*1 Aug. S030416. 2001.] [No. PEOPLE,
THE Plaintiff and Respondent, OCHOA, Defendant and
SERGIO Appellant.
Counsel Court, Peterman, for Defendant Conrad under appointment by Supreme and Appellant. General, Druliner, Attorney
Bill David P. Chief Assistant Lockyer, Attorney General, General, Pollack, R. John Attorney Carol Wendelin Assistant General, Levenson, D. Henry Attorneys Robert S. Brad Gorey, Deputy for Plaintiff and Respondent.
Opinion counts of
BROWN, Ochoa convicted defendant two A jury Sergio J. 187; are to Code, (Pen. statutory all further references first murder degree § indicated) one second code unless otherwise count attempted this that a 211). also found true the (§§ allegations degree robbery (a)(1)) subd. (§ to all three offenses was armed with respect principal to one of the used a firearm with respect and that defendant personally (§ 12022.5). found true Having and the robbery murders attempted murders that defendant committed multiple circumstance allegations special 190.2, committed while defendant (§ (a)(3)), subd. and that a murder was 190.2, (a)(17)(A)), set the (§ subd. the jury penalty engaged robbery motion to sentence modify at death. The trial court denied defendant’s VI, 11; Const., 190.4, (Cal. Pen. (e)). is automatic. art. (§ subd. This § appeal Code, 1239). § *17 below, should be af- stated we conclude the judgment
For the reasons firmed in its entirety.
I. Facts
A. Phase Guilt
1. The Case People’s
a) rivalry The gang Street was in “war” Gang In and defendant’s 18th early late 1989 15, 1989, defendant was Riders. On December Crazy with a rival gang, in Los and Fourth. Avenue “Polio” near Pico Boulevard with walking “2MTV878” up with license No. pulled when a white Angeles1 Toyota plate the car and exited A Riders member named Crazy “Pompis” beside them. and Polio ran to Fifth and Polio. Defendant three times at defendant shot Avenue, at more. were shot twice they where an 18th Street Riders shot Luis Gang Magallenes,
The next the Crazy day, that same an 18th Street day, nicknamed “Bandit.” Later member Gang Mauri- shot Rider Nelson fatally Crazy nicknamed “Flacko” member Gang shooting Magallenes. to retaliate for the cio Donis mem- 18th Street Gang 5:00 p.m., On January approximately brother, Alonzo, Quijada, and his Oscar and Walter Aguilar bers Jacinto Toyota Boulevard. white Avenue and Venice were near 12th driving to the He was taken in the forehead. and shot Quijada up Pompis pulled n and survived. hospital Angeles. City of Los occurred in the 1 Allof the events described murder b) The Navarette 3, 1990, and Alonzo were Aguilar on
At 8:00 p.m. January approximately members at Pico and Wilton Avenue with fellow gang Boulevard assembled truck, Defendant, red driving and Mauricio Soriano. Juan Velasquez on Pico Riders’ white Toyota and stated he had seen just Crazy arrived Alonzo, entered defendant’s and Soriano Aguilar, Velasquez Boulevard. him, the 18th with a double-barreled Aguilar shotgun truck. brought off to find Riders. Crazy members set Gang Street stated, Pico Defendant “There Defendant drove eastward on Boulevard. so his adjacent are.” Defendant accelerated lanes truck was changed they on shots fired from the After shotgun. to the its left. Two were Toyota, Kingsley turned the truck and drove northbound on defendant shooting, Drive. Crazy car was not the to the belonging
The white Toyota question Navarette, Riders, but a Pedro Datsun driven decedent whose passenger brother, time at the was his Rudolfo not a rival gang Rivera. Navarette was “2MTY.” member. The of Navarette’s license number read beginning plate fired; the car fell on the wheel after the second shot was steering Navarette onto the crashed truck drove into a wall. Rivera heard the sidewalk shot, voices after the second but he could understand what passengers’ *18 cause of death a wound to the head. they saying. shotgun were 22, had Defendant was first on 1990. He stated he questioned January and of a heard about a Pico Boulevard Drive nothing shooting Kingsley a license car with with “2MTY.” On beginning February plate defendant a in he drove truck signed during statement which he admitted Defendant stated a ride to Normandie shooting. Velasquez requested Soriano, as and defendant Alonzo and also traveled obliged; Aguilar Avenue A car the one to the Riders was resembling belonged Crazy that passengers. a loud also eastbound on Pico Boulevard. Defendant heard driving suddenly and the car cracked. he looked in his mirror window Defendant stated bang, a had known and saw Defendant Velasquez holding shotgun. formerly that was armed. Velasquez as a “hard-core” gang
Detective Michael Bercham described defendant his Street tattoos all over his After body. member. Defendant had 18th Gang a tattoo arrest on and interview on he added January January “187,” that Penal Code eye over his number California depicted section murder. proscribing
c) robbery The Castro and murder attempted defendant, 20, 1990, Soriano, On the evening January Velasquez, were Street Montes and David Lozano fellow 18th members Oscar Gang said, Defendant “Let’s go assembled at Pico Boulevard and Wilton Avenue. defendant told stated he did not want go, do a When Lozano jack.” the 18th Street meaning Lozano to “do for the something neighborhood,” Lozano Gang. agreed participate. in his car a white the other 18th Street members Gang past
Lozano drove Fifth and Sixth Am that on St. Andrews Place between Trans was parked it “was a commented it was a nice car. Defendant agreed Streets. Soriano exited the car the car. His four nice car to Lozano get.” parked passengers the Trans Am. and approached Trans Am. Defendant and Soriano went
Jose Castro was in his sitting car; of the went to the side right the left side of the Montes and Velasquez Defendant, in Castro’s face and assailant with a it gun, placed car. only Castro’s ordered him to leave the car. Montes Velasquez, anticipating stated, “I’m gonna’ the car. Castro refused to exit. Defendant entered flight, Castro held on to the wheel. shoot him.” Street on St. Andrews Place from Sixth
David Mandich was driving 20’s, males, their mid-teens to early toward Fifth Street. He saw four in Am. of the four were on the left two around a white Trans Two standing in the driver’s on the The tallest of the four talked to person were right. and shot the driver. All The tall then from his gun jacket seat. one pulled Fifth Street. four males toward began running return, them to drive to see the four as he expected Lozano was surprised he had shot the man in the leg. the Trans Am. Defendant stated away shit, cried, “Oh, shit.” Defendant the man had oh Defendant further stated black lettering. a silver Raiders with jacket wore He evening. the incident to a officer Mandich described police male between a Black or Hispanic described the shooter as dark-complected *19 tall, white six feet a dark athletic with wearing jacket five feet ten inches and testified that the on the back. Detective Paul Coulter letters in a semicircle color due to darker than its actual could have “satiny” appeared shiny jacket the area. conditions in lighting a On lineup. to select from anyone photographic Mandich was unable 1990, a that included defendant from live lineup he selected September correct, unless defendant no doubt that he was six males. Mandich had trial, defendant as the Mandich identified again “had a brother.” At twin perpetrator. unrelated matter on January into for an custody
Defendant was taken a had letters in Raiders which a silver wearing jacket, He was 1991. tall; individuals feet the other on the Defendant stands six semicircle back. shorter. six inches tall or in the Castro were five feet robbery involved Sanchez, from the took an on latent fingerprints, fingerprints Ruben expert fingerprint Police Gilbert a Los Angeles Department Trans Am. Aguilar, and Velasquez. matched of Soriano testified these the samples expert, prints coroner, Golden, a medical examiner performed Dr. Irwin deputy Castro, to the chest. The bullet Jose died from a gunshot who autopsy shoulder, his chest through lung, left through passed entered victim’s with the on the of his chest. The wound was consistent and exited side right fired an assailant by standing scene described Mandich: shot was the driver’s door. outside side
2. The Case Defense on Jason interviewed David Mandich Los Police Officer Angeles Loya males, and one indicated four three Black Mandich night shooting. a Trans Am on all from 17 had surrounded in ranging age Hispanic, male, five feet St. Andrews Place. The shooter was a Black approximately black letters on inches to six feet tall. He dark blue or with jacket ten wore the back.
Los Police Officer Frank Bolán Angeles helped photographic prepare March defend- identify from which Mandich was unable to display ant. Officer Bolán of an on lineup also in the participated staging in-person widow, sister, sister and 1990. Jose Castro’s his the widow’s September them not her son were seated in back row. Officer Bolán warned present, selection, contact his Mandich any anyone making have with else. After had he could not asked if he selected the Officer Bolán stated right person. told he his answer that Mandich the officer question. positive confirmation, again Mandich and Officer Bolán sought selection. again refused. Phase Penalty
B.
1. The Case People’s 11, 1986, on Lionel Fricks was August 14-year-old walking Exposi- On *20 Boulevard, and another male tion a radio. Defendant “semi-big” carrying fallen one of Fricks several times. Once Fricks had to punched ground, males radio. to second guilty the two took Fricks’s Defendant pleaded degree robbery. 10, 1989,
On defendant July to pleaded guilty or a vehicle driving taking without the owner’s consent in violation of Vehicle Code section 10851. 20, 1990,
On at January 11:30 Freddie Garcia approximately was at p.m., a station on La gas Brea Avenue. Defendant and three other males ap- him. proached rose, The males kicked Garcia to the he ground; when Garcia, car, defendant him. Defendant punched warned “Give other- up wise I’m stomach, to shoot going you.” Another male a put gun Garcia’s car, defendant did the although Defendant entered the talking. and drove the other three males Defendant away. pleaded guilty with the robbery allegation a armed was with a firearm. principal 5, 1992, On the evening defendant in a April between participated fight Black and inmates of the North Hispanic Correctional County Even Facility. combatants, after officers had defendant tried to separated provoke Black inmates into further conflict. 22, 1992,
On July defendant was from court to the North transported County Correctional Facility. Sheriff David Mertens searched Deputy defend- ant and a makeshift handcuff in a small key incision inside his found wristband. Mertens tested the Deputy found it key easily a opened pair handcuffs, of Smith and Wesson the kind most used to control commonly inmates back from being transported court. Another later searched deputy defendant’s and found a shank. property bag Rivera,
Rudolfo Navarette’s brother and his on the passenger night of the murder, testified he and Navarette were in their home living family when week, Navarette was murdered. Navarette worked six days returning home until 11:00 p.m., Navarette’s death help support family. was mother, difficult for especially his who was still for her taking pills high blood pressure three after the September nearly years shooting. sister, Maria Jose Castro’s older testified he Mastrocinque, was loving, school, and sensitive. After peaceful Castro finishing high volunteered for Marines, in which he served for two and half used to years. family Now, get week. Castro’s together every mother is “a wound that walking will never heal.” Castro, sister,
Gladys testified Castro youngest always helped there for her and that her mother is “lost” and “not all there.” further Gladys stated that she is afraid to sleep night.
Martha and Jose Castro were school sweethearts who married in high man, 1979. Castro was a very giving who had a close loving relationship *21 and has son, to himself feelings his Joey. Joey keeps their 15-year-old with death, in misbehaving Joey began Castro’s After counseling. attending been behavior, to talk about not want but does his He has since improved school. his mother “what He often asks be like his dad. He to the murder. wants in certain situations. do” Daddy would Case
2. The Defense’s The robbed. Lionel Fricks was defendant when Bradford was with Leland his Lombrero, and grabbed first hit Fricks Juan who the idea of robbery was arrested, the radio defendant had before he was Bradford admitted that radio. for it. were looking because the police and it to Lombrero gave key the handcuff in the fight possessing Besides participating States shank, currency food and United defendant possessed on one occasion other than his (entered a tier jail limits ancl “roamed” in excess of permitted documented extent of defendant’s incidents were the own) on another. These in custody. infractions while Robert Thomasser Parker and Sheriff Sheriff Dennis Deputy
Deputy resumed fighting The two inmates who jail fight. observed the April Rene Munoz and the two were inmates after officers had separated groups nurse, Florentin, treated defendant Rosendo a registered Wood. Christopher his eyebrow. a one-inch laceration on after the Defendant suffered fight. defendant was treated three other inmates that night; Nurse Florentin for his injuries. inmate sent to an outside only hospital Ochoa, sister, and Eduardo defend- defendant’s older Gallegos, Rosalba father, the fourth of childhood. Defendant was ant’s described defendant’s children lived family born to a shoemaker and a homemaker. five bom, three later. to San Diego years when defendant was moved Tijuana later, It Angeles. Street in Los A months moved to family Figueroa few shoemaker; defendant’s to find work as a took defendant’s father six months day. home during as a housecleaner. Neither was mother worked children, the Ochoa pour- children mistreated Some of the neighborhood “wetbacks,” their cutting up them calling on their backs while ing water defendant’s spoke their food. When parents clothes and throwing away threatening report the other children’s they responded parents, kindergar- defendant was in authorities. When Ochoa family immigration Avenue, had no defendant prob- to Welcome where ten the moved family later, to a Black moved family About seven years lems in school. rocks kids threw Some neighborhood near Avenue. neighborhood Arlington *22 and bottles at the Ochoa called but every they door. night Gallegos police came. The burglarized. never home was also When defendant was approxi- old, 16 his sister was beaten. mately years severely school, had but missing Defendant done well in he elementary began and once in Dr. Michael differently high school he was school. dressing a clinical and of Southern Maloney, psychologist professor University Medicine, California School of evaluated defendant and his school reviewed records. In fourth defendant described as even maybe was grade, “capable,” hard,” In defendant sixth was and “bright.” grade, “working performing His after sixth he became “adequately.” grades plummeted grade, when with and he and high involved received D’s F’s in gang activity, junior defendant, school. In the scored in the in grade, 26th eighth percentile and in the Dr. reading By Maloney 27th mathematics. time percentile defendant, an fifth IQ evaluated he of 74. This him in the registered placed of estimate of although was a low percentile society, ranking “probably level, and his Defendant read at an his arithmetic skills ability.” eighth grade those of a fifth student. grade equaled
Lisa Martinez defendant’s from until and she is girlfriend of daughter, the mother defendant’s Claudia. Defendant loved and played Claudia. had studied to become dental techni- with Defendant with Lisa cian. He earned but was to find his unable work in the field. diploma has visit
Defendant maintained close ties with his sister’s children. They him in excited when he prison get telephones. In- Personality
Defendant’s on Minnesota performance Multiphasic did not he was or “There is some ventory indicate schizophrenic psychotic. insecure, he been but dis- grossly has somewhat suggestion always turbed.” The concluded that defendant “knows from right wrong.” doctor Park, officer, former
James correctional consultant and corrections of are testified that life without terms prisoners serving possibility parole facilities, from which sent to maximum “level-four” automatically security has never been an there escape.
II. Discussion Phase
A. Guilt 1. Joinder the Navarette Castro Charges (the and 2 homicide and Defendant moved to sever counts 1 Castro (the trial court homicide). count 3 Navarette The from attempted robbery) denial was erroneous contends the now the motion. Defendant denied law. due a fair trial and process him of deprived v. Ochoa charges. (People consolidation law prefers here, Where, as P.2d Cal.4th 409 [79 class, under section 954. is same joinder proper are of the charged offenses *23 1, 978, 5 P.3d 1030 (2000) Cal.Rptr.2d 68] 23 Cal.4th v. (People [99 Kraft 1229, 1315 (1997) Cal.Rptr.2d 15 Cal.4th (Kraft); People [65 v. Bradford error in the denial 145, can Defendant (Bradford).) predicate P.2d 939 259] at (Kraft, p. a clear showing potential prejudice. the motion on only 1030; the denial of defendant’s 1315.) We review at Bradford, p. “ discretion, is, ‘outside the denial fell that whether for an abuse of motion ” 408, (1992) v. DeSantis (Ochoa, People quoting the bounds of reason.’ p. 628, find the trial We 1226 2 Cal.4th Cal.Rptr.2d [9 motion. the severance exercised its discretion denying court properly trial court decisions on evaluations of We have criteria guide developed “ ‘ of discretion be an abuse motions. “Refusal sever may severance not be cross- to be tried would (1) evidence on the crimes jointly where: trials; (2) likely of the are charges unusually admissible in certain separate defendant; been (3) joined a ‘weak’ case has inflame the jury against case, case, that the a or another ‘weak’ so ‘spillover’ with with ‘strong’ alter the outcome effect of evidence on several aggregate charges might well carries the death charges of some or all of the one of charges; any ’ ” a case.” (Kraft, of them turns the matter into capital or penalty joinder 1030.) 23 Cal.4th at p. to deny but not necessary of evidence is sufficient Cross-admissibility 1316.) test is 15 Cal.4th at As the four-part severance. (Bradford, supra, be even though stated in the conjunctive, joinder may appropriate would be charges one of only evidence is not cross-admissible (1998) 17 Cal.4th v. Musselwhite absent joinder. (People capital (Musselwhite).) Even where P.2d 1244-1246 Cal.Rptr.2d [74 475] is so as evidence long charges, joinder proper People present capital to affect the verdict. that consolidation is unlikely each is so charge strong 92, 130, fn. 11 v. Arias 13 Cal.4th (People [51 259, 277-278 (1988) 45 Cal.3d (Arias); Lucky P.2d 980] cases, of the the strength P.2d As in those (Lucky).) Cal.Rptr. 1052] joined evidence warrants our conclusion that trial court People’s properly the charges.2
Defendant of the homicide tended contends evidence Navarette to inflame the to defendant’s detriment the Castro concerning charges. the Castro would have argues jury charges Defendant trying separately learned about defendant’s involvement. Without our heavy gang expressing assertion, or we doubtful agreement disagreement with this note it is that the on the Navarette so much than inflammatory evidence was more charge the Castro the former charge. evidence supporting charge supporting who, in indicated defendant assisted in shooting the individual their Aguilar minds, earlier, had shot brother three hours and had shot at Aguilar’s contrast, the defendant on several occasions few weeks before. evi By dence the latter showed defendant was the charge instigator supporting of a for motive Jose killing which the Castro perpetrator only punishing *24 for to abandon his find car on defendant’s demand. We defendant refusing has to meet his of the showing failed burden evidence either supporting other. so as to create the charge inflammatory was prejudice regarding We charges also find the case on both to People’s sufficiently strong was 278.) render Defendant Cal.3d at con joinder proper. (Lucky, supra, weak, on tends the case the Castro was the People’s charges emphasizing to the granted alleged unreliability favorable witnesses and the dispositions of Mandich’s identification. to defendant’s we find the Contrary argument, to, than, evidence of Castro homicide to be if not comparable stronger the the evidence of the Navarette homicide. contends the the favorable by
Defendant “Castro evidence” was tainted of received the None the evidence dispositions by inculpating witnesses. the Castro have dubious of defendant on could been the charges product Lozano to favorable treatment. David was allowed plead guilty prosecutorial to of 11 years, and received maximum sentence voluntary manslaughter statement, but his echoed his June which he testimony pretrial this offered to his arrest and case. Oscar Montes pleaded prior disposition to an that he would guilty voluntary agreement manslaughter pursuant Montes’s trial receive no more than four But testi- imprisonment. years’s minimal of value to the his value as a witness derived mony was People; 1, 1990, from his his interview of June which preceded tape-recorded plea. Moreover, due to the two of the witnesses on the disposition accepted count, Soriano, cannot find Walter and Mauricio we the Aguilar Navarette unusually the charge likely not find that was to inflame or that 2 Because we do either “weak,” we determine charges the evidence of either or both of the was need not whether and have cross-admissible. to what the evidence of homicides would been extent two for distinguishing strength to be a basis meaningful dispositions evidence on the two charges. the gang more evidence corroborating
The actually presented People both to the tied charges. members’ with Castro testimony respect their no such through and Soriano to the shooting fingerprints; Velasquez Furthermore, the Navarette David charge. corroboration physical supported shooter, Mandich, witness, as the both in a disinterested identified defendant at a defendant these identi- naturally challenges court and Although lineup. fications, Mandich failed to defendant from observing identify photographs, male, identified the as a Black and described shoot- initially perpetrator black, er’s as Mandich’s was consistent with the jacket being description Montes and Lozano. Mandich described the number correctly statements of shooter, (two, assailants at the left including Castro’s positioning front), front of the car and two at the he described the location where right driver, to the the car was he described how the shooter was talking parked, then, after He running. how all four assailants shooting, began Montes, further identified it was jacket, although, according defendant’s silver with black someone in the the black Raiders else wore lettering; party Mandich described defendant’s in both absolute and jacket. correctly height whole, relative terms. the evidence as a we find the evidence Considering Castro was the denial supporting charges sufficiently strong support the motion.3
Defendant cannot show that evidence either charge supporting *25 (Musselwhite, likely to inflame the or weak. unusually jury impermissibly 1244-1247.) 17 Cal.4th at supra, We find trial court pp. properly exercised its discretion in and defendant received his joining charges, due ato fair trial. process right
2. to the Northwest Judicial District Transfer
Defendant the trial court’s transfer of the case from the challenges Central Judicial District of the Los Court to the Northwest Angeles Superior him his both to Judicial District. He contends transfer denied rights and a from a fair of the We community. chosen cross-section vicinage jury both claims. reject 16, 1992, announced he would transfer
On April Judge Stephen Czuleger the case from the Central Judicial District to the Northwest Judicial District charge convincing. defendant’s supporting 3 The evidence the Navarette was also Both testimony passengers of showed he drove the truck. The of disinter statement those his ested witnesses Rudolfo and Carlos Montes further confirmed driver accelerated Rivera shooting way escape. and maneuvered the truck in a that facilitated the 426 from the jurors moved to impanel prospective 21. Defendant
on April from a a drawn jury represen- District to him with Central Judicial provide to quash Defendant further moved of the community. tative cross-section a exclusion systematic alleging Judicial District jury panel, Northwest jurors. minority evidence, including on the motion to quash demographic
Defendant based of litigation support the administrator of Juanita Blankenship, the testimony Court, demographer and social County Superior services for Los Angeles The court found the motion. The trial court rejected Dennis Willigan. (1989) Cal.3d Court Municipal v. by transfer was authorized Hernandez trial court (Hernandez). rejected Cal.Rptr. 547] [263 exclusion, Duren its on analysis basing defendant’s allegation systematic (Duren). 58 L.Ed.2d U.S. 357 S.Ct. 579] Missouri [99 the motion. court denied The trial properly observed, intracounty authorizes
As the trial court correctly Hernandez Hernandez, are boundaries of vicinage held the of cases. In we transfer Cal.3d (Hernandez, the boundaries of the county. coterminous with of the “there is no violation decided 729.) Accordingly, p. Hernandez in Los Angeles defendant is tried a criminal when vicinage requirement 722), and we (id. at Los Angeles County” a drawn from County jury Furthermore, as that conclusion. to reconsider decline defendant’s request 1046, 1065 (2001) 25 Cal.4th Court Superior held in Price v. recently we 409], vicinage Amendment right the Sixth states, thus the Amendment against the Fourteenth incorporated by constitutional right. no federal transfer implicates to establish defendant failed also concluded The trial court properly cross-section from a fair of his to a drawn right facie violation prima “ facie violation order to establish ‘In community. prima of the (1) that the must show the defendant fair cross-section requirement, community; in the is a “distinctive” group to be excluded alleged group *26 are selected from which juries this in venires group the of that representation in the of such persons relation to the number and reasonable in is not fair exclu due to systematic is (3) that this underrepresentation community; ” (1992) Howard v. (People in the jury-selection process.’ of the sion group Duren, 268, 1315], 1132, P.2d quoting 824 Cal.Rptr.2d 1 Cal.4th 1159 [5 The trial court 668].) S.Ct. at at 364 p. 439 U.S. p. supra, [99 of this test. determined the first prong defendant satisfied only v. (People group. are a cognizable that Hispanics We have recognized 892, 1133, P.2d 938 1154 Cal.Rptr.2d 950] Cal.4th (1997) 15 [64 Ramos
427
471,
537,
(Ramos);
(1990)
v. Sanders
51 Cal.3d
491
Cal.Rptr.
[273
(Sanders).)
Whether defendant satisfies the prong 13 of the of jury-eligible population revealed although percent presented of 7.7 the dis- only the Northwest Judicial District Hispanic, percent in trict’s This resulted an jury May Hispanic. June 1992 was pool of “absolute of 5.3 and a “comparative ap- disparity” percent, disparity” United Court Neither we nor the States percent.4 Supreme 40.8 proximately decided test of the cross-section has which better measures violations alleged (Ramos, or is 15 right what of Cal.4th degree impermissible. supra, disparity here, 1155.) need either defendant We not decide because p. question failed to third clearly satisfy prong. Duren's the third defendant to show the state selected requires jury prong pool
ain manner that was the cause of constitutionally impermissible probable 502, 1, the 524 (People Bell 49 Cal.3d 778 disparity. Cal.Rptr. (Bell).) P.2d The evidence Los Angeles below showed presented 129] had relied on voter lists its County formerly to registration compile and added Motor records of Vehicles in the 1980’s pools, Department early to a more list. provide We have observed that Code of Civil representational Procedure section 197 that a list derived from voter and driver prescribes “ records be ‘shall considered inclusive of a cross-section of representative (Sanders, where it population’” is 51 properly supra, nonduplicative. 9.) Cal.3d at fn. p.
Defendant now contends the county’s failure these two lists supplement other with available lists” “readily demonstrates exclusion systematic required Duren. This claim fails United by because the States Constitution “forbids the exclusion members of a class of but it cognizable does jurors, that venires aby created neutral selection be require procedure supple mented to achieve the of selection from a cross-section goal representative (Bell, 530.) 49 Cal.3d at As the United population.” States Fourth Circuit Court of has failure of Appeals explained, particular to vote in of the group register its share cannot proportion population constitute (United exclusion attributable state. to the States v. Cecil improper (4th 1988) Cir. F.2d 1448-1449.) as the state uses criteria long So 4 Courts disparity” by subtracting proportion calculate “absolute the underrepre pool B) group (figure sented in the the underrepresented group’s proportion from of the A). (People (figure v. Breaux population Cal.4th fn. 3 [3 case, P.2d subtracting percent percent yields percent. In this 7.7 from 13 5.3 Courts by figure comparative disparity dividing disparity by calculate A absolute case, (Ibid.) multiplying dividing percent by percent yields the result 100. this 5.3 In *27 produces comparative disparity which a percent. of 40.77 a
that neutral to the defendant respect are with underrepresented group, have by showing cannot Duren’s third the state could satisfy adopted prong other measures to further the group’s (People improve representation. 235-237 Cal.App.4th Currie (Bell, at state action be the cause of the probable must challenged disparity 524); to to a only inability remedy. defendant has the state’s pointed provide more, Los County defendant’s claim the challenging Angeles Without must fail. Northwest Judicial District jury pool Questions 3. Dire Challenges Voir Cause for the offered prosecutor misleading Defendant contends descriptions dire, for of the on which led to the erroneous of jurors case voir exclusion these to call into jurors cause. He contends offered responses appeared the their an mind as to because only question ability keep open penalty a of the case as for being relatively benign characterized the facts prosecutor characterization, The result of defendant case. this capital allegedly improper the a death under circum argues, was jury predisposed impose particular excusáis were stances of this case. We conclude both the questioning proper. W.,
a) Patrice and Alicia B. Prospective Jurors Gertrude V. the defense commenced After the court asked the some panel questions, its like Adolf Hitler only voir dire some believe individuals by noting people deserve trial court sustained the or Dahmer death. The prosecutor’s Jeffrey she could asking to defense counsel’s whether objection prospective juror used execute Hitler or Dahmer. The her voir dire vote to prosecutor liability without explain, objection, concepts accomplice asked, Juror con- doctrine. When Gertrude W. Prospective felony-murder case, one, the instant firmed would not the death in a like impose she penalty murders, of the and did where the defendant did not commit one personally court, “I think I would or the other. She told don’t plan premeditate Gertrude W. death.” The court excused Juror voting consider for Prospective for cause. dire, trial remarked the
At of the first voir court the conclusion panel’s with this Neither disagreed first went very smoothly. party questioning to future the court warned defense characterization. With respect panels, the death for individuals such not to ask whether would favor jurors penalty Manson, to the but instead to limit its inquiry as Dahmer or Charles Jeffrey not to The court likewise cautioned facts of the instant case. prosecutor for an uninten- if could death penalty ask jurors they impose prospective second, murder, charged. intentional murder tional since there was felony *28 Thereafter, V., the court questioned Juror Patrice noted Prospective who on her her questionnaire belief that “the death was state sanctioned penalty murder.” She stated that would be difficult” for her to very sentence “[i]t someone to death. She she could set thought aside her if personal feelings she received clear instructions “very about what my obligation was.” Pro- Juror Alicia B. spective stated she did not with the death “fully agree The penalty.” described prosecutor the general principles accomplice liability felony murder. She asked whether prospective jurors could they if, murders, return a death verdict in one of the charged defendant did not victim, and, other, shoot personally in the defendant neither nor planned premeditated murder. Juror
Upon inquiry, Prospective Patrice V. confirmed she considered the death “state penalty sanctioned murder.” Patrice V. she agreed “would consider the death in this penalty case.” type Juror Alicia B. Prospective confirmed she did not really agree with the death She did not feel penalty. she would consider death aas as this possible penalty, was not “the right kind of case” for The capital punishment. court later followed up prosecutor’s questions by whether Alicia B. asking would consider voting for death if she heard about defendant’s violent misconduct prior during answered, penalty phase. Juror B. Prospective “This is That my this position. case is not the case for death no matter penalty,” what evidence the [the] People presented during The trial penalty phase. court excused both Jurors Alicia Prospective B. and Patrice V. for cause. recess,
After a brief the defense its expressed concern that the court precluded defense about questions in the capital punishment Dahmer or cases, Manson yet allowed the to use a prosecutor “misleading nonegregious hypothetical when those same questioning The jurors.” court reiterated its ban on the defense’s Hitler/Dahmer/Manson and noted the inquiries, pros- ecutor had offered her hypotheticals without timely objection. court found it “fair for the prosecutor to out point murder be felony] may [that accidental, nonintentional or it may be intentional as well.” For future questioning, court granted defense some “rebuttal” voir dire after the had prosecutor finished. The defense announced its intention to ensure the hypotheticals accurately described the evidence in the case.
Because there had been no objection, the court refused to revisit of the any excusáis the court had belief, however, allowed. The already court stated its that “almost all of jurors excluded on the People’s [the were what motion] we would call Witherspoon Illinois U.S. 510 [v. S.Ct. Most, all, L.Ed.2d excludables. if not were those 776]] that were ada- mantly and would not opposed death circum- impose penalty any [the under] stances.” *29 H., C.,
b) Linda Martha Arthur R. and J. Lynn Jurors Prospective announced, the trial Juror Linda H. During court’s inquiry, Prospective however, “I’m the death She she could set aside her agreed, against penalty.” in a After the and serving aiding as personal juror. describing opinion doctrines, asked about Linda abetting felony-murder and H.’s prosecutor death, a to comment that sentences someone it’s questionnaire “when H. the death murder.” Ms. confirmed her “I’m opposition, stating, against She she could not vote death “in case.” The any stated for penalty always.” court excused her for cause. of a asked the trial court’s later court
During inquiry panel, Prospec- that, choice, C. her tive Juror Martha about comment questionnaire given for she would vote life without of always imprisonment possibility parole. circumstances not set of any She answered she did think she could envision to Ms. also that would her vote for death. C. confirmed her ques- prompt death, she feel tionnaire remark that if she sentenced someone would did for the rest of her life. She later told she not think guilty prosecutor she could of death of the evidence in this “regardless sentence impose case.” liability,
After and hearing aiding abetting prosecutor’s description Juror Arthur R. he have a difficult time volunteered would Prospective murder, do an and and he could so guilty degree aider abettor first finding clear that the connected.” Mr. R. really where it was only “pretty person death, he of the admitted was sure whether he could vote for “regardless stated, in to not evidence this case.” He “I rather feel that I would be inclined he could for death When asked further whether vote [impose sentence].” “if it he would “not able to you thought death felt was he appropriate,” [be] follow through.” J. he it be best to limit Juror volunteered
Prospective Lynn thought might deliberate murders. When later punishment premeditated capital that the death Mr. J. confirmed his statement questioned, questionnaire murder, unusual torture or cruelty, should be limited cases mass penalty if could nevertheless vote for death murder while in When asked he prison. factors, case, he affirma- did such answered the instant which not involve he death as a whether could consider When the asked tively. prosecutor case,” sus- know this the trial court “what about considering you penalty “if he for death it Mr. J. could vote tained defendant’s averred objection. level of crime.” Upon torture or some that’s at activity highest involves of an Mr. that neither murder in commission agreed further J. inquiry, met his standards for abetting murder by aiding nor robbery attempted death. he did not believe he could consider for Accordingly, voting imposing C., trial death in this case. The court excused Jurors Martha Prospective Arthur R. J. for cause. Lynn
c) Analysis Trial courts excuse for cause a whose views on juror punish capital “ ‘ ”’ ment or of the substantially would “prevent impair” performance *30 719, 2222, (1992) duties. Illinois 504 U.S. 728 juror’s (Morgan v. S.Ct. [112 2229, 412, 424 492]; (1985) L.Ed.2d Witt U.S. Wainwright 119 v. 469 [105 852, 844, S.Ct. 83 L.Ed.2d Cal.4th at (Wainwright); Bradford, supra, 15 841] ‘“ 1318.) The real is “whether the views p. about question juror’s capital would or to verdict ability the return a of punishment prevent impair juror’s ’ ” 1318-1319, death in the the juror.” case at (Bradford, pp. quoting before 959, (1992) 475, Hill People v. 3 Cal.4th 1003 P.2d 839 Cal.Rptr.2d [13 984].) A is to exclusion for cause if she “would vote juror subject invariably either for or death against the because of one or more penalty circumstances tried, to be case likely present without to the being regard strength aggravating circumstances . . . .” mitigating (People Kirkpatrick v. 988,
(1994) 818, 7 Cal.4th 1005 (Kirk 874 P.2d Cal.Rptr.2d [30 248] patrick))
To facilitate the intelligent exercise of both challenges peremptory cause, for those inform of the parties may prospective jurors general 48, facts of the case. v. Ervin 22 (People Cal.4th 70 Cal.Rptr.2d [91 623, (Ervin); 990 P.2d at Kirkpatrick, 1004-1005.) 7 Cal.4th pp. 506] A therefore a will be prosecutor may whether able to inquire juror impose the death penalty on a defendant commits murder felony (People who v. 865, Pinholster 1 Cal.4th 824 P.2d Cal.Rptr.2d 916-918 [4 571]), or a (Ervin, on defendant who did not at kill victim. personally pp. 70-71.) The trial court exercised its broad discretion in properly allowing (Pinholster, 918.) voir dire. extent a prosecutor’s To the more accurate characterization of the case was had the defendant to possible, opportunity it. The trial provide court found defendant had chal correctly any waived to the lenge prosecutor’s to offer questioning failing timely objection. Medina (1995) v. 11 Cal.4th P.2d (People [47 (Medina).) Even after the court’s about need receiving advice for 2] defendant failed to that timely objection, object ensure the prosecutor offered a more accurate case. Where defendant offered a description Furthermore, the trial court sustained it. court proper objection, trial indicated it would dismiss for cause a who expressly prospective juror death on a of the based her stated inability description impose penalty court case deemed misleading.5 and the excusáis. If a juror’s responses
We both the uphold questioning the juror’s are or the trial court’s determination of conflicting, equivocal (1991) 53 fitness to is Cal.3d binding. (People Cooper serve If no we the. there is inconsistency, uphold Cal.Rptr. (Ibid.) if it evidence. In determination below is substantial supported by words, no a rational other if the record discloses evidence from which only could to serve will we find error. juror trier fact find qualified her unambiguous opposi- Juror Linda H.’s comments revealed Prospective trial tion to the death and the court excused her. Substantial penalty, properly of the other To the extent evidence likewise the exclusion supports jurors. inferences, defer the trial their could we responses support multiple (Ibid.) of their unfitness to serve. court’s determination Penalty 4. Death Challenges Against Skeptics Peremptory *31 error in Defendant contends the committed reversible prosecutor four who ex exercising against jurors challenges prospective peremptory they about even were punishment, though quali pressed skepticism capital Illinois, U.S. 510 to in accordance v. 391 Witherspoon fied serve with did to object 469 412. Defendant not these U.S. Wainwright, supra, (People failed to the issue for v. appeal. and thus challenges, preserve 547, 879, P.2d (1995) Cal.4th 907 891 Champion Cal.Rptr.2d 9 93] [39 (Champion).)
Furthermore, be were We have challenges proper. distinguished these of on their mem based practice excluding jurors tween impermissible excluding in a racial or ethnic and the permissible practice bership group (1984) or Turner 37 (People based on their attitudes jurors viewpoints. 196, 669], 302, P.2d overruled on Cal.3d 313-315 690 Cal.Rptr. [208 1104, (1987) 1115 43 Cal.3d ground another v. Anderson People [240 585, both exercise may peremp Because parties Cal.Rptr. attitudes, the does practice to remove with unfavorable jurors tory challenges 315.) (Turner, at We therefore toward death. p. biased produce K., “Knowing you what know now about Prospective asked Juror Doris prosecutor 5 The deliberation, necessarily especially involve with premeditation this case ... it doesn’t today you robbery say you be that as sit here to the murder. . . . it fair to respect [W]ould ft[] objected. The yourself actually imposing a sentence of death?” Defendant court don’t see The alleged premeditated. murder was court the Navarette prosecutor reminded the any aggravating Although to evidence. any prosecutor further found the had omitted reference dire, court thrice stated it would not prosecutor’s voir the court declined restrict cause this record. Doris K. for on Prospective dismiss Juror
433 to exercise permit prosecutors peremptory challenges against prospective who jurors about v. Bolin express skepticism capital (People punishment. (1998) (Bolin); 18 Cal.4th 317 P.2d [75 374] 907.) Cal.4th at Champion, supra,
5. Absence Sidebar Defendant’s from Conferences
The trial court who had marked inquired jurors on prospective their juror questionnaires “confidential” Two of regarding specific questions. H., these jurors, F. and Cecil Raymond eventually served on the jury. and both counsel were at these sidebar prosecutor conversations. present Defendant neither asked to nor to his absence. He now participate objected trial, contends his absence him of his be deprived at which is right present Fifth, Sixth and protected Fourteenth Amendments to the United Constitution, I, Constitution, States article section of15 the California Penal Code sections 977 and and common law.
a) Constitutional law
A criminal defendant’s federal right constitutional to be present trial, Amendment, rooted largely in the confrontation clause of Sixth also enjoys due protection through the clause the Fifth and Fourteenth process (United Amendments States v. Gagnon (1985) 470 U.S. S.Ct. “ 1482, 1484, 84 L.Ed.2d (Gagnon)) ‘whenever his 486] has presence relation, substantial, reasonably to the of his fulness defend opportunity ” “ useless, against but not ‘when charge,’ would be or presence ” benefit abut (Kentucky shadow.’ v. Stincer 482 U.S. 745 [107 2658, 2667, 631], S.Ct. 96 L.Ed.2d v. Massachusetts quoting Snyder *32 97, 330, 332-333, 674, 291 U.S. 575].) 105-107 S.Ct. 78 L.Ed. 90 A.L.R. [54 I, Article section 15 the California Constitution the same standard. applies 690, 396, v. (People (2000) Waidla 22 Cal.4th 742 Cal.Rptr.2d [94 (Waidla).) 46]
Defendant has not indicated his any which at the way presence sidebar bore a conferences substantial relation to reasonably his opportunity to defend He himself. admits the impossibility knowing what sudden and impressions unaccountable he prejudices might have formed. Because
there must be a substantial relation” to “reasonably defendant’s to ability himself, benefit, defend and not a mere “shadow” we must claims reject such (Waidla, 742; based on undue 22 Cal.4th at speculation. supra, People 1, (1993) v. Johnson 6 Cal.4th 19 P.2d 859 [23 673] (Johnson).) Johnson,
In the trial court held a sidebar conference trial during determine whether juror a should have been dismissed. Evidence showed
434 “ defendant, ‘to the extent (1) had at ‘consistently nodded smiled’ juror before (2) defendant showing’ greeted teeth frequently [his] [were] breaks; (3) (4) concealed a arrest for narcotics prior possession; lunch (Johnson, failed to attention or slept during proceedings. apparently pay 16-17.) camera neither the hearing, 6 at After the in which Cal.4th supra, pp. attended, for the juror nor defense counsel the court excused prosecutor Johnson, case, unlike the instant some of latter two reasons. In questions concerned at from the defendant was absent raised the conversation which and would have in which he was involved activity personal, personally he We Johnson’s that was rejected allegation exclusive possibly knowledge.6 to the (even hearing Johnson both on though objected excluded improperly because we deemed his claim fitness and to be juror’s requested present) to show his that he have his counsel” too “might helped speculative presence to defend a substantial relation his ability against bore reasonably fortiori, must defendant’s (Johnson, 18-19.) at A we charges. reject pp. instant contention.
b) law Statutory statutory contends his absence him of his Defendant further deprived Consti- We have observed that both the United States rights. common law on do the common law this tution and the California Penal Code not follow Cal.Rptr. 45 Cal.3d (People Grant subject. [248 concerned, we have recognized Insofar as the is statutory right P.2d Ervin, In Cal.4th at page its relation to constitutional right. supra, relation to defend- stated that where the bears no reasonable we proceeding and 1043 do not sections 977 charges, ant’s defend ability against Waidla, In 22 Cal.4th we page defendant’s presence. require do to be sections not entitle defendant where present stated those find the standard has not been met. we constitutional Although constitutional here, the issue to our place prior standard has been met we analyze in their context. statements proper the need long recognized hierarchy concerning
We have proceedings Cal.3d 264 In v. Jackson for the defendant’s presence. *33 part on the past conferences here concerned criminal behavior 6 Theconfidential sidebar relative, relatives, of a the criminal jurors, their friends or the victimization prospective the service, Anony participation in Overeaters possible professional hardship imposed by jury follower, mous, leader or regarding prospective juror a was a psychological issues whether case, and about Rodney religious concerning capital punishment, concern King questions the juror security. posttrial prospective The one confidentiality jurors of identities of and their the indicating jurors suggested his failure to look at his personally, on defendant who commented motion, at the its which was defendant’s guilt, by cause the court on own was excused for “request.”
435 603, 149], section that a we cited 977’s Cal.Rptr. provisions could certain defendant not waive for fundamental presence proceedings the of evidence the trier of (arraignment, taking plea, hearing, preliminary “ fact, and other but could waive for ‘all presence proceed sentencing), ” (Jackson, 309.) a at We further observed third unlike the ings.’ category; p. “ ” two and ‘all first fundamental other’ for categories, proceedings, a entitled “the which defendant was to be we noted accused is not present, entitled to be either in chambers or at bench discussions personally present occur of the which outside on law or other jury’s presence questions ‘ matters in which not bear a defendant’s does substan presence “reasonably relation tial to the fullness of his to defend opportunity against ’ ” (Ibid.) charge.” 619, We reiterated v. 15 categories People these Holt Cal.4th 782, (Holt). 706 P.2d that 937 We recalled section [63 977 213] a defendant to be at the five fundamental and requires present proceedings added, however, him entitles to be at all We “that others. neither present nor the constitutional to be trial at extends to right present [section 977] chambers or bench discussions outside the of the when those presence jury matters do not bear a reasonably substantial relation to the to opportunity (Holt, 706.) defend.” at We evaluated sidebar and p. in-chambers discus Holt, concluded, at sions issue in his “Since at presence proceed [those] interests, was not ings necessary his assure him a fair protect trial, case, or assist counsel in impartial defending there was no error” in Holt excluding (Id. from at proceedings. 706-707.) pp.
Holt and Jackson illuminate our statements in Ervin Waidla. In sidebar, that are not in proceedings chambers or a is defendant entitled (but (Ervin, be required) 74.)7 22 Cal.4th at present. supra, On the p. hand, other for those proceedings are of section beyond scope defendants do not have a to be right present unless constitutional (Waidla, 742.) standard has been met. 22 Cal.4th at supra, p.
There are sound a policy reasons defendant has a lesser public why interest in (Cf. personal when the is also not presence present.
Hovey (1988) 44 776].) Cal.3d P.2d When Cal.Rptr. [244 court, seeks confidential prospective juror exchange with the allowing the defendant to be present “could well undermine the confidence and (Ibid.) necessary. In one concern about cooperation” light juror’s posttrial be safety, defendant to would have been allowing present “counterproductive” (Ga 1485]); 470 U.S. at gnon, S.Ct. at p. juror [105 course, presence relationship ability 7 Of if the bear a defendant’s does not reasonable to his defend, (People v. Medina may an erroneous exclusion well be harmless. 51 Cal.3d 902-903 P.2d Cal.Rptr. *34 concerns, declined the allowed to share his remained on jury, have may Instead, him defendant the his to incline toward finding guilty. concerns that his concerns made him acknowledged security “partial juror candidly We the dismissed from service. therefore towards was prosecution,” decline to extend the to to statutory right personal presence follow Holt and such confidential proceedings. to
6. The Motion Suppress the of Janu morning interviewed defendant on Detective Coulter his Detective Bercham had advised defendant of Miranda after ary (Miranda U.S. 436 S.Ct. 16 L.Ed.2d rights. Arizona defendant to be a Detective Coulter considered A.L.R.3d but a in either the Navarette or Castro murders. witness not suspect possible him the Later Coulter asked defendant to show evening, that Detective of in a different case. The detective did not remind residence a suspect their conver of his Miranda The detective rights. taped evening defendant sation, the Street which disclosed evidence warfare between 18th gang Riders, not regarding and the but did establish Gang Crazy anything car shooting or murders. When asked if the white Navarette Castro (Navarette) was in retaliation for a Crazy with license No. “2MTY” plate answered, “I that could have defendant know they probably Riders shooting, them, I it.” but have heard about nothing confused statement as unlawful evening Defendant moved suppress a that Miranda interrogation by custodial was preceded product the detective was aware of the already advisement. Defendant contended Riders and of between the 18th Street and the rivalry Gang Crazy gang denied with the Street The trial court Gang. defendant’s involvement 18th that Coulter considered defendant It held Detective motion suppress. murders, and the be on the Navarette and Castro witness only possible Miranda The court interview not a custodial for interrogation purposes. was defendant of his found the advisement informed morning adequately further no readvisement was necessary. constitutional rights factual findings, We deference to the trial court’s upholding accord determine all are substantial evidence. We independently supported statement obtained. unlawfully from the whether challenged facts 25.) Substantial evidence (Johnson, supports 6 Cal.4th at an for interrogation that the interview was not evening the conclusion above, the interview did not Other than the cited question Miranda purposes. Detective Coulter questioned Navarette murders. concern Castro or defendant, else besides has you “Who asking defendant about other suspects,
437 driving the license white that had been Toyota [Crazy number of this Riders] . ?” to elicit an reasonably . . We find interview was not evening likely 610, (1993) v. Cal.4th 637 Wader 5 incriminating response. (People [20 788, .)8 854 Cal.Rptr.2d P.2d 80]
Furthermore, was harmless a reasonable doubt. any (People error beyond 478, 582, (1993) v. 5 853 P.2d Cahill Cal.4th 510 Cal.Rptr.2d [20 The had on the statement minimal value to the case Navarette count People’s counts, no on the value Castro whereas the offered People compelling short, for conviction their a cases with other evidence. In we find beyond reasonable doubt that of the the exclusion statement would not challenged affected the have outcome trial.
7. “187” Tattoo Defendant’s
Detective Bercham testified about defendant’s tattoos. He ex the extent of defendant’s 18th plained Street tattoos his Gang signified “hard-core” member The status. detective further testified defendant had on “187,” his forehead a tattoo of number the California Penal section Code murder, had been proscribing which added after the homicides charged occurred. After an Evidence Code section 402 the trial court hearing, overruled defendant’s that evidence of the objections unduly tattoo was within the of prejudicial Evidence Code section and that meaning 352 Detective Bercham not to offer an qualified about expert opinion tattoo’s significance. The trial court found the “187” tattoo highly probative, as it could be viewed anas admission of court guilt. defendant’s The found it tattoo, that an highly unlikely innocent obtain such person would a ruled the could conclude defendant the tattoo displayed as badge honor. Defendant reiterates his objection on appeal.9
Trial courts exercise discretion in both the determining admissibil ity evidence under Evidence Code section 352 v. 18 (People Kipp 349, Cal.4th 1169]) P.2d and witness’s Cal.Rptr.2d [75 (Bolin, 321-322). status 18 Cal.4th at expert pp. exercise of “ discretion is not for grounds reversal unless ‘the court its exercised discre tion in an or arbitrary, absurd manner that resulted in a capricious patently 8 Because we find defendant’s an interrogation, conversation was not and thus no advise necessary, morning ment was we not need evaluate trial court’s determination advisement sufficed. grounds 9 Defendant now raises numerous state and federal constitutional for error. The Attorney grounds General were preserved appeal. analysis contends these not for As our alleged evidentiary generally depend error does not on whether defense attaches the (see Cudjo violation to the federal Constitution v. 6 Cal.4th 611-612 [25 635]), Cal.Rptr.2d we need determine whether defendant preserved these grounds. ” (1994) 8 Cal.4th miscarriage (People Rodrigues
manifest of justice.’ P.2d (Rodrigues), 1124-1125 quoting 1] *36 P.2d (1986) 42 316 721 Cal.Rptr. v. Jordan Cal.3d People [228 exercised its discretion both We find the trial court properly Bercham to tattoo and in Detective in the into evidence admitting permitting significance. the tattoo’s testimony describing provide expert tattoo an admission of The trial court found the represented properly The guilt. of his consciousness of defendant’s conduct and manifestation as it would be court considered the tattoo reasonably highly probative, so advertise his connection to that an innocent would unlikely person he could have contends the admission was as ambiguous, murder. Defendant his to the 18th Street Seventh Street Gang’s been connection highlighting evidence, the this not its weight Such concerns of argument only subgroup. Kraft, supra, In unambiguity. which does admissibility, require complete 1032-1036, of a coded list Cal.4th at we the admission pages approved the defendant. referred to a series of homicides committed by that arguably in claim that the evidence was unduly speculative We the defense rejected 1035.) at (Id. be understood a reader.” by that it to interpretation “required harmless, in the list as the would further found error any admitting We it of as guilt to the list unless found it was an admission not accord weight us (Ibid.) in leads to analysis reject the Our argued by People. Kraft the admission of his objection Evidence Code section 352 to defendant’s “187” tattoo. exercised its discretion in per-
We likewise find the trial court properly as an defendant’s testify concerning Detective Bercham to mitting expert tattoos, Code author- the “187” mark. Evidence including gang-related skill, “if he as an has expert special knowledge, izes witness testify as an expert, or education sufficient” to training, qualify experience, “[Re- that the is common subject sufficiently beyond experience lated to a Code, (Evid. . trier of fact.” . . assist the §§ would [expert] opinion on when he attended 801.) testified he received training gangs The detective He awareness school. gang and has since attended academy, the police of he and all seven years past further testified that for most of the past commit. they street crimes gangs has investigated section that the California Penal Code The detective noted “187” was of the culture and habits criminal murder. We have observed proscribed for Code common Evidence knowledge are not matters within gangs street (1996) 14 Cal.4th Gardeley (People section 801 purposes testi 713]), expert and have therefore approved (Cham hand signs. of graffiti describe the significance gang mony 919-924.) as the witness Cham Just expert 9 Cal.4th pp. pion, symbols graffiti as significance specific could testify pion author, intent of the Detective without ascertaining subjective graffiti’s Bercham could as to the “187” tattoo without testify significance Furthermore, defendant’s statement on the obtaining subject. considering admissible, case, tattoo itself was and the of the overall we strength People’s conclude error in the detective’s any admitting expert opinion surely harmless.
8. Prior Bad Acts Defendant’s
Defendant the trial contends court committed reversible error to inform the of defend informing jury, jury, permitting *37 acts; ant’s bad and Detective Bercham to by allowing prior imply defendant had served time in Defendant contends these errors de prison. him of a of constitutional the to a prived myriad rights, including right fair trial. The record belies these claims. fundamentally The trial court and the examined several on voir jurors People prospective dire to determine whether could a death sentence. The court they impose to ascertain the sought minds would remain prospective jurors’ open whether until the when both the and the could intro- penalty defense phase, duce evidence about defendant’s background. the court asked Accordingly, jurors whether would consider such information. Defendant prospective they cites, instance, for the examination: “Would take into account following you the background information in or not the determining whether punishment be, hand, was The appropriate background information on the one may [?] [ft bad about the defendant. act things Say conviction or of prior prior that, violence, hand, like On the other it be something might something [ft done, favorable. Good deeds he’s he’s he can do people things helped, others, the within that be prison system might beneficial to Would be you [ft to consider that willing and it whatever give weight was you thought The court later “So if heard appropriate?” evidence of two inquired: you murders—I’m not of this is to but if saying any there was going happen, evidence of two murders and the had all kinds of bad evidence prosecutor defendant, about the conclude this is a are you guy rotten we apple him, better off without couldn’t vote for death under circum- you any “No,” stances?” When the the court reiterated the juror responded, hypo- thetical nature of the “I don’t the want the idea. inquiry: jurors get wrong I have no idea what evidence would be in the I’m presented penalty phase. these out just throwing for of the things purposes question.” The court carefully and the court explained inquiry hypothetical, had no knowledge misconduct on any specific defendant’s We part. therefore defendant’s contention that reject this and similar inquiries preju- informed the dicially defendant had committed bad acts. jury prior Defendant’s reversible error to Detective Bercham’s testi- assignment is meritless. asked the detective to prosecutor likewise When mony defendant’s, tattoo it describe Detective Bercham noted was particular common often obtained it while in After the defense very people prison. ruled, don’t that. You don’t have just court we objected, “Why clarify [H] reason to believe that was done in Detective Bercham prison?” agreed, any “No, court I don’t know where this was done.” The trial restricted properly had time in the detective from defendant served state No implying prison. error occurred.
9. Continuance
In not to court any have July requested prosecutor 17-21, 1992, the week of because she during August apparently proceedings had a start Although prosecutor delay vacation. planned preferred of trial until the trial court ruled that a would delay impede August court’s retention of The court instead on begin August jurors. preferred middle a break in the of an three-week trial. allowing expected The defense did not to this schedule. object
Defendant now contends this break of five court and nine total days, numerous In Johnson violated constitutional v. days,10 provisions.11 People case,12 703], (1993) 778 another the 19 Cal.App.4th capital [23 recess, to a for nine court and 17 calendar agreed days parties give jury (Id. 792.) The of for December season. at Court days, holiday Appeal, p. 76, 697], (1977) v. Harris 73 83 following Cal.Rptr. People Cal.App.3d [140 held the failure to waived the issue on v. (People defense’s object appeal. Johnson, 794.) at Defendant’s failure to supra, object 19 Cal.App.4th p. likewise the instant claim. waives (1991)
Defendant cites v. 229 269 Santamaria Cal.App.3d [280 “the (Santamaría), which includes footnote court’s indicating Cal.Rptr. 43] abuse discretion here was of such that whether or magnitude appellant of (Id. 7.) is at fn. The Santamaría opinion, irrelevant.” objected p. however, On did to to its abrogate duty object generally. not purport give Friday, August preparation the defense additional adjourned
10 Thecourt
on
time.
Sixth,
Fifth,
Eighth
alleges
of the
and Fourteenth
11 Specifically, defendant
violations
1, 7,
Constitution,
I,
article
States
of
sections
Amendments
the United
violations
the exception
of
Constitution.
of Hicks v. Oklahoma
and 17
the California
With
175],
support
in
“an additional
65
which he cites
Defendant also relies on People Engleman 116 Cal.App.3d Supp. 14, 20 Cal.Rptr. Although does not opinion fully 474]. record the facts, it procedural weeks, indicates the court shut down for three rather than one. The trial court Engleman also ignored section 1053. Accordingly, Engleman is likewise We inapposite. therefore conclude the defense’s acqui- escence in the continuance has waived this issue on appeal. (People v. Johnson, supra, 792-794.) Cal.App.4th pp.
10. The Prosecutor’s Closing Argument *39 Defendant three instances alleges of prosecutorial misconduct during closing argument, which he Fifth, contends violated his rights under the Sixth, Eighth Fourteenth Amendments to the federal Constitution. We all three reject allegations.
a) Thejacket
Defendant first to the objects following statement: that know “[W]e the defendant was a Raider’s on wearing jacket RQ22. January Whether Mr. Montes believed it was a white or silver it jacket jacket, doesn’t really Mandich, matter. We also know that according David that the [¶] defend ant or the shooter was some kind wearing of team jacket. Whether it was a silver matters, a dark blue or black think jacket, I don’t jacket jacket, really because we don’t know beyond doubt what any really color this jacket like
contained in 16 looked to David Mandich the the murder People’s night And we know the don’t whether defendant was happened. really wearing [^] the of murder. night 16 the the We know that two jacket People’s just [^] he . . .” trial later was . court overruled defendant’s nights wearing the moved to different objection, prosecutor subject. contends the facts to knowingly
Defendant falsified prosecutor protect deems the what defendant the Achilles’ heel of case—David Mandich’s of defendant. Oscar Montes testified that identification defendant wore white or Raiders both on the of the Castro murder and the night silver jacket he arrested. Mandich told Coulter the shooter day was Detective initially awore dark athletic with on the back. to defend- jacket lettering According ant, the color Mandich’s incorrect of of the threatened description jacket case. The therefore undermine defendant People’s prosecutor, argues, arrested, the time stating mischaracterized when defendant was it was two than after the on rather the afternoon of nights shooting, January January mischaracterization, asserts, 21. This defendant weakened the that inference Mandich the shooter. had misidentified First,
This fails for several of the reasons. obvious allegation import statement was that Mandich’s correct observation that the prosecutor’s more jacket shooter wore a team with was than his error lettering significant color, its Detective Coulter’s regarding especially considering testimony darker on the satin-lilce could have looked jacket night shooting. Second, characterized date of defendant’s arrest prosecutor whether as 21 or 22 had little on the accuracy Mandich’s January bearing identification. If defendant had access to one Raiders Mandich’s only jacket, no more if date of were accurate the arrest description January 21. defendant had a second he could jacket, instead of If Raiders January it 21 as he could it January January have as on have worn on just easily worn Furthermore, there 22. is no reasonable that defendant would probability more this (People have received a favorable result absent isolated comment. (1993) Cal.4th Stansbury 756] (Stansbury).)
b) placement gun Defendant’s *40 remark, reason also the “There was no prosecutor’s Defendant challenges and the head Castro for that go for that to come back out to of Mr. and gun fired, killer to be other than the fact that the defendant is a cold-blooded gun wanted, it, a he wanted he gun who didn’t what when he when get put a car that he to take.” Defendant failed head of a man seated in wanted for Cal.4th this claim v. Hart 20 (People object preserve appeal. claim also (Hart).) Defendant’s P.2d 683] 619 [85 (1) defendant that argument on its merits. The record supports founders head, The (2) he fired the gun. prosecutor to Castro’s gun placed mis- any those facts. Finally, possible more than nothing carefully argued 1057.) at harmless. 4 Cal.4th (Stansbury, p. supra, conduct was c) credibility Mandich’s concerns the of misconduct prosecutor’s
Defendant’s third allegation Mandich had argued Mandich. Defense counsel characterization of David on that identification issue and that his “credibility “extreme bias” displayed about The answered by arguing, was ridiculous.” prosecutor “[Mandich] he wanted to leave because certain his lineup 90 percent identification] [of in this had a twin brother standing that the defendant room for possibility This is one he There is an honest man. So that’s how careful was. lineup. [H] And the defense can ever in a murder case. of the best witnesses have you man, liar, a criminal but only has to to the level of this calling stoop heard in career. my I’ve ever outrageous things himself is one of most “And, Ladies and attention to that.” And I don’t think should you pay any witness, witness, Gentlemen, an of a good that is the honest testimony in these of cases.” kind of that I wish I had more of witness kind[s] trial, to do so at Defendant now to this but failed argument, objects (Hart, 20 Cal.4th at p. therefore has waived this claim on appeal. Furthermore, 619.) merit to the The allegation. there is no prosecutor credit Mandich’s account based on matters within exhorted the jury record, (Stansbury, supra, not matters within her knowledge. personal at 43 Cal.3d Cal.4th Gates p. distinguishing misconduct Finally, any possible Cal.Rptr. 1057.) was harmless. (Stansbury,
11. Instructions Jury of defendant’s many trial court refused to instruct the with instructions.
proposed special
a) Instruction No. 11 have the court to instruct the jury you
Defendant asked “[i]f truthfulness of statement any reasonable doubt as to the or credibility any defendant, must resolve that doubt made witness by any against you to be untrue.” The trial court favor of the defendant and find such statement false concerning of other instructions deemed instruction duplicative witnesses, witnesses, and the false willfully presumption statements *41 444
innocence. Defendant now contends that whereas CALJIC No. in- 2.90 structed the on reasonable inform doubt it did generally, them of the need to find each witness’s true that testimony standard. To the extent defendant’s 2.90, instruction proposed went beyond CALJIC No. it was incorrect and denied. properly instruction, to defendant’s
Contrary requested existence of reasonable doubt some concerning of a aspect witness’s statement does not its require negation. We have “a observed trier of fact is permitted credit some of a portions witness’s and not credit testimony, others.” (People v. Williams (1992) 354, 441, 4 Cal.4th 364 961].) In the Cal.Rptr.2d [14 instant case, instance, for that a possibility witness minimized falsely his own involvement does not preclude the rest of his possibility description “ Furthermore, of an event was true. ‘It is . . . established that each fact in ” a chain of circumstances need not be proved beyond a reasonable doubt.’ v. (People (1999) Van Winkle 75 28], 147 Cal.App.4th [89 quoting People (1969) v. Naughton 270 451].) 8 Cal.App.2d Cal.Rptr. [75 Defendant’s authority, (1947) People Hidalgo 78 Cal.App.2d 102], P.2d does not hold [179 otherwise. trial court there read the instruction defendant here a defense requested, rejected to read a request similar (Ibid.) instruction. The Court of found the trial Appeal court’s of the other rejection instruction was not error as it the instruction duplicated (Ibid.) read. The Court of actually nowhere stated instruction Appeal law, a correct statement of let alone one defendant was entitled to have read.13
The trial court refused to read properly defense instruction No. 11.
b) Instruction Nos. 13 and 15 Defendant instruction requested No. 13: “Proof which raises a merely of the strong defendant’s is suspicion guilt not sufficient to support conviction. is not Suspicion evidence. It raises a merely and is not possibility sufficient for an inference of fact.” Defendant also instruction No. requested 15: “You have no to convict the right defendant of a crime mere upon however suspicion nor because there strong be a simply may preponderance of all of the evidence in the case him nor against because there is or merely be reason to may strong that he is Before suspect guilty. can you lawfully [^] 13 Itwould be correct to instruct that the People prove every must element of the offense doubt, beyond a reasonable (People v. Reed but a defendant is not entitled to that instruction. 590]; v. Orchard 38 Cal.2d P.2d Cal.App.3d [240 Cal.Rptr.
445 convict, the defendant’s a reasonable guilt must be convinced of you beyond the substance of The trial court found both instructions repeated doubt.” 2.90, This Assum- No. and refused defendant’s was request. proper. CALJIC law, the instructions described the a correctly that ing, arguendo, proposed standard to restatement of the reasonable doubt defendant has no right 1096a; (1988) 45 (§ in CALJIC No. v. Cal.3d People Wright 2.90. expressed 600, 1049].) 1134 Cal.Rptr. [248 c) 18 Instruction No.
Defendant instruction No. 18: “You should view with requested extreme caution out-of-court statement made a witness that any by purported has been admitted as substantive evidence because are not made under they oath, and, false, HQ if are not Further subject prosecution perjury. [for] more, true, in or not an out-of-court statement is determining you whether should consider the circumstances under which it was made including fact that did not a chance to see the demeanor at the you have witnesses] made, time the out-of-court statement was and that the statement time to cross-examination at the it was made.” Defendant based the subject 562], on 47 13 request People Lopez Cal.App.3d Cal.Rptr. [120 admission, concerned a Lopez defendant’s but defendant argued Lopez's rationale extends to other witnesses’ statements In also. extrajudicial deny this the trial court ing the distinction request, correctly recognized between statements of a extrajudicial those of a witness. party nonparty A statement be offered a under party’s extrajudicial may against party contrast, Evidence Code section due to the declarant’s identity. By a extrajudicial statements of witness are not admissible unless nonparty they case, bear some indicia of trustworthiness. In this offered extra statements that judicial were admissible under Evidence Code section which renders admissible the inconsistent statements of a witness. As prior note, the Law Revision Commission comments such inconsistent state prior ments are “The declarant in trustworthy. is court be examined may cross-examined in to his regard statements and their matter. In subject many cases, the inconsistent statement is more to be true than the likely testimony of the witness at the trial it made because was nearer in time to the matter to influenced which it relates and is less to be likely by controversy rise to the The trier of fact has the declarant it and gave litigation. before can observe his demeanor and the nature of as he testimony his denies or tries to Hence, it is in as explain away inconsistency. good position determine the truth it or statement as is to determine falsity prior (Cal. truth or of the inconsistent court.” Law falsity testimony given com., (1986 ed.) Com. Ann. foll. Revision Evid. Code Deering’s pp. § 389-390.) trial courts instructions Accordingly, for provide cautionary only statements made v. Sims extrajudicial party. (People Cal.App.3d Cal.Rptr.
The trial court refused to read instruction No. 18. defense properly
d) No. 21 Instruction
Defendant instruction No. “The corroboration the requested 21: of of an law is not sufficient if it accomplice testimony required merely the commission of the offense or some or all of the shows circumstances thereof, no or if it does more than raise of of the defend suspicion guilt instruction, ant.” The trial court refused to read the finding standard CALJIC instructions its The trial conveyed substance. court adequately instructed the with Nos. 3.11 of CALJIC jurors (Testimony Accomplice Corroborated) be and of to (Sufficiency Must 3.12 Evidence Corroborate an and advised them on to how evaluate Accomplice), adequately accomplice The for of corroboration. trial court refused testimony to purposes properly (1993) Berryman read defendant’s instruction. v. 6 duplicative (People 1048, 867, (Berryman).) Cal.4th 1079-1080 Cal.Rptr.2d 40] [25 e) No. 23 Instruction court
The trial to read modified version of agreed defendant’s 23. The to instruct “The instruction No. court of agreed jury: requirement of the of an based on the corroboration is notion that testimony accomplice of an should be viewed with because it testimony accomplice suspicion in the or or given immunity.” have been It may hope expectation leniency however, the trial to this inadvertently court failed instruction appears, read to the The now contend defendant’s failure to waived the People object jury. defendant deciding issue. Without whether issue adequately preserved find no in its The trial court for we error omission. appeal, properly Witnesses) on CALJIC Nos. 2.20 and jury (Believability instructed Distrust). be Viewed These 3.18 to with instruc (Testimony Accomplice informed to tions how consider jury accomplice testimony. properly 606, 757]; 881 v. Pitts 223 Cal.Rptr. People (People Cal.App.3d [273 156].) v. Even where Castro 99 197 Cal.App.3d Cal.Rptr. [160 element,” an an absence omitted instruction concerns “essential its bemay (Musselwhite, 1248.) other instructions. 17 Cal.4th at No cured by error appears.
f) written The omitted instructions but trial court read CALJIC Nos. 2.02 2.03 orally, inadvertently the jury these instructions from the written set with which omitted General Attorney to failure. The error this assigns Defendant provided. at trial. Without object this issue by failing contends defendant has waived issue, find it fails on we defendant deciding preserved whether is beneficial instructions “generally merits. written Although providing or state constitutional right has no federal be defendant encouraged,” (1997) 15 Cal.4th v. Samayoa [64 instructions in writing (People on statutory and the (Samayoa)), right depends P.2d Cal.Rptr.2d 2] Furthermore, (f).) defendant has (§ subd. an express request. reached a result that the would have it is reasonably shown probable of CALJIC Nos. had it received a written copy more favorable to defendant (1993) 14 Cooley v. (People Cal.App.4th [18 2.02 2.03. 1019, 1023 346]; (1992) 6 Blakley Cal.App.4th Cal.Rptr.2d *44 Error 12. Cumulative during guilt the cumulative error that occurred
Defendant contends of defendant’s individual reversal. Consistent with our review compels phase claims, at 15 Cal.4th find no cumulative error occurred. (Bradford, supra, we 1344.) p. Penalty
B.
Phase
Key
1. Admission
Possession of Handcuff
of Defendant’s
and
defendant one evening
Sheriff David Mertens searched
Deputy
instrument,
found a
of metal concealed in defendant’s wristband.
piece
handcuff
hand
key, easily
which the
considered makeshift
opened
deputy
he traveled to court.
cuffs
like the ones
defendant when
just
restraining
and
a shank.
Sheriff Hall searched defendant’s
discovered
Deputy
property
admitted this evidence.
Defendant now contends the trial court erroneously
190.3,
to consider the defend-
(b)
Section
factor
the trier of fact
permits
the use or
use of force or
ant’s criminal
that “involved
activity
attempted
or
In People
violence or the
or
threat to use force
violence.”
implied
express
166,
(1991)
802 P.2d
v. Mason
Defendant cites v. 782], a metal removing grating found the defendant’s where we case, “the section In that not admissible under 190.3. from an air vent was removal of grate that the violent General Attorney argue[d] presumably 776.) We evidence.” (Boyd, p. admission of the sufficient to justify [was] satisfied section to the injury property the contention that violent rejected Howard, described no occasion to consider proposition, We had 190.3. use to and its intended of the handcuff key implied that “the possession handcuffs, during worn normally to free himself from defendant permit enforcement of law in the custody presence defendant’s transportation threat’ to criminal an which activity posed ‘implied constituted personnel, Howard, 428.) The 44 Cal.3d at (People use force or violence.” the trial court does not lead us to find prejudicially decision therefore Boyd erred in evidence. admitting key Fifth, Sixth, *45 violated the the admission of key
Defendant also asserts to the United States Constitution Amendments and Fourteenth Eighth I, 1, 7, 15, Constitution. He 17 of the California 16 and article sections however, the constitu- both governs that the same analysis acknowledges, 190.3, section under Penal Code and the of error allegation tional claim “to defendant’s motion claims (b), underlying factor because the statutory are the same arguments handcuff key evidence about purported exclude one court’s resolution of The trial the constitutional issues. that support error that there was no In of our finding resolved the other.” light effectively 190.3, constitutional violation. find no Penal Code section we under Argument 2. Prosecutorial and state constitutional of these same federal violation alleges
Defendant during closing misconduct instances of four prosecutorial provisions all four reject allegations. We argument.
a) Remorse his no remorse for defendant expressed
The argued prosecutor this about behavior, interesting thing “The of the killings. and was proud that he defendant’s behavior that the Castro is felt abso- night murder] [of He no remorse for what he had done. He ran back to the car. told his lutely flQ I There is some evidence according friends shot ‘Hey, just guy.’ he about the fact that after he the statement of Oscar was bragging [Montes] said, man, Castro, shot the or as he Joe that Joe Castro guy, shooting ‘Oh, Quote shit.’ This the defendant was about to bragging was something [^[| his friends. He to his friends about the fact that he shot the was bragging That he shot Joe Castro. It that the guy. shows type person [*[[] was; defendant is and shows the of murder that this and that’s why type should, (a) under factor these are that and I things ask consider you you now, in the defendant’s moral and the determining responsibility punishment that he deserves.” 190.3, (a),
This argument was
Section
factor
to which the
proper.
pros
referred,
ecutor
authorizes the
to consider the circumstances
expressly
jury
crime. The
consider the defendant’s refusal to
jury may
show any
remorse in the context of the murder
(Ramos,
as an
factor.
aggravating
1164;
b) The the placement gun of The “It was the defendant himself prosecutor argued, who walked toup car, the driver’s side of that the at the head of Mr. Castro and pointed gun demanded he his car. ... I remember at the relinquish arguing guilt phase regard testimony
with to David Mandich’s that when defendant car, at the to the had the defendant standing we according accomplices, head if he at the of Joe Castro and to kill him pointing gun threatening didn’t out of the car.” As her get guilt phase with argument, prosecutor’s followed the record. argument correctly
c) imprisonment Inadequacy of The was insufficient for defendant. prosecutor argued prison punishment defendant, “The him to isn’t to sit in by [your] sending prison, going prison think for the rest of life and about how bad he feels how he sorry [his] him, is for what done. It will be life for life as . . . . . he’s usual. . just fl[] defendant, The this I don’t think that is such a terrible prison thing, [F]or ][f I that an that say reason that is is intolerable for prison really place people don’t, abide But for that for that live no laws by by law. people people all, can be tolerable Defendant contends the evidence prison very place.” that life did not this We have similar comments support argument. approved is an insufficient an individualized assessment imprisonment given penalty Smithey defendant. v. 20 Cal.4th (People 997-999 [86 1171]; P.2d Lucas Cal.4th Cal.Rptr.2d that he “brutality was such 373] [defendant’s ”].) see the bars’ This argument ‘would even was proper.
d) other circumstance cases Comparison special
Defendant his crimes were not the “worst of the worst.” argued crimes are defense counsel asked “what kinds of heinous During argument, then in we about that the death He described vivid talking justify penalty?” murderers, Rich detail murders committed infamous serial including Ramirez, Stalker”; Bittaker, tortured, Lawrence who ard “the Night raped screams; David and murdered five and recorded their death teenage girls, who and killed or ten” “the Trailside Strangler,” “eight Carpenter, raped Bonin, Killer,” women; and 14 teen Freeway William “the who murdered conceded, the defense don’t have to be counsel agers. Although “[Y]ou the death he “I am to show trying you mass murderer to get penalty,” argued, for a it It the worst the worst or it should also that takes more. takes fl[] not the of the He is not death . . . is worst worst. penalty. [Defendant] the death should category get penalty.” people defense counsel question to answer attempted posed. prosecutor *47 death for ... . The death kind cases do we have a penalty “What of [^] isn’t in case where circumstances are every special alleged.” sought penalty 1985) (11th Cir. F.2d 1383 Kemp defense Brooks v. citing The objected, the argument the (Brooks). finding People’s The court overruled objection, the “I never allow prosecu- to the defense would argument. fairly responded list of in and a give laundry people to stand in the argument tor up opening the committed and were given one murder felony the State of California who the make you that. But when death I would never allow penalty. [H] a death and you give the of the worst the only get penalty, worst argument cases, that those only the the giving jury impression list of all the laundry death, out point are for it’s for the proper prosecutor people appropriate are not for circumstances that appropriate there are cases involving special death.” continued, trial court the The objection. prosecutor
The overruled properly a death circumstances that could the numerous special Support explaining cases, there is an all of those not in case where every sentence. “Not death circumstances ... do we even seek the allegation pen- special . see the death ... . . said will alty. you penalty counsel] [H] [Defense the of the I submit to that’s not correct. I’m you worst worst. only fl[] cases, there are the names or but cases where going give you specifics . there is one count of murder commit- death is . . where penalty imposed death the ted. . . . And these do receive the penalty.” Finally, people directed the attention to defendant’s individual circum- prosecutor jury’s stances. “It’s not an function to as to what other cases appropriate speculate involve in terms of the evidence and the factors .... sole function [Y]our are, the in this case to determine what those circumstances or factors [is] bad, the and balance them.” good weigh The error in the Eleventh Circuit Court found Appeals nonprejudicial cases, that the death in few argument sought very prosecutor’s prosecution “ could that the estab- governmental which ‘lead the believe whole determined (Brooks, lishment had to be . . . .’” already appellant guilty (5th 1969) 762 F.2d at Hall v. United States Cir. p. quoting 582, 587.) F.2d concern that argument The Eleventh Circuit expressed “[t]he murder cases and that the had canvassed all suggested improperly prosecutor selected this one as of the death thus deserving infring- particularly penalty, invoking discretion ing upon jury’s decisionmaking improperly (Brooks, omitted.) mantle of fn. prosecutorial authority.” establish- “governmental neither prosecutor’s argument implied any determined nor ment” had of a death sentence in this case propriety Furthermore, discretion. offered infringed upon jury’s prosecution fair to the defense that argument properly response capital punishment of the only limited to serial killers. If the defense “worst argued sentence, argue was entitled to worst” received death prosecutor *48 worst,” the “best and a defendant was not of the death sentence was among therefore argument This was proper. appropriate. Jury Instructions
3. Defendant the trial court instructed the and jury contends improperly defendant’s We each allega- denied instructions. improperly proposed reject tion of instructional error. 8.88 CALJIC No.
a)
8.88,
The trial
the
No.
and
orally
court instructed
CAUIC
both
with
in
with a written
Defendant
the instruction is defective
alleges
now
copy.14
discretion;
(2)
that
it
the “so
jury’s
sentencing
failed to guide
death;
to
substantial”
standard created a
for
and
it failed
presumption
define
and
for
We have
“aggravating”
“mitigating”
jury.
repeatedly
8.88,
(Arias,
to
and
challenges
instant
CAUIC No.
do so
rejected
again.
170-171;
Rodrigues, supra,
b Defense “You
Defendant asked the court to read instruction No. 3: special of acts may any unadjudicated alleg consider as evidence aggravation committed the Defendant unless first determine edly you beyond your death in the duty penalties, 14 “Itis now to determine which of the two or confinement parole, imposed for life of on After prison possibility state without shall be the defendant. [H] counsel, having arguments you having heard all the and heard considered the of evidence and consider, guided by applicable aggravating and be and shall take into account factors of you aggravating is mitigating upon circumstances which have been instructed. An factor [1[] fact, condition, guilt or any attending the of a crime increases its or event commission which beyond enormity, injurious adds of the consequences or to its which is above the elements fact, any event does not mitigating crime itself. A circumstance is condition or which as such justification may as an question, constitute a or excuse for the in but be considered crime extenuating determining the of the appropriateness penalty. circumstance in death [H] mitigating weighing aggravating of circumstances does not mean a mere mechanical scale, arbitrary weights counting imaginary assignment factors an or the of on each side of assign sympathetic you deem any of them. are free to whatever moral or value You weighing you are In appropriate permitted each and all of the factors consider. various is you penalty determine the relevant evidence the various circumstances under which by considering totality aggravating circumstances with justified appropriate death, you be totality judgment of the To each of must mitigating circumstances. return with the persuaded aggravating comparison that the circumstances are so substantial shall mitigating parole. of life without You circumstances that it warrants death instead [H] your who over your foreperson, preside retire and number to act as will now select one of agree. penalty, jurors In all twelve must deliberations. order to make a determination as to signed by your a form that Any you foreperson verdict reach must be dated and on [U] provided you return to this courtroom.” will be and then shall with it *49 acts; (2) the the Defendant committed (1) doubt that the reasonable [and] or the expressed use of force or violence the use or acts involved attempted read the court refused to The trial to use force or violence.” or threat implied 8.87, informed instruction, which of CALJIC No. it was finding duplicative found a beyond unless the jury consider the acts the it could not jury occurred, the did not invite jury but which doubt that the acts reasonable use, use, or attempted the acts involved determine for itself whether threat, of force or violence. note, in the (People CALJIC No. 8.87 past.
As the we have upheld 96, 162, P.2d 954 Cal.4th fn. 33 (1998) Millwee 18 [74 v. asserts, however, (2000) 530 Jersey New v. 990].) Apprendi Defendant jury 147 L.Ed.2d (Apprendi) requires U.S. 466 S.Ct. 435] [120 established the attempted, doubt that the evidence find a reasonable beyond contention, and threatened, this or actual use of force or violence. We reject a a to find beyond does not extend to jury conclude Apprendi require sentencing of a section 190.3 doubt the specific reasonable applicability factor. decided which sentencing States Court
In the United Apprendi, Supreme (2) a a doubt (1) jury. bases must be determined reasonable beyond schemes sentencing from its “state itself excluded Apprendi scope capital of a a verdict a defendant holding guilty capital after judges, jury requiring crime, a sentence of factors before imposing find specific aggravating 2366].) The U.S. at S.Ct. at p. death.” 530 496 (Apprendi, supra, [120 in cited as an scheme described sentencing court Apprendi example 511], 111 L.Ed.2d v. U.S. S.Ct. Walton 497 639 [110 Arizona instant claim. Arizona law of defendant’s holding rejection whose compels in to a subject hearing that convicted first murderers were degree provided defendant to death or to sentence the which the trial court decided whether thus the murder in Arizona was degree life A of first finding imprisonment. a section a of first murder with 190.2 finding degree functional equivalent California; range circumstance in both events narrowed possible special of sentences to death or life imprisonment.15 to a determination that no constitutional right jury held there was
Walton
Arizona,
U.S. at
(Walton
pp.
death
v.
appropriate penalty.
a
3053-3054].)
court explained,
S.Ct. at
As
Apprendi
647-649
pp.
[110
until the
has
jury
sentence
death sentence is not a statutorily permissible
Arizona, the
doubt. In
facts true
a reasonable
beyond
found
requisite
degree
be
for first
murder would
imprisonment
Arizona defendant sentenced to life
15 An
(Poland
476 U.S.
eligible
years
imprisonment.
parole
for
after
Arizona
1749, 1754,
L.Ed.2d
fn. 4
S.Ct.
murder;
commission
of first degree
fact is the defendant’s
requisite
California,
murder with
the defendant’s commission of first degree
it is
however,
found,
there
no
has so
is
circumstance. Once
jury
special
“
cited, nor
the cases
any
further
bar to a death sentence.
‘Neither
Apprendi
case,
the existence of a factor which
to determine
other
permits
judge
that,
hold is
once a
offense. What the cited cases
makes a crime a capital
of an offense which
of all the elements
has found the defendant
guilty
death, it
be left to the
the sentence of
may
carries as its maximum penalty
*50
one,
than a lesser
that maximum
rather
to decide whether
judge
penalty,
”
S.Ct.
530 U.S. at
p.
to be
. . . (cid:127)’
(Apprendi, supra,
[120
ought
imposed
224,
(1998) 523 U.S.
2366],
v. United States
at
quoting
p.
Almendarez-Torres
Scalia,
1237,
J.).)
1219,
(dis.
L.Ed.2d
of
opn.
fn. 2
S.Ct.
350]
[118
(2001)
Defendant asked of the moral culpability turns on the personal determination of punishment accordance the specified is assessed in with Defendant. Such culpability ft[] which also have received you and mitigation upon factors of aggravation instruction, or can be either aggravating circumstances of the crimes The ffl] blameworthiness on the or lesser greater Their character depends mitigating. willful, reveal, from the most intentional for they ranging, example, mur deliberate, the most accidental of felony murder to and premeditated because it was to read this instruction refused ders.” The trial court properly law, instructions, an inaccurate statement other it was duplicative to the case. it did not apply CALJIC Nos. 8.85 defendant’s request.
The trial court refused properly in determining informed what to consider about jury and 8.88 adequately (Berryman, therefore duplicative. instruction was requested penalty. observed, Furthermore, there court as the 1103-1104.) 6 Cal.4th pp. as insofar Finally, “accidental.” murder was that the Castro no evidence murders supported that told the premeditated instruction proposed murders, describe correctly it did not more than felony death sentence degree. in the first kinds as murder of murder qualify California law. Both among both to be deems California (§ 189.) Like other jurisdictions, (1991) 501 U.S. (See murder. Schad most serious kinds of Arizona 2501-2502, has California 115 L.Ed.2d 640-641 S.Ct. aas felony of an enumerated in the commission murder further categorized circumstance, of death or life imprison a sentence which supports special 190.2, (a)(17).) The (§ proposed subd. of parole. ment without possibility are murders felony informed incorrectly jurors instruction would have deliberate than premeditated less serious for the of punishment purpose instruction No. 4. to read trial court refused special murders. The properly *51 5 d) instruction No. special Defense 5: “Evidence has instruction No. asked the court to read
Defendant special the harm caused by the the showing specific been introduced for purpose be con crimes. not may Such evidence was not received Defendant’s role of deciding from your sidered to divert attention by you your proper this obligation die. You must face the Defendant should live or whether as a the ultimate sanction not rationally, you may soberly impose irrational, and argu to emotional evidence result of an subjective response hand, on emotional though and argument ment. On the other evidence mercy the to show Jury reasons for legitimate relevant subjects may provide instruction, to the Defendant.” The trial court refused to read the proposed instruction The it of CALJIC No. 8.84.1. finding proposed was duplicative it had not otherwise the information jury any would not have with provided 8.84.1, to read court refused from CALJIC No. and the trial properly learned 1103-1104.) Cal.4th pp. instruction No. 5. 6 (Berryman, supra, special 6 e) instruction No. special Defense the following to read court defendant’s request
The trial granted the without possi death or life prison instruction: “In whether deciding sentence, consider for any not may you is bility appropriate parole of the death penalty non-deterrent effect the deterrent or reason whatsoever for maintaining of execution or prisoner or the cost to the State monetary instruction, it court read the When the life of parole.” without possibility version, life in without whether deciding prison read the “In following sentence, not may you or death is the appropriate of parole possibility consider for reason any whatsoever whether or not there is a deterrent effect Likewise, to the death penalty, you not consider for may reason any [f] whatsoever how much it cost to may the defendant in for life keep prison without the possibility The most parole.” difference between important the instruction and the instruction read prepared was the latter did not warn not to jurors consider cost of execution. General Attorney asserts defendant has waived to the any challenge instruction by failing below. He further contends the object error was defendant, beneficial to because the jury was consider cost as a permitted for, reason to vote but against, death. He argues defendant cannot the instruction told the complain implicitly (consider do otherwise cost of life because defendant imprisonment), must have believed in the instruction, of the efficacy or else he would never have it. requested We have held a trial court refuse to read this instruction where may neither deterrence nor cost is (1990) raised v. Benson (People parties. 754, 52 Cal.3d Moreover, 330].) 806-807 802 P.2d Cal.Rptr. so [276 raised, as long these issues are not there can be no from the prejudice instruction’s omission. v. (People 1 Cal.4th Bacigalupo [2 559]; 820 P.2d Thompson Cal.3d The absence Cal.Rptr. of evidence regarding these issues during our penalty phase precludes finding error. prejudicial
f) special instruction No. 7 Defense *52 Defendant asked the trial court to read instruction 7:No. “You special consider the fact may that the Defendant’s received more accomplices lenient sentences as a factor.” The mitigating trial court ruled the instruction was to California as contrary (1991) law in v. Beardslee 53 expressed People 68, 276, Beardslee, Cal.3d 111-112 806 P.2d Since Cal.Rptr. we [279 1311]. have adhered to our that the need not be position instructed to consider jury the sentences by received codefendants.16 8 Cal.4th at (Rodrigues, supra, pp. 1188-1189; 408, (1992) Mincey v. 2 Cal.4th People 479-480 Cal.Rptr.2d [6 388].) 827 P.2d maintain We here. position
g) special instruction No. 15 Defense Defendant asked the trial court to read instruction 15: “After No. special factors, all the weighing it is aggravating mitigating individu- up you to decide which of the life ally without or punishments, imprisonment parole course, exception 16 Of there were no codefendants in the trial. instant With of Juan Velasquez, country, guilty who fled the pleaded prior defendant’s cohorts all to defendant’s trial. death, in mind that in this case. You must always keep should be imposed [^] to determine appro- bears the ultimate moral responsibility each you case.” The trial court the circumstances of this under all priate penalty instruction, CALJIC No. 8.88. to read the it was covered ruling refused instruction, which was dupli- The trial court refused proposed properly 1103-1104.) 6 Cal.4th (Berryman, supra, pp. cative of CALJIC No. 8.88. h) instruction No. special Defense instruction No. 24:
Defendant asked the trial court to read special of any must not consider as an factor the existence aggravating special “You circum if considered the facts of already special circumstance have you circumstance been of the crime for the defendant has stance as which words, RQIn other do not consider the same facts more than once convicted. The trial court refused factors.” determining aggravating presence read the of the standard instruction on aggravating instruction in light factors. observed a felony
The instruction is of uncertain We have validity. prior (b) conviction for a crime could fulfill both section factors violent 190.3 (violent (c) conviction). criminal v. felony (People activity) (prior 741].). Melton 44 Cal.3d 764-765 750 P.2d Cal.Rptr. [244 consider a conviction for a violent under both jury may felony prior (Ibid.; see factors. also Price 1 Cal.4th event, In did not urge any prosecutor to “double count” and the is therefore possibility prejudice “ ” (Medina, 779.) ‘remote.’ 11 Cal.4th at We find no error. i) instruction special No. Defense
Defendant asked the trial court to read instruction No. 28: “Evi- special dence has been of defendant’s or You cannot lifestyle background. presented factor, this evidence as an but consider it as aggravating may only consider it factor.” The trial court refused to read the instruction because mitigating and a misstatement of law. confusing *53 The General out that insofar as defendant’s Attorney lifestyle points a included criminal it could be factor in gang-related activity, aggra- proper in the vation. Defendant’s to use the term argument “background” appears factor in context of his ethnic which is not a background, legitimate aggra- error, event, as the trial court vation or In there was no mitigation. any instructed the on factors. jury aggravating mitigating properly trial during The court instructed properly penalty phase. 458
4. Intercase Proportionality Review
Defendant contends California the death unconstitutionally imposes without intercase review. There is no constitutional penalty proportionality of intercase (1984) review. v. Harris 465 requirement proportionality (Pulley 37, 879-880, 871, U.S. 29]; 50-51 S.Ct. L.Ed.2d v. 98[104 (1996) Marshall 13 Cal.4th 865-866 P.2d [55 1280].)
5. Intracase Proportionality Review Defendant also contends his death sentence was arbitrary dispropor tionate to the on his codefendants. This claim penalties imposed likewise fails. For one there were no codefendants. need not thing, We compare death sentence with the terms bargain received defendant’s plea by compan ions. “The exercise of discretion in evidence and prosecutorial obtaining decisions is not to a making charging review of sentence.” pertinent capital 152, 235, v. Morris 53 Cal.3d (People fn. 25 Cal.Rptr. [279 Furthermore, P.2d defendant’s sentence was not disproportionate murder, those received his With to the Castro accomplices. respect killer, defendant was the actual as well as the of the No instigator carjacking. one else Am. use lethal force to take the Trans sought With to the respect murder, Navarette defendant was also for the offense. primarily responsible did not set out to of 18th gang avenge shootings Street past Gang members until defendant arrived his truck and facilitated with the murder. As one witness would not explained, shooting have occurred without defendant he because was the one whose vehicle enabled the to commit gang the murder. His greater involvement his more severe sentence. justifies 50 Cal.3d (People Douglas Cal.Rptr.
640].) Even if the involvement of of defendant’s cohorts that of any equaled defendant, (Sanders, his death sentence is not constitutionally suspect. 530.) 51 Cal.3d at p.
6. Cumulative Error Defendant contends the error that occurred cumulative during penalty reversal. Consistent with our of defendant’s individual phase review compels claims, we find no cumulative error occurred. 15 Cal.4th at (Bradford, supra, 1344.)
7. Constitutionality Circumstances Special below,
Defendant contends neither circumstance found special 190.2, (§ (a)(3)) commission of murders subd. or the commission of multiple *54 190.2, (§ (a)(17)(A)), an subd. robbery in the commission of attempted murder murders, and death sentence of first his narrows the class degree adequately hold that and continue to We this claim reject is therefore unconstitutional. perform and enumerated circumstances special adequately section 190.2 its narrowing compelled by Eighth (Kraft, supra, Amendment. the the function 1078.) Cal.4th 190.4, (e) Motion 8. Section Subdivision section the in the denying
Defendant contends trial court erred to Defendant contends (e) subdivision motion the verdict. modify 190.4 evidence; (2) court failed to the reweigh independently penalty phase the motion; court (3) the trial evidence the denial of the and insufficient supports motion factors in the denying considered erroneously impermissible claims fail. the verdict. These modify
a) The trial the evidence reweighing court’s 190.4, the section Defendant moved to verdict in accordance with modify (e). the merits subdivision the trial court addressed hearing argument, After of the motion in detail. great the entire
The court its “to review began noting obligation statutory and the of death is consistent with jury’s record determine whether judgment the facts and After the evidence and the section both the law.” reviewing factors, observed, the rules court then is the same duty 190.3 “My apply that the in the of death were jury determining judgments whether applied In this case I believe that the circumstances in aggravation appropriate, [ft really are so so in the minimal evidence strong, overwhelming contrast with was It consistent with mitigation the verdict was jury appropriate, [ft do find that the facts. It was with the And I specifically consistent law. [ft are in with aggravating circumstances so substantial comparison that as counts 1 and verdict mitigating jury circumstances to modify court declines the opportunity this appropriate, respectfully verdicts.” jury’s motion, 190.4, (e) In automatic subdivision reviewing defendant’s section de novo “the trial function is not to make an judge’s independent penalty determination, but of aggravat rather to evidence independently reweigh whether, circumstances and then to determine ing mitigating the evidence judge’s independent judgment, weight supports (People verdict.” 49 Cal.3d Lang Cal.Rptr. its duty. The above statements the trial court fulfilled prove *55 b) Evidence the supporting death verdict decision,
In the trial reviewing court’s we review trial simply court’s record; determination after independently considering do not we make a de novo determination of penalty. (People Mickey (1991) 54 Cal.3d Cal.Rptr. We find the trial court denied the properly motion to the death verdict. modify
The trial court found the circumstances of both murders were aggravated. The court “cold-blooded,” characterized the Castro murder as “absolutely justification,” and the result [without] of a affair.” The court “planned deemed defendant the behind murder, force” “moving Navarette “the one who caused this entire incident to take The court also noted Nav- place.” arette was an innocent not a member or person, gang who had invited anyone form any brother, retaliation. The court also found Navarette’s Rudolfo Rivera, attack, endangered and had by to watch the murder of his brother.
The court also discussed the other evidence presented by during penalty The court found phase. horrendous” the “particularly of Freddie robbery Castro, Garcia. several hours after Only murdering Garcia, defendant led an attack on in which defendant kicked and punched, threatened to shoot his victim. The court further recalled the robbery Fricks, Lionel defendant’s of a shank possession and a makeshift handcuff key, incarcerated, defendant’s involvement in racial violence while the court although found little in that latter significance fact.
The court then reviewed the evidence offered in mitigation. The court recalled defendant had been mistreated children in his neighborhood, that his sister had been assaulted and The court noted defendant hospitalized. communicated with his sister’s children and his own The court daughter. recalled the testimony Dr. Maloney, who testified defendant had a “low- IQ,” end but was neither retarded nor The court psychotic. described father, of defendant’s testimony Eduardo Ochoa. The court further noted defendant had five incident only while in reports and two of those were jail, trivial in nature. The court observed defendant did not kill personally Navarette, and it cited the defense’s that defendant did not position intend Castro’s death. The court concluded its analysis each of the by mentioning statutory mitigating factors listed in section 190.3. The court stated defend- 190.3, ant (§ was relatively (i)), factor young was an accomplice 190.3, (§ 190.3, factor but that (j)), (d) (h) section factors did not through his crimes. apply mitigate evidence,
The court
recalled the
comprehensively
and the evidence well
(Hart,
the decision to
supported
motion.
deny
c) on evidence improper Reliance *56 court based its decision on matters contends the trial
Defendant defend finding to the court’s that He error assigns the record. supported of that The record reflects of the attack on Freddie Garcia. ant was leader Garcia, and talking did all defendant the four males who approached able he car. When Garcia was to if did not his give up threatened kill Garcia him again. defendant punched after kicked being repeatedly, to stand up a it was defendant who another holding gun, Garcia saw individual Although stated, car, Defendant I’m to shoot you.” “Give otherwise your going up as it males passengers. the car and drove with other away, entered finding. the trial court’s evidence supports as to court’s defendant
Defendant also the trial characterization objects record the other force” the Navarette murder. The shows “moving behind defendant on the street until loitering 18th Street members were Gang simply seen Riders with and told the others that he had just Crazy arrived his truck At Aguilar eastbound on Pico Boulevard. that driving point, grabbed accelerated, lanes maneu- and changed While defendant driving, weapon. As Alonzo vered truck to render Navarette’s David shooting. possible testified, the would not have occurred but for defendant’s involve- shooting ment. The the trial court’s finding. evidence supports defendant the court’s also shot
Finally, objects vicinity to he in the noting Rivera, as no Navarette’s brother Rudolfo there was passenger, evidence defendant Rivera. The court considered saw trial showing properly evidence, this have that the as “we number of victims recognized exposed (In the use of a is firearm relevant to the defendant’s re Tameka culpability.” (2000) 603].) C. 22 Cal.4th P.2d 990 Cal.Rptr.2d 199-200 [91 Furthermore, more even shooting Rivera’s rendered presence culpable if defendant not see v. did Rivera. In Hansen Cal.4th 1022], an P.2d held that shooting 309-310 we Cal.Rptr.2d [36 an We “there felony. inhabited is found dwelling inherently dangerous that may will exist a likelihood an be always significant occupant present.” Hansen, (Id. at held 310.) Following shooting the Court of that Appeal into an is an inherently dangerous (People vehicle also occupied felony. there is Just as Tabios 9-11 Cal.App.4th an inside likelihood there will be someone always significant present inhabited there is there will be a second dwelling, likelihood always definition, there be in an vehicle. will present occupied (By always person defendant, no the left one There was evidence that who drove on person.) car, was or tried to side Navarette’s in a possibility, position dispel Furthermore, do so. into an shooting vehicle creates an occupied even social than greater danger at an inhabited shooting A driver who is dwelling. vehicle, shot lose control of his may other endangering many drivers the trial pedestrians nearby.17 court considered this Accordingly, properly evidence. 190.3,
9. Section (a) Factor 190.3, (a) Defendant contends factor of section which allows weigh circumstances of the crime of which the defendant con- “[t]he victed in the present *57 the existence of circum- proceeding any special 190.1,” stances found be true to Section is pursuant unconstitutionally The United vague. States Court has us in this Supreme joined rejecting 967, 2630, claim. (1994) v. 512 (Tuilaepa U.S. S.Ct. 975-977 [114 California 2636-2637, 750]; 313, (1996) 129 L.Ed.2d v. People Ray 13 Cal.4th 358-359 296, Arias, 846]; 914 P.2d 13 at Cal.Rptr.2d 187.) [52 Cal.4th supra, p. 10. Miscellaneous to the Death Challenges Penalty Defendant raises numerous to the death all of challenges which penalty, we have already We have the death rejected. law upheld penalty against (1) that it fails to challenge narrow the class of offenders death-eligible (Frye, (2) 18 Cal.4th at supra, 1029); fails to p. written of require findings (ibid.); (3) factors fails to aggravating a reasonable doubt standard on impose (ibid.); (4) determination penalty fails to juror unanimity require (People 1223, (1997) 784, v. Fairbank 16 Cal.4th 1255-1256 947 Cal.Rptr.2d [69 1321]); (5) P.2d mental or emotional disturbance to be requires “extreme” to 190.3, (d) under section qualify (see (1995) factor v. 11 People Davenport 1171, 800, Cal.4th 1068]); 1230 (6) 906 P.2d invests the Cal.Rptr.2d [47 with unbounded prosecution 1078); discretion 23 Cal.4th at (Kraft, supra, p. (7) 739, violates international (1987) norms v. Ghent 43 (People Cal.3d 82, 1250]); (8) 778-779 P.2d Cal.Rptr. 739 insufficient provides [239 oppor- (Fairbank, for tunity 1255); (9) relief postconviction in an applies manner unconstitutionally arbitrary (1994) v. Crittenden Cal.4th (People 9 83, 474, 156-158 887]). 885 P.2d These miscellaneous [36 claims all fail.
11. Delayed Execution
Defendant contends there has been an unconstitutional since delay his trial and We have the contention that the sentencing. already rejected case, car, 17 In proceeded the instant Navarette lost control of his which onto the sidewalk crashing before into a wall.
463 Amendment’s Eighth and execution violates the delay sentencing between 18 Cal.4th at (Frye, pp. of cruel and unusual punishment. proscription Nevertheless, this claim to assert defendant recharacterizes 1030-1031.) any it cannot serve such is unconstitutional because execution after delay ends, to the denial of dissent citing Justice Stevens’s legitimate penological S.Ct. 131 U.S. 1045 certiorari in v. Texas 514 Lackey [115 has seemingly Justice Breyer L.Ed.2d Defendant further observes 304]. in v. Elledge dissent the denial certiorari endorsed this view his L.Ed.2d We therefore (1998) 525 U.S. S.Ct. Florida 303]. [119 claim, delay conclude the does newly presented evaluate this the execution. eliminate the legitimate supporting penological purposes of punishment. Both deterrence and retribution are legitimate purposes 2909, 2323-2930, 428 U.S. S.Ct. (Gregg Georgia [96 859]; (1992) 2 Cal.4th 316 Cal.Rptr.2d L.Ed.2d v. Roberts does not of which defendant now delay complains as defendant complains the fulfillment of either Insofar goal. prevent he as a uncertainty regarding extreme discomfort suffers result his execution, effect of the death that discomfort would enhance the deterrent *58 for commission of by increasing capital penalty penalty imposed contrast, this that defendant any crimes. an announcement court By by been is from whose automatic has for appeal pending many years exempt of a execution deterrent effect would eviscerate subsequent any possible sentence, death for it would be imposed.18 never probably defendant, has that Similarly, executing notwithstanding period his and since conviction would further retributive elapsed sentencing, of Insofar as the deserts” holds purpose capital punishment. “just theory certain do better that inflicted on their murderers not deserve fate than victims, of of have no bearing time alteration circumstances passage Resil- (Cotton, on this Back With a The Vengeance: retributive imperative. Punishment ience Retribution as an Articulated Criminal Purpose of of 1313, 1316, Kant, Am. L.Rev. Political Writings, Crim. citing 1991) 156.) these (Hans of Morals Reiss ed. For pp. Metaphysics reasons, racial by Nazi war criminals and church bombers motivated decades earlier. Further- hatred have been for murders committed prosecuted more, defendant, has his execution for these nine by years, delaying past execution, and indefinitely reduced the retributive function of already full To rendered his status more like that of a life his at trial. objective prisoner, observed, holding only 18 As has conduct such a deter Justice Clarence Thomas would (See Knight by Florida prompt filing petitioners is and careful consideration courts. 460-461, (conc. of opn. S.Ct. 145 L.Ed.2d mem. U.S. 992 [120 370] Thomas, J., cert.).) petn. from denial for writ bar his execution would further frustrate the retributive function of capital punishment. we are
Although of the cognizant stress significant faced on by prisoners row, death we cannot death, conclude their fate is worse than which we have as a long recognized constitutional As the punishment. Fifth Circuit of the observed, United States Court of Appeals made no effort to “[defendant] inform the Texas courts that their delay detrimental to him or to ask for expedited review his petition we cannot fault them for assuming or, least, would be grateful for [defendant]" indifferent to the delay.” (White (5th v. Johnson 1996) Cir. 439.) 79 F.3d We therefore conclude that execution notwithstanding associated delay with defendant’s appeals furthers both the functions; deterrent and retributive shielding defendant from execution on this solely basis would frustrate these two penological purposes.
12. Lethal Injection
Defendant contends lethal injection is an unconstitutional means of execu-
tion. We have rejected this claim before and do so again. (Samayoa, supra,
864; Holt,
Conclusion herein, For the reasons stated we conclude the is affirmed. judgment J., Baxter, J., J., C. George, Chin, J., Werdegar, concurred. *59 KENNARD, I concurin the for its majority opinion treatment of except J. defendant’s contention that the delay between sentencing execution violates the Eighth Amendment’s against cruel and unusual prohibition claim, This court in punishment. has rejected such a past holding reasonable, as it is long the time for our required “[a]s mandated statutorily review is not a violation of a criminal defendant’s constitutional it is rights; essential to that those ensuring are and have rights been respected.” (People v. Ochoa (1998) 19 Cal.4th reasonable,
Because the here delay is this court’s holding Ochoa is here. I dispositive would no further. go for a
Appellant’s was denied petition rehearing 2001. September