Supreme Court of California Justia
Citation 46 Cal. 4th 680, 208 P.3d 634, 94 Cal. Rptr. 3d 699

People v. Avila

Filed 6/15/09



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S078664

v.

JOSEPH AVILA,

Riverside County

Defendant and Appellant.

Super. Ct. No. CR-65127



Defendant Joseph Avila was convicted of the first degree murders of Raul

Moncada and Robert Navarro, and the attempted murder of David Montoya. (Pen.

Code,1 §§ 187, 189, 664.) The jury also found true the multiple-murder special-

circumstance allegation, and allegations that the murders and attempted murder

were willful, deliberate, and premeditated, defendant inflicted great bodily injury

on Montoya, and defendant personally used a dangerous or deadly weapon, i.e., a

knife, in each crime. (§190.2, subd. (a)(3), former § 664, subd. (1), now § 664,

subd. (a), § 1192.7, subds. (c)(8), (23), § 12022, subd. (b), former § 12022.7, now

§ 12022.7, subd. (a).) It returned a death verdict, and the trial court entered a

judgment of death. This appeal is automatic. (Cal. Const., art. VI, § 11; § 1239,

subd. (b).) For the reasons that follow, we affirm the judgment.

1 All further statutory references are to the Penal Code unless otherwise

indicated.

1


I. FACTUAL BACKGROUND

A. Guilt Phase

1. Prosecution Evidence

In the early morning hours of Saturday, January 12, 1991, a group of friends

including Raul Moncada, Robert (―Bobby‖) Navarro, David Montoya, Jeffrey

Winn, Anthony Padilla, Manuel Moreno, Luis Robledo, Lawrence (―Larry‖)

Casas, Anthony (―Tony‖) Pereira, and Ronald Cordova, were socializing in a

parking lot in Riverside after cruising on Magnolia Boulevard. They were

unarmed, and had not consumed drugs or alcohol. Pereira and Casas were talking

with three young women they had met that evening, Evelyn Quintana, Pauline

Mesa, and Joanie Olsen.

Testimony from various eyewitnesses to the events at issue, including

Montoya, Winn, Padilla, Moreno, Robledo, and Casas, and the testimony and prior

statements of Quintana and Mesa, established the following.

A dark-colored vehicle, identified by Moreno and Mesa as an Impala, pulled

into the parking lot. Defendant and one or two other men got out and walked

toward the group of friends. The men told at least two of the women to get in the

car. The women refused to leave, and defendant became irate. Padilla heard

Pereira say ―Carmelos,‖ which Padilla did not recognize, but assumed was a gang

name. Defendant said ―Crown Town‖ or ―Corona.‖ Pereira and Montoya briefly

argued with defendant, and someone from defendant‘s group suggested they go

―one-on-one.‖ Montoya said defendant was free to take the women, and said

―[t]here‘s no big problem here.‖ The confrontation appeared to dissipate, and

Montoya and his friends started toward their vehicles.

At some point toward the end of the confrontation, defendant broke off from

the group and went to Magnolia Boulevard. Moreno testified he saw defendant

reach inside the Impala, and ―grab something.‖ Moreno and several other

2

witnesses also observed defendant flag down someone in a different vehicle on the

street. That vehicle entered the parking lot, and defendant reached inside it. He

then ran behind bushes toward a Honda Prelude in which Montoya sat. Defendant

was carrying a large knife with an approximately six-inch blade. Montoya started

to roll up the passenger window. Defendant grabbed the top of the window,

shattering it. Defendant stabbed at Montoya more than twenty times, cutting

Montoya‘s bicep in half, and cutting his leg. Montoya lay in the driver‘s seat,

kicking with his feet out the window. When defendant ran behind the Prelude,

Montoya escaped out the passenger window, fearing that defendant would attack

him from the driver‘s side of the vehicle.

Defendant then ran to Moncada‘s red Ford Escort. Defendant stabbed

Moncada, who was standing outside the vehicle, in the heart, killing him. He tried

to open the door to Casas‘s vehicle, but it was locked, and the window closed.

Defendant proceeded to the next vehicle, a black truck in which Navarro was

sitting in the driver‘s seat. He stabbed Navarro in the heart through the open truck

window, killing him. Defendant was apprehended more than four years later on

September 19, 1995, at the Los Angeles International Airport.

Two to three hours after the attacks, Mesa, Quintana, and Olsen were

separately interviewed by police. The interviews were tape recorded, and at trial

played for the jury. Mesa told police she saw ―Joey‖ stab all three victims,

Quintana said ―Joey‖ broke ―Manuel‘s‖ car window and tried to ―stab the guy that

got stabbed in the arm,‖ and Olsen said ―Joey‖ was the only one with a knife.

Police showed the women a photograph of defendant; they each identified

defendant as ―Joey.‖ At trial, Montoya identified defendant as his assailant, and

Padilla testified defendant was the person who went to the passenger side of the

3

Prelude, and who attacked Moncada.2 Padilla, and Senior Investigator Clark from

the Riverside County District Attorney‘s Office, testified that Padilla identified

defendant in a pretrial photographic lineup.

The examining pathologist testified that stab wounds on Moncada and

Navarro were consistent with a knife that was approximately five inches in length

and one inch wide. Both murder victims had defensive wounds, and toxicology

analysis of their blood did not show the presence of either alcohol or drugs.

2. Defense Evidence

Defendant presented no evidence.

B. Penalty Phase


1. Prosecution evidence


Guillermo Gonzalez Valencia testified that he befriended defendant, whom

he knew as ―Jose,‖ in Mexico. Gonzalez drove a tractor-trailer truck. One

evening at the end of December 1992, defendant was at Gonzalez‘s house, and

started to roll a marijuana cigarette. Gonzalez asked him to leave. The next day,

at around midnight, Gonzalez heard a noise outside his home. When he

investigated, he saw defendant and another man running away. The tires on

Gonzalez‘s tractor-trailer had been punctured.

About six days after this incident, Gonzalez and his friend Guillermo Lopez

Reynoza encountered defendant outside a church. Gonzalez asked defendant why

2 In addition, Robledo testified that the same person he saw ―sneaking up‖

to the Prelude with a knife also attacked Moncada and Navarro. Casas testified
that the same person who ran up to the Prelude also attacked Moncada and
Navarro. Winn testified that the same person attacked Montoya and Moncada, and
then headed toward Navarro‘s vehicle. Moreno testified that the same person
attacked Montoya and Moncada.

4

he had cut Gonzalez‘s tires, and asked him to pay for the damage. Defendant

refused. Gonzalez and defendant agreed they did not want to fight. Defendant

took out a pencil from his back pocket. As he did so, Gonzalez said, ―I didn‘t

come to fight.‖ Defendant reassured Gonzalez it was only a pencil. Defendant

then discarded the pencil, pulled out a four-to-six-inch knife, and stabbed

Gonzalez and Lopez. Gonzalez was hospitalized for about 10 days, required

surgery to repair his spleen, and was unable to work for three months. Lopez was

hospitalized for nearly two months, and was unable to work for about four months.

Navarro‘s parents and sister testified regarding his altruism, gregariousness,

and mechanical ability. Moncada‘s mother, sister, and cousin testified regarding

his kindness, maturity, and artistic talent, and his eager anticipation of leaving on a

mission for The Church of Jesus Christ of Latter-Day Saints later that year.

Montoya testified regarding the effect the murders had on him and the victims‘

other friends.

2. Defense evidence

Rosalinda Recendez Corona, defendant‘s mother, testified that defendant was

born July 12, 1969, when Rosalinda was about 22. She had four sons, the oldest

of whom was murdered after the capital crime. Rosalinda confessed she had not

been affectionate with defendant and lacked parenting skills. She beat her

children ―like animals‖ in order to discipline them. Rosalinda worked several jobs

in order to support the family. Relatives assisted in raising her children.

Defendant‘s father, Edward Avila, was often incarcerated, and the

relationship between defendant‘s parents ended after three years. Edward beat

Rosalinda, and ―probably‖ did so when she was pregnant with defendant. The

family moved frequently until defendant was about four years old.

5

When defendant was about four years old, he was caught in the axle of a

vehicle and dragged down the street. He was bruised all over his body, but had no

serious injuries.

Also when defendant was about four years old, Rosalinda began a

relationship and at some point had a son with Manuel Diaz. For several years,

Diaz lived with Rosalinda and her family. Diaz used heroin, beat Rosalinda, and

was incarcerated more than once. He had no relationship with defendant.

Rosalinda‘s relationship with Diaz ended in the late 1970‘s or early 1980‘s.

When defendant was about five or six years old, his father Edward began

visiting him and taking him to amusement parks and other locations.

When defendant was about seven years old, Rosalinda met and eventually

married Michael Corona. This relationship lasted approximately 10 years.

Michael used and sold heroin, and was not affectionate to defendant.

In 1982, when defendant was in junior high school, Rosalinda had a son with

Raymond Salgado. Salgado used heroin and studied the occult, including

Satanism. Once after an argument between Rosalinda and Salgado, Salgado told

defendant and his brother that if their mother did not come home, he was going to

kill himself. Salgado began cutting his arm with a knife. The boys became

hysterical, and ran to the location where their mother was staying. Rosalinda

called police, who removed Salgado in a straightjacket. The boys helped

Rosalinda clean up the pieces of flesh and blood. On another occasion, Salgado

slit his stomach open in front of the boys. Rosalinda was not certain, however,

whether defendant witnessed this event. Although Rosalinda obtained a

restraining order against Salgado, he continued to ―torment[]‖ them, causing

Rosalinda to move her children from Madero to Corona.

Rosalinda suffered from nervous breakdowns and used prescription sedatives

and stimulants before and after defendant was born. In the 1980‘s, when her

6

doctor ceased prescribing these medications, she became addicted to heroin for

about five years. She also used cocaine and methadone. She became unable to

work, and sold heroin and cocaine to support her habit. In 1983 or 1984, when

defendant was about 15, she was incarcerated for 14 months for a drug-related

offense. After she was released, she began using drugs again. Rosalinda did not

know with whom defendant lived while she was incarcerated. In 1990, Rosalinda

became paralyzed, and was then able to end her drug addiction.

Defendant had no unusual medical conditions or learning disabilities growing

up. Rosalinda testified he was a good child. She had no recollection of how he

performed in school. It was ―[t]otally out of his character to be violent.‖

Rosalinda loved defendant and wanted him to live.

Defendant also presented the testimony of individuals he met in Mexico.

Juanito Aguirre and his mother, Emilia Dedios, testified about defendant‘s

kindness toward him. Juanito had cerebral paralysis, and was confined to a

wheelchair. Defendant cooked meals for him, and took him out to eat and for

walks in the park or downtown. Juanito testified that defendant was ―like a

brother to me.‖ Defendant did not tell Juanito he was in Mexico to avoid

apprehension for murder.

Jose Gregorio Jimenez Quintero testified that defendant worked for him in

Mexico for approximately one month on a remodeling project for the military.

Defendant was one of the best workers Jose ever had, and was respected by his

coworkers. Defendant also was generous with Jose and others.

In 1993, Julian Jimenez Villa was the director of a rehabilitation center in

Mazatlan. Defendant participated in a voluntary rehabilitation program in which

he committed to ―find Christ‖ and try to change who he was. After three months,

Julian saw a change in defendant. He assisted newcomers to the center, studied

scripture, and discussed his spiritual experience with people living on the street.

7

Defendant became a counselor at the center, and performed well in this position.

Julian did not know defendant was hiding in Mexico because he was wanted for

two murders in the United States.

Maria Louisa Carajal Moreles knew defendant when he was active in the

church connected with the Mazatlan rehabilitation center. Defendant gave Maria‘s

mother hope that her own son, Maria‘s brother, would change and stop using

drugs. Maria‘s brother did change, and was now an attorney.

3. Rebuttal Evidence

Frank Lira testified he was housed in the same area as defendant in the

Riverside County jail from 1995-1997. Defendant and several others physically

assaulted other inmates; on one occasion they beat another inmate and took his

commissary card. Once, after defendant and others had beaten an inmate,

defendant told Lira he ―just had to relieve some stress.‖

II. DISCUSSION

A. Guilt Phase Issues


1. Denial of Keenan Counsel and Removal of Counsel


Defendant contends that the trial court erred by refusing to appoint Keenan

counsel, refusing to grant a reasonable continuance, and removing his counsel of

choice, in violation of various constitutional rights.3 (Keenan v. Superior Court




3 As to this, and almost every other appellate claim, defendant contends the

alleged error infringed his constitutional rights. In those instances where he did
not present constitutional theories below, it appears that either (1) the appellate
claim is one that required no objection to preserve it, or (2) the new arguments are
based on factual or legal standards no different from those the trial court was
asked to apply, but raise the additional legal consequence of violating the
Constitution. ―To that extent, defendant‘s new constitutional arguments are not
forfeited on appeal.‖ (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.) No
separate constitutional discussion is required, or provided, when rejection of a


(footnote continued on next page)

8

(1982) 31 Cal.3d 424, 430 (Keenan) [trial court has discretion under statutes

governing appointment of counsel to appoint a second defense attorney to assist in

defense of a capital case].) We disagree.

a. Factual Background

The capital crimes occurred on January 12, 1991. Defendant was

apprehended on September 19, 1995, and initially represented by the Riverside

County Public Defender. On June 21, 1996, after receiving numerous

continuances of the preliminary hearing, the public defender declared a conflict,

and was removed as counsel. The criminal defense panel was appointed, and the

case was assigned to John Aquilina. The preliminary hearing was held on October

24, 1996, and defendant was arraigned in superior court on December 19, 1996.

In December 1997, the parties agreed on an April 6, 1998 trial date, and trial was

set for that date.

On March 5, 1998, Aquilina informed the court that he was not ready to

proceed to trial. He explained that he was assigned to two other cases, one of

which, Hartsch, was ready to proceed to trial, and the other, Lee, nearly ready.

Aquilina stated that earlier that week, the criminal defense panel had attempted to

reassign the case to a different attorney who was more available, but that ―fell

through the cracks.‖

The prosecutor strongly objected to both ―protracted delay‖ of the trial date

past May 1998, and reassignment of the case to different counsel. He noted that

he had grave concerns about the availability of one of his witnesses, a victim‘s



(footnote continued from previous page)

claim on the merits necessarily leads to rejection of any constitutional theory or
―gloss‖ raised for the first time here. (Ibid.)

9

parent, who had cancer. He also noted that the case had previously been assigned

to different counsel. Aquilina stated that ―the reason for the attempt to re-assign

this matter was to speed up the case, not to delay matters.‖ The court responded

that its ―experience, unfortunately, has been that when that happens, it usually has

the opposite effect.‖ At a subsequent hearing, the trial date was moved to April

13, 1998.

On April 7, 1998, defendant filed a motion to continue the trial to a date after

May 1, 1999, or more than eight years after the capital crimes occurred. (§ 1050.)

In a declaration filed in support of the motion, counsel declared that based on his

lack of investigation and preparation, he would not be ready for trial for at least 12

months. His efforts to obtain second counsel, or to have the case reassigned to

counsel who would be ready for trial before May 1999, had been unsuccessful.

At the April 9, 1998 hearing on the motion to continue, Aquilina stated that

the prosecutor only recently had started to object to defense requests for a

continuance or insist that the matter proceed to trial. He also said that he

organized his capital caseload by working on each case in the order in which it

was assigned to him. He received the assignment in Hartsch first, Lee second, and

this case third, and had worked on them in that order. He found it ―impossible to

work on more than one and one-half of these capital cases at any one time.‖ As a

result, he had ―devoted [his] full attention to the Hartsch matter, partial attention to

the Lee matter, and very little, if any, attention to the Avila matter.‖ He suggested

that if the court wanted to discuss the Avila investigation with him, that discussion

should occur in camera. The hearing continued in open court.

The court inquired how long a delay would occur if the case was assigned to

someone else on the criminal defense panel. Aquilina stated that it was his

understanding that each panel attorney was already assigned at least two capital

cases set for trial. He further noted that this caseload made it difficult for the

10

attorneys to act as second counsel for each other‘s cases. He said that if he were

able to devote his full-time attention to defendant‘s case, it was ―possible that the

matter might be able to proceed to trial later this year.‖

The court acknowledged Aquilina was busy. It also stated that ―the People

have a point . . . . [Y]ou‘re representing to me here . . . . [that] you can‘t even

begin to think about getting ready for this case until you‘ve taken care of, in large

measure, those other two cases; that you need at least a year, on top of all the time

you‘ve already had, and on top of the public defender‘s rather large amount of

time before they were relieved. . . . [T]hese crimes occurred in 1991.‖ While

defendant‘s absence from the jurisdiction contributed to the delay, the court stated

it nevertheless had to consider the date of the crimes when ―evaluating the

problems that the People encounter and the victim‘s family‘s issues.‖ The court

stated that it needed to know if there was anyone on the panel who could work on

the case right away, and how soon that person would be ready. The court was

concerned that ―if we find somebody else to take over for you, it will make it go

even longer than if we left it in your hands . . . .‖ Aquilina responded, and the

court agreed, that the delay ―also obviously affects the defendant.‖

The court then heard from Mr. Finn, who apparently assisted in running the

criminal defense panel. Finn described the panel‘s staffing and workload

challenges, and then stated: ―[T]he answer to the Court is simply, no, not within

our current people and within our current budget can we reassign this case.‖

After further colloquy between the court and Finn, the court stated, ―From

what you‘re telling me, I essentially only have two options here. I leave it with

Mr. Aquilina and give him something approaching the time he says he wants, or

we relieve Mr. Aquilina and appoint private counsel.‖ The court stated that if

private counsel were appointed, it had ―no idea whether they can be ready any

sooner than Mr. Aquilina can be. If we leave him on the case, at least he has the

11

advantage of familiarity with the case and the defendant . . . .‖ The court

subsequently stated that it needed to find out if anyone was available to take over

the case ―and be ready any faster than Mr. Aquilina can. And I need to find that

out before I can make a decision.‖

The prosecutor stated that the delay was ―working a great injustice‖ to the

victims‘ families, and that it was ―incumbent upon the Court to . . . find competent

counsel.‖ He noted defendant‘s case was not ―complicated,‖ and mentioned other

cases in which counsel had been obtained outside the criminal defense panel.

After further argument by the prosecutor, and by the apparent prosecutor in

the Hartsch case, Aquilina observed that one factor for the court to consider in

determining whether to change counsel was ―whether the defendant consents to a

change of counsel or objects.‖ The court inquired of defendant whether he would

like the court to relieve Aquilina and attempt to find someone who could get to

trial faster, or retain Aquilina, ―hoping he can get to trial as fast as he can in light

of his heavy caseload of complex homicides and death penalty cases.‖ Defendant

answered, ―I would like to keep Mr. Aquilina.‖ The court asked, ―Even if it

means going for a year or more waiting to get to trial?‖ Defendant said, ―Yes.‖

The court inquired of Aquilina whether appointment of second counsel

would assist him in getting to trial any faster. Aquilina responded, ―Obviously

second counsel would help.‖ The court said, ―Let‘s assume for argument‘s sake

that you had a second attorney to assist you on this case, not because it‘s a

complex case, but in order to assist you to get it to trial faster. . . . ―[A]ssuming the

case was prepared and ready with Keenan counsel, what‘s the earliest you could

be available?‖ Aquilina responded, ―[W]ith one proviso, I believe January [1999],

because the Lee matter . . . would probably go some time in November or

December. Although yesterday I heard Lee may not go until January.‖ Aquilina

anticipated Hartsch would be tried in July 1998. Aquilina stressed that while he

12

would be physically available to try defendant‘s case, he did not know ―of any

defense counsel that has tried three capital cases in a 12-month period,‖ and he

was disinclined to be the first to do so. The court then inquired whether if Hartsch

was tried in July 1998, and Lee tried in January 1999, Aquilina could, with ―extra

help,‖ be ready to try defendant‘s case between these trials, by October 1998.

Aquilina responded, ―[I]t‘s possible.‖

The court vacated the April 13, 1998 trial date, and the matter was put over

so the court could research what attorneys might be available.

On April 13, 1998, the trial court made findings on the record. In particular,

it found that Aquilina ―has had a reasonable time to prepare the case, and that due

to his . . . heavy caseload and matters beyond his control, he‘s functionally

unavailable to try the case, under Penal Code [s]ection 987.05. So as soon as

private counsel can be found, I‘m going to ask Mr. Aquilina to turn over all his

discovery to new counsel‖ and return any public funds received for preparation of

the case. Aquilina did not object. The court noted that a new attorney had not yet

been located and scheduled a hearing in two days.

At the April 15, 1998 hearing, the court informed the parties that Bruce

Cormicle was available to take the case and give it ―top priority.‖ The court

requested Aquilina bring all of his discovery to a hearing on April 17, 1998.

Aquilina agreed, and again made no objection to the replacement of counsel. On

April 17, 1998, Cormicle appeared, confirmed he was available, and stated he

anticipated he would be ready for trial in less than 13 months. Aquilina was

relieved and turned over his discovery, again without objection.

b. Analysis

Defendant contends that Aquilina ―was removed over the objection of both

Mr. Aquilina and [defendant] on the request of the prosecutor when Mr. Aquilina

13

requested a five-month continuance with the assistance of Keenan counsel or a 12-

month continuance if he tried the case alone.‖ As the above factual recitation

demonstrates, while defendant stated he would rather keep Aquilina and delay trial

than obtain new counsel and go to trial more quickly, no objection was made

either when the court found that Aquilina should be removed, or when he was

actually removed.

Moreover, contrary to defendant‘s assertion, Aquilina never moved for

Keenan counsel. Under section 987, subdivision (d), the court may appoint a

second attorney in a capital case ―upon a written request of the first attorney

appointed. The request shall be supported by an affidavit of the first attorney

setting forth in detail the reasons why a second attorney should be appointed.‖ No

such written request was made in this case. Nor did Aquilina orally request

second counsel. Rather, the possibility of Keenan counsel was simply discussed

by Aquilina and the court as one option to accelerate the trial date. Indeed,

Aquilina stressed to the court that while he might be physically available sooner

with the appointment of Keenan counsel, he knew of no one who had tried three

capital cases in a 12-month period, and he was disinclined to be the first. Hence,

because Aquilina did not request Keenan counsel, the trial court never ruled on

such a request.

Nor, contrary to defendant‘s assertion, did the trial court err in denying

Aquilina‘s request for a continuance of at least 12 months, and removing him as

defense counsel. ― ‗A court may remove appointed counsel both to ―prevent

substantial impairment of court proceedings‖ [citation] and when counsel, without

good cause, does not become ready for trial (§ 987.05).‘ (People v. Cole (2004)

33 Cal.4th 1158, 1188.) A trial court‘s removal of appointed counsel for an

indigent defendant is reviewed for abuse of discretion.‖ (People v. Mungia (2008)

44 Cal.4th 1101, 1119.)

14

As noted above, defendant did not object to the removal of counsel, and the

claim is therefore forfeited. Indeed, Aquilina had on his own initiative

investigated whether another panel attorney could take over defendant‘s case.

Nor, on the merits, is any abuse of discretion demonstrated. Under section

987.05, ―[i]n cases where counsel, after making representations that he or she will

be ready for . . . trial, and without good cause is not ready on the date set, the court

may relieve counsel from the case . . . .‖ Here, the parties agreed on an April 6,

1998 trial date, an agreement that implied counsel expected to be ready on that

date. Section 987.05 further provides that in establishing a reasonable time to

prepare for trial, a trial court ―shall not consider counsel‘s convenience, counsel‘s

calendar conflicts, or counsel‘s other business.‖ It seems appropriate to similarly

exclude these factors in determining whether counsel has shown good cause for

his lack of readiness for trial. Here, the only reason cited by Aquilina for his lack

of readiness in April 1998, and need for a minimum 12-month continuance, was

his competing capital caseload.

The trial court also properly removed counsel to prevent substantial

impairment of the court proceedings. (People v. Cole, supra, 33 Cal.4th at

p. 1188.) The capital crimes occurred in January 1991, defendant was not

apprehended until September 1995 because he fled the jurisdiction, the public

defender who first represented defendant sought continuances of the preliminary

hearing for nearly a year before being conflicted out, and Aquilina, once

appointed, did little work on the case for nearly two years, and then sought to

delay trial for at least another year. Indeed, Aquilina sought to continue the trial to

a date ―after May 1, 1999.‖ Aquilina thus gave no assurance he would be

prepared for trial on May 2, 1999, but rather only represented that he would be

ready at some indeterminate point after a year had passed. In addition, a

prosecution witness was battling cancer. While defendant expressed a preference

15

for retaining Aquilina, that factor is not dispositive. (People v. Mungia, supra, 44

Cal.4th at p. 1124.) The ― ‗essential aim ―is to guarantee ‗an effective advocate

for each criminal defendant rather than to ensure that a defendant will inexorably

be represented by the lawyer whom he prefers.‘ ‖ ‘ ‖ (Ibid.)4

Nor, contrary to defendant‘s assertion, did the trial court err in failing to hold

an in camera hearing on Aquilina‘s defense investigation. While Aquilina stated

he did not feel comfortable discussing the details of the defense investigation in

open court, he never requested a hearing. Nor was one necessary. Contrary to

defendant‘s assertion, Aquilina never ―made an offer of proof that a thorough

investigation was underway.‖ Rather, counsel represented that, following the

preliminary hearing, he had done little work on the case and would not be ready

for trial for over a year because of competing capital case assignments. These

were the pertinent facts the trial court considered in determining whether to

remove Aquilina.

Defendant asserts he ―is aware of no other capital case where defense counsel

was removed over the objection of both defense counsel and the defendant on the

motion of the prosecutor.‖ As noted above, there was no objection, and

defendant‘s stated preference for Aquilina was not dispositive in determining

whether defense counsel should be removed.

Finally, defendant claims judicial bias in the court‘s comments and removal

of Aquilina. We have rejected defendant‘s claims the trial court erred in failing to

appoint Keenan counsel and in removing Aquilina as defense counsel, and our

review of the court‘s challenged comments reveals no error, let alone evidence of




4 For the reasons we conclude the trial court acted properly in removing

Aquilina, there was also no error in denying the motion to continue trial to a date
after May 1, 1999.

16

bias. Moreover, ―a trial court‘s numerous rulings against a party – even when

erroneous – do not establish a charge of judicial bias, especially when they are

subject to review.‖ (People v. Guerra (2006) 37 Cal.4th 1067, 1112.) Defendant

fails to demonstrate any judicial misconduct or bias, let alone misconduct or bias

that was ―so prejudicial that it deprived defendant of ‗ ―a fair, as opposed to a

perfect, trial.‖ ‘ ‖ (Ibid.)

2. Denial of Motion to Exclude Identification Evidence

Defendant claims that Montoya‘s and Padilla‘s pretrial and in-court

identifications were tainted by unduly suggestive procedures in violation of his

right to due process and a fair trial. Not so.

a. Factual background

On June 14, 1996, Investigator Clark met separately with Padilla and

Montoya. In recorded interviews, he discussed at length the events on January 12,

1991. At the end of each interview, he showed them two photographic lineups.

Lineup one contained defendant‘s photograph in the number two position.5

Padilla identified defendant, and Montoya selected two photographs from lineup

one, one of which was defendant, and two photographs from lineup two.6




5 Before examining the lineups, both Montoya and Padilla read and signed

an admonition that provided: ―You will be shown a photographic lineup by the
Riverside County District Attorney‘s Office. When you examine the photographs,
please keep in mind that people may or may not alter their appearance while
committing a crime. You are under no obligation to identify anyone from this
photographic lineup and the mere fact that the Riverside County District
Attorney‘s Office is showing these photographs in no way means that a
photograph of the person(s) responsible for the crime is/are present.‖


6 At trial, Montoya identified defendant as his assailant and testified

regarding his uncertainty during the pretrial photographic lineup. Padilla
identified defendant as the person who went to the passenger side of the Prelude,
and who attacked Moncada, and testified regarding his pretrial photographic


(footnote continued on next page)

17

At a hearing on defendant‘s motion to exclude Montoya‘s and Padilla‘s

identifications of defendant at trial, Montoya, Padilla, and Investigator Clark

testified. As relevant here, Padilla testified that he gave police a description of the

assailant the morning after the attacks. He was not sure if he had been shown any

photographs at that time, but thought ―maybe a series of photographs.‖ He was

not sure, but did not think he had identified possible suspects from the

photographs. He did not recall to whom he spoke or whether the person was

wearing a uniform, and could not describe the person, except to identify him as

―male.‖

Padilla testified he was also shown photographs at his apartment by Clark

about a year or two before his current testimony. Padilla was shown about 12

photographs in two groups of six. He identified one suspect, and was ―pretty

certain‖ of his identification.

Clark testified that he had only shown photographs to Montoya and Padilla

on June 14, 1996. He had never heard ―before today‖ that Padilla had been shown

photographs on January 13 or 14, 1991. Clark had both Montoya and Padilla read

and sign the admonition form when he gave them the lineups to review.

Defense counsel argued without elaboration that the lineup was unduly

suggestive because defendant‘s photograph was ―distinctive as compared to and

contrasted to the other individuals.‖ As an ―additional basis,‖ defense counsel

asserted that Padilla was apparently shown photographs of possible suspects soon

after the crimes, and these photographs were not preserved ―in any fashion.‖



(footnote continued from previous page)

lineup identification of defendant. Investigator Clark testified regarding
Montoya‘s and Padilla‘s selections during the photographic lineup.

18

Counsel therefore argued that Padilla‘s trial identification should be excluded on

due process grounds. The prosecutor said that the People were unaware of any

photographs that were shown to Padilla the night of the capital crimes or on

January 14, 1991. He ―had no reports reflecting that type of an interview, nor

have I been made aware of any photo lineups that were ever shown to Mr.

Padilla.‖

The trial court found the lineups were not unduly suggestive given

defendant‘s photograph was ―very, very similar to [photographs] two through six‖

on lineup one. It observed that defense counsel had not identified as suggestive

any particular characteristic of the lineup, and the court saw none. It therefore

denied the motion on that ground. The court also found, based on the transcripts

of the interviews and the hearing testimony, that Investigator Clark did nothing to

suggest any photograph to either witness. Rather, Clark had the witnesses read the

standard admonition, and merely orally confirmed their identifications once made.

Finally, the court found that Padilla‘s identification in 1996 was not tainted

because there was no evidence that Padilla was shown defendant‘s photograph

soon after the 1991 incident and failed to make an identification. The court left

open the possibility defendant could raise the issue again if evidence were found,

but stated, ―I don‘t think the possibility that he was shown a series of photographs

that he now can‘t recall, and in any event he doesn‘t think he made a[n]

identification, is sufficient to taint the subsequent photo lineup or any‖ in-court

identification.

b. Analysis

―Due process requires the exclusion of identification testimony only if the

identification procedures used were unnecessarily suggestive and, if so, the

resulting identification was also unreliable.‖ (People v. Yeoman (2003) 31 Cal.4th

19

93, 123.) The question is not whether there were differences between the lineup

participants, but ―whether anything caused defendant to ‗stand out‘ from the others

in a way that would suggest the witness should select him.‖ (People v. Carpenter

(1997) 15 Cal.4th 312, 367.) We independently review ―a trial court‘s ruling that

a pretrial identification procedure was not unduly suggestive.‖ (People

v. Kennedy (2005) 36 Cal.4th 595, 609.)

On appeal, defendant once again points to no particular characteristic of the

participants in the photo lineups that he contends made the lineups impermissibly

suggestive. Nor does our independent review of the lineups reveal any suggestion

of ― ‗the identity of the person suspected by the police.‘ ‖ (People v. Ochoa

(1998) 19 Cal.4th 353, 413.)

Rather, defendant contends Clark asked Montoya and Padilla leading

questions. Our review of the transcripts reveals no such suggestiveness in Clark‘s

inquiries. Both Montoya and Padilla were first admonished in writing that they

were ―under no obligation to identify anyone from th[e] photographic lineup,‖ and

―the mere fact that the Riverside County District Attorney‘s Office is showing

these photographs in no way means that a photograph of the person(s) responsible

for the crime is/are present.‖ Clark then told each witness that the person‘s

appearance on the night of the incident might be different from the photograph,

asked Padilla if he ―recognized anybody,‖ and asked Montoya if he saw the

perpetrator. He then confirmed which photographs they selected.

Defendant further contends the lineups were unduly suggestive because the

identifications occurred more than five and one-half years after the capital crimes.

While this fact goes to the reliability of the identification, it does not affect a

determination whether the lineup was unduly suggestive. (People v. Kennedy,

supra, 36 Cal.4th at p. 608.) Because we have concluded the lineup was not

20

unduly suggestive, we need not consider whether it was reliable under the totality

of the circumstances. (Ibid.)

Defendant also contends that the identification procedure was unduly

suggestive because, while law enforcement may not have told Padilla and

Montoya that they had evidence defendant committed the crimes, or that defendant

was in custody, ―the only reasonable inference is that something about the case

had changed after over five years of inaction‖ on the part of police. Of course,

―[a]nyone asked to view a lineup would naturally assume the police had a

suspect.‖ (People v. Carpenter, supra, 15 Cal.4th at p. 368.) This circumstance

does not render the lineup unduly suggestive. (Ibid.)

Defendant contends that Montoya‘s preliminary hearing testimony, which

occurred several months after the photographic lineup, demonstrates the

identification process was unduly suggestive. In particular, defendant claims

Montoya testified he was shown photographs of defendant by the district attorney

at the time the preliminary hearing was formerly scheduled to be held, and was

then postponed, and that Montoya believed he identified defendant in those

photographs. This assertion misstates the record. Montoya actually testified that

the first time he saw defendant after the capital crimes ―was the first preliminary

hearing that should have been in June or July.‖ There was no testimony about

viewing photographs at this earlier proceeding. Rather, Montoya testified that in

June 1996, Investigator Clark showed him photographs. Montoya recalled that

after viewing the photographs, he saw defendant in court.

Defendant further contends the trial court improperly required the defense to

prove the lineup evidence was tainted. Defendant does bear the burden of

demonstrating the identification procedure was unduly suggestive. (People

v. Carter (2005) 36 Cal.4th 1114, 1164; Ochoa, supra, 19 Cal.4th at p. 413;

People v. DeSantis (1992) 2 Cal.4th 1198, 1222.) In addition, and also contrary to

21

defendant‘s claim, Padilla did not testify that he was shown photographs on the

night of the crime and could not identify defendant. Rather, Padilla said he was

not certain whether he was shown photographs and, while he was unsure, did not

think he had identified anyone. Investigator Clark testified he was unaware

Padilla had ever been shown photographs in January 1991.

Defendant further contends without elaboration that because several

prospective jurors and Pauline Mesa were exposed to pretrial publicity, trial

counsel was ineffective in failing to ―renew his motion to exclude the eye-witness

identification once he was clearly aware of the pre-trial publicity without inquiring

as to whether a photograph was published in any of these articles.‖ While his

claim is not entirely clear, to the extent he claims Montoya and Padilla might have

seen a media photograph of defendant before the photographic lineup, he cites

nothing in the record that would support this assertion, nor how this factor would

affect our determination that the lineup itself was not unduly suggestive. For these

same reasons, he fails to demonstrate any basis on which to conclude trial counsel

was ineffective in failing to renew the motion to exclude Montoya‘s and Padilla‘s

identifications of defendant following Mesa‘s trial testimony.

Defendant contends that the trial court demonstrated judicial bias by

(1) asking Clark whether he read the admonition to Montoya and Padilla or asked

them to read it to themselves, but not asking questions that assisted defendant such

as why the prosecution waited more than five years to conduct the lineup, why

only Montoya and Padilla were asked to participate, and whether the witnesses

were exposed to any pretrial publicity; and (2) ―trust[ing] the prosecutor‘s

unsworn testimony over Padilla‘s sworn testimony that he had been previously

shown photographs of a suspect and was unable to make an identification.‖ Not

so. The court acted properly in asking for clarification regarding the admonition

procedure, which was ambiguous in the transcript of Clark‘s interview with

22

Padilla. In addition, the questions defendant now claims the trial court should also

have asked were irrelevant to a determination of whether the identification

procedure was unduly suggestive. We have rejected above defendant‘s claim that

there was any definitive testimony that Padilla was shown photographs by law

enforcement in January 1991, and failed to identify a suspect. Once again, a ―trial

court‘s numerous rulings against a party – even when erroneous – do not establish

a charge of judicial bias, especially when they are subject to review.‖ (People v.

Guerra, supra, 37 Cal.4th at p. 1112.) Defendant fails to demonstrate any judicial

misconduct or bias, let alone misconduct or bias that ―was so prejudicial that it

deprived defendant of ‗ ―a fair, as opposed to a perfect, trial.‖ ‘ ‖ (Ibid.)

3. Sufficiency of the Evidence of Intent to Kill Montoya

Defendant contends there is insufficient evidence he intended to kill

Montoya, requiring reversal of his attempted murder conviction. Not so.

―When considering a challenge to the sufficiency of the evidence to support a

conviction, we review the entire record in the light most favorable to the judgment

to determine whether it contains substantial evidencethat is, evidence that is

reasonable, credible, and of solid value — from which a reasonable trier of fact

could find the defendant guilty beyond a reasonable doubt.‖ (People v. Lindberg

(2008) 45 Cal.4th 1, 27.) We determine ―whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.‖ (Jackson v.

Virginia (1979) 443 U.S. 307, 319.) In so doing, a reviewing court ―presumes in

support of the judgment the existence of every fact the trier could reasonably

deduce from the evidence.‖ (People v. Kraft (2000) 23 Cal.4th 978, 1053.) ―This

standard applies whether direct or circumstantial evidence is involved.‖ (People

v. Catlin (2001) 26 Cal.4th 81, 139.) ―[I]t is well settled that intent to kill or

23

express malice, the mental state required to convict a defendant of attempted

murder, may . . . be inferred from the defendant‘s acts and the circumstances of

the crime.‖ (People v. Smith (2005) 37 Cal.4th 733, 741.)

Here, defendant repeatedly attempted to stab Montoya, an unarmed and

trapped victim, and succeeded in stabbing him in the arm and leg. This evidence

alone is substantial evidence of defendant‘s intent to kill. (People v. Gonzalez

(2005) 126 Cal.App.4th 1539, 1552 [intent to kill demonstrated in part by

evidence of unprovoked attack that rendered unarmed victim prone and

defenseless as the defendant repeatedly stabbed him].) In addition, defendant then

fatally stabbed Moncada and Navarro, who were members of Montoya‘s group,

inflicting wounds that were, respectively, approximately four and five inches deep

and that penetrated their hearts. (See People v. Bolden (2002) 29 Cal.4th 515, 561

[―defendant could have had no other intent than to kill‖ when he plunged the knife

deeply into a ―vital area of the body of an apparently unsuspecting and defenseless

victim‖]; see also People v. Prince (2007) 40 Cal.4th 1179, 1253 [similarities

between murders support the inference that defendant went to the victim‘s home

―armed with a knife and with the intent to kill‖].) The jury convicted defendant of

first degree murder for these deaths based on a theory of premeditation, and

reasonably could have inferred defendant had the same intent to kill when,

immediately prior to the murders, he attacked Montoya in the same manner.7




7 Defendant claims the evidence of intent to kill in this case is no stronger

than in People v. Ratliff (1986) 41 Cal.3d 675, 695-696, 698. However, as we
explained in People v. Arias (1996) 13 Cal.4th 92, in Ratliff, we simply held that
the ―evidence of intent to kill was not so conclusive as to render harmless an
erroneous failure to instruct on that issue.‖ (Arias, at pp. 129-130, fn. 10.) Here,
the jury was instructed that to convict defendant of Montoya‘s attempted murder,
it had to find defendant acted with the intent to kill. Substantial evidence supports
that determination.

24

Defendant asserts that the evidence of intent to kill is not substantial because

the injury to Montoya was not serious. Of course, the degree of the resulting

injury is not dispositive of defendant‘s intent. Indeed, a defendant may properly

be convicted of attempted murder when no injury results. (See People v. Stone

(2009) 46 Cal.4th 131, 135-136.) The jury reasonably could infer that Montoya

avoided further injury solely because he assumed a position from which he could

kick at defendant and thus protect his vital organs from immediate injury. (People

v. Gonzalez, supra, 126 Cal.App.4th at p. 1552 [that the defendant missed the

victim‘s ―heart and lungs was fortuitous rather than indicative of the absence of an

intent to kill‖]; People v. Lashley (1991) 1 Cal.App.4th 938, 945 [that ―the victim

may have escaped death‖ due to ―poor marksmanship‖ does not vitiate intent to

kill].)

Defendant also contends ―there was a reasonable alternative explanation

other than the intent to kill,‖ because he may have merely wanted to ―prevent

Moreno from driving away with Quintana,‖ or perhaps simply was ―following

through with Montoya‘s acceptance of a challenge to engage him in a fight.‖ It is

not clear how these motivations would be inconsistent with an intent to kill.

(People v. Arias, supra, 13 Cal.4th at p. 162 [if ―jury found defendant‘s use of a

lethal weapon with lethal force was purposeful, an intent to kill could be inferred,

even if the act was done without advance consideration and only to eliminate a

momentary obstacle or annoyance‖].) Even assuming they are inconsistent with

such intent, ―if the circumstances reasonably justify the jury‘s findings, the

judgment may not be reversed simply because the circumstances might also

reasonably be reconciled with a contrary finding.‖ (People v. Farnam (2002) 28

Cal.4th 107, 143.)

25

4. Sufficiency of the Evidence Defendant Stabbed Navarro

Defendant contends the record contains insufficient evidence he stabbed

Navarro, necessitating that we vacate his murder conviction and the multiple-

murder special-circumstance finding. The conviction was supported by substantial

evidence.

In her January 12, 1991 taped statement to police, which was played for the

jury, Pauline Mesa recounted seeing defendant, with whom she was acquainted,

stab a man in a truck. The victim in the truck was Navarro.

Lawrence Casas testified that ―the guy,‖ identified by other witnesses as

defendant, approached Navarro‘s truck in which Navarro was sitting in the

driver‘s seat with his window open. Defendant was carrying a knife with a blade

at least six inches long. Casas saw defendant reach into Navarro‘s window or

doorway and struggle ―back and forth.‖

Luis Robledo testified that he also saw the assailant, who was the same

person who attacked Montoya and Moncada, and who was identified by others as

defendant, go towards the truck after attacking Moncada. Robledo saw defendant

make stabbing motions at Navarro through the open truck window.

This testimony constitutes substantial evidence that defendant stabbed

Navarro. Absent exceptions not pertinent here, ―the testimony of a single witness

is sufficient for the proof of any fact.‖ (People v. Richardson (2008) 43 Cal.4th

959, 1030; see People v. Najera (2008) 43 Cal.4th 1132, 1136-1137.) Contrary to

defendant‘s implication, lighting conditions on the night of the crimes,

inconsistencies within certain testimony or with prior statements, differences

between the witnesses‘ estimates of defendant‘s height and his actual height, and

whether defendant could physically complete the crimes in the time and manner

described by certain witnesses, were matters for the jury to determine.

26

5. Instructional Issues

a. Requested instructions on voluntary manslaughter, attempted

voluntary manslaughter, and the effect of provocation on
defendant’s premeditation and deliberation


Defendant contends the trial court erred in refusing to instruct on voluntary

manslaughter and attempted voluntary manslaughter as lesser included offenses of

murder and attempted murder, and failing to instruct that provocation was a

circumstance reducing first degree murder to second degree murder. We find no

error.

The jury was instructed that, in order to find defendant guilty of premeditated

first degree murder or premeditated attempted murder, it must find an intent to kill

on the part of defendant that ―was the result of deliberation and premeditation, so

that it must have been formed upon pre-existing reflection and not under a sudden

heat of passion or other condition precluding the idea of deliberation.‖ (CALJIC

Nos. 8.20, 8.67.) It was also instructed that ―cold, calculated judgment and

decision may be arrived at in a short period of time, but a mere unconsidered and

rash impulse, even though it includes an intent to kill, is not deliberation and

premeditation.‖ (CALJIC Nos. 8.20, 8.67.) Second degree murder was defined as

―the unlawful killing of a human being with malice aforethought when the

perpetrator intended unlawfully to kill a human being but the evidence is

insufficient to prove deliberation and premeditation.‖ (CALJIC No. 8.30.) The

jury was also instructed on assault with a deadly weapon as to Montoya. The

court refused to instruct on voluntary manslaughter and related principles,

including CALJIC Nos. 8.40 (defining voluntary manslaughter), 8.42 (defining a

sudden quarrel or heat of passion and provocation), 8.43 (the effect of a cooling

period), 8.44 (no particular emotion alone constitutes heat of passion), 8.50

(distinguishing murder and manslaughter), 8.72 (defendant given the benefit of

any reasonable doubt on whether the crime was murder or manslaughter), and 8.73

27

(jury may consider whether evidence of provocation not sufficient to reduce the

homicide to manslaughter had any bearing on whether defendant killed with

premeditation and deliberation). (§ 192.)

― ‗The trial court is obligated to instruct the jury on all general principles of

law relevant to the issues raised by the evidence, whether or not the defendant

makes a formal request.‘ ‖ (People v. Rogers (2006) 39 Cal.4th 826, 866.)

―Conversely, even on request, the court ‗has no duty to instruct on any lesser

offense unless there is substantial evidence to support such instruction.‘ ‖ (People

v. Cole, supra, 33 Cal.4th at p. 1215.) This substantial evidence requirement is not

satisfied by ― ‗any evidence . . . no matter how weak,‘ ‖ but rather by evidence

from which a jury composed of reasonable persons could conclude ―that the lesser

offense, but not the greater, was committed.‖ (People v. Cruz (2008) 44 Cal.4th

636, 664.) ―On appeal, we review independently the question whether the trial

court failed to instruct on a lesser included offense.‖ (People v. Cole, supra, at p.

1215.)

1. Failure to instruct on voluntary manslaughter and

attempted voluntary manslaughter

―Manslaughter, an unlawful killing without malice, is a lesser included

offense of murder.‖ (People v. Koontz (2002) 27 Cal.4th 1041, 1086; see § 192.)

―Although section 192, subdivision (a), refers to ‗sudden quarrel or heat of

passion,‘ the factor which distinguishes the ‗heat of passion‘ form of voluntary

manslaughter from murder is provocation.‖ (People v. Lee (1999) 20 Cal.4th 47,

59; People v. Rios (2000) 23 Cal.4th 450, 461 [certain mitigating circumstances

will ―reduce an intentional, unlawful killing from murder to voluntary

manslaughter ‗by negating the element of malice‘ ‖ (italics omitted)].) ―The

provocation which incites the defendant to homicidal conduct in the heat of

passion must be caused by the victim [citation], or be conduct reasonably believed

28

by the defendant to have been engaged in by the victim.‖ (People v. Lee, supra,

20 Cal.4th at p. 59.) ―[T]he victim must taunt the defendant or otherwise initiate

the provocation.‖ (People v. Carasi (2008) 44 Cal.4th 1263, 1306; People v.

Manriquez (2005) 37 Cal.4th 547, 583-584 (Manriquez).) The ― ‗heat of passion

must be such a passion as would naturally be aroused in the mind of an ordinarily

reasonable person under the given facts and circumstances . . . .‘ ‖ (People v.

Steele (2002) 27 Cal.4th 1230, 1252 (Steele).) ― ‗[I]f sufficient time has elapsed

for the passions of an ordinarily reasonable person to cool, the killing is murder,

not manslaughter.‘ ‖ (People v. Daniels (1991) 52 Cal.3d 815, 868.)

Here, there is no substantial evidence of provocation. The record indicates

that the victims and their friends, who were not armed, were socializing in a

parking lot, and that two of the friends, Pereira and Casas, were talking with three

young women, Quintana, Mesa, and Olsen. A dark-colored vehicle pulled into the

parking lot. Defendant and one or two other men got out and walked toward the

group of friends. The men told at least two of the women to get in the car. The

women refused to leave, and defendant became irate. Padilla heard Pereira say

―Carmelos,‖ which Padilla did not recognize, but assumed was a gang name.

Defendant said ―Crown Town‖ or ―Corona.‖ Pereira and Montoya briefly argued

with defendant, and someone from defendant‘s group suggested they go ―one-on-

one.‖ Montoya said defendant was free to take the women, and said ―[t]here‘s no

big problem here.‖ The confrontation appeared to dissipate, and Montoya and his

friends started toward their vehicles. None of these events was sufficient ―to

arouse feelings of homicidal rage or passion in an ordinarily reasonable person.‖

(People v. Pride (1992) 3 Cal.4th 195, 250.)

Defendant asserts, however, that there was sufficient evidence of provocation

to warrant instruction on voluntary manslaughter because Pereira was the first one

to confront defendant, making the victims and their friends the initial aggressors.

29

Contrary to defendant‘s assertion, Padilla did not so testify. Rather, Padilla

testified that as defendant and one or two others started walking toward everyone

in the group of friends, Pereira ―was the first one to confront them or talk to

them.‖ This is not evidence Pereira was initially aggressive. Defendant also relies

on Padilla‘s testimony that Pereira yelled out ―Carmelos.‖ Padilla had ―no idea‖

what this term meant, but assumed it was ―a gang . . . or something like that.‖

Even assuming it was reference to a gang, and that a gang member might have

perceived the statement as some sort of a challenge, the requisite provocation must

be one that would provoke an ordinarily reasonable person. (People v. Steele,

supra, 27 Cal.4th at p. 1252.) Reasonable people do not become homicidally

enraged when hearing the term ―Carmelos,‖ even if it is understood as a fleeting

gang reference or challenge.

Also contrary to defendant‘s assertion, there is no evidence that during this

verbal confrontation, blows were exchanged. Defendant asserts that victim

―Montoya personally agreed to fight the Corona men.‖ He relies on Casas‘s

testimony that one person from defendant‘s group said ―they wanted to fight . . .

one-on-one with one of us, . . . which one of ‘em was man enough to fight him.‖

Casas could not ―remember for sure,‖ but thought perhaps Montoya had

responded, ―[A]ll right, you know, if you want.‖ Again, even assuming this

response was made, it is scarcely a comment that would reasonably incite

homicidal rage. Defendant also asserts that Olsen testified ―there was a fight

which began that could have included a fist fight prior to the stabbing.‖ Olsen was

asked whether, while the conversation between the two groups occurred, anyone

got ―into a fight where they were punching each other.‖ She responded, ―[I]t

could have been . . . I can‘t actually say that I seen this person do anything,

because I did not actually see anybody do anything.‖ This is not evidence of

physical contact.

30

In sum, there was no substantial evidence of provocation to support voluntary

manslaughter or attempted voluntary manslaughter instructions, and defendant‘s

request for such instructions was therefore properly denied. Nor, contrary to

defendant's assertion, was the jury forced into an ―all or nothing‖ choice between

murder and acquittal when the court refused to instruct on voluntary manslaughter.

(See Beck v. Alabama (1980) 447 U.S. 625, 637; People v. Benavides (2005) 35

Cal.4th 69, 103.) ―[N]o fundamental unfairness or loss of verdict reliability results

from the lack of instructions on a lesser included offense that is unsupported by

any evidence upon which a reasonable jury could rely.‖ (People v.

Holloway (2004) 33 Cal.4th 96, 141.) Moreover, the jury was instructed on

second degree murder, and accordingly had a choice in evaluating defendant‘s

culpability. (Schad v. Arizona (1991) 501 U.S. 624, 646-648 [second degree

murder instruction sufficient to ensure verdict‘s reliability]; People v. Benavides,

supra, 35 Cal.4th at p. 103.)

2. Provocation as reducing the degree of murder instructions

In a related claim, defendant contends the trial court erred in failing to

instruct the jury on CALJIC Nos. 8.73 and 8.44, and that this error, combined with

the prosecutor‘s misleading argument, was prejudicial. As noted above, CALJIC

No. 8.73 would have informed the jury that it could consider whether evidence of

provocation not sufficient to reduce the homicide to manslaughter had any bearing

on whether defendant killed with premeditation and deliberation. CALJIC No.

8.44 provides that ―the heat of passion referred to in the law of manslaughter‖ is

composed of no particular emotion.

There was no error in refusing to give these instructions. We have previously

held, in a case that like this one lacked substantial evidence of provocation, that

the court was not required to sua sponte instruct in the language of CALJIC No.

31

8.73. (People v. Steele, supra, 27 Cal.4th at pp. 1250-1251.) ―Although the court

did not use the word ‗provocation‘ in regard to the degree of murder, it did instruct

on ‗heat of passion.‘ It told the jury that for the killing to be first degree murder, it

must not have been committed ‗under a sudden heat of passion or other condition

precluding the idea of deliberation.‘ (CALJIC No. 8.20.) By specifically referring

to heat of passion and generally referring to any other condition precluding

deliberation, the court fully instructed on the law relevant to the actual evidence.

It did not also have to refer to ‗provocation‘ regarding the degree of murder, which

would not have fit the evidence.‖ (Id. at p. 1251.) For these reasons, there was no

error in failing to instruct in the language of CALJIC No. 8.73 on request or, as

defendant suggests, to give this instruction as modified by deleting the reference to

manslaughter.8 (Steele, supra, 27 Cal.4th at p. 1251 [rejecting claim that trial

counsel was ineffective for failing to request CALJIC No. 8.73].)

Similarly, because there was no substantial evidence defendant committed

manslaughter, the trial court properly refused to instruct in the language of

CALJIC No. 8.44, which refers to ―the law of manslaughter.‖ While defendant

notes here that CALJIC No. 8.44 could have been modified to refer to ―the law of




8 The Attorney General contends that defendant has forfeited the claim that

the trial court should have modified CALJIC No. 8.73 by failing to request such
modification below. The record is unclear as to whether defendant made such a
request and whether the trial court refused to modify. After the trial court stated it
would not instruct on CALJIC Nos. 8.72 and 8.73 because they were manslaughter
instructions, the prosecutor asked the court for clarification as to CALJIC No.
8.73, and whether it found ―insufficient evidence of any provocation to even
warrant the reduction‖ of first degree murder to second degree murder. Defense
counsel said, ―The defense would ask for it.‖ The trial court responded, ―You‘d
have to modify it and then go into provocation and so forth if you were going to
use that to reduce it from first to second degree. It really only goes if you give a
manslaughter instruction.‖ Given this ambiguity, we address the claim on the
merits.

32

premeditation, as defined in CALJIC No. 8.20,‖ rather than to manslaughter, he

did not request this modification below, and the claim is therefore forfeited. (See

People v. Welch (1999) 20 Cal.4th 701, 757.) Moreover, such a modified

instruction was not necessary because, as noted above, the language of CALJIC

No 8.20 adequately instructed the jury. (People v. Steele, supra, 27 Cal.4th at p.

1251.)

Defendant contends the trial court evidenced bias by refusing instructions on

voluntary manslaughter and instructions that would have allowed the jury to

convict defendant of second degree rather than first degree murder. Because the

trial court properly declined to instruct on voluntary manslaughter, and adequately

instructed on heat of passion as it related to defendant‘s premeditation and

deliberation, no error, let alone bias, is demonstrated.

b. Instruction on lying in wait

Defendant claims the trial court erred and demonstrated its bias when it

instructed the jury on lying in wait as a basis for a finding of first degree murder.

The prosecutor proceeded on two theories of first degree murder, lying in wait and

premeditated murder. The jury was instructed that if it found defendant guilty of

first degree murder, and was unanimous on a theory or theories of murder, it was

to specify on the verdict forms which theory or theories it chose. As to both

victims, the jury expressly found the murders were willful, deliberate, and

premeditated, but did not find the murders were also by means of lying in wait.

Therefore, even if the trial court erred in instructing on lying in wait, defendant

suffered no possible prejudice. Nor would the mere giving of an instruction

demonstrate bias. (See People v. Guerra, supra, 37 Cal.4th at p. 1112.)

33

c. Instruction on Concealing Evidence

Defendant contends the court erred and demonstrated its bias by instructing

the jury in the language of CALJIC No. 2.06.9 Here, the evidence indicated that

the perpetrator used a knife during the attacks. The knife was not found at the

murder scene.

Defendant contends the ―evidence was insufficient to permit the inference

that [defendant] hid or concealed evidence.‖ Even assuming error, there was no

prejudice under any standard. (People v. Richardson, supra, 43 Cal.4th at p.

1020.) The jury was also instructed that ―[w]hether some instructions apply will

depend on what you find to be the facts. Disregard any instruction which applies

to facts determined by you not to exist. Do not conclude that because an

instruction has been given, I am expressing an opinion as to the facts.‖ We see no

prejudice in light of these instructions. (See People v. Barnett (1998) 17 Cal.4th

1044, 1153.) Moreover, the instruction does not impermissibly lessen the

prosecutor‘s burden of proof even when erroneously given. (People v. Valdez

(2004) 32 Cal.4th 73, 138-139.) While we assume without deciding that giving

the instruction was error, so instructing does not demonstrate judicial bias, nor, as

defendant asserts, that ―the instructions were so one-sided in favor of the

prosecutor, that a fair trial within the meaning of the federal Constitution was

impossible.‖




9 The jury was instructed: ―If you find that a defendant attempted to

suppress evidence against himself in any manner, such as by concealing evidence,
this attempt may be considered by you as a circumstance tending to show a
consciousness of guilt. However, this conduct is not sufficient by itself to prove
guilt, and its weight and significance, if any, are for you to decide.‖

34

d. Flight Instruction

Defendant contends the flight instruction was improper under the

circumstances of this case, and demonstrates judicial bias. Not so.

The court gave the jury the standard language of CALJIC No. 2.52.10 In

general, a flight instruction ―is proper where the evidence shows that the defendant

departed the crime scene under circumstances suggesting that his movement was

motivated by a consciousness of guilt.‖ (People v. Ray (1996) 13 Cal.4th 313,

345; § 1127c.) Flight requires ― ‗a purpose to avoid being observed or arrested.‘ ‖

(People v. Visciotti (1992) 2 Cal.4th 1, 60.)

Here, following the capital crimes, defendant fled the scene, and police

searched unsuccessfully for him in 1991 and 1992. He was ultimately arrested

more than four years after the crimes at the Los Angeles International Airport.

―This is sufficient evidence to warrant instructing the jury to determine whether

flight occurred, and, if so, what weight to accord such flight. [Citation.]

Moreover, the instruction given adequately conveyed the concept that if flight was

found, the jury was permitted to consider alternative explanations for that flight

other than defendant‘s consciousness of guilt.‖ (People v. Bradford (1997) 14

Cal.4th 1005, 1055.) Contrary to defendant‘s assertion, the instruction properly

allowed ―the jury to determine to which offenses, if any, the inference [of

consciousness of guilt] should apply.‖ (People v. Mendoza (2000) 24 Cal.4th 130,

180.) Likewise, and also contrary to defendant‘s assertion, a flight instruction

does not create an unconstitutional permissive inference or lessen the prosecutor‘s




10 ―The flight of a person immediately after the commission of a crime, or

after he‘s accused of a crime, is not sufficient in itself to establish his guilt, but is a
fact which, if proved, may be considered by you in the light of all other proved
facts in deciding whether a defendant is guilty or not guilty. The weight to which
this circumstance is entitled is a matter for you to decide.‖

35

burden of proof, and is proper even when identity is at issue. (Id. at pp. 179-181;

People v. Mason (1991) 52 Cal.3d 909, 942-943.)

6. Alleged Prosecutorial Misconduct

Defendant contends the prosecutor engaged in pervasive prejudicial

misconduct. Defendant did not object below to any of these portions of the

argument or other challenged statements, no exception to the general requirement

of an objection is applicable, and the claims are therefore forfeited. (People v.

Schmeck (2005) 37 Cal.4th 240, 286 (Schmeck).) They are also meritless. A

prosecutor commits misconduct when his conduct either infects the trial with such

unfairness as to render the subsequent conviction a denial of due process, or

involves deceptive or reprehensible methods employed to persuade the trier of

fact. (People v. Ayala (2000) 23 Cal.4th 225, 283-284.)

Defendant contends that the prosecutor committed misconduct by improperly

involving himself with the selection of counsel to replace Aquilina, and that this

misconduct warrants either dismissal of all charges or a new trial. Contrary to

defendant‘s assertion, while the prosecutor noted nonpanel attorneys had been

appointed in other cases, he never mentioned who was appointed in those cases, or

otherwise suggested which attorney should replace Aquilina. More critically, the

prosecutor, like the defendant, has a right to a speedy trial. (Cal. Const., art. I,

§ 29; see § 1050, subd. (a).11) While defendant claims the prosecutor did not

assert this right until the prosecutor‘s own trial schedule cleared, he fails to

demonstrate the prosecutor was thereby estopped to object to a continuance of at




11 Section 1050, subdivision (a) provides in relevant part: ―[T]he people,

the defendant, and the victims and other witnesses have the right to an expeditious
disposition, and to that end it shall be the duty of all courts and judicial officers
and of all counsel, both for the prosecution and the defense, to expedite these
proceedings to the greatest degree that is consistent with the ends of justice.‖

36

least 12 months in a case already more than seven years removed from the date of

the capital crimes. Far from engaging in misconduct, the prosecutor properly

urged the court to explore avenues, including replacement of counsel, that would

bring this long-delayed case to trial.

Defendant further contends the prosecutor committed misconduct when he

argued what evidence the jury could rely on in finding there was intent to kill

Montoya. First, defendant contends the prosecutor relied on false testimony and

thereby committed misconduct by arguing the jury could find intent to kill based

on the number of times defendant lunged at Montoya with the knife, and in

describing Montoya‘s injuries, in violation of his Fourteenth Amendment due

process and fair trial rights. ―Under well-established principles of due process, the

prosecution cannot present evidence it knows is false and must correct any falsity

of which it is aware in the evidence it presents, even if the false evidence was not

intentionally submitted.‖ (People v. Seaton (2001) 26 Cal.4th 598, 647.)

Montoya testified that defendant lunged at him with the knife at least 20 times,

and that, following the attack, he could not use his arm for six or seven months.

Defendant asserts that Montoya‘s testimony was inconsistent with his preliminary

hearing testimony and statement to Clark,12 statements of which defendant was

aware. Any inconsistency between Montoya‘s pretrial statements and trial

testimony does not ineluctably demonstrate his trial testimony was false, or that

the prosecutor knew it was false. (See People v. Riel (2000) 22 Cal.4th 1153,



12 In his statement to Clark, Montoya stated he ―wasn‘t counting,‖ but he

―would figure . . . a total of at least 13 times [the perpetrator] came at me.‖ At the
subsequent preliminary hearing, Montoya testified that defendant tried to stab him
―repeatedly,‖ or ―[m]ore than four times.‖ He also testified that ―[t]hey didn‘t
believe I was going to be able to use my arm and lift heavy objects with it,‖ but by
the time of the preliminary hearing nearly six years later, he had regained full
strength.

37

1211-1212 [the prosecutor is not responsible for a witness‘s erroneous testimony

so long as he provided discovery contradicting that testimony and the defendant

was given the opportunity to point out the discrepancy to the jury].) Indeed,

defendant did not even attempt to impeach Montoya with any prior inconsistent

statements regarding the severity of his injury or the number of times he was

stabbed. In any event, defendant‘s intent to kill was demonstrated by his repeated

attempts to stab Montoya, and his immediately ensuing murders of Moncada and

Navarro by the same means. The precise number of times he attempted to stab

Montoya, or the length of Montoya‘s rehabilitation, was irrelevant.

Defendant also asserts the prosecutor committed misconduct when he argued

that defendant‘s conduct in killing Moncada and Navarro demonstrated his intent

to kill Montoya. As discussed above, these murders were pertinent to the issue of

defendant‘s intent when he attacked Montoya; hence, there was no misconduct.

Nor, for this reason, did the trial court err in failing to instruct the jury that

defendant‘s ―post-crime conduct was ‗irrelevant to ascertaining defendant‘s state

of mind.‘ ‖

Defendant asserts the prosecutor also committed misconduct when he argued

there was no evidence of a fight before defendant‘s violent attacks. The

prosecutor actually argued that the killings were not justified: ―There‘s no

assertion of self-defense. There was no fight taking place.‖ This statement was

supported by the record. No misconduct is apparent.13



13 Defendant summarily asserts that there was ―no evidence‖ to support the

prosecutor‘s argument that Moncada and Navarro were killed because defendant, a
―young punk, . . . made a decision and acted on that decision to dominate the
moment, perhaps to impress some girls or perhaps just . . . for the pleasure of
indiscriminately killing two young men in the prime of their lives.‖ This comment
appears to be a reasonable inference from the record, which failed to reveal a
precise motive for defendant‘s murderous assault. (People v. Dennis (1998) 17


(footnote continued on next page)

38

Defendant contends the prosecutor falsely argued ―[t]here‘s no evidence

whatsoever that there [were] two people stabbing.‖ This statement was a

reasonable inference from the record. Officer Foy testified that when she ―very

briefly‖ interviewed Montoya across the street from the scene of the attack he told

her ―two Mexican males stabbed him.‖ The interview then ceased abruptly

because ―a female‖ ran across the street ―screaming hysterically that someone had

been stabbed.‖ Hence Officer Foy had no opportunity to allow Montoya to

elaborate on this statement. Montoya, who testified regarding only one attacker,

had no recollection of making the statement.

Moreno, who testified that one person came to the side of his Prelude, was

asked on cross-examination whether he told police the night of the incident that

― ‗I think it was two guys that came to the car.‘ ‖ Moreno agreed he had made this

statement, but said, ―I wasn‘t sure, but I can only confirm that there was one, and

that was the one that was doing the attacking that broke the window.‖ On redirect,

Moreno clarified that he thought that maybe there were two assailants when he

heard what sounded like a gunshot, and he ―wasn‘t sure if it was one or two people

that were doing the shooting.‖ When he got out of his car, however, he saw only

one person.

Nor did the prosecutor mislead the jury by arguing that both Montoya and

Moreno provided explanations for their earlier inconsistent statements. Rather, the

prosecutor recounted his redirect examination of Moreno, in which Moreno

clarified why he originally thought there were two assailants, and noted that



(footnote continued from previous page)

Cal.4th 468, 522 [―Prosecutors have wide latitude to discuss and draw inferences
from the evidence at trial‖].)

39

Montoya ―only saw one person over there, and it was the defendant.‖ Moreover,

the jury was instructed that ―[s]tatements made by the attorneys during the trial are

not evidence.‖

Defendant also contends the prosecutor misled the jury by arguing that one

knife caused all of the injuries. The prosecutor said that there was ―circumstantial

evidence in the form of the pathologist‘s testimony that one knife did injuries to

these individuals [that] is consistent with it being inflicted by one knife. He

measured the wounds in the heart and in the organs of Bobby Navarro and Raul

Moncada, and the size of that knife by those slits is consistent with it being made

by the same knife. . . . And it‘s not just by coincidence that that scar on David

Montoya‘s arm is approximately one to one and a half inches. It‘s the same

knife.‖ The pathologist testified that one knife could have caused the injuries to

Navarro and Moncada, a knife approximately five inches in length and one inch

wide was consistent with both victims‘ stab wounds, and that one of Moncada‘s

stab wounds measured an inch and one-half in length. Montoya testified that his

scar was ―[a]bout an inch.‖ The prosecutor‘s argument that the size of Montoya‘s

scar demonstrated the same knife used to kill the murder victims was also used on

Montoya was a reasonable inference based on the record.

Defendant contends the prosecutor engaged in misconduct by arguing that

Quintana, Mesa, and Olsen could not have fabricated statements on the night of

the crimes. The prosecutor simply argued that following examination of ―what the

witnesses said, and how they said it, and the time that they said it, you‘re going to

see it could not have been fabricated.‖ This was legitimate argument.

We further reject defendant‘s claims that the prosecutor committed

misconduct in his argument regarding defendant‘s state of mind. Viewing the

argument as a whole instead of the portions defendant cites in isolation, there is no

reasonable likelihood the jury was misled by the prosecutor‘s argument. (People

40

v. Stevens (2007) 41 Cal.4th 182, 208.) Hence we reject defendant‘s contention

that the combination of the court‘s failure to instruct and the prosecutor‘s

misleading argument means that the ―jury likely convicted [defendant] of first

degree murder without properly considering the question of his subjective mental

state.‖

First, defendant contends that the jury was misled when the prosecutor stated

that the words ―premeditated‖ and ―deliberate‖ ―mean essentially the same thing.‖

Prior to making this statement, the prosecutor quoted the definitions of these terms

in CALJIC 8.20, with which the jury had already been instructed. He then made

the statement challenged by defendant: ―Premeditated and deliberate murder. The

words go together. They mean essentially the same thing. Considered

beforehand, thought and considered, arrived or determined upon as a result of

careful thought and weighing of considerations for and against a proposed course

of action.‖ This argument, which tracked the standard definitions of the relevant

terms, was not improper or misleading.

Second, contrary to defendant‘s assertion, case law did not prohibit the

prosecutor from arguing that the jury could find defendant premeditated and

deliberated based on the totality of the circumstances, including the circumstance

defendant obtained a weapon before the attacks; his choice of weapon; the manner

in which he held the weapon; the number of wounds he attempted to inflict on

Montoya; the circumstance that defendant was undeterred in his course of violent

conduct by Montoya‘s rolling up the window or the seriousness of Montoya‘s

wound; the circumstance that Moncada and Navarro were stabbed in the heart; the

passage of time from the end of the argument until the attacks, during which

defendant was not threatened, there was no fight taking place, and no one spoke to

him; and defendant‘s flight following the attacks. (See, e.g., People v. Halvorsen

(2007) 42 Cal.4th 379, 421-422 [absence of provocation and location of gunshot

41

wounds in head or neck were circumstances in support of premeditation and

deliberation finding]; People v. Moon (2005) 37 Cal.4th 1, 28 [rejecting claim that

evidence of flight was irrelevant to whether the defendant premeditated and

deliberated]; People v. Memro (1995) 11 Cal.4th 786, 863 [the jury could have

concluded that during the time it took to run 178 feet from the first victim to the

second, defendant considered his options]; People v. Hawkins (1995) 10 Cal.4th

920, 957 [execution-style murder demonstrated premeditation and deliberation];

People v. Thomas (1992) 2 Cal.4th 489, 517 [jury could have inferred defendant

went to his car for a weapon before the killings].) Defense counsel was free to

argue the same circumstances indicated defendant did not premeditate or

deliberate, but instead counsel argued defendant was not the perpetrator. Thus,

defendant did not even proceed on a theory that he was guilty of second, but not

first, degree murder.

Nor, contrary to defendant‘s assertion, did the prosecutor argue that ―the

‗cold, calculated‘ judgment of murder is the equivalent of deciding whether to stop

at a yellow light or proceed through the intersection.‖ Rather, the prosecutor used

the example of assessing one‘s distance from a traffic light, and the location of

surrounding vehicles, when it appears the light will soon turn yellow and then red,

and then determining based on this information whether to proceed through the

intersection when the light does turn yellow, as an example of a ―quick judgment‖

that is nonetheless ―cold and ―calculated.‖ He then immediately said, ―Deciding

to and moving forward with the decision to kill is similar, but I‘m not going to say

in any way it‘s the same. There‘s great dire consequences that have a difference

here.‖

42

7. Alleged Judicial Misconduct

Defendant contends that he was denied the right to a fair trial due to

pervasive judicial misconduct. As can be seen above, defendant asserts judicial

misconduct in connection with nearly every substantive claim raised on appeal.

But in fact, his arguments are merely of judicial error; he does not come close to

showing misconduct. In addition to arguments already discussed, defendant also

contends that jury voir dire was so permeated with error it ―reach[ed] the level of

structural error,‖ and that the court demonstrated its pro-prosecution bias by

approving a constitutionally impermissible in-court identification procedure. We

have reviewed each contention, and find no error or evidence of bias. (People v.

Guerra, supra, 37 Cal.4th at p. 1112.)

Defendant contends that during voir dire the trial court improperly defined

mitigating evidence as ―good things‖ about defendant, forcing defendant to prove

― ‗good things‘ in order to save his life,‖ and making it ―impossible for the jury to

apply the law and the facts‖ because it ―was completely misinformed regarding

what constituted mitigation.‖ Not so. The court also informed prospective jurors

that they would be given guidelines to follow in making the penalty decision.

Moreover, ―here the court was conducting voir dire, not instructing the jury; its

comments ‗were not intended to be, and were not, a substitute for full instructions

at the end of trial.‘ ‖ (People v. Seaton, supra, 26 Cal.4th at p. 636.) At the

penalty phase, the jury was instructed in the language of CALJIC Nos. 8.85, which

listed the relevant factors for the jury to consider, and 8.88, which defined

aggravating and mitigating circumstances. By these instructions, the jury was

fully aware what evidence could be considered mitigating.

Next, defendant contends that during voir dire, the trial court asked the jury

to not find defendant guilty of second degree murder. Not so. Read in context,

the trial court simply urged the jury not to find defendant guilty of second degree

43

murder, ―or something less or maybe not guilty,‖ solely to avoid a penalty phase

of the trial. This was proper.

Defendant further contends that the trial court demonstrated a bias in favor of

Christian jurors by using biblical principles. First, during voir dire, the court noted

that a prospective juror had stated on the questionnaire a refusal to follow the law

if it conflicted with religious beliefs. The court said to the prospective juror, ―We

have a saying you render unto Caesar the things that are Caesar‘s and the things to

God the things that are God‘s. This is Caesar‘s court here, all right?‖ The

prospective juror answered, ―Right.‖ The court inquired, ―Do you think that you

would be able to impose the death penalty under the appropriate circumstances as

I‘ve indicated them?‖ The prospective juror answered, ―Yes, I can.‖

Likewise, the court asked a different prospective juror about a notation on the

jury questionnaire regarding the commandment ―Thou shalt not kill.‖ The court

stated that there are two ―conflicting sayings that generally come out in

questionnaires when we do capital cases . . . One is ‗Eye for an eye, tooth for a

tooth,‘ which some jurors mentioned, and the other is ‗Thou shalt not kill,‘ and

they‘re biblical commandments and they kind of conflict, don‘t they? How

important is that commandment to you?‖ After further discussion with the

prospective juror, the court again used the saying regarding Caesar, noted ―[t]his is

Caesar‘s court, the people‘s court basically,‖ and ―[w]e go by the rule of law, not

by biblical rules. Can you make the distinction between the two?‖ Nothing in

either this or the preceding exchange demonstrates an improper court bias toward

Christian jurors. (See People v. Jackson (1996) 13 Cal.4th 1164, 1242

[prosecutor‘s argument invoking the familiar passage regarding Caesar ―was not

an argument for using Biblical or religious criteria of justice, but rather quite the

opposite – an appeal to use secular standards mandated by law to judge

defendant‖].)

44

Nor did the trial court exhibit such a pro-Christian bias by suggesting to

counsel outside the presence of the prospective jurors that a prospective juror who

was a Jehovah‘s Witness might be impeded by her religion‘s tenet that she could

not judge others. Nothing in this comment demonstrates judicial bias.

Next, defendant contends the trial court demonstrated an extreme hostility

and bias against young people who were college students. Not so. During

hardship voir dire, the court excused six full-time students. The court then said, ―I

should warn those of you who are sticking your hands up in the air if you‘re not a

full-time student and we check, you‘re under oath. This is called lying to the

Court, otherwise known as perjury, which I‘m sure you‘ve heard about recently.‖

The court then excused two full-time students at the University of California,

Riverside. After doing so, the court noted that ―my husband is the academic dean

at UCR also, so it‘s not that hard to check.‖ The next prospective juror was a full-

time student at California State University, San Bernardino. The court said, ―All

right. Different institution.‖ After excusing the prospective juror, and another

full-time student, the court commented, ―Now you see why democracy is so hard

to preserve.‖ These comments, while perhaps somewhat intemperate, do not

demonstrate a bias against young college students, but a frustration with the

inherent difficulty of finding prospective jurors who have the time to hear a capital

trial, and a desire to avoid ―false‖ hardships. They do not rise to the level of

judicial misconduct.

Finally, defendant contends the trial court‘s eagerness to allow Moreno to

conduct an unconstitutionally suggestive lineup demonstrates its pro-prosecution

bias. Not so. During Moreno‘s testimony, he stated that before trial he had never

been shown any photographs by police, but he believed he could identify

defendant. The prosecutor started to show Moreno a set of 12 photographs.

Defense counsel objected, and the prosecutor ultimately withdrew the request.

45

When Moreno‘s examination was completed, the court excused the jury for lunch

and asked Moreno to return after lunch ―in case we need you back.‖ It then

suggested to counsel, ―in the event either of you wishes to proceed with this

procedure,‖ that Moreno be asked if he could identify the assailant in the

courtroom, and, if he could not, the prosecutor would then show him the photo

lineup. Defense counsel said ―I would elect not to do it.‖ The court expressed the

view that whether Moreno could identify defendant ―could be helpful to either

side.‖ The prosecutor then said he was disinclined to follow this procedure

because of ―raising an issue [on appeal] that probably doesn‘t need to be raised.‖

The court said, ―Fair enough. I don‘t know your case as well as you do, which is

why I leave it in your hands.‖ Nothing in this discussion demonstrates improper

―eagerness‖ or judicial bias. (See People v. Rodrigues (1994) 8 Cal.4th 1060,

1155 [―Insofar as defendant contends that an in-court identification not preceded

by a lineup is impermissibly suggestive and prejudicial as a matter of law, he is

wrong‖].)

In sum, we conclude there was no error, and no evidence of judicial

misconduct.

8. Cumulative Prejudice

Defendant asserts that even if the errors alleged above are not in themselves

reversible, they are so cumulatively. We disagree. We have assumed error only in

the instruction of the jury on concealment of evidence and on lying in wait as a

theory of first degree murder. For both of these claims, we concluded there was

no prejudice under any standard. Therefore no cumulative prejudice is

demonstrated. ―Defendant has merely shown that his ‗ ― trial was not perfect —

few are. . . .‖ ‘ ‖ (People v. Cooper (1991) 53 Cal.3d 771, 839.)

46

B. Penalty Phase Issues

1. Alleged Prosecutorial Misconduct

Defendant contends the prosecutor committed misconduct during his closing

argument. Defendant did not object below to any of the cited portions of the

argument. Other than as noted below, no exception to the general requirement of

an objection is applicable, and the claims are therefore forfeited. (People v.

Schmeck, supra, 37 Cal.4th at p. 286.) Nor was there prejudicial misconduct,

either as to the individual contentions or cumulatively.

Defendant contends the prosecutor improperly stated that defendant was

arrested in September 1995 whereas he in fact turned himself in. The parties

stipulated defendant was arrested on September 19, 1995, and defense counsel

expressly declined to introduce evidence that defendant voluntarily surrendered.

No misconduct appears. For the same reason, the prosecutor did not engage in

misconduct when he asked Navarro‘s father and sister respectively what it was

like for them during the years before defendant was ―arrested‖ or ―caught.‖ Nor

can misconduct be attributed to the prosecutor when Montoya testified, ―[w]hen

they finally caught him, . . . it brought back so much. It was hard.‖ (Italics

added.)

Likewise, the prosecutor did not engage in misconduct when he argued,

―Don‘t forget about David Montoya. His injuries, the months of therapy and

recovering that he had to go through, his physical injuries, his mental injuries.

Think about it. The anguish of surviving and the guilt that he felt.‖ While there

was no testimony that Montoya had received therapy for his injuries, he did testify

he was told by doctors he would never use his arm again, and that he in fact could

not use it for six to seven months. The prosecutor‘s statement about therapy

neither ― ‗so infected the sentencing proceeding with unfairness as to render the

jury‘s imposition of the death penalty a denial of due process‘ ‖ (Romano v.

47

Oklahoma (1994) 512 U.S. 1, 12 (Romano)) nor involved deceptive or

reprehensible methods employed to persuade the trier of fact (People v. Ayala,

supra, 23 Cal.4th at p. 284).

Defendant contends the prosecutor referred to facts not in evidence when he

argued that the victims suffered before they died, and that the knife made an

audible sound when it entered their bodies. These were reasonable inferences

from the record.

Defendant contends the prosecutor committed misconduct by arguing at the

guilt phase, ―It‘s time that [defendant‘s] held accountable after all these years for

the mayhem, for the murder that he created that night.‖ He further challenges the

prosecutor‘s opening statement at the penalty phase in which he said, after noting

he anticipated that the families of the murder victims would testify, and describing

the attacks on Gonzalez and Lopez, that ―[t]he accomplishments of [defendant] in

his life ha[ve] been murder and mayhem.‖ Defendant contends there is no

evidence defendant committed mayhem, and that the ―argument suggested the

prosecutor had knowledge that [defendant] had committed heinous conduct not

supported by any facts in the record. If the jurors believed that [defendant] had

disfigured someone, they would have been more likely to sentence him to die. For

this reason, the sentence of death should be set aside.‖

There is no reasonable likelihood the jury would be misled by these brief

remarks. The jury was instructed that ―[s]tatements made by the attorneys during

the trial are not evidence,‖ and that ―[i]f anything concerning the law said by the

attorneys in their arguments or any other time during the trial conflicts with my

instructions on the law, you must follow my instructions.‖ We presume the jury

followed these instructions. (See, e.g., People v. Ledesma (2006) 39 Cal.4th 641,

48

684.) Moreover, jurors not instructed on mayhem were unlikely to attribute to that

word its legal definition,14 or, in particular, to focus on its mention of

disfigurement. In any event, we reject defendant‘s argument that in a case in

which defendant murdered two individuals and stabbed another causing an injury

that took months to heal, and in which there was aggravating evidence he had

stabbed and caused severe debilitating injury to two other individuals, there is any

reasonable possibility a different penalty verdict would result from any belief on

the part of the jury defendant may have also disfigured one of these individuals.

Defendant next contends the prosecutor committed Davenport error by

arguing that the lack of mitigating evidence proved defendant‘s life was not worth

sparing. (People v. Davenport (1985) 41 Cal.3d 247, 288-290.) The prosecutor

argued: ―He‘s had eight years . . . since the commission of these brutal murders

since 1991. Eight years. Over three years since the time of his arrest in

September of ‘95. He‘s had an attorney, investigators preparing his case, going to

Mexico to find witnesses and bring them here to court to testify for you. And

what you saw is the best that they could do to give you a reason to spare his

life. . . . Nothing about the defendant‘s childhood, his mother, or good behavior in

some particular circumstances in Mexico, overcomes the evidence in

aggravation.‖ Contrary to defendant‘s assertion, there is no reasonable likelihood

the jury understood the prosecutor to argue that the lack of mitigating evidence

was aggravating, but rather that the evidence as a whole warranted death. The

same analysis applies to the prosecutor‘s other challenged comments. Nor did the




14 Section 203 provides that, ―Every person who unlawfully and

maliciously deprives a human being of a member of his body, or disables,
disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye,
or slits the nose, ear, or lip, is guilty of mayhem.‖

49

prosecutor mislead the jury by saying defendant had ―an attorney‖ for three years,

when in fact he had three attorneys over that period of time, or by referring to

―investigators,‖ when defendant only had one investigator at the time of trial.

Defendant contends the prosecutor improperly argued that mitigating factors

were actually aggravating factors. We have held that a prosecutor may not argue

that a defendant‘s section 190.3, factor (k) character and background evidence is

an aggravating factor. (People v. Edelbacher (1989) 47 Cal.3d 983, 1033.) No

such mischaracterization occurred here. Rather, the prosecutor merely argued that

defendant‘s lack of prior felony convictions deserved little weight in mitigation,

that defendant, who was 21 years of age at the time of the offense, was ―[o]ld

enough to be held personally accountable and responsible for his actions,‖ and that

―[w]hen you look at the evidence in this case, the evidence in aggravation, and you

compare it to the evidence that‘s been presented in so-called mitigation, there is no

comparison.‖ Such argument is entirely appropriate. (See People v. Jones (1997)

15 Cal.4th 119, 184.) Nor, contrary to defendant‘s contention, did the

prosecutor‘s reference to defendant‘s age tell the jury defendant‘s age should not

be considered or preclude the jury from determining whether ―21 years was

youthful.‖

Defendant also contends the prosecutor misled the jury with respect to the

consideration of mitigating evidence. Contrary to defendant‘s assertion, the

prosecutor did not argue that ―mercy and sympathy had no place in a capital case.‖

Rather, he properly argued that defendant had not earned the jury‘s pity or

sympathy, and that a death verdict was compelled by the evidence.

Nor, contrary to defendant‘s assertion, did the prosecutor during penalty

argument characterize mitigating evidence as ―good things‖ about defendant.

Rather, he told the jury it could consider ―things like sympathy and pity for the

50

defendant,‖ and that the expanded factor (k) instruction was ―a catchall. Anything

they want to present to you falls into this category.‖

Contrary to defendant‘s assertion, the prosecutor did not make an improper

Biblical reference, or commit Caldwell error15 (Caldwell v. Mississippi (1985) 472

U.S. 320, 336), when he said: ―You are not here to forgive. That is for some

other authority. You are here to impose punishment – the appropriate punishment

based on what this defendant deserves by his conduct, by his actions.‖ Nothing in

these statements misled the jury ― ‗as to its role in the sentencing process in a way

that allow[ed] the jury to feel less responsible than it should for the sentencing

decision.‘ ‖ (Romano v. Oklahoma, supra, 512 U.S. at p. 9.) Nor did the

prosecutor improperly testify by arguing that if defendant received a sentence of

life imprisonment without the possibility of parole, he would be fed, have his

medical and dental needs attended to, and be able to read, write, and enjoy

friendships. These circumstances are matters of common knowledge. (See People

v. Bradford, supra, 14 Cal.4th at pp. 1063-1064 [―it is a matter of common

knowledge that women are employed as state prison guards‖].) In People v. Hill

(1998) 17 Cal.4th 800, 838, on which defendant relies, we did not elaborate on

what argument the prosecutor made regarding prison conditions that while ―brief

and mild,‖ ―contributed to the overall unfairness of the trial.‖ Nor, contrary to

defendant‘s contention, were the prosecutor‘s discussion of punishment, his

statement that a death verdict takes great courage, or his argument that defendant‘s

crimes warranted death, ―[i]nvitations to the jury to perform a greater social

purpose‖ or to ―consider prejudicial and irrelevant matters as aggravating factors.‖


15

The claim under Caldwell is cognizable because the trial here occurred

before our decision in People v. Cleveland (2004) 32 Cal.4th 704. (See id. at pp.
761-762.)

51

(See People v. Zambrano (2007) 41 Cal.4th 1082, 1177-1179.) Likewise, arguing

that life imprisonment is not sufficient punishment does not mislead the jury that it

is no punishment at all.16

2. Instructional Issues

Defendant contends the trial court erred in refusing to give three proposed

instructions. Not so.

The first proposed defense instruction17 was properly refused because it

duplicated other instructions given. (People v. Gurule (2002) 28 Cal.4th 557,

659.) Thus, the jury was instructed on the definition of aggravating and mitigating

circumstances,18 and that ―[i]n determining penalty, the jury shall take into




16 Defendant also claims misconduct in certain statements made by the

prosecutor in his opposition to the automatic motion for modification of the
judgment, and at the hearing on that motion. Contrary to defendant‘s assertion,
none of the cited comments misstates either the record or what evidence may be
considered mitigating. Moreover, the trial court was well aware of the record and
the applicable law.


17 The first proposed instruction provided: ―The mitigating circumstances

that I have read for your consideration are given merely as examples of some of
the factors that a juror may take into account as reasons for deciding not to impose
a death sentence in this case. A juror should pay careful attention to each of those
factors. Any one of them may be sufficient, standing alone, to support a decision
that death is not the appropriate punishment in this case. But a juror should not
limit his or her consideration of mitigating circumstances to these specific factors.


―A juror may also consider any other circumstances relating to the case or

to the defendant as shown by the evidence as reasons for not imposing the death
penalty.


―A mitigating circumstance does not have to be proved beyond a

reasonable doubt. A juror may find that a mitigating circumstance exists if there is
any evidence to support it no matter how weak the evidence is.


―Any mitigating circumstance may outweigh all the aggravating factors.

―A juror is permitted to use mercy, sympathy and/or sentiment in deciding

what weight to give each mitigating factor.‖


18 The jury was instructed: ―An aggravating factor is any fact, condition or

event attending the commission of a crime which increases its guilt or enormity, or


(footnote continued on next page)

52

consideration pity and sympathy for the defendant.‖ In addition, instructions in

the language of CALJIC No. 8.85 allowed consideration of ―any other

circumstance which extenuates the gravity of the crime, even though it is not a

legal excuse for the crime, and any sympathetic or other aspect of the defendant‘s

character or record that the defendant offers as a basis for a sentence less than

death, whether or not related to the offense for which he is on trial.‖ Moreover, a

trial court is not required to instruct the jury that mitigating evidence need not be

proved beyond a reasonable doubt. (People v. Samayoa (1997) 15 Cal.4th 795,

862.)

Defendant further contends the trial court improperly refused to use the word

―mercy‖ that appeared in a proposed prosecution instruction. The trial court

expressed concern that the word ―mercy‖ indicated ―the jury can do what they like

regardless of the guided discretion that factors (a) through (k) provide. . . .

Therefore, I‘m not going to use the word ‗mercy.‘ I prefer the words ‗sympathy,‘

‗pity,‘ et cetera.‖ As set forth in the previous paragraph, the jury was adequately

instructed on the treatment of mitigating evidence. Nor, contrary to defendant‘s

contention, did the trial court forbid the parties from using the word ―mercy‖

during argument.



(footnote continued from previous page)

adds to its injurious consequences which is above and beyond the elements of the
crime itself. A mitigating circumstance is any fact, condition or event which does
not constitute a justification or excuse for the crime in question, but may be
considered as an extenuating circumstance in determining the appropriateness of
the death penalty. [¶] . . . You are free to assign whatever moral or sympathetic
value you deem appropriate to each and all of the various factors you are permitted
to consider.‖

53

Defendant also contends the trial court erroneously refused to instruct the

jury that: ―The factors in the above list which you determine to be aggravating

circumstances are the only ones which the law permits you to consider. You are

not allowed to consider any other facts or circumstances as the basis for deciding

that the death penalty would be an appropriate punishment in this case.‖ We

recently rejected the same claim in People v. Ramirez (2006) 39 Cal.4th 398, 471-

472. While the prosecution introduced on rebuttal Lira‘s testimony regarding

defendant‘s jail misconduct, the jury was also instructed that, other than evidence

of the assaults on Gonzalez and Lopez, ―[y]ou may not consider any evidence of

any other crime as an aggravating circumstance.‖ That was sufficient.

3. Cumulative Prejudice

Defendant contends that cumulative penalty and guilt phase error requires

reversal. We have assumed error only in the instruction of the jury on

concealment of evidence and on lying in wait as a theory of first degree murder.

For both of these claims, we concluded there was no prejudice under any standard.

Therefore no cumulative prejudice is demonstrated.

4. Constitutionality of Death Penalty Statute

Defendant contends the death penalty statute violates the United States

Constitution in numerous respects. We have repeatedly rejected similar claims,

and likewise conclude defendant‘s contentions lack merit.

Section 190.3, factor (a), which allows the jury to consider ―[t]he

circumstances of the crime of which the defendant was convicted in the present

proceeding and the existence of any special circumstances found to be true

pursuant to Section 190.1,‖ does not, as applied, violate the Fifth, Sixth, Eighth, or

Fourteenth Amendments to the United States Constitution because those

54

circumstances differ from case to case. (People v. Stevens, supra, 41 Cal.4th at p.

211; see Tuilaepa v. California (1994) 512 U.S. 967, 975-976, 978-979.)

Contrary to defendant‘s assertion, the death penalty statute does not lack

safeguards to avoid arbitrary and capricious sentencing or deprive defendant of the

right to a jury trial, because it does not require written findings, unanimity as to

the truth of aggravating circumstances, or findings beyond a reasonable doubt that

an aggravating circumstance (other than factor (b) evidence) has been proved, that

the aggravating factors outweighed the mitigating factors, or that death is the

appropriate sentence. (People v. Prince, supra, 40 Cal.4th at pp. 1297-1298;

People v. Stevens, supra, 41 Cal.4th at p. 212; People v. Cox (2003) 30 Cal.4th

916, 971-972.) Nor must a jury be instructed which factors are aggravating and

which are mitigating. (People v. Crittenden (1994) 9 Cal.4th 83, 152-153.)

―[U]se of unadjudicated criminal activity during the penalty phase is permissible,‖

and does not violate the Fifth, Sixth, Eighth, and Fourteenth Amendments.

(People v. Box (2000) 23 Cal.4th 1153, 1217.)

Defendant claims in the alternative that a preponderance of the evidence

standard of proof is compelled for the findings that an aggravating factor exists,

that the aggravating factors outweigh the mitigating factors, and that death is the

appropriate sentence. The jury here was instructed that ―[t]o return a judgment of

death, each of you must be persuaded that the aggravating circumstances are so

substantial in comparison with the mitigating circumstances that it warrants death

instead of life without parole.‖ That is sufficient. (People v. Stevens, supra, 41

Cal.4th at p. 212; see Tuilaepa v. California, supra, 512 U.S. at p. 979.) ―Unlike

the guilt determination, ‗the sentencing function is inherently moral and

normative, not factual‘ [citation] and, hence, not susceptible to a burden-of-proof

quantification.‖ (People v. Hawthorne (1992) 4 Cal.4th 43, 79.) Nothing in

Cunningham v. California (2007) 549 U.S. 270, Ring v. Arizona (2002) 536 U.S.

55

584, or Apprendi v. New Jersey (2000) 530 U.S. 466, affects our conclusions in

this regard. (People v. Stevens, supra, 41 Cal.4th at p. 212; People v. Cox, supra,

30 Cal.4th at pp. 971-972.)

The failure to require intercase proportionality does not violate the Fifth,

Sixth, Eighth, or Fourteenth Amendments. (Pulley v. Harris (1984) 465 U.S. 37,

50-51; People v. Cox, supra, 30 Cal.4th at p. 970.) Nor does the circumstance that

intercase proportionality review is conducted in noncapital cases cause the death

penalty statute to violate defendant‘s right to equal protection and due process.

(People v. Turner (1994) 8 Cal.4th 137, 209; People v. Cox (1991) 53 Cal.3d 618,

690-691.) ―[C]apital and noncapital defendants are not similarly situated and

therefore may be treated differently without violating constitutional guarantees of

equal protection of the laws or due process of law. . . .‖ (People v. Manriquez,

supra, 37 Cal.4th at p. 590.)

We reject defendant‘s argument that the death penalty statute is contrary to

international norms of humanity and decency, and therefore violates the Eighth

and Fourteenth Amendments. Defendant points to no authority that ―prohibit[s] a

sentence of death rendered in accordance with state and federal constitutional and

statutory requirements.‖ (People v. Hillhouse (2002) 27 Cal.4th 469, 511.)

5. Alleged Juror Misconduct

Defendant contends that the trial court erred in denying his new trial motion,

asserting the jurors commented on his failure to testify. There was no prejudicial

juror misconduct, and the motion was properly denied.

a. Factual Background

On March 2, 1999, a month after the penalty verdict, defendant filed a

motion to release juror identifying information, or, in the alternative, for an

evidentiary hearing regarding alleged juror misconduct in discussing defendant‘s

56

failure to testify. The parties stipulated, and the court approved, a procedure in

which all 13 jurors were subsequently summoned to court and examined

individually under oath.19 At the subsequent evidentiary hearing, Juror No. 8

recalled that a comment regarding defendant‘s failure to testify was made ―only

after we had put in our verdict.‖20 Jurors Nos. 1, 2, 3, 4, 6, 7, and 11 testified that

after the penalty phase deliberations, when the verdict had been reached, and the

bailiff either called or the verdict was given to the bailiff, someone, identified by

Jurors Nos. 1, 2, 3, and 11 as Juror No. 8, made a comment wondering why

defendant had not testified. Juror No. 3 apparently agreed with the comment or

made a similar comment. Juror No. 11 testified she said that was not a factor to

consider, and Juror No. 12 agreed with her. Juror No. 9 could not recall whether

the comment about defendant‘s failure to testify was made after the verdict was

signed and the jury was waiting to go back into the courtroom, or later when the

jurors spoke with the attorneys.

Juror No. 10 testified that at the beginning of the guilt phase deliberations, a

male juror questioned why defendant did not take the stand. Juror No. 11

responded, ―We‘re not supposed to even consider that‖ and ―[i]t was in our

instructions not to consider it.‖ The issue was not raised again. Later, someone

mentioned that the subject had been brought up, and someone said, ―[A]gain,

we‘re not supposed to consider that.‖

19 After the guilt phase, Juror No. 5 was replaced by Juror No. 13, who

served at the penalty phase. Both jurors were examined at the post-trial
evidentiary hearing, for a total of 13 jurors.


20 Juror No. 8 was the first juror to testify regarding the comment being

made ―after‖ the verdict. Subsequent jurors testified the comment was made after
the verdict was reached, but before it was announced in open court.

57

Juror No. 12 testified that during a break at the end of the guilt phase

deliberations, Juror No. 8 made a comment to the effect that, ―If it had been me, I

would have got[ten] on the stand to defend myself.‖ Another juror said, ―Yeah,

me too.‖ Juror No 12 said ―we were told that‘s not supposed to be considered.‖

After either the guilt or penalty verdict was read and the jury polled, Juror No. 12

returned to the jury room and Juror No. 8 said, ―I feel we made the right decision

because I didn‘t see any remorse.‖ Juror No. 12 believed the comment was made

after the guilt phase, because while she returned to the jury room after the penalty

verdict was delivered to collect her belongings, she did not stay to speak to the

attorneys.

Juror No. 5, who served only at the guilt phase, heard no comment about

defendant‘s failure to testify, and Juror No. 13, who served only at the penalty

phase, heard no such comment prior to the time the penalty verdict was entered.

The trial court denied the motion for new trial, finding there was no

substantial likelihood that the vote of any juror was influenced by the comments,

because the comments made during the guilt phase elicited ―appropriate

statements . . . that such matters must not be considered,‖ and those in the penalty

phase were made after the jury had reached a verdict. The court stated that any

presumption of prejudice was ―clearly rebutted by evidence of the responses made

by the other jurors, the context of the comments, the timing of the comments, and

the fact that the jurors were unanimous in stating that the comments were not ever

made at a time when they were actually engaged in deliberations.‖

b. Analysis

―[B]y violating the trial court's instruction not to discuss defendant‘s failure

to testify, the jury committed misconduct. [Citations.] This misconduct gives rise

to a presumption of prejudice, which ‗may be rebutted . . . by a reviewing court‘s

58

determination, upon examining the entire record, that there is no substantial

likelihood that the complaining party suffered actual harm.‘ ‖ (People v. Leonard

(2007) 40 Cal.4th 1370, 1425.) ― ‗Whether prejudice arose from juror

misconduct . . . is a mixed question of law and fact subject to an appellate court‘s

independent determination.‘ ‖ (People v. Danks (2004) 32 Cal.4th 269, 303.)

―However, ‗[w]e accept the trial court‘s credibility determinations and findings on

questions of historical fact if supported by substantial evidence.‘ ‖ (Id. at p. 304.)

Here, at the guilt phase, the circumstance that only two jurors recalled that

any juror had commented on defendant‘s failure to testify indicates that the

discussion was not of any length or significance. In addition, the offending juror

was immediately reminded he could not consider this factor and the discussion

ceased. (People v. Loker (2008) 44 Cal.4th 691, 749 (Loker).) ―Transitory

comments of wonderment and curiosity‖ about a defendant‘s failure to testify,

although technically misconduct, ―are normally innocuous, particularly when a

comment stands alone without any further discussion.‖ (People v. Hord (1993) 15

Cal.App.4th 711, 727-728.)

At the penalty phase, the comment was not made until the verdict was

reached and the bailiff contacted. While the jury had not yet been dismissed, we

conclude there is no substantial likelihood a passing comment at this stage of the

proceedings regarding the failure to testify prejudiced defendant in any manner.

Moreover, the offending juror was reminded that this consideration was not

permitted. ―Under these circumstances, the purpose of the rule against

commenting on defendant‘s failure to testify was served, and the presumption of

prejudice is rebutted.‖ (People v. Loker, supra, 44 Cal.4th at p. 749.)

Defendant further contends that his death sentence should be vacated because

a juror stated, after either the guilt or penalty verdict was read, that the jury had

made the right decision because he did not see defendant express remorse. The

59

trial court found, however, that the comment regarding remorse recounted by Juror

No. 12 was consistent with the testimony of other jurors that such a comment was

made after the penalty verdict had been ―signed, sealed and delivered.‖

Substantial evidence supports that finding.

Defendant contends the trial court‘s questioning was not ―even-handed,‖ and

that the court ―did not adequately question jurors as to the actual statements made,

while delving into the deliberative process questioning them in a leading manner

[and] minimizing the misconduct at every opportunity.‖ Defense counsel agreed

to the trial court‘s intended scope of questioning before the jurors were examined,

and all but one request he made for further questioning following a juror‘s voir

dire was honored.21 Indeed, after the first 12 jurors had testified, the parties were

asked if they wanted to recall any juror for further questioning, but neither counsel

requested to do so. Rather, defendant requested that Juror No. 5, who had served

only at the guilt phase, be examined, a request the court granted. Defendant has

therefore forfeited any claim the questioning was inadequate. Nor does our

examination of the record reveal any such inadequacy, lack of evenhandedness, or

an attempt on the part of the court to improperly lead the jurors or minimize any

misconduct.




21 The request that was denied was during the questioning of Juror No. 5.

He testified that during the guilt phase deliberations, another juror made a
comment about how defendant ―never looked at any of the people around him, he
just kept looking straight.‖ Juror No. 5 could not remember if anyone responded.
Juror No. 5 agreed with the court that the comment had nothing ―to do with
[defendant] not taking the witness stand.‖ At side bar, defense counsel asked the
court to inquire what the juror remembered being said before and after the
comment on defendant‘s demeanor. The court noted the subject of a response had
been covered, and declined to inquire further because ―[o]bviously it wasn‘t
anything concerning the defendant‘s failure to testify.‖

60

Contrary to defendant‘s assertion, the trial court never ―warn[ed]‖ the jurors

―that unfavorable testimony could result in the reversal of [defendant‘s]

conviction.‖ We also reject defendant‘s claim the trial court was biased in its

ruling. Our review of the record, set forth above, demonstrates no evidence of

bias. (People v. Guerra, supra, 37 Cal.4th at pp. 1111-1112.)

6. Imposition of $10,000 Restitution Fine

Defendant contends the trial court improperly imposed a $10,000 restitution

fine under former section 1202.4 without considering his ability to pay. Defendant

concedes he is liable for the minimum statutory amount, and seeks a reduction to

that amount under the current statute, which is $200.

At the time the crimes were committed, former section 1202.4, subdivision

(a) provided that the fine ―shall be ordered regardless of the defendant‘s present

ability to pay,‖ and former Government Code section 13967, subdivision (a) set

the fine at a range from $100 to $10,000. (Stats. 1990, ch. 45, § 2, pp. 256-257,

261; People v. Saelee (1995) 35 Cal.App.4th 27, 30 [―A restitution fine qualifies

as punishment for purposes of the prohibition against ex post facto laws‖]; see

People v. Hanson (2000) 23 Cal.4th 355, 361-363 [restitution fines are punishment

for purposes of double jeopardy]; People v. Walker (1991) 54 Cal.3d 1013, 1024

[restitution fine ―qualifies as punishment‖ for purpose of enforcing plea bargain].)

Defendant asserts, however, that he should receive the ameliorative benefit of a

1992 amendment to former Government Code section 13967, subdivision (a) that

required the court to consider defendant‘s ability to pay. Defendant is not entitled

to benefit from the 1992 amendment because it was repealed prior to sentencing in

his case. (See People v. Vieira (2005) 35 Cal.4th 264, 305 (Vieira).)

We have, however, also held that because the current restitution statute

provides that when imposing a fine in an amount greater than the statutory

61

minimum the trial court should consider a defendant‘s ―inability to pay‖ (along

with other relevant factors), a defendant on appeal is entitled to benefit from the

ameliorative effect of that statute. (§ 1202.4, subd. (d); People v. Richardson,

supra, 43 Cal.4th at p. 1038; People v. Vieira, supra, 35 Cal.4th at pp. 305-306.)

In Richardson and Vieira, we remanded the case to the trial court ― ‗for

reconsideration of the question of a restitution fine under the currently applicable

statute.‘ ‖ (Richardson, supra, 43 Cal.4th at p. 1038, quoting Vieira, supra, 35

Cal.4th at p. 306.)

Defendant does not rely on Vieira, which was decided before he filed his

reply brief, and which was cited in the respondent‘s brief. Moreover, in 1999,

when defendant was sentenced, former section 1202.4 contained language

regarding a trial court‘s consideration of the defendant‘s ability to pay similar to

that contained in the current statute. (Stats. 1998, ch. 587, § 5.5.) Defendant did

not assert below that he should benefit from the ameliorative effect of this

amendment.

Defendant contends, however, that because he did not have the ability to pay,

the $10,000 fine was an unauthorized sentence, thus exempting him from having

to bring his claim to the court‘s attention. (See People v. Scott (1994) 9 Cal.4th

331, 354.) Not so. Had defendant brought his argument to the court‘s attention, it

could have exercised its discretion and considered defendant‘s ability to pay, along

with other relevant factors, in ascertaining the fine amount. Under the current

statute, and that in existence in 1999, a fine in any amount greater than the

statutory minimum, and up to $10,000, is subject to the court‘s discretion.

(§ 1202.4, subds. (b)(1), (d).) Moreover, under the statute in 1999 and now, a

defendant bears the burden of demonstrating his inability to pay, and express

findings by the court as to the factors bearing on the amount of the fine are not

required. (§ 1202.4, subd. (d); see People v. Romero (1996) 43 Cal.App.4th 440,

62

449 [the statute ―impliedly presumes a defendant has the ability to pay,‖ and

leaves it to the defendant to adduce evidence otherwise].)

In People v. Tillman (2000) 22 Cal.4th 300, 302-303, we held that a

prosecutor‘s failure to object to the trial court‘s not stating on the record its

reasons for not imposing a section 1202.4 restitution fine waived that argument on

appeal. Likewise here, in failing to assert below that he should benefit from

intervening legislative amendments and in not adducing evidence of his inability

to pay, defendant has forfeited the argument. Under these circumstances, no

remand is required.

III. CONCLUSION

The judgment is affirmed.

CHIN, J.

WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
CORRIGAN, J.



63

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Avila
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S078664
Date Filed: June 15, 2009
__________________________________________________________________________________

Court:
Superior
County: Riverside
Judge: Vilia G. Sherman

__________________________________________________________________________________

Attorneys for Appellant:

Christine J. Levin, under appointment by the Supreme Court, for Defendant and Appellant.




__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and Sharon L. Rhodes, Deputy
Attorneys General, for Plaintiff and Respondent.







Counsel who argued in Supreme Court (not intended for publication with opinion):

Christine J. Levin
Coleman & Horowitt
499 W. Shaw Avenue, Suite 116
Fresno, CA 93704
(559( 248-4820

Sharon L. Rhodes
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 525-4392


Automatic appeal from a judgment of death.

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 06/15/200946 Cal. 4th 680, 208 P.3d 634, 94 Cal. Rptr. 3d 699S078664Automatic Appealclosed; remittitur issued

Parties
1The People (Respondent)
Represented by Attorney General - San Diego Office
Sharon L. Rhodes, Deputy Attorney General
P.O. Box 85266
110 West "A" Street, Suite 1100
San Diego, CA

2Avila, Joseph (Appellant)
San Quentin State Prison
Represented by Christine J. Levin
Attorney at Law
4459 N. Teilman Ave.
Fresno, CA


Opinion Authors
OpinionJustice Ming W. Chin

Disposition
Jun 15 2009Opinion: Affirmed

Dockets
Apr 29 1999Judgment of death
May 6 1999Filed certified copy of Judgment of Death Rendered
4-29-99
May 6 1999Penal Code sections 190.6 et seq. apply to this case
Jul 15 1999Record certified for completeness
Sep 17 2002Filed:
appellant's application for appointment of counsel (IFP form).
Sep 18 2002Counsel appointment order filed
appointing Christine Levin to represent appellant for the direct appeal.
Sep 27 2002Appellant's opening brief letter sent, due:
April 28, 2003.
Sep 30 2002Date trial court delivered record to appellant's counsel
(6,268 pp. record) (see Calif. Rules of Court, rule 39.50(c); the date of delivery is the date of mailing plus five days.) (note: record was mailed on 9-23-2002.)
Nov 18 2002Counsel's status report received (confidential)
from atty Levin.
Jan 13 2003Compensation awarded counsel
Atty Levin
Jan 15 2003Counsel's status report received (confidential)
from atty Levin.
Feb 13 2003Compensation awarded counsel
Atty Levin
Mar 18 2003Counsel's status report received (confidential)
from atty Levin.
Mar 25 2003Compensation awarded counsel
Atty Levin
Apr 9 2003Compensation awarded counsel
Atty Levin
Apr 22 2003Request for extension of time filed
to file appellant's opening brief. (1st request)
Apr 24 2003Extension of time granted
to 6/27/2003 to file appellant's opening brief. The court anticipates that after that date, only four further extensions totaling 240 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
May 7 2003Received copy of appellant's record correction motion
Application to corrrect, complete and settle the record on appeal. (30 pp.)
May 15 2003Counsel's status report received (confidential)
from atty Levin.
May 29 2003Compensation awarded counsel
Atty Levin
Jun 16 2003Request for extension of time filed
to file appellant's opening brief. (2nd request)
Jun 19 2003Extension of time granted
to 8/26/2003 to file appellant's opening brief. The court anticipates that after that date, only three further extensions totaling 180 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Jul 14 2003Counsel's status report received (confidential)
from atty Levin.
Aug 13 2003Compensation awarded counsel
Atty Levin
Aug 22 2003Request for extension of time filed
to file appellant's opening brief. (3rd request)
Aug 28 2003Extension of time granted
to 10-27-2003 to file AOB. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Aug 29 2003Record certified for accuracy
Sep 11 2003Counsel's status report received (confidential)
from atty Levin.
Sep 29 2003Record on appeal filed
Clerk's transcript 21 volumes (4614 pp.) and reporter's transcript 22 volumes (2063 pp.) including material under seal; ASCII disks. Clerk's transcript includes 2533 pp. of juror questionnaires.
Sep 29 2003Letter sent to:
Counsel advising that the record on appeal, certified for accuracy on 8/29/2003, was filed this date.
Oct 28 2003Request for extension of time filed
to file appellant's opening brief. (4th request)
Oct 31 2003Extension of time granted
to 12/26/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 90 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Nov 4 2003Compensation awarded counsel
Atty Levin
Nov 10 2003Counsel's status report received (confidential)
from atty Levin.
Nov 19 2003Compensation awarded counsel
Atty Levin
Dec 24 2003Request for extension of time filed
to file appellant's opening brief. (5th request)
Dec 29 2003Counsel's status report received (confidential)
from atty Levin.
Jan 5 2004Extension of time granted
to 2-27-2004 to file AOB. After that date, only four further extensions totaling 210 additional days will be granted. Extension granted based upon counsel Christine Levin's representation that she anticipates filing the brief by 9-29-2004.
Feb 2 2004Counsel's status report received (confidential)
from attorney Levin.
Feb 20 2004Request for extension of time filed
to file appellant's opening brief. (6th request)
Feb 26 2004Extension of time granted
to 04/27/04 to file appellant's opening brief. After that date, only four further extensions totaling 195 additional days will be granted. Extension is granted based upon counsel Christine Levin's representation that she anticipates filing that brief by 11/10/04.
Mar 8 2004Counsel's status report received (confidential)
from atty Levin.
Apr 9 2004Compensation awarded counsel
Atty Levin
Apr 19 2004Request for extension of time filed
to file AOB. (7th request)
Apr 23 2004Extension of time granted
to 6/28/2004 to file appellant's opening brief. After that date, only three further extensions totaling 135 additional days will be granted. Extension is granted based upon counsel Christine J. Levin's representation that she anticipates filing that brief by 11/10/2004.
Apr 28 2004Compensation awarded counsel
Atty Levin
May 10 2004Counsel's status report received (confidential)
from atty Levin.
May 25 2004Counsel's status report received (confidential)
from atty Levin.
Jun 25 2004Request for extension of time filed
to file appellant's opening brief. (8th request)
Jul 6 2004Counsel's status report received (confidential)
from atty Levin.
Jul 9 2004Extension of time granted
to 8-27-2004 to file AOB. After that date, only two further extensions totaling about 105 additional days will be granted. Extension granted based upon counsel Christine J. Levin's representation that she anticipates filing the brief by 12-10-2004.
Aug 25 2004Request for extension of time filed
to file appellant's opening brief. (9th request)
Aug 31 2004Extension of time granted
to 10-28-2004 to file AOB. After that date, only two further extensions totaling about 75 additional days will be granted. Extension granted based upon counsel Christine J. Levin's representation that she anticipates filing the AOB by 1-10-2005.
Sep 3 2004Counsel's status report received (confidential)
from atty Levin.
Sep 10 2004Counsel's status report received (confidential)
from atty Levin.
Oct 27 2004Counsel's status report received (confidential)
from atty Levin.
Nov 3 2004Compensation awarded counsel
Atty Levin
Nov 17 2004Compensation awarded counsel
Atty Levin
Nov 23 2004Request for extension of time filed
to file appellant's opening brief. (10th request)
Dec 1 2004Extension of time granted
to December 27, 2004 to file appellant's opening brief. After that date, only one further extension totaling about 55 additional days will be granted. Extension is granted based upon counsel Christine J. Levin's representation that she anticipates filing that brief by February 20, 2005.
Dec 28 2004Request for extension of time filed
to file appellant's opening brief. (11th request)
Jan 3 2005Extension of time granted
to 2/25/2005 to file appellant's opening brief. After that date, only one further extension totaling about 15 additional days will be granted. Extension is granted based upon counsel Christine J. Levin's representation that she anticipates filing that brief by 3/10/2005.
Jan 6 2005Counsel's status report received (confidential)
from atty Levin.
Feb 25 2005Request for extension of time filed
to file appellant's opening brief. (12th request)
Mar 9 2005Counsel's status report received (confidential)
from atty Levin.
Mar 9 2005Filed:
Supplemental declaration in support of application for extension of time to file appellant's opening brief.
Mar 14 2005Extension of time granted
to 4/25/2005 to file appellant's opening brief. After that date, only two further extensions totaling about 110 additional days will be granted. Extension is granted based upon counsel Christine J. Levin's representation that she anticipates filing that brief by 8/15/2005.
Mar 14 2005Received:
copy of appellant's motion to preserve evidence, exhibits, files and other materials related to capital case. (filed in superior court)
Apr 28 2005Request for extension of time filed
to file appellant's opening brief. (13th request)
May 11 2005Compensation awarded counsel
Atty Levin
May 11 2005Filed:
Supplemental declaration in support of application for extension of time to file appellant's opening brief.
May 17 2005Extension of time granted
to 6-24-2005 to file AOB. After that date, only one further extension totaling about 60 additional days will be granted. Extension granted based upon counsel Christine J. Levin's representation that she anticipates filing the brief by 8-27-2005.
Jul 21 2005Application for relief from default filed
for failure to file appellant's opening brief or timely motion for extension of time.
Jul 27 2005Request for extension of time filed
to file appellant's opening brief. (14th request)
Jul 27 2005Extension of time granted
Appellant's application for relief from default for failure to file appellant's opening brief or a timely motion for extension of time is granted. Good cause appearing, and based upon counsel Christine J. Levin's representation that she anticipates filing the appellant's opening brief by 9/27/2005, counsel's request for an extension of time in in which to file that brief is granted to 9/27/2005. After that date, no further extension is contemplated.
Aug 5 2005Counsel's status report received (confidential)
from atty Levin.
Sep 26 2005Counsel's status report received (confidential)
from atty Levin.
Sep 26 2005Request for extension of time filed
to file appellant's opening brief. (15th request)
Sep 29 2005Extension of time granted
to 11/28/2005 to file appellant's opening brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon counsel Christine J. Levin's representation that she anticipates filing that brief by 1/27/2006.
Nov 28 2005Request for extension of time filed
to file AOB. (16th request)
Nov 28 2005Counsel's status report received (confidential)
from atty Levin.
Dec 1 2005Extension of time granted
to 1/27/06 to file the appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon counsel Christine J. Levin's representation that she anticipates filing that brief by January 27, 2006.
Jan 27 2006Request for extension of time filed
to file appellant's opening brief. (17th request)
Feb 3 2006Extension of time granted
to 2/14/2006 to file the appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon counsel Christine J. Levin's representation that she anticipates filing that brief by 2/11/2006.
Feb 8 2006Compensation awarded counsel
Atty Levin
Feb 10 2006Application to file over-length brief filed
to file appellant's opening brief. (119,279 word brief submitted under separate cover; 405 pp.)
Feb 16 2006Order filed
Appellant's application for leave to file appellant's opening brief in excess of the word count limit is granted.
Feb 16 2006Appellant's opening brief filed
(119,279 words; 405 pp.)
Feb 16 2006Respondent's brief letter sent; due:
June 16, 2006.
Feb 21 2006Counsel's status report received (confidential)
from atty Levin.
Apr 19 2006Change of contact information filed for:
attorney Christine J. Levin.
May 24 2006Compensation awarded counsel
Atty Levin
Jun 5 2006Request for extension of time filed
to file respondent's brief. (1st request)
Jun 13 2006Extension of time granted
to August 15, 2006 to file respondent's brief. After that date, only one further extension totaling about 30 additional days is contemplated. Extension is granted based upon Deputy Attorney General Sharon L. Rhodes's representation that she anticipates filing that brief by September 15, 2006.
Aug 8 2006Request for extension of time filed
to file respondent's brief. (2nd request)
Aug 9 2006Change of contact information filed for:
applt counsel Christine J. Levin.
Aug 9 2006Extension of time granted
to September 15, 2006 to file the respondent's brief. After that date, no further extension is contemplated. Extension is granted based upon Deputy Attorney General Sharon L. Rhodes's prior representation that she anticipates filing that brief by September 15, 2006.
Sep 13 2006Request for extension of time filed
to file respondent's brief. (3rd request)
Sep 14 2006Extension of time granted
to November 14, 2006 to file respondent's brief. Extension is granted based upon Deputy Attorney General Sharon L. Rhodes's representation that he anticipates filing that brief by November 14, 2006. After that date, no further extension is contemplated.
Sep 15 2006Filed:
amended declaration of service of application for extension of time to file respondent's brief.
Nov 14 2006Respondent's brief filed
(65,334 words; 200 pp.)
Nov 14 2006Motion filed (AA)
by respondent to strike charts included in AOB.
Nov 14 2006Note:
appellant's reply brief is due January 16, 2007.
Dec 5 2006Note:
attorney Levin advised by telephone that appellant's response to motion to strike charts in AOB is due on or before December 22, 2006.
Dec 26 2006Filed:
appellant's "Response to Respondent's Motion to Strike Charts Included in Appellant's Opening Brief."
Jan 16 2007Request for extension of time filed
to file appellant's reply brief. (1st request)
Jan 17 2007Motion denied
Respondent's "Motion to Strike Charts Included in Appellant's Opening Brief," filed on November 14, 2006, is denied. Moreno, J., was absent and did not participate.
Jan 22 2007Extension of time granted
On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's reply brief is extended to and including March 12, 2007.
Mar 12 2007Request for extension of time filed
to file appellant's reply brief. (2nd request)
Mar 15 2007Filed:
supplemental declaration in support of application for extension of time to file reply brief.
Mar 19 2007Extension of time granted
to May 11, 2007 to file appellant's reply brief. After that date, only four further extensions totaling about 210 additional days are contemplated. Extension is granted based upon counsel Christine J. based upon counsel Christine J. Levin's representation that she anticipates filing that brief by December 12, 2007.
May 14 2007Request for extension of time filed
to file appellant's reply brief. (3rd request)
May 17 2007Extension of time granted
to July 9, 2007 to file appellant's reply brief. After that date, only three further extensions totaling about 150 additional days are contemplated. Extension is granted based upon counsel Christine J. Levin's representation that she anticipates filing that brief by December 12, 2007.
Jul 6 2007Request for extension of time filed
to file reply brief. (4th request)
Jul 10 2007Extension of time granted
to September 10, 2007 to file the reply brief. After that date, only two further extensions totaling about 90 additional days are contemplated. Extension is granted based upon counsel Chirstine J. Levin's representation that she anticipates filing that brief by December 12, 2007.
Sep 24 2007Request for extension of time filed
to file appellant's reply brief. (5th request)
Oct 1 2007Extension of time granted
Good cause appearing, and based upon counsel Louis N. Hiken's representation that counsel Christine J. Levin anticipates filing the appellant's reply brief by April 10, 2008, counsel's request for an extension of time in which to file that brief is granted to November 13, 2007. After that date, only three further extensions totaling about 150 additional days are contemplated.
Nov 14 2007Request for extension of time filed
to file appellant's reply brief.(6th request)
Nov 19 2007Extension of time granted
Good cause appearing, and based upon counsel Christine J. Levin's representation that she anticipates filing the appellant's reply brief by April 10, 2008, counsel's request for an extension of time in which to file that brief is granted to January 14, 2008. After that date, only two further extensions totaling about 90 additional days are contemplated.
Jan 15 2008Request for extension of time filed
to file appellant's reply brief. (7th request)
Jan 17 2008Extension of time granted
Good cause appearing, and based upon counsel Christine Levin's representation that she anticipates filing the appellant's reply brief by April 10, 2008, counsel's request for an extension of time in which to file that brief is granted to March 17, 2008. After that date, only one further extension totaling about 24 additional days is contemplated.
Mar 17 2008Request for extension of time filed
to file appellant's reply brief (8th request)
Mar 19 2008Extension of time granted
Good cause appearing, and based upon counsel Christine J. Levin's representation that she anticipates filing the appellant's reply brief by June 10, 2008, counsel's request for an extension of time in which to file that brief is granted to May 16, 2008. After that date, only one further extension totaling about 25 additional days is contemplated.
May 16 2008Request for extension of time filed (AA)
to file appellant's reply brief. (9th request)
May 20 2008Extension of time granted
Good cause appearing, and based upon counsel Christine J. Levin's representation that she anticipates filing the appellant's reply brief by June 10, 2008, counsel's request for an extension of time in which to file that brief is granted to June 10, 2008. After that date, no further extension is contemplated.
Jun 6 2008Request for extension of time filed (AA)
to file appellant's reply brief. (10th request)
Jun 11 2008Extension of time granted
Good cause appearing, and based upon counsel Christine J. Levin's representation that she anticipates filing the appellant's reply brief by July 24, 2008, counsel's request for an extension of time in which to file that brief is granted to July 24, 2008. After that date, no further extension is contemplated.
Jul 23 2008Request for extension of time filed (AA)
to file appellant's reply brief. (11th request)
Jul 29 2008Extension of time granted
Good cause appearing, and based upon counsel Christine J. Levin's representation that she anticipates filing the appellant's reply brief by August 7, 2008, counsel's request for an extension of time in which to file that brief is granted to August 7, 2008. After that date, no further extension will be granted.
Aug 7 2008Application to file over-length brief filed
by appellant, "Application to File Reply Brief in Excess of 47,600 Words."
Aug 12 2008Order filed
Appellant's "Application to File Reply Brief in Excess of 47,600 Words" is granted.
Aug 12 2008Appellant's reply brief filed
(87,621 words; 290 pp.)
Sep 17 2008Exhibit(s) lodged
People's exhibits: 8, 9 (photoline ups), 10 (small photo), 11A, 12, 13A (cassette tapes), 11B, 12A, 13B (transcripts of cassette tapes).
Sep 18 2008Exhibit(s) lodged
People's exhibits 1 & 3 (posterboards).
Oct 1 2008Compensation awarded counsel
Atty Levin
Oct 16 2008Compensation awarded counsel
Atty Levin
Feb 13 2009Exhibit(s) lodged
People's exhibits 3 and 4. (letter(s) and photo-lineups)
Feb 17 2009Oral argument letter sent
advising counsel that the court could schedule this case for argument as early as the April calendar, to be held the week of April 6, 2009, in Los Angeles. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
Mar 11 2009Case ordered on calendar
to be argued on Wednesday, April 8, 2009, at 2:00 p.m., in Los Angeles
Mar 20 2009Received:
appearance sheet from Attorney Christine J. Levin, indicating 45 minutes for oral argument for appellant.
Mar 23 2009Received:
appearance sheet from Deputy Attorney General Sharon Rhodes, indicating 30 minutes for oral argument for respondent.
Mar 23 2009Filed:
respondent's focus issue letter, dated March 19, 2009.
Mar 23 2009Filed:
appellant's focus issues letter, dated March 23, 2009.
Mar 27 2009Received:
respondent's additional authorities letter, dated March 26, 2009.
Apr 8 2009Cause argued and submitted
Apr 22 2009Counsel fee request received
Atty Levin
Apr 23 2009Compensation awarded counsel
Atty Levin
May 13 2009Change of contact information filed for:
Christine J. Levin, Esq.
May 14 2009Compensation awarded counsel
Atty Levin
Jun 11 2009Change of contact information filed for:
Christine J. Levin, Attorney at Law.
Jun 12 2009Notice of forthcoming opinion posted
Jun 15 2009Opinion filed: Judgment affirmed in full
opinion by Chin, J. ----- joined by George, C.J., Kennard, Baxter, Werdegar, Moreno, Corrigan, JJ.
Jun 30 2009Rehearing petition filed
by appellant. (5,105 words; 18 pp.)
Jul 6 2009Order filed
The time for granting or denying rehearing in the above-entitled case is hereby extended to and including September 14, 2009, or the date upon which rehearing is either granted or denied, whichever occurs first.
Jul 9 2009Compensation awarded counsel
Atty Levin
Jul 16 2009Filed:
by California Public Defenders Association, "Application to File Request for Modification of Opinion"
Jul 16 2009Order filed
The California Public Defenders Association's "Application to File Request for Modification of Opinion" is granted.
Jul 16 2009Filed:
Letter from the California Public Defenders Association, dated July 15, 2009, requesting modification of the opinion.
Jul 22 2009Compensation awarded counsel
Atty Levin
Aug 12 2009Rehearing denied; opinion modified
Moreno and Corrigan, JJ., were absent and did not participate.
Aug 12 2009Opinion modified - no change in judgment
The opinion filed June 15, 2009, and published at 46 Cal.4th 680, is modified in the following respects: On page 695, the second full paragraph is deleted. The first sentence of the following paragraph is modified to read as follows: "We find no abuse of discretion." These modifications do not affect the judgment.
Aug 12 2009Remittitur issued
Aug 18 2009Exhibit(s) returned
to superior court.
Aug 24 2009Received:
acknowledgment of receipt of exhibits.
Aug 24 2009Received:
acknowledgment receipt for remittitur from superior court.

Briefs
Feb 16 2006Appellant's opening brief filed
(119,279 words; 405 pp.)
Nov 14 2006Respondent's brief filed
(65,334 words; 200 pp.)
Aug 12 2008Appellant's reply brief filed
(87,621 words; 290 pp.)
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 4, 2010
Annotated by basmith1

The defendant in this case, Joseph Avila, was convicted of the premeditated first degree murders of Raul Moncada and Robert Novarro, and the premeditated attempted murder or David Montoya. The jury found, additionally, a multiple-murder special-circumstance charge. Avila was sentenced to death and an automatic appeal ensued. The Supreme Court of CA here affirmed his convictions and sentence.

After a bifurcated trial, defendant raised a plethora of claims in his appeal regarding both the guilt and penalty phases. He raised eight claims on the guilt phase of the trial (appointment of counsel issues, witness identification issues, insufficient evidence to prove intent on the attempted murder charge, insufficient evidence to substantiate one murder conviction, improper jury instructions, prosecutorial misconduct, judicial misconduct, and cumulative prejudice) and six claims on the penalty phase (prosecutorial misconduct, instructional issues, cumulative prejudice, constitutionality of the death penalty statute, juror misconduct, and the amount of his restitution fine). Elaboration on those claims appears below.

First, the defendant claimed that the trial court’s failure to appoint Keenan counsel, denial of a motion for a twelve month continuance, and removal of defendant’s counsel of choice was error. The California Supreme Court, after reciting the facts supportive of its position, disagreed, noting especially that defendant forfeited his claim about the removal of counsel for failing to timely object. The Court also noted the trial court’s proper consideration of timely trial in denying the continuance and reassigning the case to new counsel.

A second claim raised by defendant involved a denial of his motion at trial to exclude witnesses’ identification of the defendant as the perpetrator the crimes. The California Supreme Court noted that the defendant failed to meet his burden of demonstrating that the identifications were impermissibly suggestive by offering no evidence regarding how, specifically, they were improper.

A third claim raised by the defendant regarding the guilt phase of his trail was his contention of insufficient evidence to prove intent to Montoya (the only surviving victim), which would require reversal on this conviction. The Supreme Court disagreed, reviewing the record in the light most favorable to the verdict.

The defendant’s fourth claim on appeal contended that there was insufficient evidence to substantiate his conviction on the murder of Navarro, asking the Court to vacate that charge and the multiple-murder special-circumstance finding. The Court found that there was substantial evidence to support the conviction on this count.

The defendant’s fifth claim regarding the guilt phase of his trial was a contention that the trial court improperly instructed the jury in a number of ways, both by failing to instruct on some counts and improperly instruction on others. The defendant claimed that the trial court failed to instruct on voluntary manslaughter, attempted voluntary manslaughter, and provocation as a circumstance reducing first degree murder to second degree murder. The Supreme Court found no error. On the less included murder charges, the Supreme Court noted previous decisions stating there was no duty to instruct unless substantial evidence supported such an instruction; not so in this case. On the provocation as mitigation argument, the Supreme Court found that there was no substantial evidence of provocation. The Court further refused to find that refusing these instructions demonstrated bias because the trial court’s refusal to instruct was proper.

In addition to the claims by defendant about the trial court’s failures to instruct, defendant also claimed additional jury instructions were improper, including instructions regarding lying in wait, concealing evidence, and flight. The defendant claimed that the lying in wait instruction demonstrated bias, but the California Supreme Court found the instruction proper. The prosecution, it found, proceeded on two theories of first degree murder; premeditation and lying in wait. Because the jury unanimously found premeditation, even an improper instruction on lying in wait would not demonstrate bias. Further, the Court held, merely giving this instruction would not demonstrate bias. On the concealing evidence instruction (given because the murder weapon, a six-inch knife, was never recovered), the Court assumed without deciding that the instruction was error, but that error did not demonstrate unconstitutional bias. On the flight instruction (given because the defendant spent the intervening four years between the commission of the crime and his apprehension in Mexico), the Supreme Court found that it was not improper and did not demonstrate judicial bias.

A sixth claim raised by the defendant in the guilt phase of the trial alleged prosecutorial misconduct. The Court noted that the defendant failed to timely object to any statements he now claims demonstrate bias and therefore forfeited those claims. The Court continued to emphatically note that the claims were also meritless.

A seventh claim raised by defendant alleged judicial misconduct leading to the denial of the right to a fair trial. The Court found that his claims argued judicial error; not misconduct. The misconduct allegations included improper bias in jury selection by favoring Christians and excluding college students. The Court rejected both of these contentions.

An eighth claim raised by defendant was cumulative prejudice; that even if any of his other claims taken alone did not mandate reversal, their cumulative effect so requires. The Court disagreed, noting that it assumed error in instructions on concealment and lying in wait but concluded that there was no prejudice under either standard, and additionally no cumulative prejudice.

Regarding the penalty phase of the trial, the defendant raised six claims, each rejected by the Supreme Court.

First, the defendant alleged prosecutorial misconduct for specific statements the prosecutor made in the guilt phase of defendant’s trial. The Court found that the defendant failed to object when some statements were made, so he forfeited those claims. The Court also held that other statements claimed to demonstrate misconduct were not improper or impermissible.

The second guilt-phase claim raised by the defendant involved instructional issues, contending that the court erred by refusing to give three proposed instructions. The Supreme Court found that the instructions given were proper and the instructions not given were properly refused.

The third claim raised by the defendant at the penalty phase was cumulative prejudice in the guilt and penalty phases requiring reversal. The Supreme Court found no cumulative prejudice was demonstrated.

The fourth claim raised by the defendant claimed the death penalty statute was unconstitutional. The Court noted its rejection of similar claims and likewise rejected defendant’s assertion.

The fifth penalty-phase claim raised by the defendant alleged juror misconduct. Defendant claimed that the trial court error by denying a motion for a new trial after discovering that jurors made comments regarding defendant’s refusal to testify. Commenting on a defendant’s choice not to testify is presumptive but rebuttable juror misconduct. In this case, the Supreme Court noted facts in the record that the comments were admonished when they were stated, that the comments were not heard by all jurors, and that the comments occurred after the guilty verdict was delivered (so they did not affect the jury’s deliberations). The Court held that the motion was properly denied because there was no evidence of bias.

The sixth claim raised by the defendant involved the imposition of a $10,000 restitution fine which he is unable to pay. Defendant sought to have the fine reduced to the statutory minimum, $200 (which, thanks to an intervening change in legislative policy, the court might have done). The Court found that the defendant failed to properly bring his argument before the court – which could have exercised its discretion in considering his ability to pay – but his failure to assert the claim below means that he forfeited this claim.

KEY TERMS: concealing evidence, constitutionality of death penalty statute, cumulative prejudice, death penalty appeal, flight, identification evidence, intent to kill, judicial misconduct, juror misconduct, jury instructions, Keenan counsel, lying in wait, multiple-murder special-circumstance, prosecutorial misconduct, provocation, restitution fine, sufficiency of evidence

(Annotated By: Barbara Smith)