Filed 2/19/09



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S073253

v.

ALFRED ANTHONY GUTIERREZ, )


Los Angeles County

Defendant and Appellant.

Super. Ct. No. KA034049



A jury convicted Alfred Anthony Gutierrez of the second degree murder of Dawn

Nakatani (Pen. Code, § 187, subd. (a)),1 the first degree murder of Mario Orellano

(§ 187, subd. (a)), and the attempted willful, deliberate, and premeditated murder of

Sergio Medina (§§ 187, subd. (a), 664). The jury found true sentencing enhancements as

to the murder of Mario Orellano and attempted murder of Sergio Medina that defendant

personally used a firearm (§ 12022.5, subd. (a)(1)) and that defendant committed the

offenses for the benefit of, at the direction of, or in association with, a criminal street

gang (§ 186.22, subd. (b)(4)). The jury also found true a multiple-murder special-

circumstance allegation. After a penalty trial, the jury returned a verdict of death. The

trial court denied defendant’s motions for a new trial and for a reduction or modification

of the sentence. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.


1

All further statutory references are to the Penal Code unless otherwise indicated.

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I. FACTS

A. Introduction

On October 1, 1996, Dawn Nakatani, defendant’s ex-girlfriend and the mother of his

child, was beaten, strangled, and left for dead in her Baldwin Park home. A little before

noon, defendant had driven to Nakatani’s home, picked up defendant’s and Nakatani’s

three-year-old son, and left. A few minutes after noon, Nakatani’s roommate returned

home to find Nakatani unconscious and not breathing. Nakatani was transported to

Queen of the Valley Hospital, where she died at 12:48 a.m. on October 2, 1996, after

being briefly resuscitated.

On October 11, 1996, defendant drove past a gas station where he saw Ralph

Benevente, Mario Orellano, Sergio Medina, and others meeting to make plans for the

evening. Defendant returned to the gas station moments later, got out of his car with an

AK-47-type firearm, and fired several shots at Benevente’s car, killing Orellano and

injuring Medina.

B. Guilt Phase

1. Murder of Dawn Nakatani

a. Prosecution Evidence

Nakatani and her three-year-old son shared a home with Maria Rios and her

daughter. On the morning of October 1, 1996, Rios left the house in the morning while

Nakatani and the son slept. Rios came home for lunch around 12:06 p.m. and noticed

that Nakatani’s room was in disarray. Nakatani’s purse and wallet were on Rios’s bed,

there were candy wrappers at the top of the stairs — a vantage point from which the

television could be viewed — and there was a video cassette case for a Casper video on

top of the television cabinet. Things were out of place in Rios’s bedroom and Rios’s

bedroom window blinds were open and her bed pillows flattened as though someone had

been sitting on her bed looking down at the street through her blinds. Rios became

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frightened and looked through the rest of the house, finding Nakatani lying face down in

the bathroom/laundry room of the home. Nakatani had a bandana tightly knotted twice

around her neck; Rios had to use her hands and teeth to untie the bandana. Nakatani was

not breathing when Rios found her and her face was bruised and swollen. Rios ran

outside screaming and a neighbor called 911. Nakatani was transported to the hospital,

where she was briefly resuscitated but died of her injuries early the next morning.

Kim Pinto, Nakatani’s sister, testified that defendant had called her the evening

before Nakatani was found strangled to tell her that he was upset that Nakatani would not

let him see his son, and that she had “better talk to [Nakatani] or else he will take care of

her his way.” Defendant’s grandmother testified that defendant, along with two men,

dropped defendant’s son off at her house shortly after noon on October 1, 1996 even

though she was too infirm to babysit. Earlier that day, defendant’s mother, Janet

Gutierrez, had spoken with Nakatani to make arrangements to pick up the boy. Janet

Gutierrez arrived at Nakatani’s home a little after noon, saw Rios screaming, and was

told that the child was not there. Janet Gutierrez left Nakatani’s home, called defendant’s

grandmother from a nearby gas station to see if defendant was at his grandmother’s

house, and learned that defendant had dropped the child off there earlier that day.

Two days later, defendant went to the police in response to a notice in the

newspaper that he was being sought in connection with Nakatani’s murder. Deputy

Sheriff Sean Heieck testified that, as they were walking to a jail cell, defendant told him

that Nakatani used methamphetamine and had sex with multiple partners. Shortly

thereafter, Deputy Heieck put defendant in an “isolation cell,” where he was able to

observe defendant sitting alone and heard defendant thrice repeat, unprovoked by any

questioning, “I had to do what was best for my son.” Sergeant David Watkins testified

that defendant was released later that day because the case could not be presented to the

district attorney within 48 hours.

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Dr. Eugene Carpenter, Jr., the deputy medical examiner, testified that Nakatani died

by ligature strangulation, and had also suffered abrasions and blunt-force trauma

consistent with being held against carpet while being strangled. The strangulation must

have occurred no more than 20 minutes before emergency personnel began administering

cardiopulmonary resuscitation, which began at 12:14 p.m.

More than two months later, on December 7, 1996, Pinto was driving defendant’s

son to his maternal grandmother’s house and mentioned that the next day they were going

to visit his mother’s grave at the cemetery. The boy responded that he would “untie my

mommy,” that he saw his “daddy and his mean friend tie[] up my mommy,” and that he

hit his dad to get him to stop, at which point defendant carried him upstairs and placed a

Casper video in the video cassette recorder for him to watch.

b. Defense Evidence

Defendant testified that he had been concerned about the environment in which his

son was being raised, which sometimes had led to arguments with Nakatani. On October

1, 1996, although defendant had planned for his parents to pick up his son from

Nakatani’s home, he received a call from Nakatani requesting that he come to pick up the

child because his parents were running late. Defendant did not have a driver’s license,

but he told Nakatani that he would get a ride over and pick up their son at 11:30 a.m.

Defendant and two unnamed cohorts2 drove to Nakatani’s home and walked into her

garage to pick up defendant’s son. Defendant and Nakatani began arguing, which

escalated into a physical altercation. Nakatani grabbed defendant’s shirt and scratched

his chest, and the two exchanged kicks. Defendant testified that he walked out of the


2

Defendant testified that he would not name the two men he claimed accompanied

him to Nakatani’s home on October 1, 1996 because, if he did, his “life would be in grave
danger.”

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garage with his son while the two men walked towards Nakatani. The two men returned

to the car one or two minutes later, and defendant, the boy, and the two men drove away.

When the two men returned to the car, defendant asked them what had happened

with Nakatani. They replied, “She got crazy with us.” When defendant asked them to

elaborate, one of them said, “I don’t want to talk about it in front of your son.” After

dropping his son off at defendant’s grandmother’s house, defendant again asked what had

happened. Defendant testified that they replied that she “got crazy with them, and they

f…ed her up.” When defendant again asked them to elaborate, they replied, “Don’t

worry about it.” Defendant became worried and fled to Mexico, but returned the next

day and went to the police after learning that he was being sought in connection with

Nakatani’s death.

2. Murder of Mario Orellano and Attempted Murder of Sergio Medina

a. Prosecution Evidence

On October 11, 1996, Ralph Benevente, along with his friends Mario Orellano,

Sergio Medina, and twin brothers Aaron and Salvador Cervantes, were out for the

evening in Benevente’s car. Shortly before midnight, the five men were at a gas station

on Francisquito Avenue in Baldwin Park. The gas station was well lit, and there were a

number of other people there. Benevente and Medina testified that they saw an old,

“beat-up,” red or maroon car drive past the gas station. The car stopped, and defendant

got out of the passenger’s seat to stare at, or “mad dog,” Orellano. The red car drove

away, and Benevente became nervous and asked Orellano to get in his car. Benevente

moved his car so that it was between the gas station’s office area and the gas pumps.

Benevente and Medina then saw the red car return and saw defendant jump out of the

passenger side of the vehicle with an AK-47-type assault rifle and fire six shots. Medina

was shot three times, once in his back, and once in each leg. Medina spent a week and a

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half in the hospital, and was confined to bed for three months. Orellano was shot in his

abdomen, which caused him to bleed to death internally.

Benevente identified defendant as the person who initially got out of the red car and

stared at Orellano, and identified him as the shooter in a photo lineup, a corporeal lineup,

and at defendant’s preliminary hearing. He noted that defendant’s appearance had

changed in that his mustache was thicker at the time of trial. Medina, who initially did

not wish to cooperate with police out of concern for his safety, ultimately identified

defendant as the shooter in the photo and corporeal lineup. Medina also noted that

defendant’s appearance changed from the photo lineup to the corporeal lineup in that

defendant’s hair was longer and his mustache might have been larger, although his face

appeared the same.

Salvador and Aaron Cervantes, members of the Varrio 213 gang, did not wish to

identify defendant, and Salvador feared reprisal. The Cervantes brothers noted that the

artist’s sketch and the photograph of defendant shown in the photo lineup looked like the

shooter. The brothers refused to participate in a corporeal lineup.

On December 15, 1997, as defendant was being moved out of the general prison

population, Deputy Sheriff Thomas Garcia searched defendant’s property and found a

number of “kites,” which are notes that inmates illegally pass to other inmates or to

individuals outside of prison while incarcerated. Deputy Garcia did not “go into detail”

in his search of defendant’s property; once he discovered the contraband, he packed all of

the notes into the folder in which they were found and called his colleague to pick up the

documents.

Among the “kites” were notes identifying Benevente as the “main rata,” and

identifying Benevente, Medina, and Salvador and Aaron Cervantes by name and by age.

One of the notes identified Benevente’s vehicle and license plate number; another

indicated that Benevente had “identified [defendant] at a lineup.” One note contained

Salvador Cervantes’s address and a map to Benevente’s home. Another note referred to

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Benevente’s car, included his address, and directed the recipient of the note to “solve this

problem.” Defendant refused to give a full handwriting exemplar and refused to write

Ralph Benevente’s name. A handwriting expert confirmed that the kites were likely

written by the same person, but could not identify that person as defendant because the

exemplar defendant provided was of limited utility.

A search of defendant’s home revealed a box of papers and photographs depicting

gang members. Gang expert Deputy Sheriff Scott Lusk testified that he had known

defendant for eight years as a member of the Puente 13 gang, and he had had several

dozen conversations with defendant over the eight-year period preceding defendant’s

trial. Defendant, known as “Dinky,” was a member of the Perth clique of the Puente 13

gang, and his tattoos affiliated him both with the gang and with the clique. One of the

kites found in defendant’s possession was signed, “Dinky G., LaPuente 13.” Deputy

Lusk testified that someone who was trying to distance himself from a gang would not

sign kites with his gang moniker and gang name, as defendant had done.

b. Defense Evidence

On October 11, 1996, defendant was staying with his sister, Pam Gutierrez, about

two or three miles away from the gas station where the shooting occurred. That evening,

defendant’s family celebrated defendant’s son’s third birthday, although defendant was

prevented from attending the celebration by a court order. Defendant’s cousin, Michael

Ramirez, attended the party, and then went to visit defendant around 10:00 p.m. Ramirez

stayed with defendant until about 12:30 a.m. on October 12, 1996, and did not see

defendant leave the house, although Ramirez left once to buy beer shortly after arriving at

the house. Ramirez signed a declaration prepared by defendant’s father outlining his

recollection of seeing defendant on October 11, 1996. In his declaration, Ramirez stated

that defendant did not have a mustache in October of 1996, although he testified at trial

that he was not really sure.

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Benevente, Medina, and Salvador and Aaron Cervantes all testified that the shooter

had a mustache. Benevente and other witnesses assisted police with preparing a

composite sketch of the shooter; all witnesses involved in preparing the sketch believed

that the shooter had hair on his head, while two witnesses who did not participate in

preparing the sketch recalled that the shooter was bald. In defendant’s booking

photograph taken on October 3, 1996 in connection with the murder of Nakatani,

defendant did not have a mustache. Defendant testified that it takes him “a month and [a]

half, [or] two months” to grow a mustache. The photograph of defendant included in the

photo lineup was taken in 1992 and depicted him with a mustache, but his more recent

booking photograph depicted him without a mustache.

C. Penalty Phase

1. Prosecution Evidence

The People presented evidence that defendant had two prior arrests for assaulting

Nakatani. In the first incident, defendant punched Nakatani in the side of her head, threw

her to the ground, and threatened to kill a member of her family after she refused to have

sex with him. Nakatani subsequently claimed she lied about this incident, and defendant

pled guilty to a misdemeanor violation of section 273.5, inflicting corporal injury on a

cohabitant. Several months later, defendant was arrested after assaulting Nakatani. The

People also presented evidence that defendant, while incarcerated, punched another

inmate in the head while the inmate covered up defensively. Defendant refused to stop

when ordered to do so, and had to be physically subdued.

The People presented victim-impact evidence. Nakatani’s brother testified that he

had been with her the night she died in the hospital, that her death was traumatic, and he

thought about her every day. Nakatani’s sister, Kim Pinto, testified that she and

Nakatani had been very close, and Nakatani’s son was the same age as Pinto’s youngest

child. Pinto testified that Nakatani’s son had been a normal child before his mother’s

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murder, but following her death the boy became angry and aggressive, had nightmares,

was afraid to go to sleep, was quick-tempered, and was very emotional. Pinto testified

that Nakatani’s mother became very depressed after her daughter’s death, and that

Nakatani’s father could not eat or sleep following Nakatani’s death and that he quit

working one week after her death and died of a heart attack six months later.

Orellano’s father testified that Orellano was a good child and did not get into trouble

with the law. Orellano’s brother testified that he was in shock and his job performance

was impacted by his brother’s death.

2. Defense Evidence

A number of people testified on defendant’s behalf. Defendant’s father testified that

he had provided defendant with a stable family, ensured that defendant received good

educational opportunities, and ensured that he graduated from high school. Defendant’s

father testified that he believed defendant would take direction from authority figures if

imprisoned, and that although defendant had chosen gang life, he would “have to find

himself again,” which he would be able to do if imprisoned.

Defendant’s Little League Baseball coach testified that defendant had been a good

worker. Robert Alderete, defendant’s godfather, testified that defendant had received a

religious upbringing. Alderete testified that he believed defendant would do well in

prison, and that he could be a credit to the institution because he would help others while

incarcerated. Margaret Alderete, defendant’s godmother, testified that defendant had

received a wonderful education, had good role models like his godparents, understood his

religion, and knew right from wrong.

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II. DISCUSSION

GUILT PHASE

A. Denial of Marsden Motion

Defendant contends that the trial court failed to conduct a sufficient inquiry under

this court’s holding in People v. Marsden (1970) 2 Cal.3d 118 (Marsden), and

erroneously denied his motion to substitute counsel in violation of his right to counsel

under the Sixth Amendment to the United States Constitution. At defendant’s pretrial

conference on January 15, 1998, defendant requested and received a Marsden hearing.

Defendant claimed that appointed counsel, Antonio J. Bestard, had failed to thoroughly

interview defendant prior to a January 15, 1998 trial-setting conference, had not

communicated adequately with defendant, had not explained to defendant the manner in

which he would seek the return of materials confiscated from defendant’s jail cell, had

responded to defendant’s request to file a motion for a change of venue by telling

defendant that he was “not O.J. Simpson,” and had told the prosecutor that this case was

not like his last one, which had involved the strangulation murder of the defendant’s

mother.

Bestard responded to defendant’s allegations, explaining that although he had been

appointed only one month prior to the pretrial conference, he had begun to familiarize

himself with the voluminous record, had interviewed defendant, accepted defendant’s

collect telephone calls, and had spoken on numerous occasions with defendant and

members of defendant’s family. With respect to the documents confiscated from

defendant’s jail cell, Bestard had explained several times to defendant’s sister that he

could not seek the return of the documents without the court’s permission, and it was

unlikely that the court would grant that permission. Counsel also explained that his

comment to the prosecutor related to the complexity of the case and certainly was not

intended to be a joke, as defendant contended.

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“As we have stated, ‘a Marsden hearing is not a full-blown adversarial proceeding,

but an informal hearing in which the court ascertains the nature of the defendant’s

allegations regarding the defects in counsel’s representation and decides whether the

allegations have sufficient substance to warrant counsel’s replacement.’ (People v. Hines

(1997) 15 Cal.4th 997, 1025.)” (People v. Alfaro (2007) 41 Cal.4th 1277, 1320.) As

defendant admits, there is no absolute right to substitute counsel. (Marsden, supra,

2 Cal.3d at p. 123.) A trial court is required to substitute counsel “ ‘in a situation where

the record clearly shows that the first appointed counsel is not adequately representing

the accused.’ ” (Ibid.) Alternatively the trial court must substitute counsel where it is

demonstrated that counsel and defendant are embroiled in an irreconcilable conflict.

(People v. Abilez (2007) 41 Cal.4th 472, 488.) The decision to substitute counsel is

within the discretion of the trial court; this court will not find an abuse of discretion

unless the trial court’s failure to substitute counsel would “ ‘ “substantially impair” the

defendant’s right to effective assistance of counsel.’ ” (Ibid.)

Here, we conclude that the trial court made a proper inquiry and did not abuse its

discretion by concluding that it was unnecessary to substitute counsel. Defendant

primarily asserts that the trial court failed to make an appropriate inquiry under Marsden,

which requires that a trial court “listen[] to [a defendant’s] reasons for requesting a

change of attorneys.” (Marsden, supra, 2 Cal.3d at p. 123.) Here, the trial court did just

that — the trial court asked defendant to list the grounds upon which he believed Bestard

had provided inadequate representation and the grounds upon which he believed that

there was an irreconcilable conflict with counsel. Defendant listed his concerns with

counsel, and the trial court then asked Bestard to respond. Counsel provided a thorough

response to the concerns raised by defendant. Defendant was given an opportunity to

respond, and the trial court then denied defendant’s motion finding that representation

was adequate. We conclude that the trial court made an adequate inquiry as to the

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existence of a conflict between defendant and counsel, and as to the adequacy of

Bestard’s representation.

Defendant contends that trial counsel’s representation was inadequate because,

defendant alleges, Bestard failed to consult with defendant, failed to make “critical

motions,” and lacked preparation. Defendant cites Bland v. California Dept. of

Corrections (9th Cir. 1994) 20 F.3d 1469, 1477 (overruled in part on other grounds,

Schell v. Witek (9th Cir. 2000) 218 F.3d 1017) (Bland) for the proposition that inadequate

preparation implies that there exists an irreconcilable conflict between a defendant and

his attorney. In Bland, defense counsel spent only 15-20 minutes with defendant prior to

trial, failed to prepare defendant to take the witness stand, and failed to investigate

exculpatory eyewitnesses. (Bland, supra, 20 F.3d at p. 1477.) There is no evidence here

that Bestard was not fully prepared for trial; defendant objects only to the amount of time

counsel spent with him prior to the January 15, 1998 pre-trial conference. Most

significantly, however, the Bland court held that the trial court violated the defendant’s

Sixth Amendment right by failing to make a proper inquiry after defendant requested that

counsel be substituted. (Bland, supra, 20 F.3d at p. 1477.) Here, as previously

discussed, the trial court immediately and properly inquired as to the adequacy of

representation and potential existence of a conflict; accordingly, defendant’s reliance on

Bland is unavailing.

Defendant alleges that counsel’s failure to file a motion for a change of venue

constituted inadequate representation requiring substitution of counsel. Not so. Certainly

defense counsel could have been more artful in explaining to defendant why he believed

that filing a motion for change of venue would be unsuccessful. However, defense

counsel’s decision not to file a motion he believes will be futile does not “ ‘ “substantially

impair” . . . defendant’s right to effective assistance of counsel.’ ” (People v. Abilez,

supra, 41 Cal.4th at p. 488; see People v. Memro (1995) 11 Cal.4th 786, 834 [“The Sixth

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Amendment does not require counsel ‘ “to waste the court’s time with futile or frivolous

motions.” ’ [Citations.]”].)

Finally, defendant contends that even if a conflict did not exist prior to the Marsden

hearing, a conflict arose at the hearing because trial counsel took an “adversary position.”

There is no evidence in the record that Bestard took such a position; to the contrary,

defense counsel was given an opportunity to describe the scope of his representation at

the Marsden hearing, and following defendant’s response, the trial court reasonably

concluded that no substitution of counsel was necessary. Because we conclude that

defendant was not denied his Sixth Amendment right to counsel, reversal is not

warranted.

B. Dismissal of Prospective Juror Following Contact with Prosecution

Witness

Kim Pinto, Nakatani’s sister and a witness for the People, observed jury selection in

which her coworker, F.K., was a prospective juror. The next day, Pinto approached F.K.

at work and told him that defendant “killed my sister. And if that’s not enough, after that,

he killed someone else. That’s my case. And we have been waiting for a year to get it.”

Pinto then told F.K. that he would likely be excused because he knew her. Prospective

Juror F.K. informed the court later that evening of the conversation he had with Pinto.

The court admonished Pinto for her communication with F.K., heard testimony from

Prospective Juror F.K. regarding his communication with Pinto, and excused Prospective

Juror F.K. Defendant did not object to Prospective Juror F.K.’s excusal.3 Defendant


3

Defense counsel initially expressed “concern” that “this particular juror had some

positive answers on his questionnaire that were favorable to the defendant” and that he
was “denied access to a juror . . . that may have been favorable to” defendant. The court
replied that “the juror may be unfavorable” to defendant, and defense counsel stated, “I
also agree, that’s true, too.” Defense counsel thereafter did not object, and the court
excused Prospective Juror F.K. Defendant then requested a new panel of prospective
jurors because of “the tampering with this particular jury.” The court concluded that

(footnote continued on next page)

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now claims that dismissing Prospective Juror F.K. violated his right to a fair trial under

the Sixth and Fourteenth Amendments to the United States Constitution. We disagree.

By failing to object, defendant forfeited his claim that the trial court erred in

excusing Prospective Juror F.K. for cause. (People v. Holt (1997) 15 Cal.4th 619, 658.)

Assuming that defendant had preserved this claim on appeal, we conclude that the trial

court did not err. A trial court may excuse a prospective juror for “[a]ctual bias,” which

is defined as “the existence of a state of mind on the part of the juror in reference to the

case, or to any of the parties, which will prevent the juror from acting with entire

impartiality, and without prejudice to the substantial rights of any party.” (Code Civ.

Proc., § 225, subd. (b)(1)(C); Pen. Code, § 1046 [“Trial juries for criminal actions are

formed in the same manner as trial juries in civil actions.”].) “The term ‘actual bias’ may

include a state of mind resulting from a juror’s actually being influenced by extraneous

information about a party.” (People v. Nesler (1997) 16 Cal.4th 561, 581.) F.K. knew a

witness in the case, Pinto, by sight because they worked in the same location. Pinto told

F.K. that defendant had killed her sister and killed another person as well. The trial court

did not abuse its discretion in concluding that F.K.’s business relationship with Pinto and

Pinto’s statement would “prevent the juror from acting with entire impartiality.” (Code

Civ. Proc., § 225, subd. (b)(1)(C).)

Defendant argues that the trial court’s excusal of Prospective Juror F.K. was

improper because a trial court is obliged to conduct a hearing once a juror’s competence

is called into a question. (See People v. Farnam (2002) 28 Cal.4th 107, 140-141 [when

trial court is on notice that cause may exist to discharge a juror, the court must conduct a

reasonable inquiry to determine if the juror should be discharged].) Here, the trial court


(footnote continued from previous page)

contact with one prospective juror did not amount to tampering and denied defendant’s
motion.

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conducted an inquiry after it was made aware of Pinto’s contact with F.K., which

consisted of hearing argument from defense counsel and the prosecutor as to how to

proceed, questioning Prospective Juror F.K. regarding the conversation he had with

Pinto, and providing defense counsel and the prosecutor with an opportunity to question

Prospective Juror F.K. regarding his conversation with Pinto.

Defendant nonetheless asserts that the trial court erred by failing to ask the

prospective juror whether he could remain impartial and unbiased following his

encounter with Pinto, and by failing to remind the prospective juror of his obligation to

follow the court’s instructions and decide the case on the law and evidence alone.

Defendant cites three cases, in which, unlike the case at bar, the trial court learned of

potential juror prejudice but failed to conduct a hearing or conducted a woefully

inadequate hearing to ascertain whether there was actual prejudice. (See People v.

Compton (1971) 6 Cal.3d 55, 59-60 [no hearing]; People v. Chavez (1991) 231

Cal.App.3d 1471, 1479 [no hearing]; People v. McNeal (1979) 90 Cal.App.3d 830, 837-

838 [inadequate hearing consisting of brief inquiry of foreman and of juror, without

adequate clarifying questions asked of juror].) Moreover, each of the three cases

involved an impaneled jury, whereas the trial court in the present case excused

Prospective Juror F.K. prior to final selection of a jury.

Unlike the three cases upon which defendant relies, the trial court conducted a

thorough hearing. The trial court heard argument from counsel, questioned F.K., and

permitted the parties to question F.K. prior to dismissing him. Defendant asserts that the

trial court in People v. Collins (1976) 17 Cal.3d 687, 696, “did it right” when it

conducted an “extensive hearing” before discharging a juror. In People v. Collins, the

trial court dismissed a juror after questioning her regarding her impartiality; here, the trial

court conducted an even more extensive evaluation of the prospective juror’s ability to

serve by questioning him regarding his encounter with Pinto, permitting counsel to

question him, and hearing argument from counsel. As defendant noted, the trial court in

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People v. Collins “did it right;” here, the trial court also “did it right” by conducting a

more thorough inquiry than the one conducted in People v. Collins.

Defendant cites no authority that requires a trial court to ask a potential juror

whether he or she could remain impartial and unbiased before excusing the potential juror

for cause. The court permitted defense counsel to question F.K., which gave defendant

an opportunity to so inquire if he wished. The trial court properly could have concluded

that F.K.’s business relationship with Pinto and her statement to F.K. established that

F.K. was actually biased had he assured the court he would attempt to be impartial.

Accordingly, here, even if the trial court’s exercise of its broad discretion to excuse a

prospective juror was erroneous, which it was not, any such error does not warrant

reversal.

C. Precluding Cross-examination of Kim Pinto

Defendant argues that the trial court violated his Sixth Amendment right to confront

witnesses and abused its discretion under Evidence Code section 352 by denying his

motion to cross-examine Pinto regarding her conversation with Prospective Juror F.K. to

establish her bias or prejudice against defendant. Defendant also sought to cross-examine

Pinto in an effort to show that the district attorney engaged in discriminatory enforcement

by prosecuting members of defendant’s family for witness tampering, while failing “to

pursue [Pinto] just as vigorously as [it] pursued” the members of defendant’s family. The

court denied defendant’s motion, ruling that defendant could not use Pinto’s conversation

with a prospective juror “as a way to catapult some unrelated event to cloud the issues in

this case.”

We conclude that the trial court did not err by denying defendant’s motion. While a

defendant’s confrontation right includes the right to cross-examine adverse witnesses

regarding bias or prejudice, the right is not absolute. (People v. Quartermain (1997)

16 Cal.4th 600, 623.) As the trial court did here, a court may restrict cross-examination

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based upon the factors articulated in Evidence Code section 352. (People v.

Quartermain, supra, 16 Cal.4th at p. 623.) A trial court has the discretion to exclude

otherwise admissible “evidence if its probative value is substantially outweighed by the

probability that its admission will (a) necessitate undue consumption of time or (b) create

substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

(Evid. Code, § 352.) We review a trial court’s ruling under Evidence Code section 352

for abuse of discretion. (People v. Jablonski (2006) 37 Cal.4th 774, 805.)

The trial court did not abuse its discretion by excluding evidence regarding Pinto’s

communications with a prospective juror. Defendant cross-examined Pinto regarding her

relationship to Nakatani, her relationship to her nephew, and the ongoing custody battle

between defendant’s family and Nakatani’s family over defendant’s son. The subjects

upon which Pinto was cross-examined amply demonstrated Pinto’s potential bias against

defendant. The trial court did not abuse its discretion by concluding that additional cross-

examination regarding Pinto’s conversation with a prospective juror would “cloud the

issues” and was therefore inadmissible under Evidence Code section 352.

D. Spontaneous Statement

The trial court granted the People’s motion to introduce, over defendant’s

objections, the out-of-court statement of defendant’s son implicating defendant in

Nakatani’s death. At trial, Pinto testified that while she and defendant’s three-year-old

son were driving to her mother’s house on December 7, 1996, approximately two months

following the death of Nakatani, Pinto told the child that they were going to the cemetery

to visit his mother’s grave. In response, defendant’s son told Pinto, “I’m going to untie

my mommy.” Pinto asked the boy “who told him that,” and he replied that “his daddy

and his mean friend tied up his mommy.” The child made a tying motion with his hands

and pointed at his neck while making this statement. The boy stated that he hit

17

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defendant, told defendant to stop, and defendant carried him upstairs. While making his

statement, the child was crying, and “scrunching up his face like he was angry.”

Pinto testified that two days after the child made the statement regarding his mother,

she reported it to Detective Aquino, and Detective Aquino interviewed her and the boy in

person shortly thereafter. Detective Aquino testified at a hearing to determine whether

the statement was admissible,4 and corroborated Pinto’s account that she called him to

report the child’s statement, and that he interviewed her in person a few weeks later.

Defendant objected that his son’s statements were inadmissible hearsay; the trial court

overruled defendant’s objection, ruling that Pinto’s statement was corroborated by

Detective Aquino’s recollection of the incident, and Pinto’s testimony regarding

defendant’s son’s hearsay statement fell “within the parameter of the [spontaneous

declaration] exception of the hearsay rule” and was admissible.5

On appeal, defendant argues that the admission of the child’s hearsay statement

violated his right to a fair trial, his right to confront witnesses under the Sixth


4

Evidence Code section 402 provides, in pertinent part, that “[t]he court may hear

and determine the question of the admissibility of evidence out of the presence or hearing
of the jury . . . .”

5

Defendant made two other objections at trial, neither of which he raises on appeal.

First, defendant objected that Pinto’s testimony describing his son’s interaction with
Pinto’s children prior to Nakatani’s death lacked foundation because Pinto was not
familiar with the boy’s actions prior to his mother’s death. The trial court overruled
defendant’s objection, and Pinto testified that she was familiar with defendant’s son’s
behavior with her children both prior to and following Nakatani’s death. Second,
defendant objected that Pinto’s description of the boy as appearing angry when
describing what happened to Nakatani was speculative. The court overruled defendant’s
objection, concluding that Pinto’s characterization of the boy’s state of mind was
admissible under Evidence Code section 800. Evidence Code section 800 provides, “If a
witness is not testifying as an expert, his testimony in the form of an opinion is limited to
such an opinion as is permitted by law, including but not limited to an opinion that is: [¶]
(a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear
understanding of his testimony.”

18

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Amendment to the United States Constitution, as well as his right to due process pursuant

to the Fourteenth Amendment to the United States Constitution. We note that although

defendant did not raise federal constitutional objections to the admission of his son’s

testimony at trial, he did not forfeit those claims on appeal. Where “it appears that (1) the

appellate claim is the kind that required no trial court action to preserve it, or (2) the new

arguments do not invoke facts or legal standards different from those the trial court was

asked to apply, but merely assert that the trial court’s act or omission, in addition to being

wrong for reasons actually presented to that court, had the legal consequence of violating

the Constitution[,] . . . defendant’s new constitutional arguments are not forfeited on

appeal. (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17 (Boyer), applying People v.

Partida (2005) 37 Cal.4th 428, 433-439.)” (People v. Carasi (2008) 44 Cal.4th 1236,

1289, fn.15.)

A statement may be admitted, though hearsay, if it describes an act witnessed by the

declarant and “[w]as made spontaneously while the declarant was under the stress of

excitement caused by” witnessing the event. (Evid. Code, § 1240.) “ ‘To render

[statements] admissible [under the spontaneous declaration exception] it is required that

(1) there must be some occurrence startling enough to produce this nervous excitement

and render the utterance spontaneous and unreflecting; (2) the utterance must have been

before there has been time to contrive and misrepresent, i.e., while the nervous

excitement may be supposed still to dominate and the reflective powers to be yet in

abeyance; and (3) the utterance must relate to the circumstance of the occurrence

preceding it.’ [Citations.]” (People v. Poggi (1988) 45 Cal.3d 306, 318 (Poggi).)

Spontaneous statements are deemed sufficiently trustworthy to be admitted into evidence

because “ ‘ “in the stress of nervous excitement the reflective faculties may be stilled and

the utterance may become the unreflecting and sincere expression of one’s actual

impressions and belief.” ’ [Citation.]” (Ibid.)

19

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In Poggi, a police officer responding to a call found the victim about 30 minutes

after she had been stabbed “in a very excited state, with blood flowing from her mouth

. . . apparently attempting to recount what had happened to her but was rambling and

incoherent.” (Poggi, supra, 45 Cal.3d at p. 315.) In response to the officer’s questioning,

the victim described the crime while paramedics attempted to treat her wounds. (Id.

at p. 316.) The victim later died from her injuries. (Ibid.) This court affirmed the trial

court’s ruling that the victim’s statements were admissible as spontaneous statements,

stating that “[w]hether the requirements of the spontaneous statement exception are

satisfied in any given case is, in general, largely a question of fact. [Citation.] The

determination of the question is vested in the court, not the jury. [Citation.] In

performing this task, the court ‘necessarily [exercises] some element of discretion . . . .’

[Citation.]” (Id. at p. 318.)

The defendant in Poggi argued that the statements were not spontaneous because

they were made about 30 minutes following the attack in response to questioning. We

held the trial court did not abuse its discretion: “First, although [the victim] made the

statements at issue about 30 minutes after the attack, it is undisputed that she was still

under its influence. Second, it is also undisputed that she remained excited as she made

the statements, even though she had become calm enough to speak coherently . . . .”

(Poggi, supra, 45 Cal.3d at p. 319.) Thus, although the lapse of time between the

underlying event and the statement describing it is relevant, a statement remains

spontaneous “ ‘if it nevertheless appears that [the statement was] made under the stress of

excitement and while the reflective powers were still in abeyance.’ ([People v.

Washington (1969)] 71 Cal.2d [1170,] 1176.)” (Poggi, supra, 45 Cal.3d at p. 319, italics

omitted.) The amount of time that passes between a startling event and subsequent

declaration is not dispositive, but will be scrutinized, along with other factors, to

determine if the speaker’s mental state remains excited.

20

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Here, defendant argues that the child’s statement did not satisfy the requirements of

a spontaneous declaration because the child’s ability to reflect and fabricate had returned

by the time he made the statement, and the statement failed to describe the event

immediately preceding it. We agree. The word “spontaneous” as used in Evidence Code

section 1240 means “actions undertaken without deliberation or reflection. . . . [T]he

basis for the circumstantial trustworthiness of spontaneous utterances is that in the stress

of nervous excitement, the reflective faculties may be stilled and the utterance may

become the instinctive and uninhibited expression of the speaker’s actual impressions and

belief.” (People v. Farmer (1989) 47 Cal.3d 888, 903, overruled on another point in

People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.)

The crucial element in determining whether an out-of-court statement is admissible

as a spontaneous statement is the mental state of the speaker. (People v. Farmer, supra,

47 Cal.3d 888, 903.) “The nature of the utterance — how long it was made after the

startling incident and whether the speaker blurter it out, or example — may be important,

but solely as an indicator of the mental state of the declarant.” (Id. at pp. 903-904.) In In

re Cheryl H. (1984) 153 Cal.App.3d 1098, 1130, the Court of Appeal held that the out-of-

court statement of a three-year-old girl stating that her father had sexually abused her

one- to- two months earlier was not admissible as a spontaneous statement because the

victim was not “still ‘under the stress of excitement caused by’ the exciting event, in this

case the acts of sexual abuse.” (Fn. omitted, disapproved on other grounds by People v.

Brown (2003) 31 Cal.4th 518.) The court observed: “Frequently, statements are ruled

inadmissible under this exception even though uttered only a few minutes after the

exciting event. [Citations.] Substantially longer delays have been tolerated when the

declarant was unconscious. [Citation.] Nonetheless, nothing in the cases or underlying

theory of the ‘spontaneous exclamation’ exception would suggest the necessary level of

psychological stress could be sustained for even a few hours to say nothing of the weeks

21

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and months involved in this case.” (In re Cheryl H., supra, 153 Cal.App.3d at p. 1130,

fn. omitted.)

The trial court relied on People v. Trimble (1992) 5 Cal.App.4th 1225 (Trimble), to

find that the boy’s statement satisfied the spontaneous declaration exception to the

hearsay rule. In Trimble, the victim was last seen alive shortly after her mother returned

her to the cabin she shared with the defendant and their two children. (Id. at pp. 1228-

1229.) Two days later, the victim’s sister went to the cabin. (Id. at p. 1229.) As soon as

the defendant left the cabin, the victim’s two and one-half-year-old daughter “became

‘completely hysterical’ ” and described to her aunt how her father had stabbed her mother

nearly two days earlier. (Ibid.)

The Court of Appeal ruled that the trial court did not abuse its discretion in finding

that the child’s statements “were spontaneous rather than the product of reflection.”

(Trimble, supra, 5 Cal.App.4th at p. 1235.) The court concluded that despite “[t]he

appreciable interval between the incident and the subject statements,” the arrival of the

child’s aunt and departure of the child’s father, with whom she had been sequestered for

two days, “was a triggering event, startling enough to provoke an immediate, unsolicited,

emotional outpouring of previously withheld emotions and utterances. [Citation.]”

(Ibid.) The Trimble court relied upon the fact that, until the arrival of the child’s aunt, the

child “had no trustworthy person in whom to confide.” (Ibid.)

Trimble is distinguishable from the present case. Here, defendant’s son was

dropped off with his great-grandparents less than one hour following his departure from

Nakatani’s home, but did not immediately make the statement at issue. He stayed with

his father’s family and visited his mother’s family once every week or two following his

mother’s death. He was never confined with defendant and had ample opportunity to

confide in a relative. Unlike in Trimble, the child did not make his statement at the “first

secure opportunity for disclosure” following confinement with the assailant (Trimble,

supra, 5 Cal.App.4th at p. 1235), but rather made his statement two months later when

22

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Pinto said she was taking him to visit his mother’s grave. Although there was evidence

the boy was upset, because he was crying and “scrunching up his face like he was angry,”

there is nothing to indicate that during the two-month period following his mother’s

murder he had remained under the stress of excitement caused by witnessing the event

and that his reflective powers were still in abeyance. We therefore conclude that the trial

court abused its discretion by admitting the child’s hearsay statement.

Defendant alleges that the trial court’s erroneous admission of the boy’s hearsay

statement violated his Sixth Amendment right to confront the witnesses against him. Not

all erroneous admissions of hearsay violate the confrontation clause. (People v.

Page (2008) 44 Cal.4th 1, 48.) As the high court held in Crawford v. Washington (2004)
541 U.S. 36 (Crawford), “[t]he confrontation clause ‘applies to “witnesses” against the

accused — in other words, those who “bear testimony.” [Citation.] “Testimony,” in turn,

is typically “[a] solemn declaration or affirmation made for the purpose of establishing or

proving some fact.” [Citation.]’ ” (People v. Page, supra, 44 Cal.4th at p. 48, quoting

Crawford, supra, 541 U.S. at p. 51.) Only the admission of testimonial hearsay

statements violate the confrontation clause — unless the declarant is unavailable and the

defendant had a prior opportunity to cross-examine the declarant. (People v. Geier

(2007) 41 Cal.4th 555, 597.) While the high court declined to precisely define what

constitutes a “testimonial” statement, it held that, at a minimum, testimonial statements

include “prior testimony at a preliminary hearing, before a grand jury, or at a former trial;

and . . . police interrogations.” (Crawford, supra, 541 U.S. at p. 68.) The court

explained that the confrontation clause addressed the specific concern of “[a]n accuser

who makes a formal statement to government officers” because that person “bears

testimony in a sense that a person who makes a casual remark to an acquaintance does

not.” (Id. at p. 51.) The statement of a three-year-old declarant made to his aunt is more

like “a casual remark to an acquaintance” and is therefore not a testimonial statement

under Crawford. (See People v. Griffin (2004) 33 Cal.4th 536, 579, fn. 19 [out-of-court

23

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statement made to a friend at school does not constitute “testimonial hearsay” under

Crawford].) Thus, admission of the child’s hearsay statement did not violate defendant’s

Sixth Amendment right to confront witnesses.

Defendant alleges that the trial court’s erroneous admission of the boy’s hearsay

statement also violated his Fourteenth Amendment right to due process, but fails to

provide authority for this proposition, other than his bare assertion that the statement

lacked particularized guarantees of trustworthiness. Defendant also fails to explain how a

statement’s lack of trustworthiness violates the Fourteenth Amendment’s due process

guarantee. Defendant is unable to establish a federal constitutional violation;

accordingly, we analyze the trial court’s error under the test articulated in People v.

Watson (1956) 46 Cal.2d 818, 836 to “evaluate whether ‘it is reasonably probable that a

result more favorable to [defendant] would have been reached in the absence of the

error.’ ” (People v. Page, supra, 44 Cal.4th at p. 42, quoting People v. Watson, supra,

46 Cal.2d at p. 836.)

Defendant argues that the child’s hearsay statement was the only “testimony placing

[defendant] inside Nakatani’s apartment at the time of her death and as an active

participant in her death.” The People argue, on the other hand, that there was ample

circumstantial evidence of defendant’s guilt, including defendant’s statement that he had

to do what was best for his son, his threats to Nakatani’s siblings that they would be

“next,” his story that he left Nakatani’s home moments before her murder, and his

attempts to falsify an alibi, all of which may have been believed by the jury. The People

also argued that the jury could find defendant guilty as an aider and abettor, and the trial

court so instructed the jury.

Although defendant is correct that the boy’s testimony provided the only direct

evidence implicating defendant in the murder, defendant fails to acknowledge the profuse

circumstantial evidence of defendant’s guilt. Absent the child’s hearsay testimony, it is

possible that a jury could have believed defendant’s testimony regarding the event — that

24

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he went to Nakatani’s home accompanied by two men whom he refused to identify,

engaged in a brief altercation with Nakatani, and returned to the car with his son while

his two unnamed cohorts quickly killed Nakatani unbeknownst to him — and found him

innocent. However, we need not conclude that it is reasonably probable that the jury

would have returned a verdict more favorable to defendant absent the child’s testimony

because the jury did not find defendant guilty of first degree murder. Rather, the jury

found defendant guilty of second degree murder as an aider and abettor, a nearly

inescapable conclusion in light of the circumstantial evidence that defendant was in

Nakatani’s home moments before she was strangled, his jailhouse confessions that he had

to do what was best for his son, and Pinto’s testimony that he told her she had “better talk

to [Nakatani] or else he will take care of her his way.” Absent the child’s testimony, it is

more probable than not that the jury would have — and did — conclude that defendant

was guilty of second degree murder as an aider and abettor, because defendant knew

“ ‘ “the full extent of the perpetrator’s criminal purpose and [gave] aid or encouragement

with the intent or purpose of facilitating the perpetrator’s commission of the crime.” ’

[Citation.]” (People v. McCoy (2001) 25 Cal.4th 1111, 1118, quoting People v.

Prettyman (1996) 14 Cal.4th 248, 259.) Accordingly, we conclude that reversal of

defendant’s conviction is not warranted.

E. Failure to Instruct Regarding Evaluating Child Testimony

Defendant contends the trial court erred by refusing his request to instruct the jury

pursuant to CALJIC No. 2.20.1 — which guides the jury in evaluating the testimony of a

child 10 years of age or younger — because the instruction would have helped the jury

evaluate the credibility of his son’s statements introduced through Pinto’s testimony.6

6

CALJIC No. 2.20.1 provides: “In evaluating the testimony of a child [ten years of

age or younger] you should consider all of the factors surrounding the child’s testimony,
including the age of the child and any evidence regarding the child’s level of cognitive
development. A child, because of age and level of cognitive development, may perform

(footnote continued on next page)

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Defendant first contends that because Evidence Code sections 1202 and 788 permit a

party to introduce evidence to impeach a hearsay declarant’s credibility, the trial court

erred by refusing to give CALJIC No. 2.20.1 to allow the jury to assess the child’s

credibility as a hearsay declarant.

Defendant’s reliance on Evidence Code sections 1202 and 788 is misplaced. While

defendant correctly asserts that a jury may evaluate the credibility of a hearsay declarant,

defendant offered no evidence — under Evidence Code sections 1202 (declarant’s prior

inconsistent statements), 788 (declarant’s prior felony convictions), or otherwise — to

impeach the declarant’s credibility. It does not follow from the fact that a hearsay

declarant’s testimony may be impeached that the court here erred by refusing to instruct

the jury pursuant to CALJIC No. 2.20.1, which assists the jury in evaluating a child

witness’s performance on the witness stand. (See People v. Jones (1990) 51 Cal.3d 294,

315-316 [addressing Evidence Code section 1127f’s application to child witness

testifying]; People v. McCoy (2005) 133 Cal.App.4th 974, 979-980.)

Defendant also relies upon Penal Code section 1127f, which requires, at the request

of a party, that a trial court instruct the jury in language that has been incorporated into

CALJIC No. 2.20.1 when “a child 10 years of age or younger testifies as a witness.”

(Italics added.) By its terms, Penal Code section 1127f does not apply because the

declarant was not called as a witness. CALJIC No. 2.20.1 is a specific instruction that

addresses how a jury should evaluate the testimony of a child witness. Because the

requested instruction was inapplicable, we conclude that the trial court did not err by

refusing to instruct the jury pursuant to CALJIC No. 2.20.1.


(footnote continued from previous page)

differently than an adult as a witness, but that does not mean that a child is any more or
less believable than an adult. You should not discount or distrust the testimony of a child
solely because he or she is a child.” (Brackets in original.)

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Assuming for the purposes of argument that the court’s refusal to instruct the jury

pursuant to CALJIC No. 2.20.1 was erroneous, any error was harmless because the trial

court adequately instructed the jury pursuant to CALJIC No. 2.207 regarding the jury’s

duty to evaluate the believability of witnesses and the truthfulness of testimony. (People

v. Watson, supra, 46 Cal.2d at p. 836; Chapman v. California (1967) 386 U.S. 18, 24.)

CALJIC No. 2.20 allowed the jury to assess the believability of defendant’s son’s hearsay

statement; CALJIC No. 2.20.1 would not have provided guidance to the jury beyond that

provided by CALJIC No. 2.20, and may have confused the jury because the instruction

pertained specifically to the instance of a young child giving live testimony.


7

CALJIC No. 2.20 provides, “Every person who testifies under oath [or

affirmation] is a witness. You are the sole judges of the believability of a witness and the
weight to be given the testimony of each witness.

“In determining the believability of a witness you may consider anything that has a

tendency reasonably to prove or disprove the truthfulness of the testimony of the witness,
including but not limited to any of the following:

“The extent of the opportunity or ability of the witness to see or hear or otherwise

become aware of any matter about which the witness testified;

“The ability of the witness to remember or to communicate any matter about which

the witness has testified;

“The character and quality of that testimony;
“The demeanor and manner of the witness while testifying;
“The existence or nonexistence of a bias, interest, or other motive;
“The existence or nonexistence of any fact testified to by the witness;
“The attitude of the witness toward this action or toward the giving of testimony [.] [;]
“[A statement [previously] made by the witness that is [consistent] [or] [inconsistent]

with [his] [her] testimony] [.] [;]

“[The character of the witness for honesty or truthfulness or their opposites] [;]
“[An admission by the witness of untruthfulness] [;]
“[The witness' prior conviction of a felony] [;]
“[Past criminal conduct of a witness amounting to a misdemeanor] [;]
“[Whether the witness is testifying under a grant of immunity].” (Brackets in

original.)


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F. Seizure and Admission of Defendant’s Correspondence

Defendant contends that the trial court deprived him of his Sixth Amendment right

to counsel by admitting into evidence documents seized from defendant’s prison cell that

were protected by the attorney-client privilege. We disagree.

As noted above, on December 15, 1997, as defendant was being moved out of the

general prison population, Deputy Sheriff Thomas Garcia searched defendant’s property

and found a number of “kites,” which are notes inmates illegally pass to one another or to

individuals outside of the prison system. Deputy Sheriff Garcia did not “go into detail”

in his search of defendant’s property; once he discovered the contraband, he packed all of

the notes into the folder in which he found them, and called his colleague to pick up the

documents.

The prosecutor presented the documents to the trial court, and it conducted an in

camera review of the seized documents, isolated all documents that appeared to fall

within the attorney-client privilege, and sealed the remainder of the documents to protect

witnesses. On December 12, 1997, defense counsel requested that all of the seized

documents be turned over to him; the trial court denied the request, explaining that all

documents protected by the attorney-client privilege would be returned, but the remainder

of the documents would stay sealed “until 30 days prior to trial which the code would

mandate and that’s for the protection of the witnesses.”

During the pendency of defendant’s trial, the court found “there was a conspiracy

directed by this defendant to contact, intimidate and dissuade witnesses relevant to the

Mario Orrellana [sic] shooting.” “The court’s review of those documents [seized from

defendant’s cell] have convinced the court that [defendant] is not only a threat as he is in

jail, but he is a . . . continuing threat to the witnesses in this case; that he has conducted a

concerted effort to identify those witnesses, to pass the identity of those witnesses to

other individuals for the purpose of intimidation or, in fact, the court is convinced to do

them great harm and, in fact, potential threat of death to those witnesses. The court is

28

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equally convinced based upon the evidence that has been received and is under seal by

the court that the defendant has been utilizing certain members of his family in that

pursuit.” At the time of defendant’s trial, charges had been filed against defendant and

others involved in the conspiracy to intimidate witnesses, but no convictions had

occurred.

On the eve of trial, five months following the trial court’s ruling that the documents

seized from defendant’s prison cell would remain sealed, defendant generally objected to

the prosecutor’s mention of the pending witness intimidation conspiracy case that had

been filed against defendant and others. The prosecutor agreed to refrain from

specifically mentioning that “a case has been filed,” but explained that he would discuss

the existence of a conspiracy, would introduce the kites into evidence, and would call

witnesses to testify regarding the documents seized from defendant.

Three days following this agreement, defendant interrupted his cross-examination of

Deputy Garcia to request a hearing regarding the documents, contending that they were

covered by the attorney-client privilege. The court entertained defendant’s motion,

reviewed the documents, and concluded that none were protected by the attorney-client

privilege. The court invited defendant to explain why any of the documents were

privileged. Defendant declined to do so, and declined to continue his cross-examination

of Deputy Garcia. Instead, defendant requested that his motion be “reserved” until

defendant testified, but he did not raise the objection again.

“[A] confidential communication between client and lawyer” is protected by the

attorney-client privilege and may not be disclosed without the consent of the client or the

client’s representative. (Evid. Code, § 952; see id., §§ 953, 954.) Defendant claims that

the documents, largely consisting of kites seized from his cell, were privileged because

he intended to show the documents to his lawyer, or to the investigator working on his

lawyer’s behalf. This argument lacks merit, as the intent to show a document to a lawyer

does not transform a document into one covered by the attorney-client privilege. (See

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Zurich American Ins. Co. v. Superior Court (2007) 155 Cal.App.4th 1485, 1498 [“The

[attorney-client] privilege only protects disclosure of communications, it does not protect

disclosure of the underlying facts by those who communicated with the attorney.”].) An

attorney-client privileged communication is defined as “information transmitted between

a client and his or her lawyer in the course of that relationship and in confidence by a

means which, so far as the client is aware, discloses the information to no third persons

other than those who are present to further the interest of the client . . . .” (Evid. Code,

§ 952.) Thus, a client’s intent to communicate with his or her lawyer does not render the

subject of that communication privileged; the rule requires that “information [be]

transmitted.” (Evid. Code, § 950; see Zurich American Ins. Co. v. Superior Court, supra,

155 Cal.App.4th at p. 1498.)

We review a trial court’s conclusion that a document is admissible and not subject

to the attorney-client privilege to determine whether it is supported by substantial

evidence. (People v. Gionis (1995) 9 Cal.4th 1196, 1208.) “On appeal, the scope of

judicial review is limited. ‘When the facts, or reasonable inferences from the facts, shown

in support of or in opposition to the claim of privilege are in conflict, the determination of

whether the evidence supports one conclusion or the other is for the trial court, and a

reviewing court may not disturb such finding if there is any substantial evidence to

support it [citations].’ (D.I. Chadbourne, Inc. v. Superior Court[ (1964)] 60 Cal.2d [723,]

729.)” (People v. Gionis, supra, 9 Cal.4th at p. 1208.)

The trial court twice concluded that the kites ultimately admitted into evidence

contained no privileged materials. The trial court invited defendant to seek writ review

of its initial ruling, which defendant declined to do. The trial court then considered and

rejected defendant’s contention that the documents were privileged, and invited

defendant to point to a specific document that was privileged. Again, defendant declined

the trial court’s invitation, and “reserved” his objection, although he never again renewed

it. By failing to press the court for a ruling, defendant forfeited this claim. (People v.

30

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Richardson (2008) 43 Cal.4th 959, 1017, fn. 20; People v. Lewis (2008) 43 Cal.4th 415,

482.) In light of the trial court’s review of the documents and defendant’s inability to

articulate why any of the documents were privileged, we conclude that substantial

evidence supports the trial court’s conclusion that the documents are not protected by the

attorney-client privilege.

G. Admission of Testimony Regarding Defendant’s Gang Affiliation and

Intent to Kill

Defendant contends that the trial court violated his right to a fair trail by admitting

the expert testimony of Deputy Sheriff Scott Lusk. Defendant argues that Deputy Lusk’s

testimony regarding defendant’s affiliation with the Puente 13 gang was cumulative and

unduly prejudicial, that his testimony regarding the notes found in defendant’s cell was

irrelevant and prejudicial, and that his testimony regarding prior crimes committed by the

Puente 13 gang was irrelevant, prejudicial, and constituted improper propensity evidence.

With one exception, defendant failed to object upon the grounds specified on appeal, and

has therefore forfeited these claims.8 (People v. Partida (2005) 37 Cal.4th 428, 438.)

Even if defendant had properly objected to the introduction of Deputy Lusk’s testimony,

we conclude that the trial court did not abuse its discretion by admitting Deputy Lusk’s

testimony regarding defendant’s affiliation with the Puente 13 gang, the gang’s prior

crimes, and the notes found in defendant’s cell. (See People v. Hoyos (2007) 41 Cal.4th

872, 898 [trial court’s evidentiary rulings reviewed for abuse of discretion].)

Deputy Lusk, an 18-year veteran of the Los Angeles County Sheriff’s Department,

testified as a gang expert that he had approximately nine years of experience as a gang

detective with the Operation Safe Streets unit of the Los Angeles County Sheriff’s


8

Defendant objected on grounds of relevance to Deputy Lusk’s testimony regarding

a 1990 attempted murder involving the Puente 13 gang. As addressed below, although
this claim is not forfeited, we nonetheless reject defendant’s argument that the trial court
erred by admitting the testimony.

31

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Department Industry Station. Deputy Lusk testified that he had experience with the

Puente 13 gang, with which defendant was affiliated, and he had had several dozen

conversations with defendant over the eight-year period preceding defendant’s trial.

Deputy Lusk testified that defendant, known as “Dinky,” was a member of the Perth

clique of the Puente 13 gang, and that his tattoos affiliated him both with the gang and

with the clique. Deputy Sheriff Lusk testified that the Puente 13 gang’s primary purpose

was to commit crimes, and described the types of crimes committed by the gang,

including an attempted murder in 1990 and a robbery in 1991. Neither crime involved

defendant. Deputy Lusk testified that the crimes were committed to enhance the

reputation of the Puente 13 gang, and to enhance the reputations of the gang members

convicted of committing the crimes. Defendant failed to object to Deputy Lusk’s

testimony regarding defendant’s affiliation with the Puente 13 gang, and objected only

once, based upon relevance, to Deputy Lusk’s testimony regarding the 1990 attempted

murder.

Deputy Lusk also interpreted the kites found in defendant’s jail cell. Deputy Lusk

explained that the notes concerned individuals planning to testify in defendant’s trial, and

that one note in particular meant that an individual should be prevented from testifying

using any means necessary, “from talking to — to the person all the way up to killing

him, if necessary.” Defendant twice objected during Deputy Lusk’s testimony regarding

the notes — arguing that the evidence was speculative and cumulative — but failed to

object based on relevance, prejudice, or that the testimony constituted improper

propensity evidence.

The trial court cautioned the jury that it was permitted to consider Deputy Lusk’s

testimony only in connection with the allegation that the murder of Orellano and

attempted murder of Medina were committed for the benefit of the Puente 13 gang with

the intent to promote or assist the gang pursuant to section 186.22. The trial court then

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asked, the jury, “Does everyone understand that?” The jurors answered collectively in

the affirmative.

We conclude that the trial court did not abuse its discretion by admitting Deputy

Lusk’s testimony for its limited purpose. “ ‘A court abuses its discretion when it acts

unreasonably under the circumstances of the particular case.’ ” (People v. Panah (2005)

35 Cal.4th 395, 426.) Here, the trial court could have reasonably concluded that evidence

regarding defendant’s affiliation with the Puente 13 gang, the gang’s prior criminal

activities, and the notes found in defendant’s cell were relevant with respect to the gang

enhancement allegation, and were not unduly prejudicial or cumulative because the

evidence related only to the enhancement allegation and not the underlying charged

crimes.

Punishment for a crime may be enhanced when the crime is “committed for the

benefit of, at the direction of, or in association with any criminal street gang, with the

specific intent to promote, further or assist in any criminal conduct by gang members.”

(§ 186.22, subd. (b)(4); see People v. Hernandez (2004) 33 Cal.4th 1040, 1044.) To

establish a gang enhancement, a prosecutor must prove facts beyond the elements of the

underlying offense. (People v. Hernandez, supra, 33 Cal.4th at p. 1044.) “Accordingly,

when the prosecution charges the criminal street gang enhancement, it will often present

evidence that would be inadmissible in a trial limited to the charged offense.” (Ibid.) To

prove the gang enhancement, the prosecution may introduce expert testimony regarding

street gangs. (Id. at pp. 1047-1048.)

Here, the trial court admitted Deputy Lusk’s testimony about defendant’s affiliation

with the Puente 13 gang, and regarding the notes found in defendant’s cell. This

evidence related directly to the elements of the gang enhancement pursuant to section

186.22, subdivision (b)(4). The evidence demonstrated that defendant was a member of

the Perth clique of the Puente 13 gang, the primary purpose of which was to commit

crimes. Deputy Lusk testified to the violent nature of the Puente 13 gang by describing

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the types of crimes committed by the gang. This evidence was admissible to prove facts

— such as the violent nature of the gang with which defendant was affiliated, and the

type of crimes committed by gang members — related to the gang enhancement, even if

the evidence was inadmissible to prove the underlying charged offense. (People v.

Hernandez, supra, 33 Cal.4th at p. 1044.) We conclude that the trial court did not err in

admitting Deputy Lusk’s testimony, particularly in light of the limiting instruction that

the testimony was being offered only with respect to the gang enhancement allegation,

and was not offered to prove the underlying charged offenses.

H. Defendant’s Alleged Inability to Fully Testify

Defendant argues that the trial court made a number of confusing rulings concerning

the extent to which defendant would be permitted to testify about his relationship with

Nakatani, ultimately impairing defendant’s ability to fully testify as to the events leading

to Nakatani’s death. Defendant’s characterization of the trial court’s rulings is

hyperbolic, and defendant concedes that he was not “literally” denied his right to fully

testify. Accordingly, we conclude that the trial court did not err by limiting defendant’s

testimony regarding the specific details of his past physical altercations with Nakatani.

Defendant asserts that the trial court’s rulings on the permissible scope of

defendant’s testimony regarding his relationship with Nakatani were misleading. We

disagree. When defendant indicated his intention to introduce Nakatani’s prior

conviction for misdemeanor battery, the court ordered defendant not to comment on that

conviction. When defense counsel attempted to elicit testimony describing an altercation

that occurred between defendant and Nakatani, the court ruled that defendant could not

testify as to “the details surrounding . . . [each] instance of violence between” defendant

and Nakatani. Defense counsel stated that he understood the court’s admonition,

conferred briefly with defendant, and continued his direct examination of defendant until

the end of the day.

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The next morning, defense counsel resumed his direct examination of defendant,

and defendant began to give more detailed answers to counsel’s questions about the

events of October 1, 1996, the date of Nakatani’s death. Unprovoked, defendant stated

that he “didn’t go [sic] any further detail yesterday because I didn’t understand the

judge’s earlier ruling.” The court sustained the prosecutor’s objection to defendant’s

statement, and defense counsel completed defendant’s direct examination. The

prosecution cross-examined defendant regarding his inconsistent testimony, pointing out

that defendant provided a much greater level of detail on his second day of testifying

compared to his first day.

During defendant’s redirect examination, he explained that he had not provided

significant detail during his first day of testimony because he had been “unclear on what

[he] could testify to and what [he] couldn’t on the judge’s ruling.” The court clarified

that “[t]here [was] no such ruling,” and requested that counsel provide a stipulation to

that effect. After a brief sidebar discussion, the court clarified for the jury that its earlier

statement that “[t]here [was] no such ruling” “was overly broad, and the parties have

reached a stipulation which would be more precise on that issue.” The parties then

stipulated “that the defendant was not instructed that he could not talk about the conduct

between himself and Nakatani which occurred on October 1st of 1996.” Defendant

thereafter completed his testimony.

As defendant argues, the Fifth, Sixth, and Fourteenth Amendments to the United

States Constitution guarantee that an accused has the right to testify on his or her own

behalf. (Rock v. Arkansas (1987) 483 U.S. 44, 51-53.) As the high court has held,

however, “the right to present relevant testimony is not without limitation.” (Id. at p. 55.)

So long as the restrictions placed on a defendant’s right to testify are not “arbitrary or

disproportionate to the purposes they are designed to serve,” a court may apply a rule of

evidence to limit a defendant’s testimony if “the interests served by [the] rule justify the

limitation imposed on the defendant’s constitutional right to testify.” (Ibid.) Here, the

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restriction placed on defendant’s testimony — that he could not testify about the specific

details of past altercations in which he and Nakatani were engaged, but could testify

about their contentious relationship, and could provide specific details of the altercation

that occurred on October 1, 1996 — did not impinge on defendant’s constitutionally

protected right to testify on his own behalf. Defendant was able to fully testify regarding

the altercation that occurred prior to Nakatani’s death, and was able to explain that he and

Nakatani had been involved in a tumultuous relationship. Indeed, defendant

acknowledges that his right to testify on his own behalf was not impaired, stating that

“the trial court’s rulings did not, in a literal sense, deny [defendant] his fundamental right

to take the stand and testify on his own behalf.” Accordingly, we conclude that

defendant’s right to testify on his own behalf was not violated, and the trial court did not

err by limiting the scope of defendant’s testimony.

I. Trial Court’s Alleged Disparagement of Defendant in Front of Jury

As described, ante, defendant testified on redirect examination that he had not

discussed the events of October 1, 1996 in detail during his first day of testimony because

he was “unclear on what [he] could testify to and what [he] couldn’t on the judge’s

ruling.” The court stated, “[t]here [was] no such ruling, sir” and requested that counsel

provide a stipulation to that effect. After a brief sidebar discussion, the court clarified for

the jury that its earlier statement “was overly broad, and the parties have reached a

stipulation which would be more precise on that issue.” The parties then stipulated “that

the defendant was not instructed that he could not talk about the conduct between himself

and Nakatani which occurred on October 1st of 1996.” Defendant contends that the

court’s statement, “[t]here [was] no such ruling, sir,” constituted an impermissible

comment on the evidence and disparaged defendant, violating defendant’s rights to a fair

trial and due process.

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Article VI, section 10 of the California Constitution provides that “[t]he court may

make any comment on the evidence and the testimony and credibility of any witness as in

its opinion is necessary for the proper determination of the cause.” A judge’s ability to

comment upon evidence or a witness’s credibility “is not unlimited. [Citations.] He may

not withdraw material evidence from the jury’s consideration or distort the testimony,

and his comments should be temperately and fairly made, rather than being

argumentative or contentious to a degree amounting to partisan advocacy. . . . [T]he

judge should make clear that his views are not binding but advisory only.” (People v.

Friend (1958) 50 Cal.2d 570, 577-578 (Friend), overruled on other grounds by People v.

Cook (1983) 33 Cal.3d 400, 413, fn. 13, overruled on other grounds by People v.

Rodriguez (1986) 42 Cal.3d 730, 766.) Here, the court’s comment clarified its prior

ruling, or lack thereof, and did not relate to the evidence or to the defendant’s credibility.

Accordingly, the court’s comment could not have run afoul of the rule prohibiting overly

partisan judicial commentary because the court’s statement clarified its prior ruling, and

did not address the declarant’s credibility.

Even if the court’s comment may be construed as a comment upon defendant’s

credibility, we cannot agree with defendant that the judge’s isolated comment was

“contentious to a degree amounting to partisan advocacy.” (Friend, supra, 50 Cal.2d

at p. 577.) The judge stated that he made no ruling limiting defendant’s testimony.

Moments later, the judge clarified his statement for the jury, acknowledging that it was

overbroad. The parties then stipulated as to the scope of the court’s ruling regarding

defendant’s testimony. Although the judge’s comment may have been borne of some

frustration with defendant’s repeated attempts to blame the court for his inconsistent

testimony, that factor alone does not militate in favor of concluding that the court’s

comment deprived defendant of his rights to due process and a fair trial. (See People v.

Rodriguez, supra, 42 Cal.3d at p. 770.) “Of course, appellate courts . . . must evaluate the

propriety of judicial comment on a case-by-case basis, noting whether the peculiar

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content and circumstances of the court’s remarks deprived the accused of his right to trial

by jury.” (Ibid.) Here, the jury was able to consider defendant’s testimony in light of a

clear ruling by the court, as reflected by the parties’ stipulation. Accordingly, the court’s

comment addressing its earlier ruling, particularly when considered with its almost

immediate admonition and clarification to the jury, did not deprive defendant of his right

to due process or to a jury trial.

J. Failure to Instruct Regarding Third Party Culpability

Defendant testified that after he left Nakatani’s house with his son, the two unnamed

individuals that went with him to Nakatani’s home remained in her home for a minute or

two. Once the two individuals returned to the car where defendant was waiting,

defendant asked them what happened and they responded, “She got crazy with us.” After

defendant asked what that meant, the two individuals told him that they did not want to

talk about it in front of defendant’s son. After dropping off defendant’s son, defendant

again asked the two individuals what happened. Defendant testified that the two

individuals replied that “she got crazy with them and they f…ed her up.” Defendant

asked what they meant, and they replied, “Don’t worry about it.” Defendant testified that

he “wanted to know [what happened] but they didn’t want to say.” Defendant did not

request that the jury be instructed regarding third party culpability, and now claims that

the court erred by failing to instruct the jury sua sponte regarding third party culpability.

We have previously considered and rejected similar claims, and do so here.

“The applicable principles are clear. A criminal defendant may introduce evidence

of third party culpability if such evidence raises a reasonable doubt as to his guilt, but the

evidence must consist of direct or circumstantial evidence that links the third person to

the crime. It is not enough that another person has the motive or opportunity to commit it.

(People v. Robinson (2005) 37 Cal.4th 592, 625.) A trial court has a duty to instruct the

jury ‘sua sponte on general principles which are closely and openly connected with the

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facts before the court.’ (People v. Holt, supra, 15 Cal.4th at p. 688.) Finally, a trial court

has a sua sponte duty to give instructions on the defendant’s theory of the case, including

instructions ‘as to defenses “ ‘that the defendant is relying on . . . , or if there is

substantial evidence supportive of such a defense and the defense is not inconsistent with

the defendant’s theory of the case.’ ” ’ (People v. San Nicolas (2004) 34 Cal.4th 614,

669.)” (People v. Abilez, supra, 41 Cal.4th at p. 517.) Defendant contends that the court

erred by failing to give a pinpoint instruction along with the burden of proof instruction,

arguing that CALJIC No. 2.90 does not adequately inform the jury regarding the burden

of proof for a defendant’s affirmative defenses.

As an initial matter, defendant bore the burden of requesting a pinpoint instruction,

and failed to do so. (See People v. San Nicolas, supra, 34 Cal.4th at p. 669.) A

defendant is entitled to a pinpoint instruction, upon request, only when appropriate.

(People v. Saille (1991) 54 Cal.3d 1103, 1119.) “Such instructions relate particular facts

to a legal issue in the case or ‘pinpoint’ the crux of a defendant’s case, such as mistaken

identification or alibi. [Citation.] They are required to be given upon request when there

is evidence supportive of the theory, but they are not required to be given sua sponte.”

(Ibid., citing People v. Rincon-Pineda (1975) 14 Cal.3d 864, 885; see also People v. San

Nicolas, supra, 34 Cal.4th at p. 669.) We conclude that the court did not err by failing to

instruct the jury, sua sponte, regarding third party culpability.

Here, the jury was instructed, pursuant to CALJIC No. 2.90, that a criminal

defendant is presumed innocent, that he is entitled to a verdict of not guilty if the jury has

reasonable doubt regarding his guilt, and the prosecution bears the burden of proving a

defendant guilty beyond a reasonable doubt.9 Because the jury was properly instructed


9

In its entirety, CALJIC No. 2.90 provides: “Presumption of Innocence —

Reasonable Doubt — Burden of Proof

“A defendant in a criminal action is presumed to be innocent until the contrary is

proved, and in case of a reasonable doubt whether [his] [her] guilt is satisfactorily shown,

(footnote continued on next page)

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as to these issues, and because the jury could have acquitted defendant had it believed

that a third party was responsible for Nakatani’s death, no third party culpability

instruction was necessary. (People v. Saille, supra, 54 Cal.3d at p. 1119.)

Assuming for the purposes of argument that the trial court erred, any such error was

harmless. The jury was instructed on reasonable doubt and burden of proof, and could

have acquitted defendant had it believed defendant’s testimony that his two unnamed

cohorts were responsible for Nakatani’s death. Had the court instructed the jury sua

sponte regarding third party culpability, there is no reasonable probability that the result

would have been different in light of the other instructions provided to the jury.

(People v. Abilez, supra, 41 Cal.4th at pp. 517-518.) Thus, any error was harmless.

K. Failure to Instruct That Manslaughter Is a Lesser Included Offense of

Murder

Defendant claims that the trial court erred by denying his request to instruct the jury

on the lesser included offense of voluntary manslaughter. Voluntary manslaughter is

defined as “the unlawful killing of a human being without malice[.] . . . upon a sudden

quarrel or heat of passion.” (§ 192, subd. (a).) Because there was not substantial

evidence that defendant committed voluntary manslaughter, we conclude that the trial

court did not err by refusing to give a voluntary manslaughter instruction.

During argument regarding the exclusion of Nakatani’s battery conviction, the court

commented that defendant’s testimony about the events preceding Nakatani’s death did


(footnote continued from previous page)

[he] [she] is entitled to a verdict of not guilty. This presumption places upon the People
the burden of proving [him] [her] guilty beyond a reasonable doubt.

“Reasonable doubt is defined as follows: It is not a mere possible doubt; because

everything relating to human affairs is open to some possible or imaginary doubt. It is
that state of the case which, after the entire comparison and consideration of all the
evidence, leaves the minds of the jurors in that condition that they cannot say they feel an
abiding conviction of the truth of the charge.” (Brackets in original.)

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not warrant an instruction on the lesser included offense of voluntary manslaughter under

People v. Barton (1995) 12 Cal.4th 186, 196, footnote 5 (Barton). Footnote 5 of Barton

provides: “A trial court need not, however, instruct on lesser included offenses when the

evidence shows that the defendant is either guilty of the crime charged or not guilty of

any crime (for example, when the only issue at trial is the defendant’s identity as the

perpetrator). Because in such a case ‘there is no evidence that the offense was less than

that charged’ ([People v.] Sedeno [(1974)] 10 Cal.3d [703,] 715), the jury need not be

instructed on any lesser included offense.” (Barton, supra, 12 Cal.4th at p. 196, fn. 5.)

Defense counsel disagreed with the court, but did not pursue the matter. After the

defense rested, defense counsel requested a manslaughter instruction, and the trial court

denied the request, explaining that, consistent with footnote 5 of Barton, because

defendant’s defense was that “he didn’t do it,” the court was precluded from instructing

on the lesser included offense of voluntary manslaughter.

Defendant properly asserts that it is the “court’s duty to instruct the jury not only on

the crime with which the defendant is charged, but also on any lesser offense that is both

included in the offense charged and shown by the evidence to have been committed.”

(Barton, supra, 12 Cal.4th at p. 190.) In Barton, the defendant and the victim were

engaged in a heated argument, defendant drew a gun believing that the victim was

holding a knife, screamed at the victim, and ultimately shot the victim. (Barton, supra,

12 Cal.4th 186, 191-192.) It was uncontroverted that the defendant killed the victim; the

issue was whether the trial court erred by instructing the jury on manslaughter over the

defendant’s objections where the defendant maintained the shooting was accidental. (Id.

at p. 190.) We concluded that the trial court did not err, but explained in a footnote that a

trial court need not instruct the jury on a lesser included offense where no evidence

supports a finding that the offense was anything less than the crime charged. (Id.

at p. 196, fn. 5; see People v. Breverman (1988) 19 Cal.4th 142, 149; People v. Anderson

(1983) 144 Cal.App.3d 55, 61.)

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In the present case, unlike in Barton, defendant’s identity as the killer was

contested, because he denied killing the victim, specifically maintaining that his unnamed

companions committed the murder. Further, a voluntary manslaughter instruction is not

warranted where the act that allegedly provoked the killing was no more than taunting

words, a technical battery, or slight touching. (See People v. Manriquez (2005) 37

Cal.4th 547, 586.) “The provocation must be such that an average, sober person would

be so inflamed that he or she would lose reason and judgment. Adequate provocation and

heat of passion must be affirmatively demonstrated. [Citations.]” (People v. Lee (1999)

20 Cal.4th 47, 60.) Here, no evidence was introduced that defendant was so inflamed

that he killed the victim in a heat of passion. Defendant testified that he and Nakatani

engaged in a verbal argument prior to his taking his son and leaving Nakatani’s house.

Defendant testified that he told Nakatani, “[g]et off me, you f…ing bitch,” and that she

“cuss[ed] back at” him. We have held that calling the defendant “a ‘mother f…er’ and . .

. repeatedly asserting that if defendant had a weapon, he should take it out and use it . . .

plainly were insufficient to cause an average person to become so inflamed as to lose

reason and judgment.” (People v. Manriquez, supra, 37 Cal.4th at p. 586.) Similarly, the

verbal exchange described by defendant in the present case did not constitute sufficient

provocation for voluntary manslaughter.

Defendant also testified that Nakatani scratched his chest, he kicked her, she kicked

him in the leg, grabbed his shirt, and he pulled away. Simple assault, such as the tussle

defendant described, also does not rise to the level of provocation necessary to support a

voluntary manslaughter instruction. (See People v. Elmore (1914) 167 Cal. 205, 211.)

Indeed, rather than causing defendant to become enraged, defendant testified that he

simply walked away. Accordingly, we conclude that the trial court did not err by

refusing to give a voluntary manslaughter instruction because that instruction was not

supported by the evidence.

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L. Exclusion of Nakatani’s Prior Battery Conviction

Defendant contends that the trial court erroneously excluded evidence regarding

Nakatani’s prior battery conviction. The trial court concluded that, because defendant’s

only defense was an alibi, any evidence of Nakatani’s misdemeanor battery conviction

was irrelevant. We review a trial court’s exclusion of evidence for abuse of discretion,

and we conclude that the trial court did not abuse its discretion here by excluding

evidence of the victim’s misdemeanor battery conviction, an event entirely unrelated to

defendant. (People v. Avila (2006) 38 Cal.4th 491, 578.)

Defendant argues that evidence of Nakatani’s conviction of misdemeanor battery

was relevant and admissible to demonstrate her propensity for violence. Evidence Code

section 1101, subdivision (a) provides that “evidence of a person’s character or a trait of

his or her character . . . is inadmissible when offered to prove his or her conduct on a

specified occasion.” Evidence Code section 1103, subdivision (a)(1) provides an

exception to Evidence Code section 1101, subdivision (a) when a defendant offers

evidence regarding the character or trait of a victim “to prove conduct of the victim in

conformity with the character or trait of character.” Of course, the trial court may

exclude otherwise admissible evidence pursuant to Evidence Code section 352 if

admitting the evidence would have confused the issues at trial, unduly consumed time, or

would have been more prejudicial than probative. (See People v. Hoyos, supra,

41 Cal.4th at p. 912; People v. Wright (1985) 39 Cal.3d 576, 587-588.) The trial court

must always perform its gate keeping function pursuant to Evidence Code section 350 to

exclude evidence that is irrelevant.

As defendant argues, “[w]here . . . a discretionary power is inherently or by express

statute vested in the trial judge, his or her exercise of that wide discretion must not be

disturbed on appeal except on a showing that the court exercised its discretion in an

arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of

justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316.) Where no evidence is presented

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that the victim posed a threat to the defendant, exclusion of evidence regarding the

victim’s propensity for violence is proper. (People v. Hoyos, supra, 41 Cal.4th at p. 913.)

Defendant suggests that the victim’s propensity for violence was relevant to show that he

was engaged in mutual combat with the victim and committed voluntary manslaughter

rather than murder because he killed her in the heat of passion. As explained, ante, the

quarrel with the victim described by the defendant did not rise to the level of provocation

necessary to support a voluntary manslaughter instruction. (See People v. Manriquez,

supra, 37 Cal.4th at p. 586.) Thus, the trial court did not err by excluding as irrelevant

evidence of Nakatani’s misdemeanor battery conviction.

Assuming for purposes of this discussion that the trial court erred in excluding

evidence of Nakatani’s battery conviction, any such error was harmless because it would

not have resulted in a more favorable verdict. (People v. Watson (1956) 46 Cal.2d 818,

837; People v. Bunyard (1988) 45 Cal.3d 1189, 1213.) Defendant was permitted to

testify regarding his past fights with the victim and about the tumultuous nature of their

relationship. Defendant was also allowed to describe the details of the altercation that

occurred between defendant and the victim on the day she was killed. There is no

reasonable probability that defendant would have obtained a more favorable outcome had

he been permitted to introduce evidence of Nakatani’s prior misdemeanor battery

conviction. (People v. Bunyard, supra, 45 Cal.3d at p. 1213.)

M. Cumulative Guilt Phase Error

Defendant contends that if we do not conclude that any individual guilt phase error

mandates reversal, the cumulative effect of the guilt phase errors requires reversal. We

disagree. To the extent that there are a few instances in which we found or assumed the

existence of error, we concluded that no prejudice resulted from any such error.

Accordingly, the cumulative nature of the guilt phase errors, if any, does not lead us to

conclude that defendant was denied a fair trial.

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PENALTY PHASE

A. Failure to Instruct Regarding Unanimity on Aggravating Factors

Defendant argues that his Sixth, Eighth, and Fourteenth Amendment rights were

violated by the trial court’s erroneous refusal to instruct the jury that it must unanimously

find true any particular aggravating factor. Defendant acknowledges that we have

repeatedly considered and rejected similar claims, but urges us to reexamine our prior

holdings in light of the high court’s nearly 30-year-old decision in Brown v. Louisiana

(1980) 447 U.S. 323, cited for the proposition that a six-person jury must be unanimous

to ensure its reliability.10 Defendant also argues that the high court’s decisions in

Apprendi v. New Jersey (2000) 530 U.S. 466 and Ring v. Arizona (2002) 536 U.S. 584

compel us to conclude that juror unanimity as to each aggravating factor is

constitutionally mandated.

We see no reason to disturb our consistent conclusion that juror unanimity regarding

aggravating factors is not required prior to imposing the death penalty. (People v. Wilson

(2008) 43 Cal.4th 1, 31.) We have also repeatedly considered and rejected defendant’s

argument that the high court’s decisions in Apprendi and Ring compel a different

conclusion. (People v. Mendoza (2007) 42 Cal.4th 686, 707.)

B. Death Penalty Overbreadth

Defendant argues that the California death penalty statutory scheme violates the

Eighth and Fourteenth Amendments to the United States Constitution because it permits

arbitrary application of the death penalty and fails to narrow the class of persons eligible

10 Defendant’s

reference

to

Brown v. Louisiana is misplaced. Defendant cites Brown

v. Louisiana for the proposition that, at a minimum, the Sixth Amendment requires that a
six-person jury unanimously decide the guilt or innocence of an individual accused of a
nonpetty criminal offense in order to assure the jury’s reliability. In fact, the high court
so held in Burch v. Louisiana (1979) 441 U.S. 130, 139. In Brown v. Louisiana, the high
court concluded that the rule articulated in Burch must be retroactively applied.
(Brown v. Louisiana, supra, 447 U.S. at p. 336.)

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for the death penalty. Defendant acknowledges that we have repeatedly rejected such

claims, and provides no persuasive reason for us to do otherwise here. (See People v.

Demetrulias (2006) 39 Cal.4th 1, 43.)

C. Section 190.2

Defendant argues that his sentence is invalid because section 190.2, setting forth the

special circumstances permitting imposition of the death penalty, is overbroad in

violation of the Eighth and Fourteenth Amendments. We have repeatedly rejected this

claim, and defendant presents no argument warranting a different conclusion here.

(People v. Stevens (2007) 41 Cal.4th 182, 211 (Stevens).)

D. Section 190.3, Factor (a)

Defendant argues that section 190.3, factor (a), “as applied,” violates the Fifth,

Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. Although

defendant frames his argument as an “as applied” challenge, defendant’s argument

appears to be a facial challenge, focusing on the variety of circumstances courts have

considered aggravating. The high court rejected a facial challenge to section 190.3,

factor (a) in Tuilaepa v. California (1994) 512 U.S. 967, 975-976, and we have

repeatedly held that the section 190.3, factor (a) “does not violate the Fifth, Sixth, Eighth,

or Fourteenth Amendments” to the United States Constitution by allowing arbitrary

imposition of the death penalty. (Stevens, supra, 41 Cal.4th at p. 212.)

E. Miscellaneous Constitutional Challenges to the Death Penalty Statute

Defendant raises a number of challenges to California’s death penalty statutory

scheme, arguing that it lacks sufficient safeguards to avoid arbitrary and capricious

imposition of the death penalty and therefore violates the Eighth and Fourteenth

Amendments to the United States Constitution. We have repeatedly considered and

rejected these claims, and we see no reason to disturb our prior holdings here.

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“[T]here is no constitutional requirement that the trial court instruct the jury that it

must find beyond a reasonable doubt that aggravating circumstances exist, that the

aggravating circumstances outweigh the mitigating circumstances, or that death is the

appropriate penalty.” (People v. Lewis, supra, 43 Cal.4th at p. 533.) Moreover, the trial

court should not instruct the jury as to the burden of proof at the penalty phase (ibid.),

and failure to do so does not violate defendant’s constitutional rights under the Sixth,

Eighth, and Fourteenth Amendments. (People v. Lewis, supra, 43 Cal.4th at pp. 533-

534.) The high court’s decisions in Apprendi and Ring do not compel us to conclude that

the death penalty sentencing scheme violates due process because capital juries need not

find aggravating factors beyond a reasonable doubt. (See People v. Mendoza, supra,

42 Cal.4th at p. 707.)

We have repeatedly held that “the death penalty scheme is not unconstitutional

because it fails to allocate the burden of proof — or establish the standard of proof — for

finding the existence of an aggravating factor.” (People v. Wilson, supra, 43 Cal.4th at

p. 31.) Accordingly, the trial court did not err by instructing the jury to consider the

aggravating and mitigating circumstances without addressing the burden of proof. We

have also repeatedly held that the death penalty statutory scheme is not unconstitutional

for failing to require that aggravating factors outweigh mitigating factors, or for failing to

establish a standard of proof for concluding that death is the appropriate sentence. (Ibid.)

We again conclude that the jury need not base a death sentence upon written findings

regarding aggravating factors. (Id. at p. 32.) Finally, defendant contends that the death

penalty statutory scheme denies defendant equal protection of the laws, and urges us to

reconsider our decision in People v. Allen (1986) 42 Cal.3d 1222, 1286-1288, holding

otherwise. We have consistently held that the death penalty scheme does not violate a

defendant’s right to equal protection of the laws, and see no reason to conclude otherwise

here. (People v. Zamudio (2008) 43 Cal.4th 327, 373.)

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F. CALJIC No. 8.85

Defendant raises several challenges to CALJIC No. 8.85, all of which we have

previously considered and rejected. Defendant reiterates his argument that section 190.3,

factor (a) is unconstitutionally overbroad. As discussed, ante, the high court rejected this

claim in Tuilaepa v. California, supra, 512 U.S. at pages 975-976, and we have

repeatedly held that the section 190.3, factor (a) “does not violate the Fifth, Sixth, Eighth,

and Fourteenth Amendments” to the United States Constitution by allowing arbitrary

imposition of the death penalty. (Stevens, supra, 41 Cal.4th at p. 212.) Defendant urges

us to reconsider our holding that the trial court is not required to instruct the jury sua

sponte that it may not “double count” circumstances of the crime as special

circumstances; we see no reason to do so. (See People v. Tafoya (2007) 42 Cal.4th 147,

188.)

Defendant argues that CALJIC No. 8.85 was defective because the jury was not

instructed that section 190.2, factors (d) and (h) could only be considered in mitigation.

We have held that trial courts are under no obligation to so instruct, and that failing to

instruct that section 190.2, factors (d) and (h) may only be considered in mitigation is not

error. (People v. Hillhouse (2002) 27 Cal.4th 469, 509.) Finally, defendant claims that

the trial court erred by failing to clarify which of the enumerated factors in CALJIC No.

8.85 are aggravating and which are mitigating. As we have previously held, trial courts

need not instruct the jury as to which factors are aggravating and which are mitigating,

and failure to do so does not constitute error. (People v. Brasure (2008) 42 Cal.4th 1037,

1069.)

G. CALJIC No. 8.88

Defendant argues that the trial court violated his rights under the Fifth, Sixth,

Eighth, and Fourteenth Amendments to the United States Constitution, and his

48

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corresponding state constitutional rights by instructing the jury pursuant to CALJIC

No. 8.88.11 Defendant raises several specific challenges to CALJIC No. 8.88, all of

which we have previously considered and rejected. First, defendant contends that

CALJIC No. 8.88’s use of the phrase “so substantial” impermissibly reduces the burden

of proof necessary to impose the death penalty. We have repeatedly rejected this

contention. (People v. Wilson, supra, 43 Cal.4th at pp. 31-32.) Defendant next argues

that CALJIC No. 8.88 improperly explains the weighing process a jury is required to

perform, its use of the word “totality” conveys that a jury may not decide against the


11

CALJIC No. 8.88, as given to the jury, states, in pertinent part, “Penalty Trial —

Concluding Instruction


“It is now your duty to determine which of the two penalties, death or confinement

in the state prison for life without possibility of parole, shall be imposed on defendant.


“After having heard all of the evidence, and after having heard and considered the

arguments of counsel, you shall consider, take into account and be guided by the
applicable factors of aggravating and mitigating circumstances upon which you have
been instructed.


“An aggravating factor is any fact, condition or event attending the commission of

a crime which increases its guilt or enormity, or 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.


“The weighing of aggravating and mitigating circumstances does not mean a mere

mechanical counting of factors on each side of an imaginary scale, or the arbitrary
assignment of weights to any of them. 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. In weighing the various circumstances you determine under the
relevant evidence which penalty is justified and appropriate by considering the totality of
the aggravating circumstances with the totality of the mitigating circumstances. To 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.


“You shall now retire to deliberate on the penalty. The foreperson previously

selected may preside over your deliberations or you may choose a new foreperson. In
order to make a determination as to the penalty, all twelve jurors must agree.”


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death penalty unless it finds that the mitigating factors outweigh the aggravating factors,

and it is defectively “death-oriented” because it fails to define or describe the penalty of

life without the possibility of parole. We have repeatedly rejected these arguments and

find no reason to hold otherwise here. (People v. Dickey (2005) 35 Cal.4th 884, 951.)

H. Presumption of Life

Defendant argues that the trial court erred by failing to instruct the jury regarding

the “presumption of life.” Defendant acknowledges that we considered and rejected a

similar claim in People v. Arias (1996) 13 Cal.4th 92, and defendant presents us with no

persuasive reason to revisit our holding here. (See People v. Wilson, supra, 43 Cal.4th

at p. 31.)

I. Intercase Proportionality Review

Defendant argues that lack of intercase proportionality review for death penalty

cases violates the California and federal Constitutions; we have repeatedly held

otherwise. (People v. Mendoza, supra, 42 Cal.4th at p. 706.)

J. Prosecutorial Discretion

Defendant acknowledges that we have repeatedly rejected the claim that

prosecutorial discretion to seek the death penalty violates the Fifth, Eighth, and

Fourteenth Amendments. (People v. Crittendon (1994) 9 Cal.4th 83, 152.) We see no

reason to revisit that conclusion here. (See People v. Rundle (2008) 43 Cal.4th 76, 199.)

K. Method of Execution

Defendant contends that the method of execution in California violates the

Fourteenth Amendment’s guarantee of due process and the Eighth Amendment’s

prohibition of cruel and unusual punishment. Specifically, defendant claims that the

Department of Corrections and Rehabilitation’s failure to adopt procedures consistent

with section 3604 and the Administrative Procedures Act violates defendant’s right to

procedural due process under the Fourteenth Amendment, and that lethal injection

50

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procedures violate the Eighth Amendment’s prohibition of cruel and unusual punishment.

We have repeatedly held that such “claims are not cognizable on appeal because they do

not affect the validity of the judgment itself and do not provide a basis for reversal of the

judgment on appeal.” (People v. Tafoya, supra, 42 Cal.4th at p. 199; see also People v.

Ramirez (2006) 39 Cal.4th 398, 479.)

L. International Law

Defendant contends that California’s use of capital punishment “as regular

punishment for substantial numbers of crimes” instead of extraordinary punishment for

extraordinary crimes is contrary to international norms of human decency. We have

repeatedly rejected this claim, concluding that “ ‘California does not employ capital

punishment in such a manner. The death penalty is available only for the crime of first

degree murder, and only when a special circumstance is found true; furthermore,

administration of the penalty is governed by constitutional and statutory provisions

different from those applying to “regular punishment” for felonies. [Citations.]’ ”

(People v. Brasure, supra, 42 Cal. 4th 1037, 1072, quoting People v. Demetrulias, supra,

39 Cal.4th at pp. 43-44; see also People v. Leonard (2007) 40 Cal.4th 1370, 1430.)

Defendant also alleges that he was denied his right to a fair trial under various

international treaties. Because we conclude that defendant’s trial was conducted in

accordance with state and federal constitutional law, we need not consider whether a

violation of state or federal constitutional law would also constitute a violation of

international law. (People v. Hillhouse, supra, 27 Cal.4th at p. 511.)

M. Cumulative Error

As with defendant’s guilt phase cumulative error claim, defendant contends that if

we do not conclude that any individual penalty phase error mandates reversal, the

cumulative effect of the penalty phase errors requires reversal. We disagree. We found

no penalty phase error, but assuming there was any error, no prejudice resulted.

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Accordingly, the cumulative nature of the penalty phase errors, if any, do not convince us

that defendant was denied a fair trial.


III. CONCLUSION




The judgment is affirmed.

MORENO, J.


WE CONCUR:

GEORGE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.

52

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Gutierrez
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S073253
Date Filed: February19, 2009
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: David Sherman Milton

__________________________________________________________________________________

Attorneys for Appellant:

H. Mitchell Caldwell, under appointment by the Supreme Court, for Defendant and Appellant.




__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General,
Pamela C. Hamanaka, Assistant Attorney General, Sharlene A. Honnaka and Robert C. Schneider, Deputy
Attorneys General, for Plaintiff and Respondent.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

H. Mitchell Caldwell
24255 Pacific Coast Highway, SOL
Malibu, CA 90263
(310) 506-4669

Robert C. Schneider
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2059





2

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Document Outline

Automatic appeal from a judgment of death.

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:
Thu, 02/19/2009	45 Cal. 4th 789, 200 P.3d 847, 89 Cal. Rptr. 3d 225	S073253	Automatic Appeal	closed; remittitur issued

Disposition
Feb 19 2009	Opinion: Affirmed

Dockets
Aug 10 1998	Judgment of death
Sep 10 1998	Filed certified copy of Judgment of Death Rendered   8-10-98.
Sep 10 1998	Penal Code sections 190.6 et seq. apply to this case
Apr 20 1999	Record certified for completeness
Jul 15 2002	Filed:   applt's application for appointment of counsel.
Jul 16 2002	Counsel appointment order filed   Upon request of appellant for appointment of counsel, H. Mitchell Caldwell is hereby appointed to represent appellant Alfred Anthony Gutierrez for the direct appeal in the above automatic appeal now pending in this court.
Jul 24 2002	Date trial court delivered record to appellant's counsel   4,165 pp. record
Jul 29 2002	Appellant's opening brief letter sent, due:   February 24, 2003 (pursuant to Calif. Rules of Court, rule 39.57(b)).
Sep 9 2002	Counsel's status report received (confidential)   from atty Caldwell.
Sep 19 2002	Counsel's status report received (confidential)   from atty Caldwell.
Dec 18 2002	Compensation awarded counsel   Atty Caldwell
Jan 13 2003	Counsel's status report received (confidential)   from atty Caldwell.
Feb 11 2003	Counsel's status report received (confidential)   (supplemental) from atty Caldwell.
Mar 7 2003	Counsel's status report received (confidential)   from atty Caldwell.
Mar 7 2003	Request for extension of time filed   to file appellant's opening brief and request for relief from default. (1st request)
Mar 12 2003	Order filed   Appellant's request for relief from default is granted. Extension is granted to 4/25/2003 to file appellant's opening brief. After that date, only four further extensions totaling 240 additional days are contemplated. Extension is granted based upon counsel H. Mitchell Caldwell's representation that he anticipates filing that brief by 12/31/2003.
Apr 1 2003	Received copy of appellant's record correction motion   "Request to Correct the Record, Augment the Record, Examine Sealed Transcripts, and Settle the Record on Appeal." (11 pp.)
Apr 17 2003	Compensation awarded counsel   Atty Caldwell
Apr 21 2003	Counsel's status report received (confidential)   from atty Caldwell.
Apr 21 2003	Request for extension of time filed   to file appellant's opening brief. (2nd request)
Apr 22 2003	Extension of time granted   to 6/24/2003 to file appellant's opening brief. After that date, only three further extensions totaling 180 additional days will be granted. Extension is granted based upon counsel H. Mitchell Caldwell's representation that he anticipates filing that brief by 12/31/2003.
Jun 23 2003	Counsel's status report received (confidential)   from atty Caldwell.
Jun 23 2003	Request for extension of time filed   to file appellant's opening brief. (3rd request)
Jun 25 2003	Extension of time granted   to 8/25/2003 to file appellant's opening brief. After that date, only two further extensions totaling 120 additional days will be granted. Extension is granted based upon counsel H. Mitchell Caldwell's representation that he anticipates filing that brief by 12/31/2003.
Aug 21 2003	Request for extension of time filed   to file appellant's opening brief. (4th request)
Aug 21 2003	Counsel's status report received (confidential)   from atty Caldwell.
Aug 25 2003	Extension of time granted   to 10/24/2003 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 H. Mitchell aldwell's representation that he anticipates filing that brief by 12/31/2003.
Sep 15 2003	Record certified for accuracy
Oct 24 2003	Request for extension of time filed   to file appellant's opening brief. (5th request)
Oct 24 2003	Counsel's status report received (confidential)   from atty Caldwell.
Oct 30 2003	Extension of time granted   to 12/23/2003 to file appellant's opening brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted based upon counsel H. Mitchell Caldwell's representation that he anticipates filing that brief by 3/31/2004.
Dec 19 2003	Request for extension of time filed   to file appellant's opening brief. (6th request)
Dec 22 2003	Counsel's status report received (confidential)   from atty Caldwell.
Dec 31 2003	Extension of time granted   to 2/23/2004 to file appellant's opening brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon counsel H. Mitchell Caldwell's representation that he anticipates filing that brief by 3/31/2004.
Jan 21 2004	Record on appeal filed   Clerk's transcript 11 volumes (1472 pp.) and reporter's transcript 27 volumes (2939 pp.), including material under seal; ASCII disks. Clerk's transcript includes 439 pp. of juror questionnaires.
Jan 21 2004	Letter sent to:   counsel advising record on appeal, certified for accuracy, was filed this date.
Jan 26 2004	Compensation awarded counsel   Atty Caldwell
Feb 23 2004	Counsel's status report received (confidential)   from atty Caldwell.
Feb 23 2004	Request for extension of time filed   to file appellant's opening brief. (7th request)
Mar 1 2004	Extension of time granted   to 4/19/2004 to file appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon counsel H. Mitchell Caldwell's representation that he anticipates filing that brief by 4/18/2004.
Apr 16 2004	Counsel's status report received (confidential)   from atty Caldwell.
Apr 16 2004	Request for extension of time filed   to file appellant's opening brief. (8th request)
Apr 23 2004	Extension of time granted   to 6/18/2004 to file appellant's opening brief. Extension is granted based upon counsel H. Mitchell Caldwell's representation that he anticipates filing that brief by 6/18/2004. After that date, no further extension 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.
Jun 17 2004	Request for extension of time filed   to file appellant's opening brief. (9th request)
Jun 17 2004	Counsel's status report received (confidential)   from atty Caldwell.
Jun 30 2004	Filed:   Supplemental declaration in support of application for extension of time to file appellant's opening brief.
Jul 7 2004	Extension of time granted   to 8-18-2004 to file AOB. After that date, no further extension 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. Extension granted based upon counsel H. Mitchell Caldwell's representation that he anticipates filing the brief by 8-18-2004.
Aug 23 2004	Request for extension of time filed   to file appellant's opening brief. (10th request)
Aug 23 2004	Counsel's status report received (confidential)   from atty Caldwell.
Aug 26 2004	Extension of time granted   to 9/17/2004 to file appellant's opening brief. Extension is granted based upon counsel H. Mitchell Caldwell's representation that he anticipates filing that brief by 9/17/2004. After that date, no further extension will be granted.
Sep 21 2004	Counsel's status report received (confidential)   from atty Caldwell.
Sep 21 2004	Request for extension of time filed   to file appellant's opening brief. (11th request)
Sep 23 2004	Extension of time granted   to 9-28-2004 to file AOB. Extension granted based upon counsel H. Mitchell Caldwell's representation that he anticipates filing the brief by 9-28-2004. After that date, no further extension of time will be granted.
Sep 28 2004	Received:   appellant's opening brief (note: lacks certificate of word count; counsel to mail in)
Sep 28 2004	Appellant's opening brief filed   (87,039 words; 275 pp.)
Oct 4 2004	Filed:   Appellant's certificate of word count.
Oct 5 2004	Respondent's brief letter sent; due:   January 26, 2005.
Oct 20 2004	Compensation awarded counsel   Atty Caldwell
Jan 6 2005	Motion for access to sealed record filed   Respondent's application for copies of sealed transcripts.
Jan 13 2005	Request for extension of time filed   to file respondent's brief. (1st request)
Jan 18 2005	Extension of time granted   to 3-28-2005 to file respondent's brief.
Feb 2 2005	Motion for access to sealed record granted   Respondent's "Application for Copies of Sealed Transcript," filed on January 6, 2005, is granted. (Cal. Rules of Court, rule 31.2(a)(4).) The clerk is directed to provide respondent with a copy of the reporter's sealed transcript on appeal of a Marsden hearing before the Honorable Robert A. Dukes, Judge Presiding, on January 15, 1998, in case number KA 034049 of the Los Angeles County Superior Court, volume 1D, pages 89-96. The transcript is to remain sealed.
Mar 22 2005	Request for extension of time filed   to file respondent's brief. (2nd request)
Mar 25 2005	Extension of time granted   to 5/27/2005 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 Robert C. Schneider's representation that he anticipates filing that brief by 6/28/2005.
May 18 2005	Request for extension of time filed   to file respondent's brief. (3rd request)
May 25 2005	Extension of time granted   to 7/26/2005 to file respondent's brief. After that date, only one further extension totaling about 45 additional days will be granted. Extension is granted based upon Deputy Attorney General Robert C. Schneider's representation that he anticipates filing that brief by 9/9/2005.
Jul 22 2005	Request for extension of time filed   to file respondent's brief. (4th request)
Jul 27 2005	Extension of time granted   to 9/26/2005 to file respondent's brief. After that date, only one further extension totaling about ten additional days is contemplated. Extension is granted based upon Deputy Attorney General Robert C. Schneider's representation that he anticipates filing that brief by 10/5/2005.
Sep 20 2005	Request for extension of time filed   to file respondent's brief. (5th request)
Sep 23 2005	Extension of time granted   to 11/28/2005 to file respondent's brief. After that date, only one further extension totaling about 10 additional days will be granted. Extension is granted based upon Deputy Attorney General Robert C. Schneider's representation that he anticipates filing that brief by 12/5/2005.
Nov 15 2005	Request for extension of time filed   to file respondent's brief. (6th request)
Nov 28 2005	Extension of time granted   to 1/12/06 to file the respondent's brief. After that date, no further extension will be granted. Extension is granted based upon Deputy Attorney General Robert C. Schneider's representation that he anticipates filing that brief by January 12, 2006.
Jan 10 2006	Respondent's brief filed   (27886 words; 92 pp.)
Mar 10 2006	Request for extension of time filed   to file appellant's reply brief. (1st request)
Mar 14 2006	Extension of time granted   to May 9, 2006 to file appellant's reply brief.
May 2 2006	Request for extension of time filed   to file appellant's reply brief. (2nd request)
May 5 2006	Extension of time granted   to July 10, 2006 to file the appellant's reply brief.
Jul 10 2006	Request for extension of time filed   to file appellant's reply brief. (3rd request)
Jul 13 2006	Extension of time granted   September 8, 2006 to file appellant's reply brief.
Sep 7 2006	Request for extension of time filed   to file appellant's reply brief. (4th request)
Sep 13 2006	Extension of time granted   to November 6, 2006 to file reply brief. After that date, only one further extension totaling about 30 additional days is contemplated. Extension granted based upon counsel H. Mitchell Caldwell's representation that he anticipates filing the reply brief by December 5, 2006.
Nov 7 2006	Request for extension of time filed   to file appellant's reply brief. (5th request)
Nov 9 2006	Extension of time granted   to January 8, 2007 to file the reply brief. After that date, no further extension is contemplated. Extension is granted based upon counsel H. Mitchell Caldwell's representation the he anticipates filing that brief by January 7, 2007.
Jan 5 2007	Request for extension of time filed   to file reply brief. (6th request)
Jan 9 2007	Extension of time granted   to February 7, 2007 to file the appellant's reply brief. After that date, no further extension will be granted. Extension is granted based upon counsel H. Mitchell Caldwell's representation that he anticipates filing that brief by February 7, 2007.
Feb 6 2007	Request for extension of time filed   to file appellant's reply brief. (7th request)
Feb 9 2007	Extension of time granted   to February 14, 2007 to file the appellant's reply brief. After that date, no further extension will be granted. Extension is granted based upon counsel H. Mitchell Caldwell's representation that he anticipates filing that brief by February 14, 2007.
Feb 13 2007	Appellant's reply brief filed   by atty H. Mitchell Caldwell. (76 pp.) (Note: brief lacks required certificate of word count, counsel to submit as soon as possible.)
Feb 20 2007	Filed:   certificate of word count of appellant's reply brief. (24, 273 words)
Mar 8 2007	Compensation awarded counsel   Atty Caldwell
Aug 27 2008	Oral argument letter sent   advising counsel that the court could schedule this case for argument as early as the November calendar, to be held the week of November 3, 2008, in Sacramento. 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.
Oct 22 2008	Case ordered on calendar   to be argued on Tuesday, December 2, 2008, at 2:00 p.m., in Los Angeles.
Nov 3 2008	Received:   appearance sheet from Deputy Attorney General, Robert C. Schneider, indicating 45 minutes for oral argument for respondent.
Nov 3 2008	Received:   appearance sheet from Attorney Harry M. Caldwell, indicating 45 minutes for oral argument for appellant.
Nov 3 2008	Filed:   respondent's focus issue letter, dated October 29, 2008.
Nov 3 2008	Filed:   appellant's focus issue letter, dated October 30, 2008.
Dec 2 2008	Cause argued and submitted
Dec 11 2008	Compensation awarded counsel   Atty Caldwell
Feb 18 2009	Notice of forthcoming opinion posted
Feb 19 2009	Opinion filed: Judgment affirmed in full   opinion by Moreno, J. -----joined by George, C.J., Kennard, Baxter, Werdegar, Chin, and Corrigan, JJ.
Mar 6 2009	Rehearing petition filed   by appellant. (1,146 words; 7 pp.)
Mar 10 2009	Time extended to consider modification or rehearing   The time for granting or denying rehearing in the above-entitled case is hereby extended to and including May 20, 2009, or the date upon which rehearing is either granted or denied, whichever occurs first.
Apr 1 2009	Rehearing denied   The petition for rehearing is denied.
Apr 1 2009	Remittitur issued
Apr 8 2009	Received:   receipt for remittitur.
Jun 18 2009	Received:   from appellant, copy of motion for leave to proceed in forma pauperis on petition for writ of certiorari. (10 pp. excluding appendices)
Jun 26 2009	Received:   Letter from U.S.S.C., dated June 24, 2009, advising the petition for writ of certiorari was filed on June 16, 2009, No. 08-11065.
Nov 2 2009	Certiorari denied by U.S. Supreme Court

Briefs
Sep 28 2004	Appellant's opening brief filed
Jan 10 2006	Respondent's brief filed
Feb 13 2007	Appellant's reply brief filed

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