries struggle denied the I from from conscience.” The trial court my is injury got my, just request reopen. returned the raised the issue a final time after the had jury defense trial, a the defense argued verdict of death. In motion for a new

penalty To demonstrate the trial court had erred in excluding prejudice, videotape. that evidence stating the defense submitted declarations three trial by jurors that defendant lacked remorse for Teresa was an killing Holloway important had an emotional factor in and that evidence that defendant aggravation, would counter- reaction the murder and talked about his conscience have balanced that evidence. The trial court denied the motion for a new trial. themselves, that, by is correct defendant’s emotional conduct, were nonassertive and thus not within the rule. For displays hearsay rule, time at the conduct is assertive if actor purposes hearsay (Evid. intended the conduct to to another convey particular meaning person. Code, statement to include “nonverbal conduct of [defining person § intended him For as a substitute for oral or written verbal expression”].) a nod of the head in to a for a calling yes-or-no example, response question answer, or a to a when asked to gesture identify pointing particular person Here, are of assertive conduct. perpetrator, examples nothing videotape that he that defendant’s emotional were suggests voluntary responses intended them to officers. convey meaning interrogating any particular

But more than evidence of the just defense introduce sought emotional To of the emotional significance themselves. explain displays murder defendant’s statement that as a result of the displays, particularly conscience,” he had an from the defense sought received “injury [his] interview. As introduce the statements defendant made during videotaped concede, statements, defendant must those assertions including descrip- states, were tions of his own and other mental were feelings hearsay. They (Evid. to the rule hearsay not admissible under the state-of-mind exception Code, circumstances a 1250) if made under lack indicating were they § 130 (id., determined, 1252).

trustworthiness As the trial court correctly § circumstance that defendant made his statements during postarrest police minimize when he had a motive to interrogation, his compelling culpability for the murder and to on the of his indicated a play sympathies interrogators, decisions, lack of In trustworthiness. we have the exclusion of past upheld self-serving statements made under similar circumstances. postcrime 759, v. Livaditis (People (1992) 2 Cal.4th 779-780 831 P.2d Cal.Rptr.2d [9 297]; People Edwards (1991) v. 54 Cal.3d [1 436]; People v. Whitt (1990) P.2d 51 Cal.3d 642-643 Cal.Rptr. 849].) 798 P.2d

We have also that exclusion rejected argument of this sort of evidence hearsay violates to a fair trial and a capital right reliable determination under the federal Constitution. As we have penalty defendant has no federal explained, capital constitutional right trustworthiness, admission of evidence lacking when defend particularly ant seeks to his own statements before the without put self-serving jury Stanley, v. himself to cross-examination. supra, subjecting Livaditis, 838-840; 780; People v. supra, People pp. Cal.4th at v. p. Edwards, Whitt, 820-821; supra, 54 Cal.3d at People supra, 51 Cal.3d pp. 644.) at p.

In the entire of defendant’s excluding videotape interrogation, postarrest law, the trial court did not err under state nor did it violate defendant’s rights under the federal Constitution. The defense never offered to redact conduct, and, so, only to show the nonassertive even if it had done videotape error in the admissible any excluding was harmless. portions videotape

B. Murder Victim’s Pregnancy Before defendant’s trial the trial court denied his motion to began, exclude from the evidence that Teresa penalty phase any Holloway was pregnant when defendant murdered her. Defendant contends that the was error ruling because the evidence was irrelevant and He further unduly prejudicial. Fifth, contends that admission of the evidence violated his under the rights Sixth, and Fourteenth Amendments. Eighth,

The trial court did not err in evidence of the murder admitting victim’s at the as a circumstance of the offense. The pregnancy penalty phase Amendment to the federal Constitution in a Eighth permits prosecution, case, to evidence about the murder victim and the harm capital present specific (Payne defendant caused as relevant to the decision. jury’s penalty Tennessee 2597]; 501 U.S. L.Ed.2d 111 S.Ct. Harris, California, 37 Cal.4th at In prosecution

131 crime caused a defendant’s at by of the harm specific introduce evidence may 190.3, (§ as circumstance of the crime the in phase aggravation penalty Panah, 494; v. Fierro People at (People supra, (a)). 35 Cal.4th p. factor v. 1302].) 821 P.2d (1991) 1 Cal.4th 235 Cal.Rptr.2d [3 because, the was irrelevant Defendant that evidence of argues pregnancy told him that Terry Holloway the evidence although prosecution presented did evidence that he not was there was also uncontradicted she pregnant, concluded, however, that facts the victim concerning it. This has believe court trial circumstances of are admissible at the as penalty phase capital that the by not those to or foreseeable the crime are limited to known reasonably Pollock v. (2004) murder. (People defendant at the time of the Roldan, accord, supra, 353]; People P.3d 35 1183 89 v. at Cal.4th p.

We also trial court abused its reject argument as evidence We by unduly prejudicial. discretion excluding pregnancy of the trial court’s discretion in these situations have explained parameters “ hand, it allow evidence and way: argument in this ‘On the one should reasons to though subjects emotional relevant that could provide legitimate or to the ultimate sanction. On the other jury mercy show sway impose hand, irrelevant or rhetoric diverts the inflammatory jury’s information irrational, attention from its role or an subjective invites proper purely ” Edwards, should Cal.3d supra, be curtailed.’ v. response Haskett Cal.3d quoting People Cal.Rptr. Panah, accord, 776]; People supra, 640 P.2d 35 Cal.4th at Pollock, 494-495; see at 1180 also Cal.4th pp. [evidence if it “is elicit from an irrational admissible not so as to inflammatory jury case”].) emotional untethered to of the That in murder response the facts terminated Teresa also the life 17-week- healthy ing Holloway she was harm caused defendant’s crime old fetus carrying part emotional, thus was a for the in though jury consideration legitimate, We its decision. note also that defendant does not making penalty challenge manner in and we conclude it was not which evidence was presented, Therefore, in an we defend inflammatory way. reject presented unnecessarily evidence of ant’s claim that the trial court abused its discretion admitting the victim’s pregnancy.

C. Victim Impact detailed contends that admission of and emotional testi of her about of Teresa murder on members Holloway’s mony impact unreliable, violation of his rendered trial unfair and family his penalty Sixth, Fifth, Fourteenth Eighth, under Amendments rights federal 190.3, Constitution. He further contends that (a), section factor which permits introduction of victim evidence as a impact circumstance of the crime, is unconstitutionally and that retroactive vague, of case law application allowing use of this evidence violates federal constitutional of ex principles facto and due post process. 190.3,

We have claims rejected (a), that section factor is unconstitutionally insofar as it vague introduction permits of victim evidence as a impact Wilson, circumstance of the crime (People v. 358; supra, 36 Cal.4th at p. People Boyette (2002) 29 Cal.4th fn. 12 Cal.Rptr.2d 391]), 58 P.3d and that use of victim evidence in trials impact for capital crimes committed before the United States Court’s decision in- Supreme Tennessee, Payne supra, U.S. violates federal constitutional of ex facto v. Brown principles and due process (People post 394—395 244]). 93 P.3d does not us to reconsider persuade these decisions.

Nor are we that the trial persuaded court erred in failing to exclude victim that defendant impact testimony claims was overly emotional irrelevant. Three witnesses testified to the of Teresa impact murder on Holloway’s members of mother-in-law, her family. Carol Teresa Holloway, Holloway’s testified about the primarily impact murder on Teresa’s young daugh- ter, but also Cucinotta, about its on herself. James and Joan impact Teresa’s testified parents, mainly themselves, about the of the murders on impact but also about its on their other impact two children and on their grandchild. brief, testimony these three witnesses was relatively comprising just in the pages reporter’s their transcript. During the defense made testimony, no witnesses, objections any questions nor did put the defense move to strike of the answers. any a break in During proceedings after immediately however, of Carol testimony Holloway, defense moved for a mistrial or in the alternative to further preclude any victim Defense impact testimony. counsel out that pointed break, as the was jury the courtroom leaving for the four of the were jurors “very visibly The trial court crying.” denied the motions, it with although agreed defense counsel that at least two of the tears, jurors had been in and the trial court added that defendant had been Later, “crying as well. sobbing” out of the jury’s the trial court presence, observed for the record that of Teresa during testimony Holloway’s it had been parents the four watching jurors defense counsel had identified as previously and that it did crying not notice as much “nearly emotional on their response part, frankly.” irrelevant,

As cites, examples testimony was defendant other among Joan things, Cucinotta’s that her mother died of testimony cancer after shortly Teresa death and that her Holloway’s husband lost his two job weeks after make the witnesses’ failing timely objections during death.

Holloway’s By impact the claim that the victim any forfeited testimony, Wilson, 36 Cal.4th at In was evidence irrelevant. event, relevant. testimony all of that For we are satisfied that any her that because she did not want to upset Joan Cucinotta example, explained illness, still had that was Holloway mother her final she during pretended alive, he And James that lost explained which was difficult.” Cucinotta “very Thus, all Holloway’s because this his much job “pretty [meaning death].” on the direct of the murder impact of this was relevant testimony explain members. Holloway’s family he сonsiders emotional. examples testimony overly provides mother, Cucinotta, defendant

In the of Teresa Joan testimony Holloway’s cites, other her statements that “there is worse me among things, nothing child,” the wanted to the than death of a that she at and hit detective lunged dead, her was that she Holloway who told visits Holloway’s grave every and at week first she would and throw self the “cry, sobbing, cry cry, [her] and visits Holloway’s “says that when she the grave,” daughter, grave, and her In the of Holloway’s kisses prayer picture.” testimony [mother’s] father, Cucinotta, cites, James other his statements things, among week, he and that his wife visit that “couldn’t Holloway’s grave every they a look take at her for the last time because of the condition that [Holloway] was in . . she . of course she’d laid out in the road for a couple days,” [a]nd while he “had that was the funeral for he making arrangements Holloway emotions) stuff his and “because of that everything” (meaning suppress do a stuffing, started to lot of his out inappropriate things,” “drinking got [he] hand,” and he “had to to a center that taken treatment and finally go get of,” son, old, care who as a result of death his was 34 Holloway’s years “not was same and was “in a here in San anymore” recovery home and his Diego,” during first after death he and wife year Holloway’s house,” “didn’t even “didn’t holiday turkey have a in the have a they Thanksgiving . . . didn’t have a Christmas tree for Christmas.” from,

This was not dissimilar more emotion- testimony significantly than, laden other victim that has been held admissible. For impact testimony Tennessee, v. Payne supra, 501 U.S. the defendant was example, convicted of her murdering two-year-old daughter. woman and 28-year-old trial, At asked son had been three-year-old when how woman’s sister, affected murders of mother and grandmother his boy’s “ ‘He why cries for his mom. He doesn’t seem to understand she replied: he He me doesn’t come home. And cries for his sister Lacie. comes to many me, Grandmama, times and do Lacie. And during you my week asks miss ” (Id. 814-815.) I tell him I’m about Lacie.’ at yes. He worried says, my pp. Harris, supra, In 37 Cal.4th the murder victim’s mother murder, learned financial “described how she and of the emotional and costs involved in 328; planning (Id. funeral.” at attending see also p. id. at 351-352 this pp. [holding admitted].) evidence In properly People Panah, 35 Cal.4th supra, murder victim’s father testified that before death, the victim’s her athlete, brother 16-year-old “was the and was a family student,’ but, death, ‘4.0 deteriorated, her following his grades ‘he is drinking a lot and doing drugs,’ would not talk about his sister but it all ‘kept himself,’ inside and refused to go (Id. counseling.” We concluded that but, this testimony “neither irrelevant nor prejudicial context, the ‘residual and depicted he lasting ‘continued to impact’ experi- ence’ as a result of (Ibid.) murder.” In People Boyette, [the victim’s] a murder victim’s father “testified and related how close he victim, was with the how her eight-year-old son had said he wanted to die so mother, he could be with his how her six-year-old son had nightmares was, would to know telephone wanting where his mother and how [the had been in a drug rehabilitation victim] and had turned program her life 440; (Id. around.” at see also id. at 444 p. the p. [holding evidence was cases, admitted].) properly As these we conclude that the victim impact evidence here “did not (Id. constitutional limits.” at surpass p.

The record does not defendant’s support that after suggestion the hearing victim the impact testimony were so jurors overwhelmed by emotion that were they unable to make a rational determination of Of penalty. particular significance, the deliberated jury on for five penalty before days its reaching verdict. ‍‌​​‌​‌‌‌‌​‌‌​‌​​​‌‌​‌‌‌​​​​‌​​‌​‌​‌‌​​‌‌‌​‌​​‌​​‍The of length that, thеir deliberations rather strongly rather implies than rushing judgment under the influence of unbridled the passion, jurors arrived at their death verdict after a full only and careful review of the relevant evidence and of the legitimate arguments for and the against death penalty.

D. Jail Assault Defendant contends that the trial erred in his overruling objections to Baldwin, admission of evidence of his assault on Steven and that this error Fifth, Sixth, violated his rights under the Eighth, Amendments Fourteenth to the federal Constitution. 14, 1994,

On the notified April defendant that it prosecution intended to introduce in Baldwin, evidence of aggravation defendant’s assault on Steven 1991, which had occurred in July soon after defendant’s arrest. The defense moved to exclude evidence of the incident the on that the notice ground After a untimely. trial court denied the motion hearing, without prejudice to its renewal if the trial reached the penalty phase.

Defendant renewed the motion to exclude after the returned jury its guilt motion, verdicts and made its circumstance In special finding. support

135 the inmates who documents jail listing defendant informed court and the where the assault occurred employees were housed in the module 1993, before July had been on or destroyed who worked in that module The trial court the incident had been although relating preserved. report that, in exclude, argument denied renewed motion to rejecting destruction, would the incident in aggravation of the document use of light of Defendant contends to due law. right violate his constitutional process trial court erred in the motions to exclude. denying admission, 190.3, (b) for the during

“Section factor provides trial, of criminal activity evidence penalty phase capital any (People v. use of force or violence.” involving attempted use 1, 68].) 5 P.3d Section (2000) 23 Cal.4th Cal.Rptr.2d [99 Kraft 190.3, time (b), unadjudi factor no limitation the introduction of imposes crimes; rather, defend cated violent it consider jury permits capital ant’s time the defendant’s any during violent conduct at criminally occurring Barnett (1998) (People life. 17 Cal.4th Cal.Rptr.2d [74 v. Williams 384]; (1997) 954 P.2d 16 Cal.4th Cal.Rptr.2d Thus, criminal 710].) 940 P.2d evidence is admissible activity of violent of the crime would be time-barred (People even though prosecution Williams, 233), is right to a trial not speedy implicated (People Rodrigues 1]), v. Koontz

885 P.2d and the defense laches is available 859, (2002) 335]). 27 As Cal.4th 1087-1088 46 P.3d Cal.Rptr.2d [119 have the incident to its we remoteness in time of a “goes explained, prior v. Catlin admissibility.” (People 26 172 weight, (2001) not to its Cal.4th 357].) to these P.3d Defendant asks us reconsider 26 [109 decisions, but he does not us to do so. persuade

Here, concedes, as defendant defendant’s assault on Steven Baldwin offense, time; indeed, the not in it occurred the charged capital remote after trial murder of Teresa contends that the Defendant nonetheless Holloway. court have evidence incident because the should excluded of the prosecutor’s of his lack in the incident and in notice of diligence discovering providing intention offer of the in in the to evidence incident resulted aggravation records, ability destruction of relevant jail thereby compromising to defend the against charge. told he first of incident

The the trial court that learned the prosecutor the interview while during December an of Steven Baldwin preparing 1993 have could case for defendant the Although trial. argues prosecutor earlier, that a the incident he no for the proposition discovered cites authority to and in a death case has an promptly prosecutor penalty obligation that, evidence, a duty for all available or if such diligently aggravating search 136

exists, evidenсe exclusion of is an and lawful sanction for its appropriate Thus, violation. defendant fails to us that he any suffered persuade legally a result cognizable harm as of the failure discover prosecution’s incident at an earlier time.

The is notify of its prosecution required capital intended evidence “within a reasonable of penalty time as phase period court, determined (§ 190.3.) to trial.” Notice before by prior jury provided selection begins is considered and the of the notice generally timely, purpose if the provision is satisfied defendant has a reasonable chance to defend Here, charge. (People Stitely, supra, against 35 Cal.4th at prosecutor notice defendant of his intention to evidence gave introduce of the Baldwin 11 assault before selection then days jury began. received, received, or had already described incident and report inmates, defendant, included the of names two in addition to Baldwin who had been in the module were about the incident. present questioned The trial court not did abuse its discretion in that defendant concluding received timely and notice. adequate

Defendant also that the incident was argues inadmissible because it did not constitute crime defendant. Evidence of criminal by other activity 190.3, (b), introduced under must section factor demon penalty phase crime, strate “the commission of an actual the violation of a specifically, Phillips (1985) statute.” 41 Cal.3d penal Cal.Rptr. 423]; 1100, 1133; 711 P.2d People Kipp, People v. see also Boyd (1985) 782].) P.2d Cal.3d Cal.Rptr. Baldwin, did argue that defendant prosecution personally assaulted but instead that he and abetted aided an assault Baldwin loudly referring “snitch,” Baldwin as a are that snitches knowing commonly targets who, assault in abettor jail. aider and is a with person ‘acting “[A]n (1) (2) unlawful knowledge the intent purpose perpetrator; or or purpose committing, the commission of the encouraging, facilitating offense, aids, or advice by act promotes, encourages instigates, ” 248, (People Prettyman (1996) commission of the crime.’ Cal.4th 14 259 v. Beeman 1013], P.2d People 926 35 Cal.Rptr.2d quoting [58 Cal.3d 1318].) 561 674 P.2d the evidence Cal.Rptr. On defendant, could conclude that with the presented, jury reasonably acting assaulted, intent to have with Baldwin that other inmates knowledge snitch, would do so if told that a or likely encouraged Baldwin was instigated the assault the other Baldwin a announcing to inmates that was openly (“You snitch. remark to Baldwin after the assault can’t be in Defendant’s this cell”) an inference that defendant orchestrated the to achieve assault supports own his intimidation of and his Baldwin removal from module. purposes, Therefore, we that the evidence was insufficient reject argument show that defendant violated a statute. penal in Jail Weapon Possession

E. that defendant In evidence at the penalty phase regard prosecution’s claims, first, that county in the jail, a illegally weapon possessed a he was that the weapon possessed the evidence was insufficient establish 4574; second, trial of that the within the section deadly meaning weapon a section 4574 the elements of court misinstructed the jury regarding violation; and, third, at not have the jury that the trial court should permitted an violation as aggravating to consider the section 4574 penalty phase an actual or necessarily the offense does not involve circumstance because threat of violence. implied it a county jail

Section 4574 makes a for a inmate felony possess statute, is a of an “deadly meaning object Within this weapon.” penal injury if it a of deadly inflicting great bodily has reasonable weapon potential Pollock, 1178; see or death. Cal.4th 432].) P.3d Hughes (2002) 27 Cal.4th that was to establish here the evidence insufficient Arguing prosecution’s great that the he had a reasonable weapon inflicting possessed potential death, did not which bodily or defendant asserts that the evidence show injury that as soap of several he some of such weapons possessed weapons, socks, disagree bars in were We inflicting great bodily injury. incapable with defendant’s characterization of evidence. testified, examination,

Mark Thiede on that on direct September he Diego he as a sheriff at the in San when working county jail deputy off in saw of Black and each other Hispanic facing against inmates groups they one of the tanks. Several inmates had steel Hispanic poles posts were the steel bunks and to make motions slamming against using stabbing the Black inmates in another of the room. He later wrote keep report part four “who Defendant was one inmates identifying possessed weapons.” four. Asked to describe “with a little more what particularity type . . . these Thiede “The weapons inmates were possessing,” replied; weapons riot, long, that was used in the bars about between 12 and 18 inches they’re There They they inch diameter. was also socks. take a sock and quarter put two, or two it You can use weighted. one bars of socks to make soap wide, half that as Thin inch five or six clubbing instrument. about pieces to a Those inches with end that can down long you sharpen point. tape (Italics added.) were are I believe the weapons found.” not determine that from this could argues testimony jury described, had of he which the several that Thiede Deputy possessed weapon, riot, the could determine whether the weapon the and thus during jury satisfied the section definition of a The deadly more weapon. likely think, interpretation of this we is that was one testimony, of four inmates that Thiede saw the steel or and that wielding poles the other posts Moreover, were found weapons a later search of the tank. merely during any confusion or in this was uncertainty regard dispelled cross-examination. Jurado, Defense counsel asked: “You never Mr. saw or the that person you Jurado, is, identified as Mr. you that the in the tank said person that had the (Italics never pipe, you added.) saw that individual strike did anybody, you?” “No, Thus, Thiede I didn’t.” evidence replied, the before the jury sufficiently established that defendant one of the steel possessed to 18 inches objects bars, described as length—variously and the poles, posts, pipes—that inmates were bunks slamming against using and make motions. stabbing As defendant does not an of this dispute, sort is of object capable inflicting death, or it is a great bodily injury thus within the deadly weapon of section meaning 4574.

nextWe consider defendant’s claim that the trial misinstructed court the elements of a jury regarding section violation. the trial Specifically, court instructed the that in it jury verdict could consider reaching penalty evidence that defendant had in criminal that involved the engaged activity of force or or the use violence threat of force or violence. express implied indeed, court then stated: “And evidence has been introduced this during of the trial for the that phase purpose showing proving [defendant] committed criminal . . . a following in the activity: possession weapon county jail.” Defendant contends that this instruction inaccurate or аt least because it referred to “a misleading merely rather than “a weapon” deadly weapon.”

As defendant we a recognizes, considered similar claim in There, supra, 27 Cal.4th 287. Hughes, prosecution introduced evidence at of a trial that the defendant in a penalty phase capital while county jail four-inch, hard, had “a but possessed bent slightly straightened, sharp object (Id. with a at the 381.) end.” at The trial court loop instructed that p. jury “ ‘evidence has been for the that the showing introduced defend- purpose ant has committed the criminal act: of a following possession sharpened (Id. instrument while confined in the ....’” at jail 382.) We county p. concluded that the trial court had erred in in these terms because instructing “was, instrument while confined in the possessing sharpened county jail at time, is, (that without more that the was a showing object deadly (Id. 383.) not a crime.” The trial weapon), court’s instruction “should ” instrument,’ used the than ‘deadly have words rather an weapon’ ‘sharpened (Id. we as error characterized “minor.” at p. concluded, doubt,

We also beyond reasonable the defendant was not We error. observed the defendant had prejudiced by object

139 as under section 4574. v. possessed qualified deadly weapon (People Hughes, supra, 383.) 27 Cal.4th at We reasoned: “To find we need would p. prejudice, two which tend (i) to be that the hypothesize tilings, self-canceling: jury shank, instrument, would consider the not to be a although sharpened (ii) deadly that such a nonetheless weapon, despite finding, jury considered the evidence to be so that it affected the important penalty determination. It is that the would find the to be quite unlikely jury object [][] instrument but not a sharpened deadly But if the made that weapon. jury evidence, thus improbable finding, seriousness of the it is also minimizing that it would then quite unlikely consider the evidence to be so as important control, or even have a determination.” significant impact upon, penalty 384; Pollock, (Id. at see also v. p. People 32 Cal.4th at supra, p. here, we conclude

Similarly that defendant was not the trial prejudiced by court’s of the description alleged criminal conduct as defendant’s possession of a rather than a “weapon” It is “deadly that the weapon.” quite unlikely jury would view the object steel rod or bar 12 to 18 possessed—a inches in length—as but not a weapon deadly It is also weapon. quite unlikely if the made such an it jury would then improbable finding, nonetheless treat the incident as to have affected the sufficiently aggravating verdict. The penalty combination of these be- improbabilities us persuades a reasonable yond doubt that the instructional error was harmless. also argues that the instruction was erroneous it insofar as required to treat jury defendant’s of a possession deadly weapon county as jail without aggravating its own making determination that the conduct involved actual or threatened force or violence. Defendant argues that the instruction from precluded jury considering any innocent possible for his explanation We have weapon possession. this previously rejected argument 235; v. (People Gray, 37 Cal.4th People Monterroso (2004) 743, 34 Cal.4th 956]), 101 P.3d and defendant Cal.Rptr.3d [22 does not persuade us to reconsider these decisions. we

Finally, reject defendant’s that the argument trial court should not have at the permitted jury penalty phase consider the section 4574 violation as an aggravating circumstance because the offense does involve necessarily concluded, illegal violence. This court has that a consistently contrary, prisoner’s of a possession is conduct that weapon involves an necessarily actual or threat use force or implied (1997) violence. v. Hines (E.g., People 388]; P.2d [64 Ramirez (1990) 50 Cal.3d 965]; 1186-1187 791 P.2d Cal.Rptr. People Harris 28 Cal.3d 962-963 623 P.2d Cal.Rptr. 240].) “The trier of fact is free to consider ‘innocent any explanation’ item, possession but such inferences do not render the se.” (People Tuilaepa evidence inadmissible per 1142].) P.2d F. Remorse Lack of the claims the death must be reversed because pros- judgment of remorse

ecutor the to consider defendant’s lack after urged jury improperly the an circumstance. aggravating crime as the the his to at the conclusion of the argument penalty phase,

During jury the of Christie about testimony to read Medlin statements prosecutor began made to her calls after the murder Teresa defendant had during telephone bench, the Defense counsel and asked to approach Holloway. interrupted where that defendant’s statements were “inappropriate he argued postoffense remorse,” the court evidence in lack of and that should show aggravation to view jury not the to make an the permit argument urging prosecutor lack The court overruled defendant’s of remorse as aggravating. postoffense could the that defendant’s statements objection, noting postoffense properly used constituted evidence of be insofar as circumstantial aggravation they his the The then defendant’s during prosecutor quoted state of mind crime. that and did not care if he statements “the bitch is that he postoffense gone” that had to of his for it. The this prosecutor argued the rest life paying spend time this showed state of mind of at about the crime “the [defendant] occurred as to his idea of punishment.” knew showing

The then evidence that defendant that discussed prosecutor mentioned there killing Teresa was Holloway wrong. prosecutor be that the would asked mitigation were seven factors in and aggravation jury consider, factors on each and that the count the side jury merely was determine As but was them to their force.” factors “convincing to weight the the mentioned and discussed the circumstances of aggravation, prosecutor crime, the victim or absence of testimony, including impact presence violence, and or absence of criminal force or activity involving presence whether the convictions. The mentioned and discussed prior felony prosecutor influence offense committed while the defendant was under the was disturbance; whether the time of offense extreme mental or emotional at conduct of his or to criminality had the capacity appreciate law, whether that capacity his conduct to conform requirements crime; intoxication; time of the was age impaired factor,” extenuate the which was other circumstances which “the last “any crime, crime, even it is not a excuse for legal of the gravity though defendant’s character or record that the or other any aspect sympathetic less as a basis for a sentence of than death.” defendant offers factor, In connection with this last discussed the evidence prosecutor the defense had its case in presented during this mitigation. During discussion, made prosecutor this which defendant now argument, chal- lenges: “I listened as the defense witnesses testified for yesterday any evidence or testimony pertaining victim. And there was. There was. testified, heart, The defendant’s grandmother her bless that she not only prays but she for the victim and the prays [defendant] victim’s What a family. nice What a thing. human thing. What a nice from a nice person family, [ft] When she testified to that I kind of back in the evidence that thought in the presented and the guilt phase about the penalty defendant and phase, his view of the victim. After the murder of she had Terry Holloway, only been in the minutes, ditch a drainage matter of what was at doing [defendant] Christie Medlin’s house? He was darts. What was he playing the next doing with day Denise while Shigemura the victim still cold in lay the drainage beer, ditch? He was having and And pizza after he got arrested and he [ft] talked to Christie Medlin on the how did he telephone, feel about the victim time, at that ‘On, on, around the crime? right time of the the bitch is gone.’ And when he identified Steve [ft] Baldwin as a snitch in the what county jail, were his words? ‘That’s the who guy told the I killed the cops bitch.’ [ft] victim, What’s his grandmother time? doing during this She’s for the praying Do see you what I mean? [ft] He’s not like them. He doesn’t share in their goodness, he doesn’t share in their he doesn’t compassion, share in their I humanity, think those [ft] statements that he made in the presence Baldwin and in the or on the presence telephone Christie Medlin tell you who the real there, Robert Jurado is. All right out clear very and for you open to understand and evaluate.”

Although prosecutor case not capital may argue that a factor, lack of postcrime remorse an is aggravating a prosecutor here, as the may, did prosecutor argue that lack of remorse is relevant Pollock, evaluation of factors. (People mitigating supra, 32 Cal.4th at 1186; p. Mendoza 150].)

6 P.3d here prosecutor never suggested that lack of remorse was factor, an and aggravating he did not refer to lack of remorse during portion his argument devoted to the discussion of factors. aggravating Instead, the challenged argument occurred the course of the during prosecu tor’s review of the defense case in and the mitigation potential mitigating factors. A reasonable juror would have likely understood the prosecutor’s to be argument that defendant’s failure to demonstrate concern for the any woman he had killed meant “that remorse was not available as a mitigating factor and also that defendant was not entitled to the jury’s sympathy.” Pollock, His and Mother

G. Incidents Between Defendant exercised its discretion to that trial court should have argues exclude, value, that on as and the evidence inflammatory lacking probative mother, another he he and his and on occasion spit one occasion pushed her arm as if to strike her and threatened kill with raised approached this violated He further that admission of evidence shoot house. up argues right against and due that evidence admitted statutory penalty his process 190.3, limited a factor under section him be to evidence relevant to listed Fifth, under Fourteenth Amendments Eighth, constitutional rights his trial, and in the determination of to due a fair process, penalty reliability capital punishment. mother

We that defendant’s conduct toward his reject argument 190.3, criminal (b), not under section factor as activity admissible or or or the use or of force violence attempted express involved use threat or does not that his to use force violence. Defendant argue implied statute, nor it did not argue conduct did violate a does he penal the use of force or violence or the or express involve use attempted Instead, that evidence threat force or violence. he the argues to use implied executiоn,” the sentencing was “not kind of evidence that to justified [him] nineteen- it is not that uncommon for a or a “unfortunately teenager because his But the admissibility to have confrontations with parents.” such year-old 190.3, how or (b), evidence does on common of section factor depend is, whether in it would uncommon conduct or viewed isolation criminal statutory to a The evidence met all be sufficient death sentence. justify 190.3, (b). for admission under section factor requirements that trial court should have We also defendant’s reject argument to its under Evidence Code section 352 exclude exercised discretion substantially outweighed on the that its value was evidence ground probative of its would create a substantial danger that admission by probability section 352 does not undue As we have Evidence Code prejudice. explained, trial to all evidence of criminal incident court discretion exclude give 190.3, (b). Cunningham factor v. (People that is admissible under section 926, 291, 519]; P.3d v. (2001) People 25 Cal.4th 1017 25 Cal.Rptr.2d [108 575, 347]; 543, 22 P.3d (2001) Anderson 25 Cal.4th 586 Cal.Rptr.2d [106 475, 751, (1995) 11 542-543 Cal.Rptr.2d v. Sanders Cal.4th People [46 420].) P.2d 905 which are we constitutional by arguments,

Nor are defendant’s persuaded in from evidence isolation viewing on the unrealistic this perspective based at the mitigation penalty other offered in aggravation all the evidence In the of the offense. context capital the circumstances including phase, find or unfair improper we process, nothing entire determination penalty

143 each life about to consider occasion allowing jury during he involved or when violated statute conduct that the use penal use or or the threat use implied violence or attempted express force force or violence.

H. Reasonable Doubt Standard that his claims death sentence must be reversed because the trial court did not a death if jurors instruct to return verdict were only they a reasonable doubt that the beyond circumstances were persuaded aggravating so substantial with the circumstances that the death comparison mitigating As court this has held that penalty justified. acknowledges, “neither the federal nor the state Constitution requires jury agree factors, as to or to find unanimously aggravating reasonable doubt beyond exist, factors, that aggravating they factors outweigh mitigating v. death is the (People Fairbank (1997) sentence.” appropriate 1223, 784, P.2d 1321].) Defendant Cal.Rptr.2d us urges [69 reconsider this holding United light States Court’s Supreme v. New (2000) decisions in Apprendi Jersey 530 U.S. 466 L.Ed.2d [147 Arizona, 2348], Ring 120 S.Ct. supra, 536 U.S. Blakely Washington (2004) 542 U.S. L.Ed.2d 124 S.Ct. We have [159 2531]. so, done we already have concluded that these decisions do not us require alter our v. Cornwell conclusion on this previous point. Cal.4th 622]; 103-104 117 P.3d Morrison Cal.Rptr.3d (2004) 34 Cal.4th 730-731 568].) 101 P.3d I. Unanimity Circumstances Aggravating Defendant contends that the trial erred court in not the that instructing jury unanimity was before a circumstance could be required particular considered As defendant aggravating. acknowledges, this court consistently has rejected People v. argument 236; this Gray, supra, v. at People (e.g., Cal.4th p. Morrison, supra, 730-731), 34 Cal.4th at and he fails to pp. us persuade reconsider these holdings. Aggravating Circumstances

J. Mitigating contention, to defendant’s Contrary trial court was not constitution “[t]he ally to inform the certain required jury that factors were relevant sentencing only and the the mitigation, statutory instruction to to consider jury ‘whether or not’ certain were factors did not mitigating present impermissibly invite the aggravate the sentence the or jury basis nonexistent upon Morrison, irrational aggravating factors.” supra, v. at Cal.4th 730; accord, v. Gray, People 37 Cal.4th at supra, p. p. however, in this case given that certain instructions

Defendant argues, treat as a aggravating created risk that the would jurors an unacceptable First, be the trial court modified the that could only mitigating. circumstance factors, CALJIC No. After listing standard instruction on 8.85. penalty jury were agreed penalty the factors that the had relevant parties seven case, stated: “The circumstances in the determination in this the instruction are the ones which only determine to be you aggravating above list which stated, however, The also the law to consider.” instruction you permits an circumstances does not constitute absence of statutory mitigating “[t]he circumstance.” aggravating deliberations,

Second, sent trial court a note during penalty jury Mynatt this we consider the to kill Doug with “Can conspiracy question: crime,’ 8.85.(a)?” of the as this term is used in CALJIC ‘circumstance [No.] “Yes, trial it can be considered as ‘circumstance of The court replied: 8.85(a), CALJIC as either a circumstance in aggravation crime’ under [No.] that this would cause mitigation.” suggests jury or Defendant reply any aggravat- it could factors as either statutory conclude that consider sent the trial jurors or We On the same also ing mitigating. disagree. day, 190.3, (k), as in CALJIC court a section factor described asking note whether of the crime No. 8.85 other circumstance which extenuates (“Any gravity it for the crime and or any sympathetic even is not a excuse though legal as or record that defendant offers other defendant’s character aspect death, whether not related to the offense for a basis for a sentence less than or trial trial”) could be either or mitigating aggravating. which he is Thus, that this no reasonable “mitigating juror court factor replied only.” be into factor could either believing any could have been misled aggravating mitigating.

K. Absence Written Findings death law unconstitutional claims that California’s is penalty of findings to make a written statement because it does require jury This court has this consistently rejected for its death verdict. reasons Cornwell, 236; People Gray, supra, People claim 37 Cal.4th at p. (e.g., Morrison, 105; supra, 34 Cal.4th at us to reconsider these 730-731), and defendant does not persuade pp. decisions. Errors Cumulative Effect of

L. because must be reversed of Defendant claims that judgment of his trial. of at both the and guilt phases cumulative effect errors penalty trial, and we few errors at either phase Defendant has demonstrated

145 have found each error or error to be when possible harmless considered them we likewise conclude that their cumu- separately. Considering together, lative effect does not warrant reversal of the judgment. Disposition

V. is affirmed. judgment J., J., Baxter, J., Chin, J., Moreno, J., J., C. George, Werdegar, Corrigan, concurred. In 1993,

KENNARD, J., in Concurring. in a concurring opinion noncapi (People v. tal Ceja (1993) case 4 1134 Cal.4th 847 P.2d Cal.Rptr.2d [17 55]), I concern” that the in expressed “growing definition of wait that lying v. this court had Morales (1989) earlier in People adopted 48 Cal.3d 527 [257 64, 770 P.2d Cal.Rptr. have undermined the critical “may 244] narrowing function of the lying-in-wait circumstance: defendants special separate whose acts warrant the death from penalty those defendant who are ‘merely’ v. of first Ceja, guilty degree murder.” at supra, I expressed this concern again in v. in People Hillhouse separate (2002) opinions 27 754], Cal.4th 512 Combs 40 P.3d People Cal.Rptr.2d [117 (2004) 101 P.3d In none of 1007]. cases, however, these I did indicate how I decide would this constitutional issue. the same

During without period, writing I have concurred in separately, decisions affirming judgments death based in lying-in-wait part special circumstances, including decisions claims rejecting lying-in-wait circumstance special is unconstitutional it because does not adequately cases, however, narrow the class of death-eligible defendants. In each these the issue was not presented because other circumstances had squarely special been found true and the lying-in-wait circumstance had no effect on special the evidence Brown v. Sanders (See presented penalty phase. Combs, 884]; U.S. 212 People L.Ed.2d supra, 126 S.Ct. 821, 869.) Cal.4th I Since concern expressed about lying-in-wait special not, circumstance in Ceja, Cal.47th this court has now, until affirmed a judgment death which in wait was the lying only case, however, special circumstance. In this no other circumstance special alleged, for the death based eligibility penalty is solely on the that defendant murdered jury’s finding Teresa while Holloway lying reason, wait. For this I taken have a careful look at constitutional issue to which I alluded in 1993.

146 1972, limit has States to United States Court Supreme “required

Since the (Brown the v. may which death be penalty applied.” class of murderers Sanders, 889].) The court at S.Ct. at supra, 546 U.S. 216 p. p. [126 v. Georgia in Furman (1972) announced 408 U.S. 238 [33 requirement in Furman 346, S.Ct. Justice White’s concurring opinion L.Ed.2d 92 2726]. and other Georgia the death of systems identified the in penalty problem the few cases distinguishing of basis for “meaningful states as the absence a it cases in which is is from the many in which death penalty] imposed [the (Id. Godfrey v. 1980, in at In Justice Stewart’s plurality opinion not.” p. 398, 420, 1759], 427 con (1980) L.Ed.2d 100 S.Ct. Georgia 446 U.S. [64 must, “A scheme sentencing verted this into a requirement: capital description ' short, for the few cases in which in a basis “meaningful distinguishing provide ’ ” in which it is is from the cases not.” imposed many death penalty] [the of Court the decisions the United States ensuing years, Supreme Over the that to the federal Constitution’s satisfy gradually dispelled impression of murders bemay a small requirement only percentage punishable narrowing 463, A rave v. Creech (1993) 475 L.Ed.2d (See, 507 U.S. e.g., [123 death. 1994, 188, terms 1534].) the court summarized in rather precise 113 S.Ct. In in homicide for death a eligibility the federal Constitution’s requirements case, in a for the death homicide eligible penalty case: “To render a defendant of must of murder we have indicated that the trier fact convict defendant (or at either the guilt one circumstance’ its equivalent) and find ‘aggravating contained circumstance bemay or penalty phase. aggravating [Citations.] (or both). in or in a factor definition of crime separate sentencing circumstance must meet aggravating As we have explained, [Citation.] First, not may apply every two the circumstance requirements. murder; it must subclass only

convicted defendants apply Second, circumstance aggravating may convicted of murder. [Citation.] (Tuilaepa v. (1994) unconstitutionally not vague. be [Citations.]” California 2630].) 114 S.Ct. Under Califor 512 L.Ed.2d U.S. 971-972 [129 law, listed in Penal Code section nia’s circumstances death ‍‌​​‌​‌‌‌‌​‌‌​‌​​​‌‌​‌‌‌​​​​‌​​‌​‌​‌‌​​‌‌‌​‌​​‌​​‍penalty special a defendant eli making as the circumstances” “aggravating 190.2 function Sanders, (Brown supra, v. U.S. 227 546 [126 death gible penalty. (1993) 6 467-468 People Bacigalupo 892]; S.Ct. at p. Cal.4th 808].) P.2d Cal.Rptr.2d Code, 190.2, (Pen. (a)(15)), subd. circumstance

The lying-in-wait special § Morales, Cal.3d at People it in page as this court defined Court that the United States Supreme the constitutional requirements satisfies 512 U.S. 967. The special California, supra, Tuilaepa articulated murderers, murderers, to all subclass circumstance applies only therefore, the federal it satisfies unconstitutionally vague; and it is not (See for a factor. death-eligibility narrowing requirement Constitution’s 591]; P.3d v. Moon v. People Nakahara (2003) 705, 223, Cal.4th Cal.Rptr.2d 68 P.3d [134 1190]; People (2002) 28 Cal.4th 1083 Gutierrez Cal.Rptr.2d [124 572]; P.3d see also Morales v. (9th 2004) Cir. 388 F.3d Woodford 1174-1178, cert. den. sub nom. Morales v. Brown (2005) 546 U.S. 935 [163 L.Ed.2d 420]; 126 S.Ct. People Earp (1999) 20 Cal.4th 904-905 15]; Cal.Rptr.2d 978 P.2d Sanchez 60-61 1129].) 906 P.2d

Case Details

Case Name: People v. Jurado

Court Name: California Supreme Court

Date Published: Apr 6, 2006

Citation: 41 Cal. Rptr. 3d 319

Docket Number: S042698

Court Abbreviation: Cal.