People v. RiveraPeople v. Rivera
Opinion of the Court by Liu, J.
Defendant Cuitlahuac Tahua Rivera was convicted and sentenced to death for the murder of Stephan Gene Gray, a peace officer. (
We modify the judgment as to certain fines imposed by the trial court, and we affirm the judgment as modified.
A. Guilt Phase
Trial began on April 13, 2007. The prosecution presented evidence, including testimony by Jamilah Peterson, Rivera‘s girlfriend at the time, and other witnesses, pointing to Rivera as the perpetrator of two shootings on April 11, 2004, and April 15, 2004. The second shooting resulted in the death of Officer Gray of the Merced Police Department. Rivera conceded that he shot and killed Officer Gray while fleeing from a parole search resulting from a traffic stop. Rivera further admitted that he was a member of the Merced Gangster Crips at the time of the shooting. But he denied that the shooting was premeditated, that the shooting was in furtherance of the gang, and that he previously shot anyone else as the prosecution alleged.
1. Prosecution Evidence
a. Prior Encounters Between Rivera and Officer Gray
The prosecution argued that Rivera and Officer Gray were “very familiar” with one another and “knew each other on sight,” based in part on Rivera‘s membership in the Merced Gangster Crips street gang and Officer Gray‘s work with the Merced Police Department‘s gang unit, for which he was assigned to monitor the Merced Gangster Crips. The two individuals had several encounters before the events on April 11, 2004, and April 15, 2004. LaDonna Davis-Turner, who was acquainted with Rivera through a friend, described an “altercation” that occurred when Officer Gray attempted to arrest Rivera in 1999 or 2000. Rivera was drunk, aggressive, and yelling profanities, and Officer Gray had to slam Rivera to the ground to get him under control.
b. Prior Uncharged Conduct
Adel Mohammed, who owned a liquor store in Merced that Rivera visited on the night of April 15, 2004, testified that at some point in 2000 or 2001, Rivera pointed a gun at him and his friend Larry Gonzalez while Mohammed and Gonzalez were sitting in a car outside of a different liquor store. Marlon Bradley, who knew Rivera from childhood, testified to a separate incident that occurred on September 30, 2000. Marlon testified that his brother, Edward Bradley, attended a party at
c. The Shooting of McIntire and Bianchi on April 11, 2004
Peterson testified that on April 11, 2004, she and Rivera attended a family gathering at Applegate Park. Rivera left the park in Peterson‘s car, a Mazda Protegé, accompanied by Rivera‘s friend (also a member of the Merced Gangster Crips) and Peterson‘s stepfather. Rivera did not have a driver‘s license, registration, or insurance, and Peterson thought he would get in trouble if he was pulled over, but she did not stop him.
Kimberly Bianchi testified that on the same day, she and her boyfriend Aaron McIntire were driving near John Muir Elementary School when they encountered three men in a teal green vehicle at an intersection. Bianchi and McIntire both
Bianchi saw the driver display a handgun and fire three shots at them. McIntire saw the driver leaning out the driver‘s window pointing a handgun at him. As McIntire sped away, he heard three gunshots in quick succession. McIntire sustained a gunshot wound to the ankle.
Bianchi and McIntire identified the teal Mazda Protegé carrying Rivera as the vehicle from which the shots were fired. Officer Frank Bazzar recovered three cartridge casings at the scene of the shooting. Upon inspecting McIntire‘s car, he noted a bullet hole in the lower portion of the driver‘s door and a hole in the left side of the rear bumper, as well as a bullet on the back floorboard behind the passenger seat.
Bianchi described the driver as Hispanic with a white tank top and dark, “pouffy” hair. During a photo lineup of six men several months after the incident, Bianchi was unable to pick out the driver (Rivera). While testifying at the preliminary hearing, Bianchi was unsure whether Rivera was the driver. At trial, Bianchi identified Rivera as the driver, testifying that she was now “pretty positive” it was him. McIntire also identified Rivera at trial as the driver and shooter. McIntire averred that he had been “positive” it was Rivera essentially since the day of the shooting, but his testimony at the preliminary hearing was unsure.
Officer Sean Greene, who worked with Officer Gray on the Merced Police Department‘s gang unit, and Officer Colin Smith, who worked on the Merced Police Department‘s special operations unit, testified that Rivera‘s name came up at a meeting on April 13, 2004 as a possible person of interest in the
d. The Shooting of Officer Gray on April 15, 2004
Peterson testified to the incidents leading up to the shooting on April 15, 2004. That day, after being at Peterson‘s mother‘s apartment, Rivera asked Peterson to take him to “The Hut.” Peterson described The Hut as “a place where people hang out: They gamble, they do drugs, people sell drugs.” Peterson drove Rivera and their two-year-old daughter south on Glen Avenue in the direction of The Hut, intending to stop at a gas station first. At a four-way stop, Peterson and Rivera saw and immediately recognized Officer Gray, who was traveling east in another vehicle. Officer Gray turned his car around and followed Rivera and Peterson south. Peterson told Rivera that there was nothing to worry about because she had a license and insurance. Rivera responded, “Mother-fucker, why did — Why is he always bothering me? Why is he harassing me? Why don‘t he just leave me alone?” Peterson again reassured Rivera that they had nothing to worry about. Peterson did not know Rivera had a gun, nor that as a parolee he could be pulled over and searched at any time.
Using Peterson‘s cell phone, Rivera called Peterson‘s father, Anton Martin. Rivera told Martin that Officer Gray was following him and asked if Martin could come “to where we were at.” Peterson noticed that Officer Gray turned on his vehicle‘s overhead lights, and she told Rivera that Officer Gray was pulling them over. Rivera responded: “Why is this mother-fucker . . . harassing me? Why won‘t he leave me alone?” Peterson pulled over to the side of Glen Avenue. During opening
As Peterson was pulling the car to the side of the road, Rivera made a second phone call, this time to Clint Ward. Peterson was not sure whether Ward was a member of a gang but knew he was popular among members of the Merced Gangster Crips because he had a car and would drive them to The Hut and elsewhere. Rivera asked Ward to come get him.
After pulling over, Peterson began to step out of the car. Officer Gray instructed her to go back inside. Peterson testified that she initially left the vehicle without thinking, not because she knew Rivera was planning to do something. Officer Gray approached the car, walked around to the passenger side, and asked Rivera to end his phone call. Rivera complied. Officer Gray asked when Rivera had last seen his parole officer, and Rivera replied: “On Monday.” Peterson heard someone over a police dispatch radio state that Rivera was clear of any outstanding warrants. Officer Gray asked Rivera to step out of the vehicle to be searched. Rivera did so, but before Officer Gray could search him, Rivera took off running. Officer Gray ran after him. Peterson heard Officer Gray say, “I don‘t know why you‘re running. You‘re going to get caught anyway.” Peterson saw Rivera holding his right hand underneath his left arm next to his body as he ran and saw a gun flash. Peterson did not see a gun nor hear gunshots, but she saw Officer Gray fall to the ground.
Natasha Velasquez was driving with her boyfriend on Glen Avenue at the time these events took place. She testified that she saw a man turn his upper torso to the right and point a gun at a police officer who was chasing him. Velasquez heard two gunshots and saw the officer fall to the ground. Michael Clary and Donna Clary were at their home on the evening of April 15, 2004 and testified that they saw an unmarked police car stop a car outside their window, heard at least two gunshots, saw an officer “down,” and observed a young black woman standing near the car, speaking on a cell phone and crying. Michael Clary heard the woman say, ” ‘I didn‘t think he would do it,’ ” and Donna Clary heard her say something like, ” ‘I can‘t believe that he shot him.’ ”
An autopsy revealed that Officer Gray sustained two gunshot wounds: a nonfatal wound consistent with a bullet entering the back of his left arm approximately nine inches from the top of his shoulder and traveling 5.5 inches in muscle and soft tissue before exiting his arm; and a fatal wound consistent with a bullet entering the right side of his chest, traveling through a large artery and his lung, and striking his spinal column, thereby severing the spinal cord. The bullet that caused the first wound was never found, but the .45-caliber bullet responsible for the second wound was recovered from Officer Gray‘s body, along with two expended shell casings recovered from the scene of the shooting. Forensic evidence revealed that the bullet and shell casings came from the same .45-caliber semiautomic pistol as the bullet and three expended shell casings recovered from the April 11, 2004 shooting. The gun used to shoot Officer Gray was not recovered.
Sergeant Thomas Trinidad, Officer Gray‘s supervisor in the gang unit, testified that Officer Gray had been leading an investigation into the Merced Gangster Crips‘s drug trade, that
e. After the Shooting
Daniel Flores did not know Rivera personally but had seen him around the neighborhood. He testified that on the night of April 15, 2004, Rivera walked into Flores‘s house, which was three blocks from Glen Avenue. Rivera told Flores to stay put and give him some clothes. Flores was not sure what was happening but was scared and felt that there might be a problem if he did not follow instructions. Flores gave Rivera a pair of sweatpants, which Rivera put on over the clothes he was already wearing. Flores‘s roommate, Ricardo Munoz, arrived about five minutes later. Munoz did not know Rivera either, but when Rivera asked for clothes, Munoz removed the T-shirt he was wearing and gave it to him, hoping Rivera would leave the house. Rivera asked for a ride, but Munoz refused because he believed Rivera had done something wrong. Munoz suspected Rivera was hiding from the police because Rivera asked him “where the cops were at.” When Rivera again asked for a ride, Munoz refused once again, this time because there was a police car blocking his vehicle. Neither Flores nor Munoz saw a weapon on him.
2. Defense Evidence
Defense counsel conceded during closing argument that Rivera shot and killed Officer Gray but argued that none of the evidence presented by the prosecution demonstrated beyond a reasonable doubt that the shooting was premeditated or gang-related. Rather, the shooting was a “chance encounter.” Defense counsel presented testimony from Professor Jose Lopez, a gang expert, who concluded that the shooting “was not a gang-related crime” because the events unfolded rapidly, leaving little time for Rivera to deliberate on whether killing Officer Gray would increase his gang‘s reputation. Furthermore, killing a police officer would not boost the reputation of his gang, but instead would put both the killer and the gang in trouble by inviting a crackdown from police. Accordingly, Professor Lopez believed that Rivera was “just trying to escape.”
The jury received its instructions, heard closing arguments, and began its deliberations on May 2, 2007. The following day, the jury found Rivera guilty of the first degree murder of Officer Gray and found true the special circumstance allegations that the murder was committed for the purpose of avoiding or preventing a lawful arrest or perfecting or attempting to perfect an escape from lawful custody, and that the murder involved the intentional killing of a peace officer who was engaged in the performance of his duties. The jury found not true the special circumstance allegation that the murder was carried out to further the activities of a criminal street gang. The jury also convicted Rivera of two counts of unlawful possession of a firearm by a felon, two counts of shooting at an occupied vehicle, and two stayed counts of assault with a semiautomatic firearm. The jury found true all enhancements, including that the offenses of murder and unlawful possession of a firearm were “committed for the benefit of, at the direction of, or in association with any criminal street gang” for the purposes of
B. Penalty Phase
The penalty phase of trial began on May 9, 2007.
1. Prosecution Evidence
Rivera was previously convicted for unlawful possession of a firearm (
The prosecution referred the jury to its verdicts finding Rivera guilty of firing three shots at McIntire and Bianchi, and of murdering Officer Gray while he was performing his duties. The court instructed the jury that it could consider certain evidence if the jury found the allegations true beyond a reasonable doubt. Specifically, the court cited evidence from the guilt phase that Rivera previously had been convicted of possession of a firearm by a prohibited person and possession for sale of cocaine base, and uncharged conduct including two counts of shooting at an occupied vehicle, two counts of assault with a semiautomatic firearm, possession of a firearm by a felon, making criminal threats in violation of
Sergeant Barbara Carbonaro testified that on April 18, 2006, Rivera caused a disturbance at the jail by bailing water out of the toilet, resulting in flooding in his cell and the hallway. According to Sergeant Carbonaro, Rivera was angry because he could not be rehoused in the jail‘s general population. She recalled that Rivera said his treatment was “unfair” and that he was in jail “just because some pig got killed.” Sergeant Carbonaro understood Rivera to be referring to Officer Gray.
2. Defense Evidence
Dr. Avak Howsepian, a medical doctor who interviewed Rivera and spoke with his family and relatives, testified that Rivera suffered from posttraumatic stress disorder, impulse control disorder not otherwise specified, and psychotic disorder. Dr. Howsepian attributed Rivera‘s posttraumatic stress disorder to his witnessing, at age three or four, an accident in which a motorcyclist was killed. He opined that this trauma was exacerbated by Rivera‘s fatherless childhood and his mother‘s relationship with a man who beat her, causing Rivera to stay home from school to protect her. Rivera also had to protect his mother from his brother, Oswaldo, who suffered from mental
A number of witnesses testified to Rivera‘s good character. Esperanza Yadira Rivera, Rivera‘s niece, testified that Rivera was a father figure to her who talked with her about school, grades, and boys. Rivera continues to be a positive influence on her by writing letters from jail and encouraging her to get good grades and to stay out of trouble. Marcela Arroyo, Rivera‘s younger sister, testified that Rivera had a positive impact on her while they were growing up and that he continues to encourage her to stay in school and to be a role model to the younger members of the family. Marcela Arroyo also testified that after her grandfather was in a car accident, Rivera saved his life by pulling him out of the car. Erika Rivera, Rivera‘s mother, testified that money was tight while the children were growing up. Rivera‘s father left when she was two months pregnant with Rivera. After he had a child of his own, Rivera looked for his own father but never found him. Erika Rivera also testified that her son tried to be a father figure to his siblings and was “very focused on his daughter,” with whom he remains in touch.
II. ISSUES REGARDING GUILT AND SPECIAL CIRCUMSTANCES
A. Sufficiency of the Evidence for First Degree Murder
Rivera contends that there was insufficient evidence to support a conviction for first degree murder committed with premeditation and deliberation. Upon a challenge to the
In People v. Anderson (1968) 70 Cal.2d 15, we observed that “[t]he type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories“: (1) facts about planning activity “prior to the actual killing which show[s] that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing“; (2) “facts about the defendant‘s prior relationship and/or conduct with the victim from which the jury could reasonably infer a ‘motive’ to kill the victim“; and (3) “facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a ‘preconceived design.’ ” (Id. at pp. 26–27, italics omitted.) “Since Anderson, we have emphasized that its guidelines are descriptive and neither normative nor exhaustive, and that reviewing courts need not accord them any particular weight.” (People v. Halvorsen (2007) 42 Cal.4th 379, 420.)
Rivera argues there was insufficient evidence of each of the Anderson factors for the jury to convict him of first degree murder; rather, the killing resulted from an unplanned encounter initiated by Officer Gray‘s stop. The Attorney
The prosecutor presented evidence that Rivera and Officer Gray “knew each other on sight” and that Rivera had an ongoing relationship from which the jury could reasonably infer a motive to kill. Officer Gray lectured Rivera about hanging around “with the people he was hanging around with” and warned Rivera that if Officer Gray “[saw] him doing anything, then, you know, he would come get him.” Peterson testified that on the night of the shooting, she stopped at a four-way stop sign, where both she and Rivera recognized Officer Gray stopping around the same time. Officer Gray turned his car around and followed Rivera and Peterson south. After noticing they were being followed, Rivera said, “Mother-fucker, why did — Why is he always bothering me? Why is he harassing me? Why don‘t he just leave me alone?” Rivera then called Peterson‘s father, Anton Martin, and told him that Officer Gray was following him. Rivera made a second phone call to Clint Ward, a popular contact among gang members because he had a car and would offer them rides. Peterson did not find it unusual for Rivera to call these two individuals, but she could not explain why he would need a ride. Peterson also recalled Rivera‘s stepbrother, Salvador Arroyo, telling her that Arroyo remembered hearing Rivera say he was “going to do something to Gray because he was tired of [Gray] harassing him,” but Arroyo testified that he did not remember this conversation.
Based on this evidence, the jury could have reasonably concluded that Rivera made the phone calls and held onto his
B. Use of CALJIC No. 8.71
Rivera contends that the trial court gave a flawed version of CALJIC No. 8.71 that suggested a juror was to give the defendant the benefit of the doubt as to the degree of the offense only if all jurors unanimously had a reasonable doubt as to the degree. Rivera argues that the alleged instructional error deprived him of the benefit of the judgment of individual jurors and diminished the prosecutor‘s burden of proof, thereby violating his rights under state law and under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution.
The trial court gave the following instruction to the jury: “If you are convinced beyond a reasonable doubt and unanimously agree that the crime of murder has been committed by the defendant, but you unanimously agree that you have a reasonable doubt whether the murder was of the first or of the second degree, you must give the defendant the benefit of that doubt and return a verdict fixing the murder as of the second degree.” The instruction tracks the version of CALJIC No. 8.71 as of 2007, when the trial occurred. In 2011, we
We review a claim of instructional error de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1210.) The challenged instruction is considered “in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner.” (People v. Houston (2012) 54 Cal.4th 1186, 1229 (Houston).)
We conclude that the use of CALJIC No. 8.71 was “not erroneous . . . when considered with the rest of the charge to the jury.” (People v. Salazar (2016) 63 Cal.4th 214, 248 (Salazar).) Here, the trial court also instructed the jury with CALJIC No. 8.74: “Before you may return a verdict in this case, you must agree unanimously not only as to whether the defendant is guilty or not guilty, but also, if you should find him guilty of an unlawful killing, you must agree unanimously as to whether he is guilty of murder of the first degree or murder of the second degree.” CALJIC No. 8.74 explains that there must be unanimous agreement for the jury to convict on first degree
Furthermore, the trial court instructed the jury with CALJIC No. 17.40: “The People and the defendant are entitled to the individual opinion of each juror. Each of you must consider the evidence for the purpose of reaching a verdict if you can do so. Each of you must decide the case for yourself but should do so only after discussing the evidence and instructions with the other jurors. [¶] Do not hesitate to change an opinion if you are convinced it is wrong. However, do not decide any question in a particular way because a majority of the jurors or any of them favor that decision. Do not decide any issue in this case by the flip of a coin or by any other chance determination.” Such an instruction emphasizes that jurors must each decide guilt for themselves and mitigates the concern that jurors would abandon their individual judgments regarding reasonable doubt to first degree murder because of the instruction using former CALJIC No. 8.71. (See People v. Gunder (2007) 151 Cal.App.4th 412, 424–425 [finding no reversible error where, in addition to CALJIC No. 8.71, the trial court gave an instruction nearly identical to CALJIC No. 17.40]; People v. Pescador (2004) 119 Cal.App.4th 252, 255–258 [finding no reversible error where the trial court instructed with CALJIC Nos. 17.11 (stating that if the jury found the defendant guilty, but reasonable doubt existed as to whether the murder was of the first or second degree, the jury must find the defendant guilty of murder in the second degree), 17.40, and 8.50 (describing the difference between murder and manslaughter) in addition to CALJIC No. 8.71].) These two instructions mitigated any possible confusion from the use of CALJIC No. 8.71. (See People v. Buenrostro (2018) 6 Cal.5th 367, 428–430; People v. Gomez (2018) 6 Cal.5th 243, 302.)
There is also no indication in the record that the jury was confused by the instruction. The jury submitted one note to the judge requesting copies of several Penal Code sections or an interpretation from the court about the statutory language of one of the special circumstances and one of the enhancements alleged. The trial court directed the jury to its earlier instructions and indicated that if the jury needed further explanation, the court could address that later. The jury did not inquire further.
Based on the collective instructions given regarding the requirement of unanimity and individual decisionmaking, and given the lack of any indication that the jury was confused or misled into returning the greater verdict of first degree murder despite a juror having a reasonable doubt of such a finding, we conclude that “[n]o logical reading” of CALJIC No. 8.71 would compel a first degree murder verdict under the circumstances present here. (Salazar, supra, 63 Cal.4th at p. 247.)
Rivera contends that the CALJIC No. 8.71 also violated his rights under state law and under the
“Under the acquittal-first rule, a trial court may direct the order in which jury verdicts are returned by requiring an express acquittal on the charged crime before a verdict may be returned on a lesser included offense.” (People v. Bacon (2010) 50 Cal.4th 1082, 1110.) We have observed that an acquittal-first instruction must not prohibit the jury from considering or deliberating on the lesser included offense before returning a verdict on the greater offense. (People v. Kurtzman (1988) 46 Cal.3d 322, 330–331.)
The instruction with which Rivera takes issue here (CALJIC No. 8.71) does not directly address the order-of-deliberations issue and therefore does not provide occasion to reconsider our prior holdings. CALJIC No. 8.71 simply states that if the jury has reasonable doubt about whether the murder was of the first or second degree, the jury “must give defendant the benefit of that doubt and find that the murder is of the
D. Failure To Instruct That Subjective Provocation May Reduce Premeditated First Degree Murder to Second Degree Murder
Rivera contends that the trial court committed prejudicial error when it failed to sua sponte instruct the jury that subjective provocation can reduce premeditated murder to second degree murder in this case because the evidence of premeditation and deliberation was weak, and because substantial evidence tended to show the shooting was in direct response to appellant‘s perception that the traffic stop and search were part of a pattern of harassment.
Provocation may indeed reduce murder from first to second degree. (People v. Thomas (1945) 25 Cal.2d 880, 903 [provocation might “be adequate to negative or raise a
E. Instruction on Special Circumstance Allegation of Murder To Prevent Arrest or Escape from Lawful Custody
Rivera contends the trial court erred by instructing the jury that the special circumstance under
As noted, we review a claim of instructional error de novo. (People v. Cole, supra, 33 Cal.4th at p. 1210.) We consider the challenged instruction in the context of the instructions and record as a whole to ascertain whether there is a reasonable likelihood the jury impermissibly applied the instruction. (Houston, supra, 54 Cal.4th at p. 1229.)
“The nature of th[e] harmless error analysis depends on whether a jury has been presented with a legally invalid or a factually invalid theory.” (People v. Perez (2005) 35 Cal.4th 1219, 1233 (Perez).) A legally inadequate theory involves a “mistake about the law” that the jury would generally have no reason to know, such as if ” ‘the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime.’ ” (People v. Guiton (1993) 4 Cal.4th 1116, 1125.) A factually inadequate theory involves a mistake about a fact that the “jury is fully equipped to detect” (id. at p. 1129) or a theory that “while legally correct, has no application to the facts of the case” (Perez, at p. 1233). In cases of factual inadequacy, the error is one of state law, and “[w]e will affirm ‘unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory.’ ” (Id. at p. 1233, quoting Guiton, at p. 1130.)
The special circumstance in
The record as a whole does not suggest that the jury relied on the unsupported theory. It is undisputed that Officer Gray stopped the car and asked Rivera, who was on parole, to exit the car. It is also undisputed that at that point, Rivera ran away while possessing a gun that he later used during the pursuit. During closing argument, the prosecutor argued that the jury should find the special circumstance true because “the defendant killed Officer Gray who was about to make a lawful arrest.” The jury found that Rivera intentionally killed Officer Gray while he was engaged in the performance of his duties or in retaliation for the performance of his duties. The jury also found Rivera guilty of being a felon in possession of a firearm while running away from Officer Gray. The underlying facts and convictions indicate there was ample evidence that the jury
F. Peace-officer-killing Special Finding Does Not Apply to First Degree Murder
Rivera initially contended that the peace-officer-killing enhancement must be stricken because
G. Sufficiency of the Evidence for Gang-related Enhancements for First Degree Murder and Felon-in-possession-of-a-firearm Convictions
Rivera argues that the evidence is insufficient to sustain the jury‘s true finding that his convictions for murder and unlawful possession of a firearm by a felon were committed for the benefit of, at the direction of, or in association with a criminal street gang for the purpose of a gang-related enhancement. (
“We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction.” (People v. Wilson (2008) 44 Cal.4th 758, 806.) “We presume
In this case, the prosecution presented evidence that Rivera was an active member of the Merced Gangster Crips: He participated in and had previously pled guilty to offenses related to the gang‘s drug trade; he bore gang tattoos that referred to the Merced Gangster Crips; and he possessed firearms associated with the gang. Rivera contacted several individuals who were either members of the gang or “hung around” with
The prosecution also presented evidence that Officer Gray had been leading an investigation into the Merced Gangster Crips‘s drug trade, and that Rivera had personally interacted with Officer Gray in the course of his investigation of a shooting involving another gang member: During a parole check, Officer Gray and another officer asked Rivera about the other gang member and searched his home for any information about the whereabouts of the other gang member. Officer Gray also lectured Rivera about hanging around “with the people he was hanging around with.” Finally, although the gun used to kill Officer Gray was not recovered, forensic evidence of the bullet recovered from Officer Gray‘s body and shell casings found at the scene indicated that they came from the same .45-caliber semiautomatic firearm used in the gang-related McIntire shooting three days earlier. A reasonable jury could infer from this evidence that Rivera specifically intended the murder to benefit and promote the gang.
H. Failure To Instruct Jury on All Elements of Assault for Purposes of Offense of Assault with a Semiautomatic Firearm
Rivera contends that the failure to instruct on the elements of “assault” created a structural error requiring per se reversal of the convictions of assault with a semiautomatic firearm against McIntire and Bianchi in counts V and VI. The trial court instructed the jury in the language of CALJIC No. 9.02.1: “Defendant is accused in Counts V and VI of having
“The trial court has a sua sponte duty to instruct the jury on the essential elements of the charged offense.” (People v. Merritt (2017) 2 Cal.5th 819, 824.) Failure to do so is a “very serious constitutional error because it threatens the right to a jury trial that both the United States and California Constitutions guarantee. (
Here, the jury found, upon proper instruction, that Rivera personally used a firearm in violation of
I. Allegations of Prosecutorial Misconduct During Guilt-phase Closing Argument
Rivera contends that the prosecutor committed four instances of misconduct during his closing argument: (1) suggesting unethical conduct by the defense expert witness; (2) arguing the existence of facts not admitted into evidence to bolster the prosecution‘s case; (3) vouching for witnesses, thereby bolstering the testimony in support of the prosecution‘s case; and (4) appealing to passion and fear and, in doing so, misstating the law on first degree premeditated murder. These instances, Rivera argues, rendered the trial fundamentally unfair and denied him his state and federal rights to due process, effective assistance of counsel, and a fair trial.
” ‘A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such ” ‘unfairness as to make the
Rivera objected only to the first three instances of alleged misconduct, and he only did so outside the presence of the jury after the closing argument was over. His claims are therefore untimely and forfeited. (Pensinger, supra, 52 Cal.3d at p. 1251; Friend, supra, 47 Cal.4th at p. 29.) But in any event, each
1. Suggesting Unethical Conduct by the Defense Expert Witness
Rivera argues the prosecutor improperly suggested that defense expert Professor Lopez engaged in unethical conduct when the prosecutor said to the jury: “We would suggest that based on the flawed manner in which the defense expert . . . conducted his research, you can completely disregard the testimony that this murder was not committed for the benefit of the street gang. Didn‘t talk to any other than one member of [the Merced Gangster Crips], spent two hours with the defendant, didn‘t talk to Sergeant Trinidad, didn‘t talk to any Merced police officers, get the lay of the land. That‘s not research. That‘s not an investigation. That‘s taking money and trying to arrive at a conclusion that the money was paid to secure.”
“Argument may not denigrate the integrity of opposing counsel, but harsh and colorful attacks on the credibility of opposing witnesses are permissible. [Citations.] Thus, counsel is free to remind the jurors that a paid witness may accordingly be biased and is also allowed to argue, from the evidence, that a witness‘s testimony is unbelievable, unsound, or even a patent ‘lie.’ ” (People v. Arias (1996) 13 Cal.4th 92, 162.) We have previously concluded that discrediting a defense witness does not constitute misconduct provided that the “prosecutor‘s argument merely focused on the evidentiary reasons why [an expert‘s opinions] could not be trusted.” (Ibid.; see also People v. Blacksher (2011) 52 Cal.4th 769, 838 [concluding prosecutor‘s claim that a defense witness was not useful to defendant‘s case
2. Arguing the Existence of Facts Not Admitted into Evidence
In his closing argument, the prosecutor said to the jurors: “Members of the Jury, this case has gone faster than we anticipated because frankly, and sadly, the facts just aren‘t very complex. Many of the witnesses we could have called would have been repetitive, and Mr. Bacciarini and I are completely satisfied that you understand what happened in both shootings. There isn‘t much more to add.” Rivera argues that the prosecutor committed misconduct by referring to facts not admitted into evidence. ” ‘[S]tatements of facts not in evidence by the prosecuting attorney in his argument to the jury constitute misconduct.’ ” (People v. Bolton (1979) 23 Cal.3d 208, 212.) The Attorney General concedes that the prosecutor‘s statement that he could have called other witnesses was improper but argues that the error was harmless. We agree.
Whether considered under this state‘s “reasonable likelihood of a more favorable verdict” standard or the federal “harmless beyond a reasonable doubt” standard, the error here was harmless. (Cook, supra, 39 Cal.4th at p. 608.) It is true that the prosecutor was apparently attempting to bolster the credibility of the admitted evidence by suggesting other
3. Vouching for Witnesses
Rivera also argues that that by referring to unadmitted evidence and stating that he was “completely satisfied that you [the jury] understand what happened in both shootings,” the prosecutor committed misconduct by vouching for the witnesses. “While a ‘prosecuting attorney has a wide range in which to state his views as to what the evidence shows and the conclusions to be drawn therefrom’ [citation], and in his argument to the jury the prosecutor may comment upon the credibility of witnesses ‘in the light of all the evidence in the case’ [citations], ‘[i]t is misconduct for a prosecuting attorney to express his personal belief as to the reliability of a witness.’ ” (People v. Perez (1962) 58 Cal.2d 229, 245.) “Impermissible ‘vouching’ may occur where the prosecutor places the prestige of the government behind a witness through personal assurances of the witness‘s veracity or suggests that information not presented to the jury supports the witness‘s testimony.” (People v. Fierro (1991) 1 Cal.4th 173, 211.) “Such an expression of personal opinion is misconduct whether the prosecutor is seeking thereby to bolster testimony which was in support of the People‘s case [citations], or whether the People‘s representative is attempting to discredit the credibility or reliability of
The prosecutor did not refer to any particular witness nor make assurances of the truth of their testimony. His brief allusion to facts not in evidence did not have the prejudicial effect of bolstering the testimony of any particular witness. The prosecutor‘s statement therefore did not constitute impermissible vouching of a witness.
4. Appealing to Passion and Fear and Misstating the Law on First Degree Premeditated Murder
Rivera argues that the prosecutor improperly appealed to passion and fear by making several statements during closing argument. First, the prosecutor said to the jury: “On the homefront, one of the most important acts of citizenship that any person can be asked to perform is now being performed by you in your service as jurors; and more so, in a murder trial in which the penalty being sought is death.” In rebuttal, the prosecutor urged the jury to “bring a verdict into this courtroom that honors its more than 150-year tradition of justice.” Second, the prosecutor argued: “[G]angsters don‘t deserve second-degree murder because they already come from a murder mindset. Murder is already part of their culture. It was already part of the defendant‘s lifestyle, part of who he is.” On rebuttal, the prosecutor also said: “Gang members are ready to kill. It‘s part of their culture; it‘s what they do. They commit acts of violence.” Finally, the prosecutor repeated the initial statement: “Gang members, like this prosecutor said, don‘t get second-degree murder, they don‘t deserve second-degree murder.” Rivera argues these statements both appealed to the jurors’ passions by bringing the potential death penalty to bear
“A prosecutor is allowed to make vigorous arguments and may even use such epithets as are warranted by the evidence, as long as these arguments are not inflammatory and principally aimed at arousing the passion or prejudice of the jury.” (Pensinger, supra, 52 Cal.3d at p. 1251.) “[I]t is improper for a prosecutor to appeal to the passion or prejudice of the jury.” (People v. Cornwell (2005) 37 Cal.4th 50, 92 (Cornwell).) “[I]t is misconduct for a prosecutor, during argument, to misstate the law [citation], or to invite or encourage the jury to do what the law prohibits.” (People v. Whalen (2013) 56 Cal.4th 1, 77.)
Even assuming Rivera did not forfeit his claim concerning the statements about jury service by failing to timely object, we conclude that these statements do not constitute misconduct. The prosecutor‘s statement merely reminded the jurors about the importance of the civic duty in which they were engaged. It did not ask the jury to act on the basis of fear or to decide the case in a particular way in light of that duty. (See Cornwell, supra, 37 Cal.4th at pp. 92–93 [finding no prosecutorial misconduct for prosecutor‘s appeal to ” ‘the duty’ ” that is ” ‘essential to our society’ ” where “the prosecutor‘s argument did not urge the members of the jury to act on the basis of their fear of chaos and crime in the community, but to act with an understanding of the importance of law in the abstract“].)
The prosecutor‘s statements that gang members do not “deserve second-degree murder” and “don‘t get second-degree murder” are more troubling. Being affiliated with a gang does
But Rivera did not object to the prosecutor‘s statements implying that gang members deserve to be convicted of first degree murder. Rivera therefore forfeited this claim. (See Pensinger, supra, 52 Cal.3d at p. 1251; Friend, supra, 47 Cal.4th at p. 29.)
J. Review of Sealed Transcripts of Trial Court‘s Pitchess Hearings and Withholding of Relevant Documents
Rivera requests that we independently review the sealed record of the trial court discovery rulings pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 in order to determine whether the trial court‘s in camera review process complied with the law. We have done so and conclude that the trial court did not abuse its discretion.
Before trial, Rivera filed a Pitchess motion seeking to discover documents from the prosecution concerning Officer Gray — in particular, evidence or complaints of “excessive force, aggressive conduct, unnecessary or excessive violence, unnecessary force, planting of evidence, false arrest, false statements in reports, false claims of probable cause, detaining
“When a defendant shows good cause for the discovery of information in an officer‘s personnel records, the trial court must examine the records in camera to determine if any information should be disclosed. [Citation.] The court may not disclose complaints over five years old, conclusions drawn during an investigation, or facts so remote or irrelevant that their disclosure would be of little benefit. [Citations.] Pitchess rulings are reviewed for abuse of discretion.” (People v. Winbush (2017) 2 Cal.5th 402, 424.)
In this case, the record includes sealed transcripts of both in camera hearings and an envelope with sealed exhibits pertaining to Rivera‘s motion. After reviewing these documents, we conclude that there was no abuse of discretion. The custodian of records brought to the trial court “all ‘potentially relevant’ documents to permit the trial court to examine them for itself“; was placed under oath at the in camera hearing; and
K. Admission of Evidence of Uncharged Misconduct
Rivera contends that the trial court prejudicially erred when it allowed the prosecutor to admit testimony about several incidents of uncharged misconduct involving Rivera‘s use of a firearm against Adel Mohammed, Larry Gonzalez, Marlon Bradley, and Edward Bradley. Specifically, Rivera contends that although the evidence of uncharged misconduct was admitted as evidence of predicate offenses involving the Merced Gangster Crips gang, the jury was permitted to consider it for the purpose of showing premeditation, deliberation, intent, and gang-related motive with respect to the charged crimes involving McIntire and Office Gray.
During opening argument, the prosecutor mentioned two prior instances involving Rivera‘s alleged relationship with his “gang and guns“: one in 2000 in which Rivera, who was accompanied by several other people, pulled a gun on two young men who were sitting in a car outside a liquor store, and another in 2001 in which Rivera fired between six and eight shots on a group of men in a residential neighborhood in Merced. Mohammed, Marlon Bradley, and Jamilah Peterson were all permitted to testify about these events. In closing, the
“Evidence that a defendant has committed crimes other than those currently charged is not admissible to prove that the defendant is a person of bad character or has a criminal disposition; but evidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes. [Citation.] Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent.” (People v. Kipp (1998) 18 Cal.4th 349, 369.) “On appeal, the trial court‘s determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion.” (Ibid.)
The Attorney General argues that evidence of the two instances of uncharged misconduct were relevant to prove
Here, Marlon Bradley testified about a 2001 shooting after a conflict between two rival gangs at a party. After being encouraged by a fellow member of the Merced Gangster Crips to “[h]it them niggers,” Rivera shot six to eight bullets from a revolver in the direction of Bradley and two other men, but missed. This incident meets the standard of admissibility to show intent, premeditation, and gang-related motive with respect to the shooting of Aaron McIntire, in which Rivera allegedly shot a gun while accompanied by a fellow member of the Merced Gangster Crips. The incident in which Rivera, accompanied by a couple of other people, brandished a firearm at Mohammed and Gonzalez as they sat in a car is similarly probative of Rivera‘s intent with respect to shooting at McIntire, who was also sitting in a car.
But the Attorney General does not explain what made these uncharged offenses sufficiently similar to the shooting of Officer Gray, which occurred four years later and involved facts and circumstances different from both a nonlethal gang-directed shooting and an incident involving pointing a firearm at two men sitting in a car. We are therefore skeptical that the uncharged offenses were admissible for the purpose of proving
Nevertheless, Rivera did not object to the prosecutor‘s use of the evidence of uncharged misconduct for the purpose of supporting a theory of premeditation or deliberation with respect to the killing of Officer Gray, nor did he object to the use of CALJIC No. 2.50, which instructed the jury that the evidence of uncharged misconduct could be used to show intent or gang-related motive. Any objection to the use of the evidence for these purposes is therefore forfeited. (Pensinger, supra, 52 Cal.3d at p. 1251; Friend, supra, 47 Cal.4th at p. 29.)
L. Cumulative Effect of Guilt Phase Errors
Rivera contends that his convictions should be reversed because the cumulative prejudice of the alleged errors during the guilt phase violated his due process right to a fundamentally fair and reliable trial under the California and federal Constitutions. We have found or assumed several errors: the trial court‘s instruction on a factually inadequate theory of liability for the special circumstance allegation of murder to prevent arrest or escape from lawful custody; the trial court‘s failure to instruct on the elements of assault; the prosecutor‘s reference to evidence not admitted into the record as corroborating evidence; the prosecutor‘s misstatement of the law about a gang member‘s eligibility for second degree murder; and the trial court‘s admission of uncharged misconduct to support the prosecution‘s argument that Rivera premeditated the murder of Officer Gray. As discussed, each of the errors was individually harmless. Because they largely relate to distinct offenses and unrelated evidentiary issues, we conclude that they do not cumulatively amount to prejudice requiring reversal of
III. PENALTY PHASE AND SENTENCING ISSUES
A. Admission of Juvenile Adjudications
Rivera contends the trial court erred at the penalty phase by admitting, over his objection, evidence of his juvenile adjudications and his commitment as a ward of the juvenile court at ages 15 and 16.
”
Rivera argues that the high court‘s decisions in Roper v. Simmons (2005) 543 U.S. 551, Graham v. Florida (2010) 560 U.S. 48, Miller v. Alabama (2012) 567 U.S. 460, and Hall v. Florida (2014) 572 U.S. 701 [134 S.Ct. 1986] operate to preclude admission of his juvenile criminal activity and that the jury‘s consideration of such evidence is barred by the
“It is well established the federal Constitution does not bar consideration of unadjudicated criminal offenses.” (People v. Bramit (2009) 46 Cal.4th 1221, 1239.) ”Roper does not compel exclusion of such evidence.” (Taylor, supra, 48 Cal.4th at p. 653.) “That case holds that the execution of individuals who were under 18 years of age at the time of their capital crimes is prohibited by the
B. Admission of Rivera‘s Postcrime Statements and Conduct
During the penalty phase, Sergeant Carbonaro testified about an incident on April 18, 2006 in which Rivera allegedly flooded his cell and referred to Officer Gray. Sergeant Carbonaro testified that Rivera “was causing a disturbance. He was flooding out his cell. . . . He was angry because he could not be rehoused. He wanted to be rehoused down in general population. . . . He made a statement that he didn‘t — he thought that this was unfair. Everybody else gets a chance and that just because some pig got killed he was there.” Sergeant Carbonaro explained that she understood Rivera to be referring to Officer Gray. At the time, Rivera objected that there was a videotape of the incident without any indication Rivera ever made those statements; that the testimony was more prejudicial than probative; and that the prosecution may not present any evidence that Rivera was allegedly not remorseful unless Rivera presents evidence that he is remorseful for his crimes. Acknowledging that the testimony could not be admitted to show lack of remorse except in rebuttal, the trial court allowed the testimony under
“Overt remorselessness [at the immediate scene of the crime] is a statutory sentencing factor . . . because
Assuming without deciding that the admission of Rivera‘s alleged statement about Officer Gray was error, we see no reasonable possibility any error affected the jury‘s death verdict. (Chapman, supra, 386 U.S. at p. 24; People v. Nelson (2011) 51 Cal. 4th 198, 218, fn. 15.) The jury heard other properly admitted evidence of Rivera‘s disparaging statements about Officer Gray, such as, “I hate Officer Gray. I hate Officer Gray. Fuck Officer Gray.” The alleged comment labeling Officer Gray a “pig” therefore was unlikely to have affected the verdict. Furthermore, the prosecution presented other aggravating evidence in support of a death verdict, including the circumstances of the crime and Rivera‘s attempts to evade capture, Rivera‘s prior felony convictions, and his prior instances of violent criminal conduct, including the shooting incident involving Bianchi and McIntire. Nothing about the jury‘s request for a read-back of Sergeant Carbonaro‘s testimony
Rivera also contends that the trial court abused its discretion under
“[A] court need not expressly weigh prejudice against probative value or even expressly state that it has done so, if the record as a whole shows the court was aware of and performed its balancing functions under
Finally, Rivera argues that, aside from Rivera‘s alleged “pig” statement, Sergeant Carbonaro‘s accompanying testimony about Rivera causing a disturbance by flooding his cell with water from the toilet and subsequently being removed from his cell was irrelevant and unduly prejudicial. He contends that the incident did not constitute “criminal activity” to be admitted as an aggravating factor under
This argument fails. There is no indication that the prosecutor argued that the flooding incident itself should be considered an aggravating factor or that the jury improperly considered the incident as evidence in aggravation. Any error in admitting the evidence was therefore harmless.
C. Jury‘s Use of Allegedly Invalid Sentencing Factor
Rivera argues that his death judgment must be reversed and the case remanded for a new penalty trial because of the court‘s use of a jury instruction containing an invalid theory concerning the special circumstance allegation of murder to prevent arrest or escape from lawful custody. (See Part II.E, ante.) Although Rivera does not challenge the validity of the jury‘s true finding concerning a separate special circumstance eligibility factor — murder of a peace officer engaged in the performance of his duties — Rivera argues that reversal is required because the jury should not have given any
“An invalidated sentencing factor (whether an eligibility factor or not) will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances.” (Brown v. Sanders (2006) 546 U.S. 212, 220 (Brown); see People v. Debose (2014) 59 Cal.4th 177, 196.)
The facts and circumstances supporting the jury‘s true finding that the murder was committed to prevent arrest or escape from lawful custody were properly available for consideration as “circumstances of the crime of which the defendant was convicted.” (
During the penalty phase trial, Rivera requested the following instruction: “A juror who voted for conviction at the guilt phase may still have a lingering or residual doubt as to whether the defendant premeditated and deliberated the murder of Officer Gray. Such a lingering or residual doubt, although not sufficient to leave you with a reasonable doubt at the guilt phase, may still be considered as a mitigating factor at the penalty phase. Each individual juror may determine whether any lingering or residual doubt is a mitigating factor and may assign it whatever weight the juror feels is appropriate.” The trial court refused to give the requested instruction but indicated that it would permit Rivera to argue lingering doubt to the jury. While acknowledging that we have previously held otherwise, Rivera argues that he was entitled to an instruction on lingering doubt and that the trial court‘s refusal to provide the instruction violated Rivera‘s constitutional rights and requires reversal of the death judgment. We conclude that there was no error.
“Although the jurors may consider lingering doubt in reaching a penalty determination, there is no requirement under state or federal law that the court specifically instruct that they may do so.” (People v. Boyce (2014) 59 Cal.4th 672, 708.) The trial court instructed the jury with CALJIC No. 8.85, factor (k), which “tells the jury that it may consider ‘[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime and any sympathetic or other aspect of the defendant‘s character or record that the defendant offers as a basis for a sentence less than death, whether or not related to the offense for which he is on trial.’ . . . That instruction sufficiently encompasses the concept of
E. Death Penalty Statute as Unconstitutional and a Violation of International Law
Rivera argues that many features of California‘s death penalty statute violate the U.S. Constitution and international law. As Rivera acknowledges, we have repeatedly rejected similar claims, and Rivera provides no persuasive reason to revisit the following precedent:
“[T]he California death penalty statute is not impermissibly broad, whether considered on its face or as interpreted by this court.” (People v. Dykes (2009) 46 Cal.4th 731, 813.) We have “reject[ed] the claim that
“The death penalty statute does not lack safeguards to avoid arbitrary and capricious sentencing . . . or constitute cruel and unusual punishment on the ground that it does not require either unanimity as to the truth of aggravating circumstances or findings beyond a reasonable doubt that an aggravating circumstance (other than
“No burden of proof is constitutionally required, nor is the trial court required to instruct the jury that there is no burden of proof.” (People v. Dement (2011) 53 Cal.4th 1, 55.) The trial court need not instruct that there is a presumption of life, that if the mitigating factors outweigh the aggravating factors the jury should impose a sentence of life imprisonment without the possibility of parole, or that a jury need not be unanimous in finding the existence of a mitigating factor. (People v. Williams (2016) 1 Cal.5th 1166, 1204; People v. Adams (2014) 60 Cal.4th 541, 581; Moore, supra, 51 Cal.4th at pp. 1139–1140.) “[U]nanimity with respect to aggravating factors is not required by statute or as a constitutional procedural safeguard.” (People v. Taylor (1990) 52 Cal.3d 719, 749.)
The language “so substantial” and “warrants” in CALJIC No. 8.88 is not impermissibly vague. (People v. Romero and Self (2015) 62 Cal.4th 1, 56.) The trial court was not required to delete inapplicable factors from CALJIC No. 8.85 (People v. Watson (2008) 43 Cal.4th 652, 701), or “instruct that the jury can consider certain statutory factors only in mitigation” (Valencia, supra, 43 Cal.4th 268, 311).
“The federal constitutional guarantees of due process and equal protection, and against cruel and unusual punishment [citations], do not require intercase proportionality review on appeal.” (People v. Mai (2013) 57 Cal.4th 986, 1057.) “Moreover, ‘capital and noncapital defendants are not similarly situated
F. Cumulative Effect of Guilt and Penalty Phase Errors
Rivera contends that the penalty judgment must be reversed due to the cumulative prejudice of the alleged errors during the guilt and penalty phases in violation of his due process right to a fundamentally fair and reliable trial under the California and federal Constitutions. We have assumed one error in the penalty phase: the trial court‘s decision to admit evidence of Rivera‘s postcrime statements and conduct under
G. Restitution and Parole Revocation Fines
Rivera contends, and the Attorney General agrees, that the trial court erred by imposing two fines in excess of the statutory maximum: a restitution fine of $23,600 imposed under
Unauthorized sentences are those that ” ‘could not lawfully be imposed under any circumstance in the particular case’ ” (People v. Smith (2001) 24 Cal.4th 849, 852), including a trial court‘s imposition of a restitution fine in excess of the maximum amount permitted by the applicable statute (Blackburn, supra, 72 Cal.App.4th at p. 1534). An unauthorized sentence is reviewable on appeal regardless of whether it was objected to at trial. (Smith, at p. 852.) When a trial court imposes fines in excess of the statutory maximum, the proper remedy is to modify the judgment to reduce the fines to the statutory maximum. (Blackburn, at p. 1534.) Accordingly, we will modify the judgment to reduce the restitution fine pursuant to
CONCLUSION
We modify the judgment to reduce the restitution and parole revocation fines to $10,000 each. We affirm the judgment as modified.
LIU, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.