People v. Salazar

S077524. May [No. 2016.] PEOPLE,

THE Plaintiff and Respondent, SALAZAR,

MAGDALENO Defendant and Appellant.

Cоunsel Hersek, Defender, Michael J. State Public under appointment by Supreme Court, McGuire, Defender, Jessica K. Assistant State Public Jobe S. Lipsig Defenders; and Ellen J. State Public James S. Thomson and Eggers, Deputy Nicholas J. for Defendant and Seymour Appellant. Harris, General,

Kamala D. Dane R. Gillette and Gerald A. Attorney Engler, General, Winters, Chief Assistant Lance E. Assistant Attorneys Attorney General, Lee, Smith, P Jaime L. Fuster and M. Joseph Ryan Deputy Attorneys General, for Plaintiff and Respondent.

Opinion

CORRIGAN, convicted defendant Salazar of the first A jury Magdaleno J. Guevara, murder of with use of a firearm.1 Defend degree Enrique personal ant admitted the truth of a circumstance that he had a special allegation prior trial, death, murder conviction. After a returned a verdict of penalty jury and the court that sentence. We affirm the its imposed judgment entirety.

I. FACTS A. Guilt Phase

1. Prosecution 25, 1993, Around 2:30 a.m. on Mendez and her friend July Kathy Cynthia defendant, Bonilla were at a Jack the Box restaurant. met whom They Echeverría, Mendez knew as whom she knew as “Rascal.” “Toy,” Enrique Mendez, defendant, and Echeverría were all members of the Harpys gang, based southwest Los Defendant drove the four of them to another Angeles. restaurant, Bowl, Beef at the corner of and 30th Yoshinoya Figueroa Streets. The Beef Bowl was on the and was fringe Harpys territory, sometimes members of other frequented by gangs.

Mendez, defendant, and Echeverría were the members only Harpys gang in the Beef Bowl. Defendant was a white shirt and Echeverría present wearing a black one. Mendez heard the men needed to “take care of the say they 12022.5, (a) (a). unspecified Penal Code sections subdivision subdivision Further statutory references are to the Penal Code. (a)(1) finding principal also made a under section subdivision that a was aimed with a firearm when the murder was committed. and should not be This meant intended

neighborhood,” “caught slipping.” they to control the Beef Bowl as and not be unaware rival gang territory, caught members. gang

Two other customers testified that were the Beef Bowl they approached from, that and “hit members where were a night up” by gang asking they way their identification. Arnold Lemus said he was with seeking gang eating two friends when “some came over and hit us The man guys up.” doing him was a white shirt. Lemus told that he and his friends talking wearing crew,” were a a out and went to “party meaning group hung together “thrjew] The man the white shirt out” the name to which parties. “Harpys,” cool, I Lemus “it was because didn’t have responded nothing against nobody Salazar, like that.” Juan one of Lemus’s had remem- companions, difficulty events, In on the witness stand. a statement to at the time of the bering police he had said that one of the who them was a white people approached wearing trial, shirt and looked like a member. At he recalled that one of the gang from,” men “hit “where we “what up,” asking meaning neighbor- [Lemus] from, hood are what you gang.” customers,

While Mendez waited a line of defendant and Echeverría left the restaurant and stood outside. As the door Mendez heard just opened, “cuete,” defendant tell Echeverría to a term for a get slang gun. Echeverría retrieved from the car and it his waistband. something put shirtless, Mendez then saw a man walk the Beef Bowl. He was had a past cast on his and to Mendez he looked like a member. Defendant and leg, gang Echeverría confronted this man front of the Beef Bowl and began with him. The front of the restaurant was from floor to wrestling glass Mendez heard and saw defendant the direction ceiling. gunshots, shooting door, of the cafe next the Au Rendezvous. She threw herself to the floor. shots,” There were “a lot of or nine. maybe eight When the Mendez went outside. Defendant was half- shooting stopped, Echeverría toward the car. of blood marked their carrying Drops path. Defendant was what looked like a nine-millimeter He holding pistol. helped Rendezvous, Echeverría into the car and drove Mendez went into the Au away. where the man with the cast on his was face down. There was a lot of leg lying blood. outside,

Emilio Antelo was the Beef Bowl He was security guard. standing Rendezvous, between the Beef Bowl and the Au when a car pulled up A out and entered the Beef Bowl. As the parked. teenaged passenger got him driver Antelo because Beef Bowl approached, prepared stop policy sound,” customers to wear shirts. Antelo then heard a “metallic required turnеd, and saw a man walked Antelo and cocking pistol. gunman past cocked, toward the shirtless man. Antelo heard another and saw a pistol being man, second the shirtless who to be unarmed. gunman approach appeared All Both were semiautomatic three men were The guns pistols. Hispanic. man, said to the other which Antelo could not understand. gunmen something Bowl, Antelo went inside the Beef and heard When the gunfire. shooting outside, he told the cook to call the went and saw the stopped, police, shirtless man on the ground. Turner,

A third Patrick was the Beef Bowl on his eyewitness, walking past events; to the Au Rendezvous. Turner had the way great difficulty recalling most of his was reconstructed from his statement to at the testimony police scene. He saw a small car drive went into the up park. passenger Bowl, men, Beef but the driver was confronted two one a white by wearing him, I shirt and the other a black one. asked “don’t know from They you somewhere?” The three wrestled with began “arguing scuffling.” They other, each into the Au Rendezvous. The man the black shirt stood moving white, the He and the man who was then doorway shooting. limping, went to a car and drove off. The black-shirted man was the driver’s seat. cousin, Guevara, The victim was Guevara. His Giovanni was with Enrique him on the but had succumbed to a fatal disease the night shooting time of trial. The that Giovanni would have testified as parties stipulated Bowl, follows: When he and his cousin went to the Beef was not Enrique a shirt and had a cast on his the car front of wearing leg. Enrique parked Bowl, the Au Rendezvous. As Giovanni entered the Beef he saw “two Moments later he heard but did not see gangster-looking guys.” gunshots, who was He was told his cousin had been shot to death. shooting. member,

Sabino testified that around 3:00 on the Nungaray, Harpys gang him defendant knocked on his door and told that morning question, Echeverría had been shot. went with them to a As he Nungaray hospital. Echeverría into the defendant drove helped building, away. recovered,

Fifteen bullet were both inside and outside the Au casings nine-millimeter, Rendezvous. Twelve were fired from the same and three gun, caliber, were .25 fired from another Guevara had been shot nine weapon. times, chest, back, shoulders, head, in the of both the back of the tops neck, arm, forearm, the back of the and the hand. There was no upper wounds, soot or around the were inflicted from a stippling indicating distance of than two feet. Three of the bullet recovered greater fragments from Guevara’s were from a nine-millimeter Six others could body weapon. not be a caliber. assigned

2. Defense Echeverría testified for the defense. He told the that he had shot and Guevara, killed had been convicted of the and was killing, currently prison. He said he and defendant were outside the Beef Bowl when a car standing drove The were us down” and “looked like by. occupants “staring gang- car, automatic, Echeverría went to his retrieved a nine-millimeter bangers.” it, cocked and it his waistband. The other car and the placed parked, him went into the Beef Bowl. Defendant followed inside. The passenger shirtless, driver to be “under the influence.” He emerged, appeared a .25-caliber automatic and said to Echeverría produced something including “Trece,” the word which Echeverría took as a reference. Then the man gang began shooting.

Echeverría said he was shot three times. As he reached for his his gun, him assailant came closer and shot three more times. Echeverría grappled with the man and fired all rounds his as the two wrestled. clip Echeverría fell on of his attacker the Au Rendezvous. Defendant top him to the car. Echeverría had his which appeared helped dropped gun, house, defendant retrieved. Defendant drove to then to the Nungaray’s hospital.

A defense testified that an interview the investigator during prosecutor’s trial, office before Mendez had said she did not see shortly Kathy actually Someone else had told her who was On anyone firing gun. shooting. cross-examination, the that Mendez said this investigator acknowledged before she was able to review her earlier statements. Mendez then acknowl- that her of the events had been better when she those edged memory gave statements.

The that Guevara had residue on his parties stipulated gunshot particles hands. Defendant admitted the circumstance that he had а special allegation conviction of first murder. prior degree

B. Phase Penalty

1. Prosecution The district who defendant for the murder deputy attorney prosecuted prior testified about the circumstances of that crime. Defendant and two fellow were friends when saw a leave the Harpys visiting neighbor apartment he be a dealer who had decided building. Believing might drug money, they him to rob when he returned. The victim was shot and killed the hallway. abettor, was that defendant was an aider and theory prosecution not the shooter.

Guevara’s mother and sister testified about the his death had on impact them.

2. Defense sister, friend, Defendant’s mother and and a testified on his longtime nature, behalf. His about his affectionate and their family spoke attempts him from with members. Defendant’s friend said he keep associating gang had counseled her to from her life. stay away gangs, helped change

II. DISCUSSION A. Pretrial Issues

1. Use Juvenile Murder Conviction as a Special Circumstance murder, Defendant was 17 old when he committed the but years prior was tried and convicted as an adult. He contends the Amendment Eighth barred the from that conviction as a circum prosecution alleging special stance, because he was a at the time of the crime. Defendant juvenile concedes his brief that violent conduct opening prior juvenile, murder, is considered at the as an including properly penalty phase aggravat 96, (2011) circumstance. v. Bivert 52 Cal.4th 122-123 ing (People [127 261, However, (Bivert), cited.)2 254 P.3d and cases therein Cal.Rptr.3d 300] 190.2, he notes that the circumstance section subdivision special provided by 190.3, (a)(2) is different from the factor section factor aggravating provided by (b). The circumstance serves the function of special narrowing determining for the death whereas the factor allows eligibility penalty, aggravating consideration of criminal as of an individualized prior activity part penalty 457, (1993) determination. v. 6 Cal.4th 468-469 (People Bacigalupo [24 808].) Defendant asks us to Amendment’s ban on apply Eighth imposing death for crimes committed established penalty by juveniles, Roper 1183], (2005) Simmons 543 U.S. 551 L.Ed.2d 125 S.Ct. to preclude [161 the state from the death on the basis of a crime seeking penalty “solely [he] committed while still a minor.”3 The flaw this is that defendant argument brief, Fifth, supplemental argues Eighth, In a defendant that and Fourteenth juvenile aggravating Amendments haired the use of his conviction as an circumstance. We claim, (Bivert, long rejected persuade have and defendant fails to us to alter our view. Defendant also cites Graham v. Florida 560 U.S. 48 L.Ed.2d 130 S.Ct. and, supplemental in a Miller v. Alabama 567 U.S. 460 L.Ed.2d 2011] brief. did not face the death as for the crime he committed as a penalty punishment adult, He faced that for Guevara when he was an juvenile. penalty murdering Bivert, (Cf. suffered a murder conviction. 52 Cal.4th at having prior supra, noted, Simmons, 123.) “As we have v. 543 U.S. p. previously Roper 551, to the for offenses . . . .” spoke only question punishment juvenile (Bivert, at v. Bramit 46 Cal.4th p. citing People 1171].) 210 P.3d Defendant no for the Cal.Rptr.3d provides authority that it is unconstitutional to base a circumstance on a proposition special prior conviction for a murder committed as a Adults who commit first juvenile. conviction, murder murder whether or not degree despite having previous offense occurred when were are a distinct subclass of prior juveniles, murderers that can “with be classified the worst offenders.” reliability among 569; 543 U.S. at see v. 6 Cal.4th (Roper, supra, p. People Bacigalupo, supra, 467-468.) at pp.

Furthermore, defendant offers no reason it should be persuasive why constitutional for a to consider a murder committed as a for the jury juvenile determination, of its but unconstitutional for the state to purpose penalty include convictions for such murders the prior-murder-conviction special circumstance. It is true that circumstances and factors special aggravating scheme, serve different functions our but neither instance is the capital instances, In defendant for misconduct. both being punished juvenile past one, conduct serves as a consideration: a as a guiding prelintinary circumstance death for a murder committed as special determining eligibility adult, one, an and an ultimate as an factor to be aggravating weighed In final determination of the for that murder. v. appropriate penalty 643], Pride 3 Cal.4th 195 we noted that an factor on a conviction for a committed as a bаsing aggravating felony Rather, did not amount to added for the crime. juvenile punishment prior was allowed to the fact that the defendant committed the properly weigh 257.) crime undeterred his conviction. at capital prior p. {Id. conclude, It does not violate the Amendment for the Eighth Legislature as a matter of that an adult who murdered as a failed to learn policy, juvenile, from that and killed is a “within the narrowed experience, yet again, person class of murderers for whom death would be an appropriate penalty.” is not (People Bacigalupo, supra, punishment offense, adult, for the but for the crime committed as an imposed juvenile considered of the defendant’s criminal light history. Graham, 2455], juveniles 132 S.Ct. In the court held that who commit nonhomicide offenses Miller, constitutionally possibility parole. cannot be sentenced to life without In the court regard by juveniles.

reached the same conclusion with to murders committed Neither case adults, permissible punishment prior juvenile addresses the for or the use of convictions as special circumstances. 190.2, (a)(2) Defendant that section subdivision creates an argues and unreliable distinction” between two classes of adult ‘“unsupportable defendants who have committed murder as those capital previously juveniles: in whose murders were tried court and those whose prior juvenile prior However, in murders were tried court. he fails to this superior support equal claim with a the classification affects protection showing similarly (See situated Court 27 Cal.4th groups. Manduley Superior 168, 41 P.3d do Cal.Rptr.2d (Manduley).) Equal protection principles 3] not foreclose the from that those who commit a Legislature concluding in crime after convicted of a murder court are capital being juvenile superior in more than those whose murder was culpable prior adjudicated juvenile court.

Defendant also contends that the use of murder convictions juvenile as circumstances violates the Amendment and the constitu special Eighth tional of due and because California’s guarantees process equal protection transfer courts to exercise juvenile policies permit prosecutors juvenile in discretion over which homicides result murder convictions instead arbitrary conviction, of court At the time of defendant’s juvenile adjudications. prior law, he was unfit for treatment under the court due to presumptively juvenile (See the ‍‌​‌​‌​‌​​​‌‌‌​​​‌‌‌‌​​‌​​​​​​​‌‌‌‌​​​​​​‌​​​​​​‌‍serious nature of the crime. charged Manduley, supra, 548-549.) In in the pp. Manduley, reviewing subsequent changes governing statutes that broadened the circumstances which minors over the age adults, can be as and increased the discretion of to file prosecuted prosecutors such we held that the violated neither due proceedings, expanded procedures (Id. 562-573.) nor at Our process equal protection principles. pp. reasoning with even force to the when defendant was applies greater policies place as a prosecuted juvenile.

Defendant seeks to on the basis that it distinguish Manduley says about the transfer nothing constitutionality juvenile procedures context of a defendant for the death He claims that rendering eligible penalty. because a for treatment and juvenile’s culpability, maturity, capacity consideration as an adult are not considered the transfer individually conviction not serve as a process, resulting may constitutionally special circumstance. We are not circumstance persuaded. prior-murder special conviction, does not turn on the but on the procedures underlying prior of the conduct that is the of that conviction. gravity necessary predicate In v. Trevino 26 Cal.4th 237 283], we held that a murder committed Texas when the defendant prior was 15 old was a basis for a circumstance even years proper special finding, the defendant could not have been as an adult California though prosecuted 190.2, at the time of that murder. We noted that under section subdivision conduct, (a)(2), “the focus is on the not the or other characteris age personal in tics of the who that conduct. It is the and not person engaged offense, offender, the that must . . . necessarily satisfy statutory requirements “ 241.) (Trevino, at Trevino the idea that time the p. rejected ‘every prosecu tion a murder conviction from a the trial court allege foreign jurisdiction, [s] must determine whether the ascertainment of that guilt procedures jurisdiction ” (Id. in afforded the same as those California.’ at procedural protections v. Andrews 49 Cal.3d p. quoting People Cal.Rptr. 285].) “Because the of the offender is not an element of age law, first or second murder under California the degree prior-murder special in circumstance be based on a conviction another for a crime may jurisdiction for which the defendant could not have been tried as an adult California.” (Trevino, at p.

Thus, the for as adults have no on procedures trying juveniles bearing circumstance, whether a murder conviction as a so prior qualifies special long (See as there is no constitutional the themselves. infirmity procedures claim that Manduley, supra, [rejecting prosecutorial clause].) discretion as adults violates charging juveniles equal protection court’s Amendment on for crimes high Eighth jurisprudence punishment committed does not to the circum by juveniles speak question special stances for crimes commit later as adults. When a murder committed they conviction, a results an adult criminal there is no juvenile legal proscrip if tion the use of that conviction as a circumstance against special defendant murders a second victim after reaching age majority.

2. Voir Dire Adequacy of

a. Background At an the court early stage pretrial proceedings, brought up of voir dire. Defense counsel said he had a “unless subject questionnaire, you have own like to use.” The court that the absence of your you replied it did not find It had pretrial publicity, questionnaires especially helpful. “done it both but told counsel it was inclined to do the ways,” questioning itself. The court invited counsel to watch it conduct such an oral voir dire case, if an could review the were upcoming adding transcript they unable to attend. At a the court reaffirmed that it would subsequent hearing, stated, fine,” handle the voir dire. Defense counsel “that is and noted that he had sent the court a that it want to take a look at.” questionnaire “might said, “I Counsel am not but ... it strongly advocating questionnaire, might be The case was continued for further discussions. helpful.” pretrial later,

Several weeks the court circum- proposed bifurcating special If stance from the rest of the defendant were to be question guilt phase. convicted, the circumstance would be tried at a second For special phase. dire, voir the would be informed of purposes death-qualification jury defendant, the and told there was a circumstance charges against special but the nature of that would not be The court allegation, allegation specified. this was the fairest to “minimize to defend- thought way potential prejudice” ant. Defense counsel The court then described some detail the agreed. dire, if manner which it would conduct voir and asked counsel there were wanted the court to It said it would be any particular topics they explore. to consider submitted. happy any questions they Defense counsel to the objected questioning prospective jurors presence of the other The court observed that “the law has been as panelists. changed, know,” said, well, “if I and feel it’s not then we’ll reconsider. But you going I’m comfortable we can do it that Counsel maintained his way.” objection, the he had submitted. The court said it would brought up questionnaire review the “for but was not inclined questionnaire any particular questions,” to ask the to it. Counsel an jurors complete lodged objection. selection on 1999. The court excused some

Jury began January witnesses, for of or close ties to law panelists hardship, personal knowledge clear, detailed, enforcement. It the candidates a and conversa- gave remaining tional of the voir dire and the followed explanation process procedures cases. It the of who could be capital emphasized importance finding jurors It the to true and impartial objective. urged panelists give complete answers, if them that wanted to discuss an answer telling privately they could do so at side bar. The court said the most was for them important thing think,” to “tell us what not “what think we want to hear. There are you you I no answers to the that am to bе this right questions going asking you It added that it was that we learn what’s on morning.” “important your mind,” and advised the not to be affected the answers of others. panelists innocence,

The court then explained presumption prosecutor’s burden, the defendant’s not to and the to avoid right testify, jurors’ obligation if the court to ask had a prejudgment. Periodically, stopped anyone problem with the it was It next described the of a concepts discussing. phases capital trial, murder, if defendant was found it would telling panel guilty if next consider the circumstance found it special allegation. Only If true would there be a trial. defendant was found not or the penalty guilty, true, noted, “now, circumstance not “we home.” The court some of special go be are even about you might saying, my goodness, judge, why you talking Well, I this when the defendant is to be innocent? talk about it presumed because this is the chance we have to talk to about it. We don’t want you And it is for us to views and surprise you. important get your feelings about the death penalty.” folks,”

The court to make sure it was to on paused “getting through calling if a at random to ask its were clear. It then panelist explanations explained how the would the penalty phase operate, generally describing mitigating (“the in evidence the defense on the defendant’s life might put good things and the evidence the background”) aggravating prosecution might present in bad the defendant’s choices before (“any things background”). in the would be life without “which means the defendant jury prison parole, released,” will not be and the death which is done penalty, “normally if lethal The court the evidence injection.” emphasized mitigating evidence, if the or the balance was “the outweighed aggravating equal, jury if must vote for life.” the evidence Only aggravating substantially outweighed considered, the evidence could the death be and “even then mitigating penalty the ... is not to vote for death.” jury required

The court advised the that the cost of incarceration was an irrelevant panel consideration, that the must the death as more severe than accept penalty in life and that considerations could not be allowed tо affect prison, penalty the determination. It then the candidates’ about guilt explained why feelings the death were “Jurors who would vote for penalty important. automatically case, in death are not allowed to sit this kind of as those who would just sit,” vote for life are not because “that kind of automatically permitted is of the evidence the juror incapable weighing mitigating against aggravating evidence.” “What we need are who can consider all the evidence and jurors make a decision based on the evidence.” The court added that it would be the some time to think over what it was them. giving panelists telling In the court’s “break down into four Those experience, people categories.” in in one do not believe the death and could never vote to category penalty in sentence someone to death. Persons two are category strong proponents if the death and would vote for death someone took a life. penalty always Those three believe the death but could not category penalty, bring case, if themselves to vote for it a even that the particular they agreed evidence the evidence. The aggravating substantially outweighed mitigating who, court described detail its with the past experience jurors during pro- discovered that the burden of on the life of ceedings, sitting judgment candidates, another was too much for them.4 It advised the “this is a simply matter, this, serious folks. Please think about a lot of to it.” give thought years ago, boys through “I had a case two were stabbed to death in the desert. We went lengthy process jurors. seeking penalty. yes, selection . . . The were the death And jurors questions. penalty. weigh answered all the Yes I believe in the death Yes I could mitigating aggravating up selecting jury. circumstances. And we ended And I was over talking attorneys pointed to the at side bar about some matter. And the clerk out that one of the evidence, jurors crying. any suddenly enormity was She hadn’t even heard but of the idea going sitting judgment being that she was to be on another human had come home to her.

231 mind, four candidates were those who could an consider Category keep opеn evidence, all the and return a verdict of either life or death. prison The court told the that unlike at the where the panel guilt phase, prosecu- tion would bear the burden of there would be no burden of at the proof, proof evidence, “It is to the all the to consider the penalty phase. up jurors weigh and to make a decision.” The court that it did not arguments emphasized case, mean to tell the candidates how to decide the but needed to ascertain recess, their about the death It then took a them to feelings penalty. asking their views of the court’s ponder light explanations. recess,

After the the court It questioned prospective jurors individually. case, their reactions this was a began by asking upon learning capital giving them an to describe their before open-ended opportunity thoughts, asking which themselves in. When this had been category they placed pattern established, the court no asked for reactions but longer directly general If called on the and let them simply panelists speak. any panelist expressed of the the court used the occasion to any misunderstanding process, clarify for them and the as a whole. When the candidates identified point panel to which the court restated the views that category they belonged, characterized that It also reaffirmed the serious nature category. periodically candid and answers. process, encouraged independent

After 27 had been defense counsel to the jurors questioned, objected way said, I the court was voir dire.5 He “It is too fast. can’t follow it. conducting one, two, three, You are are number four. It is asking, you just meaningless definition that is recorded before we took a except your memory [for] I break. think have to delve into these individuals a little more you depth.” The court that the most recent had disagreed, noting panelist explained “why one,” she is a number itself comfortable with the declaring “very way this voir dire is going.”

After of the first the court called counsel completing questioning panel, to the bench and said it intended to excuse all those who had placed themselves one and three.6 Defense counsel this categories objected again, time on the that the court had not to “rehabilitate” the ground attempted category person, somebody says, yes, And she couldn’t do it. And I would call her a three who it, much, penalty, you get right I believe in the death but when down to it’s too too much for her.” four, panelists questioned point, placed category though Of the to this themselves in expressed voting put number of those reservations about for death. Three individuals them three, category category selves in and five in one. three, prospective jurors category eight A total of 13 had identified themselves as as one, category category panel and 35 as four. No one on this considered themselves to be in category two. three, in instead as to prospective jurors category asking leading questions their to the death that allowed them to inability impose penalty simply say, “that is The court that it had no to rehabilitate right.” responded “obligation on this serious issue.” It noted that the had anybody very panelists catego- themselves, views, rized its were intended to their follow-up questions clarify had a with no indication of they provided variety responses being influenced The court was “comfortable with these process. excusing I because do believe that have told us that have people they honestly they in that would their to serve as this feelings substantially impair ability jurors case.”

The court excused the who declared were either panelists they opposed in to the death all cases or unable to vote for death no penalty despite having to It then categorical objection capital punishment. questioned remaining candidates on matters unrelated to the determination. When the voir penalty finished, dire was it invited counsel to submit Neither follow-up questions. did, for the the court to ascertain whether one except prosecutor asking candidate who had on a case had previous experience capital participated There were no for cause. The court moved then to penalty phase. challenges peremptory challenges.

The next the court followed the same with a day, substantially procedure second a detailed discus- panel prospective jurors, providing introductory sion and then each Six candidates were questioning panelist individually.7 excused because did not believe the death and would never they penalty it, death, vote for two because would vote for one they always including if who volunteered that he would vote for death the defendant person always conviction, had a murder and two because were not prior they necessarily to the death but could not it themselves. Fifteen opposed penalty impose four, this themselves able to prospective jurors panel put category weigh However, the evidence and reach either result. the court failed to question three members of the second as to their death views. These panel penalty omitted candidates were included the next round of voir dire on general None of them had not been asked for their death topics. spoke up say they views, nor did either the omission to the court’s penalty attorney bring attention at any point. dire,

At the end of the second voir the court asked panel’s general again if counsel had Defense counsel obtained clarifica- follow-up questions. tion on the nature of a criminal case which one candidate had served as a panel, general explanations With the second the court did not take a break between its did, however, questioning. pause during explanations the individual It to admonish the saying, talking to think about what it was and remind them that it would be to each one of them about their views.

233 and asked the court to advise the not to draw adverse inferences juror, panel in because defendant was or because the trial was held on a custody being floor of the courthouse with extra The court these security screening. gave cause, advisements. there were no for and the court moved Again challenges seated, 10, on to The last Juror No. was one of those peremptories. juror whose death views were not penalty explored.

b. Analysis Defendant raises a series of to the conduct of voir dire. He challenges (1) claims as a about their views on the questioning prospective jurors group (2) in in death is an unconstitutional the court erred penalty practice general;8 dire; (3) this case his for voir the by denying particular request sequestered in manner which the court conducted voir dire made it to impossible determine whether the candidates held views about disqualifying capital (4) the four framed the court for the candidates punishment;9 categories by defective; (5) were on self-assessments was the relying jurors’ improper; voir dire resulted the of a who was not death incomplete seating juror the court’s on was flawed qualified; questioning general topics because it relied on forward with information instead of panelists coming being asked on the of specific questions, particularly subject gang membership. 223,

Code of Civil Procedure section initiative measure adopted by the court to conduct voir dire criminal cases. At the time of requires trial, case, “In former section 223 stated a criminal the court pertinent part: However, shall conduct the examination of the court prospective jurors. may cause, a the permit parties, upon showing good supplement examination such further as it deems or shall itself submit by inquiry proper, to the such a such additional prospective jurors upon showing, questions by shall, as it deems Voir dire of where parties proper. any prospective jurors cases, occur of the other all criminal practicable, presence jurors voters, (Added death cases.” as including penalty by Prop. approved by Here, 1990).)10 (June Elec. the court invited counsel to submit Primary without cause. follow-up questions, seeking showing good Amendments, 7, 15, 16, He cites the Sixth and Fourteenth and sections and 17 of article I of the California Constitution. dire, Sixth, challenging adequacy generally In of the voir defendant relies on the Eighth, and Fourteenth Amendments. 1, 2001, January give party Effective the statute was amended to counsel for each an expanded right prospective jurors through questioning but not unlimited to examine direct oral Proc., 223, (Code “[u]pon сompletion of the court’s initial examination.” Civ. as amended § 192, 1, provision requiring group practicable Stats. ch. voir dire where § unchanged, specification remained as did the that the trial court’s exercise of its discretion over any the manner in which voir dire is conducted “shall not cause conviction to be reversed 234

We have constitutional to the repeatedly rejected challenges statutory (2014) in authorization of voir dire cases. v. Chism 58 group capital (People 1266, 347, 183]; Cal.4th 1286 324 P.3d v. Watkins Cal.Rptr.3d People [171 999, 299, 364]; (2012) 55 Cal.4th 1011 290 P.3d v. Cal.Rptr.3d People [150 771, 533, 1109].) (2012) Thomas 53 Cal.4th 789 269 P.3d Cal.Rptr.3d [137 Indeed, Defendant does not convince us to alter our view on this point. in record this case demonstrates the of voir dire. Panelists advantages group a of views on the death provided variety responses reflecting divergent and their to serve on a The court was able to penalty ability capital jury. in educate each as a whole reflected panel by explaining misconceptions some comments. The court to all that it was prospective jurors’ emphasized views, each own that there were no or seeking panelist’s right wrong answers, in and that each was the best to evaluate his or her person position in own views. Instructions of this sort are more delivered effectively group than individual interviews. setting

Nor does defendant show that the court abused its discretion his denying for individual this case. Defense counsel made a request questioning dire, blanket to the conduct of voir without claim objection group any specific (Code that it would be under the circumstances. “impracticable” particular Proc., 223.) if Civ. The court stated its to reconsider its decision willingness § “it’s not well.” Counsel no further to going interposed objection questioning (See the candidates No error groups.11 appears. People Capistrano 59 Cal.4th 331 P.3d Cal.Rptr.3d (Capistrano) 201] the denial of a motion for voir [affirming “generic, boilerplate” sequestered dire “that made no to show court voir dire attempt specifically why open this case was not practicable”].)

Next, defendant contends the method of voir dire employed by court was insufficient to determinе whether the views reliably panelists’ would them from as at a trial. “Recent disqualify serving jurors penalty decisions of this court have emphasized importance meaningful voir dire. We have reminded trial courts of their death-qualifying duty know and follow and to devote sufficient time and effort to proper procedure, miscarriage justice, specified unless the exercise of that discretion has resulted in a as (Ibid.) Section 13 of Article VI of the California Constitution.” appeal, prospective jurors’ On defendant asserts that the answers were influenced group questioning, arguing panel placed that the first 13 candidates in the first all themselves in four, category meaning they keep open could an mind and make a decision based on the However, aggravating mitigating variety responses evidence. there was considerable in the four, they categories of these candidates. Two said were between three and and others death, expressed ability they doubts about their' to vote for or volunteered that would vote for case, only guilt beyond death in an extreme or if were convinced of a shadow of a Thus, support suggestion prospective jurors doubt. the record does not defendant’s that the (See taking responses were cues from the of others. v. Brasure 42 Cal.4th 632].)

235 bottom, the At both the court and counsel ‘must have process. [Citations.] sufficient information state of mind to regarding prospective juror’s a reliable determination as to whether the views permit juror’s capital [on “ ” would or punishment] ‘prevent substantially impair’ performance Nonetheless, his or her duties.’ . . . the trial court has broad [Citation.] [¶] discretion over the number and nature of about the death questions penalty. We have about or voir rejected complaints ‘hasty’ ‘perfunctory’ [citation] 514, 1, (2005) dire.” v. 35 Cal.4th 539-540 (People Stitely Cal.Rptr.3d [26 accord, 856; 182]; 108 P.3d 59 Cal.4th at see Capistrano, supra, 412, 841, (1985) 424 v. Witt 469 U.S. L.Ed.2d 105 S.Ct. Wainwright [83 844] (Witt).) ‘“Unless the voir dire ‘is so that the court can inadequate reviewing unfair, in that the trial was the manner which voir say resulting fundamentally ” (2013) dire is conducted is not a basis for reversal.’ v. Contreras 58 (People 123, 204, {Contreras).) Cal.4th 314 P.3d Cal.Rptr.3d [165 450] in Defendant claims that cases where we have clаims of or rejected hasty dire, voir the courts used written as a perfunctory questionnaires supplement. Stitely, 538-540; (2003) v. 35 Cal.4th at v. Navarette (People pp. People 458, 89, However, 1182].) in 30 Cal.4th 486-488 66 P.3d Cal.Rptr.2d [133 835, 602, (2003) v. 30 Cal.4th 855-856 People Cal.Rptr.2d [134 Hernandez 446], 69 P.3d we such a claim without a rejected mentioning questionnaire. 854-856, And we found no error Capistrano, supra, pages the court’s dismissal of a number of assertedly perfunctory prospective jurors views, based on oral about their death before a questions penalty question naire was out. We have never held that a is for passed questionnaire required of voir dire. 15 Cal.4th purposes (People Carpenter 708]; 935 P.2d see v. Fuiava 53 Cal.4th Cal.Rptr.2d (Fuiava).) There is no formula for magic 568] Questionnaires in a case. be qualifying prospective jurors capital may prob if lematic couched terms that are or What is legalistic rigid confusing. is a that allows the court and counsel to ascertain the important process honest views about the death and their to a panelists’ penalty ability perform juror’s duty. conversational,

The court’s this case was approach personal both with the as a whole and individual It panels during questioning. with a of the trial a provided panels comprehensive description process case, followed about each candidate’s views on capital by specific inquiries This was within the limits of the broad question penalty. process discretion our trial courts exercise over methods of voir dire. The introduc informal, clear, role case was tory explanation juror’s capital detailed. The court took care to ensure that the were concepts being conveyed understood, and to on the that it was not impress panelists seeking votes, influence their answers or ultimate should be seated on the It jury. hand, the seriousness of the task at as well as the repeatedly emphasized and normative nature of deliberations. personal penalty Once individual were asked an questioning began, many prospective jurors initial about how felt when learned this was a open-ended question they they case. The court ascertained eаch candidate’s self-assessment. capital carefully Nor, No confusion or to panelist expressed professed inability self-classify. to defense counsel’s claim when he his to the contrary lodged objection If were the asked to themselves a number. a process, panelists simply assign candidate referred to a number without the the court describing category, followed with a to ensure that the classification up clarifying question reflected the candidate’s views. And because the took properly questioning in a heard the of the classifications place group setting, everyone description times. many

Defendant’s about the court’s failure to “rehabilitate” complaints who said would be unable to the death prospective jurors impose penalty are Counsel are entitled to ascertain a true misplaced. prospective juror’s clear, views on the death Once those views have been made the court penalty. is not to them further. Nor do counsel have the to to obliged question right try influence or characterize those views to a gain strategic advantage “If selection a states ‍‌​‌​‌​‌​​​‌‌‌​​​‌‌‌‌​​‌​​​​​​​‌‌‌‌​​​​​​‌​​​​​​‌‍that he or she process. prospective juror unequivocally evidence, would be unable to the death impose penalty regardless is, definition, someone whose views ‘would or prospective juror by “prevent of his duties as a accordance substantially impair performance juror ’ (Witt, 424.) with his instructions and his oath.” 469 U.S. at Further supra, p. to follow the law is not inquiry concerning juror’s ability required.” 859.) 59 Cal.4th at (Capistrano, supra, p.

Defendant faults the court for not a number of the asking questions in the submitted defense counsel. But proposed questionnaire by merely is no substitute for to proffering questionnaire making specific objections the court’s failure to ask certain We have held that “a defendant questions. not on the trial court’s voir may challenge appeal alleged shortcomings defendant, dire of the when the had the prospective jurors having opportunity to alert the trial court to the failed to do so. It is not supposed problem, sufficient ... for a defendant be merely suggest particular questions asked, and then stand when the trial court and subse silently suggests takes a different course—a trial court could view such quently reasonably (Fuiava, silence as assent to the court’s constituting approach.” supra, 653; accord, Contreras, Cal.4th at p.

Here, while defense counsel to the of the court’s objected speed question- and its failure to “rehabilitate” who themselves ing prospective jurors placed

237 three, in he did not to the court’s failure to ask category object any particular (Fuiava, in defendant’s claims this are forfeited. question. Accordingly, regard 653; 610, (2011) v. McKinnon 52 Cal.4th 640 People 590, (McKinnon); (2010) 259 P.3d v. Foster 50 Cal.Rptr.3d People [130 1186] 1301, 658, Moreover, 105].)12 242 Cal.4th P.3d Cal.Rptr.3d [117 defendant’s about the of individual complaints questioning panelists regard their death views fails to account for the court’s ing penalty lengthy prefatory remarks, the nature of the and the describing penalty phase jurors’ responsi in to the evidence and without bility weigh aggravation mitigation allowing their views to the outcome. personal predetermine

We that the were informed of the emphasize prospective jurors properly extent of their discretion. the trial court Importantly, correctly repeatedly (See instructed them that were not to vote for death. they required People 516].) In Brown 40 Cal.3d 538-544 726 P.2d Cal.Rptr. instance, one it told the is representative panelists, “nobody telling you you death, have to vote for The law that there is a favor okay. says presumption life, if . . . And the to vote for death the actually. only jury [it] allow[s] evidence so evidence that aggravating substantially outweighs mitigating believes that death is . . . .” The court reminded them that jury appropriate if is have substantial favor of the you disparity aggravating “[i]t that death can even be considered.” The court’s accurate descriptions [factors] of the extent of discretion informed the candidates’ juror self-categorization. In the court’s made it that would particular, explanations unlikely panelists have themselves three because were reluctant placed category merely they death, to vote for or that the law would them to vote for apprehensive require if death even it case. they thought inappropriate particular if Even it were there is no merit defendant’s claim that the preserved, court failed to whether the would favor the inquire prospective jurors always death sentence over life without whenever the two alternatives are parole available. The court to the that these would be thoroughly explained panels the alternatives before the Its as to whether jury penalty phase. inquiry the candidates would favor the death was on that always penalty premised consideration. while defendant faults the court for not Similarly, questioning about their evaluate the evidence at the jurors ability fairly guilt phase, the court’s comments that the introductory emphasized guilt penalty example, complains prospective jurors For defendant that the court did not ask the if invariably penalty would vote for the death when the defendant has been convicted of more However, questionnaire than one murder. after the court declined to use the submitted counsel, Indeed, explore subject. defense counsel did not ask the court to counsel specifically agreed suggestion special with the court’s not to inform the that the murder, prior prejudicing circumstance in this case was a in order to avoid defendant at the event, guilt phase. any inquiring any In the court did not bar counsel from about that or other (Cf. 332].) subject. v. Cash 28 Cal.4th innocent, were that the defendant was and that phases separate, presumed can’t be over shoulder” at the “you looking your guilt phase by considering its as to implications penalty.

Defendant’s to the the court framed its four objections way categories fail, in likewise of the court’s review of what would be light comprehensive context, In of deliberations. required jurors during penalty categories were sufficient for the of voir dire.13 Defendant purpose death-qualification also that the voir dire relied on self- complains unduly prospective jurors’ assessments. the court’s focused the Again explanations sufficiently inquiry. themselves, in When were asked to the candidates had mind they cаtegorize the court’s of the and the descriptions penalty phase qualities required Further, the voir dire to a jurors. process necessarily depends significant in on self-assessment. No one is a better to know the degree position views and inclinations than themselves. Here the court panelists’ they sought direct, answers from the candidates their death unequivocal regarding penalty views, them to be honest and to mind the encouraging keep importance the matter. It was able to observe not the content of the but responses, also the manner which were they conveyed. a ‘rule of deference’ based on the trial court’s apply

“[W]e [citation] to assess the demeanor and ability credibility prospective [juror].” “ trial who observes and (Capistrano, supra, judge ‘[A] with a and hears that speaks prospective juror person’s responses (noting, voice, confidence, other tone of level of among things, person’s apparent demeanor), valuable information that does not on gleans simply appear Witt, the record. As the court observed 469 U.S. high [Citation.] 428, “the whether a venireman is biased has been question traditionally determined voir dire the trial through culminating finding by judge the venireman’s state of mind . . . based determinations of concerning upon demeanor and that are within a trial credibility peculiarly judge’s prov ’ ” 855-856.) ince.” at (Capistrano, pp. we defendant’s to the court’s method of

Accordingly, reject challenges A voir dire this case. closer conducting death-qualification question arises from the court’s failure to its method with the apply consistently second voir dire It the court these 28 as panel. appears questioned panelists In sat section of the courtroom. so it overlooked spectator doing four, panel given category Defendant claims the second was never a definition of However, comprising jurors penalty who could make a determination based on the evidence. thoroughly qualities penalty jury the court described the needed to serve on a before questioning panel. began, plain this When individual voir dire the court made it that “what I category person” mitigating would call a four was one who “would be able to consider all the aggravating weigh evidence and all the evidence and to them and to make a decision.” No prospective juror panel displayed any category in the second confusion as to four. candidates, three the one who became Juror No. 10. Defense including attention, however, counsel did not the to the court’s bring oversight therefore this claim of error is forfeited. at the time of defendant’s Although trial no was to a claim that a objection required preserve prospective juror was excused based on his or her views of improperly capital punishment, issues, rule has never been to other selection claims of applied including 637, 640.) (McKinnon, voir dire. inadequate pp. The court and both must bear a share of blame for to attorneys failing However, ensure that all were the panelists questioned. primary responsibility for defendant’s interests with defense counsel. There is no protecting lay excuse for his failure to alert the court that some candidates had been passed over. to defendant’s that the was Contrary suggestion speed process track, such that it was for counsel to it was a “virtually impossible” keep matter to record the identities and the to simple prospective jurors’ category which themselves. When the of the second they assigned questioning panel was the court conferred with counsel about which candidates were completed, three, one and and neither discomfort categories attorney expressed any with his to monitor the classifications as had occurred. ability

Juror No. 10 was the voir dire questioned during covering general subjects. round, She did not mention that she had been overlooked during previous but at that it should have been clear to all that her views on the death point had not been ascertained. Defense counsel was offered a chance to penalty dire, at the end of the voir but did not pose follow-up questions general the matter. He had a available when he explore peremptory challenge agreed Juror No. the last to be seated. We cannot overlook the accept panelist omission, that counsel was aware of the court’s and refrained from possibility answers, it out for tactical Based on Juror No. 10’s pointing purposes. favor, defense have decided she was inclined its or at least not may A school she and her husband both negatively disposed. high graduate, worked as mail handlers for the office. She had a brother a post serving long sentence for a with a conviction for prison purse snatching, prior “hijacking.” She had served on both civil and criminal She to no juries. belonged and had never been she did not own a organizations military. Though she had “no with gun, problem” gun ownership.

The consideration that counsel have chosen to take a chance with this may and create a claim of error to the heart of the panelist penalty phase goes rule, forfeiture rule. ‘the failure to to errors committed general object “[A]s at trial relieves the court of the to consider those errors reviewing obligation violations, on This to claims based on as appeal.’ applies statutory [Citations.] well as claims based on violations of fundamental constitutional rights. ‘ “In The reasons for the rule are these: of the trial hurry [Citations.] [¶] 240 be, are, overlooked which would have been

many things may readily rectified had attention been called to them. The law casts the the upon party of after his and of attention to duty looking legal rights calling judge’s obtain, If of them. other rule were to would any infringement any party most cases be careful to be silent as to his until it would be too objections them, late to obviate and the result would be that few would stand judgments ’ ” (In 193, (2004) the test of an re Seaton 34 Cal.4th 198 appeal.” [17 633, accord, McKinnon, 896]; 95 P.3d 52 Cal.4th at Cal.Rptr.3d supra, 638.) defendant did not this claim of voir p. Accordingly, preserve inadequate Taylor 574, 87, (2010) dire. v. 48 Cal.4th (People Cal.Rptr.3d [108 12].) 229 P.3d we to consider the merits of forfeited claims of

Ordinarily proceed dire, insufficient voir as we did v. 48 Cal.4th at People Taylor, supra, page However, 608. counsel’s inaction leaves us with no basis for that here. doing Juror No. 10 have been biased the death or may against penalty, perfectly neutral. This record affords no for us to conclude that the trial was grounds “ ” (Contreras, unfair.’ 58 Cal.4th at To ‘fundamentally supra, establish that the erroneous inclusion of a violated the to a fair and juror right a defendant must show that an impartial penalty phase jury, incompetent juror sat on the the death sentence. v. Blair actually imposed (People 686, 485, 1145]; (2005) 36 Cal.4th 115 P.3d see Cal.Rptr.3d [31 800].) Black 58 Cal.4th 919-920 320 P.3d Cal.Rptr.3d Here, defendant failed to make a record that would us to evaluate his permit claim.

Defendant’s final to the voir dire concerns the challenge process question- on He claims the court failed to ing general topics. adequately explore members, candidates’ views about one gang asking prospective juror only, However, ‘“do know defense counsel made no you anybody gang?” Furthermore, after this the court to the objection. shortly question explained I how evidence be used at trial. It cautioned: ‘“But panel gang might properly well, I want to make sure don’t have a bunch of that are to jurors going say, member, therefore, the fellow’s a he’s You’ve an gee, gang guilty. got keep mind. Wait to hear what the evidence is.” This claim of error is open 653-655.) (Fuiava, meritless as well as forfeited. pp. 3. Process Constitutionality Death-qualification Fifth, Sixth, and Fourteenth Amendments to the federal ‘“Citing Eighth Constitution, I Constitution and article of the California defendant contends that the death California is unconstitutional. The qualification juries claim is forfeited defendant’s failure to raise it below. v. Howard (People (Howard).) 51 Cal.4th It is 972] also meritless.

“ ‘The death is not rendered unconstitutional qualification process by that, studies because it removes who would empirical concluding jurors life, vote for death or for it results biased automatically juries against defense. Lockhart v. McCree 476 U.S. 162 L.Ed.2d [Citations.] [¶] , 106 S.Ct. . . . which the death approved qualification process, 1758] remains law some criticism law review articles. good despite [Citations.] “We not from the court as to the United States may depart high ruling Constitution, and defendant no reason to reconsider our presents good as to the California Constitution.” The of the ruling[s] impacts [Citation.] [¶] race, death on the do qualification process gender, religion jurors not affect its Nor does the violate a constitutionality. process [Citations.] defendant’s constitutional Amendment not rights, including Eighth right to be to cruel and unusual subjected punishment, by affording prosecutor an to increase the chances of a conviction. opportunity getting [Citations.] Defendant claims the voir dire itself a biased We have process produces jury. held otherwise. Death does not violate the Sixth qualification [Citation.] [¶] Amendment the functions of a as a cross-section of the by undermining jury in the administration of community participating justice. Finally, [Citations.] defendant’s constitutional were not violated use of rights prosecutor’s to exclude with reservations about peremptory challenges jurors capital 26-27; (Howard, 51 Cal.4th at see v. punishment.’ supra, pp. Taylor, 602-603.) We adhere to the views these pp. expressed decisions and defendant’s claims.” 54 Cal.4th reject (People Tully 173]; see also Capistrano, supra, Cal.4th at p.

B. Guilt Phase Issues

1. Exclusion Evidence That Echeverría Was Convicted Manslaughter statement, Before his defense counsel the bench and opening approached told the court he and the had discussed whether the should be prosecutor jury informed that Echeverría had been convicted of for Guevara’s manslaughter that, Counsel said he intended to do he conceded the killing. though be that the conviction was irrelevant. The prosecutor “may right” prosecutor The court ruled that cannot tell them this objected. “you guy got manslaugh- case, ter because it was a different different evidence . . . .” The court counsel that Echeverría was convicted of the suggested stipulate killing, without crime. Counsel so mentioning specific stipulated.

Nevertheless, stand, before Echeverría to the witness immediately calling defense counsel renewed his to inform the that Echeverría had request been convicted of voluntary manslaughter. prosecutor objected again, the court sustained the It that the “this again objection. explained difficulty if for the is a that one who is involved this poses suggestion person crime, was convicted of a then the other particular participant allegedly involved should be convicted of the same crime. And this is an entirely I different case. think that it would be to as to . . . inviting jury speculate he was convicted of as to what the why voluntary manslaughter opposed I verdict be this case. And it be . . . proper might might manslaughter. I believe he should be limited to was convicted of stating yes, something that arose from the same incident without what specifying felony.”

Defendant claims the exclusion of evidence as to the nature of Echeverría’s conviction violated his due to a defense. He relies on process right present cases that defendants must be allowed to evidence that holding present (Chambers another have committed the crime. v. person may charged 297, 1038]; (1973) 410 U.S. 284 L.Ed.2d 93 S.Ct. Mississippi Cudjo [35 2012) (9th Cir. 698 F.3d These cases are defendant Ayers inapposite; Echeverría’s that it was Echeverría who killed Guevara. presented testimony Defendant that the was about Echeverría’s argues jury required speculate so; level of Not heard the evidence and was culpability. fully to determine for itself the relative levels of Echeverría’s and equipped defendant’s It could not know what evidence was at culpability. presented trial, Echeverría’s nor what theories were and the pursued by prosecution defense that case. The trial court ruled that evidence of the properly crime of which Echeverría was convicted was irrelevant and mislead specific Code, 352.) (Evid. ing. §

2. the Evidence Sufficiency of Defendant contends the evidence was insufficient to establish his guilt first murder. The claim fails. degree

“Our task a to the of the evidence is a deciding challenge sufficiency well-established one. review the whole record most light ‘[W]e favorable to the below to determine whether it discloses substantial judgment is, reasonable, credible, evidence—that evidence that is and of solid value— from which a reasonable trier of fact could find the defendant guilty beyond In reasonable doubt. cases which the on People rely primarily [Citations.] evidence, circumstantial the standard of review is the same. [Citations.]’ 489, 199, (1992) 2 v. Thomas Cal.4th 828 P.2d (People Cal.Rptr.2d [7 ‘ 101].) “An court must inferences that the appellate accept logical jury might if have drawn from the evidence even the court would have concluded ’ (2007) 42 otherwise. v. Halvorsen Cal.4th (People [Citation.]” 512].)” 165 P.3d v. Solomon 49 Cal.4th Cal.Rptr.3d (People 501].) 811-812 Defendant the Mendez’s disputes credibility Kathy testimony, arguing that from her inside the Beef Bowl she could not have seen vantage point sidewalk, defendant and Echeverría with Guevara on the or defend- wrestling However, ant into the Au Rendezvous Cafe next door. Mendez shooting line, testified that she was at the end of a at the door of standing long nearly Bowl, the Beef and that the entire front wall of the restaurant was glass. evidence confirms that a near the front of the photographic person standing restaurant would have a clear view of the sidewalk outside. Defendant also claims Mendez was mistaken when she said she saw Guevara walk the by Beef Bowl before the confrontation He notes that Guevara’s car was began. Rendezvous, Bowl, in front of the Au not the Beef and that Entibo parked Antelo, the who was outside near the Beef Bowl security guard standing door, testified that Guevara had to the Beef Bowl after just begun approach out of his car when defendant and Echeverría accosted him. While getting Mendez’s is inconsistent with the other evidence on this it is testimony point, Furthermore, not an detail. the was instructed on how important jury properly 2.22.) (CALJIC conflicts the Nos. 2.21.1 & weigh testimony. statements, Defendant notes that Mendez inconsistent both to the gave stand, him and on the about whether she saw But when police shooting. direct, reminded of her second statement to the Mendez testified on police, cross, and redirect examination that she saw defendant the It doing shooting. was for the to determine the of her statements. jury credibility sidewalk,

Defendant Mendez’s account of the on the challenges wrestling Antelo, however, Antelo did not confirm it. testified that he went claiming Guevara, inside the Beef Bowl as soon as the second armed man approached because he there was to be a The third “immediately thought going problem.” Turner, Patrick confirmed that the on prosecution eyewitness, wrestling began the sidewalk and continued into the Au Rendezvous.14 Echeverría gave similar account his he claimed that he wrestled testimony, though only with Guevara.

Defendant contends the evidence was consistent with Echeverría’s physical fact, In the evidence refuted his account and testimony. supported conclusion that it was defendant who shot Guevara and inflicted some of concedes, Echeverría’s wounds. As defendant recovered at the casings entirely Defendant claims Turner was an unreliable witness. It is true that Turner was stand, appeared unable to remember much on the witness to confuse the color of witness, clothing. only defendant’s and Echeverría’s If he were the it is doubtful this case witness, gone police would have to trial. But he was not the and his statements to the on sidewalk, night shooting wrestling shooting about the on the followed a man into Rendezvous, doorway of the Au were consistent with Mendez’s account and the shell casing reasonably accepted testimony point evidence. The could have Turner’s on this as corroborative. used,

scene established that two were a .25 caliber that left only weapons three and a nine-millimeter that left 12. Echeverría claimed he shot casings Guevara at close as were but there was no very range they wrestling, wounds, around Guevara’s were inflicted from a stippling indicahng they distance of than two feet. Echeverría said he was shot six times with a greater .25-caliber but three .25-caliber were recovered. The gun, only casings of Guevara’s wounds was consistent with shot from medium pattern being Rendezvous, as he rolled on the floor of the Au with range wrestling Echeverría. was that Guevara had to wrestle the prosecution’s theory managed times, him

.25-caliber from Echeverría and shoot several weapon away Thereafter, the soot found on Guevara’s hands. defendant shot at explaining both men from the of the Au Rendezvous. This was doorway theory consistent with the shell evidence. It was Mendez’s casing ‍‌​‌​‌​‌​​​‌‌‌​​​‌‌‌‌​​‌​​​​​​​‌‌‌‌​​​​​​‌​​​​​​‌‍supported by that defendant had a nine-millimeter and Echeverría had testimony weapon his when confronted Guevara. It was also consistent with Antelo’s gun that the men who Guevara outside the Beef Bowl testimony approached carried whilе Guevara did not. guns

Defendant claims the evidence was insufficient to show that the was killing self-defense, not Echeverría’s lawful or defendant’s defense of justified by Echeverría. The was instructed that the bore the burden of jury prosecuhon the homicide was not It was also instructed that the proving justifiable. right if of self-defense is available to a who initiates an assault person tries faith to refuse to continue the person good fight, clearly informs his both that he wants to and that he has done opponent stop fighting, instruction, so. Defendant does not the correctness of this or its dispute Here, to the defense of another. there was evidence logical application ample from which the could have found that defendant and Echeverría initiated jury the assault and never with Guevara. attempted stop fighting insufficient,

Defendant also claims the evidence of malice was because the failed to that he acted a sudden under heat of prosecution disprove quarrel, self-defense, however, unreasonable or mutual combat. passion, Again, the evidence that defendant acted as a deliberate strongly supported finding Thus, in the confrontation. could have found that the aggressor jury quarrel sudden, Echeverría, was not but defendant and intentionally provoked by heat of was not the sort that would be aroused the mind of an any passion reasonable as the instructions The instructions ordinarily person, required. also informed the that unreasonable self-defense has no when applicahon a defendant’s conduct created the circumstances that his wrongful justified use of force. Defendant does not of these adversary’s challenge propriety instructions.

245 Defendant further at that the evidence was insuffi argues, length, “In cient to establish deliberation and We the context premeditation. disagree. ‘ ’ murder, of first means “considered beforehand” degree premeditation 668, 1, (1997) 14 v. Cal.4th 767 928 P.2d (People Mayfield Cal.Rptr.2d [60 ‘ 485]) and deliberation means a “careful of considerations weighing ’ 792, Solomon[, a course of action . . .” v. 49 Cal.4th forming (People supra,] 812). ‘The and deliberation does not process premeditation require аny extended of time.’ at 767 true test of is period (Mayfield, p. premeditation [the ‘ reflection, time].) the extent of the not the follow length “Thoughts may cold, each other with and calculated be arrived great rapidity judgment may (Ibid.: at ....”’ see id. at 767-768 defendant wrested the quickly pp. [where altercahon, from and shot an officer a brief could gun fatally during jury conclude that ‘before defendant had made a reasonably shooting [the officer] cold and calculated decision to take life after weighing [the officer’s] 999, (1995) considerations for and v. Rand 37 against’]; People Cal.App.4th 1001-1002 at victims whom shooter Cal.Rptr.2d [aiming weapon [44 686] believed to be rival members constituted sufficient evidence of gang premedi 1, deliberation].)” (2015) tation and v. Shamblin 236 10 (People Cal.App.4th 257].) Cal.Rptr.3d [186

Here, Bowl, him defendant a loaded with to the Beef brought gun (See v. Lee 51 Cal.4th 636 demonstrating preparation. People 651].) 248 P.3d He told Echeverría to his when Cal.Rptr.3d get gun lot, saw Guevara which is substantial evidence of parking planning. Thomas, 517.) (See v. Cal.4th at Echeverría testified that People supra, p. member, he armed himself because Guevara looked like a gang supplying evidence of motive for a lethal confrontahon. Defendant and provoking Guevara, Echeverría both cocked their as guns they approached strongly Rand, (See were a v. suggesting they contemplating shooting. People supra, 1001-1002.) at The fact that Guevara was shot nine times at Cal.App.4th pp. (See close also the conclusion that the was deliberate. range supports killing 637; Lee, at v. 52 Cal.4th p. Gonzales Soliz 543].) Even a reasonable could have found the evidence did not “assuming and deliberation and returned a verdict of second support premeditation murder, because, must stand as we have degree [defendant’s conviction] stated, the circumstances reasonably jushfy jury’s findings, ‘[i]f court not reverse the because it believes that reviewing may judgment merely ” the circumstances also might support contrary finding.’ (People Soliz, Gonzales

246

3. Use Former CALJIC Nos. 8.71 and 8.72 was the 1996 revised versions of CALJIC Nos. 8.71 and jury given “If 8.72. The first of these instructions informed the are convinced jury: you a reasоnable doubt and that the crime of beyond you unanimously agree defendant, murder has been committed a but that you unanimously agree have a reasonable doubt as to whether the murder was of the first or of you second must the defendant the benefit of that doubt and degree, you give [the] return a verdict the murder as of the second The second fixing degree.” gave the same the distinction between murder and guidance regarding manslaugh- “If ter verdicts: are convinced a reasonable doubt and you beyond you that the was unlawful but unanimously agree killing you unanimously agree have a reasonable doubt whether the crime is murder or you manslaugh- ter, must the defendant the benefit of that doubt and find it to be you give rather than murder.” manslaughter (2011)

In v. Moore 51 Cal.4th 386 People Cal.Rptr.3d [121 trial, (Moore), decided after defendant’s we advised that “the better long 515] is not to use the 1996 revised versions of CALJIC Nos. 8.71 and practice 8.72, as the instructions at least some for carry potential confusing jurors about the role of their individual between first and judgments deciding murder, second and between murder and The references degree manslaughter. these instructions were added to unanimity presumably convey that the as a whole not return a verdict for a lesser principle jury may included offense unless it first reaches an on the acquittal charged greater [Citation], offense. But this into CALJIC Nos. 8.71 and inserting language 8.72,which address the role of reasonable doubt between choosing greater offenses, and lesser homicide was as CALJIC No. 8.75 unnecessary, fully that the must to not verdicts on the explains jury unanimously agree guilty homicide offenses before the as a whole return verdicts on greater may 411-412.) (Moore, the lesser.” at pp.

We did not hold Moore that the 1996 revised versions of CALJIC Nos. 8.71 and 8.72 were erroneous. We discussed v. Gunder People 817], 412 151 where the Court of Cal.App.4th Cal.Rptr.3d Appeal decided that confusion from these instructions was any arising dispelled by “ 17.40, CALJIC No. which tells the not to ‘decide jurors any question them, because a or favor that particular way majority jurors, any ” (Moore, 411; Gunder, 425.)15 decision.’ 51 Cal.4th at see at supra, p. Moore, CALJIC No. 17.40 was also we found it unneces Although given correct, to decide whether Guilder was bеcause error was harmless sary any Moore, As also noted in the Gunder court followed its earlier decision in 165], Cal.App.4th Pescador where a different combination of (Moore, 410-411.) given. pp. instructions was a reasonable doubt. The Moore true on beyond jury’s findings burglary- murder and circumstances left no room for the lesser robbery-murder special (Moore, 412.) offenses of second murder and at degree manslaughter. p. 17.40, in The here was also CALJIC No. which stated relevant jury given “The and the defendant are entitled to the individual of part: opinion each Each of must consider the evidence for the juror. you purpose verdict, if a can do so. Each of must decide the case for reaching you you but should do so after the evidence and instructions yourself, only discussing if with the other Do not hesitate to an are jurors. change opinion you However, convinced it is do not decide a wrong. any queshon particular them, because a of the or favor that decision.” way majority jurors, any The was instructed with CALJIC No. 8.74: “Before jury additionally you case, return a verdict this must not as to may you agree unanimously only if him whether the defendant is or not but also should find guilty guilty, you of an unlawful must as to whether he guilty killing, you agree unanimously was of murder of the first murder of the second or guilty degree, degree, told, was further find it voluntary manslaughter.” “you may produc- tive to consider and reach a tentative conclusion on all and lesser charges However, crimes before final verdict. the court cannot reaching any accept verdict on a lesser crime unless have found the guilty you unanimously 17.10.) (CALJIC defendant not of the crime.” No. guilty charged Defendant that the 1996 revised versions of CALJIC Nos. 8.71 and argues 8.72 unanimous on reasonable doubt as to of the required agreement guilt him offense before an individual could the benefit of the greater juror give This, claims, him doubt and find of the lesser offense. he violated his guilty to due the state’s burden of right process by reversing proof making offenses the “default” verdicts. Defendant’s of the greater interpretation If instructions is a tortured one. skewed the deliberations his anything, they if favor. could be understood to tell the that all They reasonably jurors crime, there was reasonable doubt as to the of the because agreed degree convinced, some were not then defendant was entitled to the benefit of jurors the doubt and a verdict of the lesser offense. No logical reading instructions leads to a verdict of first murder. compelled degree Moore,

We did not defendant’s of the instructions accept reading though (Moore, it was also the defendant there. proposed by 410.) We said that the instructions created “at least some for p. potential about the role of their individual confusing jurors judgments deciding between” the and lesser offenses. at While the greater language {Id. to which defendant be because it is unclear how the objects may confusing have a reasonable doubt” phrase “unanimously agree you applies views, case, individual a reasonable this jurors’ juror considering 248 whole,

instructions as a would have understood that these terms reflect the in stated CALJIC No. 17.10: “the court cannot a principle accept guilty verdict on a lesser crime unless have found the defendant you unanimously Moore, (See not of the crime.” at guilty charged “ It is a familiar that correctness of instruc proposition jury ‘[t]he court, tions is to be determined from the entire not from a charge consideration of of an instruction or from a instruction.’ parts particular 1144, (2014) and Vo 58 Cal.4th 1220 (People Hajek [Citation.]” [171 88]; 324 P.3d see Estelle v. McGuire 502 U.S. Cal.Rptr.3d 385, L.Ed.2d S.Ct. instructions must be [alleged ambiguity 475] record].) viewed of the instructions as a whole and the entire light Defendant’s assumes the would not CALJIC reading jury disregard 17.10, Nos. 8.74 and but also the directions of CALJIC No. 17.40 explicit each to decide the case as an individual. Accord emphasizing juror’s duty while we have the the 1996 ingly, disapproved unanimity terminology revised versions of CALJIC Nos. 8.71 and 8.72 because of the for potential confusion, the instructions were not erroneous this case when considered with the rest of the to the Defendant’s claim of instructional error charge jury. lacks merit. deliberations,

Defendant out that on the third sent the points day jury if court a note “Clarification from The Court: What is reading: happens jury unanimous for verdict of murder but cannot on 1st or 2nd The agree degree?” court, after with counsel and their consulting obtaining approval, responded as follows: “The attention is directed to instruction 8.71 on writing jury’s Thus, “If 57 of the instructions.” would have read: are page jury you convinced a reasonable doubt and that the beyond you unanimously agree defendant, crime of murder has been committed but you unanimously have a reasonable doubt whether the murder was of the first or agree you of the second must the defendant the benefit of that doubt degree, you give and return a verdict the murder as of the second The fixing degree.” returned a verdict of first murder. following day, jury degree General contends that defense counsel’s Attorney correctly agreement to refer the to this instruction forfeited defendant’s claim of error on this jury The court noted for the record that “the clerk called counsel and read point. And counsel that that was an proposed response. agreed appropriate We have held that counsel’s affirmative with the court’s response.” agreement to a note from the forfeits a claim of error. v. DeBose reply jury (People Here, 213].) 59 Cal.4th the court’s answer was not to the Former CALJIC No. 8.71 responsive jury’s question. itself, did not address the circumstance which the found which was over the of murder. But defense counsel did not take the disagreement degree

249 to an alternative. His endorsement of the court’s opportunity suggest proposal foreclosed further to the effectively exploration possible responses jury’s Therefore, his claim on this has not been question. point preserved. On defendant contends the court should have deleted the references appeal, “If to or the CALJIC No. 17.11: find the defendant unanimity, given jury you murder, of the crime of but have a reasonable doubt as to whether it is guilty him in of the first or second must find of that crime degree, you guilty second But such instruction would have been degree.” equally nonresponsive to the concern. some had resolved their jury’s Plainly, jurors tentatively murder, in in doubts favor of second while others leaned favor of first degree murder. The as a whole could not return a verdict on the lesser degree jury when some were convinced defendant was degree jurors guilty greater. What was to the court was that it was on the jury conveying hung The would have been to direct the question degree. proper response jurors to continue an effort to achieve one or the deliberating unanimity, way other.

4. Other Instructional Errors Alleged

a. Self-defense Defendant claims the self-defense instructions were be incomplete “ cause did not include the ‘where counter assault is so principle [a] sudden and that no be to decline further to perilous opportunity given fight and cannot retreat with he is safety justified slaying [the defendant] ” self-defense.’ v. 193 201 (People Gleghorn Cal.App.3d [238 82]; Quach (2004) see v. 303 Cal.Rptr. Cal.App.4th However, clear, 196].)16 Quach as the courts made Gleghorn this where the defendant commits a assault. qualification only applies simple 201; Quach, at at one makes a assault (Gleghorn, p. p. “[I]f felonious another, or has created the other to launch a upon appearances justifying self-defense, counterattack assailant cannot his deadly original slay first, faith, self-defense unless he has declined further adversary good combat, him and has notified that he has abandoned the fairly affray. (People 307].)” Hecker 109 Cal. P. at italics (Gleghorn, added.) Here the evidence did not that defendant was support finding guilty 5.56, given provides: right was CALJIC No. which “The of self-defense is One, person engages following: available to a who in mutual combat if he has done all the he two, actually good fighting; clearly has tried in faith to refuse to continue he has informed his three, opponent stop fighting; clearly opponent that he wants to he has informed his that he has four, stopped fighting; given opponent opportunity stop fighting. he has his After he things, right opponent fight.” has done these four he has the to self-defense if his continues to 250 assault when he initiated the confrontation the simple by approaching

victim with a cocked gun.17

b. Statements by Defendant 2.71.7, Defendant also claims the court should have CALJIC No. given the to view his statements before the offense with caution.18He warning jury Salazar, in notes the Arnold Lemus and Juan customers the Beef testimony by Bowl, who said that defendant had “hit them about their up” inquired affiliation; Mendez’s that defendant and Echeverría had gang Kathy testimony about care of the and not spoken “tak[ing] neighborhood” being “caught as well as her that defendant had told Echeverría to the slipping,” report get “cuete,” his and Patrick Turner’s that he heard meaning gun; testimony Guevara, I defendant or Echeverría ask “don’t know from somewhere?” you Defendant also notes Echeverría’s that defendant said testimony “Harpys” when Guevara’s cousin first out of the car and entered the Beef Bowl. got

In v. 60 Cal.4th 1176 62] Diaz (Diaz), we reconsidered the that the re- requirement cautionary principle flected CALJIC No. 2.71.7 must be to the case where imparted jury any “in the evidence would warrant it. We decided that of a the light change law that the instructions on witness to be requires general credibility given case, sua the instruction is not one of the sponte every cautionary general of law which a court is to instruct the principles upon required jury absence of a instruction does not reflect a request. cautionary legal instruction, with which would be unfamiliar absent the principle jurors (Diaz, the defendant not want the instruction to be at may always given.” However, 1189.) we did not decide whether this retroac- p. holding applies no to Diaz from the court’s failure to tively, finding prejudice give (Id. instruction. at We reach the same conclusion here.

“We the standard for state law error: whether it is apply reasonably would have reached a result more favorable to defendant probable jury Echeverría, Thus, According paid to defense witness defendant took no in the assault. testimony accepted by jury, even if this were it afforded no basis for the instruction given. defendant claims should have been you may The instruction states: “Evidence has been received from which find that an oral [plan] [design] by statement of was made the defendant before the offense [intent] [motive] charged you with which is was committed. It is for to decide whether the statement was [he] ought made defendant. Evidence of an oral statement to be viewed with caution.” [the] cautionary suggests applies We have noted that rationale behind the instruction it “[t]he broadly. purpose cautionary determining ‘The instruction is to assist the if the purpose apply any statement was in fact made.’ This would oral statement of the [Citation.] defendant, before, during, (People Carpenter, supra, whether made or after the crime.” 392-393.) pp. Cal.4th at had the instruction been Failure to the given. give cautionary [Citation.] instruction is not a violation of federal due the ‘more process warranting standard’ of review for federal constitutional error. ‘Since stringent [Citation.] the instruction is intended to the to determine whether the cautionary help jury made, in statement attributed to the defendant was fact courts the examining in if to the instruction examine the record to see there prejudice failing give used, in was conflict the evidence about the exact words their any meaning, (Diaz, or whether the were repeated accurately.’ [statements] [Citation.]” 1195.) ‘“Where there was no such conflict p. evidence, but a denial the defendant that he made the statements simply by him, attributed to we have found failure to instruction give cautionary 884, 647, (2005) harmless.” v. 35 Cal.4th (People Dickey Cal.Rptr.3d [28 Furthermore, 921].) 111 P.3d when the instructions on witness general were and witnesses were so as to credibility given, extensively impeached raise the issues to which those instructions were we have credibility pertinent, reasoned that ‘“the was aware their should be jury unquestionably testimony (Id. 906-907.) viewed with caution.” at pp.

Here there was little conflict the evidence. Lemus and Salazar agreed on the of their conversation with defendant and Echeverría. While gist Echeverría denied them he admitted that he and defendant ‘“went ‘“hitting up,” Bowl, to talk to” the Beef and he said these would go strangers people have known were to members. The was talking Harpys gang jury given Mendez, Turner, the standard witness instructions. and Echeverría credibility were each cross-examined with reference to their statements. thoroughly prior There is no reasonable that defendant’s failed to probability appreciate the need to evaluate their error carefully testimony. Accordingly, any failure to CALJIC No. 2.71.7 was harmless. give

c. the Fact Accessory After The trial court denied defense counsel’s for an instruction on request fact, as an after the that a recent decision this liability accessory noting by court had foreclosed instruction on such lesser related offenses. Defendant that the court was v. Birks 19 Cal.4th acknowledges referring (Birks), in 960 P.2d which we discarded the 1073] former rule that defendants are entitled to instructions on lesser related (Id. offenses. at 35 Cal.3d 510 p. overruling People Geiger However, 1303].) he claims Birks held that trial courts Cal.Rptr. instructions, retain discretion to such and the trial court erred here give to exercise its discretion We did not so hold. We noted failing regard. that our decision did ‘“not foreclose the from that the parties agreeing defendant be convicted of a lesser offense not included may necessarily (Birks, at fn. Here there was no such original charge.” agreement. Defendant asks us to reconsider our that Birks holding applies (Birks, 136-137.) 19 Cal.4th at We decline to do so. retroactively. supra, pp. In Birks we considered and that our decision should rejected argument new rule we announce neither apply only prospectively. today expands ‘“[T]he criminal nor enhances for conduct committed. liability punishment previously On the our withdraws the contrary, holding merely procedural [Citations.] for conviction of a reduced offense not opportunity encompassed by 136; (Birks, and selected the defendant.” at accusatory pleading solely by p. see v. Rundle 43 Cal.4th 180 P.3d Cal.Rptr.3d 224].)

C. Phase Issues Penalty

1. Echeverría’s Conviction as a Factor Manslaughter Mitigating Defendant claims he should have been allowed to use Echeverría’s II.B.l., ante.) (See conviction as a factor. Defense manslaughter mitigating pt. counsel did not seek to introduce that evidence at the thus this penalty phase; event, In claim is forfeited. it is established that sentence any firmly ‘“[t]he received an is not or relevant as a accomplice constitutionally statutorily factor Such information does not bear on the circumstances of mitigation. crime or on the defendant’s own character and record. fact capital ‘[T]he evidence, that a different under different found that a different defendant should not be to death is no more relevant than a that such a put finding defendant should be sentenced to death. Such еvidence provides nothing extraneous, more than information to a which incomplete, confusing jury, is then left to v. Bemore speculate (People [on matter].’ [Citation.]” Howard, 1152]; 22 Cal.4th see also

2. Limitation Witness Testimony mother, if When defendant’s defense counsel asked she questioning Guevara, defendant should be for and for his thought punished murdering answered, ‘“I him murder conviction. She wouldn’t want to be prior punished this, asked, I because am not certain that he did God knows.” Counsel crimes, ‘“ifit was to that he committed those do think he proven you you said, ‘“well, him should be for those crimes?” She let a few punished stay him But don’t the death Defendant’s sister years jail. please, give penalty.” stand, was the next witness. Before she took the the prosecutor approached the bench and whether it was for witnesses to be asked questioned proper about the sentence. Defense counsel said he did not think he had appropriate said, ‘“Well,I asked that The court it was area. . . . question. thought gray I him him think it is for do want to die as to permissible say you opposed should he be executed. That is a fine distinction.” The court advised defense counsel to to from that area. Just from her the that ‘“try stay away get impact has, him in it that loves brother and will visit and he is a prison [she] [her] good guy.” sister,

Counsel to ask defendant’s ‘“do feel that he should be proceeded you answered, I for what he did?” She ‘“He’s brother. punished any way my said, him wouldn’t want to.” Counsel the and she ‘“Give repeated question, him time but not his whole life and not the death prison penalty.” did not prosecutor object.

Defendant contends the court’s limitation on violated his questioning right under the and Fourteenth Amendments to evidence. Eighth present mitigating The claim lacks foundation the record. Counsel never to ask any sought witness about the sentence. He asked both witnesses the same any appropriate about whether defendant should be and their general question punished, answers were admitted into evidence. Counsel no indication that he gave wanted to further these lines. Defendant pursue any questioning along argues witness, defendant’s, that the a friend of was not asked following any However, about the sentence. that counsel had questions appropriate given defendant’s sister about her views on after freely questioned punishment, matter, the court’s advice on the there is no basis for that hearing concluding counsel’s of the next witness was restricted. questioning unduly

3. The Prosecutor’s Argument At the outset of his statement the told the ‘“Oneof closing prosecutor jury: the most mind is that this whole the important things keep process, whole trial the the reason are here process, penalty phase process, why you is here is mission. It is to essentially truth-seeking [defense counsel] evaluate the facts and determine what is true and what isn’t true and what to do with those facts once make that determination. you

‘“The talked to at the of this trial about the death judge you beginning about what would take penalty, place penalty phase your job factors versus the factors. As the evaluating mitigating aggravating judge told there is no burden of ‍‌​‌​‌​‌​​​‌‌‌​​​‌‌‌‌​​‌​​​​​​​‌‌‌‌​​​​​​‌​​​​​​‌‍but there is a standard to be with you, proof applied factors and the that ... substan- aggravating mitigating, aggravating those factors. That is need to tially outweigh mitigating something you decide when back to deliberate.” you go

Defendant notes that we have characterized the repeatedly jury’s normative, function at the as moral and not penalty phase ‘“inherently (1986) factual.” Cal.3d (People Rodriguez Cal.Rptr. 254 758, 113]; v. Wilson (2008) 44 People

726 P.2d see also Cal.4th 830 [80 211, 1041].) 187 P3d he claims it was misconduct Cal.Rptr.3d Accordingly, for the to describe the as a prosecutor penalty phase “essentially truth-seeking “ below, ‘In mission.” No was made and this claim is thus forfeited. objection misconduct, order to a claim of a defendant must make a preserve timely admonition; if and an an admonition would not have objection request only cured the harm is the claim of misconduct for review.’ preserved [Citation.] When a claim of misconduct is based on the comments before prosecutor’s ‘ “the is whether there is a reasonable likelihood that the jury, question construed or remarks an jury applied any complained-of objection- ’ ” 1, 1, v. Friend (2009) (People able fashion.” 47 Cal.4th 29 Cal.Rptr.3d [97 accord, 1234, 520]; (2012) 211 P.3d People Gonzales v. 54 Cal.4th 1294 [144 757, Here, 834].) 281 P.3d to defendant could Cal.Rptr.3d any prejudice have been an admonition from the bench. easily dispelled by event, In there is no reasonable likelihood the was misled any jury context, In comments. informed the that it prosecutor’s they merely jurors was their to decide “what to do with those facts” had found to be job true, the factors and by weighing aggravation mitigation. prosecutor also that it was for the to decide how much to emphasized jury weight give factors. That was not a matter of truth aggravating mitigating clearly or Defendant’s claim of misconduct is meritless as well as forfeited. falsity.

4. Failure to Instruct on Prior Conviction as an Aggravating

Factor Defendant claims his murder conviction was used both as prior improperly 190.2, (a) circumstance under section subdivision and as an special 190.3, (b) (c). factor under section factors He contends the aggravating should have been instructed not to “double count” the conviction this 499, v. Proctor (1992) 4 People fashion. He Cal.4th 550 acknowledges 340, (Proctor), 842 P.2d we held such an instruction is Cal.Rptr.2d [15 1100] available but asks us to reconsider that rule and hold the upon request, instruction must be whenever the evidence raises the given possibility double improper counting.

To the extent defendant that the same incident not be argues may factor, considered as a circumstance and as an he is special aggravating Ray 313, 296, (1996) (People incorrect. v. 13 Cal.4th Cal.Rptr.2d [52 846]; People Stanley 914 P.2d 10 Cal.4th 820-821 481].) To the extent he that an instruction argues on double an factor is the absence of a counting aggravating required (Proctor, we are not our settled view. request, persuaded change v. Ashmus citing Cal.4th at 54 Cal.3d

255 112, 152, 214]; v. Morris (1991) 224 People 820 P.2d 53 Cal.3d Cal.Rptr.2d 720, 713, 949]; v. Melton (1988) 44 People 807 P.2d Cal.3d 768 Cal.Rptr. [279 McKinnon, 867, 741]; supra, 750 P.2d see 52 Cal.4th at Cal.Rptr. [244 694-695.) pp. to the Death Statute Challenges Penalty

5. Defendant raises a series of constitutional to the death challenges penalty statute, all of which we have cases. We do so here.19 rejected past again

“The death law narrows the class of penalty adequately death-eligible 672, (2014) (People Boyce defendants. 59 Cal.4th 723 [Citations.]” [175 481, v. Linton (Boyce); (2013) People 330 P.3d see also 56 Cal.Rptr.3d 812] (Linton).) 1146, 521, Cal.4th 302 P.3d Cal.Rptr.3d [158 927] “ 190.3, (§ ‘The factor of “circumstances of the crime” factor sentencing (a)) is not and does not result unconstitutionally vague arbitrary v. Scott (People of the death capricious imposition penalty.’ [Citation.]” (Scott); 61 Cal.4th 349 P.3d see also Cal.Rptr.3d 1028] v. Merriman 60 Cal.4th 105-106 1187].) “ ‘Neither the federal nor the state Constitution that the requires penalty make unanimous phase jury findings concerning particular aggravating doubt, circumstances, a reasonable beyond find all factors or find aggravating outweigh a reasonable doubt that the factors beyond aggravating mitigat- factors. The United States Court’s recent decisions ing Supreme [Citation.] the Sixth Amendment’s do not interpreting jury-trial guarantee [citations] alter these conclusions. [Citations.]

“Neither the cruel and unusual clause of the Amend punishment Eighth ment, Amendment, nor the due clause of the Fourteenth process requires in case be instructed that must find a reasonable jurors capital beyond doubt that circumstances exist or that circumstances aggravating aggravating circumstances or that death is the outweigh mitigating appropriate penalty. Indeed, trial courts ‘should not instruct the jury regarding any [Citations.] ‘ burden of or at the “Unlike the proof persuasion penalty phase.’ [Citation.] determination, ‘the function is moral and norma guilt sentencing inherently tive, and, hence, not factual’ not to a susceptible burden-of-proof [citation] ’ 1215-1216; (Linton, 56 Cal.4th at see quantification.” pp. [Citation.]” 723-724.) Boyce, supra, also pp. unadjudicated activity We need not address defendant’s claim that the use of criminal as aggravating rights. only prior activity an factor violated his constitutional criminal murder, penalty phase adjudicated.

introduced at the was defendant’s earlier which was 256

“We have held that the ‘so substantial’ CALJIC consistently language No. 8.88 ‘is not or that a death verdict inadequate misleading. By advising if should be returned is “so substantial with” aggravation comparison “warranted,” that death is the instruction admonishes the mitigation clearly to determine whether the balance of makes jury aggravation mitigation death the v. Russell 50 appropriate penalty.’ (People [Citations.]” 68]; 242 Cal.4th 1273 P.3d see also Cal.Rptr.3d Boyce, supra, 724.) 59 Cal.4th at p.

“The trial court is not to instruct the that the absence of a required jury [, factor cannot be considered as an factor mitigating aggravating [citation] nor is it to instruct the with CALJIC No. 8.85 without jury deleting error] 692; (McKinnon, factors 52 Cal.4th at see inapplicable supra, p. [citation].” Scott, 407.) also 61 Cal.4th at supra, p.

“Neither federal nor state law the court to doubt requires give lingering 190.3, (k) instruction because this is section factor ‘concept encompassed (Scott, and related instructions.’ 61 capital supra, [standard case] [Citation.]” 408; Soliz, Cal.4th at see also v. 52 Cal.4th at p. People supra, Gonzales 325-326.) pp.

“CALJIC No. 8.88’s the ‘to consider whether the language instructing jury death, if circumstances rather than death is the “appropriate” “warrant[ ]” does not violate the and Fourteenth Amendments. penalty,’ Eighth [Citation.]” 724; McKinnon, (Boyce, 59 Cal.4th at see also 52 Cal.4th at supra, p. supra, 693.) p. if

“The trial court is not to instruct the . . . that required jury mitigating evidence, evidence must return a verdict outweighs aggravating jury (Scott, of life without the . . . .” possibility parole supra, [citation] 407; 724.) Cal.4th at see also 59 Cal.4th at p. Boyce, supra, p.

“The trial court was not to instruct the that defendant bears required jury no burden to factors or that it need not be unanimous prove mitigating the existence of factor. v. Adams finding any mitigating (People [Citation.]” 1223]; (2014) 60 Cal.4th see also Brasure, 1068-1069.) Cal.4th at supra, pp. “Defendant was not entitled to an instruction that there is a presumption 724; favor of life without 59 Cal.4th at parole. (Boyce, supra, p. [Citation.]” Scott, see also 61 Cal.4th at supra, p.

“Written are not findings by constitutionally required. [Citation.]” 407; Boyce, (Scott, see also 59 Cal.4th at supra, 724-725.) pp.

257 “ ‘Intercase review is not ‘The Califor proportionality required.’ [Citation.] nia death scheme does not violate penalty equal protection by treating capital and defendants ‘. . . California’s death noncapital differently.’ [Citation.] scheme does not violate international law and norms.’ penalty [Citation.]” 408; Boyce, (Scott, see also 59 Cal.4th at p. supra, D. Cumulative Prejudice

Defendant contends the cumulative effect of errors at all of his trial phases Pretrial, reversal of the and We requires guilt penalty judgments. disagree. court erred to conduct voir dire of three by failing death-qualification but defendant forfeited his claim on this prospective jurors, point by failing Counsel’s leaves us with no record to his assertion of object. neglect support prejudice.

At the we have found no error. We have guilt phase, prejudicial rejected defendant’s claims of error. the claim of cumula- penalty phase Accordingly, tive fails. prejudice

III. DISPOSITION is affirmed. judgment J., J., Chin, J., Liu, J., Cuéllar, J., C. Cantil-Sakauye, Werdegar, J., concurred. Kruger,

CUÉLLAR, J., core of our Concurring.—A premise legal system, grounded in our basic charters of is that between governance, society distinguishes (2012) and adults who commit crimes. Miller v.Alabama juveniles (E.g., 407, 2455, (Miller) U.S. L.Ed.2d 132 S.Ct. [183 2464] [‘‘children are different from adults for of see constitutionally purposes sentencing”]; Court 27 Cal.4th Manduley Superior adults].) differential treatment of We [discussing juveniles 3] draw such a distinction not domain of criminal general sentencing, but context of the death v. Simmons specific penalty. (E.g., Roper Const, 543 U.S. 551 L.Ed.2d 125 S.Ct. (Roper) 1183] [federal a death sentence for individuals who committed their crimes when precludes 18]). In under the of the lines courts have drawn to age light distinguish between and adult conduct for juvenile sentencing purposes—and, particu lar, the limitations on of the death for conduct an imposition penalty individual committed as a Salazar juvenile—defendant Magdaleno argues Amendment to the United States Constitution bars Eighth imposition the death this case. he claims that the federal penalty Specifically, Constitution use of his murder conviction as the sole prohibits prior juvenile basis for the circumstance that made his first murder special degree punish- able death. by I this concur with this majority opinion rejects argument. Although

conclusion, I write to address certain of this claim and separately aspects is a close one. explain why question murder,

A if court or consider a defendant’s even committed jury may prior minor, when defendant was a as an circumstance. aggravating (People 300], Bivert 52 Cal.4th 122-123 [127 therein.) and cases cited What defendant contends is that use of his prior is, murder conviction for the determination is different. It juvenile eligibility in some since the factors is to narrow the respects, purpose eligibility (See universe of individuals death. Romano v. Oklahoma punishable by 2004].) In 512 U.S. L.Ed.2d S.Ct. 543 U.S. at Roper, supra, 569, the United States Court held that individuals who are page Supreme under 18 when commit murder “cannot with be classified reliability the worst offenders” who deserve execution. The court identified amongst three differences between and adults of this conclusion. juveniles support First, and lesser sense of often result juveniles’ immaturity responsibility “ ” Second, (Ibid.) and ill-considered actions and decisions.’ ‘impetuous are more vulnerable to influences and outside juveniles negative pressures. Third, malleable, (Ibid.) have character traits that tend to be more juveniles (Id. 570.) In less accurate as of future conduct. at may prove portents p. differences, of these the court concluded that are light juveniles categorically (Id. less than adults. at culpable p. claims,

Defendant us to build on this foundation. It is he urges impossible, to reconcile two conclusions: that such differences make juveniles categori- adults, less than and that a court nonetheless on a cally culpable may rely offense to establish a defendant’s for a death sentence. juvenile eligibility Indeed, incoherent,” contends, it is defendant to conclude that “analytically conduct to be less because it was committed his presumed culpable during 569) (see 543 U.S. at could nevertheless establish a youth Roper, supra, circumstance, him it for to receive the death special thereby making possible If a offender is less than an adult penalty. juvenile categorically culpable offense, offender an defendant how the committing equivalent questions Amendment an offense committed Eighth permits by juvenile play the same role the basis for a circumstance as precisely constituting special an offense committed an adult.

In court’s decisions light high concerning punishment juvenile Miller, offenders 567 U.S. 460 S.Ct. Amend. (e.g., 2455] [8th

259 (LWOP) forbids life without of mandatory imprisonment possibility parole (2010) sentences for murder committed a Graham v. Florida 560 by juvenile]; Amend, 825, U.S. 48 L.Ed.2d 130 S.Ct. forbids LWOP [176 2011] [8th sentences for nonhomicide crimes committed 543 by juveniles]; Roper, supra, 551), I U.S. find the to be a difficult one. There is at least some question tension between our the jurisprudence concerning culpability juveniles 1354, (see, (2014) v. 58 Cal.4th 1375 e.g., People Cal.Rptr.3d [171 Gutiеrrez 421, 262, 245]; (2012) 324 P.3d v. Caballero 55 Cal.4th 266 [145 286, 291]) 282 P.3d and the idea that a murder committed Cal.Rptr.3d by is no different from other murder for juvenile any purposes applying Code, 190.2, (Pen. (a)(2); relevant circumstance here. subd. subse- special § Moreover, Code.) unlabeled references are to the Penal quent statutory relevant of defendant’s claim turns not on what is rational for a analysis conclude, to but also on what constitutes Legislature permissible punishment under the Amendment. For it be “ratio- Eighth example, might conceivably nal” for the to conclude that who commit Legislature juveniles multiple murders should receive LWOP sentences—but that is a scheme the mandatory (Miller, Amendment forbids. 567 U.S. 460 S.Ct. Eighth plainly [132 2455].) claim, ‍‌​‌​‌​‌​​​‌‌‌​​​‌‌‌‌​​‌​​​​​​​‌‌‌‌​​​​​​‌​​​​​​‌‍defendant’s we would embrace the conclu-

By embracing perforce sion that there is no to reconcile the way Legislature’s approach special circumstances with the of the Amendment. What none- requirements Eighth theless seems relevant to the cuts defendant’s quite inquiry—and against 190.2, (a)(2) that section subdivision does serve to narrow the argument—is class of individuals for of the death Under this eligible imposition penalty. a narrower class of individuals is for statutory provision, eligible capital relative to the full of individuals who commit a first punishment range degree murder—and even relative to individuals who committed a murder previously 190.2, as The latter occurs under section subdivision juveniles. narrowing convictions, (a)(2) because murders that result criminal rather only juvenile 190.2, (§ than circumstance. juvenile adjudications, satisfy special (a)(2) subd. that defendant was “convicted” of first [requiring previously 30, murder]; (2012) or second In re W.B. 55 Cal.4th 43 degree [144 843, conviction].) is not a [juvenile adjudication 906] The distinctions drawn of the circumstance reflect an application special that is not ruled out aspect legislative design plainly Eighth (Coker Amendment. v. 433 U.S. L.Ed.2d Georgia Amend, review].) S.Ct. the circumscribed of 8th [describing scope 2861] Defendant is circumstances and factors serve right special aggravating different functions. 512 U.S. 971-972 (Tuilaepa California 2630].) L.Ed.2d S.Ct. Yet defendant’s fails to ultimately, argument between the use of his distinguish sufficiently permissible prior juvenile murder as an circumstance and its use as a aggravating allegedly improper circumstance. special for a was denied 2016.

Appellant’s petition rehearing August

Case Details

Case Name: People v. Salazar

Court Name: California Supreme Court

Date Published: May 26, 2016

Citation: 202 Cal. Rptr. 3d 638

Docket Number: S077524

Court Abbreviation: Cal.