THE PEOPLE, Plaintiff and Respondent, v. TOMMY ADRIAN TRUJEQUE, Defendant and Appellant.
No. S083594
Supreme Court of California
May 28, 2015
61 Cal. 4th 227
THE PEOPLE, Plaintiff and Respondent, v. TOMMY ADRIAN TRUJEQUE, Defendant and Appellant.
Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Christina A. Spaulding, Deputy State Public Defender, for Defendant and Appellant.
OPINION
CHIN, J.-In 1999, a jury convicted defendant Tommy Adrian Trujeque of first degree murder of Max Facundo (
Defendant‘s 1999 trial took place more than a decade after the murders of Facundo and Apodaca, and the delay in prosecution is the subject of various claims defendant raises on appeal. For reasons that follow, we reverse the judgment of conviction for the second degree murder of Apodaca, and reverse the penalty judgment based on our setting aside both the prior murder and multiple-murder special-circumstance findings. (See post, at p. 281.) Although we must reverse the penalty judgment, we have included additional factual background as necessary to provide context.
A. Guilt Phase
1. Prosecution evidence
a. Murder of Max Facundo
The prosecution presented evidence that on June 21, 1986, defendant stabbed and killed Max Facundo, the abusive boyfriend of defendant‘s cousin, Charlene Trujeque.2
When Charlene was 16 or 17 years old, defendant began writing letters to her while he was incarcerated. In the letters, defendant asked about his family and told Charlene to stay out of trouble. Charlene‘s mother, Elena Trujeque, read the letters defendant had sent and became concerned. In particular, Elena thought one of the letters read more like a “love letter” than a “cousinly” letter because defendant said he would protect Charlene if anybody hurt her, and that she “mean[t] the world to” him. He also wrote “you‘ll always be mine and you‘ll always be close to my heart.” Elena also discovered that Charlene was accepting collect telephone calls from defendant, who was still incarcerated. Elena and Charlene‘s father, Charlie Trujeque, tried to stop Charlene from getting “too friendly” with defendant, but Charlene continued to write to him.
In 1984, when Charlene was about 20 years old, she began dating Facundo and often stayed at his house. Though their relationship appeared fine at first, during the final months of their relationship, Facundo began to beat up Charlene when she refused to do drugs with him. She did not tell her parents (defendant‘s uncle and aunt) about the beatings, but they would see her bruised face when she came home. Elena recalled seeing injuries on Charlene, including black eyes and bruises, on 15 to 20 separate occasions. Though Charlene lied to her parents about how she got her injuries, Elena said “everybody knew” that Facundo beat up their daughter. While Charlene‘s parents were upset and afraid for her life, they voiced their concerns only to Charlene, and repeatedly asked Charlene to end her relationship with Facundo. Although Charlie did not verbally threaten Facundo, he told Elena that he was going to beat up Facundo and once ran after him with a baseball bat. On one visit, after Facundo refused to let them see their daughter, Charlie and Elena went to the police to report the domestic violence. However, the parents were told that the police could not do anything unless Charlene reported it herself.
On the evening of June 21, 1986, the day Facundo was killed, Charlene was at her parents’ house and sported a black eye. Defendant came over with another cousin, Raymond Guzman. Almost as soon as they got there, defendant and Raymond called Charlie outside to talk. They spoke for about five minutes. When Elena asked Charlie what they had talked about, Charlie would not respond; he seemed nervous and afraid. However, sometime earlier, Charlie had asked defendant to break Facundo‘s leg or arm to teach him a lesson, but not to hurt him too badly.
When defendant asked Charlene how she got her black eye and if her boyfriend did it, she would not say. Defendant repeatedly asked Charlene whether Facundo would be coming by later because defendant wanted to “meet him and talk to him.” Charlene could tell defendant was angry about her black eye, so she asked him to promise not to hurt Facundo. He replied that promises were made to be broken, but that she need not worry because nothing would happen.
When Facundo came to Charlie and Elena‘s house to pick up Charlene, defendant asked Charlene if they would drop off both defendant and Raymond at the home of Raymond‘s sister, Pat Perez, in South Gate. Facundo agreed to do so, and the four left in Facundo‘s car. Defendant and Raymond were seated in the back, Charlene was in the front passenger seat, and Facundo was driving. Facundo pulled out a cigarette dipped in PCP, began smoking it, and shared it with Charlene and Raymond. At some point, Facundo pulled over to let Charlene drive. They arrived at Pat‘s house around 10:45 p.m. Charlene exited the car to let Raymond out of the backseat. She and Raymond walked towards Pat‘s home, and waited for Facundo and defendant to follow. When she heard yelling, Charlene turned around and saw Facundo and defendant struggling. She ran towards them and screamed for them to stop. Charlene held Facundo, who was covered in blood, and they fell onto the ground. Defendant fled the scene. Facundo died of multiple stab wounds to the chest.
When the police arrived at the scene of the stabbing, Charlene was still screaming. The police put restraints on her hands and feet and placed her on her stomach in a patrol car. They eventually transported her to the police station. Charlene‘s blouse was ripped and she had cuts on her chest and right forearm. Detective Terry McWeeney of the South Gate Police Department
Pat called Charlie and Elena and told them that defendant had killed Facundo and that the police had already taken Charlene and Raymond to the station. They tried calling the police station, but could not get any information. They returned home. Defendant later called Charlie and Elena‘s house and asked for a ride. According to Elena, they picked defendant up at a 7-Eleven convenience store on the corner of Firestone and Atlantic in South Gate. He asked to be dropped off at his mother‘s house in El Sereno. During the drive, defendant told Charlie and Elena that he killed Facundo. Charlie yelled at him, ” ‘[W]hy did you do it?’ ” and told defendant he never wanted him to kill Facundo. Elena testified defendant told her, ” ‘Tia [(meaning “aunt” in Spanish)], you don‘t have to worry anything more about this anymore.’ ” Elena also testified defendant told her he “had no remorse. He did it like-like it was nothing. He didn‘t know the guy, like I didn‘t know him. He had no feelings for him, so he just done [sic] him away.”
Hours after the murder, around 2:00 or 3:00 a.m., Sergeant Russell Beecher of the South Gate Police Department received a call from a man identifying himself as defendant. The caller said that he was the one who murdered Facundo and that Charlene and Raymond, who were in custody, should be released. On June 26, 1986, defendant was arrested at his mother‘s house in El Sereno for the murder of Facundo. The charges, however, were dropped on July 2, 1986, for lack of probable cause.
For over a decade, the case remained dormant until 1998 when defendant-who at the time was serving a life sentence for an unrelated armed robbery-contacted the Los Angeles County Sheriff‘s Department and confessed to Facundo‘s murder, along with the murder of Raul Apodaca and another armed robbery, in order to receive the death penalty. In June 1998, he was charged with the 1986 murder of Facundo in a three-count complaint.
b. Murder of Raul Apodaca
At trial, the prosecution also presented evidence that on January 23, 1987, defendant and Jesse Salazar3 killed Raul Luis Apodaca at an East Los
During the 1999 trial, Robert De Alva testified that he was at the upholstery shop drinking and doing drugs the evening of January 23, 1987. Given his admitted drug use, De Alva explained he had a poor memory and could not recall many details from that night except that he and six to eight other individuals had walked to the upholstery shop from a nearby bar, the Quiet Cannon. At the shop, De Alva had injected heroin and had passed out on a table. When the prosecution asked about Apodaca being killed, he said: “All I remember is a guy laid on the floor and taking him to the hospital and some guys around him and some guys leaving, and that‘s all I remember.” Though he did see some “scuffling,” De Alva was “not aware there was a fight” and did not know who was involved. De Alva also did not recall much of the previous statement he had given to Detective Birl Adams several days after the murder. When the prosecution pointed to defendant at the defense table and asked if De Alva had seen him that night, De Alva replied: “He don‘t look familiar.”
Responding to De Alva‘s prior inconsistent statements, Detective Adams testified that when he interviewed De Alva on January 26, 1987, three days after the killing, De Alva recounted many details about the night Apodaca was killed. De Alva told Detective Adams that he was at the upholstery shop with Rivera, Salazar, Apodaca, defendant, and several other individuals. They were playing poker when a fight broke out. After the fight was broken up, two individuals left the shop and De Alva lay down on top of a table in the middle of the shop to sleep. Remaining at the shop with Rivera and De Alva were defendant, Salazar, and Apodaca. De Alva woke up when he heard and saw defendant, Salazar, and Apodaca fighting. Suddenly, Apodaca fell to the floor, and defendant and Salazar ran out of the shop. After checking on Apodaca, Rivera told De Alva that Apodaca had been stabbed. They tried to resuscitate Apodaca, and then took him to East Los Angeles Doctors Hospital in a van. De Alva stayed at the hospital about 15 minutes and then left. Apodaca later died from a stab wound to the chest. De Alva first found out that Apodaca had died during the January 26 interview with Detective Adams; he appeared upset. De Alva had no trouble describing either defendant or Salazar to Detective Adams. Two days later, on January 28, 1987, De Alva identified defendant and Salazar from a 13-photo array Detective Adams showed him.
On February 5, 1987, defendant and Salazar were charged with the murder of Apodaca. The case was dismissed a month later. The prosecution eventually entered into a plea agreement with Salazar, who pleaded guilty to voluntary manslaughter. On March 25, 1987, the prosecution refiled the first degree murder charge against defendant, but after the preliminary hearing, he was held to answer for only the lesser offense of manslaughter. On April 24, 1987, the prosecution filed an information again charging defendant with the first degree murder of Apodaca. After the prosecution informed the court that they could not find the material witness, De Alva, the murder charge was dismissed on June 23, 1987. The case lay dormant until 1998, when defendant confessed to the murder.
c. Robbery of Spartan Burgers restaurant
The prosecution presented evidence that on January 21, 1998, defendant robbed Spartan Burgers restaurant in Huntington Park. According to the restaurant‘s cashier, Ronni Mandujano, defendant came in around 8:00 p.m. and first ordered food. When it came time to pay, defendant pulled out a small black handgun and demanded money. The restaurant‘s owner (who was not identified by name) approached Mandujano and defendant, opened the register, and placed the cashbox on the counter. Pointing the gun at Mandujano the entire time, defendant asked the owner if he had any other money in the restaurant. The owner said there was additional money in the
2. Defense evidence
a. Murder of Max Facundo
Against the advice of counsel, defendant testified on his own behalf. His account of Facundo‘s killing and events surrounding it largely tracked the evidence adduced at trial. (See ante, at pp. 236-238.) However, defendant‘s version differed in these material respects: Defendant testified that Charlie had asked him to kill Facundo not just hurt him, and that Elena was lying about Charlie asking him only to break Facundo‘s arms and legs. On cross-examination, however, defendant admitted Charlie never used the words “go kill him” but said to “take care of it,” which defendant took to mean “killing Max and getting away with it.” Though Charlie never told defendant why he wanted him to kill Facundo, defendant thought it was “because he was beating up on my cousin.” Though Elena sent him money while he was incarcerated, defendant did not kill Facundo for the money. Elena also told defendant that Facundo beats up Charlene “just about every day.” Elena also gave him $300 to buy a gun.
Defendant testified he intended to inflict a lethal wound on Facundo by using a method of stabbing he learned in prison; he also hoped to inflict at least 100 stab wounds. He also admitted he “couldn‘t wait to kill him. I didn‘t want to wait,” and that he “could have done it later if I wanted to.” Defendant stated he had been thinking about killing Facundo since he was released from prison. When Charlie and Elena picked defendant up after the killing, defendant said their “troubles are over,” meaning “I don‘t have to watch my back for anyone coming after me, and Charlene doesn‘t have to worry about getting any black eyes, so it‘s over.”
b. Murder of Raul Apodaca
Defendant testified that both he and Rivera were members of the White Fence gang, and that he and others used to frequent Rivera‘s upholstery shop. Defendant‘s gang moniker was “Killer“; a piece of wood bearing that name was found at the shop.
His account of the events leading up to the killing of Apodaca largely tracked eyewitness De Alva‘s trial testimony and Rivera‘s testimony from the
c. Robbery of Spartan Burgers restaurant
On cross-examination, defendant denied robbing Spartan Burgers and claimed the main witness, Ronni Mandujano, was “wrong.” Defense counsel did not cross-examine Mandujano.
3. Defendant‘s confession to the murders and desire to be prosecuted
a. 1998 confession to Los Angeles County Sheriff‘s deputies
The Facundo and Apodaca murder cases lay dormant for over 10 years. In February 1998, Los Angeles County Sheriff‘s Deputy Frank Durazo received a telephone call from another deputy regarding an inmate, defendant. Defendant was in custody in the San Diego County jail and claimed to have information about two homicides and a robbery. Deputy Durazo and his partner, Los Angeles County Sheriff‘s Deputy Jose Romero, drove to San Diego to interview defendant. The February 20, 1998 tape-recorded interview, a transcript of which was admitted as an exhibit, was played for the jury but was not simultaneously transcribed into the record. Defendant‘s statement to the deputies about the Facundo and Apodaca murders and the Spartan Burgers robbery was generally consistent with his testimony at trial.
As to the Apodaca murder, however, defendant provided further context. According to defendant, before heading to Rivera‘s upholstery shop from the Quiet Cannon bar, Salazar had told defendant that he hated Apodaca and wanted to kill him. Salazar said he was going to stab Apodaca and that he wanted defendant ” ‘to have my back, and if-and if-if he starts getting the best of me and everything just, you know, just back my play.’ ” Later, when Apodaca and Salazar started fighting at the upholstery shop and defendant intervened, Apodaca hit defendant in the face. That is when, according to defendant, “automatically my-the red light goes on and the alarm goes off and I get, you know, that did it, and I said now fuck this mother fucker, I don‘t even know him, he ain‘t done nothing to me, but I just don‘t like him,
Regarding the Spartan Burgers robbery, which at trial defendant denied committing, defendant initially told the deputies that he had robbed the restaurant with his cousin, Theodore “Teddy” Trujeque (Charlene‘s brother and Elena and Charlie‘s son), because Teddy needed money. Defendant thought he “got about close to $400,” of which he gave Teddy $150 and kept the rest. Defendant did not tell authorities about Teddy‘s involvement for “personal reasons.”
b. Letter to Los Angeles County District Attorney
Over defense counsel‘s objection, the prosecution introduced a letter defendant had written to then Los Angeles County District Attorney Gil Garcetti (Garcetti letter). In the over 600-word letter, written shortly before his September 1998 preliminary hearing and while he was representing himself, defendant admitted he murdered both Apodaca and Facundo while “fully aware of all of my mental faculties” and urged Garcetti to seek the death penalty against him. The Garcetti letter also stated that “both of those cowards deserved what they got: death and an early expiration in life, to say the least!“; that if he “had the opportunity to do it over I would cut off their heads and send ‘em both to their family!”
B. Penalty Phase
1. Aggravating evidence
a. Murder of Allen Rothenberg
At trial, the prosecution presented evidence that on February 7, 1969, less than a month after he turned 16 years old, defendant robbed and fatally stabbed Allen Rothenberg.5 Rothenberg was delivering beer for Nate‘s Liquor Store to defendant‘s home at 3302 Paola Avenue in Los Angeles. In a 1969 statement to detectives, which was read to the jury, defendant said he called up Nate‘s Liquor Store as “Mr. Martinez” and ordered a case of Colt 45 beer. Defendant stated he was talking to a girl in the bedroom when his friend, Bert
Former Los Angeles Police Officer Ruben Sanchez, who responded to a call at 3302 Paola, testified that officers found Rothenberg‘s body in the yard next door. Rothenberg had been stabbed multiple times in the chest and his pants pockets were turned inside out. A trail of blood led back into the house at 3302 Paola where detectives found blood in the dining room, a bloody doorknob, and blood splatters on the wall. An investigator located a bloody 13-inch kitchen knife at the side of the house. Officer Sanchez identified numerous photographs of the Rothenberg crime scene, which were introduced into evidence. The trial court took judicial notice of defendant‘s juvenile court files.
b. Other offenses
The prosecution presented evidence that defendant committed a number of assaults and robberies from 1978 to 1998.
c. Garcetti letter
Over defense counsel‘s renewed objection, the trial court admitted the Garcetti letter at the penalty phase. This version, which had fewer redactions than the version admitted at the guilt phase, included defendant‘s statement that he did not “regret my actions in any way, shape, or form” and his threat to kill someone in prison if he did not get the death penalty.
2. Mitigating evidence
a. Family history
Through the testimony of defendant‘s half sister and several maternal aunts and uncles, defendant presented evidence of his childhood and his mother‘s family history. On defendant‘s behalf, his ex-wife and their daughter, along with his former juvenile probation officer and parole officer, all testified.
b. Medical history
Dr. Marshall Cherkas, who examined defendant for the juvenile court in November 1966 and shortly before defendant‘s 1999 trial, testified that he found defendant emotionally unstable with borderline organic brain damage and a history of treatment for psychomotor epilepsy.
II. DISCUSSION
A. Pretrial Issues
1. The invalidity of the second degree murder conviction underlying the prior murder special-circumstance allegation
In support of the prior murder special circumstance (
On appeal, defendant raises only a double jeopardy challenge. He argues that the high court‘s 1975 decision in Breed v. Jones (1975) 421 U.S. 519, 531 [44 L.Ed.2d 346, 95 S.Ct. 1779] (Breed), which held that an adult prosecution after a juvenile adjudication for the same offense violates double jeopardy, compels the conclusion that he was placed at least twice6 in jeopardy. (U.S.
a. Procedural background
The facts of Rothenberg‘s killing are discussed above. (See ante, at pp. 243-244.) As relevant here, on February 11, 1969, a petition was filed in juvenile court alleging that defendant, a 16-year-old minor, came within the then current provisions of Welfare and Institutions Code section 602. (Section 602 petition; see Stats. 1961, ch. 1616, § 2, pp. 3459, 3472.) Paragraph I of the petition alleged that defendant “did wilfully, unlawfully, and with malice aforethought murder Allen Howard Rothenberg,” in violation of
On March 6, 1969, a juvenile court referee conducted the adjudicatory hearing at which the deputy district attorney called eight witnesses and introduced numerous exhibits. Over codefendant Bert Gonzales‘s objection, the hearing was treated as a civil rather than criminal matter, thus making the standard of beyond a reasonable doubt inapplicable. The next day, defendant‘s counsel informed the referee that defendant was willing to admit to a violation of former
After defendant admitted he took part in the stabbing of Rothenberg, the referee accepted defendant‘s admission, dismissed the more serious allegations of paragraphs I and II, and amended the petition to allege involuntary
Another juvenile court judge, however, ordered a de novo rehearing of the referee‘s adjudication. (See
On February 1, 1971, almost two years after the section 602 petition was first filed against defendant, he pleaded guilty to second degree murder in superior court.
b. Legal principles
As relevant here, at the time of defendant‘s 1969 juvenile adjudication,
Although a finding of unfitness and the ensuing transfer to an adult court could occur not only after, but also before, an adjudication of guilt (see
c. Forfeiture
At the outset, we address whether defendant has forfeited the double jeopardy issue. As noted above, defendant‘s motion to strike the 1971 conviction rested mainly on his Boykin/Tahl claim. However, at the August 10, 1999, evidentiary hearing on defendant‘s motion, defense counsel asked the original deputy district attorney, John Breault, who had prosecuted defendant in adult court, whether he remembered if defendant‘s previous attorney had argued in 1971 that the proceeding in adult court was in
Despite initiating the questions on double jeopardy himself, defense counsel did not move to strike the prior conviction on double jeopardy grounds, and we see no possible tactical reason for counsel not to have done so. (See People v. Jones (1994) 24 Cal.App.4th 1780, 1783, fn. 5 [30 Cal.Rptr.2d 238].) We have previously considered a double jeopardy issue on appeal that was technically not cognizable because a meritorious double jeopardy defense relates to a defendant‘s claim of ineffective assistance of counsel. (People v. Scott (1997) 15 Cal.4th 1188, 1201 [65 Cal.Rptr.2d 240, 939 P.2d 354]; People v. Marshall (1996) 13 Cal.4th 799, 824, fn. 1 [55 Cal.Rptr.2d 347, 919 P.2d 1280].) We will therefore address the merits of this claim. Before discussing the claim‘s substance, however, we must consider possible procedural hurdles relating to the retroactivity of Breed, supra, 421 U.S. 519, and the collateral challenge to a prior judgment.
d. Retroactivity
Defendant asserts that although Breed was decided after his 1971 conviction, its holding applies retroactively because he was subject to the very statute that the high court effectively invalidated. We agree. As we explain, this conclusion is compelled by two lines of cases—In re Bryan (1976) 16 Cal.3d 782 [129 Cal.Rptr. 293, 548 P.2d 693], which dealt specifically with the retroactivity of Breed, and People v. Horton (1995) 11 Cal.4th 1068, 1139-1140 (Horton), which involved striking a constitutionally invalid prior conviction alleged as the basis for a special circumstance.
In In re Bryan, the issue was whether the 1975 holding in Breed applied retroactively to the defendant‘s juvenile adjudicatory hearing held in 1971. In concluding that it did, we declined to apply the three-pronged analysis for retroactivity of constitutional rules of criminal procedure under Linkletter v. Walker (1965) 381 U.S. 618 [14 L.Ed.2d 601, 85 S.Ct. 1731]. We noted: “‘The guarantee against double jeopardy is significantly different from procedural guarantees held in the Linkletter line of cases to have prospective effect only. While this guarantee, like the others, is a constitutional right of the criminal defendant, its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial.‘” (In re Bryan, supra, 16 Cal.3d at p. 786, quoting Robinson v. Neil (1973) 409 U.S. 505, 509 [35 L.Ed.2d 29, 93 S.Ct. 876] [applying new rule retroactively because old rule violated double jeopardy; court lacked authority to try defendant].) We found it unnecessary to apply
The Attorney General‘s attempt to distinguish In re Bryan is unpersuasive. She primarily relies on Griffith v. Kentucky (1987) 479 U.S. 314, 328 [93 L.Ed.2d 649, 107 S.Ct. 708], in which the high court held that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” (Italics added.) The Attorney General evidently reasons that the phrase “not yet final” embraces either an implied holding or a negative inference that such rules do not apply retroactively to decisions that are final. Based on this reading of Griffith v. Kentucky, the Attorney General argues that because defendant‘s 1971 conviction was already final at the time the high court decided Breed, the “new rule” in Breed could not be applied retroactively to defendant‘s case. Her reliance on Griffith v. Kentucky is misplaced.
In Griffith v. Kentucky, the high court held that new rules of criminal procedure always apply to cases that are not yet final. It “rejected as unprincipled and inequitable the Linkletter standard for cases pending on direct review at the time a new rule is announced.” (Teague v. Lane (1989) 489 U.S. 288, 304 [103 L.Ed.2d 334, 109 S.Ct. 1060].) Contrary to the Attorney General‘s contention, the court expressed no view in Griffith v. Kentucky on whether such rules apply retroactively to cases that are already final. (Griffith v. Kentucky, supra, 479 U.S. at p. 329 (conc. opn. of Powell, J.) [retroactivity question regarding habeas corpus petitions is “carefully left open“].) It addressed that question of collateral review in Teague v. Lane, supra, 489 U.S. 288.
In Teague v. Lane, the high court concluded that new rules of criminal procedure do not ordinarily apply retroactively to cases “which have become final before the new rules are announced.” (Teague v. Lane, supra, 489 U.S. at p. 310.) However, a new rule may be given retroactive effect if (1) the rule is, in fact, “substantive,” or (2) it is a “‘watershed rule[] of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.” (Schriro v. Summerlin (2004) 542 U.S. 348, 351-352 [159 L.Ed.2d 442, 124 S.Ct. 2519], italics omitted; see Teague v. Lane, supra, 489 U.S. at p. 311.) The Attorney General did not refer to Teague v. Lane‘s nonretroactivity principle, and, as such, she did not address whether the rule announced in Breed falls within either exception. We conclude that Breed‘s double jeopardy rule is substantive in nature, and that Teague v. Lane poses no bar to applying Breed retroactively to cases on collateral review. (Schriro v. Summerlin, supra, 542 U.S. at p. 352, fn. 4 [rules falling under Teague v. Lane‘s first exception “are more accurately characterized as substantive rules not subject to the bar“].)
As noted above, the “‘practical result‘” of the guarantee against double jeopardy “‘is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial.‘” (In re Bryan, supra, 16 Cal.3d at p. 786, quoting Robinson v. Neil, supra, 409 U.S. at p. 509; see United States v. Johnson (1982) 457 U.S. 537, 550 [73 L.Ed.2d 202, 102 S.Ct. 2579] [“the Court has recognized full retroactivity as a necessary adjunct to a ruling that a trial court lacked authority to convict or punish a criminal defendant in the first place“].) Using the high court‘s rationale, it seems fair to characterize Breed‘s double jeopardy rule as more substantive than procedural because without the rule‘s retroactive application, a defendant would otherwise “face[] a punishment that the law cannot impose upon him.” (Schriro v. Summerlin, supra, 542 U.S. at p. 352.) In short, we reject the Attorney General‘s argument that the retroactivity rule set out in In re Bryan must be reconsidered in light of relevant high court decisions.
Nevertheless, the Attorney General maintains that even if In re Bryan remains good law, a violation of the constitutional double jeopardy protection may not form the basis of a motion to strike a prior murder conviction in a capital case. Such a motion, according to the Attorney General, may only be based on certain “fundamental constitutional flaws.” (Horton, supra, 11 Cal.4th at p. 1135.) She suggests that In re Reno (2012) 55 Cal.4th 428 [146 Cal.Rptr.3d 297, 283 P.3d 1181], in which the defendant failed to show his double jeopardy challenge involved a fundamental constitutional error, compels us to conclude that a double jeopardy violation is not the type of fundamental constitutional violation that may be asserted in such a motion. Not so.
In re Reno dealt with specific procedural issues that arise when a habeas corpus petitioner collaterally attacks his final conviction and “has reraised all prior appellate claims en masse.” (In re Reno, supra, 55 Cal.4th at p. 485.) Regarding the petitioner‘s double jeopardy claim, which was resolved against him on direct appeal, we concluded it was procedurally barred under In re Waltreus (1965) 62 Cal.2d 218, 225 [42 Cal.Rptr. 9, 397 P.2d 1001]. The petitioner, we found, failed “to allege any facts suggesting the double jeopardy issue falls within” Waltreus‘s narrow exception that the issue “involves a fundamental constitutional error.” (In re Reno, supra, 55 Cal.4th at p. 481, italics added; id. at p. 486 [“we ascribe no weight to these assertions, unadorned as they are by factual allegations or legal argument“].) We also pointed out that the petitioner failed to allege facts or present argument on why his “renewed double jeopardy claim” constituted a structural defect not
We recognize that unlike In re Bryan, where the defendant sought relief by writ of habeas corpus, defendant here collaterally attacks his prior conviction by way of a pretrial motion to strike. This distinction, however, strengthens our conclusion that defendant was permitted to make such a challenge here. Unlike a writ of habeas corpus, a motion to strike does not seek to vacate or extinguish the underlying conviction, which would in turn trigger procedural bars. (Horton, supra, 11 Cal.4th at p. 1138.) “The purpose of a motion to strike is to challenge only the present effect of the prior conviction.” (People v. Sumstine, supra, 36 Cal.3d at p. 921.) Significantly, the collateral challenge here is to a prior conviction alleged as a basis for a death-qualifying special circumstance. (See Horton, supra, 11 Cal.4th at pp. 1137-1138 [procedural bars do not apply to collateral attacks on prior convictions underlying special circumstance allegations].) “In the capital context, a defendant almost invariably will face much graver consequences from the use of the prior conviction, as a predicate for a special circumstance finding, than he or she faced in the earlier criminal proceeding; it is because of those grave consequences, of course, that a defendant has been accorded special procedural protections and assistance in a capital case. In many instances, it may be unfair—and inconsistent with the special need for reliability—to deprive a defendant of the right to demonstrate the invalidity of the prior conviction in the subsequent capital prosecution simply because in the prior proceeding, when much less may have been at stake and the defendant may not have been accorded the same procedural protections, defendant did not prevail on the issue.” (id. at p. 1138.)
For all these reasons, we conclude that defendant may collaterally challenge his 1971 second degree murder conviction.
e. Merits
Turning to the substance of this claim, it is clear that based on Breed‘s retroactive application, defendant‘s 1971 second degree murder conviction was obtained in violation of the double jeopardy clause. (
Nonetheless, we will not disturb the death judgment unless defendant can show prejudice. (See Horton, supra, 11 Cal.4th at p. 1140.) Although the death judgment here was also supported by the multiple-murder special-circumstance finding, we conclude below that special-circumstance-allegation finding must also be set aside. (See post, at p. 258.) Consequently, without either special circumstance finding, we must reverse the penalty judgment.
2. The prosecution‘s refiling of the Apodaca murder charge
Defendant argues that the trial court erred by allowing the prosecution to refile the Apodaca murder charge, which he contends had been previously dismissed three times. (See
a. Procedural history
The facts of Apodaca‘s killing are discussed above. (See ante, at pp. 238-240.) As relevant here, Apodaca was killed on January 23, 1987. On February 5, 1987, the People charged both defendant and Jesse Salazar for the first degree murder of Apodaca (case No. A795989). (
On March 25, 1987, the People refiled the first degree murder charge with the prior murder special-circumstance allegation against defendant (case No. A798706). At the April 8, 1987 preliminary hearing, the only eyewitness to Apodaca‘s stabbing death, Robert De Alva, failed to appear. He had apparently not been properly served with a subpoena necessary to procure an arrest warrant. The magistrate declined to find good cause for a continuance, but permitted the prosecution to proceed while it looked for De Alva. The prosecution next called Richard Rivera, the owner of the upholstery shop where Apodaca was killed, who testified he did not see the stabbing happen, but only saw Apodaca lying on the floor afterwards. Later at the hearing, the pathologist who performed the autopsy of Apodaca, Dr. Sara Reddy, testified that the cause of death was a stab wound to the chest. She also opined that Apodaca suffered from a superficial neck wound that was “most likely” caused by a different instrument.
The following day, April 9, the prosecution advised the court that it could not locate De Alva. After questioning whether there was a showing of malice to support the murder charge against defendant, the magistrate held defendant to answer for the lesser offense of manslaughter. On April 24, 1987, the prosecution refiled the information under section 739, charging defendant with murder under the previous case number, A798706, but the information did not include a special circumstance allegation. Ultimately, on June 23, 1987, the trial court granted defendant‘s motion to dismiss the information under section 1382 after the prosecution advised that it still could not locate De Alva.
More than a decade later, on June 1, 1998, the prosecution filed a three-count felony complaint, charging defendant in count 2 with the first degree murder of Apodaca and alleging special circumstances of multiple murder and prior murder. The following year, on July 27, 1999, defendant filed a motion to dismiss the Apodaca murder charge, contending that the prosecution had exceeded the number of refilings permitted under section 1387. The prosecution conceded that there were two dismissals of the Apodaca murder charge. However, it argued that the third refiling was permissible under section 1387.1, and that there was a showing of excusable neglect. Defendant, however, countered that because section 1387.1 became effective after the Apodaca murder charge was dismissed for a second time in
Before ruling on these issues, the trial court held a hearing in August 1999 to determine whether the prior dismissals were due to the prosecution‘s “excusable neglect.” (
Both the Court of Appeal and this court, respectively, denied defendant‘s writ of prohibition and petition for review. The jury subsequently convicted defendant of second degree murder. Defendant renews these claims on appeal.
b. Legal principles
Under section 1387, felony prosecutions are generally “subject to a two-dismissal rule; two previous dismissals of charges for the same offense will bar a new felony charge.” (Burris v. Superior Court (2005) 34 Cal.4th 1012, 1019 [22 Cal.Rptr.3d 876, 103 P.3d 276].) Put another way, section 1387 allows for only one previous termination or dismissal of a felony. (People v. Superior Court (Martinez) (1993) 19 Cal.App.4th 738, 745 [23 Cal.Rptr.2d 733].) The Attorney General does not dispute that section 1387 would have prohibited the 1998 refiling of the Apodaca murder charge, which was dismissed twice in 1987. The point of contention involves section 1387.1, which was enacted in 1987 and became effective January 1, 1988. It provides an exception to the “two-dismissal rule“: it permits the prosecution to file a violent felony charge a third time if either of the prior dismissals were due to “excusable neglect,” and the prosecution did not act in “bad faith.” (
Although the Latin term “ex post facto” literally extends to any statute passed “‘after the fact‘” (Collins v. Youngblood (1990) 497 U.S. 37, 41 [111 L.Ed.2d 30, 110 S.Ct. 2715]), “no statute falls within the ex post facto prohibition unless ‘two critical elements’ exist.” (John L., supra, 33 Cal.4th at p. 172.) The statute must be retroactive, and must implicate at least one of the four categories described in Calder v. Bull (1798) 3 U.S. (3 Dall.) 386, 390 [1 L.Ed. 648]. (John L., supra, 33 Cal.4th at p. 172.) To be considered retroactive, the law must “‘change[] the legal consequences of an act completed before [the law‘s] effective date,’ namely the defendant‘s criminal behavior.” (Tapia v. Superior Court (1991) 53 Cal.3d 282, 288 [279 Cal.Rptr. 592, 807 P.2d 434]; accord, John L., supra, 33 Cal.4th at p. 172.) “In other words, the operative event for retroactivity purposes, and the necessary reference point for any ex post facto analysis, is criminal conduct committed before the disputed law took effect.” (John L., at p. 172.) As to the second element, the four Calder categories encompass laws that (1) criminalize conduct that was innocent when done; (2) aggravate or make greater a crime than when committed; (3) change and increase the punishment; and (4) alter the rules of evidence to reduce the legal sufficiency necessary to support a finding of guilt. (See Calder, supra, 3 U.S. (3 Dall.) at p. 390; People v. Brown (2004) 33 Cal.4th 382, 391 [15 Cal.Rptr.3d 624, 93 P.3d 244].)
c. Application
As discussed, the parties agree that after the Apodaca murder charge was dismissed a second time in June 1987, section 1387‘s two-dismissal rule barred any additional refiling. The Attorney General, however, argues that the subsequent enactment of section 1387.1 permitted defendant‘s prosecution for the same offense 10 years later. Defendant counters that this third refiling in 1998 would amount to a retroactive application of section 1387.1 in violation of the federal Constitution‘s ex post facto clause. Relying on Stogner v. California (2003) 539 U.S. 607 [156 L.Ed.2d 544, 123 S.Ct. 2446] (Stogner), defendant argues that section 1387 “operates precisely like a statute of limitations,” and that by allowing the prosecution to refile a third time under section 1387.1, the trial court unconstitutionally revived an otherwise barred prosecution. We conclude that because a retroactive construction of section 1387.1 would violate the ex post facto clause, the statute does not apply to cases that were twice dismissed before it was enacted. (Rust v. Sullivan (1991) 500 U.S. 173, 190 [114 L.Ed.2d 233, 111 S.Ct. 1759] [a statute “‘ought not be construed to violate the Constitution if any other possible construction remains available‘“].)
Seeking to distinguish Stogner, the Attorney General emphasizes that there is no statute of limitations on murder and an action “may be commenced at any time.” (
Though the twice-dismissed action against defendant was not time-barred under section 1387, it was nevertheless barred when section 1387.1 was enacted. Under Stogner, what matters is the government‘s attempt “to revive a long-forbidden prosecution,” which the high court described as implicating a “predominating constitutional interest.” (Stogner, supra, 539 U.S. at p. 632; id. at p. 611 [unfairness where “government has refused ‘to play by its own rules‘“].) If section 1387.1 permitted a third refiling of the Apodaca murder charge, it would “retroactively withdraw[] a complete
Given that defendant was improperly charged and subsequently convicted of Apodaca‘s murder, we must reverse the judgment of conviction for second degree murder, set aside the jury‘s true finding regarding the multiple-murder special circumstance, and, finally, reverse the judgment of death. Nevertheless, we will discuss defendant‘s additional arguments to the extent they challenge the validity of his convictions for robbery and the first degree murder of Facundo. (See People v. Brents (2012) 53 Cal.4th 599, 614 [136 Cal.Rptr.3d 66, 267 P.3d 1135].)
3. Trial court‘s refusal to sever the murder charges from the robbery charge
Before trial, defendant also moved to sever the two murder charges (count 1 [victim Facundo]; count 2 [victim Apodaca]) from the unrelated robbery charge (count 3 [Spartan Burgers restaurant]). Defendant alleged that the robbery, which occurred more than a decade after the murders of Facundo and Apodaca, had nothing in common with them. Further, while the evidence that defendant committed the robbery was “overwhelming,” the evidence that he committed the two murders, in particular, the murder of Apodaca, was not. Although the prosecution conceded that the evidence regarding the robbery would not otherwise be cross-admissible in either murder trial, it argued there was “no real prejudice” if the robbery count were not severed. The trial court denied defendant‘s motion to sever, finding that joinder “would not rise to the level of serious prejudice.” On appeal, defendant argues that the trial court‘s refusal to sever the unrelated robbery charge denied him a fair trial by improperly bolstering the prosecution‘s weak evidence of intent on both murder charges. (
As relevant here,
The often-cited factors for severance are “(1) whether the evidence relating to the various charges would be cross-admissible in separate trials, (2) whether some of the charges are unusually likely to inflame the jury against the defendant, (3) whether a weak case has been joined with a strong case or with another weak case, and (4) whether one of the charges is a capital offense or the joinder of the charges converts the matter into a capital case.” (People v. Elliott (2012) 53 Cal.4th 535, 551 [137 Cal.Rptr.3d 59, 269 P.3d 494].) If cross-admissibility of the evidence is present, that is normally enough to justify the trial court‘s refusal to sever the charged offenses. (Alcala v. Superior Court, supra, 43 Cal.4th at p. 1227.) However, the lack of cross-admissibility is not necessarily dispositive for purposes of severance. (People v. Ramirez (2006) 39 Cal.4th 398, 440 [46 Cal.Rptr.3d 677, 139 P.3d 64]; see
For purposes of
As the prosecution conceded at trial, evidence of the robbery would not have been cross-admissible with evidence of either murder. However, we conclude that consideration of the other three factors does not demonstrate a “‘clear showing of prejudice‘” based on the joinder of the robbery charge and the Facundo murder charge, of which defendant stands convicted. (People v. Ramirez, supra, 39 Cal.4th at p. 439.)
Because we are reversing the penalty judgment, the factor whether joinder of the charges converted defendant‘s case from a noncapital case to a capital one is no longer relevant in determining whether defendant suffered prejudice. Based on the foregoing, we conclude that defendant has not made a clear showing of prejudice based on the trial court‘s refusal to sever.
In the end, nothing suggests that the joinder of the robbery charge to the murder charges resulted in “‘gross unfairness‘” depriving defendant of due process of the law. (People v. Soper, supra, 45 Cal.4th at p. 783.) Contrary to defendant‘s suggestion, with respect to this severance issue, “a heightened analysis is no longer called for” in capital cases. (Alcala v. Superior Court, supra, 43 Cal.4th at p. 1229, fn. 19; see
4. Trial court‘s “revocation” of defendant‘s in propria persona status
Defendant claims that the trial court improperly terminated his in propria persona status by relying on defendant‘s loss of library privileges in jail and the seriousness of the charges against him as grounds for revocation. Alternatively, he maintains that he did not “validly” sign the substitution of attorney form because he misunderstood that the loss of library privileges would inevitably lead to such revocation, and the trial court should have corrected his misapprehension of the law. For reasons that follow, we find this claim meritless.
With Attorney Andrew Stein as advisory counsel, defendant continued to represent himself at pretrial hearings until November 1998, when his in-custody in propria persona privileges at the Los Angeles County jail were revoked. A search of defendant‘s cell had yielded items from the law library, 750 milligrams of the drug methocarbamol, and a black ballpoint pen, the possession of which violated jail rules. On December 3, 1998, defendant appeared in court with Attorney Stein after signing a substitution of attorney form. Stein informed the court that defendant told him he was willing to relinquish his in propria persona status. Defendant added: “Involuntarily, by the way.” Defendant explained that he said “involuntarily because I‘ve been told by numerous people that today my pro per status was going to be revoked regardless of what transpires today.” Alleging that the sheriff‘s department was not treating him fairly, defendant claimed he would not get a fair trial representing himself and that “my only recourse is to give up my pro per status and go with Mr. Stein.”
Insisting on making an appropriate record, the prosecution emphasized that even though defendant had lost his library privileges, this did not mean he could not remain in propria persona and that Stein, as advisory counsel, could supply any needed research material. The prosecution, however, added: “Obviously, obviously, the appropriate choice to make on behalf of the defendant is to have a lawyer represent him because it is a death penalty
Attorney Stein agreed with the prosecution that it was in defendant‘s best interest to be represented by counsel and asserted that “without me as his attorney or without an attorney, Mr. Trujeque would try to do what
However, when the prosecution later asked defendant what he wanted to do, he said: “I want to represent myself and have access and be allowed to have access to the law library.” After defendant conferred with Attorney Stein off the record, Stein said “I think the court already said they‘ve accepted the substitution of attorney.” The prosecution, which was “not happy with the record,” asked that the court make a ruling on the substitution of attorney, noting that documents submitted “indicate that his pro per status should be, in fact, withdrawn from privileges at the county jail.” After recounting why defendant‘s in-custody in propria persona privileges had been revoked for cause, the court noted it had inquired and confirmed that defendant did not sign the substitution of attorney form out of duress or force. It accepted the form “[b]ased on the seriousness of the charges, [and] the fact that a substitution of attorney was voluntarily and willingly signed.” On appeal, defendant claims the trial court erroneously revoked his in propria persona status in violation of the Sixth and Fourteenth Amendments. (
Under Faretta, a defendant “must be free personally to decide whether in his particular case counsel is to his advantage,” even though “he may conduct his own defense ultimately to his own detriment. . . .” (Faretta, supra, 422 U.S. at p. 834.) This right to self-representation extends to capital prosecutions. (People v. Elliott, supra, 53 Cal.4th at p. 592.) However, the right “once asserted, may be waived or abandoned.” (People v. Dunkle (2005) 36 Cal.4th 861, 909 [32 Cal.Rptr.3d 23, 116 P.3d 494]; see Indiana v. Edwards (2008) 554 U.S. 164, 171 [171 L.Ed.2d 345, 128 S.Ct. 2379] [self-representation right is not absolute].) A defendant‘s waiver or abandonment of this constitutional right should be voluntary, knowing, and intelligent (People v. D‘Arcy (2010) 48 Cal.4th 257, 284 [106 Cal.Rptr.3d 459, 226 P.3d 949]); such waiver or abandonment may be inferred from a defendant‘s
We first point out that, contrary to defendant‘s assertion, the trial court did not in fact revoke defendant‘s in propria persona status.10 Before it accepted defendant‘s substitution of attorney form, the court noted only that defendant‘s in propria persona privileges had already been revoked at an administrative hearing. Defendant‘s chief complaint rather is that he mistakenly believed his loss of library privileges would necessarily lead to the revocation of his in propria persona status, a misapprehension the trial court failed to correct. (See People v. D‘Arcy, supra, 48 Cal.4th at pp. 286-287 [defendant allegedly relied on court‘s misadvisement when relinquishing his Faretta right]; cf. People v. Carter (1967) 66 Cal.2d 666, 670 [58 Cal.Rptr. 614, 427 P.2d 214] [defendant ineffectively waived right to counsel based on mistaken belief reinforced by the court that he would have access to library].) Thus, notwithstanding the fact he signed the substitution form and told the court he understood what this meant, he argues he did not “validly” waive his right to self-representation. At the very least, defendant claims it did not “‘reasonably appear[]‘” that he wished to abandon his self-representation, and that the trial court should have had a “‘personal dialogue‘” with defendant to determine whether there was a waiver. (People v. Kenner (1990) 223 Cal.App.3d 56, 61 [272 Cal.Rptr. 551].) We disagree.
Assuming that defendant actually misunderstood the consequences of losing his library privileges, any misunderstanding he had was sufficiently clarified. (See People v. D‘Arcy, supra, 48 Cal.4th at pp. 286-287 [no error where trial court corrected itself after misadvising defendant he could insist counsel present a certain defense if he relinquished right to self-representation].) The prosecution explained to defendant several times that he had “choices,” i.e., either he could remain in propria persona because Stein, as advisory counsel, could provide him the necessary materials and research, or he could have Stein represent him. Stein also informed the court that he
Although the prosecutor and Attorney Stein both made statements suggesting defendant would be better off represented by counsel (see ante, at pp. 261-262), these statements simply recognize the obvious challenges defendant would face as a capital defendant proceeding in propria persona. We conclude they do not demonstrate that defendant was compelled to waive his right to self-representation. In isolation, defendant‘s own assertions that his “only recourse” was to give up his status “involuntarily” may appear troubling; however, our review of the record supports that defendant voluntarily and intelligently relinquished his right. There is “no suggestion that defendant did not understand what he was giving up in confirming that he wished to be represented by counsel, or that he might in fact have wished to represent himself notwithstanding his statements to the contrary . . . .” (People v. Dunkle, supra, 36 Cal.4th at p. 910.)
Contrary to defendant‘s contention, the trial court was not required to question defendant further, especially after it had already asked defendant if he voluntarily signed the substitution form and if he understood what that meant. Defendant was familiar not only with the criminal justice system but with his rights under Faretta, having represented himself several times and having even obtained an acquittal. Indeed, the record portrays defendant as articulate, assertive, and intelligent, capable of arguing fine points relating to investigative funds and discovery matters. Rather than unequivocally expressing a desire to represent himself, defendant‘s main concern appeared to be restoring his library privileges: “I want to represent myself and have access and be allowed to have access to the law library.” (See People v. Stanley, supra, 39 Cal.4th at p. 932 [Faretta right waived unless defendants “‘articulate and unmistakably demand to proceed pro se‘“].) After it became evident that defendant‘s library privileges would not be restored, the record does not indicate, nor does defendant contend, that he raised the Faretta issue at trial again. Based on the circumstance that defendant accepted Stein as counsel and that he did not renew his request for self-representation, “we conclude he must further be found to have ultimately abandoned his desire to invoke his Faretta rights in these capital murder proceedings.” (People v. Stanley, supra, 39 Cal.4th at p. 933.)
1. Trial court‘s ruling sustaining Charlie and Elena Trujeque‘s assertions of the Fifth Amendment privilege
Defendant claims that the trial court erred by allowing Charlie Trujeque to make a blanket assertion of his Fifth Amendment right against self-incrimination at both the guilt and penalty phases without making any inquiry into the validity of the asserted right, and without considering defendant‘s constitutional rights to present a defense, to compel the presence of witnesses and to present a case in mitigation of the death penalty. (
a. Factual background
(1) Guilt phase
At trial, in support of its argument that defendant had falsely implicated Charlie and Elena Trujeque in the Facundo murder and was trying to shift the blame to them, the prosecution intended to call both Charlie and Elena as witnesses. Before they testified, the prosecution informed the trial court that the Trujeques might need attorneys because “there may be Fifth Amendment issues.” The trial court appointed attorneys, Hattie Harris and Anthony Garcia, for Elena and Charlie, respectively. Harris confirmed that she had spoken to Elena and had advised her client to take the stand.
At the guilt phase, Elena testified about Charlene‘s relationship with Facundo and her relationship with defendant. Though first denying that she and Charlie had asked defendant to hurt Facundo, she admitted on cross-examination that Charlie had told defendant to break Facundo‘s arms and legs. Elena conceded she was “on board for that,” but did not think defendant would “stick a knife in his chest.” She denied promising defendant any money for killing Facundo.
After Elena testified, Charlie‘s appointed attorney, Anthony Garcia, informed the court that he had advised his client to assert his Fifth Amendment right against self-incrimination. On the stand, Charlie confirmed he was asserting this right. Though it initially allowed the defense to ask Charlie about his concerns for Charlene and her relationship with Facundo, and to ask about the letters defendant wrote to Charlene, the trial court eventually ruled
(2) Penalty phase
As expected, defense counsel called Charlie to the stand at the penalty phase and attempted to ask him questions about his siblings, including his deceased brother (defendant‘s father), Manuel Trujeque. Charlie invoked the Fifth Amendment privilege through his counsel, and refused to answer any questions. The trial court declined defense counsel‘s request to order Charlie to answer because it reasoned the questions would “lead to what the prosecution‘s contention is, namely, that because of familial relationships, your client did what he did at the behest of this witness and his wife.” The court did, however, allow defense counsel to ask Charlie whether the prosecution had offered him immunity in the Facundo case for asserting his Fifth Amendment rights. Both Charlie and the prosecutor denied there was any such agreement.
After defense counsel proffered the type of questions they would ask Charlie (such as questions about defendant‘s father‘s temper, drug use, and history of physical violence toward defendant‘s mother when she was pregnant with defendant), Charlie reiterated his intent to assert the Fifth Amendment on all these questions. Defense counsel, however, asserted the jury was entitled to hear this information from Charlie about “how Tommy Trujeque got here today. It‘s violence breeds violence. It‘s drug addicts breed drug addicts. It all fits in with what the expert witnesses would testify, and he is the family historian from the Trujeque side.” Rejecting defendant‘s claim that information on the Trujeque family could not have any factual nexus to the Facundo murder, the trial court sustained Charlie‘s assertion of the privilege at the penalty phase as well.
As an alternative to Charlie testifying about defendant‘s family history, defense counsel proposed to call Elena to the stand as a family historian under
b. Legal principles
“It is a bedrock principle of American (and California) law, embedded in various state and federal constitutional and statutory provisions, that witnesses may not be compelled to incriminate themselves. In an oft-cited case, the high court stated that this privilege ‘must be accorded liberal construction in favor of the right it was intended to secure.‘” (Seijas, supra, 36 Cal.4th at p. 304, quoting Hoffman v. United States (1951) 341 U.S. 479, 486 [95 L.Ed. 1118, 71 S.Ct. 814] (Hoffman).) The test from Hoffman provides that “[t]o sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” (Hoffman, at pp. 486-487.) In that regard, a witness’s answers need not in themselves support a conviction under a criminal statute, but may “furnish a link in the chain of evidence” needed to prosecute the witness for a crime. (Id. at p. 486.) Ultimately, a trial court may reject an assertion of the privilege only when it appears to the court “‘perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency’ to incriminate.” (Id. at p. 488; Seijas, supra, 36 Cal.4th at p. 305 [
A witness, however, may not make a blanket assertion of the privilege against self-incrimination. (See U.S. v. Goodwin (5th Cir. 1980) 625 F.2d 693, 701.) A witness’s “say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified....” (Hoffman, supra, 341 U.S. at p. 486.) In other words, a trial court “must make ‘a particularized inquiry, deciding, in connection with each specific area that the questioning party wishes to explore, whether or not the privilege is well-founded.’ [Citation.] Although the witness may have a valid claim to the privilege with respect to some questions, the scope of that privilege may not extend to all relevant questions. The witness may be totally excused only if the court finds that he could ‘legitimately refuse to answer essentially all relevant questions.’ [Citation.]” (U.S. v. Goodwin, supra, 625 F.2d at p. 701.) This has long been the rule in California in both criminal and civil proceedings. (Warford v. Medeiros (1984) 160 Cal.App.3d 1035, 1045 [207 Cal.Rptr. 94].)
c. Application
With respect to Charlie’s privilege, basic questions about his family background and his relationship to defendant, though seemingly innocuous, could have exposed Charlie to prosecution for solicitation of murder or as an accessory to murder. Defendant testified that Charlie had paid him to kill Facundo, and Charlie’s wife, Elena, confirmed that Charlie had asked defendant to break Facundo’s arms and legs. As the prosecution explained, the defense theory was that Charlie “knew by saying to [defendant], go take care of it, take care of the problem, that as a family member, he would do that. He would do the killing, he would take care of the problem for the family.... The mere fact that this witness is related to [defendant] in any way is incriminating to this witness in the context of those facts.” The trial court added that defendant’s proposed question, for instance, about when Charlie’s parents died “by itself perhaps can’t incriminate him, but following that question there will be other questions” that will ultimately lead to the conclusion that defendant killed Facundo at Charlie’s request. The existence of this family relationship, in other words, provided a “link in the chain of evidence” supporting defendant’s motive in the Facundo murder. (Hoffman, supra, 341 U.S. at p. 486.) Under these circumstances, it does not clearly appear that the proffered testimony could not possibly have a tendency to incriminate Charlie. (See
Nevertheless, defendant contends that there were other subjects that Charlie could have safely testified to, but that the trial court “made no inquiry at all” as to the proper scope of the questioning. The record belies this assertion. At the guilt phase, the trial court explored other possible areas for questioning, specifically asking defense counsel, “Other than your desire to question this witness about whether or not he read the contents of the letter, what other
Based on the foregoing, we conclude the trial court did not err in sustaining Charlie’s assertion of the Fifth Amendment privilege. Even assuming that the trial court erred, we conclude any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824] (Chapman).) Defendant asserts that any error was not harmless because Charlie’s assertion of the privilege prevented the jury from hearing evidence that would have reduced the charge or acquitted defendant of first degree murder. Specifically, defendant claims that had Charlie testified, defense counsel could have questioned him on how the murder of Charlene’s cousin, Vicki, by an abusive boyfriend12 intensified the concerns Charlie and defendant had for Charlene, which in turn would have supported defendant’s claim of imperfect defense of others. Defendant also sought to elicit testimony that Charlie did not believe defendant’s letters to Charlene were inappropriate, thus undercutting the prosecution’s theory that defendant killed Facundo because defendant had feelings for Charlene.
Much of the evidence defendant sought to elicit from Charlie was already before the jury. Elena testified not only that she and Charlie were concerned about Charlene’s abusive relationship with Facundo, but that Charlie had specifically asked defendant to hurt Facundo. The trial court, in excluding evidence of Vicki’s murder under
2. Trial court’s refusal to instruct on imperfect defense of another or necessity relating to the Facundo murder
Defendant’s main argument with respect to the Facundo murder was that he acted to protect his cousin, Charlene, from Facundo’s further abuse and
On appeal, defendant argues that the trial court’s failure to give these instructions denied him his right to present a defense, his right to a jury trial, and his right to a reliable penalty determination in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution and analogous provisions of the state Constitution. He reiterates that it was up to the jury, not the court, to determine the credibility and validity of the imperfect defense of others. In particular, he maintains that it was the jury’s province to determine whether he had an unreasonable belief that Charlene was in peril. With respect to his request for an instruction on the necessity defense, defendant similarly posits that the factual dispute regarding the immediacy of the danger Facundo posed, i.e., whether Charlene was injured weeks before the murder or shortly before, should have been resolved by a properly instructed jury and not the court. For reasons that follow, we conclude this claim lacks merit.
a. Imperfect defense of others
“[O]ne who kills in imperfect defense of others—in the actual but unreasonable belief he must defend another from imminent danger of death or great bodily injury—is guilty only of manslaughter.” (People v. Randle (2005) 35 Cal.4th 987, 997 [28 Cal.Rptr.3d 725, 111 P.3d 987] (Randle) [recognizing imperfect defense of others].) To satisfy the imminence requirement, “[f]ear of future harm—no matter how great the fear and no matter how great the likelihood of the harm—will not suffice. The defendant’s fear must be of imminent danger to life or great bodily injury. ‘. . . “[T]he peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with.” . . . [¶] . . . ’ Put simply, the trier of fact must find an actual fear of an imminent harm.” (In re Christian S. (1994) 7 Cal.4th 768, 783
Imperfect defense of others, like imperfect self-defense, is not a true defense, but a shorthand description for a form of voluntary manslaughter. (See People v. Elmore (2014) 59 Cal.4th 121, 134 [172 Cal.Rptr.3d 413, 325 P.3d 951]; Randle, supra, 35 Cal.4th at p. 997 [defendant lacked malice required for murder].) It follows that voluntary manslaughter arising from the imperfect defense of another is a lesser included offense of the crime of murder. (See Randle, supra, 35 Cal.4th at p. 1003; see also People v. Barton (1995) 12 Cal.4th 186, 200-201 [47 Cal.Rptr.2d 569, 906 P.2d 531].) If supported by substantial evidence, a trial court has the duty to instruct on a lesser included offense. (People v. Duff (2014) 58 Cal.4th 527, 561 [167 Cal.Rptr.3d 615, 317 P.3d 1148].) “The duty applies whenever there is evidence in the record from which a reasonable jury could conclude the defendant is guilty of the lesser, but not the greater, offense. [Citations.] That voluntary manslaughter is a lesser included offense of murder is undisputed.” (Ibid.) Ultimately, “[i]t is for the court alone to decide whether the evidence supports instruction on a lesser included offense.” (People v. Prince (2007) 40 Cal.4th 1179, 1264 [57 Cal.Rptr.3d 543, 156 P.3d 1015].)
On appeal, we independently review whether a trial court erroneously failed to instruct on a lesser included offense. (People v. Avila (2009) 46 Cal.4th 680, 705 [94 Cal.Rptr.3d 699, 208 P.3d 634].) We conclude that the trial court did not err in refusing this instruction because there was no evidence that defendant actually, but unreasonably, believed Facundo presented an imminent threat of physical harm to Charlene when defendant killed him. (See Randle, supra, 35 Cal.4th at p. 997.)
By defendant’s own account (established through both his trial testimony and the recorded statement), he was paid by Charlie and Elena to “take care of the problem” and kill Facundo, leading to the inescapable conclusion that he had planned all along to kill him regardless of any imminent danger or threat Facundo posed. This conclusion is bolstered by evidence that on the day of the murder, defendant appeared angry because of Charlene’s black eye and repeatedly asked Charlene whether Facundo would be coming by later because defendant wanted to “meet him and talk to him.” When Facundo came to Charlie and Elena’s house to pick up Charlene, defendant asked if
Even without considering whether defendant was paid to kill Facundo, the evidence strongly supports that defendant killed him mainly because of Facundo’s past physical abuse of Charlene. Defendant testified that Facundo “deserved it. He had it coming.... [¶] For beating up my cousin.” He also admitted he “couldn’t wait to kill him. I didn’t want to wait,” and that he ”could have done it later if I wanted to.” (Italics added.) Defendant’s plan was “to stab him in the heart.” “The only plan I had was to kill him. It didn’t matter where.” Facundo’s past abuse of Charlene and his threats to her were unaccompanied by any intention or ability to carry them out at the time he was killed; thus, they are insufficient to show an imminent threat justifying an instruction on manslaughter as a lesser included offense. (See People v. Humphrey (1996) 13 Cal.4th 1073, 1094-1095 [56 Cal.Rptr.2d 142, 921 P.2d 1].)
Indeed, the record is replete with defendant’s admissions revealing his brazen and single-minded determination to kill Facundo for physically abusing Charlene. In defendant’s own words, “[t]he only plan I had was to kill him” and he “could have done it later if I wanted to.” In short, there was no evidence that defendant actually believed—whether reasonably or unreasonably—that he faced an imminent peril that he had to “’ “instantly deal[] with” ’ ” when he killed Facundo. (In re Christian S., supra, 7 Cal.4th at p. 783, italics omitted; see People v. Michaels (2002) 28 Cal.4th 486, 530-531 [122 Cal.Rptr.2d 285, 49 P.3d 1032].) Thus, his claim based on imperfect defense of another necessarily fails.
Even if defendant exaggerated his own culpability in order to receive the death penalty, there is no other evidence suggesting that the imperfect defense of another was otherwise plausible. There is nothing to suggest his so-called “misguided effort” to protect Charlene from Facundo was based on anything other than his desire to punish Facundo for his past abuse. (See People v. Mendoza (2000) 24 Cal.4th 130, 174 [99 Cal.Rptr.2d 485, 6 P.3d 150] [“Speculation is insufficient to require the giving of an instruction on a lesser included offense.“].)
Defendant’s related claim that the trial court erred in refusing to instruct on the defense of necessity (CALJIC No. 4.43) is equally meritless. “The defense of necessity generally recognizes that ’ “the harm or evil sought to be avoided by [the defendant’s] conduct is greater than that sought to be prevented by the law defining the offense charged.” ’ [Citation.] The defendant, who must have possessed a reasonable belief that his or her action was justified, bears the burden of proffering evidence of the existence of an emergency situation involving the imminence of greater harm that the illegal act seeks to prevent. [Citations.]” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 100 [17 Cal.Rptr.3d 710, 96 P.3d 30].) “To justify an instruction on the defense of necessity, there must be evidence sufficient to establish that defendant violated the law (1) to prevent a significant evil, (2) with no adequate alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief in the necessity, (5) with such belief being objectively reasonable, and (6) under circumstances in which he did not substantially contribute to the emergency.” (People v. Pepper (1996) 41 Cal.App.4th 1029, 1035 [48 Cal.Rptr.2d 877] [deciding factual predicate of defendant’s necessity defense “insufficient as a matter of law“]; see People v. Verlinde (2002) 100 Cal.App.4th 1146, 1164 [123 Cal.Rptr.2d 322] [necessity defense is ” ‘very limited’ ” and ” ‘represents a public policy decision not to punish such an individual despite proof of the crime’ “].) There was no evidence that defendant sought to prevent any imminent harm or that he faced any emergency situation when he killed Facundo.14
3. Trial court’s refusal to admit evidence that defendant’s cousin had been killed by an abusive boyfriend
During the cross-examination of Elena at the guilt phase, defense counsel tried to elicit testimony about the murder of Charlie’s niece (and Charlene and defendant’s cousin), Vicki, who was reportedly stabbed and killed by an abusive boyfriend. Counsel asserted that because of Vicki’s murder, Elena and Charlie were afraid that Facundo would kill Charlene and talked to defendant about their fears, which in turn affected defendant’s state of mind about the threat he perceived Facundo posed to Charlene. The trial court, however, responded that Elena had already admitted that she felt Charlene’s life was in danger because of Facundo. Further, the prosecution maintained that because Elena was not present when Vicki was killed, she lacked personal knowledge about how or why Vicki was killed.
We conclude the trial court did not abuse its discretion in limiting the questioning about Vicki’s murder. (See People v. Minifie (1996) 13 Cal.4th 1055, 1070 [56 Cal.Rptr.2d 133, 920 P.2d 1337] [exclusion of evidence under
Contrary to defendant’s suggestion, by prohibiting questions to Elena about Vicki’s killing, the trial court did not thereby prevent defendant from presenting a defense that he had a heightened anxiety that Facundo would kill Charlene. In fact, the jury heard from defendant himself that Vicki’s boyfriend had stabbed and killed her. Though defendant admitted Facundo “deserved to die because he was beating up” Charlene, defendant did not know whether Charlene and Facundo had the same kind of relationship as Vicki and her boyfriend. Thus, by his own admission, defendant made no connection between Facundo’s murder and Vicki’s killing.
4. Trial court’s admission of expert testimony from a pathologist who did not perform autopsies of victims
Relying on Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177, 124 S.Ct. 1354] and its progeny, defendant claims that the forensic pathologist’s testimony on the two autopsies performed by nontestifying pathologists violated his confrontation rights under the Sixth Amendment. Specifically, defendant maintains that the conclusions in the autopsy reports were testimonial hearsay, and that the prosecution made no showing that the two
At trial, Dr. Eugene Carpenter, Jr., a forensic pathologist who had worked for the Los Angeles County coroner’s office for 11 years and had performed over 4,000 autopsies, testified about the autopsies of both Max Facundo and Raul Apodaca. Dr. Carpenter did not perform or attend either autopsy. Rather, Dr. Eva Heuser performed the autopsy on Facundo on June 23, 1986, and Dr. Sara Reddy performed the autopsy on Apodaca on January 25, 1987. Dr. Reddy also testified and was cross-examined at the preliminary hearings of both defendant and his codefendant at the time, Jesse Salazar, in 1987. Dr. Heuser and Dr. Reddy had both retired from the Los Angeles County coroner’s office at the time of defendant’s trial in 1999.
Before testifying, Dr. Carpenter reviewed the autopsy reports on Facundo and Apodaca, the reports’ attachments, and related photographs. (The record does not reflect that either autopsy report was admitted into evidence.) Dr. Carpenter testified that Facundo suffered at least eight stab wounds, mostly to the chest area and the lungs. He explained that Facundo’s pulmonary artery, aorta, and liver were all injured and that “[e]ach of these injuries is a lethal wound. Each one is capable of causing death to a body within a minute or so.” After reviewing the autopsy report, photographs, and items contained in the report, Dr. Carpenter testified he was “in agreement” with Dr. Heuser’s conclusion that Facundo’s cause of death was stab wounds.
As an initial matter, we note that defendant has not forfeited this issue by failing to object at trial to Dr. Carpenter’s testimony, and the Attorney General does not argue otherwise. (See People v. Harris (2013) 57 Cal.4th 804, 839-840 [161 Cal.Rptr.3d 364, 306 P.3d 1195].) In Crawford, the high court held that a criminal defendant has the Sixth Amendment right to confront and cross-examine any witness who offers a testimonial out-of-court statement against the defendant. (Crawford v. Washington, supra, 541 U.S. at pp. 50-56.) Thereafter, with certain exceptions, the high court extended Crawford’s holding to forensic reports available for use at trial (Melendez-Diaz v. Massachusetts, supra, 557 U.S. 305), and laboratory reports (Bullcoming v. New Mexico (2011) 564 U.S. 647 [180 L.Ed.2d 610, 131 S.Ct. 2705]). (See People v. Dungo (2012) 55 Cal.4th 608, 617-619 [147 Cal.Rptr.3d 527, 286 P.3d 442] (Dungo) [identifying two critical components—formality and primary purpose of testimonial out-of-court statements].)
In the present case, Dr. Carpenter gave his own opinions about the causes of death of Facundo and Apodaca. He testified he “made up my own mind” after reviewing both the autopsy reports and photographs. Dr. Carpenter underscored that he “never said that I told the jury what [Drs. Heuser and Reddy] saw and what they thought. I just read their autopsy report, not their minds.” At the same time, he also described to the jury these nontestifying pathologists’ conclusions regarding Facundo’s cause of death, including expressing whether he agreed with these conclusions. (See People v. Edwards, supra, 57 Cal.4th at p. 707.) Dr. Carpenter explained that he was “in agreement” with “the conclusion by Dr. Heuser that the cause of death [of Facundo] was as a result of stab wounds.”
Even assuming error, we conclude it was harmless beyond a reasonable doubt under Chapman, supra, 386 U.S. at page 24. (See People v. Edwards, supra, 57 Cal.4th at p. 707 [even if testifying pathologist’s statements about another pathologist’s conclusion violated confrontation clause, there was no prejudice]; see also People v. Capistrano (2014) 59 Cal.4th 830, 874 [176 Cal.Rptr.3d 27, 331 P.3d 201].) Regarding victim Facundo, because Dr. Carpenter independently agreed with Dr. Heuser’s opinions and because neither the cause of death, i.e., stab wounds, nor the source of the wounds, i.e., a knife, was in dispute at trial, “no prejudice was possible under any standard.” (People v. Edwards, supra, 57 Cal.4th at p. 707.)
Because we are reversing defendant’s conviction for the second degree murder of Apodaca (see, ante, at p. 258), we do not discuss whether Dr. Carpenter’s testimony regarding Dr. Reddy’s findings on Apodaca’s death was harmless error with respect to this murder conviction. However, with
5. Trial court’s admission of defendant’s redacted letter to the Los Angeles County District Attorney
Over defendant’s objections at both the guilt and penalty phases, the trial court granted the prosecution’s request to admit a letter defendant wrote to then Los Angeles County District Attorney Gil Garcetti in September 1998. In the letter, defendant admitted he murdered both Apodaca and Facundo while “fully aware of all of my mental faculties” and urged Garcetti to seek the death penalty against him.
In moving to exclude this letter under
Despite the redactions, defense counsel argued the letter still contained objectionable statements, most notably the following: “If I had the opportunity to do it over I would cut off their heads and send ‘em both to their family!“; “both of those cowards deserved what they got: death and an early expiration in life, to say the least!“; “the two (2) cowards that I am proud of taking out“; characterizing the murders as “all a big game, and the only reason I lost part of the game, is because I got caught, that’s all“; referring to his gang moniker “El Killer De Varrio White Fence.” Ultimately, the trial
On appeal, defendant renews his claim that this “highly inflammatory” letter to Garcetti should have been excluded altogether under
A trial court’s ruling under
6. Prosecution’s impeachment of defendant with the Rothenberg murder conviction
As discussed earlier, we conclude that defendant’s 1971 conviction for the Rothenberg murder was obtained in violation of the double jeopardy clause, requiring us to set aside the prior murder special-circumstance finding. (See ante, at p. 253.) In a separate claim, defendant asserts that because this constitutionally invalid conviction was also used to impeach defendant’s trial
After the trial court confirmed with defendant that he wished to testify in his own defense against the advice of counsel, defense counsel moved to “sanitize the 30-year-old murder conviction” of Rothenberg right after defendant took the stand. Defense counsel argued that the 1971 murder was extremely remote in time (and committed when defendant was just 16 years old), not probative of a witness’s credibility, and highly prejudicial because defendant was on trial for two other murders. Based on these reasons, counsel urged the court to preclude this impeachment evidence under
On appeal, defendant claims the prosecution improperly used this constitutionally invalid murder conviction to impeach his credibility, and that, in any event, the conviction should have been excluded under
Turning to the merits, we agree with defendant that there was error: “We are convinced that the use of a constitutionally invalid prior conviction to impeach testimonial credibility is improper, and that to allow such impeachment is error under California law.... We think it equally clear that the utilization of such a conviction, at the trial of a subsequent offense, for any purpose leading to a conviction for such subsequent offense, is violative of the due process clause of the Fourteenth Amendment.” (People v. Coffey (1967) 67 Cal.2d 204, 218-219 [60 Cal.Rptr. 457, 430 P.2d 15], citations omitted.)
To determine whether we should reverse the remaining murder conviction, the issue is what, if any, prejudice defendant suffered as a result of the error. Because this error is of “federal constitutional dimension” (People v. Coffey, supra, 67 Cal.2d at p. 218), the beyond a reasonable doubt standard of
As noted above, in addition to the invalid Rothenberg murder conviction, the prosecution impeached defendant with other felony convictions, which defendant testified consisted of “robberies, murder, burglary and assault with a deadly weapon.” Specifically, he admitted on the stand—without reference to any specific underlying facts of the crimes—to the following: a 1977 conviction for two counts of assault with a deadly weapon; a 1979 conviction for attempted murder; a 1989 conviction for four counts of robbery; and a 1998 conviction for robbery. With respect to the Facundo murder charge he was facing, defendant testified (sometimes emphatically) that he killed the victim. Given defendant’s courtroom admissions and his extensive criminal history, we conclude it does not appear “reasonably possible” that the jury’s consideration of the additional second degree murder conviction “materially influenced” its decision to convict defendant of the first degree murder of Facundo. (People v. Coffey, supra, 67 Cal.2d at p. 220.)
Although defendant argues that the prosecution improperly used the Rothenberg murder conviction to establish his propensity to commit murder, the trial court instructed the jury to consider defendant’s prior convictions “only for the purpose of determining the believability of that witness.” (CALJIC 2.23.) We presume the jury understood and followed this instruction. (See People v. Homick (2012) 55 Cal.4th 816, 873 [150 Cal.Rptr.3d 1, 289 P.3d 791].) Likewise, defendant’s
7. Correction to the abstract of judgment
Defendant contends that the abstract of judgment erroneously lists his sentence for the Apodaca murder as 25 years to life under the three strikes sentencing law. This contention (though accurate) is moot because we are reversing the judgment of conviction. Nonetheless, the abstract of judgment
III. CONCLUSION
For the foregoing reasons, we reverse the judgment of conviction for the second degree murder of Apodaca, set aside the prior murder and multiple-murder special-circumstance findings, reverse the judgment of death, and remand to the trial court for resentencing in accordance with this opinion. On remand, the trial court should consider whether to impose any sentence enhancements that were originally stayed pending imposition of the death judgment.
In all other respects, the judgment is affirmed.
Cantil-Sakauye, C. J., Werdegar, J., Corrigan, J., Liu, J., Cuéllar, J., and Kruger, J., concurred.