Filed 7/23/07
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S041008
v.
JAIME ARMANDO HOYOS,
San
Diego
County
Defendant and Appellant.
Super. Ct. No. 133354
During the evening of May 26, 1992, Daniel and Mary Magoon were killed
in their home and their three-year-old son J. was wounded. In 1994, a San Diego
County jury convicted defendant Jaime Armando Hoyos and codefendant Jorge
Emilio Alvarado of the first degree murders of Daniel and Mary Magoon. (Pen.
Code, §§ 187, 189.)1 It acquitted defendant and Alvarado of attempted murder as
to J. (§§ 664, 187, subd. (a)), but convicted them of the lesser included offense of
assault with a firearm. (§ 245, subd. (a)(2).) The jury further found that defendant
and Alvarado personally used a firearm (§ 12022.5, subd. (a)), and found true the
special circumstances that the murders were committed while defendant and
Alvarado were engaged in the commission or attempted commission of robbery, in
violation of section 211, and of burglary, in violation of section 459. (§ 190.2,
subd. (a)(17).) It also found true a multiple murder allegation. (§ 190.2, subd.
1 All further statutory references are to the Penal Code unless otherwise indicated.
1
(a)(3).)2 Before the penalty phase, the trial court granted Alvarado’s motion for
new trial, but denied defendant’s.3 After a penalty trial, the jury returned a verdict
of life without possibility of parole for the murder of Daniel Magoon, and of death
for the murder of Mary Magoon. The trial court denied defendant’s motions for
new trial (§ 1181) and to modify the penalty verdict (§ 190.4, subd. (e)) and
sentenced defendant to death. This appeal is automatic. (§ 1239, subd. (b).)
We affirm the judgment in its entirety.
I. FACTS
A. Guilt Phase
1. The Prosecution’s Case
a. Evening of May 26, 1992
On May 26, 1992, Daniel Magoon, his wife Mary, and their children, D.
(age seven) and J. (age three), were living on Steele Canyon Road in the Jamul
area of San Diego County. Daniel Magoon operated a large-scale marijuana
distribution business out of the garage of their house. He also kept weapons and
money in the garage. A security gate around the house was usually closed.
Jimmy Johnson was a long-time friend and occasional partner of Daniel
Magoon in the marijuana trade. In 1974, both Daniel Magoon and Johnson had
pleaded guilty to intent to distribute a controlled substance. Johnson testified that
he was not involved in dealing marijuana with Daniel Magoon at the time of
Magoon’s death.
2 The jury also found defendant and Alvarado guilty of the following: conspiracy
to commit robbery (§§ 211, 182.1), robbery in the first degree (§ 211), burglary
(§ 459), grand theft of a firearm (§ 487.3), and transporting more than 28.5 grams
of marijuana (Health and Saf. Code, § 11360, subd. (a)).
3 We discuss the basis for the new trial motions after the guilt phase but before the
penalty phase in part IV. F. Alvarado subsequently pleaded guilty and was
sentenced to life without the possibility of parole.
2
Around 8:30 p.m., Daniel Magoon visited Johnson at Johnson’s residence.
Magoon told Johnson that he was expecting some people to come over to the
Magoon house that evening, and then left Johnson’s residence. That day, Johnson
had seen Magoon with a stack of money, possibly as much as $250,000. Johnson
never heard from Daniel Magoon again.
Around 7:45 p.m., the Magoons’ next-door neighbor, Mary Jane Lange,
entered her bedroom to read. Her bedroom windows were open. About 40
minutes later, Lange heard Daniel Magoon’s voice and at least one other male
voice. She heard Magoon say something like, “Oh, come on.” Sometime between
10:30 p.m. and 11:30 p.m., Mrs. Lange heard what sounded like four firecrackers,
in rapid succession, that came from the direction of the Magoon residence.
Between five and 15 minutes later, Mrs. Lange heard a series of four to seven
more firecracker noises in rapid succession, again coming from the direction of the
Magoon house. Mrs. Lange’s live-in son-in-law, Kenneth Wall, heard what
sounded like four gunshots sometime between 1l:00 p.m. and 11:30 p.m.
b. Auto Stop and Arrest of Defendants
About 12:20 a.m., on May 27, 1992, El Cajon Police Officer William
Pettus was on patrol when he noticed the rear license plate light was out on a
passing Toyota Corolla. Officer Pettus stopped the Corolla, exited his patrol
vehicle, and approached the car. He saw Alvarado in the driver’s seat and
defendant in the front passenger seat. Alvarado was shaking; he appeared nervous
and was sweating, although the evening temperature was cool. Officer Pettus
asked Alvarado for his driver’s license and vehicle registration. Alvarado handed
him a California Identification Card with the name “Ralph Varela.” Alvarado told
the officer that defendant had a driver’s license, and the officer asked both
Alvarado and defendant for defendant’s license, but defendant did not produce
one. After returning to his patrol car and determining that there was no record that
3
either defendant or “Varela” had a valid driver’s license, the officer began to write
a citation and called for police back-up.
El Cajon Police Officer Christopher Pietrzak arrived at the scene shortly
thereafter. Officer Pettus ordered defendant and Alvarado out of the car. Officer
Pietrzak watched defendant and Alvarado, while Officer Pettus searched the
Corolla. Officer Pettus searched the driver’s side and found a nine-millimeter gun
magazine (containing 12 rounds), and two large caliber rounds. On the passenger
side, under the seat, he found a loaded nine-millimeter, semi-automatic, Egyptian-
manufactured Helwan pistol. It had one round in the chamber and eight rounds in
its magazine. The Helwan pistol matched a gun box later found in the victims’
house for a gun that Daniel Magoon owned.
Officer Pettus then searched the back seat of the car, where he found phone
bills, rental agency forms, and a license plate. He searched the trunk and found
approximately 28 pounds of marijuana, some of which was frozen, both in brick
form and inside plastic baggies contained in boxes. A latent fingerprint removed
from a piece of tape used to wrap the marijuana was later identified as Daniel
Magoon’s.
Officer Pettus arrested Alvarado and defendant. The officer conducted a
pat-down search of Alvarado before placing him in a patrol car. He found an
empty nine-millimeter casing in Alvarado’s left front pants pocket. After placing
Alvarado in a holding cell, the officer checked the back seat of the patrol car and
found two nine-millimeter cartridges. A strip search of Alvarado yielded a rock of
methamphetamine.
At the police station, Officer Pietrzak searched defendant and found $1,033
in various denominations in his right rear pants pocket, and three $1 dollar bills in
a front pocket. He also found defendant’s Mexican driver’s license.
4
c. Discovery of the Murders
On May 27, 1992, about 7:00 a.m., seven-year-old D. woke up in his home.
He saw his three-year-old brother, J., sleeping on a futon in the living room, woke
him up, and asked him if he was okay. J. answered “yeah,” and fell back to sleep.
D., however, saw some blood on J. He then found the body of his mother, Mary
Magoon, in the bathroom. He found his father’s body in the kitchen by the
microwave. D. attempted to use the telephone to call 911 or the police, but was
unsuccessful. He left to go to his best friend’s house down the street.
At approximately 7:30 a.m., Patricia Bagnell was jogging through a field
behind a 7-Eleven store in Jamul. She encountered D., barefoot, walking quickly
down the side of a dirt road. D. looked pale and was crying. She said hello, and
asked him why he was crying. He said that his parents were dead and there was a
lot of blood in his house. She walked with him towards the residence of his best
friend, where they encountered Richard Brewer. Brewer asked if they needed
help. Bagnell told Brewer that D. had told her that his parents were dead. Brewer
asked D. where he lived, and the three of them drove to D.’s house. When they
arrived at the Magoon residence, both security gates were open and they pulled
into the driveway.
The front door was open, and Brewer entered the residence while the other
two stayed in his truck. The house was a shambles; everything was torn up.
Brewer saw a little boy on the living room floor close to two rifles and a gun with
a silencer. Brewer shook the little boy but got no response. Brewer got nervous
and left to call for help, leaving the little boy where he was. Brewer, D., and
Bagnell went to Bagnell’s house nearby and called 911.
Firefighters arrived at the Magoon residence about 8:00 a.m. Brewer told
Fire Captain Jeffrey Nelson that there was a bleeding child in the living room, and
that there might be more people down the hallway. After making sure that police
5
deputies were on their way, Captain Nelson entered the house through the front
door. He noticed a “Mac-10” style submachine gun on the carpet just beyond the
entry tile, later identified as an Ingram, semiautomatic .45-caliber pistol with a
barrel extension. As he walked into the entryway, he saw J. lying on a futon. As
he moved toward the child, he saw two rifles that were lying parallel to each other,
later identified as a Ruger Mini-14 semi-automatic .223-caliber rifle, and a .177-
caliber air rifle.
J.’s hair was matted and wet from blood. The upper part of his T-shirt was
covered with blood, which had spilled down onto his diaper. When Captain
Nelson attempted to feel for a pulse, J. woke up and looked very scared. Captain
Nelson then carried him outside to receive medical attention. J. had a laceration to
the back of his head, and a six-to-eight-inch-long bruise in the left shoulder blade
area. His head laceration was later determined to be a bullet wound.
Police deputies and other investigators went through the house. Daniel
Magoon was found dead, lying on the floor in the kitchen area. Mary Magoon
was also found dead, lying on her right side with her shoulder and head at the
threshold of the hallway bathroom doorway. There was no evidence of forced
entry to the Magoon residence.
d. Crime Scene Evidence
On-site investigation and later testing showed that multiple weapons had
been fired in various rooms of the house, and that the house had been ransacked.
No percipient witnesses testified about what happened in the house when the
Magoons were shot. The prosecution relied on detailed crime scene evidence to
establish its case.
(1) Entryway and Living Room
Investigators found three guns in the entryway and living room: a .45-
caliber semiautomatic pistol, a semiautomatic .233-caliber rifle, and a .177-caliber
6
air rifle. The Ingram, Mac 10-style .45-caliber semiautomatic pistol found at the
entryway had a barrel extension (that resembled a silencer) and a magazine, but
contained no ammunition. It had been improperly reassembled, and therefore
could not fire. The Ruger Mini-14 semiautomatic .223-caliber rifle did not have a
magazine, and had no rounds in the chamber. It had been fired before, but the
testifying criminologist could not determine how recently. Blood on the trigger
guard was tested and found to be consistent with defendant’s blood type. The
.177-caliber air rifle was operable and had been fired before, but it could not be
determined how recently. Its barrel was bent in a downward direction, and had
hair and blood on it. Blood on the trigger guard and forearm stock was tested and
found to be consistent with defendant’s blood. Blood on the barrel was consistent
with Mary Magoon’s blood.
On the floor was a woman’s checkbook and wallet that had been rifled
through, but contained a few dollars. There was also loose marijuana on the floor.
One unexpended nine-millimeter cartridge was on the living room floor next to the
fireplace.
(2) Kitchen
On top of the kitchen island, investigators found a full 7-Eleven “Big Gulp”
cup with Alvarado’s fingerprints.4 Daniel Magoon’s face and upper body were
covered with a blanket. His right hand held a clump of hair, later identified as J.’s.
There were several nine-millimeter and .22-caliber casings on the floor near
Daniel Magoon’s body, and scattered across the kitchen counter area. A wallet
containing Daniel Magoon’s driver’s license, business and credit cards, but no
money, was on the floor.
4 Marbell Lopez testified that there was a 7-Eleven store near the Magoon
residence, and that she had driven defendant home from that 7-Eleven store at
least once two months before the murders.
7
(3) Hallway Bathroom
One expended nine-millimeter bullet was found under Mary Magoon’s
right forearm. A second nine-millimeter bullet fell from her body as she was lifted
onto a gurney. She held a clump of hair in her right hand, later identified as her
own. She also held a clump of hair in her left hand, later identified as J.’s, and a
baby pacifier. A baby blanket was lying between her legs. She was wearing
pajamas.
There were three nine-millimeter casings in the hallway bathroom. The
hallway bathroom door had two bullet holes at the base. The door had another
bullet hole, and a blood spatter about five and one-half feet off the ground, which
was consistent with either blunt force trauma or a gunshot. The blood on the
bathroom door was consistent with that of Mary Magoon’s blood.
The hallway carpet contained a bullet hole. A nine-millimeter casing was
lying on the same carpet. There was blood on a wall across from the bathroom
hallway about two and one-half feet off the ground, which was identified as a
swiped application of blood onto the surface. This blood was consistent with the
blood of either Daniel Magoon or J. There was fresh vomit on the hallway carpet
located between where Mary Magoon’s body was found and the kitchen.
(4) Master Bedroom
Investigators found a nine-millimeter casing on the carpet at the end of the
hallway or entrance to the master bedroom. The master bedroom door was open.
The outside of the door had a bullet hole about three feet up from the floor with
some black soot around it, indicating a close-range shot. Splinters from the door
were lying on the floor in that area. A nine-millimeter casing was on a closet
floor. An expended bullet that struck a chair was lying on the floor near a gun
safe. The gun safe had a combination lock and keys, both of which had to be
8
activated to open the safe door. Some keys were in the lock, but the safe door was
closed and locked.
In the master bedroom bathroom there was a hidden storage compartment
behind a slip-out shelf. This storage compartment contained a .30-caliber M-1
rifle. It also contained the gun box for the nine-millimeter Helwan pistol that
Daniel Magoon owned.
(5) Two Bedrooms off the Hallway
The Magoon residence had two bedrooms off the hallway. The door to one
of the bedrooms appeared to have been recently kicked open. The doorjamb was
cracked and splintered, and the striker plate and splinters were lying on the
hallway carpet.
(6) Garage
The garage contained marijuana debris, heat lamps, a fan, a trash compactor
with wood blocks to make bricks of marijuana, an electronic scale, a vacuum
sealer, and packaging material, such as plastic baggies, large garbage and plastic
bags, and rolls of clear tape. A federal drug enforcement agent testifying as an
expert witness stated that the equipment indicated that the persons in control of the
premises were involved in the sale of marijuana, and that the type of marijuana
and its packaging indicated Mexican origin. Also in the garage were two freezers,
a chest-type and an upright-type.5 Only the upright-type freezer was working, and
it contained two packages with large quantities of marijuana stems and seeds, as
well a large amount of marijuana debris at the bottom of the freezer. A roll-away
tool chest contained “pay and owe” sheets, which are used to record drug
transactions.
5 The federal drug enforcement agent testified that marijuana dealers believe that
storing marijuana in a freezer retains its potency.
9
e. Autopsy and Medical Evidence
(1) Daniel Magoon
Daniel Magoon died from four gunshot wounds. A bullet hole on his left
sleeve was surrounded by tiny marks from burning gunpowder, indicating the shot
came from an “intermediate” range of a few inches to a few feet. The four shots
probably were fired in rapid succession. It was unlikely he would have been able
to walk after being shot because both of his lungs and his aorta had been
perforated, and a bullet had penetrated his spinal cord; he probably died within 30
seconds of being shot. The toxicology report on Daniel Magoon showed 0.25
micrograms per milliliter of active cocaine present in his blood.
(2) Mary Magoon
Mary Magoon’s death was caused by gunshot wounds and blunt force
injuries. She suffered four gunshot wounds, including one from a bullet that
entered the back of her head, went through her brain, and exited her right
forehead. In addition, the medical examiner identified at least seven separate blunt
force injuries to her head. The severe injuries to her head alone could have caused
her death. Her skull was severely fractured underneath the bruises and lacerations.
The blunt force injuries to her head occurred before she died. These injuries could
have been caused by the air rifle found on the living room floor.
Mary Magoon also had injuries to the rest of her body, including four
separate injuries to her back. These injuries had imprints that were consistent with
the shape of the air rifle. She had multiple injuries to her arms and hands. Her left
ring finger was broken, and there were shallow cuts to her right wrist. Some of
these injuries were consistent with “defensive wounds,” which is a natural
inclination to move the arms up to deflect blows. A laceration on the top of her
foot contained embedded wood fragments, which the medical examiner opined
were from the wood chips the gunshot hole created in the lower part of the
10
hallway bathroom door. The toxicology report on Mary Magoon showed 0.98
micrograms per milliliter of active cocaine present in her blood.
(3) J.
J. had two lacerations, an entry wound and an exit wound two inches apart,
to the back of his head, indicating a bullet caused the penetrating injury. There
was discoloration and burning of the skin which, the treating physician opined,
indicated the gun was close to the entry wound. A brain scan indicated the brain
had been injured, but J.’s wound was not life-threatening. An impact to the brain
can cause nausea and vomiting.
f. Blood and DNA Testing
Defendant’s and Alvarado’s clothing was taken as evidence the night they
were arrested and later submitted for DNA testing, which revealed the following.
Defendant was the possible source of the bloodstains on his T-shirt and for three
separate bloodstains on his jeans. However, there was blood consistent with that
of Mary Magoon on the right thigh of defendant’s jeans. There was also blood
consistent with that of either Daniel Magoon or J. on the left front pocket area of
defendant’s jeans. No blood was found on Alvarado’s clothing.
g. Ballistic Evidence
A firearms expert testified that his analysis of the recovered bullets and
casings indicated that two nine-millimeter firearms were used at the crime scene.
Daniel Magoon’s Helwan pistol, which was found in Alvarado’s car, was the only
nine-millimeter weapon recovered during the investigation, but none of the
recovered nine-millimeter bullets or casings was fired by the Helwan. The
Helwan had been fired at some point, but it was not possible to determine when.
Expert testimony also revealed that two expended bullets recovered from
Daniel Magoon’s body during the autopsy, and the expended bullet found on the
master bedroom floor, were fired by one nine-millimeter weapon, but the expert
11
could not determine the particular model. Either of the two nine-millimeter guns
listed on the Department of Justice’s records as registered to Alvarado (under the
name “Ralph Varela”) was the type of gun that could have fired the bullets, but
there were approximately 75 other models of nine-millimeter firearms available on
the market that could have also fired them.
The two expended bullets recovered under Mary Magoon’s body were fired
from the same gun, which was probably an Uzi-manufactured firearm. The Uzi
magazine found in Alvarado’s car could have fit into either a pistol or carbine Uzi
weapon.
The firearms expert also testified that six of the nine-millimeter casings
recovered were fired by one gun; five of the casings were found at the crime scene
(including the three casings found near Daniel Magoon’s body) and one casing
was found in Alvarado’s pants pocket when he was arrested. The three nine-
millimeter casings found on the floor in the hallway bathroom (where Mary
Magoon was killed) were fired from a different gun.
An unexpended cartridge found on the living room floor, and two
unexpended cartridges found in the backseat of the patrol car where Alvarado was
sitting, had been cycled through the same firearm that fired the three nine-millimeter
casings found on the hallway bathroom floor. In addition, five .22-caliber casings
were recovered at the crime scene, all of which were fired from the same gun.
h. Defendant’s Dealings With Daniel Magoon
Several times between February and May of 1992, Johnson was present at
the Magoon residence, mostly in the garage, where Daniel Magoon, who knew
some Spanish, spoke with Spanish-speaking men. Johnson identified defendant at
trial as someone he had seen with Daniel Magoon at least once in the garage.
Defendant had been at the garage in the company of one or two other persons.
Johnson did not recognize Alvarado. Defendant had also been in the company of
12
a woman named “Maria” Lopez.6 Johnson initially thought Maria Lopez and
defendant were married, and assumed defendant’s name was “Jaime Lopez.”
Johnson had identified defendant in a live line-up as “Jamie Lopez.”
Marbell Lopez met defendant in 1991, and had a close relationship with
him. In February 1992, she purchased a Ford Bronco for defendant with money he
gave her. She would occasionally drive defendant to the Magoon residence, had
been there with him four or five times, and had met Daniel Magoon there once or
twice while with defendant. She also met Alvarado through defendant.
i. Alvarado’s Firearms Use
Thomas Lamb, who knew Alvarado, testified at trial. He stated that once,
before the murders, Alvarado had displayed a nine-millimeter handgun to him.
Earlier on the day the murders were committed, about 3:00 p.m., defendant,
Alvarado, Thomas Arroyo, and Jose “Chepe” Sanabia drove to a gun shop in San
Ysidro, California. 7 Alvarado, using the name “Ralph Varela,” purchased a
Bersa, a .380-caliber gun manufactured in Argentina, which is smaller than a nine-
millimeter gun and is called a “nine-millimeter short.” Alvarado did not take the
gun with him that day, because there was a 15-day waiting period. Sanabia picked
up the gun after the waiting period.
On May 30, 1992, a detective searched Alvarado’s residence in El Cajon.
Underneath a drawer, the detective found an empty gun box for a semiautomatic
nine-millimeter pistol. The serial number on the gun box matched the serial
number of a weapon listed on the Department of Justice’s records sold to “Ralph
Varela” (Alvarado’s alias).
6 Maria Lopez was apparently a friend of Johnson’s wife. Lopez appears to be the
same person as “Marbell” Lopez, who testified at trial.
7 Sanabia identified defendant in a photographic lineup but could not identify
defendant in court.
13
2. The Defense Case
Neither codefendant testified.
a. Defendant’s Driver’s License
An official from the Mexican consulate testified that defendant had a valid
Mexican truck driver’s license.
b. Daniel Magoon’s Cocaine Use
As noted, toxicological specimens collected during the autopsy indicated
that Daniel Magoon had 0.25 micrograms per milliliter of active cocaine in his
blood. Stephen Stahl, M.D., a psychiatrist and psychopharmacologist, testified
that this level of cocaine would be consistent with Daniel Magoon’s “being
anywhere from mildly stimulated to being overtly crazy.” Richard Whalley, a
forensic scientist and toxicologist, testified that, given this cocaine level, Daniel
Magoon could have exhibited a range of behavior, from being a little more than
usually alert to paranoia.
c. Daniel Magoon’s Firearms Use
Arthur Coleman testified that on April 25, 1982, he was a deputy sheriff in
Imperial County, and he encountered Daniel Magoon driving a van. Magoon
appeared to be under the influence of alcohol, and Deputy Coleman arrested him.
During an inventory search of the van, Deputy Coleman retrieved three loaded
firearms, two unloaded firearms, approximately 1,000 rounds of ammunition, and
two bundles of marijuana.
d. The Shooting of J.
Pathologist Arthur Koehler, M.D., testified that he had reviewed the
medical reports, photographs, and other records of J.’s gunshot wounds. Dr.
Koehler testified that the bullet entry to J.’s scalp was “tangential,” which meant
that it was fired somewhat parallel to his scalp rather than at a right angle. Dr.
14
Koehler stated that J.’s wound was consistent with a bullet passing through Mary
Magoon’s arm.
Forensic pathologist, Irving Root, M.D., also testified about J.’s injuries.
Dr. Root stated that, if J. had been injured in the area of the hallway bathroom, one
would expect to see a blood trail from that area to the futon where J. was found,
but there appeared to be no such blood trail. Because of this, and because of the
large amount of blood on the futon, it was Dr. Root’s opinion that J. was on the
futon within a few seconds to one minute after he began to bleed. Dr. Root
testified that the vomit found on the hallway floor was consistent with J.’s
vomiting after he sustained the scalp injury.
B. Penalty Phase
1.
Prosecution
Evidence
The prosecution gave no opening statement, put on no evidence, and rested
on the guilt phase evidence.
2. Defense Evidence
James Park, a correctional consultant and retired administrator for the
California Department of Corrections, testified about the conditions of defendant’s
confinement, if he were sentenced to life without the possibility of parole.
Carrie Baker, who lived in Jamul, testified that, in the early morning of
May 27, 1992, she heard approximately five muffled gunshots around 2:45 a.m.
(which would have been after the time defendants had been arrested). Three or
four days later, she read something about the murders, called a number that was
listed for information about the case, and left her name and telephone number on
an answering machine.
Eight members of defendant’s family (his wife, three children, three
brothers, and a sister) testified that they loved defendant and would be deeply
saddened if he were put to death.
15
II. PRETRIAL ISSUES
A. Denial of Motion to Dismiss the Special Circumstances
Defendant filed a pretrial motion seeking dismissal of the special
circumstance allegations on the ground they were an ex post facto application of
the laws and therefore a violation of his state and federal rights to due process.
The trial court denied the motion. On appeal, defendant contends the trial court
erred in denying the motion and as a consequence violated his right to due process
of law under the Fifth and Fourteenth Amendments to the United States
Constitution. For the reasons discussed below, we discern no error and no
violation of defendant’s due process rights. 8
Defendant was charged with robbery and burglary special circumstances
under section 190.2, as amended in 1990 by Proposition 115. Defendant contends
that because this court decided the constitutionality of Proposition 115’s
amendments to section 190.2 after the commission of his crimes, charging the
special circumstances violated the ex post facto clauses of the state and federal
Constitutions. He also contends the special circumstances charges denied him due
8 Regarding this claim and most other claims raised on appeal, defendant contends
that the asserted error or misconduct violated several constitutional rights. In
many instances in which defendant raised issues at trial, however, he failed
explicitly to make some or all of the constitutional arguments he now asserts on
appeal. Unless otherwise indicated, his appellate claims either required no action
by defendant to preserve them, or involved application of the same facts or legal
standards defendant asked the trial court to apply, accompanied by a new
argument that the trial error or misconduct had the additional legal consequence of
violating the federal Constitution. To that extent, defendant has not forfeited his
new constitutional claims on appeal. (People v. Guerra (2006) 37 Cal.4th 1067,
1084, fn. 4.) On the merits, no separate constitutional discussion is required, or
provided, where rejection of a claim that the trial court erred on the issue
presented to that court necessarily leads to rejection of any constitutional theory or
“gloss” raised for the first time here. (People v. Boyer (2006) 38 Cal.4th 412, 441,
fn. 17.)
16
process because he lacked notice that he could be charged with the special
circumstances.
Addressing defendant’s claim requires a brief review of the history of
Proposition 115. In June 1990, the electorate passed both Propositions 114 and
115, which contained different versions of section 190.2. (People v. Superior
Court (Clark) (1994) 22 Cal.App.4th 1541, 1545 (Clark).) Under the Proposition
114 version of section 190.2, the Legislature required a finding of intent to kill
before the trier of fact could impose the death penalty on one who was not the
actual killer. (Clark, supra, 22 Cal.App.4th at pp. 1544-1545.) Under the
Proposition 115 version of section 190.2, however, the felony-murder rule applied,
with no required finding that a defendant had an intent to kill. (Ibid.) The passage
of Propositions 114 and 115 spawned litigation that challenged whether
Proposition 115’s amendments to section 190.2 were effective. (Clark, at p.
1546.) On June 25, 1992, we settled this issue in Yoshisato v. Superior Court
(1992) 2 Cal.4th 978, 992. Yoshisato held that Proposition 115’s amendments to
section 190.2 were operative, and went into effect the day of Proposition 115’s
passage in June 1990. The crimes in the present case were committed on May 26-
27, 1992.
Defendant contends that the law was “unsettled” for the two-year period
between the passage of Proposition 115 in June 1990, and our decision in
Yoshisato on June 25, 1992, and that he lacked notice that a death judgment was
proper in light of the actions constituting the two special circumstances charged.
Defendant concedes that his argument fails under Clark, supra, 22 Cal.App.4th at
page 1541. He apparently asks us to disapprove that case.
We decline to do so. As Clark observed, both the United States and
California Constitutions forbid only “ ‘the retroactive application of an
“unexpected” or “unforeseeable” judicial enlargement of a criminal statute.’ ”
17
(Clark, supra, 22 Cal.App.4th at p. 1550.) Our decision in Yoshisato was neither
“unexpected” nor “unforeseeable”; all that can be said of the state of the law
during the two-year period was that it was “unsettled.” (Clark, supra, 22
Cal.App.4th at p. 1550.) Defendant therefore was on notice that this court might
find (as indeed we did) that the provisions of Proposition 115 were controlling.
Consequently, the trial court did not err in denying defendant’s motion to dismiss
the special circumstances.
B. Denial of Motion to Suppress
Defendant claims the trial court erred in denying his section 1538.5 motion
to suppress the evidence discovered in the traffic stop of Alvarado’s car, in which
defendant was a passenger. Defendant asserts the stop violated his rights under
the Fourth and Fourteenth Amendments to the United States Constitution, and that
the trial court improperly admitted all evidence discovered after the stop.
Defendant contends the officers based the stop in significant part on his ethnicity,
in violation of the Fourteenth Amendment. He also contends that even if the
initial stop was lawful, his detention was unnecessarily prolonged and therefore
unlawful. For the reasons discussed below, we reject these contentions.
1. Factual and Procedural Background
At the suppression hearing, the two arresting officers testified. Their
testimony was substantially identical to their testimony at trial, which is
summarized in the statement of facts above. Officer Pettus also testified that he
impounded the car because neither defendant nor Alvarado had a valid license.
Once Officer Pietrzak arrived, Officer Pettus asked defendant and Alvarado to step
out of the car. Officer Pettus then conducted an inventory search to make sure
there were no valuables or other items in the car before he impounded it. Less
than one minute elapsed from the time Officer Pettus asked defendant and
18
Alvarado to exit the car, until the officer found a gun magazine containing 12
nine-millimeter rounds underneath the driver’s side seat cover.
The trial court found that the initial stop was lawful and defendant’s
detention was not unduly prolonged. It therefore denied the motion to suppress.
2. Analysis
In ruling on a motion to suppress, the trial court must find the historical
facts, select the rule of law, and apply it to the facts in order to determine whether
the law as applied has been violated. (People v. Ayala (2000) 24 Cal.4th 243,
279.) We review the court’s resolution of the factual inquiry under the deferential
substantial-evidence standard. (Ibid.) The ruling on whether the applicable law
applies to the facts is a mixed question of law and fact that is subject to
independent review. (Ibid.) Applying this standard, we discern no error in the
trial court’s denial of defendant’s motion to suppress.
a. Stopping and Impounding the Car
Defendant asserts that Officer Pettus stopped and impounded the car
because defendant and Alvarado were two Mexican males, an act that would
violate the federal Constitution’s prohibition on the selective enforcement of the
law based on ethnicity. But defendant did not raise the claim of ethnic bias below,
and consequently forfeits the issue on appeal. The claim also lacks merit.
Defendant did not introduce any evidence at the suppression hearing showing the
officers’ harbored ethnic bias or animus towards them. As defendant conceded at
the suppression hearing, the license plate light on Alvarado’s car was burned out,
and Officer Pettus had probable cause to stop the car for a violation of Vehicle
Code section 24601. As to impounding the car, defendant likewise presents no
19
evidence of any ethnically motivated conduct by the officers.9 Officer Pettus
testified he decided to impound the car because neither defendant nor Alvarado
had a valid license.
Defendant also contends that because a valid Mexican driver’s license was
later found on him, Officer Pettus’s testimony that defendant did not produce the
Mexican driver’s license before the car was impounded is facially implausible.
We disagree. As the trial court noted, it is quite conceivable that defendant and
Alvarado did not want to reveal their true identities at the time of the stop.
Defendant presented no evidence at the suppression hearing to controvert Officer
Pettus’s testimony that defendant said he did not have a driver’s license and did
not provide a license to the officer. Because neither occupant of the car produced
a valid driver’s license, the officer was authorized to impound the vehicle. (See
Veh. Code, § 22651, subd. (p).)
b. Order to Exit the Car
Defendant claims he was unlawfully detained either when the officer
ordered him out of the car or during the period after he was ordered out of the car,
and that there existed no reasonable, articulable suspicion of criminal activity to
justify his detention.
Defendant’s first contention fails because an officer making a traffic stop
may, without violating the Fourth Amendment, order the driver and passengers to
9 Defendant claims an improper ethnic motive for the impounding occurred
because the registered owner of the vehicle, Alvarado’s wife, Sylvia Alvarado,
lived close to where the vehicle was stopped. Defendant implies the officers had a
duty to locate her before impounding the car, but he presents no authority to
support his contention.
20
exit a car. (Maryland v. Wilson (1997) 519 U.S. 408, 410, 415 (Wilson).) 10
Wilson extended to passengers the rule in Pennsylvania v. Mimms that once a
vehicle has been lawfully detained for a traffic violation, a police officer may
order the driver to exit the vehicle without any articulable justification. (Wilson,
supra, 519 U.S. at p. 410; Pennsylvania v. Mimms (1977) 434 U.S. 106, 111, fn. 6;
People v. Maxwell (1988) 206 Cal.App.3d 1004, 1009.) Defendant relies on
People v. Gonzalez (1992) 7 Cal.App.4th 381, 386, a case decided before Wilson
that acknowledged a police officer could order a passenger out of a car lawfully
detained for a traffic violation in order to protect the officer, or other reasonable
justification. (Maxwell, supra, 206 Cal.App.3d at pp. 1009-1010.) Thus, even
under the holdings of the pre-Wilson cases, the officers were justified in ordering
the codefendants to exit the car.
c. Detention Outside the Car
Officer Pettus’s discovery of the gun magazine in the car clearly gave rise
to reasonable suspicion to detain defendant and Alvarado for further investigation.
The issue is whether defendant was unlawfully detained during the time period
starting at the point he was standing outside the car being watched by Officer
Pietrzak and ending at the point that Officer Pettus discovered the gun magazine.
As discussed below, we conclude that defendant’s detention during this time
period was lawful as a brief continuation of detention for officer safety. (Wilson,
supra, 519 U.S. at p. 410.)
10 Wilson was decided after the trial court denied defendant’s motion to suppress.
A high court decision construing the Fourth Amendment, however, applies
retroactively to all convictions that were not yet final at the time the decision was
rendered. (United States v. Johnson (1982) 457 U.S. 537, 562.) Defendant’s
motion to suppress was made after the adoption of Proposition 8 in June 1982,
which abolished the independent state grounds doctrine for the exclusion of
evidence under the California Constitution. (See 4 Witkin & Epstein, Cal.
Criminal Law (3d ed. 2000) Illegally Obtained Evidence, § 30, pp. 644-645.)
21
“A person has been ‘seized’ within the meaning of the Fourth
Amendment . . . ‘only if, in view of all of the circumstances surrounding the
incident, a reasonable person would have believed that he or she was not free to
leave.’ ” (Michigan v. Chesternut (1988) 486 U.S. 567, 573, citation and fn.
omitted.) The high court later made clear that this test “states a necessary, but not
a sufficient, condition for seizure.” (California v. Hodari D. (1991) 499 U.S. 621,
628.) In order for there to be a seizure under the Fourth Amendment there must
also be an arrest, by the application of physical force or by submission to the
assertion of authority. (Id. at p. 626.) As to whether defendant was seized when
he was ordered out of the car, neither Mimms nor Wilson clarifies whether an
officer’s ordering the driver or a passenger out of the car is to be considered a
seizure. However, the high court has recently concluded that a Mimms/Wilson
order is a seizure because it is reasonable for both the driver and passenger to
expect that a police officer at the scene of a crime, arrest, or investigation will not
let people move around in ways that could jeopardize his safety. (Brendlin v.
California (2007) 551 U.S. ___ [127 S.Ct. 2400, 2407].) In the situations in which
a Mimms/Wilson order is used, there is a social expectation of unquestioned police
command, which is at odds with any notion that a passenger would feel free to
leave without advance permission. (Ibid.)
But while defendant was seized for the time period between the officer’s
ordering him out of the car and the officer’s discovery of the gun magazine, his
Fourth Amendment rights were not violated. The initial stopping of the car was
valid, as was the subsequent Mimms/Wilson order by which the officer ordered the
codefendants to exit the car. Consistent with the Fourth Amendment, detention
following a Mimms/Wilson order may continue at least as long as reasonably
necessary for the officer to complete the activity the Mimms/Wilson order
contemplates. Here, the officers needed the codefendants out of the car and out of
22
the way while the first officer did an inventory search of the car before
impounding it. The second officer kept an eye on the codefendants in order to
ensure the first officer’s safety during his search. The trial judge found the period
of detention may have been less than a minute, but at any rate was no more than a
minute or two. Under these circumstances, we discern no violation of defendant’s
Fourth Amendment rights.
C. Denial of Severance Motion
Defendant asserts that the trial court’s denial of his severance motion
violated his rights to due process of law, a fair trial, a reliable sentence, and the
right to testify on his own behalf, in violation of the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution. As discussed below,
we conclude the trial court did not err in denying the severance motion.
1. Statements of the Jailhouse Informants
Several of defendant’s claims on appeal, including the severance claim,
relate to jailhouse informants George Jimenez and Jorge Flores and their
statements. Neither Jimenez nor Flores testified at trial.
a. George Jimenez
Following defendant’s and Alvarado’s arrest after the car stop, Alvarado
was incarcerated in the county jail. On May 30, 1992, Alvarado (under the alias
“Ralph Varela”) was in a holding cell with several other inmates, including
George Jimenez. In an interview on June 23, 1992, Jimenez told police the
inmates were passing around a newspaper that included a story about the Magoon
murders. While looking at the newspaper, Alvarado stated, “Hey, we did this.”
One of the other inmates said, “You’re the ones that capped that little kid?”
Alvarado laughed and replied, “Yeah.” Enraged by Alvarado’s admission, some
of the inmates assaulted Alvarado.
23
b. Jorge Flores
On the same day as Alvarado’s jailhouse assault, defendant was
incarcerated in a different jail, where he spoke with an acquaintance, Jorge Flores.
The next day, June 1, 1992, during an interview with police detectives, Flores
stated defendant told him he had taken a pistol that belonged to a shooting victim.
Defendant told Flores that he and an unnamed companion were sent by their boss
to the victims’ house to either get back the marijuana their boss had sold to the
victims or get the money the victims owed for it. Defendant stated that when they
went to the victims’ house the victims were not there, but when the victims
arrived, the male victim saw they were waiting for him, and the victims went
inside the house. Defendant and his companion knocked on the door; the door
opened, or was broken down, and the male and female victims were inside holding
weapons. The companion pulled his gun and shot one of the victims, and the
bullet also hit one of the children in the head. The second victim tried to shoot,
and defendant shot the second victim.
2. Aranda/Bruton Issues
Defendant and Alvarado moved to sever the trial on the ground that the
prosecution’s proposed admission of the jailhouse informants’ testimony would
violate People v. Aranda (1965) 63 Cal.2d 518 and Bruton v. United States (1968)
391 U.S. 123. Bruton and its progeny provide that if the prosecutor in a joint trial
seeks to admit a nontestifying codefendant’s extrajudicial statement, either the
statement must be redacted to avoid implicating the defendant or the court must
sever the trials. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 43.) As to
the Flores statement, the prosecution resolved any potential Aranda/Bruton issues
when it limited its evidence to defendant’s admission that he had taken a gun from
the victim. As to the Jimenez statement, the prosecutor offered several possible
redactions to avoid violating Aranda/Bruton, all of which the court ultimately
24
deemed inadequate. The prosecutor then elected to proceed with a joint trial at
which he would not introduce the Jimenez statement in his case-in-chief, although
the parties understood it might be used for impeachment purposes. The trial
court’s final order was that the prosecution would not use the Jimenez statement in
its case-in-chief at the guilt or penalty phases.
Section 1098 expresses a legislative preference for joint trials. (People v.
Coffman and Marlow, supra, 34 Cal.4th at p. 40.) A trial court’s denial of a
motion for severance is reviewed for abuse of discretion, judged on the facts as
they appeared at the time of the ruling. (Id. at p. 41.) But even if the ruling on a
severance motion was correct when made, the reviewing court will reverse the
decision if a defendant shows that joinder actually resulted in “gross unfairness,”
amounting to a denial of due process. (People v. Johnson (1988) 47 Cal.3d at p.
576, 590.)
Because the trial court decided the severance motion entirely on Aranda
and Bruton grounds, and because defendant does not claim the trial court erred in
that ruling, he appears to concede the trial court’s denial of the severance motion
was correct. Defendant contends, however, that the court committed prejudicial
error when it left open the possibility that if Alvarado testified, Jimenez could be
called to impeach him. Defendant claims that because the trial court did not bar
Jimenez’s testimony altogether, the denial of severance resulted in gross
unfairness amounting to a violation of due process. But defendant’s claim that the
trial court erred in not barring Jimenez’s testimony altogether on Aranda and
Bruton grounds is not viable. A codefendant’s extrajudicial statement implicating
another defendant need not be excluded when the codefendant testifies and is
25
available for cross-examination. 11 (Nelson v. O’Neil (1971) 402 U.S. 622, 629-
30; People v. Boyd (1990) 222 Cal.App.3d 541, 562-63.)
D. Denial of Motion to Hold an Evidentiary Hearing or Exclude
Statements of Jailhouse Informants
Defendant asserts that the trial court erred in denying his motion to hold an
evidentiary hearing concerning the admissibility of the jailhouse informants’
statements, or to exclude them. He asserts the error denied him due process of
law, in violation of the Fifth and Fourteenth Amendments to the United States
Constitution.12 As discussed below, we conclude the trial court did not err in
denying the motion.
1. Evidentiary Hearing
Defendant contends that Evidence Code section 402 and the federal due
process clause required the trial court to conduct an evidentiary hearing on the
admissibility of Jimenez’s testimony. Evidence Code section 400 et seq., sets
forth the rules for determining the existence or nonexistence of a preliminary fact
when the parties dispute its existence. A “ ‘preliminary fact’ means a fact based
upon the existence or nonexistence of which depends the admissibility or
11 Defendant bases his claim that he suffered gross unfairness because Jimenez’s
testimony was not excluded altogether on his argument (discussed and rejected in
pt. IV. F., post) that he suffered a Brady violation because the prosecutor made a
late disclosure of evidence that undermined Jimenez’s credibility. (Brady v.
Maryland (1975) 373 U.S. 83 (Brady).) But because defendant’s Brady claim
fails, so too does his derivative claim that the trial court’s denial of severance later
resulted in gross unfairness in the form of the alleged Brady violation.
12 The trial court granted defendant’s request for an evidentiary hearing to
determine whether Flores was working as an agent for the police pursuant to
Massiah v. United States (1964) 377 U.S. 201, based on counsel’s representations
of a long-standing relationship between Flores and a police detective. The
evidentiary hearing was held, but Flores failed to appear, and the trial court
suspended the ruling on the motion to exclude his testimony until he could be
found. Flores was not found and did not testify at trial.
26
inadmissibility of evidence.” (Evid. Code, § 400.) Evidence Code section 402,
subdivision (b), provides in relevant part: “[I]n a criminal action, the court shall
hear and determine the question of the admissibility of a confession or admission
of the defendant out of the presence and hearing of the jury, if any party so
requests.” (Italics added.) But subdivision (b) of Evidence Code section 402 does
not mandate, as defendant appears to contend, that a court must hold an
evidentiary hearing on request. Subdivision (b) states only that if a court holds an
evidentiary hearing concerning the admissibility of a confession or admission,
then it must do so outside the presence of the jury, if any party so requests.
The pretrial defense motions asserted that jailhouse informants were
inherently unreliable, but raised no “preliminary fact” concerning the admissibility
of Jimenez’s testimony beyond the undisputed fact that he was a jailhouse
informant. Defendant’s challenges to the reliability of the jailhouse informants
therefore went to the weight of their testimony rather than its admissibility (Evid.
Code, § 351), which the trial court correctly concluded in denying the motion by
stating: “Jailhouse informants may not be the most trustworthy and perhaps
believable individuals, but if there is competency to testify, they may testify.”
Therefore, at the time the trial court ruled on the defense’s in limine motions, the
defense had raised no admissibility issues concerning Jimenez that warranted an
evidentiary hearing.13
13 As recounted in part IV. F., post, after the return of the verdicts, the prosecutor
disclosed Jimenez’s admissions about his use of drugs that called into question
Jimenez’s competency to testify. Defendant argues that had the court granted the
in limine motion for an evidentiary hearing for Jimenez, this information would
have been revealed earlier, and defendant could have avoided the prejudice he
suffered due to the prosecutor’s late disclosure. We reject defendant’s claims in
part IV. F., post.
27
Nor was the trial court required to hold an evidentiary hearing on federal
due process grounds. Defendant correctly notes that under Evidence Code
sections 402 and 405, the voluntariness of a confession is a “preliminary fact” that
a trial judge must determine before the confession may be submitted to the jury.
(People v. Rowe (1972) 22 Cal.App.3d 1023, 1029.) In addition, under the federal
due process clause, a defendant has a right to an evidentiary hearing on the issue
of his confession’s voluntariness. (Jackson v. Denno (1964) 378 U.S. 368, 376-
377; People v. Bennett (1976) 58 Cal.App.3d 230, 236.) Although the Jimenez
statements reported Alvarado’s admissions, defense counsel never raised the issue
of the voluntariness of Alvarado’s admissions to Jimenez. Rather, defense
counsel claimed Jimenez’s statements were inherently unreliable because Jimenez
was a jailhouse informant. Therefore, the due process cases defendant cites are
inapplicable.
2. Motion to Exclude the Testimony of the Jailhouse Informants
Defendant next contends the court should have excluded Jimenez’s
statements under Evidence Code section 352, and as a matter of federal due
process.14 Defendant asserts that jailhouse informant testimony is inherently
unreliable, so that any probative value is outweighed by the testimony’s
prejudicial impact. Referring to the observations of state and federal courts
(People v. Duarte (2000) 24 Cal.4th 603, 617-618; In re Wilson (1992) 3 Cal.4th
945, 957; Commonwealth of Northern Mariana Islands v. Bowie (9th Cir. 2001)
243 F.3d 1109, 114-1116), defendant seeks to document the unreliability inherent
14 Evidence Code section 352 provides: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that
its admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of misleading the
jury.”
28
in jailhouse informant statements, and relies on many items outside the record on
appeal.
Defendant has cited authorities indicating that courts are aware of reliability
issues concerning jailhouse informants. But we have consistently rejected claims
that the testimony of jailhouse informants is inherently unreliable. (People v.
Ramos (1997) 15 Cal.4th 1133, 1165.) Nothing defendant presents here causes us
to reconsider this conclusion. The abuse of discretion standard of review applies
to any trial court ruling on the admissibility of evidence. (People v. Guerra (2006)
37 Cal.4th 1067, 1113 (Guerra).) We conclude the trial court did not abuse its
discretion or violate due process in denying defendant’s motion to exclude the
jailhouse informants’ testimony.
III. JURY SELECTION ISSUES
A. Denial of Motion for Individual and Sequestered Juror Voir Dire
Defendant claims the trial court erred in denying his motion for individual
and sequestered juror voir dire, and thus violated his right to trial by an impartial
jury and to due process of law under the Sixth and Fourteenth Amendments to the
United States Constitution. As we explain, we conclude the trial court did not err
in denying his motion.
Alvarado filed an in limine motion, in which defendant joined, seeking
individual and sequestered juror voir dire. The trial court denied the motion, but
left open the possibility of individual and sequestered voir dire for particular jurors
on a showing of good cause. Subsequently, the court stated it intended to call 12
prospective jurors at a time for voir dire, followed by discussion of challenges for
cause outside the jurors’ presence. Defendant’s trial counsel stated he had no
objection to the court’s proposed jury selection procedures.
29
As an initial matter, the People contend that counsel’s acquiescence in the
trial court’s proposed jury selection process bars defendant’s claim concerning
individual and sequestered voir dire. But the parties stipulated that when the trial
court made a ruling on an in limine motion, the losing party was not required to
restate the objection in order to preserve it for appellate purposes (assuming that
no evidence later presented changed the basis of the trial court’s ruling).
Defendant therefore did not forfeit his contention.
Defendant’s claim fails on the merits, however, because, as defendant
concedes, Code of Civil Procedure section 223, enacted as part of Proposition 115,
abrogated the former individual voir dire procedure directed by Hovey v. Superior
Court (1980) 28 Cal.3d 1, 80. (People v. Waidla (2000) 22 Cal.4th 690, 713,
citing Covarrubias v. Superior Court (1998) 60 Cal.App.4th 1168, 1171.)
Defendant submits that Covarrubias was wrongly decided, and apparently invites
us to reconsider the issue. We decline to do so. (People v. Ramos (2004) 34
Cal.4th 494, 512.)
B. Prosecutor’s Peremptory Challenges (Alleged Batson/Wheeler Error)
Defendant contends that the prosecution’s striking of Hispanic prospective
jurors violated his right to equal protection under the Fourteenth Amendment to
the United States Constitution. For the reasons discussed below, we conclude the
trial court did not err in denying defendant’s motion under Batson v. Kentucky
(1986) 476 U.S. 79, 84-89 (Batson), and People v. Wheeler (1978) 22 Cal.3d 258,
276-277 (Wheeler).
The prosecutor exercised peremptory challenges against three Hispanic
jurors: M. A., L. H., and Y. M. Alvarado made an objection to each excusal
under Batson/Wheeler, in which defendant joined. The prosecution argued that
the codefendants had not made a prima facie showing, given that one Hispanic
30
juror, P. G., was on the panel. The trial court found no prima facie showing and
denied the motion, basing its ruling on a review of the jurors’ voir dire transcripts,
which disclosed neutral grounds for the challenges, and on the presence of at least
one Hispanic juror on the panel, P. G.
Both the state and federal Constitutions prohibit the use of peremptory
challenges to remove prospective jurors based solely on group bias. (Batson,
supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277.) Recently,
“the United States Supreme Court reaffirmed that Batson states the procedure and
standard to be employed by trial courts when challenges such as defendant’s are
made. ‘First, the defendant must make out a prima facie case by “showing that the
totality of the relevant facts gives rise to an inference of discriminatory purpose.”
[Citations.] Second, once the defendant has made out a prima facie case, the
“burden shifts to the State to explain adequately the racial exclusion” by offering
permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a
race-neutral explanation is tendered, the trial court must then decide . . . whether
the opponent of the strike has proved purposeful racial discrimination.”
[Citation.]’ ” (People v. Cornwell (2005) 37 Cal.4th 50, 66-67 (Cornwell),
quoting Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted (Johnson ).)
The high court clarified that “a defendant satisfies the requirements of
Batson’s first step by producing evidence sufficient to permit the trial judge to
draw an inference that discrimination has occurred.” (Johnson, supra, 545 U.S. at
p. 170, revg. in part People v. Johnson (2003) 30 Cal.4th 1302, 1318 [requiring the
defendant to “show that it is more likely than not the other party’s peremptory
challenges, if unexplained, were based on impermissible group bias”].) “ ‘When a
trial court denies a Wheeler motion without finding a prima facie case of group
bias, the appellate court reviews the record of voir dire for evidence to support the
trial court’s ruling. [Citations.] We will affirm the ruling where the record
31
suggests grounds upon which the prosecutor might reasonably have challenged the
jurors in question.’ ” (Guerra, supra, 37 Cal.4th at p. 1101, quoting People v.
Farnam (2002) 28 Cal.4th 106, 135.)
As a preliminary matter, defendant contends that because the trial court did
not articulate the standard it used to determine whether he established a prima
facie discrimination case, we must presume it used the then current “strong
likelihood” standard. Defendant asserts that this standard sets a higher threshold
than the Batson standard of an “inference” of group bias. Defendant also claims
that because the trial court used the incorrect standard, its ruling is entitled to no
deference. 15 But as we have held in analyzing Batson/Wheeler claims,
“[r]egardless of the standard employed by the trial court, and even assuming
without deciding that the trial court’s decision is not entitled to deference, we have
reviewed the record and, like the United States Supreme Court in Johnson . . .
[we] are able to apply the high court’s standard and resolve the legal question
whether the record supports an inference that the prosecutor excused a juror on the
basis of race.” (Cornwell, supra, 37 Cal.4th at p. 73, italics omitted; Guerra,
supra, 37 Cal.4th at p. 1101.)
As to the three challenged jurors, defense trial counsel sought to establish a
prima facie case of discrimination solely on the circumstance that the prosecutor
struck three individuals of Hispanic ancestry, and that defendant was the same.
On appeal, defendant contends that a prima facie case is established because the
15 Defendant also contends that the trial court’s ruling deserves no deference
because, in the course of discussing the motion, the trial court mentioned that
“there were two African-American representatives on the jury.” Defendant argues
that this demonstrates a misunderstanding of the purpose of Batson. We need not
reach this issue, because as explained below, our conclusion that defendant did not
make a prima facie showing is based on our review of the record, not on deference
to the trial court’s ruling or reasoning.
32
prosecutor struck three of the only four Hispanics called to serve on the jury. In
the alternative, defendant claims that the fact that all three struck jurors were
Hispanic women supports a prima facie case of discrimination against Hispanic
women as a cognizable class. We will assume, without deciding, that defendant’s
claim of discrimination as to Hispanic women specifically (as opposed to
Hispanics generally) is not forfeited on appeal because he failed to present it
below. (See People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1016, fn. 12
(Lewis and Oliver).)
We have held that, although a prosecutor’s excusal of all members of a
particular group may establish a prima facie discrimination case, especially if the
defendant belongs to the same group, this fact alone is not conclusive. (Guerra
supra, 37 Cal.4th at p. 1101-1102; People v. Crittenden (1994) 9 Cal.4th 83, 119
(Crittenden); but see Johnson, supra, 545 U.S. at pp. 166, 173 [the removal of all
three African-American prospective jurors established a prima facie case].) The
prosecution did not excuse all Hispanic jurors, and defendant is a Hispanic man
not a Hispanic woman. In any event, as discussed below, the record discloses
race-neutral grounds for the prosecutor’s peremptory challenges. (Guerra, supra,
37 Cal.4th at p. 1101.)
1. Prospective Juror M. A.
During voir dire, Prospective Juror M. A. stated that Spanish was her
primary language, and that she did not speak English well or understand many
words. She stated she did not have any strong feelings either for or against capital
punishment. Defense counsel moved to excuse M. A. for cause because she
lacked sufficient skills in both written and spoken English, and because her
problems with speaking and understanding English could affect her ability to
interact with the other jurors during deliberations. The prosecutor agreed and also
requested that she be excused for cause. Trial counsel for Alvarado opposed the
33
for-cause challenge. The trial court denied the challenge, and stated the parties
would have to deal with excusing M. A as a peremptory challenge.
Defendant contends that because the trial court denied the challenge for
cause based on M. A.’s limited English language skills, this ground is not a valid
basis for a peremptory challenge either. But the circumstance that a juror is not
subject to exclusion for cause does not, on its own, support an inference that group
bias motivated the peremptory challenge. (Cornwell, supra, 37 Cal.4th at p. 70.)
The record demonstrates both the prosecutor and defendant’s own counsel were
reasonably concerned about the prospective juror’s English language skills and, on
this basis, the prosecutor was entitled to excuse her.
2. Prospective Juror L .H.
During voir dire, Prospective Juror L. H. stated she tended to favor life
imprisonment, rather than the death penalty, as the appropriate punishment. She
observed that she could keep an open mind, but would have to be “really
convinced” before returning a death verdict. Although the trial court had
explained at some length that neither side bore a burden of proof in the penalty
phase, when asked by the prosecutor if she would place a burden of proof on either
party regarding the appropriate punishment, she responded, “Prosecution.”
At best, L. H. appeared equivocal about the death penalty, and at worst, she
appeared biased against it. Defendant claims that although she stated during voir
dire that she would lean toward imposing life imprisonment, she also said she
could keep an open mind. That a juror is equivocal about his or her ability to
impose the death penalty is relevant to a challenge for cause, but does not undercut
the race-neutral basis for a prosecutor’s decision to excuse a prospective juror
peremptorily. (People v. Catlin (2001) 26 Cal.4th 81, 118.) The record strongly
suggests the prosecutor had grounds for concern about her possible bias against
the death penalty, and on this basis, was entitled to excuse her.
34
3. Prospective Juror Y. M.
During the court’s voir dire, Prospective Juror Y. M. stated she had strong
religious beliefs against the death penalty and she could not return a death
sentence. During the prosecution’s voir dire, she again expressed religious
reservations against the death penalty, but asserted she could sit as a juror in this
case. The trial court denied the prosecutor’s for cause challenge of Y. M., but
allowed the prosecutor to exercise a peremptory challenge on Y. M. after finding
that Y. M. had strong feelings against the death penalty. The record suggests the
prosecutor had reason for concern about Y. M.’s possible bias against the death
penalty, and on this basis, he was entitled to excuse her.
4. Group Attitude
In addition, defendant claims that, even if Prospective Jurors L. H. and Y.
M. exhibited a bias against the death penalty, most Hispanic women actually feel
this way, so that any disqualification of a Hispanic woman based on her beliefs
about the death penalty would constitute improper bias against this group. We
note that defendant points to no evidence in the record to support his speculation
about Hispanic women’s beliefs. In any event, we have recently rejected a similar
contention. (Lewis and Oliver, supra, 39 Cal.4th at p. 1016.) A prosecutor may
excuse prospective jurors, including members of cognizable groups, based on
personal, individual biases those prospective jurors actually express, even if the
biased view or attitude may be more widely held inside the cognizable group than
outside of it. (Ibid.)
C. Asserted Witt/Witherspoon Error
Defendant contends the trial court erred in not excusing for cause five
prospective jurors who were biased in favor of the death penalty, and in excusing
for cause two prospective jurors he asserts were not biased, in violation of
35
Wainwright v. Witt (1985) 469 U.S. 412 and Witherspoon v. Illinois (1968) 391
U.S. 510. Defendant claims the trial court’s rulings violated his right to trial by a
fair and impartial jury under the Sixth and Fourteenth Amendments to the United
States Constitution. For the reasons discussed below, we conclude that the trial
court did not err in its rulings concerning the for-cause challenges of prospective
jurors, and that defendant’s constitutional rights were not violated.
1. Denial of Defense’s For-cause Challenges
The defense unsuccessfully challenged for cause the following five
prospective jurors: R. L., P. G., S. K., M. N., and D. V.16 The defense later
removed Prospective Juror R. L. using a peremptory challenge. Prospective Jurors
P. G. and S. K. were chosen to sit as jurors.
Preliminarily, the People contend that defendant has forfeited these claims
because his trial counsel did not exhaust his peremptory challenges.17 “ ‘To
preserve a claim of trial court error in failing to remove a juror for bias in favor of
the death penalty, a defendant must either exhaust all peremptory challenges and
express dissatisfaction with the jury ultimately selected or justify the failure to do
so.’ ” (Guerra, supra, 37 Cal.4th at p. 1099, quoting People v. Williams (1997) 16
Cal.4th 635, 667.) Defendant does not dispute the fact that his trial counsel
neither exhausted his peremptory challenges nor expressed dissatisfaction with the
16 For R. L, S. K, M. N. and D.V., both defendant’s trial counsel and Alvarado’s
trial counsel joined in the for-cause challenges. For P. G., Alvarado’s trial counsel
made a challenge for cause, but defendant’s trial counsel stated he was not
challenging P. G. for cause. We do not consider the claim as to P. G. forfeited,
however, because failure to object does not forfeit a Witt/Witherspoon claim on
appeal. (People v. Schmeck (2005) 37 Cal.4th 240, 262 (Schmeck); People v.
Velasquez (1980) 26 Cal.3d 425, 443.) In addition, codefense counsel’s challenge
for cause alerted the trial judge to the possibility of Witt/Witherspoon error as to P.
G. (See People v. Velasquez, supra, 26 Cal.3d at 444.)
17 The defense exercised five of 20 available joint peremptory challenges only,
and defendant did not exercise any of his five individual peremptory challenges.
36
jury ultimately selected. Rather, he asserts that our discussion in People v.
Johnson, supra, 47 Cal.3d at pages 1220-1221, concerning the dynamic nature of
the process of exercising peremptory challenges, somehow undermines the
exhaustion requirement. Defendant is mistaken. Our discussion in Johnson
addresses how a party with fewer remaining peremptory challenges might exercise
them more sparingly, but this does not relieve defendant of the exhaustion
requirement in order to preserve his claim. Alternatively, defendant seeks to
justify trial counsel’s failure to exhaust all peremptory challenges by arguing that
when counsel accepted the 12 jurors in the box, the venire contained several
prospective jurors who may well have been worse than those in the box. Even
assuming this argument could justify a failure to exhaust his peremptory
challenges, it is mere speculation on this record. Defendant’s contentions of
erroneous jury inclusion are therefore forfeited.
Even if he did not forfeit his claims, defendant can show no error with
respect to the three prospective jurors who did not sit on the jury, that is, R. L., M.
N., and D. V.18 As to the two jurors who did sit on the jury, P.G. and S.K., as
discussed below, the trial court properly denied each of defendant’s challenges for
cause.
18 “To establish that the erroneous inclusion of a juror violated a defendant’s right
to a fair and impartial jury, the defendant must show either that a biased juror
actually sat on the jury that imposed the death sentence, or that the defendant was
deprived of a peremptory challenge that he or she would have used to excuse a
juror who in the end participated in deciding the case.” (People v. Blair (2005) 36
Cal.4th 686, 742 (Blair), italics omitted.) The defense removed R. L. with a
peremptory challenge, but defendant makes no argument that exercising a
peremptory challenge on R. L. deprived him of one that he would have used to
excuse a juror who participated in deciding the case (and indeed he cannot make
such an argument, given the number of his remaining unused peremptory
challenges). M. N. and D. V. never even made it into the jury box.
37
The same analysis applies to claims involving erroneous juror exclusion or
inclusion. (See People v. Cunningham (2001) 25 Cal.4th 926, 975.) “ ‘Applying
Wainwright v. Witt, supra, 469 U.S. 412, 424. . . , we have stated that “ ‘[i]n a
capital case, a prospective juror may be excluded if the juror’s views on capital
punishment would “prevent or substantially impair” the performance of the juror's
duties.’ [Citations.] ‘A prospective juror is properly excluded if he or she is
unable to conscientiously consider all of the sentencing alternatives, including the
death penalty where appropriate.’ [Citation.]” In addition, “ ‘[o]n appeal, we will
uphold the trial court's ruling if it is fairly supported by the record, accepting as
binding the trial court's determination as to the prospective juror’s true state of
mind when the prospective juror has made statements that are conflicting or
ambiguous.’ [Citations.]” ’ ” (Blair, supra, 36 Cal.4th at p. 743, quoting People v.
Jenkins (2000) 22 Cal.4th, 900, 987.)
a. Juror P. G.
During the trial court’s voir dire, P. G. stated he would be able to follow the
law and procedures in capital cases. He did not believe his feelings either for or
against the death penalty would affect his judgment. P. G. told defense counsel he
thought the state should reserve the death penalty for the most brutal and severe
crimes, but he did not have a specific list of such crimes in mind. P. G. stated that
if he found the torture allegation in the conspiracy count to be true, he could
impose the death penalty and he would place the burden on the defense in the
penalty phase to produce evidence to get him to lean the other way. But in
response to the prosecutor’s questions, P. G. said he would consider the factors the
trial court read when making his determination about the appropriate punishment,
and he was not predisposed in the death penalty’s favor based on the charges filed
against the defendants. The record supports the trial court’s conclusion that P. G.
38
did not hold views that would prevent or substantially impair the performance of
his duties as a juror. (Blair, supra, 36 Cal.4th at p. 743.)
b. Juror S. K.
In his responses to the written questionnaire, S. K. indicated he thought
there were circumstances, such as a planned murder, where a defendant should
receive the death penalty automatically. During voir dire, S. K. confirmed his
responses to the questionnaire but acknowledged he made them before the court
instructed him about the two options in the penalty phase. S. K. noted that he
could separate his personal beliefs and his ability to consider both sentencing
options. He stated he would follow the court’s penalty instructions, and that he
would consider the alternative penalty of life without the possibility of parole. S.
K. responded to defense counsel that he understood the trial court’s instruction
that the law did not have a preference for the death penalty and that its imposition
was not automatic. He also stated he would make his decision on penalty after
listening to both sides.
Although the trial court concluded that S. K gave equivocal answers, the
court was satisfied that S. K. was capable of fulfilling his juror responsibilities.
The record supports the trial court's conclusion that S. K did not hold views that
would prevent or substantially impair the performance of his duties as a juror.
(Blair, supra, 36 Cal.4th at p. 743.)
2. Granting of Prosecution’s For-cause Challenges
Defendant asserts the trial court erred in excusing two prospective jurors,
R. J., and R. A. for their alleged bias against the death penalty. We discuss each
claim below.
a. Prospective Juror R. J.
In his written questionnaire, R. J. noted that he was ambivalent about the
death penalty, but denied having conscientious or other objections to it, and
39
indicated he would not automatically vote for life imprisonment. In his voir dire
examination, however, R. J. stated he was biased against the death penalty and
would not be able to listen to all the evidence in the penalty phase with an open
mind and return a verdict of death. The trial court granted the prosecutor’s for-
cause challenge to R. J., concluding his ability to sit as a fair and impartial juror
was substantially impaired due to his strong beliefs in opposition to the death
penalty. The record supports the trial court’s conclusion that R. J. held views that
would prevent or substantially impair the performance of his duties as a juror.
(People v. Schmeck, supra, 37 Cal.4th at p. 262.) Even if his statements are
considered conflicting or equivocal, the trial court’s determination of each juror’s
true state of mind is binding on us. (Ibid.)
b. Prospective Juror R. A.
In his written questionnaire, R. A. expressed equivocal views about the
death penalty. During the trial court’s voir dire, R. A. stated that his feelings in
opposition to capital punishment would not affect his judgment, and that he was
capable of keeping an open mind in order to impose a just punishment. But during
defense counsel’s questioning, R. A. observed that he did not think he was ready
to pass judgment in a capital case. In response to the prosecutor’s voir dire, R. A.
stated he would not impose the death penalty on a first time murderer with special
circumstances. He did observe that if a murderer were to kill again after having
been given a chance to rehabilitate, the death penalty might be appropriate.
The prosecutor challenged R. A. for cause because he apparently would not
impose death on first time murderers. The court granted the prosecutor’s
challenge. We find that the record supports the court’s conclusion that R. A.’s
views would prevent or substantially impair his ability to perform his juror duties.
(Schmeck, supra, 37 Cal.4th at p. 262.)
40
D. Denial of Motion to Admonish Prospective Jurors
Defendant contends the trial court erred when it denied his motion in limine
requesting the court to admonish prospective jurors of their civic duty to serve as
jurors, and to set aside their personal views to that duty in order to follow the law.
Defendant claims the trial court’s denial of his motion contributed to the improper
dismissal of qualified jurors, and violated his right to an impartial jury, due
process, and equal protection of the laws under the Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution. He further claims the trial court
erred by excusing prospective jurors for cause without first so admonishing
them.19 Defendant concedes that we have consistently held “a ‘civic duty’
admonition is not necessary,” and apparently asks us to reconsider the issue.
(People v. Gordon (1990) 50 Cal.3d 1223, 1261.) We decline to do so and find no
error under these facts.
IV. GUILT PHASE ISSUES
A. Alleged Errors in Admitting Crime Scene and Autopsy Photographs
Defendant contends that the trial court erred when it admitted crime scene
and autopsy photographs, and in so doing violated his constitutional rights to a fair
trial, due process of law, and a reliable sentence. Having viewed the photographs,
and for the reasons discussed below, we conclude the court neither abused its
19 Defendant argues a “civic duty” admonition might have “salvaged” six
prospective jurors excused for cause: R. J., L. S., N. W., P. K., A. U., and R.A. As
an initial matter, we note that the goal of voir dire is not to “salvage” problematic
jurors, but rather to find 12 fair-minded jurors who will impartially evaluate the
case. In the previous section, defendant claimed that two of these six prospective
jurors (R. J. and R. A.) were excused in violation of Witherspoon and Witt. But
defendant does not appear to claim that the remaining four jurors (L. S., N. W., P.
K., and A. U.) were also excused in violation of Witherspoon and Witt. In any
event, we have reviewed the voir dire of these other four jurors, and we conclude
the record supports the trial court’s findings that these jurors held views that
would prevent or substantially impair the performance of their duties.
41
discretion nor violated defendant’s constitutional rights in admitting the
photographs.
Alvarado filed in limine motions, in which defendant joined, to exclude
crime scene and victim autopsy photographs as irrelevant, cumulative, and more
prejudicial than probative. At a pretrial hearing, the trial court examined the
photographs, and admitted some while excluding others. Defendant apparently
challenges all of the photographs admitted over defense objection, and claims they
were not relevant or, in the alternative, that they were cumulative and
inflammatory. (Evid. Code, § 352.)
In determining whether there was an abuse of discretion, we address two
factors: (1) whether the photographs were relevant under Evidence Code section
210, and (2) if they were relevant, whether the trial court abused its discretion
under Evidence Code section 352 in finding that the probative value of the
evidence was not substantially outweighed by the probability that its admission
would create a substantial danger of undue prejudice. (People v. Carter (2005) 36
Cal.4th 1114, 1166.) Defendant presents no credible argument that the
photographs were irrelevant. The photos were clearly relevant to the
determination of many disputed facts in this case including how the victims were
killed and what happened prior to the killings. (Evid. Code, § 210.)
Nor did the trial court abuse its discretion in determining that the probative
value of each photograph was not substantially outweighed by its prejudicial
effect. “ ‘The admission of photographs of a victim lies within the broad
discretion of the trial court when a claim is made that they are unduly gruesome or
inflammatory. [Citations.] The court's exercise of that discretion will not be
disturbed on appeal unless the probative value of the photographs clearly is
outweighed by their prejudicial effect. [Citations.]’ ” (People v. Ramirez (2006)
39 Cal.4th 398, 453-454, quoting Crittenden, supra, 9 Cal.4th 83 at pp. 133-134.)
42
We have examined the photographs and conclude they are not of such a nature as
to overcome the jury’s rationality. (People v. Gurule (2002) 28 Cal.4th 557, 625.)
The trial court did not err in admitting the challenged photographs of the victims,
nor did their admission violate defendant’s constitutional rights.
B. Asserted Error in Admission of Testimony of Prosecution’s Blood
Spatter Expert Witness
Defendant contends that prosecution blood spatter expert witness, Deputy
Sheriff Brian Kennedy, was biased and lacked proper qualification as an expert.
He claims Kennedy’s testimony (on crime reconstruction using blood spatter
analysis) violated defendant’s constitutional rights to a fair trial, due process of
law, and a reliable penalty determination. The testimony described the blood
spatter patterns the killings caused, other transfers of blood (including “castoffs,”
“wipes,” and drip trails), and blood pooling in Daniel Magoon’s body. Defendant
further contends the court violated Evidence Code section 402 and his federal due
process rights when it deferred, until midtrial, any rulings on the admissibility of
Kennedy’s testimony. For the reasons discussed below, we conclude no error
occurred.
The parties discussed the admissibility of Kennedy’s testimony during in
limine motions. Defense counsel made an oral objection to the testimony under
People v. Kelly (1976) 17 Cal.3d 24 and Frye v. United States (D.C. Cir. 1923)
293 F. 1013, raising the issue of whether Kennedy had used correct procedures.20
The court ruled that Kelly was inapplicable to Kennedy’s testimony. After
reviewing Kennedy’s resume, the trial court stated that there was no need to have
an Evidence Code section 402 hearing on Kennedy’s qualifications, because
20 Because the United States Supreme Court abrogated the Frye formulation in
federal trials in 1993, this rule should more accurately be referred to now as the
Kelly rule. (See People v. Leahy (1994) 8 Cal.4th 587, 591.)
43
Kennedy appeared qualified. The trial court noted that the defense would have the
opportunity to voir dire Kennedy at trial to confirm his qualifications. At trial,
defense counsel did not object to Kennedy’s testimony.
As a preliminary matter, the People assert that defendant forfeited his
claims because he failed to object to Kennedy’s testimony either on the ground
that he was biased or that he lacked proper qualifications as an expert. Defendant
replies that trial counsel’s objection on Kelly and Frye grounds to the scientific
validity of the procedures followed by Kennedy is sufficient to preserve the issue
on appeal.21 But because the objection below neither explicitly nor implicitly
raised the issues of Kennedy’s bias or lack of qualification, we conclude that
defendant did forfeit the claims. (People v. Jenkins (2000) 22 Cal.4th 900, 1000.)
Even assuming that defendant’s claims were not forfeited, we find them
without merit. A claim that expert opinion evidence has been improperly admitted
is reviewed under the deferential abuse of discretion standard. (People v. Panah
(2005) 35 Cal.4th 395, 478.) “Error regarding a witness’s qualifications as an
expert will be found only if the evidence shows the witness ‘ “ ‘clearly lacks
qualification as an expert.’ ” ’ [Citation.]” (People v. Farnam, supra, 28 Cal.4th
at p. 162.) The record does not show that Kennedy lacked expert qualifications.
Kennedy received a bachelor’s degree in Police Science and Management and
after becoming a police officer took supplemental courses in crime scene
reconstruction and bloodstain patterns. He lectured on blood spatter evidence at
an in-service school for criminal investigators and prosecutors at San Jose State
University. He had testified regarding blood spatter evidence in superior courts
21 Defendant appears to refer to the Kelly/Frye objection below to support his
contention that Kennedy lacked proper expert qualification and was biased in the
prosecution’s favor. He does not raise a Kelly rule issue on appeal. A Kelly rule
claim would be unavailing in any case, as we have held that Kelly is inapplicable
to blood spatter testing. (People v. Clark (1993) 5 Cal.4th 950, 1018.)
44
throughout the state on numerous occasions. He conducted blood spatter analysis
for the Sacramento Sheriff’s Department and went to homicide scenes. Kennedy’s
educational background and work experience fully qualified him to testify as an
expert on blood spatter evidence. (See People v. Combs (2004) 34 Cal.4th 821,
849.)
Defendant contends that Kennedy was biased because his report included a
section called “The Bludgeoning,” in which he opined that the eight cast-off
bloodstains in the hallway were likely caused by repeated blows to Mary
Magoon’s head by an instrument consistent with a nine-millimeter handgun. The
serology reports, however, showed that the blood at issue was not Mary
Magoon’s; it was D.’s.22 Defendant implies this discrepancy shows Kennedy’s
bias against the defendant in the face of scientific evidence to the contrary. But
the explanation for the apparent conflict, as Kennedy testified at trial, was that his
deadline for submitting the findings to the district attorney’s office required him to
write his report before the serology tests had been completed, and he was asked to
outline as many possibilities as he could, including the possibility that the blood in
the hallway was Mary Magoon’s. After the serology tests were returned, and prior
to trial, Kennedy sought to redact the pages of the report that dealt with the
bludgeoning in the hallway, but the trial court ruled that Kennedy’s entire report
was the fair subject of defense examination. Nothing in this record suggests
Kennedy was biased in any regard.
In addition, we find no merit in defendant’s contention that the trial court
violated Evidence Code section 402 and defendant’s due process rights when it
deferred until midtrial any rulings on the admissibility of Kennedy’s testimony.
The trial court did not defer its Evidence Code section 402 rulings until midtrial; it
22 D. was not injured during the murders. His cast-off bloodstains in the hallway
apparently predated the murders.
45
made pretrial rulings on the two preliminary facts raised, which were the scientific
reliability of blood spatter testing (the Kelly rule objection), and Kennedy’s
qualifications to testify as an expert witness.23
Defendant contends the court should have held an evidentiary hearing
before Kennedy was allowed to testify. The claim has no merit. Kennedy’s
resume sufficiently established his qualifications. In addition, the court correctly
concluded that blood spatter testing does not require Kelly scrutiny. (People v.
Clark, supra, 5 Cal.4th at p. 1018.) We therefore conclude no error occurred
when the court admitted Kennedy’s expert testimony.
C. Asserted Errors in Rulings on Admissibility of Evidence of Mary
Magoon’s Alleged Propensity for Violence and Use of Firearms
Defendant contends that the court abused its discretion in excluding
evidence of Mary Magoon’s alleged propensity for violence and use of firearms.
Defendant claims the exclusion violated his rights to due process, to present a
defense, and to a reliable penalty determination under the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution. As discussed below,
defense counsel did not seek to admit this evidence, and, even if he had, it would
not have been an abuse of discretion for the trial court to have excluded the
evidence.
Before trial commenced, the court denied the prosecution’s motion in
limine to exclude, as irrelevant, evidence of Daniel Magoon’s propensity for
violence and prior firearm use. The court agreed with defense counsel that the
presence of the Ingram “Mac 10” semiautomatic pistol at the entryway of the
23 Evidence Code section 400, et seq. set forth rules for determining the existence
or nonexistence of a preliminary fact “when the existence of a preliminary fact is
disputed.” (Evid. Code, § 402, subd. (a).) A “ ‘preliminary fact’ means a fact
upon the existence or nonexistence of which depends the admissibility or
inadmissibility of evidence.” (Evid. Code, § 400.)
46
Magoon house supported the defense theory that Daniel Magoon may have
brandished that weapon in a confrontation with defendants, and that his propensity
for violence and prior use of firearms was therefore relevant. But the parties did
not discuss the relevance of evidence pointing to Mary Magoon’s propensity for
violence or prior firearm use.
During the cross-examination of prosecution witness Jimmy Johnson,
defense counsel asked Johnson about statements Johnson made to the police
concerning Mary Magoon’s propensity for violence and prior firearm use. The
prosecution objected to the question on relevance grounds, but the court overruled
the objection. Later, outside the presence of the jury, defense counsel told the
court that Johnson had made a prior statement to police that Johnson believed
Mary Magoon was heading to the bathroom to get a gun before she was murdered.
The court did not rule that the statement was inadmissible. Instead, it observed
that the evidence presented at trial thus far provided no foundation for questions
concerning Mary Magoon’s propensity for violence and firearm use. Continuing
his cross-examination of Johnson, defense counsel asked about a statement that
Johnson had made to the police that Mary Magoon “was on a runaway . . . train
with Dan.” The court sustained the prosecution’s objection on relevance grounds.
The issue of Mary Magoon’s propensity for violence resurfaced later in the
trial, when defense counsel asked the court to rule on defendant’s pending motion
in limine to admit the testimony of Detective Coleman. That testimony would
discuss Daniel Magoon’s 1982 arrest in order to show his propensity for being
armed during drug transactions. The court was concerned that because Mary
Magoon had also been present at the arrest, the testimony could confuse the issues
under Evidence Code section 352, particularly because there was no evidence
establishing Mary Magoon’s propensity for violence. Defense counsel made a
narrower offer of proof limited to Daniel Magoon’s past gun use, and stated he
47
was willing to sacrifice any testimony about Mary Magoon in order to present the
jury with the evidence concerning Daniel Magoon. In light of the narrowed offer
of proof, the court admitted Detective Cole’s testimony, and defendant’s counsel
did not object to the ruling.
Although the record shows that defense counsel failed to seek a ruling on
the admissibility of evidence concerning Mary Magoon’s propensity for violence
and prior use of firearms, defendant contends that any further attempts by trial
counsel to admit such evidence would have been futile after the court appeared to
indicate that it believed such evidence to be inadmissible. Even assuming
defendant’s argument to be true, the trial court would not have abused its
discretion in excluding such evidence under Evidence Code section 352 on the
ground that it would have created a substantial danger of confusing the issues at
trial. (See People v. Wright (1985) 39 Cal.3d 576, 587-88 [court may exclude
under Evidence Code section 352 evidence of the aggressive and violent character
of the victim.]) During the pretrial discussions of the relevance of admitting
evidence of Daniel Magoon’s propensity for violence and gun use, the trial court
pointed out that, in order for a murder victim’s propensity for violence to be
relevant, there must be some evidentiary support for a self-defense-type theory
that the defendant perceived the murder victim as presenting an immediate threat.
As the trial court noted, even if the murder victim were the most violent person in
the world, that fact would not be relevant if the evidence made it clear that the
victim was taken by surprise and shot in the back of the head.
There was no evidence indicating that Mary Magoon could have presented
a threat to defendant. Mary Magoon was killed in the hallway bathroom, which
was a significant distance away from the living room, where investigators found
the two rifles, or the entryway, where investigators found the Ingram “Mac 10”
semiautomatic pistol. The evidence indicated that she had been shot while holding
48
three-year-old J. in her arms, beaten, and then finished off with a bullet to the back
of her head. Defendant’s sole basis for arguing that Mary Magoon might have
been perceived as a threat to defendant is Johnson’s statement to the police that
Mary Magoon might have been going for a gun in the hallway bathroom, which
was sheer speculation. 24 Given this record, it would have been within the trial
court’s discretion to have excluded the admission of evidence pertaining to Mary
Magoon’s alleged propensity for violence and prior use of firearms.
D. Asserted Error in Refusal to Instruct on Voluntary Manslaughter as to
Mary Magoon
Defendant contends the trial court erred in refusing to instruct the jury on
the voluntary manslaughter of Mary Magoon as a lesser included offense of
murder, on the theory that her killing was committed either in sudden quarrel/heat
of passion or in unreasonable self-defense. Defendant claims the court’s failure to
so instruct deprived him of his due process right to have the jury determine every
material issue the evidence presented. Defendant again points to Mary Magoon’s
alleged propensity for violence and claims that her alleged role in the family
business may have led defendant to believe she was “going for a weapon in the
bathroom when killed.” Defendant asserts that this evidence “supports a voluntary
manslaughter instruction because it was sufficient to deserve consideration by the
jury, and a reasonable jury could find it sufficiently persuasive to warrant a verdict
of voluntary manslaughter.”
We disagree. “ ‘Manslaughter is “the unlawful killing of a human being
without malice” [Citation.]’ ” (People v. Benavides (2005) 35 Cal.4th 69, 102,
24 Defendant asserts that Mary Magoon “was found on the floor near the empty
box of a weapon just like the one she was known to have carried in the past.” But
defendant is mistaken. The empty gun box of the Helwan pistol was found in a
hidden compartment in the master bedroom bathroom, not in the hallway
bathroom where investigators found Mary Magoon’s body.
49
quoting § 192.) Even though a court must instruct on general principles of law
relevant to the issues the evidence raises, “[a] court is not obligated to instruct sua
sponte on voluntary manslaughter as a lesser included offense in the absence of
substantial evidence that the defendant acted in a ‘sudden quarrel or heat of
passion’ (§ 192, subd. (a)), or that the defendant killed in ‘ “ ‘unreasonable self-
defense.’ ” ’ [Citation.]” (Benavides, at p. 102.) There was no evidence that the
killing of Mary Magoon involved sudden quarrel/heat of passion or unreasonable
self-defense, and therefore no support for a voluntary manslaughter instruction.
E. Asserted Errors Arising Out of Lack of Instruction on the Elements of
Torture
Defendant contends the court violated his rights to due process, a fair trial,
and a reliable sentence under the Fifth, Sixth, Eighth, and Fourteenth Amendments
to the United States Constitution because the prosecution misused the law related
to conspiracy, and effectively charged defendant with murder by torture, when it
listed the torture of Mary Magoon as one of 10 overt acts in the conspiracy to
commit robbery count (a noncapital offense for which defendant and Alvarado
were charged and found guilty). Defendant further contends that the prosecutor’s
references to torture during the trial had the effect of trying defendant for murder
by torture, even though neither codefendant was so charged, and the trial court did
not instruct the jury in any definition of torture. Defendant does not specify
whether the asserted error is based on prosecutorial misconduct in using the word
“torture” or the trial court’s failure to instruct the jury in the legal elements of
torture, but we discern no error under either theory. Defense counsel never
objected to the prosecution’s use of the word “torture” in the information or at
trial. For this reason, we consider any claim based on the prosecution’s use of the
word forfeited. (Jenkins, supra, 22 Cal.4th at p. 1000.) In addition, as we explain,
even if defendant did not forfeit the issue, he fails to show prejudice.
50
1. Torture as an Overt Act
Count 1 of the information charged both codefendants with conspiracy to
commit robbery. It listed 10 overt acts: (1) arming themselves with nine-
millimeter pistols; (2, 3) driving to Daniel Magoon’s residence and entering it; (4)
shooting and murdering Daniel Magoon; (5) torturing Mary Magoon; (6) shooting
and murdering Mary Magoon; (7) shooting and wounding J.; (8-10) stealing
Daniel Magoon’s marijuana, nine-millimeter Helwan pistol, and money. The
information charged murder generally, and did not specify first degree murder by
torture under section 189. Defendants were not charged with the crime of torture
under section 206, nor was torture alleged as a special circumstance under section
190.2, subdivision (a)(18). The prosecution submitted but, on defense counsel’s
objection, withdrew a first degree murder by torture instruction. The court did not
instruct the jury on any torture definition.
For the conspiracy count, defendant cites no authority holding the trial
court was required to instruct the jury on the meaning of the word “torture,” as an
overt act. “A court has no sua sponte duty to define terms that are commonly
understood by those familiar with the English language, but it does have a duty to
define terms that have a technical meaning peculiar to the law.” (People v. Bland
(2002) 28 Cal.4th 313, 334.) In the information, the word “torture” was used in its
commonly understood sense to describe an overt act, not as part of a legal
definition of conspiracy. Overt acts are not required to be crimes. (People v.
Marquez (1994) 28 Cal.App.4th 1315, 1325-26.) Because there is no indication
the word “torture” was being used in a technical legal sense, the trial court had no
sua sponte duty to define the term in the conspiracy count.
Even assuming the trial court erred in not instructing on the meaning of the
word “torture” as an overt act, any error was harmless under any standard.
(Chapman v. California (1967) 386 U.S. 18, 24 [federal constitutional error
51
assessed under harmless beyond a reasonable doubt standard]; People v. Watson
(1956) 46 Cal.2d 818, 836-837 [state law error assessed under reasonable
probability standard]; People v. Flood (1998) 18 Cal.4th 470, 490, 502-504
[instructional error subject to harmless error review].) Substantial evidence
supported the other nine overt acts, any one of which also supported the jury’s
guilty verdict on the conspiracy count. (People v. Russo (2001) 25 Cal.4th 1124,
1128 [jury need not unanimously agree on the same overt act to convict for
conspiracy].)
2. First Degree Murder by Torture
Defendant contends the court should have instructed the jury on the legal
elements of torture. But because defendant was not charged with the separate
crime of torture under section 206, or torture as a special circumstance under
section 190.2, subdivision (a)(18), the trial court had no duty to instruct on either.
Murder by torture is a specified statutory basis for first degree murder. (§ 189.)
The information charging defendant with murder did not specify first degree
murder by torture, but the accusatory pleading need not specify the theory of first
degree murder on which the prosecution intends to rely. (See People v. Diaz
(1992) 3 Cal.4th 495, 556-57 [information need not specify first degree murder by
poison].) Of course, even though the prosecutor did not charge first degree
murder by torture, he still might have presented the elements of murder by torture
to the jury in the course of presenting his case. But even assuming the prosecutor
in effect developed a murder by torture theory at trial and even assuming the trial
court had a duty to instruct on first degree murder by torture, defendant can show
no possible prejudice from the absence of the instruction. The jury was instructed
on two theories supporting a guilty verdict for first degree murder: premeditation
and felony murder. The jury found defendant guilty of first degree murder as to
Mary Magoon based on either or both of those theories. There was no possible
52
prejudice to defendant by the trial court’s failure to provide the jury with a third
theory for returning a verdict of first degree murder. Whether the jury accepted or
rejected this third theory would not have changed the verdict of first degree
murder it returned based on the other two theories.
F. Asserted Errors Arising From Prosecutor’s Late Disclosure of Report
on Informant Jimenez
The jury returned its verdicts in the guilt phase on March 7, 1994. The next
day, the prosecutor sent defense counsel a copy of a one-page report dated March
7, 1994 prepared by the prosecutor’s investigator, David Weil, which described
statements Jimenez had made to Weil on September 22, 1993, when Weil served a
subpoena on Jimenez. Weil’s report appeared to undermine the credibility of
Jimenez as a potential witness because it noted that Jimenez said his statements to
the police about Alvarado’s admissions in jail could have been untrue because of
drugs Jimenez was taking at the time.25 As discussed above in part II.C., the trial
court had excluded Jimenez’s statements from the prosecution’s case-in-chief on
Aranda and Bruton grounds, but Jimenez’s statements were held admissible for
impeachment if Alvarado testified. Neither Alvarado nor Jimenez testified at trial.
Both defendant and Alvarado filed written motions seeking a new trial and
other relief. They complained that the prosecutor’s failure to disclose information
affecting Jimenez’s credibility violated Brady v. Maryland, supra, 373 U.S. at
page 87. Defendant’s motion included the declaration of his cocounsel, Arturo
25 Weil’s report stated in relevant part: “Jimenez said that he did not want to
testify in this matter because he was afraid. He went on to say that he does not
remember most of what he told the officers and that he (Jimenez) was taking
strong medication at the time he talked to the authorities. Jimenez made it known
to me that his statement that was recorded earlier could be misleading or contain
falsehoods because of the drugs he was taking at the time.” Jimenez also said “he
was concerned for his safety and the safety of his family if he was compelled to
testify.”
53
Herrera, stating that defendant had consistently expressed a desire to testify in his
own defense, and that Attorney Herrera had advised defendant against testifying
because Alvarado was not going to testify.
The trial court granted Alvarado’s motion for a new trial, reasoning that
Jimenez’s statements to Weil constituted Brady material that the prosecution was
obligated to disclose to Alvarado, and that the prosecutor’s failure to provide this
information at a critical stage in the proceedings prevented Alvarado’s counsel
from providing effective representation on the question of whether to testify.26
(Brady, supra, 373 U.S. at p. 87.) The trial court denied defendant’s motion in all
respects.
Defendant contends the trial court erred in denying his motion for a new
trial because the late disclosure of the Weil report violated his right to due process
under Brady and his right to the effective assistance of counsel. Defendant claims
these constitutional violations rendered his trial fundamentally unfair and require
the court to set aside his verdicts. For the reasons discussed below, we conclude
defendant’s constitutional rights were not violated, and the trial court did not err in
denying defendant’s motion for a new trial.27
26 In granting Alvarado’s motion, the trial judge also mentioned that Alvarado’s
counsel had subpoenaed the sheriff’s office for Jimenez’s psychiatric and medical
record, but had not received them even though Alvarado’s counsel had a right to
receive that information.
27 Defendant’s motion for a new trial was based on the constitutional grounds of
an asserted Brady violation or violation of the right to the effective assistance of
counsel. On appeal, a trial court’s ruling on a motion for new trial is reviewed
under a deferential abuse of discretion standard. (People v. Coffman and Marlow,
supra, 34 Cal.4th at p. 127.) Its ruling will not be disturbed unless defendant
establishes “ ‘a manifest and unmistakable abuse of discretion.’ ” (Ibid., quoting
People v. Delgado (1993) 5 Cal.4th 312, 328.) Here, the asserted abuse of
discretion is the asserted failure of the trial court to recognize violations of
defendant’s constitutional rights. Our constitutional analysis below therefore also
addresses the abuse of discretion issue.
54
a. Brady v. Maryland
(1) The Brady Standard
In Brady, the United States Supreme Court held “that the suppression by
the prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” (Brady, supra, 373
U.S. at p. 87.) The high court has extended the prosecutor’s duty to encompass
the disclosure of material evidence, even if the defense made no request
concerning the evidence. (United States v. Agurs (1976) 427 U.S. 97, 107.) The
duty encompasses impeachment evidence as well as exculpatory evidence.
(United States v. Bagley (1985) 473 U.S. 667, 676.) Such evidence is material
“only if there is a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been different.” “A
‘reasonable probability’ is a probability sufficient to undermine confidence in the
outcome.” (Id. at p. 682.) “ ‘[T]he reviewing court may consider directly any
adverse effect that the prosecutor’s failure to respond may have had on the
preparation or presentation of the defendant’s case.’ ” (In re Brown (1998) 17
Cal.4th 873, 887, quoting Bagley, supra, 473 U.S. at 683.) Defendant has the
burden of showing materiality. (In re Sassounian (1995) 9 Cal.4th 535, 545.)
(2) Defendant’s Brady Claim
Defendant essentially asserts the Brady violation that led the court to grant
Alvarado’s new trial motion had a spillover effect as to him because he and
Alvarado had a strategic understanding that if one defendant testified, the other
defendant would also have to testify. Defendant contends the timely disclosure of
the Weil report would have led him to testify due to a change in this joint defense
strategy.
55
As the trial court acknowledged during the hearing on the new trial
motions, Brady claims typically require showing the different result of the
proceeding in terms of the verdict, rather than in terms of an intermediate event
such as a defendant’s testifying. Defendant essentially ignores the issue of how
his testimony would have changed the verdict. If, however, defendant cannot
establish the materiality of the Weil report even as to the intermediate event of his
decision whether to testify, then he has failed to establish the verdict would have
been different. As discussed below, we conclude defendant has failed to establish
materiality even as to his decision whether to testify.
(3) Inadmissibility of the Jimenez Statements
Assuming defendant’s claim is cognizable under Brady, the People pose a
further threshold issue in observing that evidence inadmissible at trial is
immaterial under Brady and, therefore, the failure to disclose such inadmissible
evidence is not a Brady violation. Defendant concedes that, at the joint trial,
Alvarado’s purported admissions would have been admissible against Alvarado
but inadmissible as hearsay against defendant, and that if defendant’s motion for
severance had been granted, the Jimenez testimony could not have been admitted
at his single trial for any purpose. Defendant claims, however, that even though
the Jimenez testimony was not admissible against defendant individually, his due
process claim must survive.
The United States Supreme Court has never announced a bright line rule
that only admissible evidence is “material” for purposes of a Brady violation.28
28 In Wood v. Bartholomew (1995) 516 U.S. 1, 6-7, the United State Supreme
Court ultimately found inadmissible polygraph evidence not material under Brady.
However, Wood was not based on a per se rejection of inadmissible evidence as a
basis for a Brady claim. Wood found the evidence not material because, even
based on the assumption that this inadmissible evidence might have led
respondent’s counsel to conduct additional discovery leading to admissible
56
Some federal and state courts, however, have held that unless the undisclosed
evidence would have been admissible at trial, it need not have been disclosed
under Brady.29 Other courts have rejected admissibility as a prerequisite for
determining Brady’s applicability, as long as the information would have led to
admissible evidence or been useful to the defense in structuring its case. 30 This
court has not directly addressed the issue, although we have implied in dicta that
admissibility might be a prerequisite to materiality.31 In addition, this case
presents the additional question of what aspect of admissibility is a prerequisite to
Brady materiality in a joint trial: admissibility at trial generally, or admissibility as
to the individual defendant making the Brady claim?
Because the evidence on which defendant bases his Brady claim was
admissible at the joint trial, for the reasons that follow, we conclude defendant
may assert a Brady claim, even though the evidence was not admissible against
him.32 The Brady standard for materiality states the undisclosed evidence is to be
evidence, the evidence’s influence on the outcome of the case was speculative.
(Wood v. Bartholomew, supra, 516 U.S. at p. 6.); see also Paradis v. Arave (9th
Cir. 2001) 240 F.3d 1169, 1178 [“In Bartholomew, the Court did not categorically
reject the suggestion that inadmissible evidence can be material under Brady, if it
could have led to the discovery of admissible evidence.”])
29 See, e.g., Madsen v. Dormire (8th Cir. 1998) 137 F.3d 602, 604 ([inadmissible
evidence of forensic chemist’s incompetence not material under Brady]); see also
Gershman, Prosecutorial Misconduct (2d ed. 2005) § 5:8, and cases collected
therein.
30 See, e.g., Paradis v. Arave, supra, 240 F.3d at page 1179 ([prosecutor's notes,
although not admissible, could have been used to contradict a key medical witness
and nondisclosure was Brady violation]); see also Gershman, Prosecutorial
Misconduct, supra, § 5:8, and cases collected therein.
31 “Materiality, in turn, requires more than a showing that the suppressed
evidence would have been admissible.” (People v. Salazar (2005) 35 Cal.4th
1031, 1043, cf. Wood v. Bartholomew, supra, 516 U.S. at p. 2.)
32 Thus, we need not and do not reach the issue of whether a Brady claim is
precluded when the basis of the Brady claim is evidence not admissible at trial.
57
evaluated in terms of how “the result of the proceeding would have been
different.” (United States v. Bagley, supra, 473 U.S. at p. 682.) In addition, the
evidence’s materiality “ ‘must be evaluated in the context of the entire record.’ ”
(In re Brown, supra, 17 Cal.4th at p. 887, quoting United States v. Agurs, supra,
427 U.S. at p. 112.) In deciding whether asserted Brady evidence is material to
defendant’s case, it is therefore appropriate to examine the effect of the evidence
on the actual joint proceeding in which defendant was tried.
(4) The Joint Defense Strategy
Even though defendant’s Brady claim is not per se precluded because the
undisclosed evidence was inadmissible against him individually, its
inadmissibility highlights the weaknesses in his Brady contention. As defendant
concedes, Jimenez’s statements were admissible only as impeachment evidence
against Alvarado, if Alvarado testified. For defendant, unlike Alvarado, there was
no direct causal connection between Jimenez’s statements and the decision
whether or not to testify. If Alvarado testified, Jimenez’s statements could have
impeached him. But the prosecution could not have impeached defendant with
Jimenez’s statements, even if Jimenez testified.
Defendant contends Jimenez’s statements did affect his decision whether to
testify because the potential prejudicial impact of the statements on the jury caused
him to adopt a joint defense strategy with Alvarado, to the effect that either both or
neither of them would testify. During the hearings on the motions for a new trial,
defense counsel extensively discussed the reasoning behind this joint defense
strategy, which defendant summarizes and adopts on appeal. If the jury heard
Jimenez’s statements, their impact would be prejudicial not merely on Alvarado
but on defendant as well. Defendant was free to testify without causing Jimenez’s
statements to be admitted, but if he testified, he presumably would say something
exculpatory about his participation in the crime. Then more blame might be
58
placed on Alvarado, so Alvarado would feel compelled to testify. Defendant’s and
Alvarado’s defense counsel believed there was no fair way to have only one story
presented. Thus, the codefendants had agreed on a both-or-neither approach to
testifying.
(5) Impact of the Joint Defense Strategy
Defendant alternatively refers to his understanding with Alvarado on
testifying at trial as an agreement and as a trial strategy. To the extent that the
defendant implies the existence of a binding agreement, the argument fails. He
fails to establish that he formed a binding agreement with Alvarado either by
contract or detrimental reliance.33 The trial court made no findings establishing
the existence of a joint defense agreement. To the extent defendant’s argument for
materiality depends on the existence of a binding agreement, defendant has
therefore failed to establish one.
In the alternative, defendant describes his agreement with Alvarado as a
trial strategy that each codefendant adopted, based on their shared interest in
keeping Jimenez’s statements away from the jury.34 Defendant claims that if the
prosecution had timely disclosed the Weil report, it would have changed the joint
defense strategy because the information revealed in the report would have
undercut Jimenez’s credibility. He reasons, therefore, that neither he nor Alvarado
33 The only factual evidence presented during the new trial motions was the
declaration of defendant’s trial attorney, Arturo Herrera. His declaration describes
defendant’s desire to testify and counsel’s advice to defendant that, because
Alvarado was not going to testify, then neither should he. But this declaration
does not assert (let alone establish) the existence of a binding agreement.
34 Defendant also briefly mentions his trial counsel’s argument that because
defendant and Alvarado are brothers-in-law, the codefendants adopted the “both or
neither” testifying strategy, at least in part, out of their sense of familial loyalty.
Assuming defendant also raises this argument on appeal, he presents no authority
that familial loyalty can establish materiality under Brady.
59
would have been deterred from testifying because they feared the effect of
Jimenez’s statements on the jury.
Defendant implies the above trial considerations necessitated his adoption
of the agreement with Alvarado and corresponding trial strategy. But this strategy
was not compelled by necessity, legal or otherwise. Even assuming both
codefendants wished to keep Jimenez’s statements from the jury, defendant’s
testifying would not necessarily have caused Alvarado to testify. Alvarado’s
testifying in response to Jimenez’s statements would have been contingent on the
nature of defendant’s testimony. If defendant’s testimony painted Alvarado in a
particularly bad light, Alvarado might have testified, in order to shift the blame to
defendant.
It was also possible, however, that Alvarado would not have testified.
Before testifying, Alvarado would have considered the consequences of his
testimony: leaving defendant’s testimony unrebutted, or taking the stand and risk
having the jury hear Jimenez’s statements. Alvarado could not make that
calculation prior to hearing defendant’s actual testimony. Neither could defendant
know with any certainty in advance what Alvarado would do. There was no
necessary connection between defendant’s testifying and Alvarado’s testifying.
In observing that defendant has not shown the legal necessity of the
purported joint defense strategy, we do not hold defendant is required to show
legal necessity in order to establish his Brady claim.35 Nor do we deny defendant
presents reasonable strategic considerations that may possibly have been factors in
his decision whether or not to testify. But codefendants in many joint trials face
difficult tactical choices in deciding how to proceed where multiple considerations
35 Alternatively, we need not and do not reach the issue of whether a showing of
legal necessity would be sufficient to establish a Brady claim under these
circumstances.
60
are involved. Defendant has shown only the possibility that his decision not to
testify was a result of strategic considerations made in connection with Jimenez’s
statements. In other words, defendant has shown only the possibility that he
would have testified had the Weil report been timely produced. To establish
materiality under Brady, defendant must do more than establish a possible
relationship between the Weil report and a different result; he must establish a
reasonable probability of a different result. “The mere possibility that an item of
undisclosed information might have helped the defense, or might have affected the
outcome of the trial, does not establish ‘materiality’ in the constitutional sense.”
(United States v. Agurs, supra, 427 U.S. at pp. 109-110.) Ultimately, defendant’s
contention that the timely disclosure of the Weil report would have resulted in his
testifying is based on speculation and fails to establish materiality under Brady.
(Brady, supra, 373 U.S. at p. 87; Wood v. Bartholomew, supra, 516 at p. 6.)
The People raise the related point that considerations entirely independent
of Jimenez’s statements caused defendant not to testify, regardless of whether the
prosecution had disclosed the Weil report. The People point out that if defendant
testified, he could have been subject to impeachment by his own prior statements
to the police, and his admissions to jailhouse informant Jorge Flores.
In response, defendant attempts to discredit the possible influence of these
other impeachment sources. Defendant claims his statements to the police were
not preceded by any Miranda warning, were far from a confession, and might
have been excluded in any case as being involuntary. It is true that the People
have not shown conclusively that these other impeachment factors independently
determined defendant’s decision not to testify. But neither has defendant
conclusively shown these factors could not have done so. The highly speculative
nature of any analysis here further supports our conclusion that defendant has
failed to establish materiality under Brady.
61
b. Asserted Violation of Right to Effective Assistance of Counsel
In the alternative, defendant asserts that regardless of whether the timely
disclosure of the Weil report would have caused him to testify, its late disclosure
was prejudicial because it violated his right to receive meaningful guidance from
his counsel on whether or not to testify on his own behalf. Defendant relies on
cases based on the deficient performance of counsel, such as Wiggins v. Smith
(2003) 539 U.S. 510, which appear inapplicable to the facts of this case. Wiggins
addressed whether counsel fulfilled his duty to “ ‘make reasonable
investigations’ ” into defendant’s background so that counsel could make a
reasonable decision as to what to offer in mitigation at the penalty phase. (Id. at p.
522.) Defendant does not argue that his trial counsel was deficient because he
failed to uncover the Jimenez impeachment evidence. Thus, in contrast to
Wiggins, there is no issue of trial counsel’s not becoming aware of relevant
evidence through counsel’s failure to conduct a reasonable investigation.
Defendant also contends he was in the same situation as Alvarado in regard
to the untimely disclosure of the Weil report and consequently he suffered the
same interference with his right to receive meaningful guidance from counsel on
the issue of whether to testify. But defendant was not in the same situation as
Alvarado in relation to the Weil report. As discussed above, Alvarado and
defendant stood in different relationships to the Jimenez statements. If Alvarado
testified, he faced impeachment with Jimenez’s statements. Defendant, in
contrast, could testify without being subject to impeachment. Defendant attempts
to negate this fundamental difference by claiming that a joint defense strategy
committed both codefendants to the same course of action in testifying—that is,
either both would testify, or neither would. But, as discussed above, defendant has
failed to establish a material connection between Jimenez’s statements and
defendant’s decision to testify. Because there was no material connection, we find
62
no interference with defendant’s right to counsel based on the late disclosure of
the Weil report.
c. Alleged Prosecutorial Misconduct
Defendant contends his convictions and sentence should be set aside
because the prosecutor engaged in misconduct when he deliberately withheld
Weil’s report, which rendered the trial fundamentally unfair under the Fourteenth
Amendment to the United States Constitution. In addition, defendant contends the
trial court erred in finding the prosecutor did not intentionally keep the Weil report
secret until after the jury returned the guilty verdict.
“A prosecutor’s conduct violates the Fourteenth Amendment to the federal
Constitution when it infects the trial with such unfairness as to make the
conviction a denial of due process. Conduct by a prosecutor that does not render a
criminal trial fundamentally unfair is prosecutorial misconduct under state law
only if it involves the use of deceptive or reprehensible methods to attempt to
persuade either the trial court or the jury.” (People v. Morales (2001) 25 Cal.4th
34, 44.) As discussed above, because there was no material connection between
the Weil report and defendant’s decision whether or not to testify, we rejected his
claims that the late disclosure of the Weil report violated his constitutional right to
due process under Brady or his right to the effective assistance of counsel. This
same lack of material connection likewise causes us to reject his claim that the late
disclosure of the Weil report made his trial fundamentally unfair. As to whether
the prosecutor violated state law by using deceptive or reprehensible methods, we
reject that claim based on the trial court’s finding, not contradicted in the record,
that the prosecutor’s failure to disclose was unintentional.36
36 Prosecutorial misconduct does not require a showing of bad faith. (People v.
Hill (1998) 17 Cal.4th 800, 822, 829.) Thus, in a typical claim of prosecutorial
misconduct involving a prosecutor’s presentation to the court or jury, there is no
63
In describing the circumstances surrounding the late disclosed Weil report,
the prosecutor stated that, in September of 1993, after serving the subpoena on
Jimenez, Weil told him the following: Jimenez did not want to be a witness; he
was scared of what might happen to him or his family; and he might forget what
he said or didn’t really remember what was said. The prosecutor could not recall
if he directed Weil to prepare a report in September of 1993, but he believed a
report would be prepared. When the prosecutor was reviewing documents in
preparation for the penalty phase, he became aware that no such report had been
prepared. The prosecutor then directed Weil to prepare a report and had it
delivered to defense counsel. The court made findings in connection with the
codefendants’ motions for a new trial. It concluded the prosecutor clearly had
been negligent in failing to produce the information in the Weil report in a timely
manner, but also found the prosecutor had not intentionally kept the Weil report
secret until after the jury returned the verdicts.
Defendant contends the court was unreasonable in concluding that the
untimely disclosure was not intentional because there were several motions filed
and hearings held regarding Jimenez’s statements after the time in which the
prosecutor became aware of the statements. Defendant claims the prosecutor
could not have believed defense counsel was already aware of Jimenez’s
statements to Weil. Defendant contends it was inconceivable that defense counsel
would not have mentioned a “recantation” by Jimenez because such a recantation
need to address the prosecutor’s intent. But in the context of the prosecutorial
misconduct claimed here, the only way the actions of the prosecutor can be shown
to be deceptive or reprehensible is if the prosecutor had intentionally withheld the
Weil report for strategic advantage. In the absence of claims for intentional
misconduct, defendant would merely be repeating his Brady claim, since
nondisclosure under Brady does not require a showing of the moral culpability or
the willfulness of the prosecutor. (United States v. Agurs, supra, 427 U.S. at p.
110.)
64
would have rendered the Aranda/Bruton hearings on Jimenez’s testimony
unnecessary.37
The record does not support defendant’s claim. It appears the trial court’s
conclusion was consistent with the prosecutor’s statement that when the
prosecutor heard Weil’s account of Weil’s conversation with Jimenez in
September of 1993, he understood Jimenez’s comments to Weil to be an attempt
to get out of testifying because he was unwilling or scared to testify. The
prosecutor stated that it was not until after he read the version of the conversation
in Weil’s March 1994 report, that he was aware of Jimenez’s comments that his
prior statement to police might be misleading or contain falsehoods due to the
drugs he was taking at that time. The prosecutor’s understanding of Jimenez’s
comments to Weil as an attempt to get out of testifying, rather than as a
“recantation,” is consistent with the prosecutor’s apparent lack of surprise that
Jimenez’s comments to Weil were not mentioned during the Aranda/Bruton
hearings addressing Jimenez’s statements.
V. PENALTY PHASE ISSUES
A. Asserted Violations of International Law
Defendant contends that his trial and sentence of death are in violation of
customary international law under the Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights, the American Declaration of
37 Defendant also claims that the prosecutor must surely have also been aware of
the Los Angeles Grand Jury investigation concerning jail house informants, which
had surfaced with much publicity not long before this trial, and that, consequently,
the prosecutor should have been on notice that the testimony of a jailhouse
informant like Jimenez was likely false. This argument is based on facts not
contained in the record. But even assuming the prosecutor was aware of the grand
jury investigation, this would add little to defendant’s main argument, which is
that the prosecutor had actual knowledge of the unreliability of Jimenez because
the prosecutor knew that Jimenez had admitted it to Weil in September of 1993.
65
the Rights and Duties of Man, and the International Convention Against All Forms
of Racial Discrimination. But as discussed above, defendant has failed to establish
that any aspect of his trial or penalty determination involved violations of state or
federal constitutional law. Therefore, we need not consider whether a violation of
state or federal constitutional law would also violate international law. (People v.
Hillhouse (2002) 27 Cal.4th 469, 511.) Had defendant shown prejudicial error
under domestic law, we would have set aside the judgment on that basis without
recourse to international law. (Ibid.) As to whether California’s death penalty
generally violates international law, we have previously held, as defendant
concedes, that international law does not prohibit a sentence of death rendered in
accordance with state and federal constitutional and statutory requirements. (Ibid;
People v. Ramos, supra, 34 Cal.4th at pp. 533-534.)
B. Miscellaneous Constitutional Challenges to the Death Penalty
Defendant attacks the constitutionality of California’s death penalty statute
on numerous grounds. We reaffirm the decisions that have rejected similar claims
and decline to reconsider such authorities, as follows:
That certain noncapital sentencing proceedings may require jury unanimity
or proof beyond a reasonable doubt does not mean the death penalty statute
violates the equal protection clause of the Fourteenth Amendment. (People v.
Rogers (2006) 39 Cal.4th 826, 893 (Rogers); Blair, supra, 36 Cal.4th at p. 754;
People v. Davis (2005) 36 Cal.4th 510, 571-572.) “The death penalty law is not
unconstitutional for failing to impose a burden of proof—whether beyond a
reasonable doubt or by a preponderance of the evidence—as to the existence of
aggravating circumstances, the greater weight of aggravating circumstances over
mitigating circumstances, or the appropriateness of a death sentence.” (Lewis and
Oliver, supra, 39 Cal.4th at p. 1066, citing People v. Brown, (2004) 33 Cal.4th
382, 401.) Indeed, the trial court need not and should not instruct the jury as to
66
any burden of proof or persuasion at the penalty phase. (Rogers, supra, 39 Cal.4th
at p. 893; Blair, supra, 36 Cal.4th at p. 753.)
The Eighth and Fourteenth Amendments do not require that a jury
unanimously find the existence of aggravating factors or that it make written
findings regarding aggravating factors. (Rogers, supra, 39 Cal.4th at p. 893; Blair,
supra, 36 Cal.4th at p. 753.) In addition, the United States Supreme Court’s recent
decisions interpreting the Sixth Amendment’s jury trial guarantee (United States v.
Booker (2005) 543 U.S. 220; Blakely v. Washington (2004) 542 U.S. 961; Ring v.
Arizona (2002) 536 U.S. 584; Apprendi v. New Jersey (2000) 530 U.S. 466) have
not changed our prior conclusions regarding burden of proof or jury unanimity at
the penalty phase. (Lewis and Oliver, supra, 39 Cal.4th at p. 1066; Rogers, supra,
39 Cal.4th at 893.)
Section 190.2—setting out the special circumstances that, if found true,
render a defendant eligible for the death penalty—adequately narrows the category
of death-eligible defendants in conformity with the requirements of the Eighth and
Fourteenth Amendments. (Rogers, supra, 39 Cal.4th at p. 892; Blair, supra, 36
Cal.4th at p. 752; 893; People v. Barnett (1998) 17 Cal.4th 1044, 1179.)
Section 190.3, factor (a)—which permits consideration of the
“circumstances of the crime” as an aggravating factor—is not impermissibly
vague and provides adequate guidance to a jury in sentencing. (People v. Prieto
(2003) 30 Cal.4th 226, 276 (Prieto); People v. Lewis (2001) 26 Cal.4th 334, 394.)
There is no requirement under the jury trial guarantee of the Sixth
Amendment, the cruel and unusual punishment clause of the Eighth Amendment,
or the due process or equal protection guarantees of the Fourteenth Amendment
that a jury find the existence of unadjudicated criminal activity under section
190.3, factor (b), unanimously or beyond a reasonable doubt. (Rogers, supra, 39
Cal.4th at 894; Blair, supra, 36 Cal.4th at p. 753.)
67
The use of restrictive adjectives—i.e., “extreme” and “substantial”—in the
list of mitigating factors in section 190.3 does not act unconstitutionally as a
barrier to the consideration of mitigation. (People v. Harris (2005) 37 Cal.4th
310, 365; Brown, supra, 33 Cal.4th at p. 402; Prieto, supra, 30 Cal. 4th at p. 276.)
Intercase proportionality review is not required by the due process, equal
protection, fair trial, or cruel and unusual punishment clauses of the federal
Constitution. (Rogers, supra, 39 Cal.4th at p. 894; Blair, supra, 36 Cal.4th at p.
753.)
Capital punishment per se does not violate the Eighth Amendment’s
proscription against cruel and unusual punishment. (People v. Moon (2005) 37
Cal.4th 1, 47; People v. Staten (2000) 24 cal.4th 434, 462.) We have recently
rejected the argument that we should reconsider our position in light of the
abolition of the death penalty by the nations of Western Europe, and the United
States Supreme Court’s ruling in Atkins v. Virginia (2002) 536 U.S. 304 that the
execution of mentally retarded persons constitutes cruel and unusual punishment.
(Moon, supra, 37 Cal. 4th at pp. 47-48.)38
VI. CUMULATIVE ERROR
Defendant requests that we consider the cumulative effect of any errors in
the pretrial stage, guilt phase, or penalty phase in deciding whether to reverse
38 Without providing further argument, defendant also contends that asserted
errors in the following guilt phase rulings also had prejudicial impact on the
penalty phase: denial of severance motion, rulings on the admissibility of evidence
of Mary Magoon’s alleged propensity for violence and use of firearms, lack of
instruction on the elements of torture, admission of the testimony of prosecution’s
blood spatter expert witness, and admission of crime scene and autopsy photos.
Because we discern no error in any area of the guilt phase, we reject defendant’s
claims of any prejudicial effect in the penalty phase arising from these or any other
guilt phase rulings.
68
defendant’s convictions and death sentence. Because we conclude there were no
individual errors of any kind, we reject defendant’s claim that any cumulative
effect warrants reversal.
VII. CONCLUSION
We affirm the judgment in its entirety.
CHIN, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
CORRIGAN, J.
69
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Hoyos
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S041008
Date Filed: July 23, 2007
__________________________________________________________________________________
Court: Superior
County: San Diego
Judge: Charles R. Hayes
__________________________________________________________________________________
Attorneys for Appellant:
Michael Snedeker and Lisa R. Short, under appointments 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, Gary W. Schons, Assistant Attorney General, Meagan J. Beale and Anthony Da Silva, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Michael Snedeker
Snedeker, Smith & Short
4110 SE Hawthorne Boulevard
Portland, OR 97214-5246
(503) 232-3584
Anthony Da Silva
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2608
Opinion Information
| Date: | Docket Number: |
| Mon, 07/23/2007 | S041008 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - San Diego Office Anthony DaSilva, deputy 110 W. "A" Street, Suite 1100 San Diego, CA |
| 2 | Hoyos, Jaime Armando (Appellant) San Quentin State Prison Represented by Lisa R. Short Snedeker, Smith & Short 4110 S.E. Hawthorne Boulevard, PMB 422 Portland, OR |
| 3 | Hoyos, Jaime Armando (Appellant) San Quentin State Prison Represented by Michael R. Snedeker Snedeker, Smith & Short 4110 S.E. Hawthorne Boulevard, PMB 422 Portland, OR |
| Disposition | |
| Jul 23 2007 | Opinion: Affirmed |
| Dockets | |
| Jul 11 1994 | Judgment of death |
| Jul 18 1994 | Filed certified copy of Judgment of Death Rendered 7-11-94. |
| Jul 18 1994 | Application for Extension of Time filed By County Clerk to Complete C.T. |
| Jul 19 1994 | Extension of Time application Granted To County Clerk To 9-30-94 To Complete C.T. |
| Aug 3 1994 | Application for Extension of Time filed By Court Reporter Rilla Spousta to Complete R.T. |
| Aug 3 1994 | Application for Extension of Time filed By Court Reporter Robin Sunkees to Complete R.T. |
| Aug 3 1994 | Application for Extension of Time filed By Court Reporter John Tyler to Complete R.T. |
| Aug 3 1994 | Application for Extension of Time filed By Court Reporter Gerri Haupt to Complete R.T. |
| Aug 4 1994 | Extension of Time application Granted To Court Reporters To 9-1-94 To Complete R.T. |
| Jun 7 1999 | Filed: Applt's Applic. for appointment of Counsel (Ifp Form). |
| Jun 9 1999 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Michael R. Snedeker is hereby appointed to represent appellant Jaime Armando Hoyos for the direct appeal in the above automatic appeal now pending in this court. |
| Jun 17 1999 | Received: Notice from Superior Court that Record Was mailed to Applt's Counsel on 6-15-99. |
| Jul 8 1999 | Application for Extension of Time filed By Applt to request correction of the Record. Note: Premature; no Action will be Taken. [See Calif. Rules of Court, Rule 35(C)(4).] |
| Sep 13 1999 | Application for Extension of Time filed By Applt to request Corr. of the Record. |
| Sep 14 1999 | Extension of Time application Granted To 11/17/99 To Applt To request Corr. of the Record. |
| Oct 18 1999 | Compensation awarded counsel Atty Snedeker |
| Nov 18 1999 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Nov 22 1999 | Filed: Suppl Decl of Atty Snedeker in support of request for Eot. |
| Nov 23 1999 | Extension of Time application Granted To 1/18/2000 To Applt To request Corr. of the Record. |
| Dec 1 1999 | Compensation awarded counsel Atty Snedeker |
| Jan 13 2000 | Application for Extension of Time filed By Applt to request Corr. of the Record. |
| Jan 18 2000 | Extension of Time application Granted To 3/20/2000 To Applt To request Corr. of the Record. |
| Mar 6 2000 | Change of Address filed for: Atty Michael Snedeker |
| Mar 7 2000 | Filed: Request by "Appellate" Counsel in Same Law Firm as "Habeas Corpus" Counsel for Separate Lead Counsel appointments. |
| Mar 7 2000 | Filed: Request by "Habeas Corpus" Counsel in Same Law Firm as "Appellate" Counsel for Separate Lead Counsel appointments. |
| Mar 7 2000 | Filed: Request by Inmate for representation by two Counsel in Same Law Firm as Separate Lead "Appellate" and Lead "Habeas Corpus" Counsel. |
| Mar 8 2000 | Counsel appointment order filed Appointing Lisa R. Short to represent Applt for Habeas Corpus/Executive Clemency Proceedings Related to the Automatic Appeal. |
| Mar 20 2000 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Mar 22 2000 | Extension of Time application Granted To 5/19/2000 To Applt To request Corr. of the Record. no further Eot Are Contemplated. |
| Apr 20 2000 | Compensation awarded counsel Atty Snedeker |
| May 22 2000 | Application for Extension of Time filed By Applt to request correction of the Record. |
| May 25 2000 | Extension of Time application Granted To 6/16/2000 To Applt To request Corr. of the Record. no further Eot Are Contemplated. |
| Jun 19 2000 | Application for Extension of Time filed By Applt to request Corr. of the Record. |
| Jun 29 2000 | Compensation awarded counsel Atty Snedeker |
| Jul 10 2000 | Filed: supplemental proof of service of request for ext. of time to request correction of the record. |
| Jul 11 2000 | Extension of Time application Granted To 8/15/2000 to applt to request corr. of the record. No further ext. of time will be granted. |
| Aug 9 2000 | Compensation awarded counsel Atty Snedeker |
| Aug 10 2000 | Counsel's status report received (confidential) from atty Snedeker. |
| Aug 10 2000 | Counsel's status report received (confidential) from atty Short. |
| Aug 21 2000 | Received copy of appellant's record correction motion appellant's request to complete and correct the record on appeal. (27 pp. excluding appendices) |
| Oct 16 2000 | Counsel's status report received (confidential) from atty Short. |
| Oct 17 2000 | Compensation awarded counsel Atty Sndeker |
| Oct 20 2000 | Counsel's status report received (confidential) from atty Snedeker. |
| Nov 17 2000 | Compensation awarded counsel Atty Snedeker |
| Jan 17 2001 | Compensation awarded counsel Atty Snedeker |
| Jan 23 2001 | Motion filed by applt for order to augment the record on appeal, and to lift the protective order banning contact with jurors without prior court order. (27 pp. excluding attachments) |
| Feb 9 2001 | Counsel's status report received (confidential) from atty Snedeker. |
| Feb 9 2001 | Counsel's status report received (confidential) from atty Short. |
| Mar 28 2001 | Note: telephoned deputy A.G. DaSilva to request response to applt's motion, filed on 1-23-2001. Due date for response: 4-27-2001. |
| Apr 6 2001 | Compensation awarded counsel Atty Short |
| Apr 24 2001 | Counsel's status report received (confidential) from atty Snedeker. |
| Apr 24 2001 | Counsel's status report received (confidential) from atty Short. |
| Apr 26 2001 | Filed: "Opposition to motion to lift protective order banning contact with jurors". |
| May 7 2001 | Filed: "Reply to opposition to motion for order to lift the protective order banning contact with jurors without prior court order". |
| Jun 5 2001 | Counsel's status report received (confidential) from atty Short. |
| Jun 5 2001 | Counsel's status report received (confidential) from atty Snedeker. |
| Jun 13 2001 | Order filed Appellant's "motion for order to augment the record on appeal, and to lift the protective order banning contact with jurors without prior court order," filed January 23, 2001, is denied without prejudice to appellant's (1) requesting copies of exhibits for his own use from the superior court and requesting transmission of exhibits pursuant to California Rules of Court, rule 10(d); and (2) moving in this court to augment the record to include the sealed juvenile records, which motion shall include a specific explanation of what the records are, why the superior court erred in not including them, and why they are properly part of the appellate record. (Cal. Rules of Court, rules 12(a), 39.51(a)(1).) |
| Jun 13 2001 | Compensation awarded counsel Atty Short |
| Jun 13 2001 | Compensation awarded counsel Atty Snedeker |
| Jun 15 2001 | Record on appeal filed C-40 (Pp. 7193) and R-59 (Pp. 4577) including material under seal and juror quest. of 3005 Pp. |
| Jun 15 2001 | Appellant's Opening Brief Letter sent, due: July 25, 2001. |
| Jul 19 2001 | Application for Extension of Time filed To file AOB. (1st request) |
| Jul 20 2001 | Compensation awarded counsel Atty Snedeker |
| Jul 20 2001 | Extension of Time application Granted To 9/24/2001 to file AOB. |
| Aug 22 2001 | Compensation awarded counsel Atty Snedeker |
| Aug 27 2001 | Counsel's status report received (confidential) from atty Snedeker. |
| Aug 27 2001 | Counsel's status report received (confidential) from atty Short. |
| Sep 25 2001 | Application for Extension of Time filed To file AOB.(2nd request) |
| Sep 26 2001 | Extension of Time application Granted To 11/26/2001 to file AOB. |
| Nov 26 2001 | Request for extension of time filed To file AOB.(3rd request) |
| Nov 28 2001 | Extension of time granted To 1/25/2002 to file AOB. |
| Dec 21 2001 | Counsel's status report received (confidential) from atty Snedeker. |
| Jan 28 2002 | Request for extension of time filed To file A0B. (4th request) |
| Feb 4 2002 | Extension of time granted To 2/8/2002 to file AOB. |
| Feb 11 2002 | Request for extension of time filed To file A0B. (5th request) |
| Feb 15 2002 | Extension of time granted To 2/22/2002 to file AOB. No further extension of time is contemplated. |
| Feb 26 2002 | Filed: Request by inmate for dual representation. |
| Feb 26 2002 | Filed: Request by atty. Lisa R. Short for dual representation appointment. |
| Mar 13 2002 | Motion to withdraw as counsel filed by Michael Snedeker. (This motion supersedes the motion filed on 2/26/2002) |
| Mar 13 2002 | Motion for appointment of counsel filed by Lisa Short, for appointment as appellate counsel. |
| Mar 13 2002 | Request for extension of time filed To file AOB. (6th request) |
| Mar 19 2002 | Extension of time granted To 4/23/2002 to file AOB. |
| Apr 9 2002 | Counsel's status report received (confidential) from atty Snedeker. |
| Apr 9 2002 | Counsel's status report received (confidential) from atty Short. |
| Apr 22 2002 | Request for extension of time filed To file AOB. (7th request) |
| Apr 25 2002 | Extension of time granted To 6/24/2002 to file AOB. |
| May 1 2002 | Order filed Good cause appearing, the application of appointed appellate counsel for permission to withdraw as attorney of record for appellant Jaime Armando Hoyos, filed March 13, 2002, is granted. The order appointing Michael R. Snedeker as counsel of record for the direct appeal on behalf of appellant Jaime Armando Hoyos, filed June 9, 1999, is hereby vacated. Attorney Lisa R. Short, previously appointed to represent appellant for capital-related habeas corpus/executive clemency proceedings, is hereby appointed to also represent appellant Jaime Armando Hoyos for the direct appeal in the above automatic appeal now pending in this court. Based upon appointed counsel Lisa R. Short's representation that she plans to file the appellant's opening brief by March 28, 2003, time is hereby extended for the filing of that brief until June 24, 2002. |
| Jun 12 2002 | Counsel's status report received (confidential) |
| Jun 20 2002 | Request for extension of time filed To file AOB. (8th request) |
| Jun 20 2002 | Compensation awarded counsel Atty Short |
| Jun 26 2002 | Extension of time granted To 8/23/2002 to file AOB. Counsel anticipates filing the brief by 3/28/2003. Four further extensions for 212 additional days are contemplated. |
| Aug 13 2002 | Counsel's status report received (confidential) from atty Short. |
| Aug 27 2002 | Request for extension of time filed To file appellant's opening brief. (9th request) |
| Aug 28 2002 | Compensation awarded counsel Atty Short |
| Aug 28 2002 | Compensation awarded counsel Atty Snedeker |
| Aug 29 2002 | Extension of time granted to 10-22-2002 to file AOB. After that date, only three further extensions totaling 152 additional days are contemplated. Extension granted based upon counsel Short's representation that she anticipates filing the brief by 3-28-2003. |
| Oct 24 2002 | Counsel's status report received (confidential) from attorney Short. |
| Oct 24 2002 | Request for extension of time filed To file appellant's opening brief. (10th request) |
| Oct 29 2002 | Extension of time granted To 12/23/2002 to file appellant's opening brief. After that date, only two further extensions totaling 90 additional days are contemplated. Extension is granted based upon counsel Lisa R. Short's representation that she anticipates filing that brief by 3/28/2003. |
| Dec 27 2002 | Request for extension of time filed To file appellant's opening brief. (11th request) |
| Dec 27 2002 | Counsel's status report received (confidential) |
| Dec 30 2002 | Extension of time granted To 2/21/2003 to file appellant's opening brief. After that date, only one further extension totaling 30 additional days is contemplated. Extension is granted based upon counsel Lisa R. Short's representation that she anticipates filing that brief by 3/28/2003. |
| Feb 27 2003 | Request for extension of time filed to file appellant's opening brief. (12th request) |
| Feb 27 2003 | Counsel's status report received (confidential) from atty Short. |
| Mar 5 2003 | Extension of time granted to 3/28/2003 to file appellant's opening brief. Extension is granted based upon consel Lisa R. Short's representation that she anticipates filing that brief by 3/28/2003. After that date, no further extension is contemplated. |
| Mar 19 2003 | Compensation awarded counsel Atty Short |
| Apr 2 2003 | Request for extension of time filed to file appellant's opening brief. (13th request) |
| Apr 4 2003 | Extension of time granted to 5/27/2003 to file appellant's opening brief. After that date, only two further extensions totaling about 90 additional days are contemplated. Extension is granted based upon counsel Lisa R. Short's representation that she anticipates filing tha brief by 8/28/2003. |
| Apr 9 2003 | Compensation awarded counsel Atty Short |
| Apr 17 2003 | Counsel's status report received (confidential) |
| May 6 2003 | Counsel's status report received (confidential) |
| May 30 2003 | Request for extension of time filed to file appellant's opening brief. (14th request) |
| Jun 4 2003 | Extension of time granted to 7/28/2003 to file appellant's opening brief. After that date, only one further extension totaling 30 additional days is contemplated. Extension is granted based upon counsel Lisa R. Short's representation that she anticipates filing that brief by 8/28/2003. |
| Jul 18 2003 | Counsel's status report received (confidential) |
| Jul 29 2003 | Request for extension of time filed to file AOB. (15th request) |
| Jul 31 2003 | Extension of time granted to 8-28-2003 to file AOB. After that date, no further extension is contemplated. Extension granted based upon counsel Lisa Short's representation that she anticipates filing the brief by 8-28-2003. |
| Aug 29 2003 | Request for extension of time filed to file AOB. (16th request) |
| Sep 3 2003 | Extension of time granted to 9/29/2003 to file appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon counsel Lisa Short's representation that she anticipates filing that brief by 9/27/2003. |
| Sep 30 2003 | Request for extension of time filed to file appellant's opening brief. (17th request) |
| Oct 3 2003 | Extension of time granted to 10/14/2003 to file appellant's opening brief. Extension is granted based upon counsel Lisa R. Short's representation that she anticipates filing that brief by 10/14/2003. 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. |
| Oct 10 2003 | Counsel's status report received (confidential) |
| Oct 16 2003 | Application to file over-length brief filed to file appellant's opening brief. (370 pp. brief submitted under separate cover) |
| Oct 17 2003 | Order filed Appellant's application to file opening brief in excess of 280 pages is granted. |
| Oct 17 2003 | Appellant's opening brief filed (369 pp.- perm.) |
| Nov 12 2003 | Request for extension of time filed to file respondent's brief. (1st request) |
| Nov 19 2003 | Extension of time granted to 1/16/2004 to file respondent's brief. |
| Jan 9 2004 | Extension of time granted to file respondent's brief. (2nd request) |
| Jan 13 2004 | Extension of time granted to 3/16/2004 to file respondent's brief. After that date, only three further extensions totaling about 150 additional days will be granted. Extension is granted based upon Deputy Attorney General Anthony Da Silva's representation that he anticipates filing that brief by 8/17/2004. |
| Jan 21 2004 | Counsel's status report received (confidential) |
| Mar 9 2004 | Request for extension of time filed to file respondent's brief. (3rd request) |
| Mar 12 2004 | Extension of time granted to 5/17/2004 to file the respondent's brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted based upon Deputy Attorney General Anthony Da Silva's representation that he anticipates filing that brief by 8/17/2004. |
| Mar 30 2004 | Compensation awarded counsel Atty Short |
| Apr 21 2004 | Compensation awarded counsel Atty Short |
| May 10 2004 | Request for extension of time filed to file respondent's brief. (4th request) |
| May 18 2004 | Extension of time granted to 7-16-2004 to file respondent's brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension granted based upon Deputy AG Anthony DaSilva's representation that he anticipates filing the brief by 8-17-2004. |
| Jul 8 2004 | Request for extension of time filed to file respondent's brief. (5th request) |
| Jul 12 2004 | Extension of time granted to 9-14-2004 to file respondent's brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension granted based upon Deputy AG Anthony DaSilva's representation that he anticipates filing the brief by 12-15-2004. |
| Sep 7 2004 | Counsel's status report received (confidential) |
| Sep 8 2004 | Request for extension of time filed to file respondent's brief. (6th request) |
| Sep 15 2004 | Extension of time granted to 11-15-2004 to file respondent's brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension granted based upon Deputy AG Anthony DaSilva's representation that he anticipates filing the brief by 12-15-2004. |
| Nov 8 2004 | Request for extension of time filed to file respondent's brief. (7th request) |
| Nov 12 2004 | Counsel's status report received (confidential) from atty Short. |
| Nov 17 2004 | Extension of time granted to 1/18/2005 to file respondent's brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon Deputy Attorney General Anthony Da Silva's representation that he anticipates filing that brief by 3/15/2005. |
| Jan 18 2005 | Request for extension of time filed to file respondent's brief. (8th request) |
| Jan 20 2005 | Extension of time granted to 3/15/2005 to file respondent's brief. Extension is granted based upon Deputy Attorney General Anthony DaSilva's representation that he anticipates filing that brief by 3/15/2005. After that date, no further extension will be granted. |
| Jan 26 2005 | Compensation awarded counsel Atty Short |
| Mar 8 2005 | Request for extension of time filed to file respondent's brief. (9th request) |
| Mar 15 2005 | Extension of time granted to 5/13/2005 to file respondent's brief. Extension is granted based upon Deputy Attorney General Anthony Da Silva's representation that he anticipates filing that brief by 5/13/2005. After that date, no further extension will be granted. |
| May 13 2005 | Respondent's brief filed (52176 words; 167 p.) |
| Jun 6 2005 | Request for extension of time filed to file appellant's reply brief. (1st request) |
| Jun 7 2005 | Extension of time granted to 8/1/2005 to file appellant's reply brief. |
| Jul 8 2005 | Counsel's status report received (confidential) |
| Aug 3 2005 | Request for extension of time filed to file appellant's reply brief. (2nd request) |
| Aug 12 2005 | Filed: Supplemental declaration in support of application for extension of time to file appellant's reply brief. |
| Aug 18 2005 | Extension of time granted to 9/30/2005 to file appellant's reply brief. |
| Oct 4 2005 | Counsel's status report received (confidential) from atty Short. |
| Oct 6 2005 | Request for extension of time filed to file appellant's reply brief. (3rd request) |
| Oct 7 2005 | Compensation awarded counsel Atty Short |
| Oct 11 2005 | Extension of time granted to 11/29/2005 to file appellant's reply brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted based upon counsel Lisa R. Short's representation that she anticipates filing that brief by 3/1/2006. |
| Oct 14 2005 | Compensation awarded counsel Atty Short |
| Oct 26 2005 | Compensation awarded counsel Atty Short |
| Nov 2 2005 | Compensation awarded counsel Atty Short |
| Dec 5 2005 | Request for extension of time filed to file appellant's reply brief. (4th request) |
| Dec 9 2005 | Extension of time granted to 1/30/2006 to file appellant's reply brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon counsel Lisa R. Short's representation that she anticipates filing that brief by 3/1/2006. |
| Jan 9 2006 | Counsel's status report received (confidential) |
| Jan 25 2006 | Compensation awarded counsel Atty Short |
| Jan 27 2006 | Request for extension of time filed to file appellant's reply brief. (5th request) |
| Feb 1 2006 | Extension of time granted to 3/1/2006 to file appellant's reply brief. Extension is granted based upon counsel Lisa R. Short's representation that she anticipates filing that brief by 3/1/2006. After that date, no further extension will be granted. |
| Feb 22 2006 | Compensation awarded counsel Atty Short |
| Feb 27 2006 | Request for extension of time filed to file appellant's reply brief. (6th request) |
| Mar 2 2006 | Extension of time granted to March 15, 2006 to file appellant's reply brief. Extension is granted based upon counsel Lisa R. Short's representation that she anticipates filing that brief by March 15, 2006. After that date, no further extension will be granted. |
| Mar 16 2006 | Appellant's reply brief filed (83 pp. - excluding attached appendix; pursuant to rule 40.1(3)(B)) |
| Mar 16 2006 | Filed: certificate of word count for appellant's reply brief. (19,976 words) |
| Mar 20 2006 | Counsel's status report received (confidential) |
| Mar 29 2006 | Compensation awarded counsel Atty Short |
| Apr 12 2006 | Compensation awarded counsel atty Short. |
| May 8 2006 | Counsel's status report received (confidential) |
| Jul 6 2006 | Exhibit(s) lodged Court's exhibits 8-11, 18, 23-29 and 40. |
| Jul 6 2006 | Compensation awarded counsel Atty Short |
| Jul 21 2006 | Counsel's status report received (confidential) |
| Jul 26 2006 | Compensation awarded counsel Atty Short |
| Sep 11 2006 | Related habeas corpus petition filed (concurrent) No. S146472 |
| Sep 25 2006 | Compensation awarded counsel Atty Short |
| Nov 15 2006 | Compensation awarded counsel Atty Short |
| Feb 14 2007 | Filed: request by inmate for dual representation. |
| Feb 14 2007 | Filed: request by counsel for dual representation appointment. |
| Feb 14 2007 | Motion for appointment of counsel filed "Motion for Appointment of Associate Counsel on Both Direct Appeal and Related Habeas Corpus/Clemency Proceedings." |
| Feb 14 2007 | Compensation awarded counsel Atty Short |
| Mar 14 2007 | Counsel appointment order filed Good cause appearing, the application of appointed counsel Lisa R. Short for the appointment of associate counsel, filed February 14, 2007, is granted. Michael R. Snedeker is hereby appointed as associate counsel of record to represent appellant Jaime Armando Hoyos for both the direct appeal and related state habeas corpus/executive clemency proceedings in the above automatic appeal now pending in this court. |
| Mar 27 2007 | Oral argument letter sent advising counsel that the court could schedule this case for argument as early as the May calendars, to be held the first week and last week of May 2007, in San Francisco. 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. |
| May 2 2007 | Case ordered on calendar to be argued on Wednesday, May 30, at 1:30 p.m., in San Francisco |
| May 9 2007 | Compensation awarded counsel Atty Short |
| May 14 2007 | Filed letter from: Deputy Attorney General Anthony Da Silva, dated May 11, 2007, re focus issues for oral argument. |
| May 17 2007 | Request for judicial notice granted Appellant's request, filed on October 17, 2003, for judicial notice of the Report of the 1989-90 Los Angeles County Grand Jury is denied. |
| May 21 2007 | Filed letter from: attorney Michael Snedeker, dated May 11, 2007, re appellant's focus issues for oral argument. |
| May 21 2007 | Received: letter from attorney Michael Snedeker, dated May 18, 2007, re appellant's additional authority for oral argument. |
| May 30 2007 | Cause argued and submitted |
| Jul 20 2007 | Notice of forthcoming opinion posted |
| Jul 23 2007 | Opinion filed: Judgment affirmed in full opinion by Chin, J. ----- joined by George, C.J., Kennard, Baxter, Werdegar, Moreno and Corrigan, JJ. |
| Aug 6 2007 | Rehearing petition filed by appellant. (1,929 words; 8 pp.) |
| Aug 13 2007 | 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 October 21, 2007, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| Sep 12 2007 | Rehearing denied The petition for rehearing is denied. |
| Sep 12 2007 | Remittitur issued (AA) |
| Sep 21 2007 | Received: receipt for remittitur acknowledged by superior court. |
| Sep 21 2007 | Exhibit(s) returned to superior court. |
| Sep 24 2007 | Habeas funds request filed (confidential) |
| Oct 5 2007 | Received: acknowledgment of receipt of exhibits. |
| Oct 17 2007 | Order filed re habeas funds request (confidential) |
| Nov 1 2007 | Habeas funds request filed (confidential) |
| Nov 28 2007 | Order filed re habeas funds request (confidential) |
| Dec 17 2007 | Received: copy of appellant's petition for writ of certiorari mailed to U.S.S.C. on December 10, 2007. |
| Dec 17 2007 | Received: copy of appellant's motion for leave to proceed in forma pauperis sent to the U.S.S.C. on December 10, 2007. |
| Dec 20 2007 | Received: Letter from U.S.S.C. dated December 17, 2007 re appellant's petition for writ of certiorari filed on December 10, 2007, case no. 07-8213. |
| Feb 25 2008 | Received: Letter from U.S.S.C., dated February 19, 2008, indicating that the petition for writ of of certiorari is denied. |
| Mar 5 2008 | Compensation awarded counsel Atty Short |
| Apr 9 2008 | Compensation awarded counsel Atty Short |
| Jul 10 2008 | Compensation awarded counsel Atty Short |
| Aug 20 2008 | Compensation awarded counsel Atty Short |
| Oct 16 2008 | Compensation awarded counsel Atty Short |
| Mar 25 2009 | Compensation awarded counsel Atty Short |
| Apr 30 2009 | Compensation awarded counsel Atty Short |
| Briefs | |
| Oct 17 2003 | Appellant's opening brief filed |
| May 13 2005 | Respondent's brief filed |
| Mar 16 2006 | Appellant's reply brief filed |
