THE PEOPLE, Plaintiff and Respondent, v. CUITLAHUAC TAHUA RIVERA, Defendant and Appellant.
S153881
IN THE SUPREME COURT OF CALIFORNIA
May 23, 2019
Colusa County Superior Court CR46819
Justice Liu authored the opinion of the court, in which Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Cuéllar, Kruger and Groban concurred.
PEOPLE v. RIVERA
S153881
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.
PEOPLE v. RIVERA
Opinion of the Court by Liu, J.
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. Peterson testified about another encounter during which Rivera abandoned Peterson‘s car on the side of the road to evade Officer Gray, who had been following him. Peterson called Officer Gray to attempt to get her car back. Officer Gray informed her that he would only return the car if Rivera would speak with him. Peterson subsequently contacted Rivera, but Rivera refused to speak to Officer Gray. On yet another occasion, Officer Gray came to Peterson‘s house to speak with Rivera. Peterson testified that although Officer Gray was always professional, he would lecture Rivera about how he had a daughter and family, and that it was a bad idea to hang around “with the people he was hanging around with.” Officer Gray warned Rivera that he was watching and if Rivera did anything, Officer Gray would come get him. Rivera expressed to Peterson that Officer Gray was always harassing him, and he resented Officer Gray‘s separate conversations with Peterson about how
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 which a conflict arose between members of two rival gangs, the Merced Gangster Crips and the Merced Bloods. After the party, Marlon became aware that Rivera had arrived at his home with an individual named Gerard Roberts. Marlon stepped outside to join his brother and his friend Calvin Huffman. Marlon testified that Roberts encouraged Rivera to “Hit them niggers.” Rivera shot six to eight bullets from a revolver at the three men. Marlon did not have a weapon and believed his brother and Huffman were also unarmed. Marlon tried to run, fell, continued running into the house after Rivera stopped shooting, and told his mother to call the police. When the police arrived, Marlon informed them that Rivera shot at him. Peterson testified that she was not aware of the incident at the liquor store involving Mohammed, but she did overhear Roberts refer to having “taken care” of some members of the Merced Bloods after a party in September 2000.
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 Protege, 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 testified seeing the men looking at them in a threatening manner and throwing up their hands “like there was a problem.” 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
Bianchi and McIntire identified the teal Mazda Protege 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 McIntire shooting. Officer Smith explained that at the time, Rivera was one of just a few Hispanic men associated with the Merced Gangster Crips.
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.
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.
Yolanda Cabanas lived on Glen Avenue and was visiting a neighbor across the street on the evening of April 15, 2004. Cabanas testified that from her vantage point in front of her neighbor‘s home, she noticed that an unmarked police car stopped a blue-green car on Glen Avenue. She saw a black woman get out of the car and heard an officer telling her to get back into the car. She heard the officer speaking with another man. Cabanas testified that she then saw a man, whom she identified in court as Rivera, running away. She saw him look over his left shoulder, pull out a gun from above his waistline, and turn 90 to 180 degrees to the right toward the officer. The officer did not have a weapon drawn. Cabanas testified that she saw Rivera turn with the gun in
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.‘”
Officer Greene testified that at approximately 7:15 p.m., he heard Officer Gray say over the radio that he was making a traffic stop involving Rivera. When Officer Gray did not respond to status update requests, and after gunshots were reported in the area, Officer Greene was dispatched to Officer Gray‘s location. Officer Greene found Officer Gray lying facedown on the sidewalk with a large gash on his forehead and a pool of blood under his head and upper torso. He was breathing and had a shallow pulse, but he did not speak. Upon removing his clothing to find other injuries, Officer Greene and Officer Smith, who arrived on the scene shortly thereafter, discovered a bullet hole in his right chest.
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
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.
LaDonna Davis-Turner and her roommate, Dabreka Thompson, testified that a few days after the shooting, people familiar with Rivera pressured Davis-Turner and Thompson to pick Rivera up and drive him to San Diego. They gave Davis-Turner money to do so. Davis-Turner and Thompson eventually agreed, drove Rivera to San Diego, and allowed him to stay at Davis-Turner‘s apartment for a few days. During this time, Davis-Turner heard Rivera speak negatively about Officer Gray; at one point, she heard Rivera say, “I hate Officer Gray. I hate Officer Gray. Fuck Officer Gray.” After several days, Davis-Turner and Thompson decided to contact the police. At some point, Davis-Turner, Thompson, and Rivera traveled to Merced, and the police instructed Davis-Turner and Thompson to meet up with Rivera under the pretense that they would drive him back to San Diego. Officers stopped the car and arrested Rivera.
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.”
Defense counsel also argued that Rivera was not involved in the McIntire/Bianchi shooting, emphasizing that neither Bianchi nor McIntire could identify Rivera in lineups and were only now certain after having multiple conversations with law enforcement officers and seeing news stories focused on Rivera.
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.
The prosecution presented testimony from Mark Dossetti, retired chief of police for the City of Merced, that Officer Gray‘s killing was the first of any Merced police officer while on duty. Chief Dossetti testified that Officer Gray was “loved and respected by everybody,” and that his death emotionally devastated the police department. Chief Dossetti and Sergeant Christopher Goodwin said that Gray was a motivated, professional officer and a good friend. Tony Gray, Officer Gray‘s brother, testified that they had been close and that his death had caused Tony to attempt suicide twice and to take medication for depression. Landess Gray, Officer Gray‘s daughter who was 13 at the time of his death, testified that she thinks about him all the time and has sought psychiatric counseling for the anger, unhappiness, and confusion caused by her father‘s death. Lonather Gray, Officer Gray‘s mother, testified that he was a good child and that her life has been “horrible” since his death. Michelle Gray, Officer Gray‘s widow, testified that he was a good husband and “the very best” father. The two were planning a 10-year wedding anniversary trip when he died.
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 health problems and physically attacked their mother on one occasion. Dr. Howsepian testified that at the time of the shooting Rivera suffered from a psychotic disorder that caused his perceptions to become detached from reality and caused Rivera to be deeply paranoid of Officer Gray.
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 sufficiency of evidence for a jury finding, we “‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.‘” ( People v. Brooks (2017) 3 Cal.5th 1, 57.) “The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11; see People v. Stanley (1995) 10 Cal.4th 764, 792–793.)
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 General counters that there was at least some evidence of all three factors and that although Rivera did not initiate the encounter, he premeditated and deliberated on the killing once he realized that Officer Gray was following his vehicle. We conclude there was sufficient evidence to sustain the conviction.
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
Based on this evidence, the jury could have reasonably concluded that Rivera made the phone calls and held onto his gun when he exited the vehicle because he was planning to kill Officer Gray. Furthermore, Rivera and Officer Gray‘s history of past contentious encounters as well as Rivera‘s comments to Peterson in the car provided evidence of a prior relationship and conduct from which the jury could have inferred a motive to kill Officer Gray. (See People v. Cruz (1980) 26 Cal.3d 233, 245 [“Defendant‘s pent-up resentment toward his victim[] establishes the prior relationship from which the jury reasonably could infer a motive for the killing[].“].) Taken together, the evidence is sufficient to support the jury‘s finding that Rivera committed a premeditated and deliberate murder.
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 “conclude[d] the better practice is not to use [this version of CALJIC No. 8.71], as the instruction[] carr[ies] at least some potential for confusing jurors about the role of their individual judgments in deciding between first and second degree murder. . . .” (People v. Moore (2011) 51 Cal.4th 386, 411 (Moore).) Following our decision in Moore, CALJIC No. 8.71 was amended to read: “If any juror is convinced
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
murder and clarifies that a jury could not convict Rivera of the greater charge if there is no such agreement.
Furthermore, the trial court instructed the jury with
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
C. Acquittal-first Instruction on First Degree Murder
Rivera contends that 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
The instruction with which Rivera takes issue here (
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 reasonable doubt as to the idea of premeditation or deliberation, leaving the homicide as murder of the second degree“].) But an instruction that provocation may be sufficient to raise reasonable doubt about premeditation or deliberation, such as
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 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 relied on the first theory — that the murder was committed for the purpose of avoiding or preventing a lawful arrest — to find true the special circumstance in rendering its verdict. It was thus not reasonably probable, based on the record as a whole, that the jury found Rivera guilty on the unsupported theory of escaping from custody. We therefore affirm the jury‘s special circumstance finding.
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 every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact‘s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.” (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar).) The standard is the same whether the prosecution relies on direct or circumstantial evidence. (People v. Valencia (2008) 43 Cal.4th 268, 290 (Valencia).)
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
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
“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
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 resulting conviction a denial of due process.’ ” (People v. Friend (2009) 47 Cal.4th 1, 29 (Friend), quoting Darden v. Wainwright (1986) 477 U.S. 168, 181.) ” ‘Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial.’ ” (Friend, at p. 29, quoting People v. Alfaro (2007) 41 Cal.4th 1277, 1328.) “When a claim of misconduct is based on the prosecutor‘s comments before the jury, ‘the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’ ” (Id. at p. 29, quoting People v. Smithey (1999) 20 Cal.4th 936, 960.) Prosecutorial misconduct can result in reversal under state law if there was a “reasonable likelihood of a more favorable verdict in the absence of the challenged conduct” and under federal law if the misconduct was not “harmless beyond a reasonable doubt.” (People v. Cook (2006) 39 Cal.4th 566, 608 (Cook).) Where the defendant does not contemporaneously object to alleged misconduct, we generally decline to review the claim on appeal unless a timely admonition could not have cured the harm. (People v. Pensinger (1991) 52 Cal.3d 1210, 1251 (Pensinger); Friend, at p. 29 [” ‘In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review.’ “].)
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 instance of alleged misconduct either did not constitute misconduct or was harmless.
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
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 evidence existed to corroborate it. But the prosecutor‘s statement was an isolated instance in a closing statement that otherwise focused on admitted evidence, which was quite strong in favor of Rivera‘s guilt. Furthermore, the jury was instructed to determine the facts “from the evidence received in this trial and not from any other source” and that “[s]tatements made by the attorneys during the trial are not evidence.” For these reasons, we conclude the error was harmless.
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 witnesses testifying in support of the defendant.” (Perez, 58 Cal.2d at p. 246.)
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
“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“].)