Lead Opinion
Opinion
A jury convicted defendant Richard Valdez of five counts of first degree murder (Pen. Code, §§ 187, subd. (a), 189)
A. Guilt Phase
On April 22, 1995, the bodies of three adults—Anthony “Dido” Moreno, his sister, Maria Moreno, and Gustavo “Tito” Aguirre—and two of Maria’s children—five-year-old Laura Moreno and six-month-old Ambrose Padilla— were found at Maria’s apartment on Maxson Road in El Monte, California.
1. Prosecution Evidence
The Mexican Mafia was formed in 1957 as a prison gang and, by 1977, controlled most of the criminal activity inside California’s prisons. Eventually, it extended its influence outside of the prison system and came to exert control over virtually all Hispanic street gangs in Southern California, including Sangra and El Monte Flores. Hispanic gang members are essentially “soldiers” of the Mexican Mafia and would probably be beaten up or killed for refusing to carry out a Mexican Mafia order. Mexican Mafia members take a “blood oath” when they join and “death is the only way out”; those who attempt to leave the gang are eventually killed, even 10 or 15 years after their disassociation. Dido was a member of the Mexican Mafia from 1973 until he dropped out in the mid-1980’s. In January 1995, Raymond Shyrock, a Mexican Mafia leader, stated at a Mexican Mafia meeting: “I don’t know if you have ever heard of this brother Dido. He dropped out a long time ago. He’s in an apartment where I was living. The mother fucker was living right downstairs but never showed his face. All kinds of people in the pad, bunch of young sisters and kids, all kinds of shit. So I’m trying to figure out how to—I need a silencer is what I need.”
On April 22, 1995, Dido and Maria were living in Maria’s apartment along with her children. In the afternoon, a car parked in Maria’s driveway. Simultaneously, a Jeep containing four Hispanic men stopped in front of a neighbor’s driveway and idled. Early that afternoon, Sangra gang member Anthony “Scar” Torres had borrowed a Jeep for about 10 to 20 minutes from Sangra gang member Victor Jimenez. Four tall, bald, Hispanic men wearing white T-shirts exited the car. One of them had a tattoo on his neck with chain letters. Another had a heavy build. The four men walked toward Maria’s residence.
In the late afternoon, Palma asked fellow Sangra gang member “Witness No. 16” for a ride to his sister’s house. While the two men drove around, Palma said he was expecting a page and, after receiving it, would need Witness No. 16 to take him to the Alhambra house of fellow Sangra gang member Torres. Palma said “they had to take care of something” and “the brothers wanted him.”
“Witness No. 13,” who was Torres’s sister, arrived at Torres’s house about 7:00 or 7:30 p.m. A short time later, two men arrived looking for Torres; one had a “Sangra” tattoo on his neck and said his name was Jimmy. Jimmy Palma had a “Sangra” tattoo on his neck. Torres was not at home, and the two men left. Torres later arrived at the house accompanied by defendant, who was a Sangra gang member known as “Primo.” They went into Torres’s room and started mating telephone calls. More Sangra gang members, including Palma, Logan, Jose “Pepe” Ortiz, “Creepy,”
Sometime before 9:00 p.m., the men left for El Monte in two groups. Logan drove in his Nissan Maxima with defendant, Palma and Torres, and Witness No. 16 followed in his Ford Thunderbird with Ortiz and Creepy. When they arrived in El Monte, Logan pulled into, or stopped in front of, Maria’s driveway on Maxson Road and turned off his headlights. Witness No. 16 drove a few blocks further down the street, pulled over, and turned off the car and the headlights. Ortiz exited the Thunderbird, walked back toward Maxson Road and looked up and down the street. According to several witnesses who were visiting Maria’s neighbors that night, the driver of the Nissan remained in the car while three Hispanic men exited and walked down Maria’s driveway. After six to eight gunshots rang out, the three men—one holding a handgun—ran back to the Nissan, which then drove away with its lights off. “Witness No. 8,” who was one of Maria’s neighbors, also heard several gunshots at Maria’s apartment. A short time later, Maria’s six- or seven-year-old son—crying, screaming, and covered in blood—came to Witness No. 8’s house and said his mother and siblings had been shot. Witness No. 8 then called the police.
Ortiz returned to Witness No. 16’s car as police began to arrive and said “Let’s go,” “Let’s get out of here.” When they returned to Torres’s house, Logan’s Nissan was already in the driveway and defendant, Palma, Logan and Torres were inside listening to a police scanner “to see if the people were dead.” The men began discussing the shootings on Maxson Road. In front of defendant, Palma said that, while he showed a man some heroin, “Primo had shot him in the head.” He also said that, “after the man had got shot,” “the lady with the baby said that it wasn’t her problem,” at which point he “pulled out the gun and shot her and let off rounds on the kids.” Defendant confirmed Palma’s statements, explaining that “he had shot one guy in the temple and another guy running away from him.” Torres said he had “stood by the door with the shotgun making sure nobody would walk up.” Logan drove the Nissan and waited in the car while the murders took place.
Responding to Witness No. 8’s call, police arrived at the scene of the shooting about 10:40 p.m. They found Dido lying on the ground in a pool of blood just outside the door to Maria’s apartment. Inside the door, Maria was lying facedown on the floor in a pool of blood. Next to her, Laura was lying facedown in a pool of blood and Ambrose was lying on his back with a gunshot through his eye. Tito was lying facedown between the bed and the wall. A three- or four-year-old girl was hiding in the comer.
During subsequent investigation, police discovered ballistics evidence linking defendant to the Maxson Road shootings. In a house he had lived in until early April 1995, they found an expended .38- or .357-caliber bullet. They recovered similar caliber bullets from a bathroom wall at Maria’s apartment and from Tito’s head. All three bullets had the same general rifling characteristics and had been fired from a revolver. In a condominium defendant had moved into shortly before the shootings, police found in a bedroom closet a bag of unexpended bullets, some of which were .45 caliber. They recovered two .45-caliber bullets from Maria’s body and, at the crime scene, several .45-caliber bullet fragments, a complete .45-caliber bullet, and several .45-caliber shell casings. The bullets recovered from Maria’s body and the bullet and bullet fragments had all been fired from the same semiautomatic weapon. In addition, the .45-caliber shell casings had at some point been chambered in the same firearm as the two unexpended .45-caliber bullets found at defendant’s condominium.
Police also discovered and collected other evidence linking the various participants to each other and to the shootings. Pager and telephone records showed that Maciel was paged three times from Ortiz’s residence on April 22, 1995, and five times from Torres’s house that evening between 9:20 and 11:00 p.m. Between 11:00 p.m. and midnight that night, five calls were placed from Torres’s residence to a pager registered to Veronica Lopez, who was defendant’s former girlfriend. The next day, Maciel was paged once from Ortiz’s residence, twice from Torres’s, and three times from Palma’s.
The morning of May 2, 1995, police saw Logan arrive in his Nissan at Palma’s house. Defendant was in the passenger seat. They left after speaking
On May 15, 1995, about two hours after police arrested Palma and took him to the Los Angeles County jail, a call was placed from the jail to the condominium defendant had moved into in early April. About 10 minutes later, a call was made from the jail to Palma’s residence. Less than 30 minutes later, a call was made from the condominium to Logan’s residence. About 50 minutes later, a collect call was made from the jail to the condominium. After the call to Logan’s residence but before the last call to the condominium, police saw Torres leave the condominium in a Jeep. They pursued Torres, who eventually abandoned the Jeep, fled on foot, and took refuge in the house of his girlfriend, Jill Steele. They surrounded the house and would not let Steele enter. She spoke with Torres by telephone and then, at his request, called defendant. Meanwhile, police spotted Logan at a nearby restaurant with another Sangra gang member. In Logan’s Jeep, they found a change of clothes. Eventually, they entered Steele’s house and arrested Torres.
2. Defense Evidence
Defendant denied any involvement in the murders. He maintained that, although he had once been a Sangra gang member, he was not a member at the time of the murders. He attempted to elicit testimony to support this contention during cross-examination of several prosecution witnesses. He also offered a stipulation that Torres’s mother, who shared her house with Torres, had not identified him from a photographic lineup. During cross-examination of other prosecution witnesses, defendant attempted to develop evidence that a gang called the Border Brothers may have committed the murders because Tito had robbed drug “connections” associated with that gang.
Defendant also called three witnesses. His best friend, Randi Chavers, testified that he had never seen a gun in defendant’s residences and had seen defendant shoot a gun only once, at a public shooting range in 1993. Richard Valdemar, a gang expert who was also a prosecution witness, testified that, after listening to an enhanced recording of Shyrock’s comments at the January 1995 Mexican Mafia meeting, he did not believe Shyrock had ordered the children killed and had not intended that they be killed. Defendant introduced this testimony to counter Valdemar’s earlier testimony, based on an unenhanced recording of the meeting, that Shyrock had wanted to “silence” Maria and her children. Trent Hampton, defendant’s stepfather, testified that defendant was in Utah during all of May 1995. To support this
Palma called one witness, David Hooker, a state prisoner who testified regarding his conversations with Witness No. 14 while they were in prison together. Witness No. 14 testified for the prosecution that, during a meeting with Maciel on April 22, 1995, Palma said he was “going to take care of some business” for Maciel and was “strapping.” According to Hooker, sometime in May 1996, Witness No. 14 said he was in protective custody because the Mexican Mafia had a “green light” on him due to his “involve[ment] in a thing where some kids got killed during a murder.” Witness No. 14 explained to Hooker that (1) he sold drugs in partnership with a Mexican Mafia member, (2) on the day of the murders, he threatened a customer who owed money for drugs, and (3) when the customer did not pay despite the threat, he went to the Mexican Mafia member and “arranged to get some vatos from San Gabriel to take the puto out.”
B. Penalty Phase
In its case-in-chief, the prosecution presented no additional evidence in aggravation against defendant.
Through several witnesses, defendant presented evidence regarding his upbringing, including the following: (1) he was raised and educated in the Catholic religion and received the sacraments of reconciliation and holy communion; (2) in grade school he played Pop Warner football and Little League baseball; (3) in a ninth grade electronics class, he received an A one semester and a B another semester, and in both semesters received an “O” for “outstanding citizenship”; (4) the teacher of the electronics class viewed defendant as being “very responsible,” “hard working,” intellectually above average, and one of his better students; (5) in 1992, he enrolled in ITT Technical Institute after receiving high scores on the entrance examination; (6) he joined the Navy Reserve and participated in naval duties; and (7) while living with his grandfather after high school, he cared for his grandfather, worked at an auto body shop and a print shop, and helped support his younger brother, who was heavily into drugs.
Defendant presented testimony from three witnesses about his ability to make a positive contribution in prison. Dr. Ronald Fairbanks, a licensed clinical psychologist who interviewed defendant twice, testified that defendant likely had “above average” intellectual abilities and could be productive
In rebuttal to defendant’s evidence, the prosecution presented testimony from Anthony France, who had been a campus supervisor at San Gabriel High School when defendant was a student. According to France, in December 1991, he detained defendant after breaking up a fight on campus. Defendant called another supervisor his “bitch” and threatened to “kick his ass.” Defendant later told France he was “going to put a bullet in [France’s] head.” On cross-examination, France testified he had not taken defendant’s threat seriously, it was not the first time a student had threatened him at a high school, and defendant’s threat to put a bullet in his head was a “standard phrase” students used when security officers broke up fights.
II. Procedural History
On September 20, 1995, a Los Angeles County Grand Jury returned an indictment charging defendant, Palma, Logan, and Torres with five counts of murder in connection with the events of April 22. As to each count, the indictment also alleged a multiple-murder special circumstance (§ 190.2, subd. (a)(3)) and gang and weapon enhancements (§§ 186.22, subd. (b)(1), (2), 12022, subd. (a)(1), 12022.5, subd. (a)). In December, the grand jury returned an amended indictment containing identical charges and adding Ortiz and Maciel as defendants. In September 1996, the court ruled that defendant and Palma would be tried together before a single jury and ordered separate trials for the other defendants.
Jury selection began on September 30, 1996, and a jury was sworn on October 17, 1996. Counsel began opening statements on October 21, 1996. The jury began guilt phase deliberations on November 18, 1996, and declared an impasse on November 25, 1996. It resumed deliberations after further instructions from the court. On November 27, 1996, the court excused a juror who declared she could not, under any circumstances, impose the death penalty and could not be objective during the guilt phase in light of the possibility of a penalty phase. It replaced the juror with an alternate and, on December 2, 1996, instructed the jury to begin deliberations anew. On December 4, 1996, the jury returned guilty verdicts on all counts and found all allegations true. The penalty phase began on December 9, 1996, and concluded on December 13 with jury verdicts of death. On June 11, 1997, the
III. Discussion
A. Nondisclosure of Witnesses’ Identities
Defendant alleges numerous errors in connection with protective orders the trial court issued delaying and limiting disclosure of the identities of certain prosecution witnesses. For reasons explained below, defendant’s claims fail.
1. Background
At the prosecution’s request, on September 29, 1995, nine days after the return of defendant’s indictment, the Honorable James Bascue, who was the presiding judge of the grand jury, ordered redaction from the grand jury transcripts of the names of 13 grand jury witnesses and certain identifying information regarding a 14th witness. He also ordered defense counsel not to show or provide copies of the transcripts to anyone absent further court order. Judge Bascue found “overwhelming good cause” for these orders based on the prosecution’s showing that the life of anyone who testified would be “extremely and seriously in danger.” On October 19, 1995, Judge Bascue issued a second order sealing the grand jury transcripts and exhibits. The order provided that each defense counsel was to receive a redacted copy of the transcripts, but could not share the transcripts with anyone absent further court order.
About six weeks later, on November 7, 1995, after transfer of the case to the superior court, Judge Robert Dukes revisited the issue upon defense counsel’s motion for greater disclosure of the witnesses’ identities. After conducting an in camera hearing pursuant to section 1054.7, at which the prosecution presented evidence, Judge Dukes ordered continued redaction of the witnesses’ identities and addresses. However, he also ordered the prosecution to make the witnesses available for interview by defense counsel and/or their investigators or for lineups. Judge Dukes’s order also specified that (1) defense counsel could not disclose to their clients, or put into any report, witness identities they discovered as a result of the interviews; (2) the prosecution could provide defense counsel with information about witnesses’ prior convictions if the witnesses’ identities were not revealed; and (3) defense counsel could obtain police reports regarding the crimes if the
A few months later, Judge J. Stephen Czuleger, to whom the case was initially assigned for trial, decided to consider the issue de novo and ordered the prosecution to make a new showing to justify nondisclosure. In March 1996, after the prosecution presented evidence at an in camera hearing pursuant to section 1054.7 and the parties presented argument, Judge Czuleger issued a written order providing (1) the identities of 10 “stranger” witnesses—those who did not know any of the defendants and who were not connected to a gang—and the identity of Witness No. 13 were to remain undisclosed and “[would] be made available at the time the witness[es] testif[y],” and their addresses and telephone numbers were to be “permanently” undisclosed; (2) the identities, addresses, and telephone numbers of the remaining witnesses were to remain undisclosed until further court order; (3) upon 15 days’ written notice, the prosecution was to make any witness available once for a recorded interview by defense counsel at the prosecution’s office, the prosecution could be present during the interview if the witness so requested, and any party could memorialize the interviews by tape recording or stenographic reporter; (4) the prosecution must give defense counsel a record of any convictions suffered by the witnesses, but could redact from that record any case number or identifying information; (5) defense counsel, upon learning a witness’s identity, place of residence, or place of employment could not disclose this information “to any person,” but could disclose a witness’s identity to the client “if such disclosure is necessary to adequately represent their client,” provided that such disclosure as to the “stranger” witnesses and Witness No. 13 could not occur absent prior court order; (6) defense counsel and their investigators could review with their clients police reports, court transcripts, and grand jury proceedings, but could not give any of this material to anyone absent court order; (7) the prosecution could redact from all police reports the witnesses’ names and all information that would reveal their identities, addresses, telephone numbers, or places of incarceration; and (8) until further court order, the previous court-ordered redactions of the grand jury proceedings would remain in effect and the grand jury transcripts, witness lists, and exhibits would remain sealed. Judge Czuleger’s order recited that it was based on “good cause having been shown as to threats and/or possible danger to the safety of witnesses.”
In September 1996, after reassignment of the case for trial to the Honorable George Trammell III, the nondisclosure issue arose again in connection with defense counsel’s request for videotapes of witness interviews. The prosecutor explained his assumption that, under the existing orders, he would disclose the witnesses’ identities to defense counsel “a day or two before they testify.” Judge Trammell, after stating that he could not
During jury voir dire on October 2, 1996, Palma’s counsel complained that the existing court orders, though allowing him to read to his client the information in the police reports and grand jury transcripts, prohibited Palma from actually looking at that material. The prosecution disagreed with defense counsel’s interpretation, arguing that the court’s orders precluded defendants not from reading the material, but from keeping copies of it. Judge Trammell then clarified that, under the court’s orders, defendants could read the material but could not “walk away with it.”
On Wednesday, October 16, 1996, five days before trial began, defendant’s counsel requested that the prosecution provide the witnesses’ names so he could review them with defendant. The prosecutor responded in part that the witnesses were still in danger. He also noted that defendant’s counsel had received “rap sheets as far as [the witnesses’] felony convictions,” and had “been given an opportunity to interview in person the vast majority of the witnesses.” Judge Trammell then explained that, “to strike a balance” between the prosecution’s concern for the witnesses’ safety and defendant’s right to a fair trial, he would “withhold [the witnesses’] names with this understanding, that when one of these witnesses takes the stand that [defense counsel] will have the right before [they] begin cross examination if [they] can give a good cause reason for delaying cross examination because [they] didn’t know who the person was, I will give it to you. In other words, I am not about to let . . . or make [defense counsel] start to cross examine until [they] are fully prepared.” After the court’s ruling, the prosecution indicated its intent to identify the witnesses “within a couple of days of their testimony.” It also stated that it had no objection to giving defense counsel the names of “some of’ the witnesses “on Friday with the understanding that they not tell their clients” the names of the “stranger” witnesses. The court stated that it wanted to defer its decision on the prosecution’s suggestion. After addressing other matters, it concluded the day’s proceedings by stating: “To the extent as the case moves on, if [the prosecution] can keep counsel apprised of who the witnesses next up will be for the next day so that they can use the evening to prepare for cross examination, again, that would be helpful.”
Before opening statements began on October 21, the court asked the prosecution whether it wanted to refer to the witnesses by number or name.
The next morning, before opening statements resumed, the prosecutor expressed concern about using aliases and suggested that the witnesses instead be identified by name in court but only by number in the transcript. During his remarks, the prosecutor noted that he had given Palma’s counsel “the names of the two people who may testify today,” that he had not had “an opportunity to talk to” defendant’s counsel, and that “at the recess at 11:00 we are going to go over the other list of names.” Later that morning, “Witness No. 9”—one of the “stranger” witnesses—began testifying. After a three-hour lunch recess, she resumed her direct testimony. She was followed by Witness No. 8, another of the “stranger” witnesses. Although given the opportunity, defense counsel declined to cross-examine either witness.
The next afternoon, October 23, the prosecution called three more of the “stranger” witnesses: “Witnesses Nos. 1, 2 and 3.” Defense counsel cross-examined two of these witnesses. On October 24, the prosecution called “Witnesses Nos. 13 and 15.” Witness No. 13’s testimony concluded on October 28, after a three-day break. Defense counsel cross-examined both of these witnesses extensively.
The morning of Friday, October 25, the prosecution asked the court to order that defense counsel “not tell . . . their clients which witnesses are going to be testifying the next day.” He explained that, on the previous Wednesday, he had informed defense counsel “in front of their clients” that Witness No. 15 would be testifying on Thursday and that there was evidence steps had thereafter been taken to have the witness killed. He further explained: “I have no problem with telling [defense counsel] the expected order that I believe we’ll have for the rest of the trial. I’ve been letting them know the day before but I will even tell them for the rest of the trial. I have no problem with that whatsoever. And I have told them . . . the true names of the witnesses. But I do want an order. And the mistake I made the other day was saying it in front of the defendants, . . . and I could have cost a man his life. But I do want an order that the defendants not be told by their counsel, the prospective order of witnesses.” The court granted the prosecution’s
In response to the court’s ruling, defendant’s counsel, after stating he was “glad” the prosecution had “been telling us the night before [so] at least we can open the book at least and prepare,” asked that the court give him some time to prepare for cross-examination after a witness takes the stand. The court responded: “If it is a reasonable amount of time, certainly. If it is a couple of days, no. But if it is a matter of 10 or 15 minutes or 20 minutes, I have no problem with that. I think under the circumstances it is reasonable .... Again, I am not real concerned with the time on this case anymore. I am not saying that you can have several days but certainly that’s not an unreasonable request and I am certainly inclined to go along with it.”
Regarding the court’s statement that the danger to the witnesses outweighed any detriment resulting from the defendants’ failure to know who would be testifying the next day, Palma’s counsel then interjected: “One additional matter so the record’s clear as [to] our position on this. ... I think what our position has been ... in this it is not that we just don’t know who the witness is going to be the day before, we don’t know who the witnesses are at all. . . . We have been handcuffed all through the preparation of this case because of this restrictive order and I just want that to be part of the record.” The court responded by assuring Palma’s counsel that he, like defendant’s counsel, would “be given a reasonable amount of time [before beginning cross-examination] and I suppose what is reasonable would depend on the circumstances. You’re not going to find me ... to be trying to rush this case along because ... it’s moving along quite quickly.”
Two more protected witnesses—Witnesses Nos. 14 and 16—subsequently testified for the prosecution. The former testified on October 30, and was cross-examined by both defense counsel. The latter began his testimony on October 31 and, four days later, on November 4, returned to the stand for an extensive cross-examination by defense counsel that consumed almost the entire day of trial.
2. Alleged Violation of Constitutional Rights
Defendant asserts that, by withholding the witnesses’ identities, the trial court violated his constitutional rights to due process, to a fair trial, to confront witnesses and to a reliable determination of death judgment. His assertions lack merit.
We first held in Alvarado that the protective order was valid insofar as it permitted pretrial nondisclosure of the witnesses’ identities. (Alvarado, supra, 23 Cal.4th at pp. 1134-1136.) As a statutory matter, we explained, although the prosecution must generally disclose at least 30 days before trial the names and addresses of persons it intends to call as witnesses at trial (§§ 1054.1, subd. (a), 1054.7), “section 1054.7 establishes that a trial court has discretion to deny, restrict, or defer disclosure for good cause,” which “expressly includes ‘threats or possible danger to the safety of a victim or witness.’ [Citation.]” (Alvarado, supra, at p. 1134.) The trial court properly found good cause, we reasoned, based largely on evidence that the Mexican Mafia had ordered the homicide, posed an extreme danger to government witnesses, had an excellent intelligence network and, before approving a contract to kill a witness, demanded documentation identifying an individual as a government witness. (Id. at pp. 1128-1129, 1136.) Constitutionally, we continued, no authority suggests that section 1054.7, insofar as it authorizes “the denial of pretrial disclosure” based on concerns for witness safety, is “unconstitutional under either the confrontation or the due process clause.” (Alvarado, supra, at pp. 1135, 1134.) Moreover, in rejecting the defendants’ constitutional attacks on pretrial nondisclosure, we relied on high court decisions for the following propositions: (1) “ ‘the right to confrontation is a trial right’ ”; (2) “ ‘[t]here is no general constitutional right to discovery in a
However, we further held that the protective order exceeded constitutional bounds insofar as it authorized “crucial witnesses whose veracity and credibility [were] likely to be central to the prosecution’s case” to testify at trial without disclosing their identities during their testimony, where “nondisclosure would significantly impair the defense’s ability to investigate or effectively cross-examine them.” (Alvarado, supra, at pp. 1146-1147.) In reaching this conclusion, we agreed with the People that “the confrontation clause does not establish an absolute rale that a witness’s true identity always must be disclosed . . . .” (Id. at p. 1146.) However, we continued, “in every case in which the testimony of a witness has been found crucial to the prosecution’s case the courts have determined that it is improper at trial to withhold information (for example, the name or address of the witness) essential to the defendant’s ability to conduct an effective cross-examination. [Citations.]” (Ibid.) “Thus, when nondisclosure of the identity of a crucial witness will preclude effective investigation and cross-examination of that witness, the confrontation clause does not permit the prosecution to rely upon the testimony of that witness at trial while refusing to disclose his or her identity.” (Id. at p. 1151, italics added.)
As defendant concedes, the protective order here at issue did not suffer from the same constitutional infirmity that afflicted the order in Alvarado', it did not authorize permanent nondisclosure of the identity of any witness, crucial or otherwise. Indeed, the record reflects that all but one of the protected witnesses who actually testified at trial identified themselves during their, testimony.
Nevertheless, defendant asserts, the protective order was constitutionally invalid insofar as it allowed the prosecution to withhold the witnesses’
Defendant’s arguments are unpersuasive. As a factual matter, the record does not support defendant’s assertion that the witnesses’ identities were unknown to the defense until the moment the witnesses took the stand. As detailed above, on Wednesday, October 16, 1996, five days before trial began, the prosecution indicated its intent to identify the witnesses “within a couple of days of their testimony” and stated that it was willing to disclose to defense counsel the names of “some of’ the witnesses on Friday, October 18. Before opening statements began on Monday, October 21, the prosecution indicated that it was “willing to give” defense counsel the names of all unidentified witnesses, so long as defense counsel did not repeat the information to anyone “unless [counsel] can articulate a reason why they need to.” The next morning, before opening statements resumed, the prosecution indicated that it had already given Palma’s counsel “the names of the two people who may testify today,” that it had not had “an opportunity to talk to” defendant’s counsel, and that “at the recess at 11:00 we are going to go over the other list of names.” On Friday, October 25, the prosecution indicated that it had “told” defense counsel “the true names of the witnesses,” that it had been telling defense counsel “the day before” which witnesses would be testifying the following day, and that it was willing to tell defense counsel the order of witnesses “for the rest of the trial.” As defendant concedes, this
As a legal matter, governing precedent does not support defendant’s constitutional claim. As the high court has explained, “[t]here is no general
For several reasons, we similarly find no constitutional violation in this case. First, at the same time it authorized pretrial nondisclosure of the witnesses’ identities, the court afforded defendant several methods of investigating those witnesses, including potential sources of impeachment evidence. As detailed above, in early November 1995, almost a year before trial began, the court directed the prosecution to make the witnesses available for interview by defense counsel, authorized the prosecution to provide defense counsel with information about the witnesses’ prior convictions, and authorized defense counsel to obtain police reports regarding the incident. In March 1996, still more than six months before trial, the judge initially assigned for trial ordered the prosecution to make the witnesses available for a recorded interview by defense counsel and to give defense counsel a record of the witnesses’ prior convictions. Second, by October 16, 1996, five days before trial began, defendant’s counsel had in fact received information regarding the witnesses’ prior convictions and had interviewed “the vast majority of the witnesses.” Third, when the court issued a protective order in November 1995, it specifically invited defendant’s counsel to seek amendment of the order should he determine that further disclosure was necessary.
The sixth relevant factor is that the court’s protective orders did not in fact “significantly impair” defendant’s “ability to investigate or effectively cross-examine” the witnesses he maintains were “crucial” to the case against him: Witnesses Nos. 13 through 16. (Alvarado, supra,
During closing argument, defendant’s counsel took full advantage of this cross-examination, hammering hard at the witness’s credibility. Counsel argued that the prosecution’s case against defendant was “centered around” and depended “on the testimony of one man”—Witness No. 16—who “smoked PCP”; who lied to the grand jury and the police regarding his own involvement in the murders, “even after being granted immunity”; who “had a purpose” and “his own agenda”; who “told you a story that would . . . separate him . . . from being an accomplice”; and who “took every step in order not to be involved even though he drove the leader of the pack to the [murder] site.” Defendant’s counsel also emphasized what he believed were inconsistencies in the witness’s testimony, noting that, although he testified he had been to Valdez’s house, he could not find it “when he drove the [sheriff’s] officers around” after the murders.
Palma’s counsel likewise attacked Witness No. 16’s credibility during closing argument, stressing that the witness was a gang member and “a PCP abuser”; that “he was heavily using PCP at the time” of the murders; that he lied the first time he spoke with police about the crimes, saying he did not know anything about them and “lie[d] under oath” to the grand jury; that he initially refused to testify before the grand jury even after being “granted immunity”; that during the time he was in jail for refusing to testify before the grand jury, he was “getting his story together, his version of the truth”; that, in exchange for his trial testimony, he got “out of jail,” received “complete immunity . . . from prosecution for five murders,” got his “dope” and “drunk driving cases taken care of,” and was “relocated out of the area”
As to Witnesses Nos. 14 and 15, we first question defendant’s assertion that these witnesses were “crucial” to the case against him. Neither witness provided any testimony about defendant. The latter testified about his encounter at the Maxson Road apartment some nine hours before the murders occurred (2:30 p.m.) with Maciel and two younger men, one with an El Monte Flores gang tattoo on his arm. He also testified that Tito had robbed drug dealers associated with the Border Brothers, a group that sold drugs in the El Monte area and would kill those who stole their drugs. During closing argument, defendant’s counsel relied on this witness to argue that defendant was not involved in the murders and that members of either the El Monte Flores gang or the Border Brothers committed the murders. Witness No. 14, a member of the El Monte Flores gang, testified that on the evening of the murders, Palma said he “was going to take care of some business” for Maciel, a former El Monte Flores gang member. This testimony supported defendant’s alternate theory that the El Monte Flores gang committed the murders. Thus, these witnesses may have been more crucial to defendant’s defense than to the prosecution’s case against him.
Consistent with his defense, defense counsel made little effort during cross-examination to impeach Witnesses Nos. 14 and 15. Instead, he focused his efforts on developing evidence that members of the Border Brothers or the El Monte Flores gang, rather than Sangra gang members, committed the murders. Palma’s counsel, however, thoroughly cross-examined both witnesses at trial, exposing their criminal backgrounds and their extensive drug use.
Also unpersuasive is defendant’s assertion that Witness No. 13 was crucial to the prosecution’s case against him. Witness No. 13 testified that sometime before 8:30 or 9:00 p.m. on April 22, 1995, defendant and Torres arrived together at Torres’s house, went into Torres’s room and began making telephone calls, and were later joined by other Sangra gang members, including Logan. However, Torres’s mother, whose identity was not withheld from defendant, similarly testified that, beginning about 6:00 p.m. on April 22, 1995, several of Torres’s friends, including defendant, arrived at Torres’s house and went into Torres’s room. During closing argument, defendant’s counsel stated, “There’s no doubt that [Torres’s mother] was credible.” He also stated that both Witness No. 13 and Torres’s mother were “the most credible witnesses so far that have come along.” Given that Witness No. 13’s testimony substantially duplicated that of Torres’s mother and that defendant’s counsel conceded at trial that both witnesses were credible, his claim that the delayed disclosure of Witness No. 13’s identity hampered his defense fails.
Regarding the “stranger” witnesses, defense counsel conducted little or no cross-examination. However, these witnesses testified only briefly about their observations on the day of the murders, and none of them identified defendant, Palma, or anyone else. In fact, three of them testified they could not identify anyone they saw that day, and a fourth said he could not describe anyone he saw. One of the former testified she was “positive” none of the people she saw was in court. Thus, defendant’s professed inability to determine whether these witnesses harbored any bias or prejudice against him or other defendants, whether they had reason to testify falsely, or where they were when they made their observations, did little, if anything, negatively to
Defendant’s arguments as to why the trial court’s efforts to protect his ability to put on a defense were insufficient are unpersuasive. Defendant asserts that the possibility of a continuance was “patently inadequate” given that the witnesses’ identities were not disclosed until immediately before their testimony and the court indicated it would consider delaying cross-examination only for “10 or 15 or 20 minutes.” However, as explained above, defendant is incorrect in asserting that the witnesses’ identities were not disclosed until the moment they took the stand. Moreover, as the People assert, the record indicates that the court made its comment about delaying cross-examination for 10, 15, or 20 minutes in the context of discussing its order precluding defense counsel from disclosing the order of witnesses to their clients, not with respect to the disclosure of the witnesses’ identities to defense counsel. With regard to the disclosure of the witnesses’ identities, as explained above, in September 1996, the court gave defense counsel its “word” that it would grant “a mid trial continuance” if counsel showed they needed to investigate the witnesses after disclosure of their identities, and on October 16, 1996, just five days before trial began, it again told defense counsel: “[W]hen one of these witnesses takes the stand . . . you will have the right before you begin cross examination if you can give a good cause reason for delaying cross examination because you didn’t know who the person was, I will give it to you. In other words, I am not about to let you or make you
For several reasons, defendant also errs in arguing that, by “prohibit[ing]” his counsel “from discussing any matter with [him] that might disclose the identity of [protected] witnesses,” the court’s order “[i]nevitably . . . undermined” his “confidence in his counsel,” thus “fundamentally interfering] with the attorney-client relationship.” First, the court’s order was not as restrictive as defendant asserts. As explained above, the order permitted defendant’s counsel to review with defendant police reports, court transcripts, and grand jury transcripts, redacted to protect identifying information. It also provided that, upon discovering the identities of Witnesses Nos. 14, 15, and 16—who were three of the four witnesses defendant now asserts were “crucial”—defendant’s counsel could disclose that information to defendant “if such disclosure [was] necessary to adequately represent” him. Even as to the remaining witnesses-—the “stranger” witnesses and Witness No. 13—the order did not forever bar counsel, upon discovering a witness’s identity, from disclosing that information to defendant; it simply required that counsel obtain a “court order” authorizing disclosure. Thus, the order only minimally inhibited communication between defendant and his counsel. Second, to the extent the order prevented information sharing, it should not have undermined defendant’s confidence in counsel. Counsel could simply have explained that the court’s order precluded him from sharing certain information with defendant. Though defendant might have been unhappy with the order, he would have had no basis for losing confidence in counsel as a result of the court-ordered nondisclosure.
Defendant next errs in asserting that pretrial nondisclosure prevented him from developing and pursuing a viable defense theory—that the murders were carried out not by Sangra gang members, but by members of the El Monte Flores gang. The only way in which defendant asserts that pretrial nondisclosure hampered development of this theory was by “effectively preventing]” him from establishing that Witnesses Nos. 14 and 15 “were trying to falsely implicate members of the rival Sangra gang” and/or “were trying to protect fellow members of El Monte Flores (perhaps out of a sense of gang loyalty or
Finally, defendant errs in asserting that we must reverse because the trial court, in March 1996, ordered that the addresses of the “stranger” witnesses and of Witness No. 13 be “permanently” undisclosed. As already explained, that information was “inconsequential to the defendant’s right to a fair trial under the facts presented. [Citations.]”
3. Alleged Violation of Work Product Protection
Defendant asserts the trial court, by “requiring]” his counsel to interview the protected witnesses “in the presence of the prosecutor” and authorizing any party to memorialize the interviews, violated his counsel’s work product privilege. According to defendant, “[t]he questions defense counsel . . . asked of prospective prosecution witnesses necessarily revealed the very substance of the attorney’s strategies with respect to the witnesses, which information is protected under the constitutionally mandated work product privilege of a criminal defense attorney.” At trial, defendant asserts, the prosecution “used the fruits of’ this work product violation “to bolster the testimony of [its] witnesses,” “to deter impeachment by the defense,” and “to falsely insinuate that the defense had been afforded a fair and independent opportunity to investigate the case.” Defendant insists that this use by the prosecution of defense counsel’s interviews prejudiced his case and requires reversal.
For several reasons, defendant’s argument fails. Procediirally, defendant forfeited it by failing to raise it in the trial court. In his briefs, defendant cites nothing in the record indicating that his counsel (or any codefendant’s counsel) objected that the prosecution’s attendance at defense counsel’s interviews violated counsel’s work product privilege, and our own search of the record reveals no such objection. Nor did defendant’s counsel object at trial when, during his examination of some of the witnesses, the prosecution mentioned defense counsel’s interviews. Under the circumstances, defendant may not now assert a violation of his counsel’s work product privilege as a ground for reversal. (See People v. Zamudio (2008)
On the merits, defendant’s argument fails for one simple reason: the trial court did not, as defendant asserts, mandate the prosecution’s attendance at the interviews. Rather, as explained above, the trial court ruled that the prosecution could attend a particular interview if the witness requested the prosecution’s attendance. As defendant concedes, although a criminal defendant may ask witnesses to give interviews, witnesses have no legal obligation to grant that request; they may decline to speak with a defendant. (Reid v.
Finally, even were defendant able to assert and establish a violation of counsel’s privilege, reversal would be unwarranted. As noted above, the only prejudice defendant alleges is that the prosecution “used the fruits of’ this asserted violation “to bolster the testimony of’ Witnesses Nos. 14 and 16, “to deter” his impeachment of these witnesses, and “to falsely insinuate” that he had had “a fair and independent opportunity to investigate the case.” This was accomplished, defendant argues, by eliciting testimony from the witnesses that defense counsel had interviewed them before trial and that their trial testimony was consistent with their statements during the earlier interviews with defense counsel. However, as explained above, during closing argument, defendant’s counsel relied on Witness No. 14, stressing that he had not identified defendant and stating that the witness was credible because he “ha[d] nothing to beef about.” As also explained above, at trial, defendant’s counsel and counsel for Palma thoroughly attacked Witness No. 16’s credibility, stressing that he was a drug user and gang member, that he had lied to police, and that he had several motives for testifying in the prosecution’s favor. Thus, the record shows that any work product privilege violation was harmless and would not entitle defendant to reversal.
4. Alleged Nonreciprocal Discovery
Defendant argues the trial court’s protective order impermissibly provided the prosecution with nonreciprocal discovery benefits. He first asserts that, by
For several reasons, defendant’s argument fails. Initially, defendant’s argument again overlooks the fact that, under the trial court’s order, the prosecution could attend defendant’s interview of a protected witness only if the witness requested the prosecution’s attendance. Because, as explained above, the witnesses had a right, independent of the court’s order, to refuse to talk with defendant unless the prosecution was present, the trial court’s order did not “effectively require[]” defendant to disclose statements he obtained from the prosecution’s witnesses.
Moreover, even were defendant correct regarding the effect of the court’s order, reversal would not be required. As defendant asserts, the due process clause, though having “little to say about the amount of discovery” to which a criminal defendant is entitled, “ ‘does speak to the balance of forces between the accused and his accuser.’ [Citation.]” (Izazaga v. Superior Court (1991)
5. Lack of Notice and Opportunity to Participate
Defendant next argues the trial court erred by conducting a series of ex parte hearings pursuant to section 1054.7 regarding the nondisclosure of the witnesses’ identities. According to defendant, nothing in section 1054.7 authorized the court to proceed without providing him notice and an opportunity to be heard. Moreover, defendant asserts, in so proceeding, the trial court violated (1) his federal constitutional rights to counsel, to confront witnesses against him, to due process, and to a reliable penalty determination and (2) “his rights under the California Constitution and the California Penal Code.” According to defendant, even if it was necessary to keep him and his counsel from discovering the witnesses’ identities, it was not necessary to deprive him of notice and to exclude him from the hearings, because the hearings could have been conducted in his presence and the witnesses could simply have been referred to by number instead of name.
Initially, it appears defendant has forfeited this issue by failing to object and obtain a ruling in the trial court. The first ex parte hearing took place before Judge Bascue on September 29, 1995. Although the record reflects that Logan, Palma, and Torres, and their counsel, received advance notice of this hearing,
Indeed, as far as the record discloses, during the many subsequent hearings at which Judge Bascue’s redaction order was discussed, defendant’s only mention of any objection that Judge Bascue had proceeded ex parte occurred during a trial setting conference before Judge Dukes on January 30, 1996.
When the parties first appeared before Judge Czuleger a week later, defendant did not renew his objections to Judge Bascue’s order or ask Judge Czuleger to rule on its validity. Instead, after Judge Czuleger announced that the prosecution would have “to make ... a new showing” on the issue, defendant’s counsel, in the course of requesting notice of and an opportunity to be present for any new hearing, merely mentioned in passing that Judge Bascue had proceeded ex parte. Nor did defendant or his counsel raise these objections to Judge Bascue’s order at any other time. Because defendant failed to pursue and obtain a ruling on these objections, he may not raise them on appeal.
Another ex parte hearing took place on November 7, 1995, before Judge Dukes. Defendant received advance notice of this hearing in several ways. First, on November 1, the prosecution filed and served on defense counsel a notice that, on November 7, it would ask the court to hold an “in camera hearing” to determine whether to extend Judge Bascue’s redaction orders. Second, at the scheduled November 7 hearing, with defense counsel present, Judge Dukes began by noting the prosecution’s request and the prosecution responded that it was prepared to proceed with the in camera hearing that
After hearing from defense counsel, Judge Dukes announced that court was “in recess” and held a relatively brief in camera hearing without defense counsel. Judge Dukes then reconvened proceedings in open court with the defendants and their counsel present. He began by announcing that, based on an “in camera” hearing he had “conducted . . . pursuant to [section] 1054.7,” he was ordering continued redaction of the witnesses’ identities. He then had a series of exchanges with defense counsel regarding the terms of his order and their objections to it. None of the objections related to defense counsel’s exclusion from the in camera hearing or a lack of notice.
Another ex parte hearing occurred on March 18, 1996, before Judge Czuleger. Again, defendant had ample advance notice of this hearing. On February 7, Judge Czuleger announced in open court, with defendant’s counsel present, that he would require the prosecution to make a new showing as to the need for nondisclosure. Defendant’s counsel responded: “[I]f [the prosecution] has a new hearing, de novo, can defense counsel be notified, and then all be present and the court makes a decision. At least defense counsel should be present? [][] The last time we went before the grand jury, as well as before Judge Bascue, these are all done in camera. These are all done ex parte. And I think now that we have all seen the transcript, I think we have a right to at least be here and the court make a decision why we should not be here. If our clients need to be excluded, that’s
On March 6, 1996, Judge Czuleger began the pretrial conference by talking about possible hearing dates for a discovery motion that Logan had filed and for a motion members of the media had filed to inspect grand jury records. After Judge Czuleger indicated that March 22 was an option, the prosecution stated: “[W]hat we are discussing for motions at that point is between now and that date we would have the in camera hearing. . . . There are two other in camera proceedings I want you to review and my understanding is that on that date what we would basically be ruling on is your decision regarding the redaction and so forth.” Following a discussion with the prosecution, Judge Czuleger scheduled an in camera hearing for March 18 and a followup hearing with all counsel for March 22. At the end of the pretrial hearing, Ortiz’s counsel asked: “I take it you will not be asking us to appear on the 18th for the in camera?” The court replied: “No. ... It will be in camera.” Defendant’s counsel did not object when the court scheduled the in camera hearing and announced that defense counsel could not attend.
As scheduled, Judge Czuleger held the in camera hearing on March 18. On March 29, he then took up the matter before the prosecution and all defense counsel.
In any event, even had defendant preserved the issue for appeal, reversal would be unwarranted. As defendant asserts, we have held that ex parte proceedings generally are “disfavored” because they typically result in “ ‘a shortage of factual and legal contentions. Not only are facts and law from the defendant lacking, but the moving party’s own presentation is often abbreviated because no challenge from the defendant is anticipated at this point in the proceeding. The deficiency is frequently crucial, as reasonably adequate factual and legal contentions from diverse perspectives can be essential to the court’s initial decision . . . .’ [Citation.]” (People v. Ayala (2000)
However, contrary to defendant’s assertion, even where a court errs in proceeding ex parte, the error is not reversible per se. For example, in Ayala, where the defendant asserted that the prosecution had impermissibly excused prospective jurors on the basis of race or ethnicity, we held that, although the trial court had erred in allowing the prosecution to state its reasons for excusing the jurors ex parte and outside the defendant’s presence, the error was harmless under the standards for judging both state law errors (reasonable likelihood of a more favorable outcome) and errors under the federal Constitution (harmless beyond a reasonable doubt). (Ayala, supra, 24 Cal.4th at pp. 259, 264.) Such error, we explained, “whether or not of federal constitutional dimension,” “is not structural; it is an error in the conduct of the trial that requires us to consider the record. In other words, the error does not fall within the category of those that the law recognizes as reversible per se, i.e., ‘affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself,’ ‘ “transcending] the criminal process” ’ and ‘defying] analysis by “harmless-error” standards.’ [Citation.]”
Here, too, the record shows that any error in proceeding ex parte was harmless, whether we apply the test for state law error or for error under the federal Constitution. At the first pretrial ex parte hearing on September 29, 1995, before Judge Bascue, a homicide investigator from the Los Angeles County Sheriff’s Department testified, among other things, that (1) the investigation had shown that Sangra gang members had committed one or more of the murders at the Mexican Mafia’s behest; (2) both the Sangra gang and the Mexican Mafia have a code against testifying and, to enforce that code, have been willing to kill or harm people who might cooperate with police; (3) both defendant and one of the Mexican Mafia members who ordered the hit were at large; (4) Sangra gang members had told the investigator they would kill anyone who testified in the case; (5) before acting against a witness, gang members look for validation, i.e., official paperwork, such as a police report or transcript, that documents a person’s name with a statement the person has made to authorities or in court; and (6) were the identities of the witnesses in question and their grand jury testimony to become known, the witnesses’ lives would be in danger because Sangra gang members would try to prevent them from testifying.
At the ex parte hearing before Judge Dukes on November 7, 1995, two law enforcement officers from the Los Angeles County Sheriff’s Department gave similar testimony. One, a detective with the homicide division, who had investigated the murder scene, testified that (1) the Mexican Mafia had used the Sangra gang to carry out one or more of the killings; (2) an involved member of the Mexican Mafia was still at large; (3) Witness No. 13 had come forward with information and said she was fearful for the safety of herself and her family; (4) during a search of Ortiz’s house conducted while Ortiz was only an uncharged suspect and still at large, police had found a transcript of testimony that a protected witness had given during a preliminary hearing in an unrelated murder case against three Sangra gang members and a letter from one of the defendants in that case referencing the fact that the witness was testifying against the Sangra gang members; (5) police had information that witnesses in other cases against either Sangra or Mexican Mafia members
At the ex parte hearing on March 18, 1996, before Judge Czuleger, the homicide investigator who testified at the ex parte hearing before Judge Bascue largely repeated his earlier testimony.
Any alleged error was harmless for another reason: the court’s ex parte orders did not hamper defendant’s ability to conduct a defense. As explained earlier, despite the discovery limitations, defendant’s counsel thoroughly cross-examined those trial witnesses whose creditability was relevant to defendant’s defense. As also explained earlier, although the defense conducted little or no cross-examination of the “stranger” witnesses, because (1) these witnesses testified only briefly about their observations on the day of the murders, (2) none of them identified defendant, and (3) one testified that none of the people she saw was in court, the discovery limitations did little, if anything, to impact defendant’s case. Thus, even had the court permitted defendant or his counsel to participate in the ex parte hearings, and even had that participation resulted in disclosure of the witnesses’ identities, the outcome of defendant’s trial would have been no different. For these reasons, defendant’s claim fails.
B. Gang Evidence
Defendant next argues the trial court prejudicially erred in permitting the prosecution to rely at trial on certain gang-related evidence. Specifically, he asserts the trial court erred in admitting the following: (1) one photograph of the gang tattoos on his back (exhibit No. 57); (2) seven photographs of the gang tattoos on Palma’s body (exhibits Nos. 50-56); (3) two photographs of urban gang graffiti (exhibits Nos. 72, 73); (4) 11 photographs showing various Sangra gang members, some of whom were brandishing weapons or “throwing” gang signs (exhibits Nos. 3, 7, 8, 12A [containing four photographs], 58, 78, 79, 93); and (5) two pieces of paper with the word “Sangra” written in calligraphy, one bearing the notation “touch this and you die” (exhibits Nos. 60, 92). Defendant also complains about two exhibits that, though not admitted into evidence, the prosecution used in examining witnesses at trial: (1) a district attorney’s notice of determination that Sangra is a criminal street gang (marked as exhibit No. 71) and (2) a drawing of a driveby shooting recovered during a search of Ortiz’s residence (marked as exhibit No. 91). Finally, defendant appears to complain that the trial court permitted the prosecution during opening statement to show to the jury and
1. Evidence Code Section 1101
With certain exceptions not relevant here, Evidence Code section 1101, subdivision (a), provides that “evidence of a person’s character”—whether in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct—“is inadmissible when offered to prove [the person’s] conduct on a specified occasion.” This prohibition, however, does not preclude “the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact . . . other than [the person’s] disposition to commit such an act,” including “motive, opportunity, intent, preparation, [or] plan.” (Evid. Code, § 1101, subd. (b).)
Defendant asserts “the only purported probative value” of the gang evidence he now challenges was to establish that he and Palma were Sangra gang members and that Sangra “was a ‘criminal street gang’ within the meaning of the [alleged] gang enhancement” under section 186.22. However, defendant continues, neither of these propositions “was in dispute” because both his counsel and Palma’s offered to stipulate not only to the defendants’ Sangra gang membership, but also “to the ‘exact language’ of the gang enhancement allegation,” thus “ ‘relieving] the burden of the [P]eople of
Initially, it appears that defendant’s argument under Evidence Code section 1101 is not cognizable on appeal because he failed to object on this basis at trial. Evidence Code section 353, subdivision (a), provides that a court may not reverse a judgment based on error in admitting evidence unless “an objection to or a motion to exclude or to strike the evidence . . . was timely made and so stated as to make clear the specific ground of the objection or motion.” “In accordance with this statute, we have consistently held that the ‘defendant’s failure to make a timely and specific objection’ on the ground asserted on appeal makes that ground not cognizable. [Citations.]” (People v. Seijas (2005)
In any event, defendant’s claim also fails on the merits. As a general matter, “the prosecution may not be compelled to accept a stipulation where the effect would be to deprive the state’s case of its persuasiveness and forcefulness.” (People v. Streeter (2012)
Moreover, contrary to defendant’s assertion, the record does not clearly show that defendant’s counsel and Palma’s counsel offered to stipulate “to the ‘exact language’ of’ the entire gang enhancement. As it does now, at the time of the alleged crimes, section 186.22, subdivision (b)(1), prescribed an enhanced penalty for “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” For purposes of this section, a “criminal street gang” is defined as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of [specified] criminal acts . . . , having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).) As used in this definition, a “ ‘pattern of criminal gang activity’ ” meant “the commission, attempted commission, or solicitation of two or more of [certain specified] offenses, provided at least one of those offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses are committed on separate occasions, or by two or more persons . . . .” (Former § 186.22, subd. (e), as amended by Stats. 1994, ch. 451, § 1, pp. 2438, 2439.)
Contrary to defendant’s current assertion, this record does not clearly show that defendant’s counsel and Palma’s offered to stipulate to the “exact language” of the entire alleged gang enhancement. The proposed stipulation that defendant and Palma were Sangra gang members would have done little, if anything, for the prosecution; under the operative statutory language, as set forth above, that fact was neither necessary nor sufficient to establish any element of the gang enhancement. (See People v. Valdez (1997)
Nor does defendant persuasively demonstrate otherwise by citing his trial counsel’s statement, “I believe that [Palma’s counsel] recited the exact allegation in the information and in the complaint that was filed against the individuals and that’s what we’re willing to stipulate to.” As the preceding discussion demonstrates, Palma’s counsel neither recited nor offered to stipulate to “the exact [gang enhancement] allegation”; at most, he offered to stipulate to one element—the “criminal street gang” element—of that allegation. Thus, the prosecution would still have had to prove that Palma committed the murders “for the benefit of, at the direction of, or in association with” a criminal street gang “with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) Insofar as
2. Evidence Code Section 352
Evidence Code section 352 provides that a court “in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” We review a trial court’s ruling under this section for abuse of discretion and will reverse a trial court’s exercise of discretion to admit evidence “only if ‘the probative value of the [evidence] clearly is outweighed by [its] prejudicial effect.’ [Citation.]” (People v. Carey (2007)
Defendant asserts that, because the prejudicial effect of the gang evidence he now challenges substantially outweighed its probative value, the trial court abused its discretion in admitting it. He first contends the evidence’s “only purported probative value” was to show that he and Palma were Sangra gang members and that Sangra was a “criminal street gang” within the meaning of section 186.22. Given defense counsel’s proposed stipulations, these propositions were not in dispute. According to defendant, the evidence “had no tendency to prove either motive or intent,” and only “slight,” “negligible,” or “no probative value” regarding the “critical” issue that was in dispute: whether he was involved in the shootings. And, to the extent any of the evidence was relevant to any issue that was genuinely in dispute, the prosecution could have relied on the other, “less inflammatory” gang evidence it presented. Regarding prejudice, defendant asserts there was “a high degree of danger” and “strong likelihood” the evidence would “mislead,” “confuse,” “inflame,” and “frighten” the jurors and lead them to believe that, “because of his association with the gang,” he “had the propensity to commit the kind of crimes for which he was on trial.” It thus “shifted the focus from the properly admitted testimony and turned the trial into what was essentially an exercise in character assassination and guilt by association,” creating the
Defendant’s argument is unpersuasive. As explained in the preceding part, for several reasons, defense counsel’s proposed stipulations did not render the evidence in question irrelevant. Nor did the prosecution’s purported ability to establish the disputed matters with the other evidence render the gang evidence irrelevant. (People v. Scheid (1997)
3. Constitutional Claims
Defendant argues the prosecution’s use of the challenged gang-related evidence violated not only his statutory rights, but also his constitutional rights to due process, a fair trial, and a reliable determination of guilt and penalty. He failed to assert these constitutional objections at trial. Because there was no statutory error, his constitutional claims, insofar as they are cognizable on appeal, fail. (People v. Hawkins (1995)
Defendant argues the trial court prejudicially erred in permitting three witnesses—Witness No. 13, Witness No. 16, and David Sandate—to testify about their fear in testifying at trial and about incidents related to that fear. Admission of this evidence, he asserts, fatally infected the trial with unfairness and violated his constitutional rights to due process, a fair trial, and a reliable penalty determination. Moreover, he contends, the prosecution heightened the testimony’s prejudicial impact by referring to it during closing argument.
In making his argument, defendant acknowledges that evidence a witness is afraid to testify “may be admissible on the issue of the threatened witness’s credibility.” As we have explained: “ ‘Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible.’ [Citations.] An explanation of the basis for the witness’s fear is likewise relevant to the jury’s assessment of his or her credibility and is well within the discretion of the trial court. [Citation.] For such evidence to be admissible, there is no requirement to show threats against the witness were made by the defendant personally or the witness’s fear of retaliation is ‘directly linked’ to the defendant. [Citation.]”
Nevertheless, defendant argues, quoting People v. Yeats (1984)
Defendant’s argument fails in light of our recent decision in People v. Mendoza (2011)
In any event, defendant errs in asserting that Witness No. 13’s trial testimony gave rise to no credibility issues to which the evidence of her fear was relevant. In many instances, Witness No. 13 testified she could not remember details she had earlier given police. Contrary to defendant’s assertion, she did not, “in every [such] instance . . . affirm[] her prior statements to investigators and her preliminary hearing testimony when the prosecution] refreshed her recollection by reading them to her.” At least five times during direct examination, after testifying she did not recall a prior statement, she added, “if that’s what’s there then that’s what I said,” or words to that effect.
Based on these answers, when defendant’s counsel argued at trial that Witness No. 13 had affirmed her prior testimony—and that the court therefore should not permit the prosecution to play for the jury a tape of her prior statements—the trial court responded: “[W]e must have listened to two different trials because it is like pulling teeth from her and I don’t blame her. I can understand—I can’t, really understand the terror she’s probably living. ... So many times when—I mean, T don’t remember’ or T don’t know’ that must have been her testimony 40 or 50 times in answer to questions. And
Given Witness No. 13’s professed inability to remember her previous statements, her equivocal responses to many of the prosecution’s questions, and the hesitancy and reluctance she demonstrated in answering the prosecution’s questions, the trial court did not abuse its discretion in determining that evidence of her fear in testifying was relevant to the jury’s assessment of her credibility. (See People v. Harris (2008)
Defendant also errs in asserting that there were no credibility issues regarding Witness No. 16 to which the evidence of his fear was relevant. During his direct testimony, Witness No. 16 admitted he had received immunity from prosecution for the murders in exchange for his truthful testimony, had initially lied to police when they interviewed him about the
Insofar as defendant argues the evidence was inadmissible under Evidence Code section 352 because its potential to cause undue prejudice substantially outweighed its probative value, defendant forfeited this argument by failing to object on this basis at trial. The only objections defendant’s counsel raised at trial were that the evidence was irrelevant or lacked foundation, or that the prosecution’s questions were leading. Palma’s counsel objected at one point that the evidence was “improper, calling for a conclusion.” Contrary to defendant’s assertion, these objections were insufficient to preserve for appeal the claim that the trial court should have excluded the evidence under Evidence Code section 352. “Although [defense] counsel’s lack of express reference to Evidence Code section 352 is not itself fatal to defendant’s claim, the stated bas[e]s of the objection[s] [were] insufficient to alert the trial court that this provision was being invoked.” (People v. Kirkpatrick (1994)
Also unavailing is defendant’s claim the trial court erred in failing, sua sponte, to give a limiting instruction informing the jurors they could consider the evidence of the witnesses’ fear in testifying only in assessing credibility. We have consistently held that where, as here, a defendant fails to request an instruction, a trial court “generally [has] no duty to instruct on the limited admissibility of evidence. [Citation.]” (People v. Lang (1989)
D. Alleged Hearsay Statements of Shyrock
Defendant asserts the trial court prejudicially erred in permitting Valdemar to testify at trial that, during a Mexican Mafia meeting in January 1995, Shyrock stated: “I don’t know if you have ever heard of this brother Dido. He dropped out a long time ago. He’s in an apartment where I was living. The mother fucker was living right downstairs but never showed his face. All kinds of people in the pad, bunch of young sisters and kids, all kinds of shit. So I’m trying to figure out how to—I need a silencer is what I need.” Defendant, argues Shyrock’s statement was hearsay and the trial court erred in admitting it under the hearsay exception set forth in Evidence Code section 1230, which provides in relevant part: “Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, ... so far subjected him to the risk of civil or criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true.” According to defendant, this
1. Background
Before trial, the prosecution moved to admit at trial certain out-of-court statements of nontestifying witnesses. As here relevant, the prosecution argued that Raymond Shyrock’s statement was admissible under Evidence Code section 1230 and as circumstantial evidence of the existence of a conspiracy. At a hearing on the motion, the prosecution argued the statement was relevant to show motive and identity and was against Shyrock’s penal interest because, reasonably interpreted, it was a statement that Shyrock, a member of the Mexican Mafia, intended either to kill Dido or have him killed because he was a Mexican Mafia dropout. The court then asked, “Is he unavailable?” The prosecution responded by first asking the court “to assume” “[f]or the purpose of this proceeding” that Shyrock was unavailable, and then adding (1) the prosecution would have Shyrock’s attorney “fill out a document indicating that if [Shyrock] was called to testify he would take the Fifth [Amendment]”; (2) Shyrock was a defendant in a federal RICO case and the United States Attorney had informed the prosecution that it “would oppose any motion to bring him over here either as a witness or a defendant”; and (3) “the metropolitan detention center” where Shyrock was in custody “refuses to accept the subpoena by the county authorities as to Mr. Shyrock.” The court then asked if the prosecution had, in fact, attempted to subpoena Shyrock. The prosecutor replied: “I have talked to them and I was told if I attempted that’s what . . . would happen. [][] So I understand the court’s position, but... I think clearly if the court looks at it carefully I will be able to show that Mr. Shyrock is unavailable, one, because the federal authorities refuse to release him, two, because he clearly has a Fifth Amendment privilege against self-incrimination.”
At this point, Ortiz’s counsel interjected, “Even if [the prosecution] covered these hurdles we are discussing we still have a section 352 problem at the trial he’s going to have to deal with.” When Maciel’s counsel interrupted and asked to speak, the court explained that it was going to give
The court then interjected: “I don’t like to make rulings when they aren’t ready to be made—at this point [the prosecution] ha[s] not been able to establish unavailability.” The prosecutor responded: “I can’t argue with the court.” The court continued: “I am not going to rule. I don’t want to—clearly, at this time as we sit here in court you have not established the unavailability of Mr. Shyrock so that these statements are admissible.” The prosecutor again responded, “I cannot argue,” but added: “What I would simply ask the court to do is put the matter . . . over to next Monday the 9 th, and I will take the steps between now and the 9th—I will take two steps. I will contact Mr. Shyrock’s attorney, who I have not yet contacted, and I will also bring in somebody from the metropolitan detention center who will testify they either will or will not accept the subpoena, and we can resolve the unavailability issue next Monday and then either yourself or Judge Czuleger can determine if . . . the statements are admissible.” After the prosecution and Maciel’s counsel argued further about whether Shyrock was willing to testify and whether the federal authorities would accept a subpoena, the court interjected: “Hold on. I will let you be heard on the other arguments. As far as the unavailability issue, I can make a mling subject to whether or not he’s available or not so at least you can have a ruling all sides will know how to proceed on this issue.”
The court then invited Maciel’s counsel to address the Evidence Code section 352 issue “or any other argument you want to make.” Maciel’s counsel responded by discussing only Evidence Code section 352. Palma’s counsel joined in that argument and added: “It’s totally hearsay. I don’t believe there’s any established exception to the hearsay mle that has been laid out here, and I would also object on the grounds that it’s not relevant.” Throughout these exchanges, defendant’s counsel remained silent.
As far as the record shows, the issue of Shyrock’s unavailability never arose again. At trial, when the prosecution asked Valdemar to testify regarding Shyrock’s statement, neither defendant’s counsel nor Palma’s raised any objection.
2. Discussion
Initially, the People contend that, by failing to object in the trial court to admission of Shyrock’s statement, defendant failed to preserve this issue for appeal. In their view, the record, as set forth above, shows that defendant’s counsel neither joined in the objections of cocounsel nor made an objection of his own. Moreover, the People assert, “even when co-counsel addressed the issue, they argued relevance and Evidence Code section 352, not the Evidence Code section 1230 requirements” or the constitutional issues that defendant now raises. Thus, the People argue, “there was neither a timely nor a specific objection . . . sufficient to preserve the[se] issue[s] for appeal.” “[A]t the very least,” the People continue, defendant forfeited his challenge to the prosecution’s showing of Shyrock’s unavailability by failing to raise the issue at any time after the court deferred its ruling on that question.
The prosecution’s forfeiture argument appears to be correct insofar as defendant now seeks to challenge the statement’s trustworthiness, to question Shyrock’s unavailability, and to raise constitutional objections. Regarding trustworthiness, as the preceding discussion demonstrates, at no time did anyone assert there were insufficient indicia of the statement’s trustworthiness. Therefore, defendant may not raise that issue on appeal. (People v. Hernandez (1999)
However, the prosecution’s forfeiture claim is arguable insofar as defendant now asserts the statement was not against Shyrock’s penal interest and should have been excluded under Evidence Code section 352. It is true that defendant’s counsel did not himself raise either of these questions, and that his only comment regarding the statement’s admissibility was “Submitted at this time.” However, the record shows that, before defendant’s counsel made this comment, the court itself raised the “penal interest” issue by asking the prosecution, “is this in fact a declaration against interest,” “what kind of interest is it a declaration against,” “is it a declaration against penal interest” and “what language indicates that to you.” The record also shows that, shortly before defendant’s counsel made his “submitted” comment, Ortiz’s counsel stated, “Even if [the prosecution] covered these hurdles we are discussing we still have a section 352 problem at the trial he’s going to have to deal with.” On analogous facts, courts, including ours, have declined to find forfeiture. (See People v. Collins (2010)
We need not resolve this aspect of the People’s forfeiture argument because these arguably preserved claims fail on their merits. The court did not abuse its discretion in finding that the statement was against Shyrock’s penal interest when made. (See People v. Gordon (1990)
Defendant’s arguments for concluding otherwise are unpersuasive. Defendant asserts that when Shyrock made the statement, “the conspiracy had not yet been conceived.” However, as explained above, the trial court could have reasonably found that the statement marked the conspiracy’s inception. Defendant also asserts that Shyrock would have had “no reason ... to believe that statements he made to fellow gang members in a private hotel room would potentially expose him to criminal prosecution.” However, as one federal court has explained in rejecting a similar argument: “The question as to such declarations is whether under the circumstances the declarant would have been unlikely to say it had it not been true. To be against penal interest under the rule, the statement need not be made to persons who are likely to use it against the declarant in court proceedings. Declarations against penal interest are received notwithstanding that they were spoken in confidence in the expectation they would not be repeated to the authorities. [Citations.] Indeed, that makes such declarations more trustworthy.” (U.S. v. Badalamenti (S.D.N.Y. 1986)
E. Failure to Instruct That Witness No. 16 Was an Accomplice
The trial court’s jury instructions defined the term “accomplice” (CALJIC No. 3.10) and explained that jurors (1) should view the testimony of an accomplice with distrust (CALJIC No. 3.18) and (2) could not rely on accomplice testimony to convict absent corroborating evidence, i.e., evidence of some act or fact related to the crime which, if believed, by itself and without any aid, interpretation or direction from the testimony of the accomplice, tends to connect the defendant with the commission of the crime charged (CALJIC Nos. 3.11, 3.12). Defendant asked the court also to instruct the jury that Witness No. 16 was an accomplice as a matter of law. The court denied the request, finding that the evidence presented a question for the jury to determine. Consistent with its ruling, the court instructed the jurors that they had to determine whether Witness No. 16 was an accomplice and that defendant bore the burden of proving this fact by a preponderance of the evidence (CALJIC No. 3.19). Defendant claims that, in refusing to give the requested instruction, the trial court prejudicially erred and violated his due process rights under the Fourteenth Amendment. For reasons that follow, defendant’s claim fails.
Section 1111 provides that “[a] conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense . . . . ” For purposes of this rule, an “accomplice” is “one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (Ibid.) “This definition encompasses all principals to the crime [citation], including aiders and abettors and coconspirators. [Citation.]” (People v. Stankewitz (1990)
Defendant asserts that Witness No. 16 was an accomplice as a matter of law because his testimony “established his role as a principal to murder as an aider and abettor.” He relies on the following testimony of Witness No. 16: During the late afternoon on April 22, 1995, Palma said he was expecting a page later that day and he wanted Witness No. 16 to drive him to Torres’s house after he received the page because “they had to take care of something” and “the brothers”—i.e., the Mexican Mafia—“wanted him.” Several hours later, after Palma received the page, Witness No; 16 drove Palma to Torres’s house. When they arrived, a number of Sangra gang members were already in Torres’s room and a shotgun was at the foot of the bed. Ortiz, who seemed to be in charge, said there was “a problem in El Monte” and they had to go there “to take care of something,” which Witness No. 16 understood to mean they were going to assault or kill someone. Logan drove to El Monte with defendant, Palma, and Torres; Witness No. 16 followed in his car with Ortiz and Creepy. Upon arriving in El Monte, Logan pulled into a driveway on Maxson Road while Witness No. 16 drove a few blocks further down and pulled over. At Ortiz’s direction, Witness No. 16 turned off the car and its headlights. Ortiz exited the car, went to the comer, and looked up and down the street. When he returned, he said the police were behind them and stated, “Let’s get out of here.” At Ortiz’s direction, Witness No. 16 drove first to an apartment in West Covina that he believed to be defendant’s and, upon finding no one there, then to Torres’s house. This testimony, defendant argues, established the elements for Witness No. 16’s liability as an aider and abettor, i.e., that “he acted with knowledge of the criminal purpose of the alleged perpetrators and with the intent or purpose of encouraging or facilitating the commission of the offense.”
As we have explained, “an aider and abettor’s guilt ‘is based on a combination of the direct perpetrator’s acts and the aider and abettor’s own acts and own mental state.’ [Citation.]” (People v. Perez (2005)
Under these principles, the People correctly argue that Witness No. 16’s testimony, though sufficient to permit a jury finding that Witness
Moreover, as the People argue, the evidence does not indisputably establish that Witness No. 16 even had knowledge of the perpetrator’s unlawful purpose. During cross-examination, Witness No. 16 testified that, in earlier statements to police, he said he “had no idea” what Ortiz had meant when he said “they had to take care of something in El Monte” and, when asked what he thought the perpetrators were intending to do in El Monte, he replied: “I said I wasn’t sure what they were going to do, if they were going to [box or get some money] or kill somebody.” “I don’t know what they were going to do.” Although, given Witness No. 16’s trial testimony, the jurors could have disbelieved his earlier statements, they were not required to. Because the record, though adequate to support the conclusion that Witness No. 16 acted with the requisite guilty knowledge and intent, “does not dictate” that conclusion, the trial court properly found that Witness No. 16 was not an accomplice as a matter of law. (Fauber, supra,
In any event, even had the trial court erred, the error was harmless. A trial court’s error in instructing on accomplice liability under section 1111 is harmless if the record contains “sufficient corroborating evidence.” (People v. Lewis (2001)
Under these principles, the record contains adequate corroborating evidence. Witnesses Nos. 2 and 3 testified that a Nissan Maxima pulled up in front of a driveway on Maxson Road, that three men—Hispanic men, according to Witness No. 2—exited and went down the driveway while the driver remained inside, and that after six to eight gunshots rang out, the three men—one carrying a handgun—ran back to the car. Witness No. 16 likewise testified that Logan drove defendant, Palma, and Torres- to El Monte in his Nissan Maxima, that the Maxima pulled into a driveway on Maxson Road, and that he was later told that Logan waited in the car while defendant, Palma and Torres exited and the murders occurred. Witness No. 13 and Torres’s mother testified that defendant was present at Torres’s house with the other Sangra gang members the night of the murders. The physical evidence at the scene of the murders—two men with fatal gunshot wounds to the head, a woman and two children shot dead—matched Witness No. 16’s testimony about what defendant and Palma had told him about the shooting. As noted above, ballistics evidence connected defendant to the crimes. Finally, there was independent evidence that members of the Sangra gang had committed the murders and that defendant was a Sangra gang member. This evidence was more than sufficient to corroborate Witness No. 16’s testimony. Thus, even had the trial court erred in refusing to give the proposed instruction, reversal would be unwarranted.
Finally, because the trial court’s refusal to instruct that Witness No. 16 was an accomplice as a matter of law was not error, and was harmless in any event, defendant’s due process claim fails. (See People v. Lewis, supra,
F. Alleged Error in Giving CALJIC No. 2.11.5 (Unjoined Perpetrators)
At the guilt phase, the trial court instructed the jurors pursuant to CALJIC No. 2.11.5 as follows: “There has been evidence in this case indicating that a person other than defendant was or may have been involved in the crime for
The People correctly point out that defendant forfeited the claim by failing to object to the instruction in the trial court or to request a limiting instruction. As defendant acknowledges, we have held that where, as here, the instruction is properly given as to some unjoined perpetrators but not as to others, a defendant who fails to ask the trial court to give a limiting instruction may not raise the issue on appeal. (People v. Sully (1991)
In any event, the claim fails on its merits. In addition to the challenged instruction, the trial court gave instructions on considering the testimony of accomplices and other standard witness credibility instructions, including CALJIC No. 2.20, which informed the jurors to keep in mind the existence of any “bias, interest, or other motive” on the part of a witness. As we have explained in connection with substantially identical facts, when a trial court gives CALJIC No. 2.11.5 “with the full panoply of witness credibility and accomplice instructions, as it was in this case,” reasonable jurors will understand that although they may not consider “the separate prosecution or nonprosecution of coparticipants, and the reasons therefor,” they may consider “a plea bargain or grant of immunity ... as evidence of interest or bias in assessing the credibility of prosecution witnesses. [Citation.] Although the instruction should have been clarified or omitted [citations], we cannot agree that giving it amounted to error in this case.” (People v. Price (1991)
G. Instructions on Uncharged Conspiracy
The trial court granted the prosecution’s request to present evidence of a conspiracy even though the indictment did not allege a conspiracy, and the court instructed the jury on the law of conspiracy. Defendant now asserts the trial court erred in allowing the prosecution to proceed on an uncharged conspiracy because, under the statutory definition of principal (§ 31), “participation in a conspiracy alone is not an authorized basis for finding a person
Defendant’s arguments are unpersuasive. Our decisions have “long and firmly established that an uncharged conspiracy may properly be used to prove criminal liability for acts of a coconspirator. [Citations.] ‘Failure to charge conspiracy as a separate offense does not preclude the People from proving that those substantive offenses which are charged were committed in furtherance of a criminal conspiracy [citation]; nor, it follows, does it preclude the giving of jury instructions based on a conspiracy theory [citations].’ [Citation.]” (People v. Belmontes (1988)
Nor is defendant’s “mandatory presumption” argument valid. As the People explain, “like aiding and abetting, conspiracy (as used here) is itself a theory of liability. . . . ‘For purposes of complicity in a cofelon’s homicidal act, the conspirator and the abettor stand in the same position.’ (People v. Pulido [(1997)
Defendant asserts the trial court’s instructions on conspiracy were incomplete in several respects and that the errors violated his statutory and constitutional rights. For reasons set forth below, his claim fails.
1. Forfeiture
Initially, we reject the People’s argument that defendant forfeited this issue on appeal by failing to object in the trial court to the conspiracy instructions. Defendant’s claims—failure to instruct sua sponte and erroneous instructions affecting his substantial rights—are “of a kind . . . that required no trial court action” on his part to be preserved for appeal. (People v. Rogers (2006)
2. Failure to Identify Specific Overt Act
The trial court instructed the jury that, to find a defendant liable as a member of a conspiracy, “there must be proof of the commission of at least one overt act.” The court’s instructions did not, however, identify any specific overt act that the conspirators allegedly performed. Nor did the indictment allege any overt act. Defendant asserts that these omissions violated his statutory and constitutional rights and prejudiced his defense.
In People v. Prieto (2003)
3. Failure Adequately to Identify the Object of the Conspiracy
The trial court instructed the jury that “[a] conspiracy is an agreement between two or more persons with the specific intent to agree to commit a public offense such as murder, and with the further specific intent to commit such offense.” (Italics added.) Defendant asserts that, by including the phrase “such as murder,” this instruction “failed to provide adequate guidance to the jury about how to determine the object or crime originally contemplated by the conspiracy” and impermissibly allowed the jury to convict him based on a “generalized belief that [he] intended to assist and/or encourage unspecified nefarious conduct.”
Defendant’s argument rests entirely on People v. Prettyman (1996)
Even were defendant correct that Prettyman’s holding applies to instructions on conspiracy—a question we do not answer—that holding would not aid him. We stressed in Prettyman that a court’s sua sponte duty to identify and describe target crimes “is quite limited.” (Prettyman, supra,
In any event, any error was harmless. As explained above, the prosecution’s theory was that defendant conspired with other Sangra gang members to commit murder. The evidence amply supported this theory and, as a matter of state law, “it is not reasonably probable that the trial’s outcome would have been different in the absence of the trial court’s [alleged] instructional error. [Citation.]” (Prettyman, supra,
4. Failure to Instruct on Unanimity and Burden of Proof
Defendant lastly argues the trial court erred in failing to instruct the jurors that, in order to convict defendant based on conspiracy, they had to agree unanimously as to the existence of a conspiracy, the crime the conspirators conspired to commit, and defendant’s joinder in the conspiracy, and that the standard of proof for these elements was beyond a reasonable doubt. These omissions, defendant argues, constitute “structural error” that is “reversible per se.”
Defendant’s argument fails. Under our prior decisions, “[i]t is settled that as long as each juror is convinced beyond a reasonable doubt that defendant is guilty of murder as that offense is defined by statute, [the jurors] need not decide unanimously by which theory he is guilty. [Citations.]” (People v. Santamaria (1994)
I. Judicial Decorum
At several points during the guilt phase, the trial court used “monikers” to refer to the defendants, counsel, and the jurors.
Toward the end of the day on October 29, 1996, the court said to the jurors: “I have ascertained one thing and that is that apparently one of you has now acquired a moniker. I am not going to tell you what it is but— because if I were to tell you what it is you would know who it was, but maybe by the time we’re through all 18 of you will have a moniker that’s assigned to you out here unbeknownst to you.”
About a week later, on November 6, after announcing that it would open the day’s proceedings “a little bit differently,” the court stated: “The record in this instance will reflect that Character is present with his attorney Comet; Primo is present with his attorney Slippers; the District Attorney is present in the person of Windex; the jury in the person of Incognito, Booky, Ill-Bit, Fiddler, Coco, Eagle Scout, Sharpy, Rabbit, Curly, Tree, it’s either V or 6, Sleepy, I know who that is, Foxy, Sharper, who didn’t make it to Nordstrom’s this morning, The Suit, Smiley, Snickers, and Dopey are all present along with Coach, Racer, Bambi, and Flash.” The court then asked a witness who
Later that day, in discussing a juror’s scheduling request, the court asked, “Who’s Dopey?” After a juror responded, the court explained: “I was getting to where I was kind of worried because for the first two weeks I had never seen people who were expressionless and not responsive to anything. I said something to Flash over here ‘Were they still breathing?’ And concerned because you take 18 people who are total strangers and put them in a little room without coffee and you have real problems, but I am glad to see that you have conquered all that and really do have [a] pretty good sense of . . . humor among the collective group of you.”
Defendant argues the court’s “jokes at the defendants’ expense” were “grossly improper” and “set an improper tone” that “undermined the jury’s responsibility regarding the gravity of its task” in a death penalty case. In his view, upon receiving the note reflecting that the jurors had adopted “mock ‘gang monikers,’ ” the court should have taken “steps to preserve an appropriately serious atmosphere in the courtroom.” Instead, it “abdicated this duty” and actually “indulged and encouraged the jurors’ attempt to poke fun at the defendants.” It “effectively ridicul[ed] the defendants,” who were known by similar nicknames, conveyed its belief that “the defendants were properly objects of ridicule and derision,” and “undermine[d] the proper decorum of a death-penalty case.” In these respects, defendant asserts, the court denied him his constitutional rights to a fair trial and to a reliable penalty determination.
Initially, the People correctly argue that, by failing to object in the trial court, defendant forfeited his right to raise this claim on appeal. (See People v. Riel (2000)
In any event, defendant’s claim fails on its merits. Although a jury trial, especially for a capital offense, is a serious matter, “[w]ell-conceived judicial humor can be a welcome relief during a long, tense trial. Obviously, however, the court should refrain from joking remarks [that] the jury might interpret as denigrating a particular party or his attorney. We do not condone the instant judge’s [remarks]. But the remarks were relatively brief and mild .... These isolated instances . . . fall short of the intemperate or biased judicial conduct [that] warrants reversal.” (People v. Melton, supra, 44 Cal.3d at pp. 753-754; see People v. Geier, supra,
J. Failure to Declare Mistrial When Jury Declared Impasse
Defendant asserts the trial judge prejudicially erred in refusing to declare a mistrial after the jurors declared they were at an impasse and could not reach a unanimous verdict on any count. Defendant also asserts the trial judge’s instruction directing the jury to continue deliberations was erroneous in several respects. Defendant’s claims fail.
1. Factual Background
Jury deliberations for the guilt phase began on Monday, November 18, 1996, lasting only a few hours that morning. Deliberations continued the rest of the week and, after a weekend break, resumed the following Monday, November 25. Jury-requested readbacks of trial testimony consumed much of the deliberation period.
At 2:00 p.m. on November 25, 1996, the jurors sent the court a note stating; “We are at an impasse ... we cannot come to a unanimous decision on any count.” After denying defense motions for mistrial, the trial court, over defense objection, decided to question the jurors about their deliberations. It summoned the jurors and asked the foreperson if the court could do
The court then denied another defense motion for mistrial and stated its intention to order the jurors to continue deliberating, explaining: “I just don’t believe in a two-month case that the jury has put in enough time.” After having the jurors returned to the courtroom, the court stated:
“I don’t know how you are divided numerically and ... it is not my place at this point to be inquiring. I am going to assume only because statistical probabilities favor[] my assumption that you are not deadlocked 6-6, that it’s some other numerical division. I am not at this time going to stop this trial or declare a mistrial. I am ordering you to continue with your deliberations. I am not convinced that you have put in enough time, especially when I had been told the amount of time that has been utilized in rereads. And I am not minimizing these rereads. As a matter of fact, in this case I think it’s probably very important. But it would appear we lost a half day last Monday and I understand there were two substantial days last week, Tuesday and Wednesday, in which most of the day was consumed in read back and a fair portion of the morning.
“I say this to you: those of you in the minority, if I am right that it is not just 6-6, I ask that you listen to the arguments of those in the majority, reweigh your positions, and I also ask that you, those of you in the minority, continue to argue the positions that you believe to convince those in the majority. And I say the same thing to the majority. I ask that you reweigh your positions in the light of all the arguments to see whether or not those of you in the majority still feel the way you have voted and, at the same time, ask that you, each of you as a part—the deliberation process is not only listening to others with an open mind toward reevaluation, if you believe it’s appropriate,'but it’s also taking an active part in sharing what you feel and how you feel and perhaps how you arrive at your feelings. And I say to both the majority and the minority that that’s what deliberations are and I ask that both—I don’t want to call it sides because then all of a sudden it becomes confrontational and it shouldn’t be that way.
“At the same time, I would say this to you, this is not a labor negotiation. In a labor negotiation we always know when the baseball players go on strike there’s going to come a time when somebody is going to have pressure and they’re going to yield, economic pressure. There’s obviously no economic
“At this time I order that you return to the jury deliberations room, continue your deliberations. If at any time—and I don’t want anybody to be hesitant about asking even if you had it read once to have it re-read a second time the testimony or any clarification what you feel is necessary to any points of law. If you’ll continue your deliberations.”
After the trial court gave these instructions, defense counsel moved for a mistrial, arguing that instructing the jury to continue deliberations “invaded [its] purview.” The trial court denied the motion and jury deliberations resumed.
The morning of November 27, 1996, Juror No. 128 informed the court that she was “struggling” to determine whether she was “incapable of reaching a rational decision based on [her] fear of the sentence that [she] may have to impose,” that she had become “convinced” she was “incapable of sentencing another human being to death,” and that she feared she “may not or could not have been totally objective in [her] interpretation of the evidence.” During the court’s subsequent questioning, the juror indicated she did not think she could ever vote for the death penalty no matter the facts. The court then asked the juror whether her reluctance to sentence defendant to death would cause her to refuse to find him guilty of first degree murder or to find true the alleged special circumstance, even were she convinced beyond a reasonable doubt on those issues. After first responding, “this is where I’m wrestling,” the juror continued: “Yeah. I honestly am not sure what’s happening in my mind and I think that it’s preventing me from being able to make my judgment. So I guess my answer would be yes.” Based on these responses, the trial court found “misconduct at least in the technical legal sense” and ordered that an alternate juror replace Juror No. 128.
On December 2, 1996, after the Thanksgiving break, the court instructed the jury to begin deliberations anew. The morning of December 4, the jury returned its verdicts.
2. Failure to Declare Mistrial
As noted above, defendant asserts the trial court erred in failing to declare a mistrial and instead directing the jury to continue deliberating. In his view,
Defendant’s argument fails. Section 1140 states in relevant part that, “[e]xcept as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless ... at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.” The determination under this section of whether a reasonable probability of agreement exists “rests in the discretion of the trial court.” (People v. Breaux (1991)
Applying these principles under circumstances analogous to those now before us, we have upheld a trial court’s refusal to declare a mistrial. In People v. Sandoval (1992)
3. Instruction on Further Deliberation
Defendant asserts the instruction the trial court gave in directing the jurors to continue deliberating was prejudicially erroneous in several respects. He first challenges the court’s statement, “I am going to assume only because statistical probabilities favor[] my assumption that you are not deadlocked 6-6, that it’s some other numerical division.” He bases his challenge on the high court’s decision in Brasfield v. United States (1926)
Defendant’s argument fails under our prior decisions, which reject Brasfield’s “rule of procedure [for] federal courts” (Breaux, supra,
Defendant next challenges the court’s statement: “I say this to you: those of you in the minority, if I am right that it is not just 6-6,1 ask that you listen to the arguments of those in the majority, re weigh your positions, and I also ask that you, those of you in the minority, continue to argue the positions that you believe to convince those in the majority. And I say the same thing to the majority. I ask that you reweigh your positions in the light of all the arguments to see whether or not those of you in the majority still feel the way
In Gainer, we held that the trial court had reversibly erred in giving a “discriminatory admonition directed [only] to minority jurors to rethink their position in light of the majority’s views.” {Gainer, supra,
As is apparent, the instruction defendant challenges here does not share the vices the Gainer instruction contained. It did not in any way single out minority jurors or encourage those jurors—if in fact there were any—to consider, along with the arguments and the evidence, “their own status as dissenters.” (Gainer, supra,
Nevertheless, defendant contends that Gainer requires reversal because, after emphasizing that the instruction there at issue asked only the jurors in the minority to reconsider their position, we stated in a footnote: “Since recognition of the existence of a majority or minority faction on the jury is irrelevant to the issue of guilt, such reference is erroneous, even if contained in an arguably noncoercive, ‘balanced’ . . . charge which explicitly admonishes the majority as well as the minority to reconsider their views.” (Gainer, supra,
Although Gainer's statement appears to support defendant’s position, several reasons exist for questioning its persuasive force. First, the statement was dictum, inasmuch as the instruction at issue in Gainer was not balanced; as our opinion emphasized, only “the dissenters” in Gainer were “led into the courtroom and, before their peers [in the majority], specifically requested by the judge to reconsider their position.” (Gainer, supra,
Defendant asserts the trial judge prejudicially erred in restricting voir dire of prospective jurors regarding the effect on their ability to perform their duties of two circumstances: (1) there were five murder victims and (2) two of the victims were children. He argues the error violated his constitutional rights to a fair and impartial jury, a reliable penalty determination, and due process. For reasons explained below, defendant’s argument fails.
In any event, even were we to find that the trial court in this case erred in giving a balanced instruction, reversal would be unwarranted. In Gainer, we held that a discriminatory admonition that directs only minority jurors to rethink their position in light of the majority’s views is prejudicial because it “skews the deliberative process . . . toward the result favored by the majority,” making it “very likely” that prejudice occurred. (Gainer, supra, 19 Cal.3d at pp. 854—855.) However, we also explained that, as to an erroneous instruction that “does not threaten to distort the process of jury decision-making to the same degree,” reversal is appropriate only if the reviewing court, considering “all the circumstances under which the charge was given,” finds it “reasonably probable” the defendant would have obtained a more favorable result absent the error. (Id. at p. 855.) Here, no such reasonable probability exists. As previously explained, the instructions here did not exert pressure on or in any way encourage jurors in the minority to abandon their independent judgment and acquiesce in a verdict simply because the majority had reached a verdict. On the contrary, the instructions—which included a version of CALJIC No. 17.40 substantively identical to the version we expressly endorsed in Gainer—told jurors that “this is not a matter of compromise,” that they “should not compromise just for the purpose of reaching a verdict,” that defendants were “entitled to the individual opinion of each juror,” that “each of you must decide the case for yourself,” and that they should “not decide any question in a particular way because a majority of the [jurors], or any of them, favor such a decision.” Given all of the circumstances under which the charge was given, any error in the court’s reference to the minority and the majority as distinct groups was harmless.
“Prospective jurors may be excused for cause when their views on capital punishment would prevent or substantially impair the performance of their duties as jurors. [Citation.]” (People v. Cash (2002)
Accordingly, defendants are entitled to “probe the prospective jurors’ attitudes” as to any fact or circumstance in the case that “could cause some jurors invariably to vote for the death penalty, regardless of the strength of the mitigating circumstances.” (Cash, supra,
Our prior decisions indicate that, under the above standards, a trial court would err in categorically prohibiting a defendant from asking prospective jurors whether they could vote for life without parole for a defendant convicted of “multiple murder.” (People v. Vieira (2005)
Insofar as defendant asserts that questioning about “multiple murders” was too general and that the trial court erred in refusing to allow more specific questioning about the precise number of alleged murders, his argument fails. To begin with, defendant cites no case holding that a trial court must allow such specific questioning. “In deciding where to strike the balance in a particular case, trial' courts have considerable discretion. [Citations.]” (Cash, supra,
In any event, even would such a ruling have been an abuse of discretion, defendant would not be entitled to relief on the record here. “The gravamen of’ our decisions in this area “is that the defense cannot be categorically denied the opportunity to inform prospective jurors of case-specific factors that could invariably cause them to vote for death at the time they answer questions about their views on capital punishment.” (Carasi, supra,
Moreover, the record further discloses that both defendant’s counsel and the prosecution, while questioning prospective jurors in open court before other prospective jurors, discussed the circumstance that there were five alleged murder victims in the case.
Defendant’s claim presents a closer question insofar as he argues that the trial court erred in precluding mention of the circumstance that two of the victims were children. We have never directly held that the age of a murder victim is a circumstance that could cause some jurors invariably to vote for
However, under the circumstances of this case, the trial court did not abuse its discretion in precluding mention of the circumstance that two of the murder victims were children. Our recent decisions in this area indicate that, in assessing whether a trial court erred in refusing to allow questioning about a particular circumstance, we look not to the circumstance in isolation, but to the entire factual context, including “what the prospective jurors [actually] knew about the case.” (People v. Solomon (2010)
We also stressed context in Zambrano, supra,
Based on similar considerations, we find that, on the record here, the trial court did not err in precluding mention of the circumstance that two of the victims were children. First, as to defendant, a question about the effect of this circumstance would not have been “entirely fair in the context of this case.” (Zambrano, supra,
L. Testimony of Anthony France
As noted above, after defendant introduced his penalty phase evidence, the prosecution presented testimony from Anthony France regarding a 1991 incident at San Gabriel High School. According to France, defendant, after being detained in connection with a campus fight, said he was “going to put a bullet in [France’s] head,” called another supervisor “his bitch,” and said he was going to “kick” the other supervisor’s “ass.”
When the prosecution first proposed calling France, defendant objected that France’s testimony was not proper rebuttal evidence. The court disagreed and overruled the objection. Defendant renewed his objection after France’s testimony, again arguing that it was improper rebuttal. The trial court overruled the objection, finding that (1) the evidence would have been admissible in the prosecution’s case-in-chief as “factor b” evidence under section 190.3, which permits jurors to consider in determining penalty “[t]he presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence” and (2) admitting the evidence during rebuttal would not prejudice defendant. Defendant now renews his objections to France’s testimony.
1. The testimony was proper rebuttal evidence.
Rebuttal evidence is relevant and admissible if it tends to disprove a fact of consequence on which the defendant has introduced evidence. (People v. Loker (2008)
Here, the trial court did not abuse its discretion in initially determining that France’s testimony was admissible rebuttal evidence. As noted above, during the penalty phase, defendant introduced evidence regarding his intelligence, his positive performance in school, and other positive aspects of his background, including his religious upbringing, his participation in youth sports, his participation in the Navy Reserve, his work history, and his efforts to care for his grandfather and to support his younger brother. He also offered evidence that he could make a positive contribution in' prison by helping other inmates. The trial court did not abuse its discretion in finding that, to counter this evidence and to present a more balanced picture of defendant’s personality, the prosecution could introduce through France’s testimony evidence that, in a structured school setting, defendant had physically threaténed school personnel who detained him after breaking up a campus fight. (See People v. Clark (1993)
The closing argument of defendant’s counsel at the penalty phase reinforces this conclusion. Counsel argued thát the evidence of defendant’s positive school performance, his “good background,” and his demonstrated willingness to assist other inmates showed that defendant could and would atone for his crimes were the jury to spare his life and impose a life sentence. Counsel explained: “[Y]ou have put everything in a structured situation, everything, all of his training of his parents and our society invested because he went most of the time to school where he can do some good inside” by helping other inmates. To reinforce his argument, counsel stressed that the prosecution had offered no evidence defendant had been arrested before committing the murders in this case. In fact, defense counsel argued that the only evidence defendant had even previously been in trouble was France’s testimony about the high school incident. Thus, France’s testimony not only enabled the prosecution to counter defendant’s argument for mercy based on
2. Admission Under Factor (b) Was Harmless
Defendant makes several challenges to admission of France’s testimony under section 190.3, factor (b) (factor (b)). He argues the testimony was not admissible on this basis because his conduct “did not constitute ‘criminal activity’ in violation of any penal statute.” He also argues the trial court erred in failing to give sua sponte CALJIC No. 8.87, which instructs jurors they may not consider as an aggravating circumstance a criminal act involving the threat of force or violence unless they find beyond a reasonable doubt that the defendant committed the act. These errors, defendant contends, were prejudicial because they “allowed the jury to consider evidence in aggravation even though [his] conduct did not constitute a violation of a penal statute,” and the evidence “was not cumulative of any other properly admitted factor (b) evidence.”
We agree with the People that any error in admitting France’s testimony as factor (b) evidence was harmless under any standard. As explained above, the trial court properly admitted France’s testimony as rebuttal evidence. Thus, regardless of whether the evidence was admissible under factor (b), the jury properly learned about the high school incident. It is true, as defendant notes, that during argument, the prosecution told the jurors they could consider the evidence of the high school incident with respect to factor (b). However, after this brief mention of factor (b), the prosecutor did not focus on the incident as evidence of a prior crime; indeed, he noted several times that France had not even taken the threat seriously. Instead, the prosecutor argued that defendant’s statement during the incident “tells you . . . quite a bit about Mr. Valdez,” that it showed “the true,” “the real,” and “the manipulative Mr. Valdez,” who “wants to intimidate” and who “means business” when he “makes that kind of statement.” The prosecutor could have made the same arguments based on the evidence’s admission as rebuttal evidence. Thus, as the People explain, despite the prosecutor’s brief mention of factor (b) before discussing France’s testimony, that testimony was, in essence, “actually presented to the jury” as rebuttal evidence.
Second, the properly admitted aggravating evidence in this case— specifically, the circumstances of the crime (§ 190.3, factor (a))—was simply overwhelming. From that evidence, the jury found that defendant participated in five execution-style shootings of unarmed and unresisting victims. Defendant personally executed two of the victims by pressing a gun to their heads
M. Failure to Reread Guilt Phase Instructions
During discussions with counsel about the penalty phase jury instructions, the court, after indicating that all of the guilt phase instructions applied to the penalty phase except those telling jurors they could not consider sympathy or penalty, stated: “My belief is that all the other instructions to the extent that they apply, there may be some that don’t, but I don’t think it’s confusing to just tell the jury that all the previous instructions do apply with those . . . exceptions.” The prosecutor replied that the reasonable doubt and circumstantial evidence instructions from the guilt phase also were inapplicable to the penalty phase, and then added: “I would have no objections to the court just simply telling the [jurors] . . . that they certainly can now consider sympathy and they certainly can consider penalty or punishment and that they. can consider the rest of the instructions that have previously been given as they feel they apply.” The court responded, “All right,” and the prosecutor interjected, “If no one else has an objection to it.” Counsel for both defendant and Palma responded, “I agree with that.”
Based on counsel’s agreement, the court instructed the jury as follows: “Generally speaking, all of the. instructions I gave you in the first phase you may consider to the extent that they’re applicable in this phase and I am not going to re-read all of those instructions. There are several areas that don’t apply. For instance, I told you in the first phase that you could not consider sympathy for a defendant in determining guilt. In this phase you may if you
Defendant now claims the penalty phase instructions were inadequate because the court failed to reread instructions from the guilt phase that also applied to the penalty phase and failed to give CALJIC No. 8.84.1, which states in part that jurors “must neither be influenced by bias nor prejudice against the defendant, nor swayed by public opinion or feelings.” The court compounded these errors, defendant asserts, by instructing jurors it was their job to determine which instructions from the guilt phase applied during the penalty phase.
For several reasons, defendant’s claims fail. Procedurally, defendant forfeited appellate review of the issue by failing to raise it in the trial court and, through counsel, expressly agreeing that the court could simply tell jurors they could “consider the rest of the instructions that have previously been given as they feel they apply.” (See People v. Rundle (2008)
Ignoring these authorities, defendant argues the jurors “might reasonably have concluded” under the trial court’s instructions that CALJIC No. 2.60, which directs jurors not to infer guilt from a defendant’s failure to testify, “did not apply to their penalty determination.” He reasons that the principle CALJIC No. 2.60 states, though “commonly understood” to apply “to a determination of guilt,” would not necessarily also be understood to apply “to a determination of penalty.”
Finally, given that the trial court did not err in directing the jury to apply the guilt phase instructions, it also did not err in failing to give CALJIC No. 8.84.1. That instruction would have contradicted the instructions the trial court gave pursuant to the parties’ agreement by directing jurors to “accept and follow the law” as set forth in the penalty phase instructions and to “[disregard all other instructions given to you in other phases of this trial.” (See People v. Harris, supra, 43 Cal.4th at pp. 1319-1320 [“it was confusing for the jury to hear first that it was to ‘[disregard all other instructions given to you in other phases of this trial,’ and then that it should ‘be guided by the previous instructions given in the first phase of this case which are applicable and pertinent to the determination of penalty’ ”].) For the above reasons, defendant’s claims fail.
N. Automatic Motion to Modify the Death Verdict
After receiving the jury’s penalty verdicts on December 13, 1996, Judge Trammell, who presided over the guilt and penalty phases of defendant’s trial, set sentencing proceedings for February 19, 1997. Before that date, Judge Trammell retired. Judge Robert Armstrong took over the case and, at defense counsel’s request, continued sentencing proceedings to June 11, 1997. On June 4, Judge Armstrong denied defense counsel’s request for another continuance. Two days later, and only five days before the scheduled June 11 hearing, Palma filed a motion for a new trial and an application under section 190.4, subdivision (e), for modification of the death verdict to life imprisonment without the possibility of parole.
Judge Armstrong began the June 11 hearing by denying defense counsel’s request for yet another continuance and Palma’s new trial motion, and then took up Palma’s modification application. After noting that Palma’s written
On appeal, defendant asserts that Judge Armstrong, who did not preside at trial, failed to review the record of the trial’s guilt phase in making his ruling. Because of this failure, defendant argues, Judge Armstrong “was unfamiliar with” the evidence that the Mexican Mafia did not want the children killed. According to defendant, this was the “most important” mitigating evidence, in that it “suggested]” that Palma’s execution of the children contravened, rather than furthered, the conspiracy. Because Judge Armstrong did not know of this evidence, defendant asserts remand for a new modification hearing is required.
Procedurally, by failing to make a contemporaneous objection in the trial court, defendant forfeited his right to raise this issue on appeal. As to modification rulings made after 1992, appellate review of a claimed deficiency in the mling is not available unless the defendant brought the deficiency “to the trial court’s attention by a contemporaneous objection.” (People v. Mungia (2008) 44 Cal.4th 1101, 1141 [
In any event, the claim lacks merit. In reviewing modification rulings, as a general rule, we presume the trial court properly followed established law. (People v. Crew, supra,
Defendant has failed to meet his burden. To begin with, in several ways, the record affirmatively supports the presumption that Judge Armstrong properly reviewed the evidence. First, at a June 4 hearing on defense counsel’s request for a further continuance, Judge Armstrong reminded defense counsel that he had earlier asked them to direct his attention to any alleged trial error because he “ha[d] the full transcript of the proceedings, some thousands of pages of the trial itself.” Second, at the June 11 hearing on Palma’s new trial motion, Judge Armstrong demonstrated his familiarity with the guilt phase record by correctly challenging the assertion of Palma’s
Also supporting that presumption are some of Judge Armstrong’s remarks at the modification hearing. As noted above, in announcing his ruling, Judge Armstrong explained in part: “[The] contention [about duress] would be better supported if there were people there so that if they didn’t carry out this hit. . . they would immediately be executed themselves. And that simply isn’t supported.” The parties never mentioned whether people were present to execute defendant and Palma if they failed to commit the murders, so Judge Armstrong’s comment appears to reflect his own view of the evidence based on his review of the record. Judge Armstrong also explained that the child victims “were certainly not the objects of the wrath of the Mexican Mafia people.” This comment, which appears to reference the evidence that the Mexican Mafia did not want the children killed, is significant because nothing in the record indicates the parties mentioned this evidence or this circumstance to Judge Armstrong during posttrial proceedings. Although not definitive, these comments further suggest that Judge Armstrong reviewed the guilt phase record before denying the modification application.
The isolated snippets of the record defendant cites in support of his contrary conclusion are insufficient to meet his burden to show otherwise. Defendant cites Judge Armstrong’s statement to Palma’s counsel during the hearing on the new trial motion that he had “read the parts [of the record] that had to do with penalty, and ... the parts that had to do with deliberation.”
Nor has defendant overcome that presumption by citing Judge Armstrong’s comment in making his ruling that defendant and Palma “were members of the Mexican Mafia.” According to defendant, had Judge Armstrong read the transcripts of the guilt phase, he would have known that defendant and Palma were not Mexican Mafia members. Judge Armstrong’s contrary understanding, defendant reasons, “apparently reflected the fact that he was only familiar with the penalty phase portion of the trial record,” because Palma’s counsel, in arguing duress to the jury during that phase, “made repeated references to the Mexican Mafia, but none to the Sangra gang.” However, defendant’s reasoning is faulty because other parts of the penalty phase record, which Judge Armstrong stated he had reviewed, clarified that defendant and Palma
O. Constitutionality of California’s Death Penalty Scheme
Defendant makes numerous constitutional challenges to California’s death penalty scheme. He acknowledges we have previously rejected these challenges, but asks that we reconsider our prior decisions. We reject his request.
In permitting jurors to consider the “circumstances of the crime,” section 190.3, factor (a), does not result in the arbitrary and capricious imposition of the death penalty. (People v. Kennedy (2005)
The trial court need not instruct jurors that (1) they must find beyond a reasonable doubt that aggravating circumstances exist, that the aggravating factors outweigh the mitigating factors, and that the aggravating factors are so substantial as to make death the appropriate punishment (People v. Mendoza (2007)
The instructions were not impermissibly broad or vague in directing jurors to determine whether the aggravating factors were “so substantial in comparison with the mitigating factors that it warrants death instead of life without parole.” (See People v. Carter (2003)
Jurors need not make written findings in determining penalty. (People v. Cook (2006)
Including in the list of potential mitigating factors adjectives such as “extreme” (§ 190.3, factors (d), (g)) and “substantial” (id., factor (g)) does not erect an impermissible barrier to the jury’s consideration of mitigating evidence. (People v. Avila (2006)
The trial court need not delete factually inapplicable sentencing factors from the instructions. (People v. Cook, supra,
The absence of intercase proportionality review is not unconstitutional. (Prieto, supra,
The death penalty scheme, insofar as defendant alleges it affords capital defendants fewer procedural protections than the law affords noncapital defendants, does not violate constitutional guarantees of equal protection. (People v. Manriquez (2005)
International law does not bar imposing a death sentence rendered in accord with state and federal constitutional and statutory requirements. (People v. Cook, supra,
Defendant contends the errors he alleges cumulatively amounted to reversible error. To the extent there are a few instances in which we have found error or assumed its existence, no prejudice resulted. The same conclusion is appropriate after considering their cumulative effect.
IV. Disposition
We affirm the judgment.
Cantil-Sakauye, C. J., Kennard, J., Baxter, J., Werdegar, J., Corrigan, J., and Liu, J., concurred.
Notes
All further unlabeled statutory references are to the Penal Code.
For simplicity and to minimize confusion, we will generally refer to the victims by their nicknames or first names.
As later explained in more detail, many of the trial witnesses were identified in the written record by number to protect their safety.
“Creepy” was never identified at trial by his real name.
Palma was killed in San Quentin State Prison on October 13, 1997. We ordered his appeal permanently abated.
As far as the record shows, unlike the other testifying witnesses, Witness No. 1 was never asked for identifying information.
Likewise, the People assert that, “although the record is not completely clear, it appears that witness names were all disclosed by the time of opening statements.”
In arguing that disclosure did not actually occur until the moment the witnesses took the stand, defendant relies in part on Judge Trammell’s statement on October 16, five days before trial began, that he would “withhold” the witnesses’ names with the “understanding” that, “when one of these witnesses takes the stand,” he would grant a continuance before proceeding with cross-examination if defense counsel “can give a good cause reason for delaying cross examination because [they] didn’t know who the person was.” However, as indicated above, after the court’s statement, the prosecution indicated its intent to identify the witnesses “within a couple of days of their testimony” and stated that it had no objection to giving defense counsel the names of “some of’ the witnesses “on Friday.” The court then stated that it wanted to defer its decision on the prosecution’s suggestion and concluded the day’s proceedings by directing the prosecution to “keep counsel apprised of who the witnesses next up will be for the next day so that they can use the evening to prepare for cross examination.” Defendant also relies on the following October 25 statement of Palma’s counsel, after the court, at the prosecution’s request, directed defense counsel not to tell their clients the order in which witnesses would be testifying: “[S]o the record’s clear as [to] our position on this. ... I think what our position has been ... in this it is not that we just don’t know who the witness is going to be the day before, we don’t know who the witnesses are at all.” However, in context and in light of the record as a whole, this comment is best understood not as a statement that Palma’s counsel still did not know the witnesses’ identities, but as a reiteration—to clarify the record—of counsel’s prior objection to earlier court rulings that authorized nondisclosure. Notably, defendant’s counsel did not join in the comments of Palma’s counsel or challenge the prosecution’s representation earlier in the hearing that it had “told” defense counsel “the true names of the witnesses.” Instead, defendant’s counsel responded to the prosecution’s representation by expressing gratitude that the prosecution had “been telling” defense counsel the order of witnesses “the night before [so] at least we can open the book at least and prepare.”
On October 31, before Witness No. 16’s testimony—which defendant asserts was “the cornerstone of the prosecution’s case”—defendant’s counsel told the court he had interviewed the witness the previous July, “obviously” knew the witness’s name, and “had been referring to [the witness] by name for the last two weeks.” Indeed, the record suggests that defendant’s counsel may have known the identities of the protected witnesses well in advance of trial. In March 1996, Logan’s counsel told the court that he “ha[d] been able to ascertain who” the witnesses were from his own investigation and from the information he had received, including the redacted grand jury transcripts and the police reports.
The court stated: “[A]fter you have had a chance or an opportunity to conduct the investigation a little bit further,... if it is to be the request of the defense for lineups, anything of that nature, then at all times you are invited to return to court should you find, feel that there is a need or a necessity to get some further amendment to the order.” “[A]s you go along if you feel there needs to be an expansion of the order, then you are invited to return to court.”
In September 1996, the court stated to defense counsel: “You have my assurances ... if you’re able to show you need a mid trial continuance for the purposes of doing some—not fishing but doing some material investigation, you’ll get it. You have my word on that.” In October 1996, it told defense counsel: “[W]hen one of these witnesses takes the stand . . . you will have the right before you begin cross examination if you can give a good cause reason for delaying cross examination because you didn’t know who the person was, I will give it to you. In other words, I am not about to let you or make you start to cross examine until you are fully prepared.”
During trial, the court raised the possibility of a continuance specifically regarding Witness No. 16. After the prosecution completed its direct examination of the witness on Thursday, October 31, 1996, defendant’s counsel moved for a mistrial, explaining in part that, although he had interviewed the witness the previous July and had known the witness’s identity for at least two weeks, he did not learn information about the witness’s current employment until the witness testified at trial. Counsel stated that, had he known this information, he could have investigated possible impeachment evidence, including “what type of employee [the witness] was and whether or not he is known to lie and whether or not he has covered himself by lying about other people at the time.” In denying the motion, the court responded: “[I]f you need time to look into his impeachment insofar as his general character, I will give you a reasonable time. We do have three days [before trial resumes] and that’s something certainly on Monday if you come in and ask for more time, I am going to probably want to know what it is you need to do and why you didn’t do it over the next three days, but I mean there’s no question he’s material, and if you’re able to show me you need additional time to pursue that particular issue, you may have my word you will get it.” When trial resumed the following Monday, defendant’s counsel said nothing more about the issue.
By contrast, Palma’s counsel, after explaining that he had served subpoenas duces tecum for employment records the previous Friday and that the records would not be available until the next day, asked the court to delay for one day the continued examination of Witness No. 16. The court asked Palma’s counsel to try to “work it out” with the prosecution if possible, while reiterating: “I think I said at the beginning of the trial because you have not been given names, primarily numbers, if that necessitates a day or so or some lost time I have no problem with it.” “If you need time, I promised you at the beginning you’d get it. . . .” Shortly thereafter, the direct examination of Witness No. 16 resumed. When the court invited Palma’s counsel to begin cross-examination, Palma’s counsel requested “a moment with” the prosecution and, after receiving it, began cross-examination. After Palma’s counsel finished, defendant’s counsel cross-examined the witness without in any way indicating that he needed more time to prepare.
During the cross-examination by Palma’s counsel, the witness testified that the prosecution had granted him immunity in connection with the murders and would not prosecute him if he told the truth; that he had been held in jail for refusing to testify despite the grant of immunity and a judge told him he would stay in jail until he testified; that a case involving a charge of driving under the influence would be “washed out” and a pending drug charge would not be prosecuted if he testified; that he would be moved out of the area; that he had lied when he first spoke with police about the murders and told them he was not involved; and that he had refused to tell the police the truth “until after [he was] granted immunity and [he] had cut [a] deal.” During his ensuing cross-examination, defendant’s counsel extensively probed inconsistencies in the witness’s trial testimony and his prior statements to police and during the July interview with defendant’s counsel. Defendant’s counsel also established that the witness was a phencyclidine (PCP) user.
During cross-examination, Witness No. 14 testified that he was presently in custody for kidnapping and robbery; that he had a 1993 felony conviction for drug sales; that Dido and Tito had sold drugs for him at one time; that he used heroin twice on the day of the murders; and that he told Hooker he was involved in selling drugs with a Mexican Mafia member. Witness No. 15 testified on cross-examination that the night before the murders he stole several items; that on the day of the murders three separate times he sold some of the stolen items to buy heroin; that he used heroin four different times on the day of the murders; that he had spent a substantial part of his adult life in prison; that he currently was in prison for commercial burglary; that he went to prison in 1972 for “a couple of’ burglaries, in 1986 for robbery while using a Buck knife, and in 1993 for petty theft; and that he had been “in and out of the county system” from 1980 to 1986. Palma’s counsel also explored inconsistencies between Witness No. 15’s trial testimony and his prior statements.
To the extent defendant now complains in his reply brief that the protective order, by prohibiting counsel from disclosing the witnesses’ identities to anyone, precluded him from further inquiring into the witnesses’ biases, their reputations for veracity, and their abilities to perceive, recall and describe the events to which they testified, defendant could have asked the trial court to amend its order to permit such disclosure. He did not.
Moreover, defendant errs in asserting that, without address information, he had “no way to determine where” the two witnesses who were the victims’ neighbors were when they made their observations. Under the court’s protective order, defendant could have requested an interview with these witnesses and asked them where they were when they made their observations. Judge Czuleger expressly mentioned this option to defense counsel during the March 29 hearing on the disclosure issue. To the extent this information would have disclosed their identities, defendant could have sought permission from the court to obtain this information, based on his asserted need to test their ability to observe. Similarly, to the extent defendant now complains in his reply brief that the protective order, by prohibiting counsel from disclosing the witnesses’ identities to anyone, precluded him from interviewing neighbors regarding the witnesses’ reputations for veracity, defendant could have asked the trial court to amend its order to permit such disclosure.
Even as to disclosure of the order of witnesses, defendant’s view of the court’s position is overly restrictive. At the same time it indicated its unwillingness to delay cross-examination “a couple of days” based on the defendants’ lack of knowledge of the order of witnesses, it stated it would delay cross-examination “a reasonable amount of time” and explained: “.. . I suppose what is reasonable would depend on the circumstances. You’re not going to find me ... to be trying to rush this case along because ... it’s moving along quite quickly.”
During his closing argument, Palma’s counsel also relied on Witness No. 15’s testimony to argue that the El Monte Flores gang committed the murders.
Again, had further disclosure been necessary to develop this defense, defendant could simply have sought amendment of the protective order, in accordance with the trial court’s invitation. He did not.
Moreover, during the prosecution’s direct examination at trial, Witnesses Nos. 8 and 9, who were neighbors of the victims, gave their addresses on the date of the murders. Referring
The record does not contain the interviews in question or otherwise indicate how many of the protected witnesses defendant’s counsel interviewed.
Given this conclusion, we need not determine whether, as defendant asserts, the prosecution’s access to his counsel’s interviews implicated the work product privilege because counsel’s questions to the witnesses “necessarily revealed the very substance of the [his] strategies.” (See Coito v. Superior Court (2012)
These defendants and their counsel were present in court on September 28, 1995, when the prosecution explained that the next day Judge Bascue would be deciding whether to redact the names of certain witnesses from the grand jury transcripts.
Counsel was appointed on October 3, 1995. Defendant was arraigned on October 26, 1995.
Another pretrial ex parte hearing may have taken place before Judge Bascue in October 1995. In several discovery-related filings, the prosecution stated that, on October 19, 1995, it had “moved in camera” to supplement Judge Bascue’s September 29 order. The record contains an order dated October 19, 1995, regarding nondisclosure of the witnesses’ identities, but the order does not mention the holding of a hearing. The terms of the order are consistent with the ruling Judge Bascue announced orally on September 29. The record does not otherwise contain any transcript, filing, or minute order directly related to a hearing on October 19. Moreover, accompanying one of the prosecution’s discovery-related filings was a declaration from the prosecutor stating that, on October 19, 1995, Judge Bascue issued “supplemental orders” regarding redaction. The declaration did not indicate that there was an in camera or ex parte hearing on that date. In any event, the forfeiture analysis that applies to Judge Bascue’s September 29 order applies equally to any order resulting from a hearing on October 19.
Logan’s counsel first stated that he “disagree[d]” with the court’s ruling, and asserted that defense counsel were “entitled to have names and addresses.” Palma’s counsel then objected that the order was “overly restrictive,” “unnecessarily] burdensome,” and “interfere[d] with the [defense’s] ability to conduct its investigations.” Defendant’s counsel then stated that he “join[ed] in” these objections and added that “interviewing witnesses from a conventional box where you open the curtain” was “onerous.” Torres’s counsel then objected that the order interfered with Torres’s right to confront and cross-examine witnesses.
Judge Czuleger had earlier rescheduled the March 22 hearing for March 29.
Logan’s counsel complained that the order would prevent him from discussing discovered information with his client. Maciel’s counsel complained that the order would prevent him from asking the “stranger” witnesses where they were when they made their alleged observations and that certain pages of the grand jury transcript had been removed entirely. Ortiz’s counsel objected to the provision in the order that allowed the prosecution to be present during witness interviews by defense counsel. Palma’s counsel objected “to any limitation on discovery” and complained that the order interfered with the attorney-client relationship insofar as it limited counsel’s ability to discuss the case with his client. Defendant’s counsel joined in this objection, but otherwise said nothing about Judge Czuleger’s proposed order.
The investigator did not repeat his earlier testimony that defendant and a Mexican Mafia member who ordered the hit were still at large.
Procedurally, the People assert that, by failing to object in the trial court “to the majority” of the gang-related evidence he now challenges, defendant “almost entirely forfeited” his right to challenge on appeal the prosecution’s use of this evidence. According to the People, the record shows that defendant “objected specifically” only to the tattoo photographs, a photograph the trial court excluded, and the graffiti pictures from defendant’s scrapbook. His “objection to ‘others’ was not [sufficiently] specific” and, although the court “particularly warned counsel to make a more specific objection during trial regarding the photographs,” “[c]ounsel never pursued a ruling at trial.” In response, defendant insists that his counsel’s objections “encompassed all of the gang-related exhibits” in question.
The record makes it very difficult to assess the prosecution’s forfeiture claim. In their arguments to the court about admissibility, the parties referred to the exhibits only by general description because, despite the court’s request, the parties did not mark the exhibits before making their arguments. Given the ambiguities in the record, we assume defendant preserved his right to raise these claims and proceed to the merits. (See People v. Champion (1995)
Defendant’s offer to stipulate that he was a Sangra gang member did not render proof of his membership in and commitment to Sangra irrelevant. As part of his defense at trial, defendant attempted to persuade the jury that, at the time of the murders, he either had separated himself from Sangra and was no longer active in the gang or that he was in the process of separating himself from Sangra and becoming inactive.
Evidence of efforts to intimidate a witness is also admissible to show a defendant’s consciousness of guilt if there is evidence the defendant authorized or acquiesced in the efforts. (People v. Hannon (1977)
We disapprove People v. Yeats, supra,
The quoted statement was Witness No. 13’s response after testifying that she did not recall previously stating she saw the words “Nissan” and “Maxima” on the car at her mother’s house or that her brother was at the house when Jimmy Palma came back the second time. | After testifying she did not recall previously stating that her brother had been on the telephone at her mother’s house and had received several pages, she similarly added, “But if it’s there then that’s what I said.” At another point, after testifying she did not remember her prior statement that someone called “Tricky” (i.e., Logan) had arrived at her mother’s house with two other people, she added, “That’s what’s there, that’s what I said, but I don’t recall.” Finally, after testifying she did not recall previously testifying that she had seen a gun in her mother’s house and that her mother, upon discovering the gun, had asked her brother to leave, Witness No. 13 added, “If that’s what I said, that is what I said.”
For example, after playing a tape of one of Witness No. 13’s prior statements, the prosecution asked, “Was that your voice on the tape?” Witness No. 13 responded, “I believe so.”
During his testimony, Witness No. 16 expressed “concern” about a photograph (exhibit No. 58) of himself and other Sangra gang members with his face scratched out and “187”—the Penal Code section for murder—written across his chest. Defendant asserts that, because Witness No. 16 testified he never saw the photograph “until the prosecutor showed it to him while he was on the witness stand,” “it could not conceivably have had any bearing on his state of mind, or account for any supposed evasiveness or inconsistency in his testimony.” However, the witness also testified that the prosecution told him of the picture’s existence before he took the stand. Moreover, the photograph was relevant to support the witness’s testimony about his fear. In any event, given the other testimony about the photograph, the witness’s testimony that the photograph “concerned]” him added little to the case.
In his briefs, defendant offers no response to the People’s forfeiture arguments.
In any event, any collateral assertions the statement may have contained could not have prejudiced defendant because they did not attempt to shift blame from Shyrock to defendant or anyone else.
The evidence and the arguments simply do not support defendant’s assertion in his reply brief that jurors “reasonably” may have concluded that “the gang’s purpose was [merely] to assault or take money from someone” or that the “target offense was to assault (but not murder)” Tito “in retaliation for stealing from drug ‘connections’ protected by the Mexican Mafia, or simply to recover whatever he had stolen.”
Even in cases where the prosecution charges conspiracy as a separate crime, jurors need not unanimously agree on a specific overt act. (People v. Russo (2001)
In People v. Caradine (1965)
Defendant asserts the trial court’s instructions to jurors in the minority differed “in a significant way” from the instruction to jurors in the majority. The former instructions, he argues, essentially directed minority jurors to “reweigh” their positions in light of “the arguments of those in the majority,” whereas the latter directed majority jurors to “reweigh” their positions “in the light of all the arguments to see whether or not those of you in the majority still feel the way you have voted.” (Italics added.) Defendant overlooks the fact that, after instructing the jurors in the minority to reweigh their positions, the court began its instruction to the jurors in the majority by stating, “And I say the same thing to the majority.” He also overlooks the fact that, in concluding its instruction, the court directed all jurors to “have an open mind, each of you, whichever side you’re on, to reevaluating.” Viewing the instructions as a whole, there is little, if any, likelihood the jurors understood that the court was asking jurors in the minority to do something different from jurors in the majority.
During questioning of a prospective juror, defendant’s counsel asked: “Do you have any notions now, my God, there’s five murders?” The prospective juror responded, “Well, that’s been going through my head, yes.” Defendant’s counsel then asked, “And what has been going through your head?” The prospective juror replied, “How would you weigh that if it did come to that part of the case, the judgment part.” During general questioning, the prosecution stated: “This is a very, very serious case. I know you don’t know about the facts but you do know that the defendants are charged with killing five people.” Later, in probing the possible effect of Witness No. 16’s immunity, the prosecutor commented: “I know that if I had been seated on the jury and someone said to me in the case where five people were murdered, . . . that someone had been given immunity, ... I know that my feeling would probably be somewhat negative." The prosecution also asked one of the prospective jurors whether, despite being acquainted with defendant’s counsel, he could impose the death penalty if “at the conclusion of the case" he believed that defendant “was shown guilty of the five murders.”
Moreover, as we have observed, this instruction “is of only questionable value to the defense” because it “draws attention” to the defendant’s failure to testify at the same time it cautions the jury not to draw an adverse inference from that failure. (People v. Stanley (2006)
Of course, defendant could have easily clarified the meaning of the court’s comments simply by objecting when Judge Armstrong made them.
Concurrence Opinion
I join today’s opinion and write separately to add two comments concerning the trial court’s restriction on voir dire of prospective jurors. (See maj. opn., ante, at pp. 164-169.)
I.
As the court notes, we said in People v. Cash (2002)
In exercising such discretion, trial courts should be mindful that the risks on the two sides of the balance are not symmetrical. If voir dire is too abstract, it may fail to identify a prospective juror whose views on the death penalty prevent him or her from impartially weighing the facts and following the law. (See Rosales-Lopez v. United States (1981)
If voir dire is too specific, the risk is that prospective jurors will be asked to prejudge the case. A prospective juror may have no categorical biases such as “I will automatically vote for the death penalty where the murder victim is a child.” But a prospective juror’s answers to questions about the specifics of a case may suggest how he or she is likely to vote upon hearing the evidence to be presented at trial. Those answers may lead the prosecution or the defense to peremptorily challenge a prospective juror who is in fact impartial and qualified to serve.
For obvious reasons, we do not want the conduct of voir dire to encourage the parties to ask prospective jurors to prejudge the case. But asking a prospective juror too many questions about the particular circumstances of a case does not have the same potential for mischief as asking too few questions. Asking a potential juror too many questions may tip the juror’s hand as to how the juror might actually vote in the case, which might lead to a peremptory challenge against a qualified juror. Yet peremptory challenges are usually exercised against qualified jurors in any event. By contrast, not asking enough questions leaves a dearth of information, which may result in the empanelment of an unqualified juror—a juror whose death penalty views will substantially impair his or her ability to impartially apply the law to the facts. The latter implicates the fairness of the trial in a manner that the former does not.
This asymmetry does not by itself suggest a general rule for achieving the balance required by Cash. Because the facts of each case are integral to determining the proper scope of voir dire, trial courts have broad discretion in this area, and in a given case there may be several approaches to death-qualification voir dire that are reasonable and not reversible for abuse of discretion. However, in exercising discretion, trial courts should take into account the important distinction between the risk of empanelling an unqualified juror and the risk of subjecting a qualified juror to peremptory challenge. This distinction may be consequential to a trial court’s judgment not only as to what is a reasonable approach to voir dire, but also as to what is the most fair approach among several possible reasonable approaches.
II.
The court rejects defendant’s claim that the trial court should have allowed death-qualification voir dire on the fact that two of the murder victims were children. (See maj. opn., ante, at pp. 166-168.) I agree that the trial court’s
As the court explains (maj. opn., ante, at pp. 166-167), we have repeatedly suggested, albeit in dicta, that the murder of a child falls within the category of circumstances that have the potential to “cause a reasonable juror—i.e., one whose death penalty attitudes otherwise qualified him or her to sit on a capital jury—invariably to vote for death, regardless of the strength of the mitigating evidence.” (People v. Zambrano (2007)
In People v. Alfaro (2007)
Other decisions have recognized that informing prospective jurors that the murder victim was a child is important to ensuring the selection of an impartial jury. In People v. Terrell (1998)
Our conclusion that “on the record here, the trial court did not err in precluding mention of the circumstance that two of the victims were children” (maj. opn., ante, at p. 168) rests on the unique facts of this case—in particular, the fact that defendant did not personally kill the child victims. Nothing we say today erodes the general rule, apparent in the decisions of our court and others, that where a capital defendant stands accused of personally killing a child, that fact by itself is so potentially inflammatory as to cause an
Appellant’s petition for a rehearing was denied October 17, 2012.