*1 Dec. 1994.] S007779. [No. PEOPLE,
THE Plaintiff and Respondent, RODRIGUES,
JOSE ARNALDO Defendant and Appellant.
Counsel Laethem, Defender, M. Fern State Public under appointment Supreme Court, Kirshenbaum, Defenders, Irene Kiebert and Joel State Public Deputy for Defendant and Appellant. General, Williamson, E.
Daniel Lungren, Attorney Chief Assistant George General, Bass, General, A. Attorney Ronald Assistant Attorney Ronald S. Mathias, Killeen, General, Gerald A. and Joan Engler Deputy Attorneys for Plaintiff Respondent.
Opinion
BAXTER, J. Jose Amaldo was convicted Rodrigues by jury —Defendant Code, one count of (Pen. 187),1 murder two counts attempted robbery § 664, 211), (§§ and one count of The 459). found burglary (§ true the jury circumstances that defendant special committed the murder while engaged 190.2, crime of or attempted (§§ (a)(17)(vii), 211), subd. robbery robbery 190.2, and while in the crime of engaged (a)(17)(vii), subd. burglary (§§ 460). It also found allegations true that defendant used a knife in personally the commission of (§ (b)), each offense subd. and that defendant had 667.5, served (§ (b)) terms subd. for previously prison to murder accessory Code, 32) (Veh. and auto (§ 10851). theft After the returned a jury penalty § 1All statutory further are references to the Penal Code unless otherwise indicated. death, motion to modify denied the automatic the trial court
verdict 190.4, (§ court automatic. subd. (e)). to this is subd. (§ Appeal penalty (b).) of defendant’s or penalty phase at the guilt find no error prejudicial
We in its entirety. is affirmed trial. The judgment Facts
I. *32 Phase Evidence
A. Guilt The Prosecution Case
1. he with older living Zavala testified that in was May Epifanio of a on the second floor two-story Juan in an Barragan apartment brother old Zavala then 19 and 1100 Sevier in Menlo Park.2 was years building 21. Barragan restaurants, they in did Zavala and worked
Although Barragan previously the first sold small amounts not have week 1987. jobs May Barragan out and heroin to make a Zavala sometimes living. helped cocaine help Ontiveros,3 One of those customers was Cynthia customers. giving drugs on who heroin from the brothers several heroin addict had bought occasions. testified to lived in with Hayward
Ontiveros she following. Although Richard love Garcia. At approx- her she was in with Juan boyfriend, Lopez, 4, 1987, on left some heroin May buy noon Ontiveros imately Hayward one Zavala at his Zavala sold her gram from apartment. approximately back, Ontiveros $100.4 heroin for After Zavala she come telling might about returned to the course of the Ontiveros Hayward. injected During day, heroin and half of the sold the rest. heroin in selling
At Ontiveros was p.m. evening, approximately Garcia drove front of the El bar on B Street up Tanampa Hayward. car, with Garcia asked On- defendant’s defendant in the seat.5 passenger could him not to tiveros how he make some Ontiveros told money. worry it, her at the bar about that she would find a She told Garcia to meet way. later in the evening. Barragan, reporter’s 2Although opinion as this refers to the brothers Zavala “Zavala transcript as “Moro” or Bar reflects witnesses sometimes referred Zavala Barragan
ragan,” and to as “Andre.” “Cyndia.” Ontiveros as 3Zavala knew $80. testified the sale 4Zavala was for “Baloney” “Bologna.” 5Ontiveros knew defendant as and defendant met Ontiveros at the bar after Garcia dark. Ontiveros told had a connection from whom could they get Garcia she and identified drugs, Zavala and because were and naive who Barragan they young dealers drug “weren’t Ontiveros had never seen the brothers with rough.” weapons had never seen them use or threaten violence in their She drug dealing. Garcia and defendant could from them without a thought get drugs big fight. Ontiveros, Garcia and defendant then how to from planned get drugs Zavala that Ontiveros would to the Barragan. They agreed go apartment first because the brothers knew her and would the door for her. Once open the door was Garcia and defendant would rush in and scare the open, brothers into their Garcia asked Ontiveros if Zavala and giving up drugs. had and she that she had Barragan any weapons, never seen responded and did not think had Ontiveros that the they any. apparently thought bit, brothers be beaten or a little but did not might roughed up expect any Ontiveros, further violence. Garcia and defendant to use defendant’s agreed *33 car, Lincoln, to drive to the brothers’ beige apartment. Ontiveros,
Sometime around 11 Garcia and defendant arrived at the p.m., Garcia was dressed in black black shoes and a black apartment. pants, jacket. Garcia, Defendant wore a who was beige long-sleeved jacket. driving, Street, the car on Sevier some seven or houses down from stopped eight Ontiveros went to find out who was in the apartment. It was apartment. that Ontiveros let agreed would Garcia and defendant know if the brothers were alone.
Ontiveros went to the upstairs and knocked on the door. Zavala apartment inside, let her in. Once Ontiveros saw on the couch but did Barragan asleep not see else. Zavala told anyone Ontiveros that he had not her to expected return, discussion, and that he had no more After some Zavala drugs. indicated he would her some for a “date” if she would give money stay. this, After to Ontiveros said she was to tell her friend who agreeing going Ontiveros, was for her in a car. Zavala waiting walked downstairs with then went to his own car and locked it while she to Zavala returned kept walking. and waited for Ontiveros. apartment
After Zavala went Ontiveros walked to defendant’s car. She told upstairs, Garcia and defendant that the brothers did not have but that any drugs, they did have When money. Garcia asked how much Ontiveros money, replied know, she did not but said must have “a amount” they good probably Ontiveros, because Zavala had not more Garcia and yet bought drugs. brothers, to with the to rob the but to agreed proceed plan get instead of money drugs. Madera, over, and parked the next street car to defendant’s
Garcia moved walked Pierce Ontiveros feet from Road. 20 to 30 it approximately obtain an object She saw Garcia defendant there. met Garcia and Madera and car,6 noticed defendant and from the trunk like a crowbar that looked building. back apartment The three walked together had a knife. large Ontiveros the back stairs. up defendant went As Garcia and planned, in, she stairs, Zavala let her knocked on the door. As front and walked up Garcia and couch. At that point, on the sleeping still Barragan saw with his tire iron Garcia hit Zavala into the defendant rushed apartment. scared and ran back onto Ontiveros became knocked him back Ontiveros. minutes Garcia in the seat for several until She waited front defendant’s car. returned. and defendant struck at Zavala’s inside Garcia testified that once the apartment,
Zavala iron, through the apartment with a tire him back into forcing head repeatedly As stood to wake up. Barragan room. Zavala living yelled Barragan attacker, his left a knife in wielding the second who was Zavala saw up, Zavala, hand, being at this time was hold who his brother wall. up against Garcia, saw second attacker trying held to the beaten ground fell to the attacker and Barragan his brother in face or throat.7 After stab and stabbed Zavala the floor the attacker reached over during struggle, the left foot. right leg cabrón, attack, said to “Cálmate the course Garcia Zavala:
During *34 Zavala, in to: to this English la tienes?” translated According [¿]donde lie, down, it, with a “Calm damn do have it?”8 Zavala answered you where his to a chance to “it” was in the closet. He was have help saying hoping if to look in the closet. After Zavala responded, brother the attacker went however, too.” to him the man with the knife told Garcia “finish English iron, end of the tire Garcia Zavala in the back the pointed stabbed with the started and to the bones. At that the point, telephone ringing penetrating here man with knife “Well let’s out of get police might going said: see the two Zavala could apartment, come As assailants fled from [sic].” that the one with the knife had an arm. injured left, continued
After the assailants Zavala answered the which had phone, an from neighbor The caller was Maria a friend and ring. Vargas, call was dead and to downstairs. Zavala told brother apartment Vargas the police. crowbar, 6Although photograph of a tire iron Ontiveros referred to a she was shown a
recognized item obtained car it as the Garcia from the trunk. stabbing. 7Zavala he could see the testified not actual you bitch.” interpreter “Cálmate as “Calm down son of a 8The court translated cabrón” a located dialed 911 from immediately telephone testified that she Vargas murder, she saw window. As was Vargas next to her bedroom reporting the window. Since stairway by down the apartment pass two men come saw stairway landing night, Vargas on the shining a had been light details. The first was following two men clearly enough provide hand, clothes, and held his had blood on his left man” who wore dark “dark After with his arm across his chest. reaching down his side right left arm stairs, and looked the window at through the man the bottom stopped Pierce The he hurried off toward Street. and her then daughter; Vargas hair. He was about with skin and straight second man was an Hispanic light came down the stairs. The second four behind the first man as they steps as he rushed by. man the window Vargas also looked through next to 1100 Sevier. She lived in an building Vanessa Stums apartment 5, 1987, on the she morning May got testified that after midnight shortly two to a store when she saw into her car and was to drive beginning liquor into the of her clothes climb over a fence backyard apartment men dark because she had never Stums noticed the men and walk to Madera. building lit,” area was she “nicely that fence before. Because the seen anyone jump were not “Black.” men were and that they could tell that the two Hispanic, from the men as she one and a half car lengths Stums approximately off, Madera, on about them. As Stums drove she saw a car parked observed street. five houses up car, returned to the Garcia and defendant
Ontiveros testified when side. and defendant sat in passenger Garcia took the driver’s seat had blood on his face cut on his left forearm. Garcia Defendant had deep hands, told Ontiveros to clean but he was not Defendant injured. blood off Garcia. into the backseat and defendant climbed
As drove back they Hayward, normal. There was some down. He told Ontiveros to look and act straight lay knife, about the and as they discussion between Garcia and defendant *35 the rear window had Ontiveros felt a msh of air as if a bridge, approached out, knife defendant throw the been rolled down. she did not see Although not to Ontiveros told defendant she did not see the knife in the car again. what had she would not about worry, say anything happened. Garcia an hour in while Hayward
The three for about half stopped took his his Defendant also his shirt and defendant changed pants. changed arm, at that was Garcia stayed off to his which bleeding badly. jacket wrap in location, his sister’s house defendant off at and Ontiveros dropped The next day, then drove to her place. pursuant Ontiveros Hayward. out of the interior instructions, the blood washed Ontiveros Garcia’s (hereafter brother, on, Ray- Rodriguez9 Raymond defendant’s Later car. the car. mond), and retrieved came 4:10 in the that at approximately Norma testified
Defendant’s sister her he had 5, 1987, house and told came to her defendant on morning May taken be for a bandage requested on his car. He asked working been house in Oakland. to Raymond’s his had fallen on him transmission defendant told a testified that
Raymond however, hearing at testified having preliminary He acknowledged, arm. while had fallen him that the transmission told to say although car, not had actually two were on defendant’s working the two of them two before defendant’s for a week or on transmission worked together car back from Ontiveros’s drove the Raymond was When arm injured.10 took Raymond with the transmission. in had no trouble he Hayward, place 5 to his in on morning May get at 5:50 defendant to Highland Hospital arm treated. defend- testified that although
Dr. William from Highland Hospital Billings arm, dirt found grease fell on his left no or ant stated that a transmission Also, have been caused aby sharp wound the wound. appeared one, instrument, clean that a blunt and was sufficiently rather than and match fairly sew tissue together precisely team was able to surgery reflected that defendant had been records apart. Hospital a tattoo that split was left-handed. on dead lying the scene of the crime found arriving Barragan
Officers his and neck area. floor a of blood around head with massive pool off. his face was part hanging chest wide Barragan’s was split open, Zavala been on the floor had rolling pain. The officers saw Zavala around He was covered with blood. beaten and his face was severely completely consciousness, Zavala in and out of also several teeth. missing lapsed his sometimes or about moaning pain. screaming Detective James Simpson Zavala was taken to Stanford where Hospital, him two told interviewed him at 1:30 1:45 a.m. Zavala approximately On or were involved. male assailants and female named Cyndia Hispanic out of about Zavala Ontiveros picked lineup. May photo brother, spelled Rodrigues. Raymond, last of his is 9Defendant’s last name is The name Norma, sister, Rodriguez; is spelled Rodriquez. and the last name of *36 before, 10Raymond, prison who had stated cross- and redirect examination been on being hearing “pressured” testify way at the for fear of preliminary he felt the he did charged. arrested and 1100 1987, Ronald Williams testified that on
Detective Zavala de- May adult, the knife wielder as an male 23 24 being scribed of Hispanic years feet, tall, to 10 inches dark brown hair to his age, pounds, straight collar, and a dark When Williams showed very complexion. subsequently Zavala a taken of defendant at the time of his arrest on photograph May him, that the man in the Zavala said looked Black to and that the photo skin tone and hair in the resembled the knife wielder length photo closely as he A of murder. citation issued to defendant on appeared night May 2, 1987, feet, as 170 as 5 8 inches tall. gave weight pounds, height 19, 1987,
On a search team July found a knife alongside survival-type in the area freeway where Ontiveros defendant had rolled down the thought rear car window as drove from the crime they scene. The knife had blood- stains both on its blade and hilt and on a contained inside the handle. capsule inches, The knife blade was short of nine with a maximum just width of one Ontiveros, knife, and one-half inches. upon being shown the immediately identified it as the one carried defendant. by
The forensic of pathologist’s disclosed stab and autopsy Barragan incise wounds consistent with infliction a instrument. by large knife-type head, Six of the wounds were to the face and one of which was a large, wound in the that went irregular, jagged to the anterior lip through part the neck. There was a wound in the above the knee. six-inch-deep right leg One stab wound in the chest had cut the rib in half four-inch-deep cartilage right and sliced the while another one five lung, inches had also deep There was damaged right lung. also a large, gaping, complex, eight-inch- wound, hole, deep caused several thrusts the same skin possibly by through that cut the right vein half and The jugular perforated right lung. location of the wounds torso and consistent was with upper body wounds, thrusts. Of the 21 17 were located on the side overhand-type right left; of the while 4 were on the body, this was consistent with face-to-face a left-handed assailant. The cause of death was loss of blood stabbing by with air embolism.
Three made the same were bloody fingerprints, apparently finger, found at the crime scene. had an arch found in 5 They pattern only percent victims, of the and did not match the population, prints suspects or those whose at the scene A persons smeared set presence logged.11 Williams, unit, for James a tenant in comparison prints showed nearby an arch but Williams be pattern, could not located to make a further comparison. scene, kept log people 11Officer Allen Taitón testified that he who came to the but include, incomplete it was example, firefighters and did not for who had arrived
initially to assist the victims. *37 one of Garcia’s fingerprints, car disclosed defendant’s An examination of backrest, However, the back of front seat on the of defendant’s. none but as same class characteristics a that had the found a shoe partial print police shoes indicated the presence defendant. Those of shoes belonging pair two spots. blood in anal- a blood-typing Elizabeth Skinner criminalist performed
Prosecution blood, A both had Zavala and Barragan type determined that and ysis, and Garcia both marker Defendant in the EAP genetic system. differing only defend- (or transferrin) marker system, O blood. the TF genetic In had type CD, percent population. was shared less than by a type ant’s type nor two victims had CD transferrin. Garcia the Neither and a in defendant’s car few various bloodstains were found Although were of insuffi- were discovered outside the many blood drops apartment, blood, However, O analysis. type cient quantity blood-typing perform the floormat in CD in the TF was discovered on type system, with the trunk of car was found to car. on a tissue in the the defendant’s Blood paper not with the of either but Barragan, consistent with the blood Zavala be outside the Of three of blood found blood of defendant or Garcia. spots Road, have to Pierce one may brothers’ on the leading apartment pavement O; a A and the other were insufficient A or mix of two been type type type test results. produce on the Inside Zavala’s there were bloodstains living apartment, copious couch, door, Blood was on the front room walls. found carpet bedroom, television, stereo, book, and on a a mattress telephone walls, sink in the the blood and window bathroom. tested Skinner and was determine all of the blood Bar- surrounding able to that samples not say was with his Skinner could that ragan type. Although consistent was in the she opined, blood to defendant found belonging apartment, from if had a bleeding an attacker been hypotheticals, response wound, blood not be found if the length forearm the attacker’s might minutes in the long attack was matter of the wound enclosed absorb the blood. She also sleeve of a so that the would jacket clothing had small amounts an Barragan indicated because bled so profusely, blood undetected. might go attacker’s Skinner by
Skinner also the blood on the knife found the freeway. tested it, on lot of that the knife had blood but that a testified hilt of the human blade, time on the had flaked off she very dry blood being crusty, inside the it. As the bloodstains found on the plastic capsule examined for handle, blood, and a for O weak strong type knife Skinner found reaction blood, of both types. reaction for A type presence suggesting possible *38 The Case 2. Defense defense that he was not
Defendant did not take stand. His was present crime. with There no evidence and had to do nothing physical scene, and the victim could not surviving defendant at positively placing him. identify had described the first man to come down the stairs initially
Maria Vargas man when to the on the of the murder as “Black” night speaking and the failed to defendant when shown a identify dispatcher police. Vargas 27, 1987, identified him for the first time on at photo lineup May At an defendant was hearing. hearing, wearing orange preliminary and was seated at the defense table behind a that said nameplate jumpsuit “defendant.” Howard, defense, known for he had
Nathan disclosed that testifying Juan Garcia since and in the had even identified himself as past times, Garcia’s he had met defendant a he was “partner.” Although couple Garcia, unaware of between defendant and and had never any friendship seen them socialize Howard also testified that he knew defendant’s together. brother, and that he had run into Raymond, Raymond Highland Hospital one told Howard that a transmission had 1987. morning May Raymond fallen on defendant’s arm. sister, Norma,
Defendant’s testified that when defendant arrived at her home at 4:10 on with a.m. or about he was covered dirt and May and had car on his face and hands. defendant asked grime, grease Although house, for a and wanted to be taken to Norma did not bandage Raymond’s notice that he was or that he needed to to the Defendant injured, go hospital. time, said he had been on his car. He was bald at the and looked working normal but dirty. Penalty
B. Phase Evidence
1. The Prosecution Case 1987)
a. Nishimoto Incident (May 25,1987, On or about Police Officer Darrin Nishimoto saw May Hayward a Lincoln Continental run a at 45 to 50 miles hour. He stop sign per pursued car, before which went over 70 miles hour 2 red lights per through Defendant, drunk, over. who was out finally pulling immediately got car and started When Nishimoto ordered defendant back walking away. to do?” What As car, going “Fuck are you. you responded collar, defendant turned jacket his hand on defendant’s placed Nishimoto Palermini, to Nish- Robert responding at him. Officer swinging and started to the ground. wrestle defendant and Nishimoto for saw backup, imoto’s call defendant, defendant in handcuffing to assist As Palermini attempted baton, Nishimoto shot had fallen the ground. Palermini’s which grabbed *39 and arrived defendant stun A third officer gun. eventually defendant with his hand a broken in and handcuffed. Nishimoto suffered was subdued finally the struggle. 1987) (May
b. Nieves Incident off four years. had defendant and on for about Nieves lived with Gladys 19, 1987, defendant came to On after had they separated, May shortly Nieves said to talk back getting together. Nieves’s about When apartment and to defendant became get angry, they she did not want back together, defendant struck Nieves During argument, the course of began arguing. face, ribs, to push arm and called her a bitch. Nieves managed in the and Defendant, intoxicated, and call the who away appeared defendant police. and she was when the arrived. Nieves’s face was swollen police was arrested red her eye. around 1987)
c. Gallia Incident (April On Police Officer Richard Gallia of the canine Hayward April Brent car unit and Officer Morris for a violation. sign stopped stop Defendant, the front seat was out the window and swear- staring passenger, car, emerged in a slurred manner. When asked to from the defendant ing step defendant, and As Gallia with defend- swinging Gallia. fighting struggled chest, out of a hit in denting ant broke carotid restraint and Gallia Gallia steel chest of his vest. Morris to assist plate bulletproof attempted defendant, officers to restrain him. handcuffing but the two were unable was the aid of unit’s ultimately dog Defendant subdued with the canine a third officer. At bit defendant during one police point struggle, dog in the chest but to mouth to managed pry open defendant release dog’s do its bite hold. Gallia had never seen able to this. previously anyone (PCP) Defendant’s behavior with was consistent intoxication. phencyclidine 1984) d. Incident Rodriguez (November 2, 1984, was supervis- On November Correctional Officer Leo Rodriguez of breakfast at Deuel Institute in Susanville when Vocational ing serving he inmates were serving observed defendant and two other Hispanic inmates. advised the Rodriguez to all Hispanic of breakfast double portions inmates, to all but they ignored to portions three inmates give equal again them a second time and After advised Rodriguez directive. At that from the serving assignment. had the inmates removed he ignored, abusive toward Rodriguez, became hostile and verbally point, defend- to According Rodriguez, “kick ass.” cursing threatening [his] or some to be under the influence alcohol ant was laughing appeared other substance. 1984) (June Incident
e. Johnson brother, Tadlock, 3, 1984, went to and his Paul On June Lament Johnson did not have his some beer. Johnson store in Union City buy 7-Eleven defendant, him, who to be so he asked happened identification with refused, store, and Johnson returned beer for him. Defendant some buy *40 to Johnson’s car and started saying yelling his car. Defendant came up the window was rolled up. which Johnson could not hear because something, car, in the head defendant struck him Johnson started to out get When car and started Tadlock out of the and knocked him unconscious. got his a store drew security guard, with defendant until Steve May, wrestling wrench Defendant a four-arm lug and told them to break it up. got baton Defendant then gave at with force. from his car and swung May great retrieved who also at Defendant swung May. wrench to a female companion, car, swinging May. bar from his which he also began a steel long back in the car and got defendant and his female Eventually, companion away. drove to his a ambulance and received stitches hospital by
Johnson was taken to identified nose. Tadlock and bloody Although May Tadlock suffered lip. incident, made an iden- for after the Tadlock only defendant police shortly Johnson, had done all testified May they tification at trial. Tadlock and defendant’s attack. nothing provoke 1981) (January
f. Calles Incident 21, 1981, in Rick Calles defendant fellow inmate On January approached Calles in Susanville. Defendant asked at the medium yard security prison earlier that he of Mexican/Puerto Rican inmates had missed a meeting why Calles, dorm, on a bed facing went into a and defendant sat day.12 They Defendant, Calles to his right. while another inmate sat on the same bed as Calles on and moved behind who was wearing weightlifting gloves, got up later, come saw a hand gloved his side. About 10 seconds Calles right White half Puerto Rican. 12Calles testified he was half face, and was knocked side his a blow on the He felt toward him. rib, was a cracked nose and suffered a broken Calles unconscious. seven days. for hospitalized 1981) (January Fire Facility Correctional
g. 1,1981, on three tiers at the January 1 a.m. on prisoners At approximately fires, windows and breaking in started setting Susanville facility correctional Officer Frank at the Correctional Shipman of water jars guards. throwing throw material burning wall when he saw someone aby standing where dormitory a fire outside just window onto broken through inches shined away, who was to 20 inmates were housed. Shipman, from moving away and saw defendant the window flashlight through of the window at was the inmate the area only window. Defendant inches time. were about 18 to 24 beyond Other inmates standing when first saw him. Shipman 1980) (June
h. Homicide Espinoza of June Ernest In the afternoon and early evening Espinoza a car with about seven Eric were on Mitchell’s when sitting porch, Mitchell When the yelled angrily drove repeatedly by. passengers passengers *41 left that evening, them “the Later finger.” Espinoza Spanish, Espinoza gave to call from a the Mitchell house before his just girlfriend pay phone 9 p.m. a a While was at the gas Espinoza pay phone, at station across street. a of 10 men him. was shot Espinoza group approximately approached of from number times and stabbed. He died his wounds. men, were charged
Six defendant and his brother including Raymond, was to have with the murder of Ernest Only alleged Espinoza. Raymond firearm, to a Jaramillo was alleged used personally only Toby have a and Jaramillo were also Raymond used personally deadly weapon. harm. Defendant bodily ones to have inflicted only alleged personally great firearm, have a been a and to suffered alleged was to have armed with to a plea bargain, conviction. On previous August pursuant firearm, to with use of a Raymond guilty manslaughter pleaded personal use knife. Jaramillo to with of a guilty manslaughter personal pleaded Defendant of The murder (accessory). violation section pleaded guilty all were defendants dismissed. charges against charged brother, Mitchell, At the who was Eric Mitchell’s penalty phase, Rejón came forward and testified that he saw defendant shoot Espinoza. 1977) Roach Shooting (April
i. 1, 1977, in Frank drove with two friends Roach night April On the in for the with another truck to a Hayward purpose fighting pickup park other As Roach and his friends waited for the group group people. arrive, three or four Someone rolled down a car carrying people pulled up. car and a sawed-off shotgun the rear window of the pointed pump-action, out of the truck and tried to run them. Roach and his friends scrambled away truck, was fired. When Roach was 10 to 15 feet from the as a first shot fired. Roach was hit from head to toe in the back with second shot was friend, Gamer, or shoulder. His Chris was shot in the arm shotgun pellets. the shooter from shown to him four Roach identified defendant as a photo at the or five after the incident. He also identified defendant prelimi- days Defendant to assault with ultimately guilty deadly nary hearing. pleaded weapon. 1976) (October Jill M. Incident
j. 16,1976, Jill M. with standing At on October approximately midnight her Laurie at a bus when five men in a car girlfriend stop Hayward pulled ride, them The two women their offer of a but instead of taking up. accepted home, men Jill the men drove to a house San Leandro. While the dragged house, house, Inside the into the Laurie was able walk screaming away. men, three Jill was to a series of sexual assaults at least subjected Defendant, alone, defendant. committed forcible sod- including acting rape, man, Jill, and, and oral on in concert with another omy acting copulation on committed forcible oral her. copulation sodomy defendant, filed sexual assault were Although charges against charges dismissed. Jill testified that after the preliminary hearing were subsequently her in the case she had asked the not to prosecution require participate admitted, further because she was and feared for her life. She pregnant *42 however, that defendant had never threatened her.
k. Prior Convictions Felony In addition to documentation of defendant’s felony accessory presenting matter, conviction in the offered evidence Espinoza prosecutor showing in and defendant had been convicted for auto theft Solano County in Alameda burglary County.
2. The Case Defense in witnesses and The defense attempted, cross-examining prosecutor’s witnesses, theories of the in its own to cast doubt on the calling prosecutor’s
1107 (1) that defend- show: defense to attempted In above events. particular, to Ernest and Espinoza, shoot the only person ant’s Raymond brother at of defendant trial and identification Mitchell’s testimony that Rejón incident; (2) that Oscar after the he made shortly statements had contradicted defendant, shot Roach during had at Frank not and Payne Billy Grejeda, sex M. to have with (3) that Jill consented at the and confrontation park; on the in night at house question. defendant’s multiple partners
II. Discussion Hearing
A. Failure to Hold Competency not the lower courts erred by ordering, Defendant contends that (See on to stand trial. Pate v. his hearing competence sua sponte, 815, 822, 375, 836]; 86 S.Ct. 383 U.S. L.Ed.2d Robinson [15 268, 1132, (1992) 1 824 P.2d Cal.4th Cal.Rptr.2d [5 v. Howard People 374, 508, 1315]; (1967) 66 Cal.2d Pennington Cal.Rptr. inef contends that his counsel was 942].) Defendant also P.2d any stage at hearing in failing request competency fective the information in in to move to set aside failing and proceedings question, based defendant’s asserted hearing.13 incompetence preliminary upon must reversed because these He asserts that his conviction be him and constitutional his including omissions denied protections, statutory the state of counsel under to due effective assistance rights process federal Constitutions. at three
Defendant’s claims arise out of events that court transpired 11, 15, held on June and September hearings September 22, 1987, court for in municipal 1987.14 On June defendant appeared held At counsel’s the court an request, defense preliminary hearing. a “fundamental informed the court of camera which counsel hearing during counsel, counsel defendant. between dispute” According even refused to to a time waiver for the agree preliminary hearing though that a was essential order counsel had to him waiver explained repeatedly for Counsel that defendant’s asserted prepare hearing. adequately rational, communicate with decision was not that defendant refused to did not articulate reason for give counsel and that defendant an intelligently, not time. had not had obtain a counsel an waiving Although opportunity evaluation, that defendant was counsel psychiatric opinion expressed *43 he has been “not because hearing today competent proceed preliminary opinion Geoffrey Carr. This represented 13Defendant was at Edward Thirkell and trial appeal. on distinguish does between the counsel unless to an issue not two relevant hearings transcripts The been ordered unsealed. 14These were conducted in camera. have waive time and as to whether to a decision making me unable to assist clarified, however, that apart Counsel hearing.” for the preliminary prepare time, in an had not talked defendant refusal to waive defendant’s from defect.” manner, of mental “not seen evidence any and counsel had irrational of the his understanding defendant regarding then The court questioned not would and would what a time waiver to him and explained situation discussions, to waive that he did not want defendant stated entail. During he too even though in here long,” he had been “sitting time because event, and that he wanted hold in just he had a knew parole apparently was not that counsel Defendant also this over with.” complained “to get him him and challenging treating and that counsel kept him telling anything, “what its belief that one the court stated [defendant] a child. At point, like had several more TLC.” During hearing, values is a little however, in open he Ultimately, agreed time. waiving of mind about changes to waive time until 1987. July court 11, 1987, in camera hearing court held an the superior
On September defendant’s com- addressed issues regarding which defense counsel during 21, 1987, counsel’s desire to to trial on September to proceed petency filing days to be tried within waive defendant’s right more time was needed the court that After explaining information. on trial, at the occurring hearing the events for counsel summarized prepare trial, for refused to waive time then that defendant June 22. Counsel reported medical information forms for police reports, he refused to release sign need, for their detailed explanations other documents counsel’s despite and unreasonable. and that he was being uncooperative obtained information the court that he had A defense then told investigator three old he was two or years mother that when defendant from defendant’s he seizure, seizure where believes type “some sort of she epileptic had The in Oakland.” taken to Children’s Hospital turned blue and was actually defendant had suffered members stated that also said family investigator his life. from headaches throughout migraine Dr. he had with spoken informed the court that counsel
Additionally, and that both believed defense Missett and Dr. two McKinsey, psychiatrists, to a psychiatric were “crucial defendant’s seizure concerning records counsel hearing, was not present defense.” Dr. Missett Although hours, one to two with defendant for related that Dr. Missett had met due to the “two major had brain damage that Dr. Missett felt that defendant *44 counsel, however, about.15 to Dr. Missett seizures” he had heard According to “not done a evaluation and wanted competency get psychological had he evaluation on before arrived at an competence opinion.” at the defendant refused Although Dr. was had McKinsey present hearing. him, offered the based on to meet with Dr. McKinsey following opinion him “I to and discussions with Dr. Missett. that there is given suspect reports dementia; that Mr. difficulties that have been outlined Rodrigues has drug earlier which are to that dementia. That one of the reasons he secondary drug said, wouldn’t as he he doesn’t was understand. It is sign anything, just to be difficult for him to understand if his brain isn’t going anything working record, well. I have events in the which is to a consider- etiological say back, able amount of substance abuse as far back as poly dating way dating 25th, [^Q for and as late as It 4/2/87 ’87. seems to me that a example, May of this level of use is at risk for a person drug very high neurological that would make it difficult for him to impairment very with his cooperate defense.” matter, discussions on the
During defense counsel expressed opinion it that was in defendant’s best interest to waive his to trial within 60 right so that counsel could days his to to trial. investigate competence proceed The court then to defendant that his it was in his explained attorneys thought best interest to waive time and to let the doctors talk to him so that a decision could be made how best to defend him. defendant Although stated time, he did not wish to waive he did to the court’s agree, response that he would inquiry, to defense doctors. He also he speak indicated that decide, doctors, would after with meeting whether to a time agree to waiver and to a release of medical records. Since defendant was unwilling waive time but was agreeable the matter after a reconsidering meeting with defense psychiatrists, the court declined to counsel time over give defendant’s The court continued objection. hearing September 1987, and that at that time suggested could ascertain whether Dr. they Missett would be as to prepared testify incompetence.
At the continued camera on hearing defense September counsel reported defendant had written releases given of information for records, records, parole probation and school police records. Al- reports records, though had not consented to releases for medical he nonetheless was to waive to be tried within 60 In willing right days. to court response counsel that the questioning, for a trial agreed request continuance over defendant’s objection no an issue but indicated longer 15Defense counsel did not explain major the reference to “two seizures.” The defense investigator had earlier indicated only that defendant’s mother mentioned one seizure. *45 Counsel investigation. not its completed competency the defense had that as defense previ- had met with the psychiatrist that defendant then reported between defendant and was some rapport and that there ously agreed, had in- with counsel that defendant’s rapport Counsel added psychiatrist. counsel were that he and three Defendant agreed in the days. creased past court, on the trial a continuance in open better. Subsequently, getting along was never raised again. issue Thereafter competency date was ordered. “A trial as follows. be summarized may The relevant principles sua if necessary, hearing, sponte to conduct competence court is required evidence of mental incompetence. there is substantial [Citations.] whenever a reasonable is evidence that raises for these purposes Substantial evidence Howard, 1 Cal.4th at (People issue. doubt on the [Citation.]” “ such arises when hearing to conduct a 1163.) competency ‘The court’s duty ” (People time to any “prior judgment.” [Citations.]’ is presented evidence 729].) 838 P.2d Cal.Rptr.2d 3 Cal.4th v. Danielson of incompetence evidence Defendant contends that substantial record, seizure and of his childhood to the evidence citing appears headaches, as well as to statements of migraine lifelong episodes that his Defendant also emphasizes point defense two psychiatrists. under his concerns competence regarding counsel repeatedly expressed defense, refusal or conclusion that his and counsel’s and assist in his stand condition, to a physical-mental connected reluctance to cooperate appeared not convinced. We are rather than merely obduracy. “if, or result mental disorder as a A defendant is mentally incompetent of the nature of is unable to understand the defendant disability,
developmental of a defense in a counsel in the conduct or to assist the criminal proceedings Here, added.) statements (a), subd. italics (§ rational manner.” head- from migraine that defendant suffered defendant’s family provided by or three when he was two seizure epileptic aches and that he had a possible alone, not, or developmen- a mental disorder old did standing suggest years at the informed the defense the court was by tal disability. Although of defendant’s obtaining it was in the hearing process that September time indicated in the record after that nothing medical records subpoena, of such a the claim records ever obtained substantiated medical disorder or disability.
Moreover, did not furnish defense doctors the statements of the two held that We have of mental incompetence. substantial evidence constitute sub will when a determining psychiatrist’s opinion standard for “ follows: ‘If a psychi stand trial is as evidence of stantial incompetence accused, states examine the sufficient atrist . . . who has had opportunity is, under oath with the accused particularity professional opinion illness, mental understanding because of nature incapable purpose the criminal taken him or is being against proceedings incapable counsel, in his defense or with the substantial-evidence assisting cooperating *46 ” 80, test is satisfied.’ v. 32 Cal.3d (People 92 Stankewitz 611, 578, 476], 648 P.2d 23 A.L.R.4th v. Cal.Rptr. citing People Pennington, 519.) 66 Cal.2d at For the below reasons we find that supra, conclusions of Dr. and Dr. Missett did not meet this test. McKinsey First, Dr. attended the court although McKinsey offered his hearing Moreover, he had not had to examine defendant. opinion, any opportunity (13 basis for his was rather brief lines of opinion transcript) virtually that, devoid of Dr. told the court particulars. McKinsey merely based on read, he had he that defendant suffered reports suspected from demen- “drug tia” and that defendant’s record of “a considerable amount of substance poly abuse” a suggested risk of very high that would neurological impairment it make difficult for him very with his defense. But no cooperate elabo- ration or details were provided regarding type quantity drugs involved, abuse, of the claimed frequency or the extent of impairment threatened. This falls far short of the Stankewitz, made in v. showing People 92, 32 Cal.3d at supra, and in page v. People Pennington, 66 Cal.2d at supra, page 519.
Second, the Missett, of Dr. who purported opinion had met with actually defendant but was not at the present hearing, inconclusive. simply defense Although counsel claimed that Dr. Missett “feels that the defendant has brain because of the damage two seizures he has heard major about through defense [the counsel investigator],” also stated that Dr. Missett was “not sure about his since he’s not done a opinion evaluation and competency wanted to aget psychological evaluation on before he competence arrived at Thus, an even if opinion.” we assume that Dr. Missett had offered his tentative oath, opinion and under directly it did not furnish substantial evidence of Moreover, defendant’s incompetence. it is to note significant that after Dr. Missett met with defendant a apparently second time after the second hours, for hearing two or three defense counsel offered no further from opinion the doctor that defendant was incompetent.
Finally, lower court were not judges to order a compelled based competency on defense hearing counsel’s that defendant opinion be might We incompetent. rejected Howard, similar argument People 1 Cal.4th 1163-1164: “Under pages section if a ‘doubt arises in the mind of the as to the judge’ defendant’s mental competence, judge must ‘state that doubt in the record’ and solicit defense counsel’s on opinion case, (a).) (§ the matter. subd. In such a counsel informs the court ‘[i]f that he believes the defendant is or be may mentally the court incompetent,’ (b).) must order a (§ subd. Because the hearing. court this case did doubt, not declare a section 1368 did not the court to require conduct a Here, based on Howard, counsel’s hearing solely as in opinion.” the lower court no doubt judges as to defendant’s expressed competence. were Accordingly, they under no to hold duty based competency hearing on counsel’s solely be opinion might incompetent.
It must also be remembered that counsel’s concerns defendant’s regarding were based on defendant’s competency primarily refusal to assist counsel in establishes, however, his defense. The record that even there was a though definite lack of rapport between counsel cooperation and defendant *47 the situation initially, the improved third Not markedly by did hearing. only agree to a one-month continuance of the preliminary and hearing trial, a sixty-day continuance of the but he eventually the provided requested records, releases for parole probation police school reports records. Defendant also met with the defense psychiatrist as at the agreed second with no hearing, resistance or apparent problems. defense Significantly, counsel did not further the pursue issue once competency defendant became cooperative. record,
On this we cannot as say a matter of law that the evidence raised a substantial doubt as to defendant’s mental competence. the Accordingly, lower courts were under no to order a duty competency hearing.16
Because the record does not demonstrate a substantial doubt as to defendant’s we competency, reject defendant’s related claims that his coun sel was ineffective in failing to a request competency hearing any stage the or in proceedings failing move to set aside the information based upon defendant’s asserted incompetence at the preliminary hearing.
B. Guilt Phase Issues
1. Videotape Evidence murder, The after the day the made police a with the videotape help Maria the Vargas, victims’ downstairs The neighbor. showed the videotape 16Defendant recasts his claim as one based on the failure of appoint the lower courts to an expert (See under Evidence Code section People examine him. Campbell Cal.App.3d 214].) Cal.Rptr. rejected We an identical claim in Howard, supra, 1 page Cal.4th at footnote 12: “Absent a reasonable doubt as to competence, defendant’s mental obligation the trial court pursue had no the matter further. [Citations.]” that was located her bedroom stairway outside of Vargas’s apartment, window, and out and a view from her bedroom toward stairway landing which White in a the street. It also contained scenes in man white toward in broad and turned to look shirt came down stairs daylight, stopped then ran off in the toward direction directly Vargas’s apartment, trial, had run. At the court admitted the without its assailants videotape Defendant contends the court erred in admitting soundtrack. as videotape reenactment, and in it to refresh recollection. admitting Vargas’s we address the General’s Preliminarily, Attorney argument these claims have been waived. The record demonstrates that defense counsel had moved in limine to exclude the on the now initially grounds videotape on asserted but was unsuccessful.17When the appeal, prosecutor requested examination, have the admitted into evidence videotape during Vargas’s counsel, trial court asked defense “Your to it admitted?” objection being Defense counsel “I believe it’s one we’ve been over responded: before. No General is correct that objection.” Although coun Attorney sel’s remarks be construed as an abandonment may indicating earlier we conclude that are objections, more understood as they properly indicating counsel’s intent to such but to no preserve objections raise additional ones. Nonetheless, for the reasons below we find defendant’s claims to be without *48 merit.
a. Admissibility
Defendant contends that the should have been excluded videotape because the failed to a prosecution foundation the lay showing accuracy certain in scenes the as reenactments of what tape witnessed the Vargas of the night murder. (1990) 222 (People Boyd 565-566 Cal.App.3d 738]; (1966) Cal.Rptr. [271 Cal.App.2d Vaiza [52 733].) Cal.Rptr. Specifically, claims that three scenes featured in the First, were inaccurate in videotape the the following particulars. scenes were each shot in broad whereas the daylight, actual events occurred in the middle of the and were night illuminated an only by artificial located light 17The motion in limine asserted videotape that the accurately represent did not what it show, purported to and probative that its outweighed by value was potential prejudicial its Additionally, effect. requested defense counsel videotape that the Vargas not be shown to for purposes refreshing her recollection because testimony. its inaccuracies would color her motion, prosecutor The opposed arguing videotape jury would aid the as showing demonstrative evidence the relative Vargas’s locations of the apart victims’ and ments, stairway, Vargas’s vantage point witnessing the assailants flee In the scene. motion, denying the the trial court ruled videotape that the long would be admissible so as laid, proper foundation was and determined that Vargas could view the videotape to refresh her recollection. Second, scenes each one White male the three depicted
above the stairs. off, down the stairs and whereas running a white shirt coming wearing males, “dark,” two one and one “Black” or testified she saw Hispanic Vargas Third, of the murder. while one scene dark on wearing clothing night her from inside Vargas’s vantage apartment looking showed correctly point window, another which featured a woman and child out the bedroom scene was inaccurate in this Defendant regard.18 outside standing apartment these inaccuracies were created mis they asserts that prejudicial her of what witnessed and transformed Vargas “shaky” leading impression identification of him into memorable persuasive image. of a a trial court must
In ruling upon admissibility videotape, (1) the is a reasonable of that determine whether: videotape representation (2) the use of the would assist which it is alleged videotape portray; in their determination of the facts of the case or serve to mislead the jurors (DiRosario them. v. Havens 196 Cal.App.3d “ limits, 423].) Within these ‘the conditions which existed physical Cal.Rptr. at the time the event in occurred need not be with question duplicated it nor is that no has occurred between the required change happen precision ” (Id., of the event and the time the is taken. [videotape] ing [Citation.]’ 1232-1233.) pp. case,
In this the trial court found the admissible. properly videotape The had been offered as demonstrative evidence show videotape jurors the rear the relative locations of the victims’ apartment, Vargas’s apartment, and the In stairway driveway apartment building. particular, had been intended in to show as she Vargas’s videotape part vantage point Therefore, witnessed the assailants flee the scene. once confirmed in Vargas *49 her that the showed the area where she was testimony accurately videotape assailants, and where she saw the the trial court could conclude that correctly the was a reasonable of the of the videotape representation physical layout Moreover, the court could building apartment Vargas’s vantage point. find that a of the would aid the in their properly viewing jurors videotape objects portions videotape panned apartment 18Defendant also to other of the that the area, building surrounding showing stairway Vargas’s and the the and its relative to position apartment. stairway, perspectives Two of these scenes showed different of the bottom of the window, scenes, Vargas’s zooming close-up. Vargas’s door and her with one in In these apartment standing testify door was the open, although open she did not that the door was on night footage wrongly suggested Vargas of the crime. Defendant contends this film could window, fleeing suspects through through have the and that doorway, seen the as well as the ability greater testimony suspects her to have seen the was much than her warranted.
1115 the of the the determination of facts case claimed inaccurac notwithstanding Havens, (DiRosario 1232-1233.) ies.19 v. at supra, 196 Cal.App.3d pp. on v. v. Relying People Boyd, supra, People Cal.App.3d Vaiza, defendant contends that the difference in supra, Cal.App.2d conditions admission of the the Unlike instant lighting precluded videotape. situation, however, those cases involved or films that photographs purported to show conditions at the time of the incidents in lighting Because question. the of the evidence in those cases was to purpose demonstrate to the jury conditions under which lighting witnesses were able to view the events of crime, those conditions assumed great significance assessing (See of the admissibility evidence. People Boyd, supra, at Cal.App.3d 566; Vaiza, 127.) p. at But Cal.App.2d here the not was offered for the videotape purpose showing conditions on lighting Therefore, night defendant’s reliance on the above question. cases is misplaced.
Furthermore, we defendant’s claim that the reject inaccuracies videotape’s created a misleading of the events impression witnessed well as Vargas, as his further claim that the should have been excluded tape as more being First, than prejudicial probative. fails to demonstrate how the various inaccuracies could have made the as to the videotape misleading Second, for which it purposes was offered. the inaccuracies either were obvious to (such the jurors as the fact that had not Vargas testified to seeing or, one White male in scene), so, a white shirt flee the if not were specifi- cally brought their attention. For elicited example, prosecutor testi- from mony that the Vargas was filmed videotape while the during day, events she witnessed occurred that, He also had night. Vargas clarify scenes, consistent with one of the her videotaped vantage from the point inside of her apartment Moreover, out her looking bedroom through window. made no prosecutor off attempt pass as videotape depicting exactly what saw Vargas night He murder. also never assumed or suggested through his questioning Vargas she was outside of her or that apartment, she was an looking bedroom door when through she open Hence, saw the assailants. effects of the potentially prejudicial inaccu- minimized, racies were if not virtually eliminated. No abuse of discretion appears. these,
Under circumstances such as we must assume that the were jurors *50 intelligent people understood and took they into account the differ- ences identified by (See defendant on appeal. Greeneich v. Southern Pacific 19The same is true for those videotaped scenes length which were intended to show of time that the assailants turned to Vargas’s look in direction and the they direction which record, According ran. Vargas’s to the testimony accuracy verified the videotaped depictions regard. in this 100, 108 (1961) Co. 189 Cal.App.2d Cal.Rptr. properly [11 235] [court with of train admitted motion sound to run over picture crossing purporting even and other conditions in motion lighting section in question, though accident].) to those of the were dissimilar Admission surrounding picture error, did not constitute or otherwise. prejudicial videotape Recollection Refreshing Vargas’s b.
Defendant also contends it was erroneous for the court to admit the recollection, at trial to refresh and to allow the videotape Vargas’s prosecu tor to refer to the since had not stated that she Vargas play videotape, which the could not remember the facts to elicit. any prosecutor sought 829, (See (1990) v. Lee People Cal.App.3d Cal.Rptr. 595] [“A recollection; however, refer witness to refresh his before may hearsay the witness he cannot so must remember the fact to be doing testify sought elicited.”].) assertion,
This claim is devoid of merit. to defendant’s Contrary offered the to demonstrate the prosecutor videotape physical layout and to show building, as she viewed the apartment Vargas’s vantage point assailants scene of the crime. Since the was neither fleeing videotape offered nor admitted at trial for the recollec- purpose refreshing Vargas’s Lee, tion, 840, at is supra, 219 Cal.App.3d page inapposite. the court committed no error in to view Additionally, allowing Vargas to refresh her recollection before the stand. Even if videotape taking Vargas could remember the events without the independently videotape, has cited no under which could have been from authority Vargas prevented it before watching trial.20
2. Evidence Hearsay Regarding Identifications Menlo Park Police (a) Detective Ronald Williams testified at trial that: identified (b) Juan Garcia at his Vargas told the preliminary hearing; Vargas brief, reply 20In his videotape may subliminally suggested defendant contends that the have Vargas ability night greater that her to recall what she saw the of the murder was much than assertion, memory her own warranted. Since the record discloses no basis for defendant’s we engage speculation. decline to in such videotape Defendant also claims that admission of the violated his state and federal trial, rights constitutional to due process, guilt capital a fair a reliable determination in a case trial, fair application reject of state law. We these claims. At defendant failed to make objections. (People 972-973, v. Ashmus any such Cal.Rptr.2d 54 Cal.3d fn. 10 [2 Moreover, 214].) P.2d properly they these matters are not perfunctorily raised: are (Id., event, argument 15.) support. asserted without fn. In the admission of the videotape implicate any did not of the cited federal or protections. state constitutional *51 detective at Garcia’s that she had preliminary hearing previously recognized (c) Garcia in a live neither Zavala nor other lineup; Vargas, any had Richard chosen or Nathan Howard from a person Lopez photographic Defendant contends admission of these lineup. statements con- hearsay stituted error and denied him the benefit of various constitutional prejudicial protections.
a. Garcia at Preliminary Hearing Identification The asked Detective Williams on direct prosecutor examination whether had identified Vargas positively Garcia at a Defense preliminary hearing. counsel on objected After the hearsay grounds. it “a prosecutor was asserted identification,” the trial court prior overruled the The detective objection. then testified that did Vargas Garcia in court. identify
Under Evidence Code section evidence of a statement of identifica- tion is not made inadmissible rule by when the statement hearsay would have been admissible if made witness while and the testifying additional following foundational are requirements (a) met: The state- “[U ment is an identification of a or another as a party who person participated occurrence; a crime or other (b) The statement was made at [U a time when the crime or other occurrence was fresh in the ["jQ witness’ (c) memory; The evidence of the statement is offered after the witness testifies that he made the identification and that it awas true reflection of his at that opinion time.”
Defendant evidence, contends there had been no from Vargas witness, other any that the occurrence was fresh in her mind at the time of Code, her (Evid. statement. (b).) subd. He also asserts that Vargas § had not testified that previously she made an identification of Garcia at the {Id., 1238, preliminary hearing. (c).) subd. Defendant argues these § foundational deficiencies undermined severely asserted reliability admitted, purported identification. contends, Once he Vargas’s identi prior fication of Garcia served to show Garcia, that she had consistently identified thereby lending more significantly to her credibility less certain allegedly identification of defendant.
Even if the foundational for requirements identification were prior not satisfied, all the admission of the evidence could challenged not possibly have all, prejudiced defendant. First of the evidence was cumu- essentially lative of other evidence in the record demonstrating Vargas’s recognition Garcia. testified Vargas both on that, direct and redirect examination al- she did though not initially Garcia at live identify because she lineup *52 1118 child, of Garcia as one recognized her she nonetheless for herself and
afraid from able and Garcia identify was also to recognize the men she saw. Vargas the time of trial. a photograph identifications of defendant and recognition Vargas’s
More significantly, trial, not, At uncertain. Vargas explained as defendant suggests, were men when fleeing initially defendant as one of she although recognized 1987, him at that time because she chose not identify his photo shown However, her fear and forward to afraid. overcame Vargas stepped she was a and at hearing subsequent defendant both at his preliminary identify testi- identified him at trial. Since Vargas’s She also photographic lineup. in this it is not regard, reasonably was both consistent unwavering mony Garcia at his of identification of Vargas’s that the admission probable (1956) 46 the verdict.21 v. Watson (People affected hearing preliminary 818, 243].) P.2d Cal.2d 836 [299 that his of confrontation was constitutional argues right
Finally, at' Garcia’s Vargas pre because he was unable to cross-examine abridged a witness before and because was excused as Vargas liminary hearing Not was this claim waived by Detective Williams took the stand. only Code, 353), it merit. (Evid. it below is without the failure to assert § cross-examination, the the witness is available at trial for prin Where (see not People evidence is admitting hearsay present cipal danger 273, 621, 865]), 354 P.2d (1960) 54 Cal.2d 626-627 Gould Cal.Rptr. [7 is constitutional of confrontation right neither the federal nor state 489, 149, L.Ed.2d (1970) v. Green U.S. 153-164 violated 399 (California [26 334, 494-501, 1930]; (1980) 26 Cal.3d S.Ct. 349-361 People Chavez by Vargas’s identification of defendant was persuaded 21We are not the claim that during investigation had seen had at various times that she questionable because she stated reasonably Vargas had used fleeing Black man with Garcia. The record demonstrates a own, person her not a person “Black” to describe a with a skin tone darker than the term instance, Vargas photo ethnicity. prosecutor For when the showed African-American trial, coming person I when I saw him down the defendant at she stated: “That’s the saw closer to photograph, The then “And the skin tone in this is this prosecutor stairs.” asked: “Yes, Similarly, when defense counsel you Vargas replied: what remember?” dark. Black.” police man to because she Vargas repeatedly suspect whether she called the a Black asked afraid, “Yes, way say—not in that kind of—the Vargas responded: was I said—I didn’t man, sound, me he you’ve just just made it because of that. I said a Black because to very light my very Black dark. I’m skinned.” This Black man. I even call brother man. He’s referring African-American testimony, effectively Vargas which clarified that was not to an man,” testimony with when she the terms “Black” and “Black is consistent used fleeing suspects two were nearby Zavala and resident Vanessa Stums that the statements Hispanic. early of the sus- discrepancies Vargas’s descriptions Defendant identifies other minor discrepancies persuade do not us in her recollection of the events. Such pects and differently. 401]; 605 P.2d see also v. Johnson Cal.Rptr. [161 1]). Cal.4th 842 P.2d Here the Cal.Rptr.2d excused, record shows that had not been but had Vargas testified on rebuttal *53 in to other new evidence elicited the defense its cross- response by during examination of Detective Williams. Because was avail Vargas apparently able for recall and cross-examination on this matter had defense counsel so defendant’s of confrontation was not requested, right abridged.22 b. Vargas’s Recognition Garcia at Prior Lineup after Detective Williams testified that Immediately identified Gar- Vargas cia at his preliminary hearing, asked him: “The date prosecutor where had preliminary hearing the discussion with you Mrs. did Vargas, she indicate that she had in fact you Mr. recognized Garcia on the stage?” When defense counsel to the objected as question “leading hearsay," “It’s a prosecutor responded: inconsistent prior statement.” After the trial court overruled the objection, Williams answered: “Yes. She stated that she occasions; had identified him however, on each of the she was in fear of for safety herself and for her family that’s she failed why to specifically him out in those point situations.”
Defendant contends that the trial court erred in his overruling objection because Vargas’s statement to the purported detective was consis tent, inconsistent, not with her testimony. Defendant claims that the errone ous admission of the statement prejudiced him by making Vargas’s testi mony more appear credible and than it persuasive was. actually
This claim is Even if the unavailing. evidence challenged was not admis- sible statement, as inconsistent prior in any error its admission was clearly First, harmless. the statement was cumulative of merely trial Vargas’s Second, testimony. as discussed was previously, Vargas consistent and unequivocal her record, recognition defendant. Given the it is not reasonably probable that admission of the statement affected the verdict. Watson, v. (People 46 Cal.2d at supra, 836.) p.
Defendant next claims for the first time on that the appeal erroneous admission of Vargas’s extrajudicial statement abridged confron- right record, however, tation. The did, fact, discloses that defendant’s counsel 22Defendant also claims for the first appeal time on that the erroneous admission of the prior process, identification denied him jury due a fair guilt trial and a reliable determination. only Not have these Code, claims been waived (Evid. the failure to assert them below 353), the admission of the evidence did substantially implicate § not any of the cited event, protections. any constitutional In (See the error was harmless under standard. Chapman v. 710-711, 386 U.S. L.Ed.2d [17 87 S.Ct. California 1065]; Watson, People A.L.R.3d supra, 836.) v. p. 46 Cal.2d at cross-examine earlier about Garcia’s live he did Vargas not lineup, although Moreover, dwell on the matter. as noted previously, Vargas apparently available for additional cross-examination had defense counsel so requested. circumstances, Under these defendant’s of confrontation was not right Green, (California v. U.S. at abridged. supra, 153-164 L.Ed.2d pp. 494-495]; Johnson, 1220; People 3 Cal.4th at pp. supra, Chavez, 349-361.)23 26 Cal.3d at pp.
c. Richard and Nathan Howard Lopez “Nonidentification” of Detective Williams testified without and Zavala objection Vargas *54 viewed photographic of Richard lineups containing photographs Lopez (Ontiveros’s (a and Nathan Howard boyfriend) friend of Garcia’s who to have been of African-American He appears ethnicity). further testified without that neither nor Zavala objection identified these two men Vargas as case, in the and that Zavala suspects stated that specifically was not Lopez involved in the crimes. asked: “With Subsequently, prosecutor to respect Howard, of Richard photographic and Nathan in line-ups Lopez case[,] in entirety this has investigation identified a anyone photo- of Richard as a in this graph Lopez crime?” Defense counsel participant on the objected that the grounds was and called for question argumentative and opinion, hearsay After the speculation. that the prosecutor responded called for acts in the question witness’s and occurring that the presence absence of an identification not hearsay, was overruled. objection The detective “No one ever identified responded: Richard or Nathan Lopez Howard as being this participants crime.”
Defendant contends the court erred Detective Wil admitting one, Zavala, liams’s that no testimony and including Vargas identified Lopez or Howard the course of the during He claims that investigation. such “nonidentification” evidence constituted inadmissible and that its hearsay, admission his abridged constitutional of confrontation and right prejudiced reasonable attempt inject doubt into the jurors’ minds that a third party (i.e., Howard) committed the crimes.
We see no basis for reversal. In the first
defense counsel failed to
place,
to the
object
and
questions
responses pertaining
Zavala.
Vargas
counsel
Although
subsequently objected to the more generalized question
if
had
asking
ever identified
anybody
as a
this was
Lopez
participant,
23Defendant also contends that the
challenged
erroneous admission of the
evidence denied
process,
jury
him due
a fair
guilt
trial and a reliable
capital
determination in a
We
case.
cannot
agree.
only
trial,
Not
have these claims been waived
defendant’s
failure to assert
them at
standard,
by any
(See
Chapman
California, supra,
perceived
but
error was harmless.
v.
Watson,
710-711];
People
p.
836.)
Zapien, supra, only [convictions record on discloses that counsel had “no rational appeal affirmatively pur omission].) case, for the act or In this defense counsel pose” reasonably have chosen for tactical reasons not to because might object Vargas cross-examination, Zavala were for recall and available and thus could have *55 (See (1986) testified about these matters. v. 41 Cal.3d directly People Ratliff 665].) 715 P.2d Cal.Rptr. event, In even that the had been for any issue assuming preserved review and that some or all of evidence constituted inadmissible hears we are satisfied that the admission of the was not ay,24 testimony prejudi cial. Inasmuch as there had been no evidence that had ever identified anyone crimes, Howard or aas in the Williams’s Lopez participant testimony merely Moreover, reflected the state of the record. defense counsel only briefly raised the issue of Howard’s involvement his Lopez’s during possible the evidence closing argument, because this presumably theory supporting that, identification, argues 24Defendant positive identify like a a failure to evidence either is of a statement or of assertive conduct intended as a for oral or verbal substitute written (See (1972) expression. People Mayfield Cal.App.3d Cal.Rptr. 240 [100 104] pointing conduct of photograph response question to a in to a is assertive conduct [declarant’s hearsay].) and Although might there be instances which the absence of an identification hearsay, would not constitute prosecutor eventually challenged in this case used the i.e., hearsay nonidentification purpose, arguing closing evidence for a as the basis for Vargas Lopez, essentially and Zavala “exonerated” police Howard and that the two told Lopez right that Howard and were not the ones. note, On a Attorney prior exception related General contends that the identification to (Evid. Code, 1238) hearsay rule of furnishes basis for admission nonidentification § event, evidence. Since we conclude that admission of the evidence was harmless in we decline to address this issue. contrast, was at best.25 In the evidence marginal to pointing defendant’s of, involvement (1) was inter strong, consisting alia: identifications positive Ontiveros; both Vargas (2) accomplice evidence that on the morning crimes, after the defendant treatment sought for an arm injury matching Zavala; descriptions Ontiveros and provided by Vargas, evidence that on that same defendant his brother morning, to lie about requested Thus, arm and to retrieve his car from injury Ontiveros. it is not reasonably Watson, that the probable error affected the (People perceived verdict. 836.)26 Cal.2d at p. 3. Reading Vargas’s Testimony to Jury of deliberations,
During guilt phase jury requested portions testimony and two other Vargas witnesses. With re- respect Vargas, jury “[djirect and/or quested cross what concerning were shown to photo line-ups her and what prior preliminary hearing were identifications made.”27 The trial court ordered certain to be read to excerpts the jury, three including portions Vargas’s that she did testimony explaining not identify in the photo lineup predating preliminary because she hearing was afraid. court, however, The refused defense counsel’s to read of her request portions that, defendant, recross-examination testimony according would have tended to cast a very different on her light “fear” and alleged would have that, defendant, had she been suggested afraid of she truly would not have identified him at his preliminary hearing.28 concerning 25The evidence possible involvement of Lopez fairly and Howard is Lopez, summarized as follows. who was boyfriend, present Ontiveros’s live-in at the bar night Ontiveros, with Ontiveros on the According murder. Lopez left the bar before *56 proposed Howard, she discussed the robbery with Garcia and appeared defendant. who to be African-American, by was called as a witness defendant grew up and testified that he with Juan Garcia and “partner” defendant, described himself as a of According Garcia’s. Howard “somewhat resembles” a composite drawing done a sketch Vargas’s artist from descriptions day after the murder. belatedly 26Defendant contends for the first time on appeal that the erroneous admission of challenged process, evidence denied him jury due a fair right present trial and the defense, and a guilt reliable (Evid. determination. if Even the issue is not deemed waived Code, 353), the perceived error any did not violate § of defendant’s rights. constitutional
Moreover, standard, by any (See the error Chapman was harmless. California, supra, p. 710-711]; Watson, U.S. at pp. L.Ed.2d at 836.) 46 Cal.2d at jury initially 27The had requested Vargas “Maria testimony on when photo she saw line up." request The at issue here followed the trial court’s jury instructions to the to narrow its request. initial specific 28The portions requested by (1) Vargas’s defense counsel testimony alleg were: edly showing that upset she had not become preliminary hearing immediately defendant’s him; (2) identifying after her statement that identify she did not accomplice Garcia at his afraid; lineup because she was testimony her gotten the effect that she had not over her fear when she identified preliminary hearing. defendant at the Defendant contends these to delete Vargas’s that the court’s refusal Defendant contends alternative, or, her other in the to include that was afraid statements she remark, that was an abuse of to contradict or explain that tended testimony unfavorable to defendant that unfairly highlighted testimony discretion trial and a reliable guilt to due a fair jury violated his rights process, fear should not have testimony He contends that Vargas’s determination. but for the additional reason that it raised possible, impermis been read sible, threatened her. inference that defendant had General asserts that defendant waived any
In response, Attorney it to some of the because was his objection challenged testimony parts Code, (Evid. 353.) who be read. counsel requested they Although § contention, the waiver he that we review the disputes requests in the claim if a matter context of an ineffective assistance waiver is found. We find it to decide the issues of waiver and ineffective unnecessary assistance since the claim is so in merit. clearly underlying lacking Vargas’s her fear relevant to did testimony concerning was she not directly why defendant at the To have omitted this as identify photo lineup. testimony part would have distorted the record. No error reading grossly appears. The court also did not err in defendant’s to read denying request portions recross-examination to her identification of Vargas’s testimony pertaining defendant at his and to her failure to Garcia at preliminary hearing identify evidence, his live Unlike the fear this other was not lineup. testimony to the for “what responsive jury’s were shown to her request photo line-ups to the prior and what identifications were made.” preliminary hearing event, error, In the court’s even if in did not ruling, prejudice brief, defendant. The was reading Vargas’s testimony given with two conjunction other witnesses. testimony by Additionally, reading included defense counsel’s to the effect if questioning Vargas Vargas defendant, was afraid of “she could have actually said what she said at substance, Garcia’s live In this lineup.” defense precisely point counsel had to make with the other hoped excluded of Vargas’s portions (See ante.) fn. testimony. error was harm- Accordingly, any perceived *57 Watson, less. (People 836.) 46 Cal.2d at Finally, that fear argues Vargas’s testimony impermissibly that he or someone suggested (See associated with him had threatened her. 909, 166, (1991) v. Mason 52 People Cal.3d 802 946-947 Cal.Rptr. [277 portions Vargas's of testimony implied identify photo that her failure to defendant’s resulted recognition, from a lack of not fear. 950]; 535, (1958) P.2d People Weiss 50 Cal.2d 527]; P.2d [327 606, (1990) v. Pitts 757].) 778-781 Cal.App.3d Cal.Rptr. [273 We this claim at the reject outset because it was not asserted at (Evid. trial. Code, 353.) We also find it on the unpersuasive merits. There is no § record, in the either suggestion from own Vargas’s or from the testimony trial, conduct of including that prosecutor’s arguments, had jury been told or otherwise left with the impression fear Vargas’s have been might attributable to a threat.
4. Evidence Regarding Victims’Relationship
a. by Exclusion the Trial Court examination, On direct asked Zavala if prosecutor he and his brother were “very close.” Zavala cross-examination, “Of replied: course.” On Zavala was asked if he had an uncle in Mexico named Castro. After the trial court sustained the prosecutor’s relevance objection this defense question, counsel made an offer of outside proof, presence jury witness, that Zavala and had Barragan an uncle named Castro in Mexico who had heard Zavala indicate that he and for a time Barragan had not long been because of speaking Barragan’s drug Defense dealing. counsel argued that the evidence would show close, that the brothers in fact were not that the drug was a source dealing of irritation between them. Defense counsel also referred to a series of police reports indicating Zavala was initially suspected to be Barragan’s murderer.
The court sustained the prosecutor’s objection pursuant Evidence Code 352, section that the finding value of the probative proffered evidence would be if not outweighed, it, time it by would take to introduce then confusion it would cause. The court also denied defendant’s motion to strike Zavala’s earlier that he and testimony were Barragan close.
Defendant contends that the trial court erred in ex prejudicially cluding above evidence. We disagree.
Under Evidence Code section the trial court broad enjoys discretion in whether the assessing value probative of evidence is particular outweighed by concerns undue confusion prejudice, or consumption time. (People v. Dyer 45 Cal.3d 753 P.2d Cal.Rptr. Where, 1].) here, as is discretionary vested in the power statutorily trial court, its exercise of that discretion “must not be disturbed on except appeal on a that the court showing exercised its discretion in an arbitrary, capricious absurd manner patently that resulted in a manifest miscarriage justice. *58 308, (1986) 42 Cal.3d Cal.Rptr. v. Jordan (People [228
[Citations.]” 79].) 721 P.2d all, standard, of First of we find no abuse discretion. this Applying clear since the defense did relevance the evidence was not the of proffered uncle between Zavala not establish when the communication alleged the brothers occurred. or when the out between falling took supposed place, demonstrated, Second, have been even if a relevant time frame could little, to the vital in the evidence had if issues any, significance proffered Thus, had defendant.29 even defense counsel case against though represented trial court that he not intend to dwell on the the court to the did subject, that the value of such evidence cannot be faulted for concluding probative was concerns that an between outweighed by exploration relationship undue the two brothers would consume time and confuse issues. event, discretion, In there an is not abuse reversal any assuming warranted. in the Defendant’s involvement instant crimes was estab firmly lished two defend witnesses other than Zavala: Maria through Vargas Hence, ant’s Ontiveros. it is not accomplice, Cynthia reasonably probable that a more would favorable result have occurred had the evidence been Watson, 836.) admitted. 46 Cal.2d at (People b. Prosecutorial Misconduct and Assistance Counsel Ineffective
Defendant that the contends committed misconduct prosecutor by brother, in his stating guilt that Zavala loved his phase closing argument lie, he had no motive to and that he had no reason to falsely identify as his brother’s killer. Defendant that the wrong person claims prosecutor, obtained having the favorable defendant’s evi ruling excluding proffered dence, then used the evidence of Zavala’s closeness to to convince Barragan jury Zavala’s less than certain identification defendant was fact accurate. He claims this use of the evidence contradicted an earlier repre sentation made that the prosecutor for only purpose establishing brothers’ closeness was to Zavala’s state of mind help jurors appreciate as he was (Cf. attack on perceiving Barragan. Varona 143 Cal.App.3d misconduct where Cal.Rptr. [finding 44] a falsehood prosecutor argued to the and also the “lack” of jury argued evidence it].) even though defense was ready willing produce
We need not address these claims on the merits because defense counsel’s failure to to the remarks waives the issue on object prosecutor’s appeal. brother; may 29The defense case theory was not based on the that Zavala have killed his nor was there support theory. evidence to such a *59 1126 1233, 796, (1993) 4 Cal.4th v. 1334-1335
(.People Cummings Cal.Rptr.2d [18 Nevertheless, 1].) we P.2d will reach the merits 850 defend- response assertion that the constituted assign ant’s failure misconduct ineffective of counsel. assistance a will not be based of conviction reversed on a claim
Generally, ineffective assistance of counsel unless the defendant establishes both of (1) that counsel’s fell below an following: representation objective standard reasonableness; that, (2) there is a reasonable for but probability errors, a counsel’s determination more favorable to defendant unprofessional 142, have v. 5 (People (1993) would resulted. Cal.4th Mayfield 199 [19 836, 331]; 852 P.2d v. Cox 53 Cal.3d Cal.Rptr.2d People 351].) P.2d If the an Cal.Rptr. defendant makes insufficient on either one these showing ineffective assistance claim components, “ Moreover, need ‘a court not determine whether fails. counsel’s perfor was mance deficient before suffered examining defend prejudice Cox, ant as a result of the deficiencies.’ v. alleged (People supra, [Citation.]” 656.) 53 Cal.3d at p. case,
In this neither nor has been incompetence prejudice estab all, statements, i.e., First of lished. the main thrust of the prosecutor’s had Zavala no reason to identify but the as his brother’s anyone guilty party murderer, was not on the evidence that the brothers were close. dependent Whether not the shared a brothers close the record relationship, remained devoid evidence a for any reason or motive Zavala to suggesting wrongly identify defendant. Since the of the gist prosecutor’s argument appro defense counsel’s failure to was not priate, assign misconduct unreasonable. event, any In defendant fails demonstrate evi prejudice. Overwhelming dence of defendant’s involvement in the instant crimes was presented Thus, through Vargas, Ontiveros others. if a attorney even competent have would succeeded in trial court strike this entire persuading aspect of the prosecutor’s it is not argument, that the reasonably omission probable have would resulted in more favorable for v. result defendant. (People 199; Cox, at Mayfield, supra, Cal.4th p. 53 Cal.3d at supra, p. 656.) No basis for reversal appears.30 30Defendant further claims that the trial court’s exclusion proffered erroneous evidence, prosecutor’s abridged misconduct and counsel’s ineffectiveness violated or rights process, federal constitutional guilt to due a fair guilt trial and reliable verdict at the trial, phase capital of a reject any case. We these claims. At failed to make Ashmus, objection (People whatever based on federal provision. constitutional 972-973, Moreover, 10.) pp. 54 Cal.3d at {Id., fn. not points properly these are raised. 15.) fn. Testimony Opinion Zavala’s
5. Exclusion of *60 cross-examination, he had previously Zavala if defense counsel asked On had looked like the attackers it thought “that investigator you told a defense the trial court sustained kill brother?” The come the to apartment your to to intent as that the called for speculation objection question prosecutor’s attackers. called because the question contends the trial court erred Defendant to he witness’s as what personally not but for the opinion for speculation, claims the error was prejudicial the attack. Defendant during perceived on the would have created reasonable doubt special the evidence because robbery and of charges attempted allegations underlying circumstance he entered the that defendant’s when and burglary showing purpose kill was to strictly Barragan. apartment error, the that no not the issue of General Attorney argues
While disputing the evidence. have the omission of could resulted from possible prejudice We that was error harmless. agree perceived she,
At that Garcia and defendant planned trial Ontiveros testified Cynthia and of their and of rob Zavala She details Barragan. provided planning also what after the events attack. She described leading up happened scene, defendant’s three fled the crime providing particulars concerning return of of the murder and the and injury, disposal washing weapon, looked like the defendant’s car. Zavala have it Although may thought brother, had to kill his that not have been necessarily attackers come would indi- inconsistent with Ontiveros’s and Zavala’s other testimony testimony to the two attackers coordinated their efforts to access cating gain if subdue the brothers and obtain “it” was. apartment, Additionally, whatever admitted, bolstered the testimony theory Zavala’s would have arguably Garcia and and to leave no wit- defendant to rob the brothers conspired record, Given all evidence in well as the fact that there was nesses. as no evidence that even of it is Barragan, knew or heard previously was than that the have believed the motive other highly unlikely jury would robbery.31 Corroboration Accomplice
6. of and burglary Defendant contends that because the sole evidence from and statements robbery testimony came the uncorroborated attempted reasons, claims, belatedly on reject same we asserted for the first time 31For the defendant’s defense, rights present appeal, deprived that the of the evidence him of the exclusion trial, process special penalty due and a to a determination. fair reliable circumstance Ontiveros,32 there was insufficient evidence to accomplice legally support convictions, burglary attempted robbery felony-murder theory murder, first and the degree felony-based special-circumstance findings. defendant contends that even if there Alternatively, was sufficient corrobo ration, the must be reversed because the judgment jury inadequately instructed on the corroboration. principles accomplice
a. Corroborative Evidence Sufficiency of *61 The law corroboration of requiring is well estab accomplice testimony “A lished. conviction cannot be had the of an upon testimony unless it be corroborated such other evidence accomplice by as shall tend to offense; connect the defendant with the commission of the and the corrob oration is not sufficient if it shows the of the merely commission offense or “ the circumstances thereof. . . .” ‘The (§1111.) corroboration requisite be established may entirely circumstantial evidence. Such by [Citations.] evidence be and entitled to little when “may slight consideration standing ’ ” 982, alone. v. 4 Cal.4th at (People Zapien, supra, [Citations.]” quoting 57, (1987) 594, v. Miranda 44 People Cal.3d 100 744 P.2d Cal.Rptr. [241 “ 1127].) evidence “must tend to the defendant ‘Corroborating implicate therefore must relate to some act or fact which anis element of the crime but it is not that the corroborative be necessary evidence sufficient in itself to ’ ” establish element of the offense every v. charged.” (People [Citation.] 982, 4 Cal.4th Zapien, supra, (1991) at p. quoting Sully v. 53 Cal.3d 1195, 144, 163].) 812 P.2d In this “the Cal.Rptr. regard, prose [283 which, cution must evidence without aid or produce independent assistance from the of the tends to connect the defendant with testimony accomplice, 756, the crime (1972) Cal.3d charged. (People Perry [Citation.]” “ 129].) 499 P.2d Cal.Rptr. evidence is sufficient if ‘Corroborating [103 it substantiates of the enough to establish credi accomplice’s testimony (1988) bility 45 Cal.3d (People Bunyard [citation omitted].”’ 795].) 1206-1207 756 P.2d Cal.Rptr. rules,
In the we find there was substantial applying foregoing corroborative evidence defendant to the crimes in connecting question. Ontiveros, (1) Zavala testified that: when he the door for a man with opened a tire iron and a man with a knife into the rushed immediately apartment brother; attack, (2) started him and his course of the attacking during him, (whom Garcia) man with the tire iron he later identified as asked (“where la it?”); (3) tienes?” do have Zavala assumed that “it” “[¿]donde you closet, meant (4) after Zavala said “it” in the money drugs; that man with (whom defendant) the knife he later described as similar to looking jury
32The had accomplice been instructed that Ontiveros was an as a matter of law. too”; fled when the Garcia, two attackers him “finish told said, “Well out with the knife let’s get and man began telephone ringing come going here the might [szc].” police could Vargas with certainty, Zavala not defendant identify could Although who the two men defendant and Garcia as identified and did. She positively crimes, and testified on the night had her window fled past also testified with an arm. Zavala injured fled crime scene arm, while Dr. Billings an attacker fled with knife-wielding injured 5, 1987, stitches for defendant received testified that on morning May Further corroborating his left caused instrument. sharp an arm injury that, at defendant’s admitted Rodriguez, evidence came from who Raymond defendant’s car lied defendant’s arm and retrieved he about injury request, evidence Physical after the crimes had occurred. morning from Ontiveros wounds were to connect defendant to crimes. Barragan’s also tended assailant; left-handed hospital consistent with face-to-face stabbings by Additionally, defendant was left-handed. traces records reflected that *62 the of found inside handle blood consistent with defendant’s blood were type blood on a found the with Ontiveros’s by help. Finally, the knife police the trunk with blood of either Zavala tissue in defendant’s car was consistent but with the of or Garcia. or not blood defendant Barragan, sufficiently that the above evidence While defendant concedes apparently murder, he it does not ade- tends to connect him with claims Barragan’s (See v. connect him with an or burglary. People quately attempted robbery (1948) 87 403 P.2d Reingold Cal.App.2d 175] [circumstances [197 on must the for which he is tend to connect the accused with offense specific Zavala, trial].) on the circumstances testified Focusing by not in the do have it?”—does argues you unadorned question—“where the or robbery itself reflect intent or to commit crime attempt view, an mean- essentially In his the is and burglary. question ambiguous aid from Ontiveros’s if considered without or assistance ingless question 769.) at (See v. Cal.3d Perry, supra, p. and statements. 1 testimony People We disagree. or money drugs,
Even not in demanding attackers were though specific Zavala, On- even from apart circumstances testified totality at- that an determination tiveros’s testimony, clearly justified jury’s Jackson (See, People had taken robbery burglary place. e.g., tempted robbery (1963) 222 [attempted Cal.Rptr. 38] Cal.App.2d [35 store, entered that defendant conviction where evidence established upheld it.”]; v. Gilbert “This is at store and said only, pointed gun operator, armed two (1963) 214 567-568 Cal.Rptr. 640] [where Cal.App.2d in market after time and shortly closing simultaneously men appeared one near cash drawer and the their pointing proprietor displayed weapons, room, to rear lack of such as “this other herding remaining occupants phrase not is a or “hand over does bar reasonable your money” stickup” intended].) Zavala inference that a forceful taking property Although was, it Garcia who demanded where “it” could jury testified that was infer from all the Zavala that the attackers testimony given by reasonably in a rob the brothers. The circum- coordinated their efforts joint plan that the would have stances inference attackers additionally supported (Cf. had it not been for the succeeded that plan telephone ringing.33 Cal.4th at circumstance People Zapien, supra, [upholding special that defendant murdered victim commission of during attempted finding where could conclude that defendant robbery burglary jury reasonably knew tele- fled without or valuables because he had been money police assertions, to defendant’s there is fanciful nothing phoned].) Contrary about these inferences. illogical
The than record contains more evidence corroborating supporting ample convictions, the for first conviction burglary attempted robbery murder and the degree felony felony-based special-circumstance findings.34 case, That we defendant’s further contentions that the verdict being reject violates his to due a reliable determination and other rights guilt process, constitutional perceived protections.
b. Instructional Error counsel, After discussions with the trial court instruc- gave following *63 corroborated); tions: CALJIC of be Nos. 3.11 must (testimony accomplice (witness 3.12 of evidence to corroborate an 3.16 (sufficiency accomplice); law); as matter of 3.18 of to be viewed accomplice (testimony accomplice distrust). with 33Pointing immediately go to the evidence that Garcia the to obtain did not closet responded argues question, whatever “it” was once Zavala to Garcia’s that the question logically step” cannot be deemed an “immediate in the execution of an intended robbery by which would been if circum completed interrupted have not some unintended (See [defining wrong. juryA could “attempt”].) stance. CALJIC No. 6.00 Defendant is that,
reasonably directly telephone ringing, gone infer but for the Garcia would have to the pursuant closet once he “finished” Zavala to defendant’s instruction. conclusion, 34Because we reach this we need and do not address defendant’s contention not jurors that it cannot be determined from the record or all of the found defendant whether guilty theory premeditation of murder on a of and deliberation. We also do not address his that, reversal, principles jeopardy preclude contention in the of a of double a retrial on event Finally, charges special allegations prosecuted in we do not the circumstance this case. Attorney arguments affect his address General’s contention that defendant’s “do not because, felony-murder burglary based burglary special conviction and circumstance based on kill than to rob and theoiy, apartment on he could have entered the rather [defendant’s] kill.” addition in refusing give proposed the court erred
Defendant contends (one 3.11, with CALJIC No. 3.13 and in to instruct failing to CALJIC No. errors another). contends these corroborate Defendant not accomplice may trial, reliable fair guilt, special due jury him of process, deprived without contentions are determinations. These circumstance and penalty for reasons set forth below. merit No. instruction the standard CALJIC 3.11 gave the trial court
Although an of testimony be based (“A guilty defendant cannot found upon which other evidence such is corroborated testimony unless accomplice offense.”), it with the commission of tends to connect such defendant “As used this instruc to further instruct that: request refused defendant’s tion, well made out court as as statements includes statements ‘testimony’ contends an Defendant this accomplice.” proposed made court by on On addition was because the relied necessary prosecutor accomplice as as on her in-court testim tiveros’s out-of-court statements to well police, 200, (See (1989) v. 213-214 Andrews 49 Cal.3d ony.35 People [260 583, to an 776 P.2d [holding applies accomplice’s Cal.Rptr. 285] § out-of-court when as substantive evidence guilt]; People statements used 485].) v. Belton 23 Cal.3d 591 P.2d 524-526 Cal.Rptr. He that if the had concluded that Ontiveros’s out-of-court jurors theorizes statements were not could have relied on such testimony, they improperly her testimony. statements to corroboration for in-court provide requisite We are not Even the trial court should have though given persuaded. (see defendant’s avoid clarification to confusion proposed any possibility Andrews, 11), to do so People 49 Cal.3d fn. refusal supra, not clear accom error. The court’s instructions made prejudicial distrusted, were to be and that their could not furnish plices testimony 3.11, 3.12, Moreover, 3.18.) sole basis (See for a conviction. CALJIC Nos. neither trial court nor the ever otherwise told or suggested prosecutor that it should between Ontiveros’s out-of-court jury distinguish (See in-court statements for purposes requirement.36 corroboration Andrews, 214-215.) When the issue 49 Cal.3d at pp. arguing *64 of corroboration made no men during the closing argument, prosecutor Rather, tion of Ontiveros’s out-of-court statements. he directed the jury’s Ontiveros, planned 35These out-of-court statements how Garcia and defendant described robbery, materially testimony gave the and were not from at trial. different the Ontiveros through testimony Evidence of of Park Police provided these statements was the Menlo Detective Terri Molakides. corroboration, accomplice we are specific 36Given nature of the court’s instructions on unpersuaded by suggestion jury by the more defendant’s that the was misled trial court’s general may constitute prior instruction that a witness’s consistent or inconsistent statements by “evidence of the truth of the stated on such former occasion.” statement as witness Zavala, attention to the testimony provided by Vargas as well as to the evidence such as the physical presence defendant’s blood on the type knife, car, retrieved the blood found in defendant’s arm defendant’s injury. demonstrated,
As we have already such evidence tended to connect amply evidence, defendant to the crimes. Based on of that strength there is no reasonable that the would have reached a probability jury different result had it 215; been given (49 instruction. clarifying Cal.3d at v. People p. Watson, 836.) 46 Cal.2d at supra, p.
Defendant next contends the trial court erred in not giving 3.13, CALJIC No. which “The provides: corroboration required an testimony of accomplice may not be supplied by testimony all of but must accomplices, come from other evidence.” [his] [her] Accord defendant, this ing instruction was because the necessary inference of only rob, an intent Ontiveros, from the evidence apart by came from supplied fellow Garcia. accomplice
Because the corroboration of section 1111 requirement is a substantial we address this claim right, even defense counsel though stated trial that 1259; CALJIC Andrews, No. 3.13 did not (§ v. apply. People supra, 49 213; Cal.3d at p. Belmontes 45 Cal.3d 781 [248 Cal.Rptr. 310].) claim, however, 755 P.2d to the Turning merits of we find Zavala, Garcia, that the instruction did not not apply. was the source of the evidence corroborating Ontiveros’s that defendant testimony Garcia Moreover, intended to rob the brothers. even the evidence though offered Zavala included his recounting la tienes?” “[¿]donde (“where it?”) Garcia, do have you from question originating evidence falls outside the ambit of section 1111.
“In enacting section intended Legislature to eliminate the of a defendant danger convicted being solely untrustwor upon suspect, and unreliable thy evidence from an who coming likely is accomplice, have Belton, self-serving motives that affect his credibility.” (People 3.13, 526.) Cal.3d at CALJIC No. which instructs that one another, not accomplice may corroborate this in the acknowledges danger context of multiple who be motivated accomplices may by self-interest offer but complementary inaccurate adverse to the defendant. testimony matter,
aAs we address the General’s preliminary Attorney argu ment that section 1111 does not for the that Garcia not an reason apply *65 because “an accomplice is one who testifies at trial.” This ‘accomplice’ 1111, an is “defined as section accomplice without Under is merit. argument the charged against for identical offense one who is liable prosecution is testimony accomplice in in which the on trial the cause defendant clear, may the term “testimony” our cases make (Italics added.) As given.” v. testimony. (People as as in-court refer well statements extrajudicial 214; Belton, 23 Cal.3d at Andrews, pp. v. supra, Cal.3d at p. People supra, 524-526.)
Nonetheless, la tienes?” of “[¿]donde question evidence Garcia’s made Garcia Significantly, of CALJIC No. 3.13. did not warrant giving on Zavala and in their attack during this utterance defendant’s presence Thus, of a facilitating robbery. Barragan reasonably for apparent purpose statement, it was not made to if deemed a clearly even could be question immunity. law in the of or hope leniency (Compare enforcement officials utterance, Belton, 525.) Garcia’s with 23 Cal.3d at People pp. made, in it none of the which dangers context which was implicated circumstances, the giving section 1111 was intended to address. Under these (Cf. 3.13 have and unnecessary. of CALJIC No. would been inappropriate excited utterance 53 Cal.3d Sully, supra, [accomplice’s with made reaction to victim’s face sledgeham defendant smash seeing 1111].) mer was not corroboration for “testimony” requiring purposes § sum, error, In whether these claims of instructional considered prejudicial are merit. are the singly challenges without So too constitutional together, on these claims. predicated
7. Conspiracy Instructions defense defendant was not with counsel Although charged conspiracy, with agreed below the court should instruct prosecutor jury 6.10.5 as pleaded CALJIC Nos. and overt act—defined—not (conspiracy (determina crime 6.24 6.11 charged), (conspiracy—joint responsibility) statements).37 tion of Defendant admissibility of coconspirator’s these contends the court committed error giving presently prejudicial instructions, crimi with to those instructions respect particularly permitting nal for the declaration of liability coconspirator.
The defense failed to object General because counsel Attorney argues evidence, to the into and because counsel admission Garcia’s question instructions, not to the affirmatively may consented conspiracy time, going through this first prosecutor 37At told “kind of for the the court he was as using conspiracy theory admissibility opposed of evidence time instruction on the culpability for a crime.” *66 1134
now that the instructions were We that counsel’s complain given. agree (see (1993) consent to the instructions bars review v. Wader appellate People 610, 788, 5 Cal.4th 658 854 P.2d invited error Cal.Rptr.2d [20 80] [counsel where he instruction]), reading but requested challenged penalty phase will the address merits defendant’s claims since he contends additionally that counsel was ineffective. instructions, that,
In the defendant once asserts challenging again apart statements, from Ontiveros’s evidence an accomplice only suggesting intent to rob was Garcia’s la tienes?” Defendant “[¿]donde question. posits steal, that since he himself never said to indicate an intent to rob or anything could not have found him jury guilty robbery, burglary, attempted murder or the felony circumstances unless it acted on the special conspiracy instructions the court which allowed it to attribute Garcia’s utter- given by ance himto as a in a to rob or steal.38 Defendant coconspirator plan contends that these evidently instructions lacked foundation because an to rob or steal had not been alleged conspiracy established sufficiently by from some source other than the independent proof statements of alleged 762, (See (1943) v. People 60 111 conspirators. Murphy Cal.App.2d [141 755].) If P.2d instructions had not been conspiracy erroneously given, claims, would not have found jury him. against It is firmly established evidence of be admitted even conspiracy may if the defendant is not with the crime of v. charged (People conspiracy. Belmontes, 790, 45 Cal.3d supra, at with v. p. citing People approval 396, (1980) 702]; Jourdain 111 404 v. Cal.App.3d People Cal.Rptr. [168 1170, 5, 259, (1969) Washington 71 Cal.2d 1174 P.2d 459 39 Cal.Rptr. [81 541].) A.L.R.3d Once there is of the there existence proof conspiracy is no error in (Ibid.) on the law of instructing jury conspiracy.
To determine whether there was of a sufficient this proof conspiracy case, we rules. the existence of the apply following “Although [citation], must be shown conspiracy by need independent proof showing be facie evidence of the The facie only prima conspiracy. prima [Citation.] [citation], be showing may circumstantial be means of may evidence which tends to show existed. competent conspiracy [Citation.]” (Pe Jourdain, Furthermore, 405.) 111 ople Cal.App.3d of a establish existence independent proof required conspiracy consist of uncorroborated v. Price may testimony. (People accomplice (1991) 610]; 1 Cal.4th 821 P.2d Cal.Rptr.2d [3 211].) Cooks Cal.App.3d Cal.Rptr. evidence, object question 38Defendant did not to the into nor is he admission of Garcia’s
contending appeal erroneously on that such evidence was admitted. *67 trial, at testimony standing find that Ontiveros’s We accomplice addition, we find alone, a In facie of evidence conspiracy. provided prima through a established sufficiently that the existence of conspiracy at the apartment. of the events taking place Zavala’s testimony “if to a crime to a commit Evidence is sufficient prove conspiracy to a mutual tacitly that or came it an inference the parties positively supports a a The existence of conspiracy to commit crime. understanding [Citation.] interests, conduct, and of the the activities relationship, be inferred from may the before and during alleged conspiracy. alleged conspirators [Citations.]” Cooks, 311.) at what v. From supra, 141 (People Cal.App.3d p. to, that the two reasonably and testified the could infer jury Zavala witnessed and with each other and with Ontiveros male assailants coordinated agreed to the robbing access the for of forcibly purpose to gain apartment and instructions from the brothers. The two assailants took stealing gave other, each with on to “finish” from Garcia defendant’s commands acting and before Zavala to out arrived. get police record, reviewed the we are that the trial Having satisfied court properly fortiori, on the failure to instructed of A counsel’s principles conspiracy. to instructions did not amount to ineffective assistance. object challenged deliv- Because no error we related claims that reject defendant’s appears, to due instructions violated his constitutional ery rights conspiracy a fair trial reliable circumstance by jury, guilt, process, special We that determinations. defendant’s claim admission also penalty reject Garcia’s statement Garcia. (People him of his to confront deprived right (1969) 1 Cal.3d P.2d Brawley 290-291 Cal.Rptr. 361] [82 to hear- of statements under California’s coconspirator exception [admission clause]; rule not v. Earnest violative of federal confrontation say 107].) (1975) 53 743-744 Cal.App.3d Cal.Rptr. based we state and federal constitutional claims
Finally, defendant’s reject (1) finding to that: a on the trial court’s failure instruct the sua jury, sponte, be had on of a defendant cannot involving existence conspiracy corroboration requisite uncorroborated accomplice testimony; The first cannot be declaration of proposed supplied conspirator. Price, Cal.4th instruction the law. (People misstates accom uncorroborated bemay proved by existence of conspiracy [“The is only needed testimony corroboration of accomplice plice testimony; to the The second inappropriately connect conspiracy.”].) rule with the coconspir the corroboration accomplice attempts merge rule. hearsay ator exception Permissible Regarding Instructions
8. Inferences the trial court erred in a series of instructions giving Defendant argues to draw adverse inferences critically against unfairly permitted jury before, and after the events in during him based on evidence of his behavior were devastating Defendant claims that these errors particularly question. and that circumstance allegations, they deprived with respect special *68 fair trial and a determination on guilt, him of due reliable jury jury process, demonstrate, we will no error circumstances and As penalty. appears. special a. CAUIC No. 2.71.7 2.71.7, CALJIC No.
Over defense the trial court objection, gave specifi to the According to a defendant’s statements.39 cally relating preoffense record, because of Ontiveros’s testimony this instruction evidently given had with Garcia and defendant in which she recounted the conversations she that the was not before the murder. Defendant instruction argues the evidence Ontiveros did not attribute because sufficiently supported by defendant, referred to defendant being statement to but as any particular part We the when the asked conversations only prosecutor leading questions. conclude otherwise. identified certain made to and Ontiveros statements
Although specifically Garcia, both she affirmed that her conversations were with by repeatedly defendant, and them the to get Garcia and that all three of discussed plan that, that from the brothers.40 She also testified after discovered drugs having the had conversation with Garcia brothers no more she had a drugs, you may find that 39Thetrial court instructed: Evidence has been received from which “[1 which he is by an oral statement of intent was made the defendant before the offense with charged your duty was committed. It to decide whether such a statement was made is [(cid:127)]]] ought the defendant. an oral to be viewed with caution.” Evidence of statement [I following: testimony include the supporting 40Portions of Ontiveros’s this conclusion “Q Rodrigues you discussing with Garcia and Mr. the . . . When started Mr. [Prosecutor]: from, young you get drugs you plan in about brothers Menlo Park that could did discuss Q: get drugs you how A describe for the ladies and to from them? Yes. Can [Ontiveros]: go gentlemen jury among you concerning you how could the conversation the three of getting drugs Objection. Leading the as to who about from the brothers. [Defense counsel]: it, your question rephrase the conversation I’ll the was with. withdraw [Prosecutor]: Q you plan? the Very honor. The court: well. Did the three of discuss [Prosecutor]: detail, it, Q: you your what you jury A Yes. And can describe the as recall [Ontiveros]: Well, was, get drugs the A: plan you conversation what the was that devised to from brothers? me, they open the go up they I I I knew that would said that would to the door. And knew so they in after me. . . . point, open, door. And at that when the door was could rush you Q: Rodrigues plan by which you talking When were over with Mr. Garcia and Mr. the brothers go get open, over and the two men could rush in and scare would the door This was Objection. Misstates the evidence. giving up drugs—[Defense into their counsel]: and get to the money they go up apartment in which agreed defendant Thus, state- did not ascribe particular even Ontiveros though instead. defendant, her testimony infer from reasonably could jurors ment actively oral statement by participating made a pre-offense defendant No. CALJIC 2.71.7 by assenting plan. at least robbery, planning given. was properly No.
b. CAUIC 2.71.5 trial, Garcia in defend- various statements made by At Ontiveros recounted in defendant’s as the three drove from crime scene away ant’s presence substance, Garcia Ontiveros that Garcia Zavala for asking In told kept car. it was were and that Zavala under saying as money they fighting, kept statements, Garcia When made these said apparently couch. Over the defense’s trial court objection, gave adoptive nothing. No. instruction contained in CALJIC 2.71.5.41 admission *69 Defendant that the court’s of CALJIC No. delivery maintains for was the statements identified as the basis the 2.71.5 because improper admission, the lacked foundational of an adoptive instruction requirements had (1) in the record that he either heard or any that: fails to show Code, 1221; (see Garcia of the statements made Evid. knowledge by § 772, v. Lebell (1979) 840]); People 779-780 Cal.Rptr. 89 Cal.App.3d [152 in (2) way (see and Garcia’s did not accuse or him any statements implicate 300, 308, v. Preston (1973) Cal.3d 313-314 508 People Cal.Rptr. 9 Cynthia I that’s between Ontiveros and Juan Garcia. don’t believe accurate. The [Prosecutor]: your Objection may proceed. you, court: overruled. Thank honor. As You [Prosecutor] FU part you carry plan you, of the discussions between three of as to how would out the to rob the mention, drugs, suggest, their did or the two men you brothers of discuss with the use Q: Okay. weapons? they weapons. of A I no told them wouldn’t need [Ontiveros]: [<][] Well, men, Mr. you explain Rodrigues? How did that to the Mr. Garcia and A: Garcia two Mr. any, they weapons me if had And I said seen I had asked in the house. that I had never and did, they they any; they way going up had I it didn’t think and if was to set wouldn’t Q: get they any. point, And I And at that have time to them. told them that wouldn’t need discussion, you having Rodrigues disagree when were this did either Mr. Garcia or Mr. with that or take issue with that? A: that I remember.” Not evidence, you you “If if find 41Thecourt instructed: should find that from the should from defendant, of, the evidence that there was an outside outside of court when the under occasion reasonably opportunity which him failed to make'denial in the reply, conditions afforded an charging with the expressed directly presence face of an accusation to him or in his him crime commission, you tending for he on trial or him with and if should which is now to connect its nature; that he heard the accusation understood its the circumstances of silence on find indicating that the accusation may against that occasion be him as an admission considered accusatory purpose Evidence received for the thus made was true. of such an statement is not truth, meaning to the accused only supplies of its but it the silence of in proving as—as it; you at the indicated an admission that face of and unless should find that his conduct time true, accusatory you entirely disregard was the statement.” statement should 300]). Defendant that the of the instruc giving P.2d claims of People under these circumstances was erroneous Hannon light tion 1203], P.2d which held: Cal.3d Cal.Rptr. 597 [138 law that can be instructed that “It is an of before elementary jury principle inference, evidence must in the record it draw a may particular appear which, will inference.” if believed jury, support suggested 2.71.5, to the of CALJIC No. defense counsel
Although objected giving he did not on foundational or other when evidence of object grounds Garcia’s statements was admitted. Because counsel failed to to ad- object evidence, mission of the General that defendant waived Attorney argues instructional error claim. Defendant He asserts that Garcia’s any disagrees. were an statements not offered or admitted into evidence as admis- adoptive sion, event, Hannon, that in 19 Cal.3d of waiver. In that case we held that the lack of objection precludes finding waive the review the to admission does not testimony right appellate instructions the substantial of a defendant. jury affecting rights propriety 2.06]; (19 Cal.3d issue context of CALJIC No. see [deciding 1259.) § waived,
Even if the claim is not deemed it for lack of merit. As the fails statements, out, General aside from Garcia’s Attorney points postoffense crimes, with there was evidence in the record that to the defendant was prior when In Ontiveros Garcia rob victims discussed. plan *70 (1) to the Ontiveros confirmed: that “the response prosecutor’s questions, (2) Garcia and defendant three of that she told plan”; [them] discuss[ed] me, knew that they that she “would to the door. And knew so I go up they in after would the door. And at that . . . that could rush they open point, me”; need no (3) that she told Garcia and defendant that wouldn’t “they did either Garcia or defendant and that she not remember weapons”; (See ante.) as issue with that. fn. Inasmuch disagreeing taking discussions, it inferred may reasonably defendant was a to the be party or to otherwise he was afforded to refuse to participate opportunity he did not do so. Such from the but that dissociate himself planned activity; evidence, demur in the which defendant without indicated that participated the inference that an admission of a warranted robbery, adoptive planning (1992) 2 Cal.4th (See had been made. v. Fauber 249].) 831 P.2d Cal.Rptr.2d 2.03, CAUIC Nos. 2.04 and 2.06
c. instructions court several jury the trial gave Over the defense’s objection, tend to which might prove defendant to statements or efforts by relating (consciousness of guilt—false No. 2.03 CALJIC of guilt: consciousness evidence); and fabricate defendant to (efforts 2.04 hoods); No. CALJIC evidence).42 Defendant ar (efforts to suppress CALJIC No. 2.06 instructions, he and that was error to these give that it gues prejudicial a fair to due constitutional rights process, of his federal thereby deprived determina circumstance penalty reliable guilt, special trial by jury, tions. We are not persuaded.
First, erroneously given No. 2.04 was that CALJIC defendant contends infer- record to warrant any evidence in the there was insufficient because or tried falsely, a witness to “testify” that he had to persuade ence attempted While acknowledging be at trial.” fabricate evidence “to produced to lie about defend- that defendant had asked him admitted at trial brother testi- maintains that his brother’s defendant nevertheless ant’s arm injury, because the incident of CALJIC No. 2.04 fell outside mony scope We cannot agree. had been initiated. occurred judicial proceedings before be in actually not judicial CALJIC No. 2.04 does require proceedings or to fabricate evidence when the false testimony progress attempt procure from the that the could infer reasonably is made. It was sufficient jury event of a his brother to be a witness incident that defendant expected trial, of a trial. or that defendant to fabricate evidence sought anticipation
Next, was erroneously given defendant contends that CALJIC No. 2.06 rationale for the because the evidence did not support prosecutor’s instruction, i.e., or con- destroyed that defendant threw or otherwise away attack, We cealed the knife in the as well as his bloodstained clothes. used are not convinced. were the knife discussing
Ontiveros testified that as Garcia attack, the car if on the home after the she felt a blast of air in as way you 42The trial No. “If find that before this court instructed on CALJIC 2.03 as follows: willfully misleading concerning the deliberately trial the defendant made false or statements *71 tried, charge upon being you may a circumstance which he is now consider such statement as tending prove guilt, prove guilt. The to a consciousness of but it is not sufficient of itself to weight given significance, any, your be if are matters for to such a circumstance and its determination.” you “If find that a defendant The court instructed on CALJIC No. 2.04 as follows: attempted persuade testify falsely try to to or to fabricate evidence to be a witness [sic] trial, tending may by you to show produced attempt such be considered as a circumstance However, weight prove guilt and its guilt. attempt a consciousness of such is not sufficient to significance, any, your for and if are matters determination.” you a defendant follows: “If find that The court instructed on CALJIC No. 2.06 as destroying by attempted suppress against any to evidence him in manner such as evidence, tending to by you a circumstance concealing attempt may such be considered as However, [q] prove in itself to guilt, such evidence is not sufficient show a consciousness of your consideration.” guilt, significance, any, if are matters for weight and its defendant down had rolled the backseat window. Although Ontiveros admit- out, ted she did not see defendant toss the knife she never it actually saw again authorities later found the knife in the area where she it thought had been thrown. CALJIC No. 2.06 was therefore because the properly given could infer jury from this evidence that defendant reasonably attempted (See, evidence. (1992) suppress e.g., People Fitzpatrick Cal.App.4th 1285, 1296-1297 No. 2.06 Cal.Rptr.2d [3 properly given 808] [CALJIC based on circumstantial evidence that defendant threw indicating murder down weapon gutter].)43 defendant claims that the trial court should have
Finally, modified 2.03, CALJIC Nos. 2.04 and 2.06 to to murder and not apply only charge to the charges and the attempted robbery, burglary corresponding special circumstances. there Again, argues was insufficient evidence Ontiveros’s corroborating testimony defendant’s involvement in regarding the latter crimes. This claim must be rejected.
In the first if defendant believed the instructions place, clarifica- required modification, tion or it was incumbent him to it. upon request (People Johnson, case, 1236.) 3 Cal.4th at In the unmodified instruc- because, tions consideration of the correctly guided jury’s evidence as we have there previously evidence explained, ample corroborating to connect tending defendant to the as well as planned robbery burglary, to the murder. it Additionally, must be remembered that the relied defense on an to cast doubt on the all-or-nothing strategy issue of solely identity. the trial court had Certainly no sua to make duty instructional sponte with, to, modifications that were inconsistent or even arguably detrimental that strategy.44 sum,
In would not have been jury unreasonable in drawing inferences that defendant’s false statements about his arm injury, attempt per- suade his brother to lie and his effort to rid of the knife all tended get show consciousness of of all the guilt crimes. charged Defendant’s conduct was clearly on the issue of probative of the second assailant who identity was seen the crime fleeing (See scene with an arm. No error injured appears. v. Lewis 50 Cal.3d 786 P.2d Cal.Rptr. [rejecting argument that standard CALJIC No. 892] 2.03 should have been conclusion, 43Because we reach apparent disappearance this we do not address whether independently defendant’s bloodstained clothes supported would have this instruction. 44Defendant’s claim that failing request counsel was ineffective for the proposed *72 rejected instructional modifications must be appeal. on Counsel’s omission was consistent strategy with the challenging identity, appears defense and thus to have resulted from an (See range competence. informed tactical choice within the of reasonable v. Diaz (1992) 1171].) Cal.Rptr.2d 3 Cal.4th 834 P.2d [11 statements defendant’s false between to some relationship tailored require charged].) and various crimes Instructions
d. Cumulative of Effect 2.71.5, of CALJIC Nos. the erroneous delivery Defendant that argues 2.06, 2.71.7, 2.03, singly together, deprived whether considered 2.04 and of the five Inasmuch as none He is mistaken. him of his constitutional rights. erroneous, that defendant’s constitutional it is inconceivable instructions was were violated. rights Evidence and Circumstantial Requisite Instructions Regarding
9. Mental States wishes, CALJIC No. the trial court gave
Pursuant to defense counsel’s 2.01, evidence to which instructs on the of circumstantial sufficiency prove 2.02, which instructs more a defendant’s rather than CALJIC No. guilt,45 evidence to a defend on the of circumstantial sufficiency prove specifically Defendant now contends the ant’s intent or mental state.46 specific He claims court erred in to sua on CALJIC No. 2.02. instruct failing sponte “However, any may not finding guilt court as to crime 45Thetrial instructed as follows: only proved be based on circumstantial evidence unless the circumstances are not consistent crime, any theory guilty cannot be reconciled with with the that defendant is of the but Further, complete other rational conclusion. each fact which essential to a set of is necessary guilt proved beyond circumstances to establish the defendant’s must be a reason words, guilt may able doubt. In other before an inference to establish be found to essential doubt, proved beyond upon have been each fact or circumstance which such reasonable doubt, Also, necessarily beyond proved inference rests must be a reasonable if [in any particular susceptible interpre circumstantial evidence as to count is of two reasonable tations, innocence, your points guilt one of which it to the defendant’s and the other to his is duty adopt reject that interpretation points to which to the defendant’s innocence and hand, [qQIf, interpretation points guilt. interpretation which to one of such on other unreasonable, reasonable, appears you it interpretation evidence to be and the other to be your duty accept reject would be the unreasonable.” interpretation the reasonable which an act is provides: [specific 46CALJICNo. 2.02 “The with intent] [or] [mental state] may you surrounding done be shown of the act. But circumstances commission Count(s)_,_,_and may guilty charged not find the defendant of the offenses [in _], (1) theory that the proved only unless the circumstances are not consistent with the required [specific defendant had the but cannot be reconciled state] intent] [or] [mental Also, [any] [specific with other rational if the evidence as to such intent] conclusion. FD points which to the susceptible interpretations, is of two reasonable one of [or] [mental state] of the to the absence of the [specific existence and the other intent] [or] [mental state] state], you points which to the [specific adopt interpretation must intent] [or] [mental If, hand, [specific interpretation the other one absence on [mental intent] [or] state]. you be [specific appears the evidence as to reasonable such intent] [or] [mental state] unreasonable, interpretation interpretation you accept other the reasonable and the to be must 2.02, the instruction reject According the unreasonable.” to the Use Note to CALJIC No. designed specific or mental case in which “is for use instead CALJIC 2.01 in a intent state *73 1142 if not relied substantially, because the prosecutor
the error was prejudicial mental circumstantial evidence prove requisite exclusively, upon charged. for the crimes states on not to instruct rule that a trial court is required
“It is the general evidence where the alleged to circumstantial of law the rules applicable to, of, direct evi and corroborative evidence is incidental circumstantial 249, (1961) 55 Cal.2d 250-251 v. Malbrough dence. (People [Citations.]” Moreover, to be 632, 30].) “when the inference only P.2d 359 Cal.Rptr. [10 to the existence of requisite evidence points drawn from circumstantial state, not be sua given evidence instruction need a circumstantial mental 787, (1979) Cal.Rptr. v. Morrisson 92 794 Cal.App.3d (People [155 sponte.” that substantial and the General 152].) Attorney agree defendant Although below, as to whether they disagree circumstantial evidence was presented evidence, and whether it incidental to the direct such evidence was merely inference mental state. one rational only regarding requisite rise to gave the trial Because resolve these issues. disputed We need not 2.01, No. its instruction under CALJIC delivered the more inclusive court was not clearly with CALJIC No. 2.02 instruct additionally refusal v. DeLeon (People Cal.App.3d [188 error. prejudicial 63]; (1987) 43 Cal.3d Cal.Rptr. People Bloyd see Cal.Rptr. 802].) P.2d to instruct the trial court erred in failing Defendant next contends of act and (concurrence No. 3.31 with modified version of CALJIC instruction intent). that the trial court’s unmodified While conceding specific of burglary, attempted with to the intent crimes was correct respect specific murder, defendant of first degree and the felony-murder theory robbery theory to the other maintains it was with inadequate respect prosecutor’s essence, willful, is that murder.47In his position deliberate premeditated conclude that have led a reasonable juror the unmodified instruction could the mental states of did not concurrence of act and this theory require and deliberation. premeditation re CALJIC No. 3.31 was
If believed that a modification to instructions, event, court’s it. In he was obligated request quired, evidence only substantially entirely on circumstantial element which rests offense added.) (Italics intent or mental state.” specific is the element of the, “Now, in each of given by read: No. 3.31 the court 47The version of CALJIC information, murder, burglary, there attempted robbery and charged namely crimes in the the mind specific intent in and a certain joint operation union or of act or conduct must exist a exists, not it relates is crime to which specific unless such intent perpetrator, of the crimes within the definition required intent is included specific committed. The [<J] charged.” *74 whole, of the the consideration jury’s guided as a properly when considered 259, 3 Cal.4th (1992) Cal.Rptr.2d v. Wilson [13 (People evidence. 3.31, the court CALJIC No. after 1212].) delivering Immediately 838 P.2d willful, deliberate premedi the elements of 8.20 on CALJIC No. gave was “If find that the murder, killing instruction: you the including tated clear, the deliberate intent on part a by and accompanied preceded kill, so the result of deliberation premeditation, which was defendant to under a reflection and not formed upon pre-existing have been that it must deliberation, the idea of condition or other precluding sudden heat passion the This instruction adequately expressed the first degree.” it is murder of theory. (People of act and intent on that need for joint Kozel operation 208]; cf. People Benjamin (1982) Cal.Rptr. 133 Cal.App.3d [184 799].) 84-85 Cal.Rptr. 52 Cal.App.3d the trial court committed prejudicial Defendant next contends that 8.83.1 cir an version of CALJIC No. (special error by giving inadequate to men of circumstantial evidence prove required cumstances—sufficiency circumstances— state), to CALJIC No. 8.83 failing give (special tal by of circumstantial evidence—generally) by failing give sufficiency (concurrence of No. to the circumstance allegations CALJIC 3.31 as special intent). act and We disagree. specific
First, the we assertion that court’s are not defendant’s persuaded by to the term of CALJIC No. 8.83.1 was in misleading referring version form, mental in the rather than or in failing state” singular plural “required which it Even if defend- list each of the mental states to applied. required failure to below is the is disregarded, point ant’s such clarifications request out, on the not well taken. As defendant himself the court instructed points (CALJIC No. mental state for each of the circumstances required special 8.81.17) evidence instruc- before circumstantial immediately reading whole, no reasonable would juror tion.48 instructions as Considering Now, circumstance, special 48The court instructed as to find that the referred follows: “['ll] true, robbery, burglary to in these instructions murder in the or is it must be as commission One, proved; engaged while defendant was in the that the murder was committed ['ll] Two, attempted burglary robbery; or of a or that the defendant commission commission [IQ [‘¡Q killing being; a human being intended to kill a human or intended to aid another Three, carry or advance the commission of the that the murder was committed order to out of, escape therefrom or to burglary attempted robbery crime crime of or or to facilitate the words, special referred to in these instructions avoid detection. In other circumstances [QQ merely burglary attempted robbery if incidental commis is not established Now, by may be manifested sion of the murder. the mental state with which an act is done [QQ charged in surrounding may special circumstances the facts its commission. You not find the theory only with the proved this case to be true unless the facts not are consistent state, any other rational cannot be reconciled with required defendant had the mental but have not challenged understood instruction to each of the apply mental states. There was no error.49 requisite
We unconvinced are likewise defendant’s next that the argument court’s failure to CALJIC No. 3.31 to the give as circumstance special *75 to conclude that concurrence of act and allegations permitted jury intent not in was order to find such true. specific required allegations (see the court’s omission constituted error Use Note to CALJIC Assuming 8.83.1; 2.02), instructions, No. Use Note to CALJIC No. when consid whole, ered as a consideration guided of evidence. properly jury’s Wilson, 943.) v. 3 Cal.4th at The was instructed that (People supra, jury CALJIC No. 3.31 with to the crimes of applied respect underlying burglary It was also instructed robbery. to CALJIC No. attempted pursuant (See ante.) 8.81.17. fn. A reasonable these instructions juror receiving would have understood that concurrence of act and intent was specific for the circumstance required and could not have be special allegations, (See (1991) lieved otherwise. v. People Mickey 54 Cal.3d 676 [286 84].) 818 P.2d The Cal.Rptr. error was harmless under perceived {Ibid.) standard.
Further, that, we find without merit the since the argument pros ecutor relied substantially circumstantial evidence to that defend upon prove ant’s murder to out the “purpose” committing charged carry Also, conclusion. if the evidence required susceptible as to the mental state is [1 two interpretations, points reasonable one of which to the existence thereof and the other to the absence, thereof, If, you adopt interpretation absence must points which to its on the ['ll] hand, interpretation other one of the required appears you evidence as to the mental to state to reasonable, unreasonable, be and the other interpretation your duty to be accept it would be 8.81.17, interpretation reject (See the reasonable and to the unreasonable.” CALJIC Nos. 8.83.1.) 49Relying People 871], on Cal.App.3d v. Salas Cal.Rptr. additionally contends that the trial court should not have used the term “mental in its state[s]” 8.83.1, instruction under CALJIC No. but instead expressly should have listed and related Defendant, however, required each specific part intent as of the request instruction. did not this modification and required the trial court was not sponte. to make the modifications sua Salas, People supra, Defendant’s reliance on misplaced. is That not case did hold that always expressly trial court must identify and all required list of the mental states in Rather, pertaining sufficiency instructions to the specific of circumstantial evidence on intent. that, it held charged because the defendant robbery specific there was with with the intent to 213), great (§ inflict bodily injury it was expressly jury error for the trial court to instruct the that the circumstantial evidence applied proof instruction embodied in CALJIC No. 2.02 specific robbery, intent for the crime of expressly instructing applied without also that it (58 proof specific great 474-475.) intent bodily injury. Cal.App.3d pp. to commit Salas, Unlike the situation in specifically the trial court in this did not case imply governing state or otherwise that the sufficiency rules of circumstantial evidence contained in CALJIC No. applied required specific 8.83.1 to some but not all of the intent findings. appears. No error or facilitate or to robbery, alternatively, escape or attempted burglary detection, CALJIC No. 8.83 should have been instead given avoid indicated the court’s version of CALJIC CALJIC No. 8.83.1. As previously, evidence to 8.83.1 instructed on the of circumstantial sufficiency prove No. (See fn. “mental state” for the circumstance special allegations. required 48, ante.) A reasonable would have understood this instruction to apply juror to the circumstantial evidence defendant’s concerning purpose committing the murder. No error appears. errors, sum, we conclude that none of the instructional
In perceived whether considered warrants the reversal of defendant’s singly together, We come to whether we conviction. this conclusion “reasonable employ Likewise, we test or the less tolerant “reasonable doubt” test. probability” find no violation of defendant’s state or federal constitutional rights.
10. Reasonable Doubt Instruction Without defense the trial court the standard version of objection, gave CALJIC No. at the of the 2.90 close Defendant now claims guilt phase. instruction, this which defines “reasonable doubt” as that of mind in state conviction, which the jurors “cannot feel an to a moral say they abiding of the truth of the certainty, is defective in charge,” constitutionally light 339, (1990) 328], v. Cage Louisiana U.S. L.Ed.2d 498 39 111 S.Ct. [112 This claims fails.
We have consistently similar claims in the v. Webb rejected past. (People 494, (1993) 779, 779]; 6 Cal.4th 531 862 P.2d v. Cal.Rptr.2d People [24 405, (1993) 537, 992]; Sims 5 Cal.4th 456-457 853 P.2d Cal.Rptr.2d [20 599, 400, v. People Noguera (1992) 4 Cal.4th 633-634 842 Cal.Rptr.2d [15 1160].) P.2d Recently, United States Court the consti Supreme upheld _ (Victor of CALJIC tutionality (1994) No. v. 511 2.90. Nebraska U.S. [127 583, 1239], L.Ed.2d 114 S.Ct. (1992) v. Sandoval 4 Cal.4th affirming People 342, 155 862].) 841 P.2d Cal.Rptr.2d court criticized Although high [14 Nebraska, the instruction’s (Victor use the term “moral v. 511 certainty” _ 595-596, U.S. at 1247-1248], L.Ed.2d at pp. 114 S.Ct. at “it pp. [127 pp. error, is clear that giving CALJIC No. is not at not v. yet.” 2.90 least (People Freeman, ante, 450, 558, 249], added.) 503 882 P.2d italics Cal.Rptr.2d [34
Even we though defendant’s to the use of CALJIC No. reject challenge trial, at his we 2.90 remain mindful of the concerns in Victor expressed _ Nebraska, 511 U.S. 114 We supra, L.Ed.2d S.Ct. [127 1239]. that, therefore reiterate until the or the CALJIC committee acts Legislature matter, on this trial in future courts cases should consider the modifications Freeman, ante, suggested 503-504. People pages 11. Errors Alleged Effect of errors,
Defendant claims that the various asserted both and in singly combination, denied him due and undermined the process reliability discussed, verdicts. Whether or not guilt we have expressly considered and all of these claims rejected as without merit. No more need being be said. (See v. Mickle Cal.3d Cal.Rptr. .)50
P.2d 290] Penalty
C. Phase Issues
1. Jury Selection
Defendant the trial contends court erred and violated his federal and state constitutional rights granting prosecutor’s to exclude request Grace prospective jurors Levario and Melissa for cause on Cassiday based their stated views about the death Defendant is penalty. mistaken.
The United States Court has held Supreme that a be prospective juror may excluded for cause without compromising defendant’s under the rights Sixth and Fourteenth Amendments to trial an if the impartial jury juror’s “ views on ‘would capital punishment prevent substantially impair *77 of his duties as a in performance accordance with juror his instructions and ” 412, oath.’ v. (Wainwright (1985) 841, Witt U.S. 469 424 L.Ed.2d [83 851-857, 844], omitted; 105 S.Ct. fn. see Darden (1986) v. Wainwright 477 168, 144, 153-156, U.S. 175-178 L.Ed.2d 2464].) 106 [91 S.Ct. We apply the same standard to claims under our state Constitution. v. (People Guzman 915, (1988) 45 467, Cal.3d 917]; 955 755 P.2d Cal.Rptr. v. People [248 739, (1987) Ghent 82, 43 Cal.3d 767 1250].) P.2d A Cal.Rptr. [239 739 is prospective juror excluded if properly he or she is unable to conscien- alternatives, consider all of tiously the the sentencing death including pen- Guzman, where alty (See v. appropriate. People 45 Cal.3d at supra, pp. 954-956.) “the
Generally, qualification[s] jurors for cause are challenged court, ‘matters within the wide discretion of the trial seldom disturbed on appeal.’ (1990) 648, v. Kaurish (People 52 Cal.3d [Citation.]” 675 [276 788, 278].) 802 P.2d Cal.Rptr. There is no that a requirement prospective juror’s bias the death against be with unmistakable penalty proven clarity. 1252, 50Pursuant to section Attorney the General appeal contends on that the trial court erroneously excluded establishing forensic evidence allegedly type that defendant’s rare blood was found at the response, crime scene. In properly defendant contends this issue not before is us and is without merit in We light event. need not and do not such in address contentions of our conclusion that none of defendant’s claims warrants reversal of his convictions.
1147
Witt,
851-852];
L.Ed.2d at
(Wainwright
v.
In voir this dire of Levario and jurors prospective the trial Cassiday court’s decision to exclude Al amply them. supported some of Levario’s could though be construed responses during questioning her for as furnished evi reflecting others substantial capacity impartiality, dence of her a death inability consider verdict.51 Simi conscientiously while initial answers re larly, Cassiday’s reflected her later impartiality, raised sufficient doubts as to could sponses whether she the death impose record, in this case.52 Given this and penalty defendant’s claims of state Clark, constitutional error must be supra, Cal.4th at (People rejected. pp. Hill, 1025-1026; 1004.) supra, Cal.4th at p. court, 51During initial questioning by the she always Levario indicated would not and every case vote against though either for penalty, death she even had “mixed emotions” ability about her to impose penalty. during the death questioning She stated defense she that on, follow during could the court’s penalty instructions Later phase. Levario indicated during prosecutor’s questioning that she believed have a problem voting she would for the penalty, death even if supported the evidence penalty. noting such a After Levario’s contra dictory responses, “Q the trial questions court asked several for clarification. court]: [The Now, you imagine if you’ve aggravation that heard mitigation, after the evidence that is, opposed the bad as good, you outweighs to the good find that the bad and that good, bad is substantial when compared you faced with possible are choice is, penalties, thought it, between two you justified if the evidence this case
justified the penalty, you death put could vote to A someone to death? I don’t think [Levario]: so, Q: you no. And are saying any under no you that in case could in circumstances ever vote a Q: such fashion? A: though you No. I—I—. Even justified felt that the evidence in the case penalty you saying you death are that could in vote for the I penalty? no case death A: now, way yes. Q: think that’s the I right feel question.” You’re certain of that? A: It’s a hard Thereafter, in, rephrased question “Q: court you telling one last Are time. us that under any though no circumstances in you case even penalty justified felt that the of death was that you could vote for just death? A: I don’t think really so. I—I can’t understand and death it, an, imprisonment, just the life to me it’s just imprisonment.” almost as life bad 52Cassidayinitially during indicated questioning impose court’s that she could the death if penalty justified the evidence it. She also during questioning stated the defense’s she that “for” the penalty, very weigh was death would cautiously but the circumstances before making a penalty Cassiday began equivocate prosecutor decision. But to when the her: asked “Okay. question The real you’re you’ve is if faced with in which that that situation made independant you’ve fairly honestly you’ve decision come [sic] across it and and come to conclusion, ‘Yes, any this is penalty,’ going a case warrants the death is there to be Homicide 2. Espinoza 6, 1980, and at a Ernest died after shot stabbed Espinoza being
On June Oakland, five were in California. Defendant and others telephone pay to have been alleged with the murder of Defendant was Espinoza. charged firearm, conviction. a and to have suffered a prior felony armed with (defendant’s brother) to have Codefendant Raymond Rodriguez alleged firearm, and codefendant Jaramillo was to Toby alleged used personally have used a Pursuant to deadly plea bargain August personally weapon. and to an under section guilty being accessory pleaded conviction were dismissed. Raymond the arming prior allegations rifle, with use of a and Jaramillo manslaughter personal pleaded guilty with use of a knife. A fourth guilty manslaughter personal pleaded assault with a Charges codefendant pleaded guilty felony deadly weapon. the fifth and sixth codefendants were dismissed. against introduced evidence in At the penalty phase, prosecutor aggravation 190.3, (b)) in the factor (§ defendant’s homicide participation Espinoza 190.3, (c)). evidence conviction as an factor Defendant accessory (§ of his First, the admission of this evidence on three he claims challenges grounds. the notice and used that the violated section 190.3 provisions prosecutor tactics in the identification of witness Rejón deceptive introducing testimony Second, he no Mitchell. contends that evidence of the Espinoza homicide have been admitted because the murder filed defend- against should charge ant in that case had been dismissed to a and the bargain, pursuant plea Third, was stale. he that the court erred in defend- allowing charge argues ant’s conviction in the matter to be characterized as to a accessory Espinoza demonstrate, reversal of murder. As we shall none of these claims warrants the death judgment. Mitchell’s Testimony
a. Identification Defendant that the contends violated notice prosecutor provisions section and misled defense counsel in Mitchell’s 190.3 presenting Rejón defendant as the actual shooter of testimony identifying “surprise” Espinoza. feelings going you substantially you casting prevent impair belief that’s or penalty?” answering possible,” Cassiday thought vote for the death After for a moment “[i]t’s added, me, know, said, just you you way you—yes, possible.” She hit when it’s “[i]t *79 it, know, subsequently “Right. Probably—I I—I I could don’t stated: don’t know if do no. [U don’t, in really honestly.” questioning, placed when if were a I After further asked she the position intellectually rationally penalty and that the death where she understood verdict, Cassiday thought substantially impaired appropriate indicated she she would still be “sleeping ability in her to follow the law and cast that vote because of her “moral views” night.” 11, 1987,
The contention is as follows. On of this background September the of to introduce at the filed notice his intention prosecutor penalty phase evidence in incident on or about aggravation concerning occurring “[t]he 6, 1980, Oakland, California, June in in which the defendant in participated the of Ernest in his death.” The stabbing shooting resulting Espinoza, trial in this case commenced on On and on 1988. April April 23, 1988, notices, the served May two amended prosecutor again specifying incident. Espinoza (after On of close the trial court held August guilt phase), on a motion to exclude defense evidence of the homicide hearing Espinoza as an factor. Defense counsel that the evi- aggravating essentially argued 190.3, dence not be admitted (b) should under section factor because the from the hearing case did not preliminary transcript establish Espinoza violence, violence, threat of engaged any violence or attempted violence. When the court implied asked the whether he intended prosecutor to offer evidence in addition any preliminary hearing transcript, indicated, “I’ve prosecutor replied: to the defense People’s investigator that there are investigator, several additional witnesses at the potentially crime scene observed, who be called to may about what testify they which would nine, include observing of accompanying as group [defendant] to, been referred they’ve at the time of the of Ernest killing It’s Espinoza. consistent with what Nunez testified to at the Danny it preliminary hearing, would crime certainly at the scene of the place at the time of the [defendant] commission of the crime.” discussions,
After further the court asked: what “So I need to know do is have you evidence that any would the defendant in a where he place position is more for the act than responsible what is shown in the preliminary and, course, examination of I don’t know what’s in the The transcript.” prosecutor “That’s difficult replied: to answer at this time because some of the witnesses have been located just and I haven’t had a very recently, chance to interview actually them. . . .” Thereafter the stated: prosecutor “There’s the that there possibility be a may witness who as places [defendant] case, actual If shooter. that were to be the that would be a—.” obviously (Italics added.) The court indicated it would make a determina- preliminary tion under Evidence Code section 40253of the of the admissibility Espinoza homicide evidence based on the but would also transcript, listen additional witness evidence if offered. “FID (a) 53Evidence provides: Code section 402 preliminary When the existence of a fact is disputed, [‘¡Q(b) its existence or provided nonexistence shall be determined as in this article. may
The court hear question and determine admissibility of out evidence presence hearing action, jury; of the but a criminal the court shall hear and determine the question admissibility of the of a confession or presence admission of the defendant out of the hearing jury (c) party requests. ruling admissibility if so A on the [<1 *80 defend- that the evidence showed that the prosecutor argued Subsequently, if the actual and abettor in the not killing, ant was at least an aider Espinoza had circumstances indicate that surrounding “All of the [defendant] shooter: 60’s, of the score to settle with certain members group a vendetta or in in front of the that took earlier the day because of a confrontation place church; fired one the members of in which a shot was by a confrontation Leandro, I have had a San which the witnesses independent the Varrio was, fact, indicate believe in chance to talk with so far they [defendant]. [I] I to the court that there’s at least the possibility This indicated morning the of Ernest another witness will be contacted who observed shooting the the shooter as as opposed Raymond, Espinoza, places [defendant] that witness yet brother. I haven’t had a chance to confirm that with [H out of state. So that’s a because that is presently only possibility. person [*][] I it at this insofar as that became this only apparent bring up point [szc] and, therefore, out of an abundance of caution in wanting earlier today; counsel, I it .” share that with the court and wanted to . . Defense bring up. the that the liberties with taking great
counsel responded prosecutor facts, and that the evidence defendant’s involvement a showing previous murder was and would foreclose the to look jury’s ability highly prejudicial evidence The trial at other rationally presented during penalty phase. court ruled there was sufficient evidence that defendant showing ultimately incident, at an aider and was involved least as abettor.
The commenced before the on On jury August 1988. penalty phase Mitchell counsel called as witness. Defense August prosecutor Rejón did not when Mitchell took the stand. Mitchell testified he was in his object window, when he heard He looked out the and saw a house gunshots. group After the of men at a station another man shoot at gas watching Espinoza. Mitchell front door ran Mitchell’s house. shooting, group opened shooter, and could see the about 15 to 20 feet including away. group, After the following above eliciting testimony, prosecutor pursued “Q line of A Did a look at the shooter? questioning. you get [Prosecutor]: that, Q: I did. during investigation by Subsequent [Mitchell]: Yes, Oakland Police did A: I look some Department, you photographs? Yes, Q: Q: did. And did I did. I out as the shooter? A: you pick somebody realize is this event has Do still recall you this some years ago happened. [1] I’d to look around the Q: what the shooter looked like? A: Yes. ask you Q: courtroom and if see that in court A: Yes. Would see you person today. now, A: The tell the where that is and what he’s wearing? you jury person Q in the (indicating). there sweater sitting right yellow top [Pros- to the defendant the record reflect identification with reference May ecutor]: thereto; finding separate or formal implies finding prerequisite evidence whatever of fact is unnecessary required by is unless statute.” *81 Q will reflect. The record so The court: [Pros- Mr. honor? your Rodrigues, [(cid:127)] n in the Now, group. a chance to see persons had you said you ecutor]: had —.” At to, the vantage you at them from point Were able in looking you honor, to I’m to going object “Your defense counsel interjected: this point, on the basis of collateral estop- further questions last and any question is, is an to prove attempt [defendant] This apparently, pell [sz'c]. [H found guilty else was is aware somebody The District Attorney shooter. The trial court overruled I believe that’s totally improper.” that. [<][] objection.
Afterwards, reiterated his defense counsel jury, outside presence to Rodriguez’s plea manslaughter to the court Raymond prior argument barred the from accessory trying and defendant’s own plea prosecution that the jury that defendant shot The Espinoza. prosecutor responded prove determine, on all the evidence whether Ray- was free to based presented, “I defendant killed The further stated: know mond or Espinoza. prosecutor and said there was one witness we when I came to court a few days ago, were for who who saw as the looking might possibly place, [defendant] shooter, Mitchell that I of. I had an finally it was Rejón thinking [U had a chance to look around the to talk to him Until he today. opportunity courtroom, he I was not able to determine for sure whether was going say, ‘No, similar, it else who looked Rodrigues’ ‘Amaldo or was someone say, it, but that’s not him.’ The as I understand is free to either jury, accept [*][] of all that are to them. And are not reject given they admissions types The bound in the form of the of a court by prior adjudication taking plea.” Thereafter then concluded that the collateral rule was inapplicable. estoppel defense counsel made no other argument. direct,
It was not until the next after the cross- and redirect morning, examination of Mitchell had that defense counsel been Rejón completed, about the to alert the that Mitchell failure defense complained prosecutor’s time, would defendant as killer. At that defense counsel identify Espinoza’s the trial court to dismiss the case to section 1385. requested pursuant The trial court denied the that the had request, concluding prosecutor advised the court and counsel about the of witness adequately possibility no who would defendant as the shooter. In there was identify finding misconduct, the statements had court noted that previous prosecutor’s he of town in been consistent with the witness’s own that was out testimony from The court then defense counsel a continuance another county. granted availability to determine the Monday Thursday morning following case, a further and the need for evidence the Espinoza physical for defendant filed a formal motion continuance. The next day, August mistrial. 8, that the August
On informed the court Monday, prosecutor physical evidence in the case had either eight-year-old been returned or Espinoza were, however, after the of that case. There completion some destroyed *82 witnesses, Mitchell, of one Rejón statements of that tape-recorded including were were found and made available to the defense. After hearing argu- ments, motion, the court denied the but the mistrial defense an granted continuance 15 on additional one-week until to the August prepare Espinoza incident. 10, on
At a status defense counsel he hearing could not August reported his 15 and investigation another complete by August one-week requested continuance. After counsel the work detailed still the court remaining, ordered to the on other proceed evidence than the prosecutor penalty phase 15, on incident of Espinoza August indicated that at the end that the day, allowed defense would be to show cause for a further continuance. good 15, On defense counsel did not August further request any continuances. The resumed his of prosecutor evidence on the presentation matter Espinoza the next and the defense thereafter day, presented its side.
On that the motion mistrial appeal, argues for under section 1385 should have been (1) because the granted failed to prosecutor: 190.3; notice give of the identification (2) evidence under section committed misconduct which incurably defendant’s case. prejudiced We first address the argument the notice of provisions section 190.3 were violated.
Section in 190.3 for evidence in provides pertinent of part: “Except proof the offense or circumstances which a defendant to the death special subject no evidence be penalty, may the in presented by prosecution aggravation unless notice the evidence to be introduced has been given court, defendant within a reasonable of time as determined period by to trial. Evidence prior be introduced without may such notice rebuttal to evidence introduced defendant in The mitigation.’’ purpose this an “is advise accused of the him so provision evidence that he against have a reasonable may a defense at trial. opportunity prepare penalty 719, v. Taylor (1990) 52 Cal.3d (People Cal.Rptr. [Citation.]” [276 However, 1142].) P.2d “where learns evidence it prosecution intends to use in at the for the time after aggravation first trial penalty phase commenced, has exclusion of this evidence under section 190.3 is not circumstances, Under such the defendant necessarily compelled. [Citation.] evidence, and, is entitled to notice if newly discovered prompt to a reasonable to enable him or her to necessary, continuance prepare If the notice unrea meet that evidence. is prosecution’s delay affording unexcused, defense, or if the would sonable court delay prejudice exclude the evidence. v. Mitcham must Cal.4th (People [Citations.]” 1277].) 824 P.2d 1070 Cal.Rptr.2d claim Defendant’s failed to prosecutor give required all, notice must be First of the claim is barred. statutory rejected. Defense did on counsel not notice when Mitchell took the object grounds stand even testimony, counsel knew that Mitchell would gave though be on the matter and that Mitchell’s name had not testifying Espinoza been included on the witness list. prosecutor’s penalty defense phase Although *83 counsel raised notice issue the next his failure to do so earlier day, (See 583, effected a waiver of the (1990) v. Clark 50 point. People Cal.3d 626, 399, fn. 34 P.2d Cal.Rptr. failure to [268 object 127] [defendant’s and to seek a continuance waives claim that notice any subsequent (1962) 4, cf. inadequate]; People Newberry 204 Cal.App.2d 9 [22 to strike Cal.Rptr. expert testimony 23] [motion denied opinion properly where defense counsel waited until after was admitted testimony to chal witness’s lenge as an qualifications expert].) waived,
Even that the claim was not assuming it is without merit. The notified defendant several prosecutor months before the start of trial that he intended to introduce evidence in of aggravation incident on occurring “[t]he 6, 1980, Oakland, California, or about June in in which the defendant in the participated stabbing of Ernest shooting in resulting Espinoza, his death.” This notice gave to the defense that it ample warning should to anticipate prosecutor introduce at the all admissible penalty phase evidence relevant to defendant’s in the participation homicide. Espinoza Although Mitchell’s name 26, 1988, was not listed on the prosecutor’s July witnesses, list of penalty phase did not prosecutor know at that time that Mitchell might be able to potentially defendant as a identify who shot person Once the Espinoza. evidence, prosecutor learned of the new he potential acted in promptly both the court and the informing defense. Under these circumstances, no violation Mitcham, of section 190.3 appears. (People 1070.) Cal.4th at p. lack
Finally, any notice must be deemed delay harmless. “In the absence of indication that the in notice had delay in some fashion affected the manner in which defense counsel handled the prior proceedings, for a appropriate remedy violation would be to a ordinarily grant continuance as needed to allow defendant to develop response. [Cita- 291, (1989) v. Carrera (People 49 Cal.3d tions.]” Cal.Rptr. 121].) 111 P.2d Here the trial court granted defense a continuance of 11 to meet calendar the Mitchell days When the trial prepare testimony. resumed, defense counsel did not ask for more time. finally We therefore that the was not conclude defense prejudiced delay notice.54 by
We next consider claim defendant’s motion for mistrial have been should because of the In granted misconduct. prosecutor’s gross he claims that the misled the particular, prosecutor affirmatively defense by he did not have indicating specific names of witnesses might who potential shooter, be able to defendant as when in identify Espinoza’s fact the names Mitchell and brother Rejón Eric Mitchell known were to him. He also asserts the prosecutor violated intentionally discovery orders and failed abide an by assurance the defense when the express notify identifica witnesses were so tion located that a investigator defense could be present during any witnesses their questioning prior testimony trial. Prosecutorial misconduct constitute an may appropriate basis for (See mistrial motion. v. Wharton 53 Cal.3d 565 [280 “ 290].) 809 P.2d ‘A Cal.Rptr. mistrial should be granted if the court is it prejudice that incurable admonition apprised judges or instruction. Whether a incident is its particular incurably prejudicial, [Citation.] is by *84 matter, a nature and the speculative trial court is vested with considerable in discretion on mistrial ruling {Ibid.) motions.’ [Citation.]” these the
Applying
principles, we conclude
denial of defendant’s
with,
mistrial motion was
an
not
abuse of
To
discretion.
there is
begin
substantial evidence in the record to
the trial court’s
support
determination
the
that
did not act in
prosecutor
bad faith. The
in
prosecutor promptly
formed the court and defense counsel of the
of identification
possibility
witnesses
after
the
immediately
receiving
information.
the
Although
prose
cutor
tell
failed to
the
admittedly
defense that it was Rejón Mitchell who
defendant,
might
the
potentially
had not been
identify
able
prosecutor
.
to Mitchell to ascertain his
speak
until the
probable testimony
he took
day
whole,
the stand. Viewed as a
the record
the
adequately supports
conclusion
that
did
act
prosecutor
not
to mislead
defense.
intentionally
More
even
that the
importantly,
assuming
committed miscon-
prosecutor
duct, the record
show
fails to
that the trial court abused its
discretion
harmless,
any delay
54Because
was
notice
there is no need to address defendant’s
that, although
contention
prosecutor might
have
of the possible
first “learned”
identifica
tion evidence from an
Rodriguez shortly
individual named Hilario
before
penalty phase
notice
began,
untimely
under
prosecutor
nonetheless
section
because the
of
190.3
knew
Rodriguez before trial and
have
regard
could
interviewed him and obtained the information
that,
Mitchell
ing
at that time. There is likewise no need
his
to address
contention
in addition
statutory
provision,
discovery
April
allegedly
to the
notice
a
order
required
issued in
1988
sought
notice
here.
In this regard,
incurably
was not
prejudiced.
that defendant
determining
existed because
prosecutor’s
prejudice
claims that
requisite
defendant
to test Mitchell’s
him of the opportunity
deprived
actions permanently
as
Insofar
in a nonsuggestive atmosphere.
an identification
to make
ability
a
is
not
by lineup
an in-court identification
preceded
defendant contends
law,
he is wrong.
as a matter
suggestive
prejudicial
impermissibly
121,
617,
(1974) 11 Cal.3d
Cal.Rptr.
Court
(Cf.
[114
Evans v. Superior
before
to a
right
lineup
there is no absolute
pretrial
P.2d
[holding
681]
rather,
identification;
be
may
timely request,
upon
an in-court
is shown to be a
identification
a
lineup
eyewitness
afforded
pretrial
if
identi-
reasonable likelihood of a mistaken
and there exists a
material issue
resolve].)
in his
He is also mistaken
which a
would tend
fication
lineup
defendant,
made
in-court identification of
that once Mitchell
assertion
and no
to balance
way
no effective
to ameliorate its
way
impact
“there was
it
defense.” To the contrary,
field between the
the playing
prosecution
not
of in-court identifications
been
case
recognized
has long
“[i]n
,
weaknesses,
are
directly
. .
if any,
ápparent
.
by lineup
preceded
to the court and
without the necessity
the trial itself and can be argued
jury
words alone.”
(People
on an attempt
picture past lineup
depending
848];
(1969)
242-243
see
Cal.Rptr.
v. London
274 Cal.App.2d
[78
935-936
Breckenridge
Cal.Rptr.
Cal.App.3d
[125
Court,
Evans v. Superior
after
[noting continuing validity
principle
425]
625].)
11 Cal.3d at
No abuse of discretion appears.55
(1991)
In v. the United States supra, Supreme Lankford denied due when trial the that a defendant was a process judge imposed it would not death after the had notice that prosecution given penalty death, the court observed recommend death. In the of reversing judgment the defendant that the character of the did not sentencing provide proceeding death as a with indication that the trial judge possible any contemplated photo lineup the shown to additionally prejudiced 55Defendant claims he was because defendant, According the shortly shooting destroyed was to Mitchell after the lost 1980. photo identification of lineup of the rendered him unable to determine whether Mitchell’s loss suggestive lineup. This claim was not. advanced him was made from a or otherwise unfair properly defendant’s mistrial motion and is not before us. (500 183-184].) at U.S. at 119-120 L.Ed.2d The court pp. pp. sentence. [114 that if defense counsel had been notified that death being reasoned she would have advanced contemplated, presumably arguments addressing (Id., sentence. 185]). the of such a at L.Ed.2d at impropriety p. p. [114 the court was not whether the concerned with defendant’s Significantly, high rather, would the ultimately prevail; it framed critical as arguments issue “whether notice the character frus- inadequate concerning hearing trated counsel’s to make an that might have opportunity argument persuaded sentence, the trial different to or at least to make judge different impose (Id., 186-187].) than those he findings made.” L.Ed.2d at pp. Idaho, Defendant’s to attempted analogy supra, 500 U.S. Lankford there, is Unlike the here unavailing. situation defense was given ample to meet the evidence to challenged of its opportunity persuade jury As noted case. trial court previously, defense 11 granted days to meet Mitchell’s At the end that prepare testimony. defense period, resumed, no further When sought continuance. the trial the defense was able introduce an of witnesses to rebut array Mitchell’s The defense testimony. Matthews, Lieutenant called Burnham who had investigated Espinoza and had killing twice interviewed Mitchell the after the day shooting. Matthews, defendant, According Mitchell did not and the records identify of the show investigation did not that had ever Mitchell been shown he or that had ever photographic lineup, made identification. The defense also offered favorable four testimony witnesses who were through in the participants incident. Jaramillo testified that Espinoza Toby he saw brother, defendant’s shoot Raymond, that he never saw Espinoza, defendant shoot him. Alvarez and Raymond Daniel DeSoto did not claim saw the actual but they both exonerated shooting, defendant. Raymond times, testified that he shot convicted Espinoza he was of manslaugh- crime, ter and served time for his that defendant was nowhere in the area circumstances, Idaho, time at the Under these shooting. Lankford does not call for reversal defendant’s death judgment.56 right 56Defendant further claims that effective confrontation was violated since jury penalty was allowed to absorb Mitchell’s in-court identification for two weeks before *86 position defense was in a to undertake an effective examination. This claim was not asserted trial, at and it any lacks merit in event. In the place, first defense counsel conducted a full immediately of cross-examination Mitchell after of the direct conclusion examination. Sec ond, defendant appeal testimony, strength concedes on that anything, Mitchell’s resumed if assessment; agree ened his earlier having identification of defendant. We with this after seen Raymond person defendant’s brother photograph, both at trial and in a 1987 Mitchell stated defendant, Therefore, Raymond, that it unequivocally Espinoza. was not who shot we fail presentation an earlier of damaging testimony see how such could have made defendant’s of examination Mitchell more effective.
1157 and Staleness Charge the Murder Dismissal b. of 754, 25 758 (1979) Cal.3d Harvey v. People [159 In reliance upon term of his 696, 396], that an defendant asserts implied 602 P.2d Cal.Rptr. and arming allegation murder charge of the dismissal Espinoza negotiated of the facts reason by no adverse consequences was he would suffer that claims that the admission He therefore charges. the dismissed underlying to due and other violated his right process homicide evidence the Espinoza constitutional protections. fundamental argument we have acknowledges, squarely rejected
As defendant violates an a circumstance in charges aggravation of dismissed as use when at a bargain capital hearing. term of a used penalty implicit plea 718, 372, (1990) Frank 51 Cal.3d 728-729 798 (People Cal.Rptr. v. [274 713, 1215]; (1988) Melton 44 Cal.3d 755-756 People Cal.Rptr. P.2d v. [244 867, v. Harvey, P.2d that the rule of general People 750 [determining 741] 758, We no Cal.3d is see sentencing].) 25 at supra, p. inapplicable capital reason to revisit the issue. an accessory also that because his conviction being
Defendant contends murder, an murder constituted dismissed relitigation acquittal due rights violated his federal charge during phase process penalty Defend- the state and federal constitutional double guarantee against jeopardy. is ant mistaken.
“A an conviction dismissal does not constitute bargained acquittal 140, under 6 Cal.4th (People section 190.3. v. Garceau [Citations.]”57 Frank, 664]; at 199 862 v. 51 Cal.3d Cal.Rptr.2d supra, P.2d People 728-729; Melton, Moreover, 755-756.) v. Cal.3d at pp. People supra, pp. the constitutional double “is where against guarantee jeopardy inapplicable evidence of criminal is introduced in a trial as an prior activity subsequent factor a for consideration aggravating penalty phase jury. [Citations.]” 199-200, Frank, Garceau, v. at (People supra, Cal.4th v. supra, pp. People 729; Melton, 17.) at Cal.3d supra, Cal.3d fn. p. p. that, event, further no evidence of the Defendant contends in any 1980 homicide have been admitted under section because the should 190.3 the time of his trial in charges him were stale at 1988. against impermissibly that, He all asserts due to of time and loss of passage physical wrong concluding Espinoza 57Defendant claims trial court in the matter was post.) (See felony We accessory “necessarily lesser of murder. fn. offense” Preston, 319.) (People agree. reject notion that 9 Cal.3d at We therefore accessory acquitted of murder as plea prosecuted defendant’s meant that he had been a matter of law.
evidence,58 he could not confront and of adequately challenge accuracy the other evidence him in the against homicide. He contends that the use of homicide prosecutor’s violated his constitutional rights due confrontation, a fair trial and a reliable process, jury penalty determination. We these contentions. reject 190.3, (b),
Under factor section offer prosecutor evidence in may of criminal violence that has occurred aggravation time. (People v. Garceau, 199; Cal.4th at (1990) 468, v. supra, People 50 Cal.3d Douglas 640]; 529-530 788 P.2d Cal.Rptr. v. Balderas People [268 Cal.3d 480].) 711 P.2d Even Cal.Rptr. certain though lost, evidence in the case Espinoza had been all otherwise available evi dence, statements, Moreover, witness was to the including provided defense. evidence, the loss despite numerous were physical witnesses able to matter, on the testify on defendant’s many behalf. Not was only witnesses, afforded the to call his own opportunity but he was also allowed to conduct full of all cross-examinations adverse witnesses. Accordingly, defendant was not of due deprived his constitutional process rights were Garceau, 198-200; not violated. 6 Cal.4th at (People supra, pp.
Frank, 728-729.) 51 Cal.3d at pp.
c. Prior Conviction Characterization of Before the start of the the trial court penalty conducted a bifurcated phase, trial on the conviction Over the defense’s prior allegations. objection, court ruled that for of the purposes case in prosecutor’s penalty phase 190.3, (c) under factor section defendant’s conviction under prior section 3259would be characterized as a conviction of to a murder. accessory
Defendant contends this characterization in error because the record of that conviction prior established that he had only pleaded as guilty an to a without accessory felony, which and there was no specifying felony, evidence the nature that, of the indicating He underlying felony. emphasizes he and although several others had been with the murder of charged Es pinoza, transcript had been change plea which offered hearing to the court demonstrated that his codefendants pleaded guilty only officers, photo 58Such evidence lineup investigating included one of the used clothes codefendants, and, of the victim and of one of the bullets body, taken from the victim’s possibly, laboratory performed tests on the bullets. who, 59Penal 32 provides “Every Code section as person felony follows: after a has been committed, harbors, felony, conceals or aids a in such principal with the intent that said arrest, trial, principal may escape punishment, having knowledge avoid or from conviction or that said principal felony charged felony has committed such or has been with such thereof, accessory convicted felony.” is an to such
1159 understood in that must be that his plea Defendant asserts manslaughter. context. was that the conviction General asserts prior the Attorney response,
In clear makes reasonably the hearing transcript because characterized properly defendant to be pleading the court understood and trial both defendant that murder, a was the only felony which of an being accessory guilty charged.60 of the reading General’s Attorney we are not convinced of the
Although the facts error harmless. Evidence of any we nonetheless find transcript, under section conviction was otherwise admissible the underlying prior 190.3, (1993) 5 Cal.4th 917 (b). (See v. Montiel factor People Melton, 1277]; Cal.3d 855 P.2d Cal.Rptr.2d Therefore, with and were evidence 764.) the jurors properly presented murder, constituted or some- to whether the homicide as argument Espinoza less. thing assertions, were not led to believe that to defendant’s the jurors
Contrary that the conviction foreclosed them from finding Espinoza the underlying fact, to murder. In the quite opposite was as killing manslaughter, opposed murder, on man- voluntary was true. The court instructed second degree heat instructions clearly and of and sudden These slaughter, quarrel. passion evidence, was evidence of only the homicide which the Espinoza applied 190.3, (b). a the face of these homicide offered under section factor In instructions, the not that were jurors they could have concluded possibly Indeed, in killing to view the as a murder. conceivable doubt required the minds in favor the jurors’ by was resolved defendant’s prosecutor’s to the that were not closing jurors they argument explicitly emphasizing In addi- killing foreclosed from how the occurred.61 determining Espinoza tion, the that the evidence did not a conclusion prosecutor argued support [sic], Rodriquez to the transcript following interchange. 60The “The clerk: Jose reflects murder, Code, wit, charged in felony, crime of a violation Section of the Penal as a of Information, plead, guilty Rodriquez you guilty? how do or not Defendant Jose [sic] Code, [counsel]): accessory plead guilty I Penal after the (repeating after Section of the necessarily charged fact. The The finds that Section a offense in the Court: Court 32 is lesser Information, accept plea.” and [sic] mind, argued: may your you are prosecutor importantly, question 61The “More arise exactly Rodrigues own of what Mr. making your independent foreclosed from determination killing Espinoza. Espinoza At did or did do at the of Ernest the time Mr. not time stabbed, gunned by prey upon gang pack might upon a wolves set its set much as determining as to how dog? you precluded Are from down on streets Oakland like []Q case, you permitted have event If were the would not been occurred? Of course not. testimony, testimony regulated by the rules of evidence to hear that’s been case, Shelton, eye Judge purpose has sat there for judge who is the trial this watchful *89 that the was killing committed under heat of or sudden passion The quarrel. could jurors infer reasonably therefrom that the conviction prior did not control the issue of whether a murder or manslaughter occurred.
In of the light we foregoing, conclude it is not reasonably that the possible conviction, characterization error, of the even if in prior affected the judg- ment to defendant’s detriment. (1988) 432, v. Brown (People 46 Cal.3d 446-448 758 P.2d Cal.Rptr. 1135].) [250
3. Jill M. Incident In October Jill M. reported that she police had been raped, sodomized and forced to in oral engage copulation least three men by at a in house San Leandro. Jill identified defendant as one of her attackers. Although assault, was with sexual charged the was dis- charge after missed trial, preliminary Prior to hearing. this the prosecutor gave notice he would introduce as evidence in aggravation incident occur- “[t]he 16, 1976, on or ring Leandro, about October California, in San in which the defendant, others, while acting concert with in the engaged forcible rape, forcible and sodomy, forcible oral of copulation [M.].” Jill
a. Staleness and Loss Evidence of before Shortly the start of the the defense penalty phase, moved to exclude incident, evidence of the Jill M. citing trial and due speedy process Constitutions, provisions federal and state as well as the state statute of limitations. The defense it argued was severely in defend- disadvantaged ing against 12-year-old unadjudicated charge, substantially prejudiced evidence, of by loss certain other including, among things, shown to Jill for photos identification purposes, vaginal rectal swabs and smears taken from Jill the after the morning incident. In alleged hearings motion, on the the defense also complained due to other prejudice unavailable evidence the failure including of defense witness Dr. McGlynn recall independently the examination of Jill he conducted the morning after the incident. In rejecting determined, these arguments, trial court alia, inter that the defense was not because it could prejudiced confront both law, determining sides, a fair trial Well, is had both a fair trial based on evidence and [<1 plea Rodrigues that Mr. entered into as a Espinoza result of the Ernest event was as an harbors, aids, accessory. That fact, means someone who or conceals a felon after the after the committed, crime knowing has been such go a crime has been committed. We’ll into much you more detail whether think that’s Rodrigues all Mr. being, did. For the time bear in mind very that at the least Rodrigues Mr. went prison accessory.” for that event as an Pollack, who had investigated Lewis Captain Leandro Police Jill and San defendant.62 case, identification of Jill’s original photographic regarding M. evidence Jill maintains that the admission Defendant and a reliable due trial rights process, speedy violated his constitutional U.S. v. Florida on Gardner Relying determination. sentencing 1197], he did not have defendant also claims L.Ed.2d 97 S.Ct. 349 [51 on this evidence him against to confront and rebut the a fair opportunity charge to defend ability against In this he contends regard, incident. *90 evidence. We the loss of critical effectively destroyed by physical disagree. 349,
First, Florida, 430 U.S. in which the supra, v. unlike Gardner reliance on due in to the trial court’s was sentenced to death part to defense the of were not revealed contents which sentencing a report, counsel, defendant’s crimes and the mere of time between 1976 passage to ability challenge did not diminish his significantly defendant’s trial Wharton, 601.) at in v. 53 Cal.3d (People supra, p. evidence question. Therefore, of did his to due rights the evidence not violate process admission Garceau, v. Cal.4th a determination. 6 sentencing (People supra, and reliable 198-199; Frank, 729.) did it 51 Cal.3d at Nor People supra, p. at v. pp. Johnson, supra, violate a trial. v. 3 Cal.4th right speedy (People not bar admission of 1244 of limitations does prior [expiration period 190.3, (b)]; v. for factor unadjudicated activity criminal purposes § 147, 673, 629].) (1988) P.2d Heishman 45 Cal.3d 192 753 Cal.Rptr. [246 assertions, a in legitimate to defendant’s the state has interest Contrary conduct and consider a defendant’s criminal allowing jury weigh prior taken so as reasonable are determining steps penalty, long appropriate (1992) 4 a fair v. Hawthorne (People to assure trial. impartial penalty 43, 118].) of the Cal.4th 77 841 P.2d Remoteness Cal.Rptr.2d [14 (People offense affects the not of the offense. admissibility, weight, 1107].) Anderson 52 Cal.3d 476 801 P.2d Cal.Rptr. factor, and was Here the defense was notice of this given proper aggravating Moreover, were had jury able confront the witnesses who available. that the crimes circumstances—including been instructed aggravating doubt. No constitu Jill M.—must be a reasonable against beyond proved Wharton, 601.) tional Cal.3d at p. error appears. (People prior' to the hearing pursuant 62The also Evidence Code section court conducted a Although initially indicated presentation jury. Jill M. evidence to the the court had Jill, court alleged on some concerns as to the existence of credible evidence of assault decided, ultimately jury, there was gave testimony presence Jill after outside the that, fact, strong probability that it to indicate there is “plausible evidence in record is true. . . .” Second, defendant was not the failure impermissibly prejudiced by M., witness Dr. McGlynn recall his independently examination of Jill nor the loss of the by and rectal swabs and vaginal smears. At the defense’s the court allowed from request, McGlynn’s the December testimony in the Jill M. case to be preliminary hearing read into the record. That defense, which was testimony, favorable to the fairly indicated that McGlynn found some tenderness redness but no abrasions on Jill’s areas, laceration, and urethral vaginal and no redness or evidence of trauma in her rectal area. The also indicated that testimony was found in the sperm but not in the rectum. vagina, Most significantly, reflected testimony McGlynn’s the amount of “trauma” he opinion observed during examination was not consistent with a three men. rape by
Third, defendant was not denied a fair trial the loss of the photos shown to Jill M. for identification We are not purposes. persuaded by defendant’s claim that without the lost the defense could not photographs, been, show how suggestive have they may demonstrate how the photo *91 have lineup procedure may affected Jill’s impermissibly identi subsequent fications of defendant both at his 1976 and' at trial preliminary hearing below. This argument is similar to made in other arguments cases con the cerning fairness of an allowing in-court identification of a defendant where evidence of a identification previous photo is no available longer due to inadvertence of (See, (1980) v. Kaiser People. e.g., People 113 754, 62]; 762-764 Cal.App.3d (1980) v. Posten Cal.Rptr. People [170 108 633, 661]; 646-647 Cal.App.3d (1974) v. 40 Cal.Rptr. People Dewberry [166 175, cases, 181 815].) In Cal.App.3d those it Cal.Rptr. was repeatedly that mere claim that recognized “[a] have been unfair is procedure might not enough that the require must People where produce photographs evidence establishes their due is to inadvertence and nonavailability not Kaiser, intended destruction. v. (People 113 supra, [Citations.]” Cal.App.3d 764; Posten, at 646-647; v. p. People 108 at supra, v. Cal.App.3d pp. People Thus, Dewberry, 181.) 40 supra, at Cal.App.3d admission of an in-court p. identification is considered fair when the defendant is given opportunity to cross-examine the pertinent witnesses order to for expose potential Kaiser, error in the method v. lineup (People 113 at supra, Cal.App.3d p. 764; v. People Dewberry, 181), 40 at supra, and when it Cal.App.3d p. that the in-court identification appears is based on the observation personal crime, of the defendant at the time of the rather than on the alleged previous Kaiser, 763; Posten, v. 113 lineup (People supra, at v. p. People Cal.App.3d 647; supra, at Cal.App.3d Dewberry, Cal.App.3d 181.) at p. case,
In this defendant fails to establish unfairness. The defense was Pollack, able to confront and Jill M. and cross-examine both Lewis who to remember was able In Pollack particular, her the photographs. showed his reflected testimony display, of the details photographic many addition, about Jill was although questioned In it fair.63 eminently that was defendant, testimony sug- her nothing identified times she the various identifica- to her subsequent contributed her identification gested that photo Under these itself. at hearing penalty phase at tions the preliminary circumstances, due to the lost photos. not denied a fair trial defendant was 218, (1967) 388 U.S. United States Wade reliance
Defendant’s upon 1164-1166, Gilberts v. S.Ct. 1926] L.Ed.2d 239-242 [18 1184-1186, 87 S.Ct. L.Ed.2d 388 U.S. 269-272 [18 California situation, involved prior the instant those cases is Unlike misplaced. 1951] counsel in violation of the Sixth had in the absence of occurred lineups that, under those cir Court held The United States Amendment. Supreme cumstances, determin in-court identifications without first admission were of but illegal independent were not tainted they lineup, ing (Ibid.) are and do not error. Those cases inapposite was constitutional origin, further defendant’s claims. Jill Fear Concerning
b. Rebuttal Evidence M.’s Rasillas, examination that who testified on direct Defendant called Carlos Jill was at the San house when Jill M. arrived. Rasillas observed he Leandro room, with friends in the living smoking some calmly conversing Rasillas, with his who was the house living beer. cigarette drinking *92 (defendant’s sister), not hear Jill scream or Norma did girlfriend Rodriquez was her will that indicate in that she forced any way being sexually against testimony After the to Rasillas’s by discredit night. attempted prosecutor defense an he never forward with his story, admission that came extracting that counsel elicited on redirect examination Rasillas testimony stopped defendant was involvement after aware that the case becoming against dismissed. M. to the the court allowed Jill objection, over defense’s
Subsequently, went to “Q on And after you rebuttal as follows. testify briefly [Prosecutor]: how at to the about hearing magistrate court the and testified preliminary photos including twelve color photos, 63Pollack he Jill M. a number of testified that showed containing photos five each.' Pollack still groups photos and two of black and white in stack able to describe most photos lineup, record whose were in the color and was had written of depicted photos, but not defendant was the color of those individuals. He remembered that similar,” of fairly that most the photos that “were all in the others. Pollack also testified the stature, age fairly were similar photographed group were in the and individuals same feet, feet, height weighing between one ranging to ten inches in and from five nine inches five fifty sixty pounds. hundred hundred one Rodrigues Mr. sodomized you, you, forced to raped commit oral you him, at some did have copulation upon point you occasion contact either or the office of the police department prosecutor ask them not to you Yes, in the require participate prosecution any further? A [50 [Jill M.]: Q: I can did. And tell the you gentlemen ladies and [[D of jury, briefly, mind, state what of if led to ask not to have any, you go through any further? A: I was and I feared for pregnant, my Q: [50 life. Was there [cfD else—well, mind, anything was that state of fear your your for life? A: Fear, yes.”
Defendant first contends the of admission Jill M.’s state mind of testimony erroneous because the evidence was irrelevant. Defendant is wrong.
“ ‘The of admission rebuttal evidence rests within the sound largely of discretion the trial court will not be disturbed on in the absence appeal abuse.’”” v. “palpable (1990) 51 (People Kelly Cal.3d 965 [275 516].) 800 P.2d Cal.Rptr. we find Although that Jill’s state of mind testimony was not since the did particularly probative defense not question dismissal, witnesses regarding reasons for the we cannot conclude that the trial court committed abuse” in “palpable evidence. On admitting record, that, basis we may infer been reasonably informed having by ascertainable, defense counsel reasons for the dismissal were not court admitted Jill’s in order to allow the testimony to offset prosecutor left witnesses that impression against defendant were dis- charges missed because of insufficiency evidence or questions concerning Jill’s credibility. This was within the broad court’s of discretion. scope
Defendant next contends that Evidence Code section 352 ex- compelled clusion Jill M.’s fear testimony her because such concerning testimony that defendant impermissibly suggested or someone associated had with him Mason, threatened (See 946-947; her. v. People Cal.3d at supra, pp. Pitts, 778-781; Weiss, People cf. Cal.App.3d pp. *93 50 554.) Cal.2d at supra, We p. disagree.
The record establishes that the trial court made efforts to ensure diligent First, that no inference prejudicial arose. the trial court precluded any testimony fear, the source Jill and regarding alleged M.’s did not allow Second, the Jill she prosecutor ask whether had ever been the threatened. court admonished the “the specifically jurors that as to the state of testimony case, the mind of as witness to her reason for with declining the proceed that was offered for the limited testimony her state of showing purpose testified, mind at the [5Q time she made that And as she’s apparently request. it for any consider and not you may other offered for purpose, it’s not to ask Jill on Third, defense counsel court the permitted other purpose.” As was you?” anticipated threaten Rodrigues “Did Jose cross-examination: M. Jill the jurors’ presence, outside the court given from testimony Thus, that the “No, jurors ensured effectively the court he did not.” replied: have been caused fear may the that Jill’s impression not be left with would Mason, v. Cal.3d (See People supra, to defendant. a threat attributable by admitted.64 947.) The evidence was properly at p. Roach Shooting
4. the back a shot from a by In Roach was wounded in Frank April as the had identified defendant Roach shotgun. sawed-off pump-action, the or five after shown to him four days from a lineup shooter photo incident, hearing. At also defendant at preliminary and identified defendant, but remarked Roach was able to identify phase, penalty had lot ten and that defendant years defendant looked “a different ago” a bit.” “changed quite of con contends he was denied due process, right
Defendant due to the frontation and the to a reliable determination passage right penalty destruction of important physical of time since Roach and the shooting Roach, seized evidence such as the and shotgun shown photo lineup contentions are without merit. by These police. the defense
Admission of the evidence was since aggravating proper received notice of it and to cross-examine was afforded opportunity Wharton, v. and to call its own witnesses.65 prosecution’s (People witnesses Moreover, discussed, 601.) defendant’s supra, Cal.3d at as p. previously (Ibid:, constitutional were not the mere of time. rights violated passage 198-199; Frank, Garceau, v. at v. People supra, supra, 6 Cal.4th People pp. 729.) 51 Cal.3d at p.
Defendant fails of confrontation was defeated to establish that right because of the loss of evidence. Even physical though shotgun photo available, were no access to the preliminary the defense had lineup longer well as the names of hearing police pertinent as transcript reports, no witnesses. As for the there is indication the record photo lineup, two identifica Roach’s identification contributed to his photo subsequent Kaiser, 764; (Cf. People tions. Cal.App.3d reasons, federal constitu reject 64For the same we defendant’s related contention that his testimony inherently prejudicial rights tional were violated because Jill M.’s fear *94 significant advantage. gave prosecutor the an unfair and Payne, participant and had fired 65The defense called Oscar who testified that he another gun, had not it. the but that defendant touched Posten, 647; at Cal.App.3d People Dewberry, supra, p. Moreover, 181.) the defense was able cross-examine Cal.App.3d p. both Roach and the officer who showed the We police note photo lineup.66 from the officer’s that the names of the five testimony other individuals whose were shown to were pictures Roach still available. Under these circumstances, we find that the or loss destruction of evidence did not hinder of substantially defendant’s confrontation. right (People Douglas, supra, 50 Cal.3d at ability cross-examine witnesses [defendant’s not affected the destruction of court notes where by reporter’s preliminary and were hearing available].) transcripts police reports 5. Calles Incident
Defendant claims that the trial court should have evidence excluded of the Calles incident lack of for notice under The timely section 190.3. facts this claim are as underlying follows. 11, 1987,
On September filed a notice of prosecutor initially aggra- vating 11, factors which made no mention Calles incident. On April trial, the case was called day for filed a trial defense memo- randum to limit the introduction of attempting evidence in at the aggravation penalty to those in the phase incidents listed 1987 notice. That September same over day, defense notice objection, prosecutor oral that he gave intended to introduce additional evidence in aggravation, including “[t]he 21st, 1981, incident on at the occurring January of corrections department facility Susanville which the defendant committed assault with serious C-a-l-l-e-s, Calles, bodily on injury battery inmate Prison prison Number The C-23539.” filed a written amended notice to this effect on prosecutor April 1988. On the defense April filed a to the amended response notice which that evidence argued of the Calles incident be excluded should on statute of limitations The trial court this grounds. rejected argument. 1, 1988,
On August after the of conclusion the court guilt phase, conducted a under hearing Evidence Code to evaluate section 402 defense’s claim that evidence of the Calles incident be excluded should because there was insufficient evidence defendant’s as the identity perpe- time, trator of the assault. At that informed the court and prosecutor defense counsel that Calles would that he saw out the comer of testify that he eye was struck someone and that defendant was wearing glove, testimony 66The two suggested nothing lineup. these witnesses about In improper particular, the officer testified that he Roach photos showed six of individuals of the same color, Furthermore, complexion weight. race with similar hair that he he stated admon ished Roach person shooting may may present photos, that the involved in in the not be obligated anyone. that he should not feel identify
1167 who was at the of the assault wearing time the presence only person the trial court ruled testimony, After Calles’s hearing gloves. weightlifting admissible. evidence of the or all of the evidence Calles first claims that some Defendant because as under section 190.3 untimely should have been excluded incident 13, 1988, to the “comer- omitted mention the amended notice filed on April evidence. He is wrong. glove” of-the-eye/weightlifting counsel’s claim to been waived defense by does the have only appear Not on at the August based section 190.3 failure to make a specific objection 668, (1990) v. Cal.3d 708 Turner 50 hearing (People Cal.Rptr. 1988 [268 1, 706, 887]; 51 (1993) 6 Cal.4th People P.2d see also v. Johnson 789 [23 593, 673]), Section P.2d it is merit. 190.3 clearly lacking 859 Cal.Rptr.2d a v. testimony. (People not a summation of witness’s require expected does 276, 274]; 271, cf. (1992) 2 Cal.4th 826 P.2d Cal.Rptr.2d Roberts 329-330 [6 636, 195, 833 P.2d (1992) v. Pride 3 Cal.4th Cal.Rptr.2d People [10 of a from all the circumstances duly not barred introducing [prosecutor 643] circumstantial fact not noticed incident because each and every simply event, recited].) In the notice defendant cannot now about complain any trial, a thereby indicating issue because he failed continuance request was not to the defense. notice timing particular prejudicial Turner, Johnson, 51; (See v. 6 Cal.4th at v. People People supra, supra, p. 708.)67 Cal.3d at p. evidence of identity
Defendant also maintains there was insufficient to the He is wrong. evidence Calles incident go jury. permit above, noted court under Evidence Code As trial held hearing 402 to evidence existed to present section determine whether sufficient (see to the standard incident abuse of discretion jury. Applying 705]), 828 P.2d we find Clair Cal.4th 676 Cal.Rptr.2d testified at the trial court rule the incident admissible. Calles could properly his failure regarding he with for 10 minutes hearing that defendant spoke Defendant, who Rican to attend Mexican/Puerto inmate meeting. brief, additionally reply appears to the Calles evidence 67In his contend not “within a entirely April provided have been excluded because the 13 notice was should court, 190.3, added.) prior (§ to trial.” period as italics reasonable of time determined case, April the date that required prior in this notice Defendant contends that statute filed rejected. April claim 13 notice was three trial was scheduled to commence. This is The selection, sought jury no continuance. prior to and defendant weeks the commencement 190.3, Thus, under circumstances whether or not there was a technical violation section (People by the right protected statute. such these there was no denial of substantial as Johnson, 51.) 6 Cal.4th at *96 Calles, on while another sat a bed gloves, opposite wearing weightlifting and as Calles to his Defendant right. got up on the same bed inmate sat seconds, a Calles saw Calles. Within a matter of to the behind right moved behind, and he was head from come toward his in a weightlifting glove fist unconscious. knocked not see actually that Calles stated he did defendant is correct
Although him, officials after the incident that Calles did not tell prison defendant strike hand, hand recalled the gloved and that he only recently about the gloved as a detail, of Calles credibility were matters which affected these of the witness, or the admissibility of his admissibility testimony not of the evidence pre factor. Viewing totality assault as an aggravating sented, the one who struck conclude that defendant was a rational could jury be beyond of the conduct could charged proven Calles and that the elements did not abuse its discretion the trial court a reasonable doubt.68Accordingly, in as it did. ruling that, a matter of state us to a rule as
Defendant next urges adopt alleged prior of a defendant’s due evidence process, federal constitutional determination sentencing excluded from the capital must be misconduct evi- (2) in (1) misconduct occurred alleged prison; physical whenever: incident have dence and records of circumstances alleged prison identified; (3) the witnesses cannot be been or lost and destroyed percipient who has never previously witness is another inmate prosecution primary so; to do prison identified the defendant spite opportunity inmates to from anonymous on information officials relied unspecified a rule is neces- Defendant asserts such the defendant’s culpability. establish evidence officials are under no obligation preserve because sary prison filed, be informants may are and because in-house when no criminal charges case, in a capital supposedly fabricate evidence to assist state tempted advantages.” for “diverse and substantial exchange contravenes rule defendant’s Defendant’s request. proposed We decline interest in allowing that the state has a legitimate our determination previous a conduct in capital criminal a and consider a defendant’s prior jury weigh case, impartial assure a are taken to so as reasonable long steps fair Hawthorne, 77.) Since defend- 4 Cal.4th at trial. penalty (People fairness methods for safeguarding to demonstrate that existing ant fails admissible, presented other evidence ruled the Calles evidence 68Once the trial court defendant that when strengthened prosecutor’s case. Calles testified jury further which addition, him, a correctional reach. In there within arm’s no one else was back moved behind and saw day of the assault suspect on the interviewed defendant as officer testified that he knuckles, from got he them although had claimed on his that he had abrasions bag. working punching out on a an no basis for such we see valid inadequate, adopting trial are of penalty rule exclusion. extraordinary blanket not incident should evidence of the Calles defendant contends that
Finally, lost, and either evidence was missing been admitted because critical have *97 an created of statute of limitations because expiration applicable He be that to a fair trial would his right prejudiced. irrebuttable presumption to that of the incident violated his due rights process, contends admission witnesses, of and a reliable penalty judgment. effective confrontation to the made with contentions are those respect These essentially repetitive incidents, for the already M. and and are reasons they Jill Roach rejected stated.
6. Incident Rodriguez 1984, Leo that in Correctional Officer testified November Rodriguez abused and to “kick ass” when defendant him threatened verbally [his] to have him removed from food assignment. Rodriguez sought serving did Defendant contends the evidence inadmissible it because conduct, not show criminal or a of violence as under violence threat required 190.3, (b). factor He this violated his federal consti section contends error tutional reversal of his death We conclude rights judgment. requires otherwise. account, 190.3, if (b)
Section trier take factor of fact to into requires relevant, or of criminal activity by absence presence “[t]he which involved the use or use of or violence or the express force attempted factor, the term or threat to use force or violence.” Under this implied “criminal a statute.” is “limited to conduct that violates activity” penal 731, 367, 802 P.2d (1990) 52 Cal.3d (People Wright Cal.Rptr. 221], italics in original.) case,
In this is evidence demonstrated whether Rodriguez question 148, a violation of or obstruct- section which criminalizes resisting, delaying officer,69 71, or a violation of which criminalizes section ing peace 148, trial, (a) part: provided pertinent 69At the time of defendant’s section subdivision resists, peace in the “Every person willfully delays, any or . . . officer ... who obstructs is discharge discharge duty employment, or ... attempt any or of his or her office , by by imprisonment.” fine punishable imprisonment. by a fine . . or both such . . . 257, (a), 1260.) ch. (§ subd. as amended Stats. § Defendant contends no officers employees.70 threatening public there was no evidence was established because violation section intent to or resist delay peace he acted with the specific showing 71 was demonstrated because violation of section He contends no officer. believed reasonably that the officer showing evidence there was insufficient out. threat could be carried that defendant’s makes no General attempt
While not conceding point, Attorney under conduct falling incident constituted properly that the Rodriguez argue 190.3, evidence in the record (b), or that there was substantial factor section Rather, erroneous admission violation. it is asserted of a Penal Code not defendant. We agree. of the evidence did prejudice *98 admitted, the that the evidence was Rodriguez improperly Even assuming under our state law phase not demonstrate penalty record does prejudice Brown, v. constitutional violation. (People harmless error test or federal any defendant of 449.) The had convicted already 46 Cal.3d at p. jurors supra, circum and found true two special murder of Juan Barragan the brutal 190.3, (§ circumstances of the crime had heard all about the They stances. stabbed an manner in which defendant (a)), savagely the including factor chance to surrender his death without him any unarmed victim to giving defendant ordered had heard how and thus his life. They preserve property the closet. he revealed that “it” was in kill Zavala once Garcia to Epifanio incidents in of numerous other were also evidence The jurors presented well as assaults injurious which included violent felonies as aggravation, evidence, it In of all the and other individuals. light officers against police more could have drawn any that the jurors was not reasonably possible to Rodriguez of defendant’s threat inferences from the evidence damaging underlying circumstances of the been established the by than had already there conduct. We of violent and assaultive crimes and defendant’s history the evidence was harmless. admission of fore conclude that erroneous any Brown, 428-429; People 52 Cal.3d at v. Wright, supra, pp. (People 449.)71 46 Cal.3d cause, who, attempts with intent to “Every person provides pertinent part: in 70Section do, cause, causes, doing, any act in the refrain from any public ... to or . . . officer to duties, threat, person, to directly communicated to such of a performance of his means the reasonably appears to property, and it injury upon person or inflict an unlawful out, public a offense guilty is of could be carried of the threat that such threat
recipient »> Rodriguez evidence was admitting the any error in light our conclusion that 71In notice harmless, regarding inadequate claims defendant’s additional we do not address evidence, inadmissible incident was that the 190.3) or his contention (§ and unavailable 719, 752-753 Taylor, supra, 52 Cal.3d People (see prison in adjustment show defendant’s Fire Facility Correctional 7. Evidence under the trial court held hearing counsel’s request,
At defense the prosecutor’s proposed 402 to determine admissibility Code section Eve, 1980-1981, defendant on New in that Year’s aggravation evidence After at Susanville. facility in fires at correctional participated setting he had a fire concerning Frank testified Shipman Officer Correctional it witnessed, to exclude the evidence on the ground moved defense in the fire and identity defendant’s establish participation insufficient ruled court doubt.72The trial disagreed incident reasonable beyond incident admissible. of the incident was
Defendant first evidence argues erroneously identity because there was insufficient evidence to prove admitted fire Defendant the correctional incident facility incident. compares 81], v. Crandall Cal.App.2d Cal.Rptr. situation for in which the Court of reversed a defendant’s conviction posses Appeal was thrown from a car in which the defendant two sion marijuana case, were could riding. others In that record established that police who threw the and did not know who was next marijuana, not see when it There no inference that the marijuana window was thrown. was also car, all the in the or that the defendant was was possessed jointly by people *99 record, or abettor crime. On the that the evidence was an aider to the basis of the the deemed insufficient to connect defendant with of mari possession (275 juana. 610-611.) at pp. Cal.App.2d Crandall,
Defendant’s fails. in v. Unlike the situation comparison People 609, 275 substantial evi- supra, Cal.App.2d Shipman’s testimony provided dence of that he a of identity. Shipman defendant’s testified saw hands pair a onto an fire in burning out of window and the throwing existing paper later, common or five the aid of area. Four seconds with prison Shipman, Mosk, (cone. J.) opn. [aggravating of enumerated in do not include circumstances 190.3 § dangerousness]). future Moreover, conclusion, reaching prosecutor’s we our have considered fact that the record, consider, closing argument jury past asked the based on defendant’s whether present danger if life prison defendant would a threat or to others in sentenced to without expert testimony possibility parole. Although prosecutor may a not initiate introduction of defendant, long may argue a she the issue so as dangerousness on the issue of future he or Miranda, (People supra, 44 Cal.3d at arguments penalty do not trial unfair. v. render 750, case, 110-111; Taylor, supra, 11.) People p. at In this see also v. 52 Cal.3d fn. pp. argument given the defendant’s on inmate Calles. prosecutor’s proper was evidence of assault appears. basis for reversal No by caused a injury allegedly Shipman an was argued 72The defense also that suffered agreed aspect court with this prison. fire located elsewhere in the The trial different argument not defendant’s and that issue is before us. 1172 the window when he saw Ship- back from jump saw defendant
flashlight, window; near the the others inmate in the area only Defendant was the man. move away area. observed defendant further in the bed away Shipman were bed, to avoid into a as if get trying the window and back attempt from assertions, allow a this evidence would to defendant’s seen. being Contrary a doubt as to a determination reasonable beyond rational make jury defendant’s identity. incident inadmissible
Defendant next that evidence of the was claims and did not (§ 451),73 did not constitute arson because the conduct at issue a violence or threat of violence. amount to criminal activity involving trial, his have raised this issue at outset of Although may 402 renew at the Evidence Code section objection failure to the specific 1 Cal.4th (1992) waives the on v. Pinholster (People issue hearing appeal. 765, 571]; v. People 824 P.2d Morris Cal.Rptr.2d 960 [4 949].) P.2d Cal.Rptr. Cal.3d event, Assuming for reversal arguendo In no basis appears. doubt did not a reasonable beyond evidence sufficiently support finding admitted criminal the other that defendant committed activity, properly record, On this we it not reason- conclude is overwhelming. evidence verdict had would have rendered different ably possible jury 52 Cal.3d Wright, not been admitted. (People supra, evidence challenged 429; Brown, 449.)74 Cal.3d at p. Character Evidence
8. counsel At various defense phase, times before during penalty be admitted the trial court for a as to what evidence ruling might asked background if the were to what he characterized as present rebuttal defense *100 counsel, evidence in described this mitigation. background evidence As by four or when he was consisted of evidence that defendant suffered seizures he two or of that his father died when was age, young, five evidence years life, and similar defendant earlier in his “one other three of photographs that The asserted of evidence” that counsel did not identify. prosecutor piece he or she guilty of when provides pertinent part: person in “A is arson 73Section aids, or to be burned counsels willfully maliciously and sets fire to or burns or causes or who of, structure, burning any property,” forest land or procures the First, were rejected. the claims are also 74Defendant’s related federal constitutional claims Second, does the error at issue them state law by defendant’s failure to assert at trial. waived Brown, supra, 46 Cal.3d p. (People to the level of a constitutional violation. not rise Third, doubt” of “reasonable 449.) any application event the the claims fail because 710-711]) would (Chapman California, pp. L.Ed.2d at 386 U.S. at [17 standard finding yield a of no harm. also evidence, such he would seek to introduce were to if the defense present 19, 1983, (1) character that: on defend- July evidence of defendant’s rebuttal of Corrections at inmate Gomez at the Timothy Department ant stabbed Folsom, California; (2) in December while incarcerated in the San with inmate Amoroso to Anthony defendant County jail, Mateo conspired commit the crime of escape.75 issue, counsel asserted that the on the defense prosecu-
During arguments character evidence or evidence any should not be introduce tor permitted in rebuttal because defendant’s evidence incidents stabbing escape life, that have in his . . . that things would show merely “things happened conduct,” character and not were not in his of choices of range “[n]ot mental condition or condition but through just things physical psychiatrist have to Mr. not that he has himself done.” things that happened Rodrigues, rebuttal to the truthfulness of Defense counsel to restrict of sought scope incidents, i.e., true that defendant whether it was suffered particular childhood or that father died when he was In young. seizures opposition, alia, inter that the for defendant’s reason prosecutor argued, only logical evidence was “for the proffered evoking sympathetic response purpose which shows a characteristic of the defendant which is worthy sympathy.” The asserted that that’s made for “any prosecutor pitch plea sympathy that evi- is be rebutted otherwise relevant regard, something may by conclusion, dence that would evoke from the which is that jury opposite the defendant is not worthy.” matter,
In on this ruling trial court made clear it was not inclined However, to admit evidence.76 the court limit refused otherwise escape rebuttal in manner defendant: “The court would scope proposed rule that in the event the evidence of the nature that defense is proffering admitted, would be that the would be entitled to offer rebuttal people evidence, rebuttal character than what the evidence in a broader scope defense Offer evidence indicate to the that would propose. jury [*]D the defendant should not be treated with or that this should penalty sympathy not be evi- would seem So as it’s mitigated long appropriate appropriate. dence.” Faced with evidence in this defendant introduced no ruling, mitigation.
On consti contends that the trial court’s appeal, ruling tuted error. In 42 Cal.3d People v. prejudicial Rodriguez *101 initially sought in prosecutor 75The had to introduce evidence of both of these incidents its aggravation, prosecutor’s respect case in but the trial court that the notice with to the ruled stabbing Gomez incident was insufficient under section 190.3. court, under 76According attempted escape to the trial evidence of the was inadmissible prejudicial probative. aspect Evidence it than This Code section 352 since was more ruling court’s is not at issue here. 1174 667, 113], evidence intro “any we cautioned that not 726 P.2d
Cal.Rptr.
the door to
and all
his
character’ will open
defendant of
‘good
duced by
792,
(42 Cal.3d at
can dredge up.”
p.
evidence
prosecutor
‘bad character’
Rather,
and evidence
of rebuttal must be
24.)
specific,
“the scope
fn.
to a
incident or
rebuttal must relate directly
particular
as
argued
presented
(Ibid.)
in
own behalf.”
In
v.
People
defendant offers
character trait
965],
P.2d
we held
(1990) 50 Cal.3d
Cal.Rptr.
[270
Ramirez
as a
a defendant’s misconduct
teenager
rebuttal evidence showing
evidence of ad
where the defendant had
admitted
presented
not properly
evidence of
in
childhood without any
circumstances experienced
early
verse
(50 Cal.3d at pp.
for lawful behavior.
character or general reputation
good
cases,
ruling
defendant claims the trial court’s
1191-1193.)
on these
Relying
evidence,
ren
thus
in the
absence of mitigating
resulted
unfairly
complete
unreliable.
constitutionally
the death
dering
judgment
claim of harm is specula-
General
that defendant’s
argues
The Attorney
tive,
the rule
in
find the claim not reviewable under
applied
us to
urges
443, 105 S.Ct.
(1984)
U.S. 38
L.Ed.2d
460]
Luce v. United States
[83
P.2d
(Luce),
In Collins observed witness has right give testimony from “It is settled that such immune does not impeachment: impeachment violate the due clause of either the federal or the state Constitution process [citations], or the federal self-incrimination . . . privilege against [citation]. dimensions, a defendant have a ‘Although may even of constitutional right, chooses, to follow whichever course he the Constitution does not ’ token forbid him to ‘It always choose. ... has been held requiring long that defendant who takes the stand in own behalf cannot then claim the cross-examination on matters related privilege against reasonably matter of subject his direct examination. It is not thought overly [Citations.] in harsh such situations to determination whether to waive require take into account the privilege matters which be out on may brought cross-examination. It is also that a generally recognized defendant who takes the stand his own behalf be convictions may impeached by proof prior like. it is not inconsistent with the Again, thought enlight [Citations.] ened administration of criminal the defendant to justice require weigh such and cons in pros (Collins, whether to deciding testify.’ [Citation.]” reasons, 387-388.) Cal.3d at For these we concluded that pp. conviction impeachment by felony does not violate the California prior self-incrimination, privilege against and held that the Luce rule is not inconsistent with any constitutional mandate.78 Sims, case,
In a death the defendant on that the trial penalty argued appeal court erred in his motion to denying bar in the event prosecution, defendant testified from during guilt him phase, cross-examining regard- evidence of ing (5 453.) murders in another unadjudicated state. Cal.4th at p. There, Collins, based on the we held that the defendant’s claim reasoning of error was not {Id., reviewable because he elected not to at his trial. testify Sims, Collins, 454-456.) In as in the trial court had no occasion to pp. ascertain the nature of he not precise defendant’s because elected testimony the court therefore had no for whether the testify; determining basis did, however, the Luce given 78We hold that our rule to be adopt decision to (42 388-389.) prospective only. pp. effect Cal.3d at *103 1176 outweigh value of the evidence would its
probative impeachment prejudicial Moreover, 455.) (Sims, effect. 5 Cal.4th at the harm alleged was p. and the defendant’s tactical choice not to had wholly speculative testify (Id., thwarted our effect of the asserted error. judge prejudicial ability 455-456.) at We therefore rule in pp. employed procedural adopted Collins, that the identical for the rule concluding justification purpose were to the trial court’s denial of defendant’s in limine directly applicable (Ibid.) we federal motion. In so observed numerous court deci- doing, sions had the Luce rule to review of a trial court’s applied preclude appellate refusal to bar use of evidence other than convictions for prior prospective (Ibid.) of a defendant’s impeachment testimony. whether the rule in the instant
It is debatable Luce is properly applicable hand, On the one correct that Luce rule has never case. appears been to a claim the denial of an in limine motion challenging applied seeking of rebuttal evidence in to restrict of scope mitigating penalty phase hand, case. On the other General makes Attorney capital plausible that the same concerns which of the rule in arguments prompted application Collins and in Sims are in such a situation. present that, case, hold,
We find for of this we need not so far as to purposes go Luce, Sims, under Collins and that a defendant must his mitigating present evidence to the trier of fact in order to a claim preserve challenging same, denial of a motion in limine to limit the of rebuttal. All the we scope conclude, review, based on settled of that the principles appellate inadequacy record us to defendant’s claim. present requires reject (cid:127)
“Before an can court rule an appellate evidentiary knowledgeably upon issue it must have an record before it to determine presented, adequate (In if (1992) an error was made.” re Mark C. 445 7 Cal.App.4th [8 856].) The here is whether defendant’s offer of Cal.Rptr.2d question proof evidence definite so that concerning alleged mitigating was sufficiently we conclude that the trial court’s on the may knowledgeably ruling scope rebuttal both was erroneous and to defendant. prejudicial admissible,
An offer of must consist of material that is and it proof must be the name of the witness and the specific indicating purpose C., (In content of the to be elicited. re Mark testimony supra, Cal.App.4th “ 445.) at ‘The substance of evidence to be forth in a valid offer of set p. witnesses, means the proof testimony specific writings, material.objects, senses, or other to the to be introduced to things presented prove ” 444; (Id., existence or nonexistence of a see Douillard fact issue.’ 6].) Woodd Cal.2d P.2d under the deficient clearly forego Defendant’s offer proof authorities, all too uncertain to warrant us with a record that is leaving ing were Defendant’s never alleged photos judgment. reversal of penalty *104 of the for are not a part appellate to the trial court inspection; they offered have shown and how there is no to ascertain what way they might record and there is no indication of defendant. Additionally, have they might depicted have been in which the seizure and other evidence would the manner whom, and no basis for what might introduced or by determining questions and what answers or have been in might given have been asked impressions no hint as the elicitation of the evidence.79 the record contains Finally, or substance of the “one other similar of evidence” to which nature piece defense counsel referred but did not Given' the of the identify. vagueness record, it whether evidence would have is defendant’s impossible judge Code, met the for under the Evidence admissibility requirements whether, to the defense counsel’s assertions defend notwithstanding contrary, ant’s evidence have a basis for the admission of the might provided proper Likewise, rebuttal evidence.80 it to determine is prosecutor’s impossible whether a have been influenced might such evidence. jury by sum, determine
In the record is far too and indefinite to vague us to permit claim defendant’s error. Defendant’s to the trial prejudicial objections court’s limine are therefore ruling rejected.81 properly 9. to Excuse Juror Duba Refusal
Late in the it came penalty that Juror Ronald Duba was phase, light seen on the fourth (the floor), floor of the he courthouse and that there jail observed Matthew Transportation Powers another Deputy taking deputy incident, defendant out of the elevator. The after the the court morning know, witnesses, might 79For all we strength defendant himself have been one thus ening argument application for of the Luce rule. 80We have held that painted general picture where a defendant’s evidence that he was well-behaved, prosecutor properly permitted was to introduce evidence of the defendant’s violence, delinquency, including acts of directly general incidents of which related to that Mitcham, 1072; (People (1988) picture. Siripongs 1 Cal.4th see also 548, 729, 45 Cal.3d Cal.Rptr. presentation 576-578 P.2d 1306] [defendant’s Buddhist, he coupled testimony showing evidence that was a devout with that one character honesty, justify istic of a devout Buddhist was truth or would introduction of defendant’s prior involving dishonesty].) convictions additionally present mitigating 81Defendant contends that if decision not counsel’s unreasonable, ruling evidence the face of the trial court’s such omission is deemed would constitute ineffective appellate assistance. Because the record does not contain the defense issue, provides evidence at it no for assessing performance basis whether counsel’s 252, (See People (1990) prejudicial. Cal.Rptr. deficient or v. Whitt 51 Cal.3d 650 [274 849]; Washington P.2d see Strickland v. 466 U.S. L.Ed.2d 691-696 [80 695-699, 2052].) rejected. 104 S.Ct. The claim is and the defense and decided to conduct a with the prosecution conferred of the other outside the presence jurors. hearing the court Duba and Powers on At the hearing, questioned Deputy stand, examination, Duba his initial following testimony. During eliciting make a he was on the fourth floor because he had wanted to explained first and call to his wife. He had the fourth floor over the picked telephone he was second he wanted more Duba floors because privacy. represented a decision in the trial of his observation of capable making independent defendant, mind. and had no doubts he could the incident out of his put Powers confirmed that Duba was down one of the tele- sitting Deputy *105 he on the floor as and another were defend- deputy phones jail transporting front, ant, in to the Duba saw them from between who was handcuffed jail. there, feet When Powers asked Duba what he was doing 15 and 20 away. Duba he was to use the to call his wife. Powers saw going replied telephone notebook, that Duba was down in a but did not see writing something spiral Powers the incident to the immediately Duba use telephone. reported trial When recalled for Duba clarified that what he was judge. questioning, in notebook were he wanted to remember from trial. Duba his writing things trial, and on had been notes this this taking way periodically throughout occasion he had decided to write his in his notebook before thoughts calling Duba affirmed that he not on the floor to do his wife. also was fourth any After that Duba could his observation of investigation. ascertaining disregard and that he would not discuss the incident with the other jurors, defendant the court allowed Duba to remain on the jury.
Defendant contends Duba’s actions constituted misconduct juror erred in with and that the trial court Duba one denying replace request of the five alternate jurors. misconduct,
To succeed on a claim of “defendant must show juror does, misconduct on the of a if he is state part juror; prejudice presumed; v. (People must then rebut the or lose verdict. presumption [Citation.]” 269, 676].) P.2d “A Marshall 50 Cal.3d Cal.Rptr. [269 reversed or adverse to a defendant in a criminal case must be judgment that the vote vacated ‘whenever ... the court finds a substantial likelihood matter was influenced of one or more jurors by exposure prejudicial of the trial to the defendant or to the case itself that was not part relating (Id., at on which the case was submitted to the jury.’ pp. record [Citations.]” 950-951, added; (1992) 2 Cal.4th Hardy italics see People 781].) 825 P.2d Cal.Rptr.2d not whether a juror’s appar
The General does Attorney dispute true innocent, constitutes inadvertent of outside information ently receipt For General lack argues only prejudice. The Attorney misconduct. juror below, that, if the conduct here is treated as true we hold even the reasons misconduct, has been rebutted. of prejudice presumption juror Marshall, the substantial in As we explained “ effect, In the court must examine is ‘an standard. objective likelihood test it likely and then whether is judge inherently material extrajudicial differ Such is analysis’ have influenced juror.’ ‘prejudice [Citation.] HD than, from, ordinary for indeed tolerant ‘harmless-error analysis’ ent less (50 951.) error at trial.” Cal.3d observation of
Even that Juror Duba’s unauthorized assuming Defend it could not have had effect. defendant was improper, prejudicial after court and in handcuffs on floor custody jail ant’s appearance had concluded for the day hardly inflammatory surpris proceedings of the trial. It therefore was not stage inherently ing given postconviction we to have influenced the As have likely juror.82 previously recog handcuffs, nized, the mere of a even court viewing during does not result in an unfair trial. proceedings, inherently penalty phase *106 v. 2 Cal.4th at handcuffed (People Hardy, during supra, [defendants scene].) view of crime jury
Moreover, minimis misconduct was de and imme perceived to the trial At a held court’s attention. outside diately brought hearing of the other Duba that his on the fourth jurors, presence explained presence floor was for the innocent call in purpose making telephone private, court, not an was effort to extrinsic evidence. When asked gather by defendant, Duba assurances that he could his observation of gave disregard that he could out oath he not as and that would discuss carry juror, court, event with the other The trial Duba to remain on jurors. allowing determined after Duba’s demeanor that his jury, implicitly observing circumstances, statements were credible. Under these we will defer to trial court’s determination that Duba’s were not neutrality impartiality (See his observations. 4 Cal.4th at by Zapien, supra, compromised to trial court’s 993-994 determination pp. [deferring juror appeared honest].)
We find no merit to defendant’s claim that the trial court’s prejudice deficient of defendant was because effect of Duba’s observation analysis 82Indeed, court, that, although previously when asked the trial Duba stated he had not being jail during concluded that defendant was held in the trial because he had not received jail regard, deputies information in that the fact that defendant with the two on the point floor “made sense” to Duba at the he saw them. ask the court did not Although specifically was not considered. in handcuffs state, Duba’s handcuffed its addressed about defendant’s questioning Duba defendant. Since it is inherently his overall viewing improba- reaction to court’s and admonitions to would have construed the inquiries ble that Duba have formed in defendant in seeing include Duba may not any impression handcuffs, extended to infer that his assurances of fairness we may fairly defendant in such a state.83 observed having is based on the defendant’s claim that a reversal warranted
We also reject alternate remaining erroneous consideration of the number trial court’s not court referred to this irrelevant factor does The fact that the jurors. unauthorized the soundness of its determination Duba’s undermine to defendant. would not result prejudice observation we that the misconduct in question “In view of the conclude foregoing, that there is a substantial likelihood that any juror does not a finding support Therefore, detriment. we influenced to the defendant’s was impermissibly Marshall, to be (People must hold the misconduct nonprejudicial.” 952.) 50 Cal.3d at p. Arguments
10. Court’s and Remarks Rulings Regarding Defense’s and unfair com- Defendant contends that the trial court made erroneous the defense’s objections during ments when on two ruling prosecution of the He also contends that the court’s overall treatment closing argument. We defense was unfair in to its treatment prosecution. comparison disagree. *107 that an defense counsel reminded the
During closing argument, jury 12022.5) was dismissed (§ use defendant allegation personal gun against with a when defendant to a of assault charge deadly weapon pleaded guilty continued; 245) “What does that mean in on Frank Roach. Counsel (§ simple that That means that the as of that allegation charge layman’s language? part shooter, 12022.5 means used a gun, got Mr. was the used a Rodrigues gun, hand, the that dismissed.” At this point, a in his was gun pulled trigger, I took and objected following exchange place: “[Prosecutor]: prosecutor law, as the court Honor. That’s a misstatement of the would object, your knows, not erase an additional enhancement that does sentencing well it’s I’m from the the use of the underlying charge weapon. [Defense counsel]: is, and what the 12022.5 it’s use stating weapon. [The court]: itself, However, so the it does not detract from the fact of the charge still is sustained.” objection record, to ask Duba request did not the trial court 83For the we note that defense counsel clearly to do so. though given opportunity he defendant’s handcuffed state even was
about Defendant and contends above remarks ruling accompanying were erroneous and resulted in the denial of his constitutional to due rights trial, fair effective assistance of counsel and a reliable process, penalty determination. Defendant as reasons because one can violate section 245 either an aider and abettor or as actual his conviction under perpetrator, section 245 did not by connote an assault with a necessarily deadly weapon Therefore, him defendant personally. the trial court’s errone argues, ruling ously effectively defense counsel’s “intended “squelched” argument” that “because of the dismissal of the section 12022.5 the convic allegation, alone, tion of section with the defense standing entirely consistent and evidence that Oscar than theory Payne Billy Grejeda—rather [defend Frank Roach in 1977.” The record does not defendant’s support ant]—shot claims. First, comment defense counsel’s sole to the response prosecutor’s was; is, “I’m
objection what the 12022.5 stating and it’s a use of the After the court made its weapon.” counsel made no ruling, attempt explain or elaborate his upon This was insufficient position. to raise or plainly preserve arguments defendant makes on appeal. concedes,
As defendant remark, apparently clear of the court’s import context, viewed in its was that proper use was included in the weapon of assault with a underlying charge deadly that the dismissal of weapon the enhancement did not allegation detract from that fact. We find legal erroneous nothing about such a remark and in the nothing court’s ruling foreclosed defense counsel from the “intended making argument” identified by conclusion, on In this appeal. reaching we reject defendant’s claim that the court’s remark told the that the effectively jury underlying conviction of assault with a constituted a deadly that defend- weapon finding ant personally used a weapon.
Later during closing argument, defense counsel to sum began by up specifically life, asking jury defendant’s but the spare prosecutor again and the objected court with the again agreed prosecutor’s position: “[De- fense argument]: You have not seen evidence which warrants the death in this penalty case. You know what I said a few minutes that Mr. ago *108 will Rodrigues the rest of his life spend in When prison. are you HD discretion exercising your total your in this case about authority what is for the determine appropriate should punishment you whether or not Mr. is Rodrigues such a that the person cannot control him that he prison system must be to death. You have put not seen that kind of evidence. [ID [Prose- Objection, honor. your cutor]: That’s not the standard at all legal that that should be if the imposed only cannot control the legal system defendant. standard, It’s not the but legal [The it’s and I’ll allow it in.” argument court]: remark not the Defendant contends that court’s legal “[i]t’s and violative of his constitutional standard” was improper, prejudicial rights can what he because it told the counsel effectively jury “although argue wants, the law the defendant’s life cannot because says you spare solely find that he would not be a No basis for reversal dangerous you prisoner.” We observe at the outset that these contentions have been waived appears. event, them below. In we conclude that defendant’s failure to assert by any could have construed the court’s remark in the no reasonable juror possibly defendant, manner asserted and that the court was correct its assess by did reflect the Even ment that defense counsel’s not standard. argument legal assume, however, that the court’s comment was if we reasonably susceptible construction, of defendant’s any regarding possible misapprehension standard was eliminated when the court instructed legal specifically proper consider, which other other circumstance jurors among things: “Any for extenuates the of the crime even it is not a excuse though gravity legal crime, or other of the defendant’s character any sympathetic aspect death, which for a than or record as basis sentence less appears you related he You whether or not offense for which is on trial. must instruction in the or innocence disregard any jury given you guilt phase with this trial which conflicts this The court’s brief remark was principle.” neither nor improper prejudicial.
Defendant next contends that the trial court’s overall treatment disparate and defense counsel prosecutor during closing penalty phase unfair to defendant and constituted error. arguments patently prejudicial This contention is on a of the number based of overruled defense comparison with the fewer number of overruled He objections objections. prosecution also criticizes as unfair the the trial comments made court by conjunction with those rulings.
Defendant fails to demonstrate that of the trial court’s were any rulings erroneous, or that the cited remarks were incorrect or resulted in prejudice. Defendant also fails to establish that the court acted in any way. inequitably Whether made considered and remarks singly together, rulings court furnish no for a grounds reversal the death judgment. Erroneous Counsel’s Foreclosure
11. Alleged Argument of Defense After defense counsel prosecutor presented closing argument, Edward Thirkell followed with his the conclusion of his summation. Near Thirkell if of them was “so asked the argument, rhetorically jurors have no comfortable” with the case and “that arguments you prosecution’s about concern about another witness about a lack coming up, compassion, *109 Thirkell further dies?” Rodrigues of when Mr. the decision from God taking when he was shot? do ago did the seven years “What Pope the jurors: asked Are we we than him? soul. Are less for the man’s He forgave, prayed than him?” different he in which
Thereafter, argument, a short rebuttal the made prosecutor act the the “to as asking jurors Thirkell for “incredibl[y]” criticized angrily the in no related to way in this case that’s “make a decision and to Pope” not to “take from away Thirkell’s argument He characterized evidence.” to to abandon and emotional attempt get you but a shoddy God” as “nothing decision in this case based and not to make your duties as jurors sworn your to be The implored jurors and on the law.” prosecutor on the evidence evidence, “to do which means law and the justice, only by influenced what the law is for but one that’s warranted decision tough making of California.” in the state everyone what he described as a very Carr then Geoffrey began
Defense counsel remarks, Carr told the After some introductory brief surrebuttal. argument that, what the it was not to contrary argued, inappropriate jurors prosecutor their decision. them to consider in making under the law for sympathy Thereafter, having was about the of a injustice person as Carr arguing no witnesses to the incident defend an when against eight-year-old allegation accuser, an with could be other than prosecutor interrupted produced rebuttal. Carr that the was of clearly scope objection argument beyond went justice that his responded argument simply meaning Although asserted that the case law a broad of surrebuttal. scope supported overrule the it told Carr that “to the extent court appeared objection, in,” made the statement I will allow it but that “if it close to gets you’ve I won’t allow it.” going beyond, as
Carr continued his argument by injustice using, emphasizing factors, in convictions and stale incidents which had not resulted aggravating again as to which there had been failures of When the prosecutor proof. rebuttal, Carr again counsel was objected going beyond scope case was not so that the final statement to a in a jury capital responded but on the objection, limited. The court made no specific ruling prosecutor’s is After given.” it had as to whether “that other argument stated discretion cov- Thirkell had already adequately its belief that defense counsel stating remark the court nonetheless allowed Carr’s ered the area Carr was arguing, to remain. with which that the “last thing”
Carr then resumed his argument, stating feel them consider how they might he would leave the asking jurors *110 1184
about their decision 10 or 15 later. years The that the prosecutor objected went argument “way beyond of rebuttal.” scope This time the court sustained prosecutor’s Carr then stated: objection. “And the last I’ll thing ask is that it’s the you sort decision that one of can any you You stop. ‘Well, shouldn’t hide [l|] behind other folks and we all made say: this decision and therefore I can hide behind it like someone would in an ” execution.’ The court sustained the prosecutor’s objection on the same as before. When
grounds Carr asked whether he was foreclosed from being saying anything rebuttal, was not related to the directly prosecutor’s Carr, court stated: “Mr. if had been you foreclosed from that would have you been down now. You sitting may Carr proceed.” concluded immediately by “Don’t do it.” stating: excused,
After the were jurors defense counsel Carr stated on the record make, that he had further argument that he felt he had been unnecessarily foreclosed, and that he felt constrained the court’s The court ruling. Carr, “Mr. responded: the court is not for responsible your feeling court, constraint. The in the clear, made it clear that language, were you fully free to make capable, appropriate argument chose to make.” you
Defendant contends on that the trial court appeal erroneously foreclosed his surrebuttal argument, thereby constructively his con denying stitutional to counsel and right him of other depriving constitutional protec tions. We cannot agree.
It is firmly established that a criminal defendant
ahas constitutional
to have
right
counsel present closing argument to the trier of fact. (Herring
853,
v. New
(1975)
593,
York
422
597-601,
U.S.
856-862
L.Ed.2d
[45
95
2550];
S.Ct.
(1988)
v. Bonin
People
46 Cal.3d
694
Cal.Rptr.
[250
(Bonin);
758 P.2d
People
v. Cory
1217]
157
1105
Cal.App.3d
Nonetheless,
117].)
Cal.Rptr.
[204
it is
settled that a
equally
judge
criminal case “must be and is
latitude in
given great
the duration
controlling
limiting
York,
scope
summations.”
closing
v. New
(Herring
supra,
422
600];
U.S. at
p.
L.Ed.2d at
see
p.
[45
Cory, supra,
1105.)
The trial
Cal.App.3d
p.
has broad
judge
discretion to limit counsel
to a reasonable time and to terminate
when continuation
argument
would be
York,
repetitive
redundant.
(Herring New
Under the above the trial court did not abuse its First, discretion in defense limiting counsel Carr’s argument. contrary assertions, defendant’s the court did not foreclose improperly arguments “old, to dissuade the attempting from unreliable and jury using inadequately *111 life.” Since for to end deciding a basis [defendant’s] incidents as proved (in this area had covered emphasizing Thirkell adequately defense counsel killing in the Espinoza and its effect on witnesses that the of time passage incident, that for three of and in arguing and in the Jill M. rape circumstances, on witnesses who either relied prosecutor aggravating or had incidents had been concluded never came until the original forward its court acted well within witnesses), the not interviewed all the available of arguments by in to limit the redundancy presented discretion attempting York, at 422 U.S. at L.Ed.2d p. pp. Carr. v. New (Herring supra, Second, 600-601].) was not foreclosed from appeal the defense improperly and and their sense of abiding to the consciences compassion ing jurors’ before the court Not was Carr able to make several such appeals justice. only defense counsel Thirkell sustained the but finally prosecutor’s objections, conscience had been earlier to argue concepts compassion, permitted circumstances, no without limitation. Under these constitutional mercy and error or violation appears. Bonin, In
The situation here is
to that in
Here, Bonin, as in defendant’s to assistance of counsel was neither right denied nor limited since defense counsel Thirkell significantly presented full and unrestricted in addition to which defense counsel closing argument, sure, Carr surrebuttal To the court to limit be presented argument. sought Carr to matters raised on rebuttal that Carr was essentially upon determining But, in areas covered noted Thirkell. as arguing already by previously, Carr’s the issues of and of arguments regarding sympathy compassion, staleness and failure of were allowed to stand proof, despite prosecutor’s early objections.84
Defendant next that the trial court’s violated section argues rulings 1095, which “If the charged offense is provides pertinent part: punishable agreed closing argument 84Defendant asserts that his two defense counsel had to divide them, jurors’ stressing points appealing between with Thirkell fact-based and Carr to the claims, Thus, abiding justice. even if compassion consciences and sense of defendant unrestricted, argument entirely could not fill the void created Carr’s Thirkell’s it death, with two on each counsel side the cause.” He contends that may argue section, under this it was error for the court to restrict the of Carr’s scope to the content of the second argument prosecutor’s immediately preceding contention, Bonin, In of this argument. out that in support points 46 Cal.3d at we held that under section the trial court page should have allowed second defense counsel to even argue though waived rebuttal prosecutor argument Defendant claims that the altogether. error here was and that it violated his constitutional prejudicial, rights counsel, assistance of due and a fair determination. process penalty *112 First, No basis for reversal there was no violation of section appears. 1095 here because both of defendant’s counsel were in fact to permitted argue. Second, Bonin, even if 46 Cal.3d at supra, the page conclusion supports that section 1095 does not limit the surrebuttal scope permissible by rebuttal, second counsel to matters raised in the that case did prosecutor’s not that section suggest a trial court of its deprives discretionary power to limit made excessively repetitive arguments counsel. Nor do we so by hold in this case. Since the effect of the trial court’s was to foreclose rulings Carr from further making after others had duplicative arguments already allowed, been we find no violation and no statutory abuse of discretion.85
12. to Instruct on Doubt Lingering Refusal Defendant asked the trial court to the instruct as follows: “You are jury instructed that doubt that the defendant lingering committed the crimes for he which has been convicted of an amount or less than a reásonable type doubt is a factor that be considered may in which by you determining to as well in penalty as if impose factors determining aggravating outweigh instruction, factors.” The trial court mitigating refused to the give requested but the defense to to the permitted argue that it could use jury residual any doubt as a factor in lingering or as a reason not mitigation to impose death Defendant penalty. contends that the refusal to give his linger doubt instruction ing was error under California law and the federal Consti tution, and that such error him of his state and federal to due deprived rights trial, a fair process, cruel and protection against unusual punishment an protection against and unreliable death arbitrary We judgment. disagree. inability fully argument. agreement deliver his intended Because this is not found or record, event, otherwise described in the appeal. any we cannot consider it on In as we have shown, appeals jurors’ Thirkell himself had made several compassion, to the sense of appeals Carr’s to the same effect were allowed to on the remain record. brief, reply 85In his defendant claims in the alternative that he was denied effective assistance of if completed penalty arguments counsel Carr could have phase his intended Since, rulings view of the court’s among but chose not to because he misread situation. things, likely other argument nature and effect of Carr’s cannot be ascertained intended record, rejected from the appeal. claim is on have the constitutional no federal or state right
Defendant has clearly doubt about defend to consider residual instructed phase jury penalty Fauber, 1252; Johnson, v. People Cal.4th at (People supra, p. v. ant’s guilt. 864; Cox, 677.) at Cal.3d People supra, p. 2 Cal.4th at supra, p. Moreover, doubt refusal to defendant’s give lingering trial court’s Cox, error. amount reversible In did not otherwise instruction mandate, must the court statutory a matter of we observed “[a]s issue, to the if of law requested’ ‘on charge jury any points pertinent thus, [citations]; formulated lingering it be may required give properly (53 Cal.3d warranted evidence. by doubt instruction when [Citations.]” case, 20.) fn. In that the defendant’s we rejected proffered that the evaluate jury lingering instruction because it erroneously prescribed (Ibid.) for the doubt in a manner. sake of Assuming argument particular no infirmity, defendant’s instruction this case suffered similar proposed evidence, and that it was warranted we are still unable to conclude court’s The that the refusal to instruction caused give prejudice. proposed *113 was to the of record shows that the defense permitted argue concept properly Moreover, doubt to the and that it did so. lingering jury, jury consider, to if which extenu- instructed other circumstance applicable, “any even it not a for the legal ates of the crime is excuse gravity though crime, and or other of the defendant’s character or any sympathetic aspect death, which record to as for a sentence less than you basis appears or not he is must whether related to the offense for which on trial. You in the or innocence disregard any given instruction jury you guilt phase this trial which conflicts with this these instructions were Clearly principle.” doubt “sufficient of residual about defendant’s concept encompass therein; Price, 488, 1 (People v. Cal.4th at and cases cited guilt.” supra, p. Johnson, circumstances, 1252.) v. 3 Cal.4th Under these People supra, at p. we do not believe would had have derived additional benefit Fauber, been v. 2 Cal.4th (See instruction requested given. People supra, 864; Johnson, 1252.)86 at see also v. 3 Cal.4th at p. People supra, p.
13. to Instruct on Mercy Refusal The trial defendant’s are court refused to instruct the “You request jury: in the you instructed consider for the defendant or may mercy sympathy sense in which to the defendant.” general determining penalty apply Defendant this refusal of both law and contends was violative state Amendment and constituted error. reversible Eighth reasons, a reversal is disagree 86For the same we with additional claim that defendant’s (See People v. juror penalty phase. because in at the warranted an alternate was substituted Price, supra, juror penalty 1 at pp. [rejecting argument Cal.4th at substitution 488-489 sponte].) required give instructions sua phase court to various residual doubt 1188 we have such contentions before.
As defendant acknowledges, rejected 754, 827, (1990) v. Benson 52 Cal.3d 808 802 P.2d (People Cal.Rptr. [276 1148, 330]; 2 (1992) also McPeters Cal.4th see 1195 People [9 834, 146]; 1268, (1988) 832 People P.2d v. Williams 45 Cal.3d Cal.Rptr.2d 834, 221].) 1322 P.2d 756 Defendant no Cal.Rptr. provides persuasive [248 reason to reconsider our determination of issue. this
14. to Instruct Sentence Received Regarding by Cynthia Refusal Ontiveros
Defendant the court to instruct the “that in requested jury determining case, for the defendant in this appropriate punishment consider you may sentence received Ontiveros in return for her If by Cynthia testimony. you find that the of death imposition against Mr. is Rodrigues disproportionate to the sentence received Ontiveros must return a comparison by Cynthia you verdict of life without He that the possibility parole.”87 contends court’s refusal to do so constituted error and rendered the judgment death defective. We constitutionally disagree.
As defendant we have recognizes, rejected the contention that repeatedly must be instructed capital juries during consider penalty phase Danielson, sentences on a imposed defendant’s (People v. accomplices. 718; 115, People (1990) Cal.4th 52 Cal.3d Gallego [276 169]; 802 P.2d v. Johnson Cal.Rptr. 47 Cal.3d P.2d 1047].) “The focus in a Cal.Rptr. penalty phase *114 trial of a capital case is on character and record of the individual offender. The of negotiated an is not individually disposition accomplice constitutionally relevant to defendant’s determination.” v. penalty (People Johnson, 1249.) 47 supra, Cal.3d at p. asks
Defendant us to reconsider our in light Dugger of Parker v. position (1991) 731], U.S. 308 498 L.Ed.2d 111 a in which a S.Ct. case [112 introduce, defendant in Florida was capital to at an permitted advisory that hearing, evidence none of sentencing his had received accomplices (498 death 314 821-822].) U.S. at penalty. L.Ed.2d p. pp. According [112 defendant, Parker v. and various federal cases Dugger, supra, preceding it, are that his claim from dispositive jury improperly precluded Ontiveros’s considering accomplice sentence.
In
v.
P.2d
People Mincey
Cal.4th 408
Cal.Rptr.2d
388], we reviewed the
in Parker
determined
Dugger,
decision
v.
supra,
four-year
87According
closing argument,
to defense
counsel’s
Ontiveros received
sentence.
California was constitutionally required
adopt
did not
suggest
it
at the
of the sentences of accomplices
rule
consideration
allowing
Florida
claim that evidence of
(
We have reviewed of defendant’s arguments determined that none reversal of his death sentence. supports
15. Double Evidence Counting Espinoza Alleged evidence of defendant’s involvement in the During penalty phase, death of Ernest was identified to the as a factor shooting Espinoza jury (b) (c) under both factor of section aggravation and factor 190.3. Defendant to contend the trial court failed to appears erroneously factors, i.e., instruct the with to the the two regard distinct jury purposes violence, (b) that factor evidence shows for while defendant’s propensity (c) factor evidence unde shows defendant’s habitual has been criminality (See terred criminal sanctions. by community’s previous Melton, 764.) 44 Cal.3d at He also contends that when the evidence, he misled the twice prosecutor argued Espinoza jury by (c) the factor of the evidence. Defendant claims that emphasizing purpose the combination of the trial court’s error and the prosecutor’s improper resulted in the argument evidence jury’s “double-counting” Espinoza This, claims, as for a- demonstrating violence. he constituted propensity denial of his state and federal constitutional to due rights process reliable sentence. We cannot agree. with,
To the trial court did not err in an instruction begin failing give (b) (c) distinction between factors of section In the amplifying 190.3. defendant, of a absence a trial court under no give is request duty *115 an such instruction sua 46 sponte. (People v. Hamilton Cal.3d case, 1348].) 756 P.2d In this the of an Cal.Rptr. possibility 29, 1988, instruction was discussed on to the com amplifying April prior selection, mencement of when the trial court ruled that evidence of jury defendant’s trial conviction was admissible. At that the accessory point, court be defense counsel’s stated concerns that the acknowledged jury evidence, instructed on the but would address the told counsel properly they when issue it came time to decide instructions. When such time upon arrived, however, defense failed renew or to counsel his concerns press instruction, for an the never and issue discussed appropriate apparently circumstances, Under these the trial court had no such duty give again.88 instruction sua an sponte.
Defendant’s claim the fares no better. To regarding argument prosecutor’s extent is the that the made claiming prosecutor impermissible to the his failure to and to a misleading arguments jury, object request waives the curative admonition claim on (People Noguera, appeal. 638.) event, Cal.4th at In claim any the is without merit. We have the reviewed record have determined that the prosecutor’s argument factors, the two never that the clearly distinguished could suggested jury “double-count” the conduct incident. No violation of defend- underlying ant’s state or federal constitutional rights appears.
16. Instructions Consideration Regarding Unadjudicated of Offenses that,
Defendant contends even the trial court a though gave com version of CALJIC No. at the erred at the guilt 2.90 it plete phase, penalty to reinstruct “A a as follows: defendant in criminal action phase refusing is to be innocent In presumed until the is case of contrary proved. shown, an reasonable doubt whether the truth of allegation is satisfactorily ishe entitled to a of not This finding guilty. presumption places upon state the burden of the truth of a reasonable proving any allegation beyond 2.90, (See No. doubt.” CALJIC 1st Defendant claims this error violated par.) 1096; Code, 520), California (§ mandates Evid. and de statutory §§ him of his constitutional to due and reliable prived rights process penalty determination.
As defendant court acknowledges, trial had instructed the at the jurors on the of and the guilt phase innocence presumption prosecutor’s obligation beyond a reasonable doubt. chose not prove Although court to repeat those particular instructions it nevertheless told the penalty phase, to consider the jurors guilt instructions their phase during penalty phase deliberations, and furnished written instructions. copies guilt phase After listing unadjudicated offenses introduced prosecutor, court instructed the jurors that “before consider you such may criminal acts as an circumstance in aggravating you this case must first be satisfied a reasonable doubt that the defendant in fact beyond did commit (See 1988).) such criminal (5th acts.” CALJIC No. 8.87 ed. The court also 2.90, (See definition reasonable doubt. CALJIC No. 2d repeated par.) We find no for basis reversal. A court has no under duty statutory constitutional law instruct sua on the innocence sponte presumption *116 brief, suggests 88In opening appellate that the court volunteered defendant trial or drafting duty appropriate suggestion the an This otherwise undertook to assume of instruction. supported by is not the record.
1191 Benson, v. supra, at the phase. (People burden penalty and the prosecutorial 988, (1994) 7 Cal.4th 809-810; Kirkpatrick v. People 52 see Cal.3d at pp. to failed where court error 874 P.2d [no Cal.Rptr.2d 248] [30 innocence].) difference It makes no of on presumption reiterate instructions and was refused. that in such instructions requested this case When, here, evidence of unadjudi as the is instructed effectively jury standard, is no more doubt cated is to the reasonable subject offenses event, Cal.3d, we Benson, 810.) In any (People required. the earlier instruc to contradict the and found nothing have reviewed record of burden and the prosecutorial on of innocence tions the presumption those would assume conclude a reasonable jury we Consequently, proof.89 to continued apply.. instructions Discretion Instruction on Sentencing
17.
8.84.2,
the
which reflects
version of CALJIC No.
The court
the 1986
gave
Cal.Rptr.
v. Brown
40 Cal.3d
in
changes suggested
[220
Brown
on
sub nom.
grounds
709 P.2d
reversed
other
440]
California
837],
is
S.Ct.
as follows:
(1987)
order to make a determination as to the all twelve penalty jurors must agree. [1] Any verdict that you reach must be dated and signed by your foreman on returned, a form that will be and then shall be provided and then shall you (Italics return with it to this added.)90 courtroom.” Defendant claims that above italicized words rendered the instruction vague, However, misleading defective. constitutionally if defendant unclear, believed the instruction was he had the obligation clari- request (See Johnson, v. fying language. People supra, 53.) 6 Cal.4th at In p. any case, we have repeatedly rejected arguments identical to defendant’s (People v. 1244-1245; Sully, 53 Cal.3d at supra, (1991) pp. People v. Nicolaus 551, 628, Cal.3d 893]; 590-591 817 P.2d Cal.Rptr. [286 see also v. People Wader, 662-663; 5 Cal.4th supra, at (1991) v. pp. People Breaux 1 Cal.4th 281, 81, 315-316 585]), P.2d Cal.Rptr.2d [3 decline to reconsider our determinations.
Defendant next claims that the trial court erred in to instruct failing that even no evidence in mitigation was found, the circumstances in if if were aggravation to outweigh those in mitigation, jury nevertheless found had discretion to life without impose it parole determined that such a if sentence was the appropriate under penalty (See all the circumstances. 955, (1991) v. Duncan 53 Cal.3d 810 P.2d Cal.Rptr. [jury determine “even in may 131] the absence of evidence” that mitigating evidence is aggravating insubstantial].) In particular, com that the plains instructions in given this case were and led ato inadequate flawed constitutionally (1) result because: their that there wording required be some evidence in as a mitigation for a sentence prerequisite less imposing death; than (2) they that such evidence presupposed was introduced at the penalty We phase. disagree.
Defendant’s failure to such request clarifications at trial bars appellate review Johnson, of the issue. (People 52.) 6 Cal.4th at In p. event, no error We appears. concluded that a recently trial court did not err failing give similar substantially where clarifications it instructed the jury pursuant instructions identical (former to those here given CALJIC 8.84.2). No. instructions, Under such reasonable would juror assume “[n]o he or she was required death impose insubstantial despite aggravating circumstances, because no merely mitigating circumstances were found to (6 52; exist.” Cal.4th cf. People Raley Cal.4th 921 [8 Thus, 712].) 830 P.2d Cal.Rptr.2d the trial court in this case adequately informed the jury its sentencing No more was responsibilities. required. (See 90Former CALJIC No. 8.84.2 was renumbered as CALJIC No. 8.88 1989. com. to (5th CALJIC pocket pt.).) No. 8.88 ed. 1993
1193 Question to Jury 18. Response deliberations, a sent the court note the jury the
During penalty phase Does the on the instructions. “Can we a clarification stating: have please [^J which choice is made? have to be no matter jury unanimous on the penalty would then?” The And if the be what happen not to unanimous jury happens the the of jury, court discussed the sides outside presence matter with both responses. the with defense counsel’s agreed suggested prosecutor that the the the court informed the jury Pursuant to agreement, parties’ to the its second to its first and that answer question “yes,” answer was, a matter are that That is eventuality. not to on “you speculate question any must not in affect decision.” way your which contends, his counsel’s suggestion Defendant now despite express below, to the second question that the trial court’s contrary response to the in a of his federal constitu 113891and resulted violated section deprivation a reliable by penalty tional due fair trial rights process, jury should have advised the jurors He claims that the court instead judgment. if unanimous verdict the truthfully penalty that were unable reach a they was not to would be retried another but that such matter jury, issue concern them. both and con-
We are not Inasmuch as defendant suggested persuaded. court, has been to the the the claim of error sented responses given by (See v. 53 847 Cal.Rptr. waived. Cal.3d People Cooper Moreover, 865].) P.2d the is merit. The trial court “is 809 claim devoid of not to ‘educate the on the consequences possible required jury legal Morris, 227; (Ibid:, v. Cal.3d at deadlock.’ People supra, p. [Citation.]” Belmontes, 814.) We have Cal.3d at supra, p. previously cautioned that retrials in informing jury subsequent possibility confusing the event of a deadlock “would have the for unduly potential determi- in their role and function jury penalty misguiding proper are that their nation instructed process. Penalty phase juries presently proper task is to decide between a sentence of death and life without possibility herein could well further instruction the lines Any along suggested parole. serve to or in the obligation jurors’ eyes. [Citations.]” lessen diminish Belmontes, omitted.) fn. Accordingly, Cal.3d (People what court jury defendant was not entitled to have the trial explain deliberation, if be for there provides: jury 91Section 1138 “After have retired any point on testimony, they as desire to be informed disagreement between them to the or if case, Upon into court. to conduct them arising they require of law in the must officer of, court, given presence in the after being required must be brought into information counsel, to, they have been or his or after prosecuting attorney, and the defendant notice called.” deadlock,
would in the event of a happen and defense counsel was not ineffective for failing such a urge response.92
Defendant seeks to the trial court’s failure to equate advise the jurors if were they unable to reach a unanimous verdict the issue would be penalty *119 retried another by with the jury situation in Simmons v. South Carolina _ (1994) 133, 512 2187], U.S. L.Ed.2d 114 S.Ct. in [129 which the United States Court reversed a death Supreme judgment because of the trial court’s refusal to instruct that of a life sentence on the imposition defendant would Here, be life without The parole. situations are not similar. not advising that the case would be jury retried did not create a “false choice” between the death impossing or penalty defendant to a sentencing limited term of (id. incarceration at 141]), p._[129 L.Ed.2d at or have p. the effect of defendant allowing to be sentenced to death on the basis of information which he had no (id. or opportunity at at explain deny p__[129 L.Ed.2d 143]). p.
19. 1978 Capital Sentencing Scheme Defendant that the argues scheme under sentencing California’s 1978 death law is penalty constitutionally flawed a number of We have ways. claims, identical repeatedly rejected as follows.
Neither the 1978 law nor the instructions given this case are defective for to make failing express distinctions between aggravating mitigating 215, circumstances. (People (1993) v. Wash 6 Cal.4th 271 Cal.Rptr.2d [24 421, 1107]; Clark, 861 P.2d 1040; v. People 5 Cal.4th at supra, v. p. People Montiel, 943.) 5 Cal.4th supra, at The p. 1978 law is not unconstitutional insofar as it which permits has jury decided a already defendant’s guilt determine, on the issue of whether the penalty, defendant committed alleged prior criminal acts to be Pride, considered in v. aggravation. (People supra, 252-253; 3 Balderas, Cal.4th at pp. v. People 41 Cal.3d at supra, pp. 204-205; Hawthorne, see also 77.) v. 4 People Cal.4th at There supra, is p. no constitutional that requirement in a in jury case must be capital structed that it must find a reasonable doubt that unanimously beyond the aggravating circumstances outweigh circumstances and mitigating Wash, death is the appropriate v. Cal.4th at penalty. (People supra, 6 pp. 271-272; Clark, 1040; Montiel, v. People 5 supra, Cal.4th at v. People p. 5 supra, 943.) Cal.4th at Nor is there a p. constitutional requirement jury speculates jurors might 92Defendant that the by have been influenced incorrect beliefs to change their votes in thereby “preempt” order to avoid a deadlock and an undesired result. 502, People conjecture (See Such v. Bell provides no basis for relief. Cal.3d 49 129].) 552-553 Cal.Rptr. 778 P.2d [262
1195
of the
allegations
truth of the
or
on the
unanimous
separate,
either
findings,
(Ibid.)
also no constitutional require
There is
crimes.
unadjudicated
prior
relied
factors and reasons
sentencing
record be maintained
ment
Moreover,
(Ibid.)
of the death
in its
penalty.
on
imposition
jury
of the benefits of
law does not deprive
death penalty
due
(c)) in violation of
(see §1170,
Act
subd.
Sentencing
Determinate
(1990) 51 Cal.3d
v. Medina
(People
and equal protection.
process
Clark,
1282];
supra,
People
P.2d
see also
Cal.Rptr.
Marshall,
1041;
945.) Defend
50 Cal.3d at
p.
Cal.4th
us
reconsider
these issues.
fail
arguments
ant’s
persuade
(a) of section
is impermis
also claims that factor
190.3
Defendant
Amendment to the federal Constitution
under
vague
Eighth
sibly
*120
(1992)
Additionally, reject circumstances” cumstances of the crime” and “the existence of any special a creates the factors which a use sentence among may aggravate jury of his constitutional in favor of death in violation bias presumption finds, it based on The cannot return a death verdict unless rights. jury of the of the circumstances and the totality mitigating totality aggravating circumstances, evidence is so substantial in comparison aggravating instead of life it warrants death with circumstances that mitigating Johnson, 52.) Conse- 6 Cal.4th at (See p. without v. parole. People supra, factors aggravation matters as challenged mere inclusion quently, of death. in favor for the creates no bias or presumption consideration jury’s we decline defendant’s Finally, request compare his sentence to those of his or to those other accomplices, defendants in cases involving killing of a single person during burglary Such attempted robbery. review Constitution, is not under the federal required and defendant fails set forth compelling reasoning authority of such review. support Marshall, (People 946; v. 50 Cal.3d at supra, see also v. p. People Mayfield, 196; supra, Cal.4th Livaditis 2 Cal.4th 786 [9 297].) Cal.Rptr.2d P.2d In view of the brutal nature of defendant’s crimes, and his violent and we do incorrigible history, not his death perceive sentence to be “so that it disproportionate shocks conscience and offends fundamental notions of human Livaditis, dignity. (People [Citations.]” 2 Cal.4th 786.) at p.
20. Automatic Motion Death Verdict for Modification of 190.4,
“Under section (e), subdivision is capital deemed to have for a automatically applied sentence modification. In ruling on the the trial application, must judge the evidence independently reweigh aggravating whether, mitigating circumstances and determine in the judge’s independent judgment, of the evidence weight supports jury verdict. The must also state judge [Citation.] on the record die reasons for *121 the ruling. (People Mincey, 477.) (72) Cal.4th at [Citation.]” court, Defendant contends that the trial his motion for modifica denying tion, committed four errors which in turn violated his constitutional rights.
First, defendant claims that the trial court’s statement of reasons indicates that it committed error the by absence of a treating particular mitigating factor as an (See factor. aggravating (1985) 41 Cal.3d Davenport 861].) 710 P.2d Cal.Rptr. In each of the reviewing factors the statutory trial court referred to the absence of evidence of section 190.3, (d), (e), (f), factors (h) and (g), but did (j), not that that suggest absence was itself however, When (i), factor aggravating. the discussing court stated that the and, of defendant age “is not a factor mitigating therefore, is not relevant to the determination of this motion.” Defendant asserts that because no similar of irrelevance was made with “finding” above, to the regard other factors listed the court must have found implicitly and considered the absence of such factors to be We do not aggravating. agree.
The court’s brief comment does not defendant’s con- support speculative tention. The record makes clear that the court was not treat the urged Moreover, absence of factor as an factor. mitigating defense aggravating counsel’s failure to make the relevant objection our conclusion that supports construed, statements, reasonably whole and when taken as a court’s factors were neutral. that some of the its determination reflected
simply motion, the trial court Second, his that in denying defendant claims 1, 1981, and incident at Susanville arson considered the January improperly 2, 1984, Leo because Rodriguez threats to incident involving November “the nor involved use constituted “criminal activity” those incidents neither threat to . or implied use force or violence or . . express of attempted 190.3, (b). factor under section required use force or violence” as considered, the record Even the above evidence was improperly assuming was In denying that defendant not prejudiced. as a whole demonstrates motion, the heinous nature of the defendant’s the trial court emphasized of murder were savage crime: “the circumstances underlying particularly and callousness cruelty, brutal and reflected a viciousness high degree and that “the evidence that on the of the defendant.” The court determined part times, with the ultimate death by the victim was stabbed over coupled violence, blood, reflects extreme and and gratuitous presents strong loss evidence, factor in The court also reviewed the evaluated aggravation.” and found a reasonable doubt that beyond witnesses credibility defendant committed each of other criminal offenses introduced eight had an accessory and that he been convicted of being prosecutor, murder, and of theft. the court found Finally, auto burglary although such as some evidence in the record of factors defendant’s mitigating childhood home life with members relationships family neigh borhood it nonetheless concluded that the evidence in aggravation peers, of deci overwhelming and substantial Since statement by comparison. sion makes that the trial court did not deem issue apparent penalty one, be close no remand is warranted. v. Daniels 52 Cal.3d (People *122 906].) the P.2d is inconceivable that It Cal.Rptr. have of the verdict court would been moved to a modification death grant of of had evidence the threat and evidence the Susanville fire Rodriguez incident been withdrawn from consideration.
Third, defendant claims the trial court considered erroneously in matter as a conviction conviction for the felony accessory Espinoza prior However, the of to murder. it is doubtful extremely for crime accessory court, was trial a doubt that defendant beyond the found reasonable having have arrived at a differ- for would killing, criminally responsible Espinoza’s characterized. ent conclusion had the conviction been otherwise Fourth, that, found the trial court expressly defendant although complains corroborated adequately Ontiveros’s testimony that accomplice Cynthia verdicts, with to the it made no with respect finding such to the guilt respect circumstance He lack of asserts that the eviden- special allegations. specific on the circumstances the tiary findings reflects court’s special ignorance facts, the law and and that due applicable to this the court did not ignorance, 190.4, (e) section determine under subdivision whether the adequately jury’s on the findings circumstance to special contrary were the law or the findings evidence presented.
We find in the record that nothing supports defendant’s reasonably assign- ment of error. The trial court found “the evidence explicitly concerning circumstances; wit, truth that the defendant special committed murder aof be during commission and an burglary, attempted robbery verdicts, . . .” It further found “that overwhelming. jury’s finding defendant in of murder guilty commission of and burglary attempted doubt, robbery, be evidence a reasonable and be supported beyond neither to the evidence nor the After contrary law.” reviewed the having record, we conclude that evidence more than adequately supports verdict that killed jury’s Juan Barragan during commission and burglary and find trial court robbery, that the attempted independently and reached the same conclusion on correctly defendant’s modi- passing fication motion.
21. Errors Alleged Effect of Defendant claims that various asserted statutory constitutional violations, combination, both and in denied him due singly process undermined the of the death Whether verdict. or not reliability expressly discussed, we have considered and without rejected being as merit all Mickle, (See 197.) these claims. 54 Cal.3d at
III. Disposition above, For the reasons stated we find no error in the reversible record. The of death judgment is affirmed its entirety.
Lucas, J., Kennard, J., Arabian, J., J., J., C. George, Werdegar, concurred.
MOSK, J., and I concurin the Concurring Dissenting. judgment as review, death and After no error guilt, eligibility, noncapital sentence. other defect is evident reversal or on of these issues. vacation requiring dissent, however,
I from as to the sentence of death. I would judgment set aside that unreliable Amendment to the Eighth as under the penalty
1199 I, 17 the California Consti- and article section of States Constitution United the available evidence counsel introduced none of because defendant’s tution circum- aggravating It is the of sentencer duty weigh in mitigation.1 it when it is circumstances. How can do so presented and mitigating stances situation, which obtains with latter? In with the former but not such here, skewed in favor of death. scale automatically, arbitrarily, is for denied
The
were
rehearing
of both respondent
appellant
petitions
16, 1995,
read
above.
was modified to
as printed
February
opinion
Mosk, J., was
should be granted.
of
opinion
petitions
174,
1017,
(1993)
P.2d
People
Stansbury
Cal.Rptr.2d
1See
v.
4 Cal.4th
846
756]
1074 [17
Mosk, J.),
Stansbury
(conc.
grounds
opn.
dis.
of
on
sub nom.
v.
&
reversed
other
California
_
495,
293,
(1992)
(1994)
1526]; People
3 Cal.4th
U.S.
114 S.Ct.
v.
511
L.Ed.2d
Diaz
[128
Mosk,
353,
(conc.
J.); People v. Howard
Cal.Rptr.2d
opn.
&
of
577
834 P.2d
dis.
[11
1171]
Mosk,
1132,
268,
(conc.
(1992)
opn.
dis.
of
Cal.Rptr.2d
824
&
1315]
1 Cal.4th
P.2d
[5
1197
(dis.
471,
537,
J.);
(1990)
P.2d
People
Cal.Rptr.
561]
Sanders
Cal.3d
531-533 [273
386,
Mosk,
991,
(1989)
Cal.Rptr.
J.);
Lang
opn.
1059-1062 [264
49 Cal.3d
1127,
Mosk,
(1988)
(conc.
J.);
44 Cal.3d
opn.
People v. Williams
P.2d
& dis.
see also
627]
Mosk,
J.);
(conc.
People v. Deere
opn.
Cal.Rptr.
& dis.
1158-1061
P.2d
901]
Cal.Rptr.
41 Cal.3d