Supreme Court of California Justia
Docket No. S042968
People v. Jurado



Filed 4/6/06




IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

S042698

ROBERT JURADO, JR.,

San Diego County

Super. Ct. No. CR 124438

Defendant and Appellant.



Defendant Robert Jurado, Jr., appeals from a judgment of death upon his

conviction by jury verdict of one count of murder in the first degree (Pen. Code,

§ 187),1 with the special circumstance of intentionally killing while lying in wait

(§ 190.2, subd. (a)(15)), and one count of conspiracy to commit murder (§§ 182,

187). The jury found that defendant personally used a deadly and dangerous

weapon to commit the murder. (§ 12022, subd. (b).) The jury that returned these

verdicts as to guilt and special circumstance also returned a penalty verdict of

death for the murder. The trial court denied the automatic motion to modify the

penalty (§ 190.4, subd. (e)) and sentenced defendant to death.

This appeal from the judgment of death is automatic. (§ 1239, subd. (b).)

We affirm the judgment in its entirety.


1

All further statutory references are to the Penal Code unless otherwise

indicated.




1




I. FACTS AND PROCEEDINGS

On May 17, 1991, a stranded motorist saw the body of Teresa Holloway in

a culvert beneath Highway 163 in San Diego County. She had been strangled and

beaten to death two days earlier. As the prosecution’s evidence at trial

established, defendant killed Holloway, with the help of Denise Shigemura and

Anna Humiston, to prevent her from disclosing their plan to kill a drug dealer

named Doug Mynatt.2

A. Prosecution’s Guilt Phase Case-in-Chief

In October 1989, Brian Johnsen met Teresa Holloway; a month later, they

began living together and continued living together until late April 1991.

Throughout this time, Holloway was using methamphetamine on a regular basis.

In December 1989, Holloway met Doug Mynatt at a bar and introduced him to

Johnsen.

In July or August of 1990, Brian Johnsen met defendant and bought crystal

methamphetamine from him at Mark Schmidt’s house. Defendant was sharing an

apartment with Denise Shigemura, but his girlfriend was Anna Humiston, a high

school student who lived with her parents. Johnsen and Teresa Holloway

socialized and shared drugs with defendant, Shigemura, and Humiston. Johnsen

later introduced defendant to Mynatt.

In October 1990, Denise Shigemura was arrested and remained in federal

custody until April 1991, when she was released to a halfway house. During her


2

Shigemura pled guilty to first degree murder and was sentenced to 25 years

to life in state prison. Humiston, who was 17 years old at the time of the killing,
was tried as an adult, convicted of first degree murder and conspiracy to commit
murder, and sentenced to 25 years to life in state prison. (See People v. Humiston
(1993) 20 Cal.App.4th 460, 465.)

2



time in custody, Shigemura exchanged letters and telephone calls with Teresa

Holloway. When Shigemura obtained overnight passes from the halfway house,

she stayed at the house where Teresa Holloway lived with Brian Johnsen.

In February 1991, Teresa Holloway argued with defendant, and their

relationship became strained. Holloway’s relationships with Anna Humiston also

became strained, and on one occasion they had a quarrel that almost turned

violent. Around the same time, Doug Mynatt moved on a temporary basis into the

house that Brian Johnsen and Holloway shared. Johnsen had been buying

methamphetamine from Mynatt.

In late March 1991, defendant gave Doug Mynatt a .38-caliber handgun in

exchange for drugs. When Mynatt learned that defendant had stolen the gun, he

insisted that defendant take it back and instead pay money for the drugs. A few

weeks later, Mynatt and Johnsen took defendant from his apartment to Johnsen’s

house. Mynatt made him stay there overnight until defendant agreed to pay

Mynatt and to sell methamphetamine for him. Mynatt threatened to kill defendant

if he did not agree.

On April 11, 1991, Brian Johnsen was arrested during a drug raid and spent

five days in custody. He was arrested because drugs were found under a couch at

his house. Some of the drugs belonged to defendant, but defendant did not admit

they were his. Johnsen felt that defendant owed him something because of this

incident, and defendant agreed to compensate Johnsen with marijuana.

In late April 1991, Brian Johnsen made Teresa Holloway move out of the

house they had shared because of her continuing drug use, and he offered to let

Doug Mynatt remain in the house on a more permanent basis as his roommate.

Holloway approached Thomas Carnahan, who agreed to let her live in his

apartment temporarily. He did not give her a key, and he insisted that she either

3



be in the apartment by 11:00 p.m. or telephone him before that time to let him

know when she would be arriving.

On May 6, 1991, Brian Johnsen began serving a 14-day jail sentence for

driving with a suspended license. Doug Mynatt continued to live in Johnsen’s

house. Defendant still owed Mynatt money.

On May 13, 1991, during a telephone conversation, Denise Shigemura told

Brian Johnsen (who was still in custody) that Doug Mynatt had stolen her purse,

which contained $80, a key to the business where she was then working, and the

combination to the business’s safe. According to Shigemura, Mynatt admitted

taking the purse and said he did it because he suspected Shigemura of stealing

$450 from him. Shigemura seemed very upset about the incident and was worried

about what Mynatt might do with the business key and the safe combination.

During this conversation, defendant phoned Shigemura, and a three-way

conversation ensued between defendant, Shigemura, and Johnsen, during which

they discussed possibly killing Mynatt. They were worried about potential

retaliation, however, because Mynatt had claimed to have a friend who was

affiliated with the Hell’s Angels. They agreed to discuss the matter further the

next day. They decided not to tell Teresa Holloway about the plan to kill Mynatt

because of concern that she would reveal it to the police.

On the same day, Monday May 13th, defendant telephoned David Colson,

with whom he had used methamphetamine, and he asked to borrow a shotgun.

Defendant said he “needed to do somebody up,” which Colson understood to

mean that defendant intended to kill someone. Colson told defendant that he did

not own a shotgun, although his brother did, and he gave defendant his brother’s

telephone number. Defendant called Colson’s brother and asked to borrow his

shotgun, saying he “had a job to do,” but the brother refused to lend the shotgun to

defendant.

4



Around the same time, Denise Shigemura asked Steven Baldwin if he could

get her a “gat” (a slang term for a gun). Shigemura explained that she had a

problem she needed to take care of. Baldwin told her he could not help her with

her problem.

On Tuesday, May 14th, Brian Johnsen telephoned his house from the

county jail and spoke to Denise Shigemura. They decided to contact defendant so

the three of them could discuss what to do about Doug Mynatt. Johnsen

telephoned Anna Humiston’s house and spoke briefly to defendant about the plan

to kill Mynatt. Defendant said he was still deciding whether to go through with it.

Later on the same day, Tuesday May 14th, Holloway was at the apartment

complex where defendant lived. Larissa Slusher and Ted Meier managed the

complex, and they occupied an apartment next to defendant’s. Slusher had known

Teresa Holloway as a casual acquaintance for seven or eight months. Holloway

asked Meier if she could spend the night in their apartment, because it was after

11:00 p.m., and she had been locked out of the apartment where she had been

staying. Meier agreed. The next morning, Holloway left the apartment around

8:00 or 9:00 a.m., taking with her a dress that Slusher had loaned her. Before she

left, Holloway said she would return later that day, May 15th, but she never did.

On Wednesday evening, May 15th, Brian Johnsen telephoned Mark

Schmidt and asked him to bring defendant and Denise Shigemura to Schmidt’s

house so he could talk to them. Schmidt ran about two and a half blocks to

defendant’s apartment, where he found Teresa Holloway and Shigemura with

defendant. Anna Humiston arrived in a blue Geo Metro while Schmidt was

speaking to defendant. Defendant agreed to take Johnsen’s call, and he came to

Schmidt’s apartment in Humiston’s car with Humiston, Shigemura, and Holloway.

At 8:17 p.m. that evening, Brian Johnsen telephoned Schmidt’s apartment.

Schmidt answered and passed the phone to Shigemura, who said she was still

5



unsure about the plan to kill Mynatt. Defendant then got on the phone and told

Johnsen that he could not wait and that it (meaning the killing of Mynatt) would

probably happen before Johnsen was released from jail. Johnsen said that was

fine with him. Teresa Holloway then got on the phone and asked whether there

was a plan to kill Mynatt. Johnsen told her not to get involved.

While Teresa Holloway was speaking on the telephone to Brian Johnsen,

defendant had a “forceful talk” with Anna Humiston; he seemed angry about

something; she seemed both angry and scared. Defendant then asked Schmidt for

a chain that defendant could use to tie up Johnsen’s motorcycle so Doug Mynatt

could not steal it. Schmidt offered defendant an 18-inch length of plastic weed-

eater cord. Defendant wrapped the cord around his own neck, with one end in

each fist clenched at shoulder height. He said: “It will do.” Denise Shigemura

needed to return to her halfway house by 9:00 p.m. At defendant’s request,

Schmidt told Holloway to get off the phone because he needed to leave the

apartment. They all left Schmidt’s apartment around 8:45 p.m.

At 9:31 p.m., defendant telephoned Christie Medlin at her apartment. He

told her that he was stranded and needed a ride, and that he was calling from a 7-

Eleven store. Medlin asked David Silva, her boyfriend, to pick up defendant and

his friends. Silva found defendant with Denise Shigemura and Anna Humiston at

the 7-Eleven store at Spruce and Fifth Streets. He drove them to Medlin’s

apartment; when they arrived, Humiston was holding her stomach and appeared to

be ill; she told Medlin she had an upset stomach. Defendant seemed bothered by

something, and Shigemura seemed agitated. Noticing what appeared to be blood

on defendant’s socks, Medlin asked him what had happened. Defendant said he

“got into a fight.” Humiston used Medlin’s telephone to call her father to tell him

that the blue Geo Metro had broken down. Silva drove Humiston home. Medlin

then drove defendant and Shigemura to defendant’s apartment.

6



On Thursday morning, May 16th, around 9:30, a tow truck driver met

defendant, Anna Humiston, and Denise Shigemura on Highway 163 near the

Quince Street Bridge, where the blue Geo Metro was parked. The driver towed

the car to the apartment complex where defendant lived. He observed nothing

unusual about their demeanor. Humiston signed the towing receipt.

On the afternoon of the same day, Thursday May 16th, defendant and

Denise Shigemura went to David Silva’s apartment, and the three shared pizza and

beer. Shigemura asked defendant and Silva to “bruise her up” so she could say

she had been beaten and would have an excuse for not returning to her halfway

house the previous night. Defendant and Silva then hit Shigemura with their fists.

When defendant and Shigemura later went to Mark Schmidt’s apartment,

Shigemura removed her shirt to show Schmidt the bruises or her chest and arms.

She told Schmidt that she had been “jumped” the previous night.

During the same day, defendant and Denise Shigemura went to Steven

Baldwin’s house with Mark Schmidt. They sat in the living room, with Baldwin

and Schmidt on one couch, defendant and Shigemura on another. Shigemura said

to Baldwin: “I no longer need what it was I asked you for. We took care of the

problem and we dumped the body at Balboa Park.” Defendant said nothing; his

face had what Baldwin described as an “empty look.”

On Friday morning, May 17th, Joseph Hedley experienced engine trouble

as he was driving a van on Highway 163 through Balboa Park. He parked the van

beside the freeway and began walking to a telephone call box about 100 yards

away. As he neared the call box, he noticed a human foot protruding from a

culvert that ran beneath the freeway. Approaching closer, he saw a woman’s body

inside the culvert, where it was not visible to persons traveling on the freeway. He

called to her but received no response. Using the call box, Hedley reported what

7



he had seen. Police officers arrived 15 minutes later and found that the body was

Theresa Holloway’s.

During the autopsy of Teresa Holloway’s body, Mark A. Super, a deputy

medical examiner employed by the San Diego County Medical Examiner’s Office,

saw many injuries on the face, torso, and extremities. Contusions and abrasions

were on the chest and on both legs and both arms, with the right hand being

particularly bruised and swollen. Some of the abrasions showed clusters of short

parallel linear marks suggesting they were made by an object with threads. There

were many bruises and abrasions on the neck, including some marks that could

have been made by ligature or manual strangulation. The hyoid bone was

fractured and there were hemorrhages in the eyeballs; both of these findings were

consistent with strangulation. There was a bite mark in the center of the back.

The most extensive injuries were to the face and head. The jaw and all the facial

bones were fractured and some had caved in. There were many deep lacerations

on the scalp, and the skull was fractured. In Super’s expert opinion, a scissor jack

had “all the characteristics that one would expect” in the weapon that inflicted the

injuries he observed. The cause of death was “blunt force head injuries and

strangulation.”

On Friday evening, May 17th, James R. Manis, a sergeant with the San

Diego Police, found defendant with Anna Humiston outside defendant’s apartment

complex. He told defendant he was investigating the death of Teresa Holloway.

Defendant said that he knew Holloway, that he had last seen her about three days

before at a party at the house of a man named Mark, that she was a drug user who

owed money to drug dealers, and that he did not trust her because she had stolen

from him. Defendant led Sergeant Manis to Holloway’s car, which was parked

about three or four blocks from defendant’s apartment.

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On Saturday morning, May 18th, defendant and Anna Humiston arrived at

David Silva’s apartment in a new car that Humiston’s parents had just given her.

They then drove to defendant’s apartment, where Sergeant Manis arrested them.

Later that day, Sergeant Manis found a scissor jack in a tree midway between the

place where Teresa Holloway’s body was found and the 7-Eleven store at the

corner of Spruce and Fifth Streets where David Silva had found defendant,

Shigemura, and Humiston on the night of the murder. The jack was covered with

red stains and had hair attached to it. Denise Shigemura was arrested on the same

day.

After his arrest, defendant made telephone calls from the jail to Brian

Johnsen, Christie Medlin, and David Silva. When Johnsen asked defendant why

he had killed Teresa Holloway, defendant said it had to be done. To Medlin,

defendant sang “On, on, that bitch is gone.” According to Medlin’s trial

testimony, defendant said “something like he doesn’t really care if he has to spend

the rest of his life paying for this, the bitch is gone.” When Silva asked defendant

about Holloway’s death, defendant told him that Holloway was killed in a car, that

he had been sitting in the back seat with Humiston while Shigemura was driving

and Holloway was sitting in the front passenger seat, and that an argument “got

out of hand.”

Around May 19th, Larissa Slusher saw the dress she had loaned Teresa

Holloway in a dumpster about 100 feet from defendant’s apartment. With the

dress were Holloway’s purse, her wallet, her identification papers, photographs of

her daughter, a sandal that matched one found at the murder scene, and a pair of

shoes belonging to defendant.

Gary Mark Dorsett, an evidence technician for the San Diego Police

Department Crime Lab, examined the blue Geo Metro. He collected samples of

9



red stains from the front passenger seat cover and seatbelt harness and from the

rear floorboard carpet on the passenger side. There was no jack in the car.

Norman Donald Sperber, a forensic dentist, compared the bite mark on

Holloway’s back with dental impressions from defendant, Denise Shigemura, and

Anna Humiston. In Sperber’s opinion, defendant’s teeth were “highly consistent”

with the bite mark, but neither Shigemura nor Humiston could have made it.

At trial, as part of the prosecution’s case, the parties stipulated to the results

of blood analysis. The blood on the scissor jack and on the rear floorboard of the

blue Geo Metro was consistent with Teresa’s Holloway’s blood, but inconsistent

with the blood of defendant, Denise Shigemura, and Anna Humiston. Blood on

the sandal and purse found in the dumpster, and on the front passenger seat cover

of the blue Geo Metro, was consistent with the blood of all four of these

individuals.

The parties also stipulated to the results of hair comparison analysis. Ten

of the hairs found in Teresa Holloway’s hand were consistent with the hair of

Anna Humiston but not with the hair of defendant, Denise Shigemura, or Teresa

Holloway. Four of the hairs were consistent with the hair of both Humiston and

Holloway, but not with the hair of defendant or Shigemura, and three of the hairs

were inconsistent with Humiston’s hair and were not compared to the hair of

defendant, Shigemura, or Holloway.

B. Defense Case at the Guilt Phase

After defendant’s arrest, Brian Johnsen went to the house of Josephine

Jurado, defendant’s mother, and knocked on the door of her house one night

around 9:30. Without opening the door, she asked Johnsen who he was and what

he wanted. Johnsen said he wanted a helmet he had lent to defendant. She told

him she did not have the helmet and did not know where it was, but Johnsen

10



would not leave. She was frightened because she knew that Teresa Holloway had

been Johnsen’s girlfriend and that defendant had been charged with her murder.

Johnsen eventually left after defendant’s mother telephoned the police.

On May 19, 1991, during a 10-minute interview, San Diego Police Officer

David Swiskowski asked Mark Schmidt to describe what happened at Schmidt’s

apartment on the evening of May 15, 1991, before Teresa Holloway’s murder, but

Schmidt’s replies were vague and evasive. Schmidt said that defendant,

Holloway, Anna Humiston, and Denise Shigemura came to his apartment that

evening around 8 o’clock, and that he received a phone call from Brian Johnsen.

Schmidt told Swiskowski that he gave the phone to defendant, and that defendant

and Holloway were alone in his bedroom with the phone for about 10 minutes.

Schmidt did not say anything to Swiskowski about having to leave the apartment,

or making up a story about having to leave the apartment, or that defendant put a

cord around his neck.

On the same day, May 19th, during an interview that lasted 10 to 15

minutes, David Silva told Officer Swiskowski that defendant had called him from

jail after being arrested for Teresa Holloway’s murder. Silva told Swiskowski that

during that conversation defendant did not talk about the murder except to say that

he had been charged with it. Silva did not tell Swiskowski that defendant said

Holloway was killed because she was a snitch, nor did Silva say that defendant

had described where persons were seated in Humiston’s car before or during the

murder.

On September 10, 1991, Tony Bento, an investigator for the San Diego

District Attorney, interviewed David Silva for around 25 minutes. During the

interview, Silva said he had talked to defendant on several occasions after

defendant’s arrest, and that defendant had always denied killing Teresa Holloway

and never said that she had been killed because she had overheard a conversation,

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or that she was killed because an argument got out of hand. At the end of the

interview, however, Silva mentioned a conversation with defendant before

Holloway’s death during which defendant had said that Holloway had overheard

something and she “was going to snitch him off about something.”

On September 16, 1991, Tony Bento interviewed Brian Johnsen for at least

an hour, during which Johnsen said that after defendant’s arrest, defendant called

and told him to stay away from defendant’s family or “the same thing would

happen to them.” Bento understood “them” as a reference to Johnsen and his

friends. In this interview, Johnsen never said that defendant told him that Terry

Holloway was killed because it had to be done. Johnsen also told Bento that he

had discussed with Jeffrey Latimer the plan to kill Doug Mynatt.

Jeffrey Latimer was a childhood friend of Brian Johnsen and through him

met defendant and Doug Mynatt. Latimer testified that he never discussed with

Johnsen a plan to kill Mynatt, and that to his knowledge Johnsen had “never really

been honest” and “was always the crook and the thief.”

In 1991, Richard Whalley, a forensic scientist and toxicologist, arranged to

have a private laboratory retest the urine sample taken from defendant after his

arrest. The urine was found to contain methamphetamine at a very low level (130

nanograms) that would not have caused any effect but which suggested that

defendant had probably used methamphetamine during the previous two to four

days.

In January 1992, Marion Louise Pasas, a licensed private investigator

whom Anna Humiston’s attorney had retained, interviewed Christie Medlin at her

apartment. Medlin told Pasas that after Teresa Holloway’s murder defendant had

called Medlin from jail on one occasion, but during that conversation defendant

did not talk about the murder. Medlin did not tell Pasas that defendant said he was

12



glad Holloway was dead or that he said he did not care whether he spent the rest of

his life in jail or in prison.

C. Prosecution’s Penalty Phase Case in Aggravation

Before August 1988, while defendant was living with his mother and his

sister in an apartment in San Marcos, he once became highly agitated and upset,

pushed his mother slightly against a bed, and spit in her face. Another incident

occurred later while defendant was living with his mother and sister in a house in

San Diego. On this occasion, defendant came home very upset after having

broken up with his girlfriend, threatened to obtain weapons and shoot up the

house, threatened to kill his mother, and advanced toward her with a raised hand

as if to strike her. Defendant’s friends restrained him and took him outside. When

defendant’s sister tried to telephone the police, defendant grabbed the phone from

her hand. After this incident, in December 1989, defendant’s mother applied for a

restraining order to have him removed from her house.

In October 1990, defendant was convicted of felony possession of

marijuana for sale.

In May 1991, during the autopsy of Teresa Holloway’s body, she was

found to have been pregnant. The fetus, which was around 17 weeks old, was too

young and too small to have survived outside the womb, but it showed no

evidence of traumatic injury or other condition that would have precluded its

survival to full term and birth had Holloway not died. Some weeks before her

death, Holloway had told defendant that she was pregnant, but defendant did not

believe her. Holloway said she was planning to get a pregnancy test and that

when she got the test result she would show it to defendant to prove she was

pregnant.

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On July 21, 1991, Steven Baldwin was booked into the county jail for a

probation violation. As a deputy was escorting him to a holding tank, defendant,

who was inside the tank, saw him and said to another inmate: “I know that dude.

He’s the reason I’m in here. He told the cops I killed that bitch.” After the deputy

had placed Baldwin in the tank, an inmate named Richard Janssen, whom Baldwin

did not know, approached him and struck him. Baldwin was then hit several

times, from different directions, on the back of the head and the side of the face.

Defendant did not strike him, but when the beating stopped, defendant came out of

a side cell and told Baldwin: “You can’t be in this cell. You got to roll up out of

this cell.” Baldwin lost consciousness, and the next thing he remembered was

being outside the tank on a gurney. As a result of the beating, Baldwin suffered

injuries to the left side of his face, including bruising and swelling both above and

below the eye, a laceration below the eye, and a nondisplaced fracture of the malar

bone.

On September 5, 1993, a fight broke out among inmates in module 5-B of

the county jail in San Diego. Deputies arriving at the module observed 15 to 20

Hispanic inmates on one side of the module faced off against eight to 10 Black

inmates on the other side of the module. The inmates were yelling and throwing

things back and forth, and some inmates had bloodstained towels wrapped on their

arms. Defendant was in the group of Hispanic inmates and was one of at least

four inmates holding metal bars, 12 to 18 inches in length and one-quarter inch in

diameter, that had been removed from inmate bunks. The inmates were slamming

these bars against bunks and making stabbing motions with them toward Black

inmates, although defendant was not seen to strike anyone. After the inmates were

removed, the deputies found many items that could be used as weapons scattered

throughout the module, including 13 metal bars, seven wooden mop handle pieces,

14



two razors, one razor blade attached to a comb, three wooden window grate

pieces, and two socks containing soap bars.

Teresa Holloway’s murder deeply affected her parents, James and Joan

Cucinotta, and her daughter, who at the time of Teresa Holloway’s death was four

years old and lived with her father. After the daughter learned of her mother’s

death, she became sad and withdrawn and cried a lot. She often said: “I want my

Mommy, I want my Mommy.”

A police detective came to the home of James and Joan Cucinotta to tell

them of Teresa Holloway’s death. At first Joan could not accept it; she was very

upset and angry, and she tried to hit the detective. When he said they had

identified Teresa Holloway’s body through fingerprints, Joan fell apart and

became hysterical. Some friends and family came over to be with her. That night

and for days afterwards, she was unable to eat or sleep. She just cried and smoked

cigarettes. She was unable to deal with making the funeral arrangements or

telephoning relatives, so James Cucinotta did those things.

James Cucinotta, Terry Holloway’s father, was also seriously affected by

her murder. At the time of her death, he worked in law enforcement as an

investigator, but within two weeks after learning of the murder, he lost his job

because he was no longer able to function. He began drinking heavily until

eventually he went into a treatment center. He and his wife Joan both received

treatment from psychiatrists for their grief. The murder also deeply affected their

two other children, Teresa Holloway’s brother and sister, and family holidays

became very painful. At the time of his testimony, more than four years after

Teresa Holloway’s death, James Cucinotta and his wife continued to visit Teresa’s

grave every week. Joan Cucinotta sometimes took Teresa’s daughter to the grave.

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D. Defense Penalty Phase Case in Mitigation

Calvin Bruce was one of the inmates in module 5-B of the county jail in

San Diego on September 5, 1993. He was talking on the phone to his wife when

he saw two inmates, one Black and the other Hispanic, have a confrontation that

became physical and resulted in a face-off between groups of Black and Hispanic

inmates during which inmates in both groups wielded and threw metal pipes.

According to Bruce, defendant was not one of the original combatants, he did not

have any weapon in his hand during the incident, and he tried unsuccessfully to

persuade other inmates to stop the fighting.

Defendant’s parents—Robert Jurado, Sr., and Josephine Jurado—married

in 1968. Defendant was born in June 1970, and his sister Oralia in November

1973. At that time, the family lived in Los Banos. Once, when he was around

four years old, defendant saw his father hit his mother. Defendant ran up to his

mother and hugged her.

In 1973, defendant’s parents separated, and defendant began to experience

“tremendous headaches that would make him cry a lot.” He also developed a fear

of sleeping in the dark, and he became more rebellious with his mother. After the

separation, defendant’s father saw his children no more than once or twice a year.

In 1977, defendant’s parents finalized their divorce. In 1984, defendant’s

mother moved to San Diego. His father never went there to visit, and he

telephoned very seldom. Around 1985, defendant’s father remarried. In 1986,

defendant’s grades began to fail and he began to use drugs. In 1987 or 1988,

defendant’s mother placed him in a drug treatment program. When he learned that

defendant was using illegal drugs, defendant’s father cut all ties with defendant.

Around this time, a psychiatrist told defendant’s mother that defendant was

suicidal and needed to be hospitalized right away. When defendant’s mother

telephoned his father to get some insurance papers to cover defendant’s

16



hospitalization, defendant’s father said something to the effect that it might be

better if defendant did commit suicide.

Defendant’s father testified that he had seen defendant once since his arrest

and could now form a relationship with him because defendant was no longer

using drugs.

Before moving to San Diego with his mother in 1984, defendant had close

relationships with his aunt, Patricia Camacho, and his two grandmothers, Josefina

Martinez and Paz Jurado. They each testified that they love defendant very much

and intended to visit him in prison. Defendant’s mother and his sister Oralia both

testified that they love defendant very much, that they had visited defendant

weekly since his arrest, and that they intended to continue visiting him in prison.

II. PRETRIAL AND JURY SELECTION ISSUES

A. Double Jeopardy

The District Attorney of San Diego County filed an amended information

charging defendant with murder (§ 187) and conspiracy to commit murder

(§§ 182, 187), and alleging a lying-in-wait special circumstance (§ 190.2, subd.

(a)(15)) making defendant eligible for the death penalty. Defendant filed a motion

under section 995 to set aside the conspiracy count and the lying-in-wait special

circumstance allegation on the ground that they were not adequately supported by

the evidence presented at the preliminary hearing. The prosecution filed written

opposition to the motion, and the trial court, after a hearing, denied the motion to

dismiss as to the conspiracy count, but the court granted the motion as to the

special circumstance allegation.

Immediately after the court made its ruling dismissing the special

circumstance allegation, defendant announced his intention to plead guilty to the

remaining charges. The prosecutor stated that his office might seek appellate

17



review of the ruling setting aside the special circumstance by petitioning the Court

of Appeal for a writ of mandate, and that for this reason he would not sign the

change of plea form if defendant pled guilty to the remaining charges. Defendant

then withdrew his previous not-guilty pleas and pled guilty to the remaining

charges.

To challenge the ruling setting aside the special circumstance allegation,

the prosecution petitioned the Court of Appeal for a writ of mandate. (See People

v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217.) The Court of Appeal

stayed defendant’s sentencing hearing, which had been scheduled for December

23, 1991. In his opposition to the writ petition, defendant argued that because he

had already pled guilty to the remaining charges, any further prosecution of the

special circumstance allegation would violate the double jeopardy clauses of the

federal and state Constitutions (U.S. Const., 5th Amend.; Cal. Const., art. I, § 15),

and for this reason the special circumstance allegation could not be reinstated even

if the trial court had erred in dismissing it. (See People v. Superior Court

(Jurado), supra, at p. 1229.)

The Court of Appeal held that the trial court had erred in dismissing the

special circumstance allegation under section 995 (People v. Superior Court

(Jurado), supra, 4 Cal.App.4th at p. 1229) and also that there was no double

jeopardy bar to reinstatement and prosecution of the special circumstance

allegation (id. at pp. 1235-1236). In granting the petition for writ of mandate, the

Court of Appeal directed the trial court to enter a new order denying defendant’s

section 995 motion in its entirety, thereby reinstating the special circumstance

allegation. (People v. Superior Court (Jurado), supra, at p. 1236.) This court

denied defendant’s petition for review. (Ibid.) Defendant then withdrew his

guilty pleas, pled not guilty to the charges, and denied the special circumstance

allegation.

18



Defendant here raises the same double jeopardy issue he raised

unsuccessfully in opposing the prosecutor’s pretrial writ petition in the Court of

Appeal. The Attorney General argues that defendant’s claim is barred by the law

of the case doctrine.

Under the doctrine of the law of the case, a principle or rule that a

reviewing court states in an opinion and that is necessary to the reviewing court’s

decision must be applied throughout all later proceedings in the same case, both in

the trial court and on a later appeal. (People v. Turner (2004) 34 Cal.4th 406, 417;

People v. Barragan (2004) 32 Cal.4th 236, 246; People v. Stanley (1995) 10

Cal.4th 764, 786.) We apply the doctrine even in death penalty cases, and even

when the previous decision was rendered by a Court of Appeal, but we do not

apply it when an intervening decision has altered or clarified the controlling rules

of law, or when the rule stated in the prior decision was a “ ‘manifest

misapplication’ of the law resulting in ‘substantial injustice.’ ” (People v. Stanley,

supra, at p. 787; accord, People v. Gray (2005) 37 Cal.4th 168, 197.)

Defendant argues that both of the recognized exceptions to the doctrine of

the law of the case—intervening change in the law and manifest misapplication of

existing legal principles resulting in substantial injustice—are present here. To

evaluate his arguments, we begin by reviewing the Court of Appeal’s decision.

The Court of Appeal framed the issue this way: “Jurado’s response to the

People’s petition presents the question of whether the prejeopardy dismissal of the

special circumstance allegation pursuant to Jurado’s motion under section 995 and

his immediate guilty plea without the concurrence of the prosecutor and before the

prosecutor could seek pretrial review of that dismissal would result in a ‘second

prosecution’ for the same offense after ‘acquittal’ or ‘conviction.’ ” (People v.

Superior Court (Jurado), supra, 4 Cal.App.4th at pp. 1229-1230.) The court

concluded, first, that dismissal of the special circumstance allegation under section

19



995 was a prejeopardy rather than a postjeopardy determination. (People v.

Superior Court (Jurado), supra, at pp. 1230-1231.) The court concluded, second,

that the lying-in-wait special circumstance was not “an added element which

would create a greater offense out of the charged murder,” but instead was a

“penalty enhancement.” (Id. at p. 1231.) Third, the court concluded, after

distinguishing certain decisions that defendant cited, that this case “most closely

resembles” Ohio v. Johnson (1984) 467 U.S. 493 (Johnson). (People v. Superior

Court (Jurado), supra, at p. 1233.)

In Johnson, a defendant charged with four offenses arising from the same

incident pled guilty to two of the offenses—involuntary manslaughter and grand

theft—after which, on the defendant’s motion, the trial court dismissed the other

two charges—murder and aggravated robbery—“on the ground that because of his

guilty pleas, further prosecution on the more serious offenses was barred by the

double jeopardy prohibitions of the Fifth and Fourteenth Amendments.”

(Johnson, supra, 467 U.S. at p. 494.) The United States Supreme Court

concluded, to the contrary, that “prosecuting [the defendant] on the two more

serious charges would not constitute the type of ‘multiple prosecution’ prohibited

by the Double Jeopardy Clause.” (Ibid.)

The high court explained that the federal Constitution’s double jeopardy

clause protects against (1) a second prosecution for the same offense after acquittal

or conviction and (2) multiple punishment for the same offense. (Johnson, supra,

467 U.S. at p. 498.) The bar against a subsequent prosecution after acquittal or

conviction “ensures that the State does not make repeated attempts to convict an

individual, thereby exposing him to continued embarrassment, anxiety, and

expense, while increasing the risk of an erroneous conviction or an impermissibly

enhanced sentence,” while the bar against multiple punishment for a single offense

“is designed to ensure that the sentencing discretion of courts is confined to the

20



limits established by the legislature.” (Id. at pp. 498-499.) The court concluded

that the issue of multiple punishment was not yet presented because the defendant

had never been tried for, convicted of, or sentenced for the more serious offenses

of murder and aggravated robbery. (Id. at pp. 499-500.) “While the Double

Jeopardy Clause may protect a defendant against cumulative punishments for

convictions on the same offense, the Clause does not prohibit the State from

prosecuting respondent for such multiple offenses in a single prosecution.” (Id. at

p. 500.)

The court also rejected the argument that further prosecution of the murder

and aggravated robbery charges would violate the double jeopardy prohibition

against successive prosecutions: “No interest of respondent protected by the

Double Jeopardy Clause is implicated by continuing prosecution on the remaining

charges brought in the indictment. Here respondent offered only to resolve part of

the charges against him, while the State objected to disposing of any of the counts

against respondent without a trial. . . . There simply has been none of the

governmental overreaching that double jeopardy is supposed to prevent. On the

other hand, ending prosecution now would deny the State its right to one full and

fair opportunity to convict those who have violated its laws.” (Johnson, supra,

467 U.S. at pp. 501-502.)

Here, the Court of Appeal rejected defendant’s attempts to distinguish

Johnson, supra, 467 U.S. 493. Defendant argued that the prosecutor here did not

sufficiently object to defendant’s guilty pleas. As the Court of Appeal pointed out,

however, the prosecutor advised the trial court that his office might seek appellate

review of the dismissal of the special circumstance allegation, and the trial court

advised defendant of the possibility that the special circumstance would be

reinstated. (People v. Superior Court (Jurado), supra, 4 Cal.App.4th at pp. 1234-

1235.) The Court of Appeal concluded: “Jurado was never in jeopardy for the

21



special circumstance, nor was he ever convicted or acquitted of that charge. Since

the special circumstance is not in a lesser- or greater-offense relationship to the

murder, there is no reason to allow Jurado’s tactical maneuver to deny the People

the right to a trial on the merits of that allegation.” (Id. at pp. 1235-1236.)

Defendant argues, first, that the United States Supreme Court’s decision in

Ring v. Arizona (2002) 536 U.S. 584, constitutes an intervening change in the law

establishing that a special circumstance making a defendant eligible for the death

penalty is the functional equivalent of an element of a greater offense of capital

murder. We need not decide whether defendant is correct that a special

circumstance is, for double jeopardy purposes, the functional equivalent of an

element of a greater offense. Even if that is true, and the Court of Appeal erred in

stating otherwise, it does not assist defendant because it is not a basis for

distinguishing Johnson, supra, 467 U.S. 493. There, the high court accepted the

Ohio Supreme Court’s determination that the defendant could not be convicted of

both murder and involuntary manslaughter for the same killing, but it nonetheless

concluded that a guilty plea to involuntary manslaughter did not bar prosecution

for murder under the facts of that case. (Johnson, supra, 467 U.S. at pp. 496-497

& fn. 6.) So also here, for purposes of double jeopardy analysis under the facts

shown, it make no difference whether a special circumstance is or is not an

element, or the functional equivalent of an element, of a greater offense.

Defendant’s second argument is that Johnson, supra, 467 U.S. 493, is

distinguishable, and that the Court of Appeal’s reliance on that decision was a

manifest misapplication of the law, because unlike the defendant in Johnson, he

pled guilty to all charges then pending against him and the prosecutor openly and

actively participated in the taking of these pleas. We are unpersuaded that these

slight differences are significant. The prosecution charged defendant with murder

with a special circumstance allegation, it timely sought review of the trial court’s

22



erroneous dismissal of the allegation, and it did not acquiesce in defendant’s guilty

plea to the murder charge. The prosecutor’s participation in the taking of the

guilty plea, primarily in the form of insisting that an adequate factual basis be

demonstrated, was not an “effort to prosecute the charges seriatim” (Johnson,

supra, 467 U.S. at p. 500, fn. 9) and did not pose the risks that the successive

prosecution aspect of the double jeopardy bar was intended to guard against—

“repeated attempts to convict an individual, thereby exposing him to continued

embarrassment, anxiety, and expense, while increasing the risk of an erroneous

conviction or an impermissibly enhanced sentence” (id. at pp. 498-499). As in

Johnson, there was “none of the governmental overreaching that double jeopardy

is supposed to prevent,” and imposing a double jeopardy bar “would deny the

State its right to one full and fair opportunity to convict those who have violated

its laws.” (Id. at pp. 501-502.)

Because defendant has not shown that the Court of Appeal’s decision

rejecting his double jeopardy claim was a manifest misapplication of the law, that

it resulted in substantial injustice, or that there has been an intervening change in

the controlling law, the Court of Appeal’s decision is the law of the case on that

issue.

B. Vindictive Prosecution

On July 6, 1992, after the Court of Appeal’s decision reinstating the special

circumstance allegation became final, the prosecutor announced that his office had

decided to seek the death penalty against defendant. On August 20, 1992,

defendant filed a motion to bar the prosecutor from seeking the death penalty on

the ground that the decision to do so was vindictive. On September 4, 1992, the

prosecutor filed written opposition to the motion, and on September 11, 1992,

defendant withdrew his guilty pleas and entered pleas of not guilty. Also on

23



September 11, 1992, the trial court denied the motion alleging vindictive

prosecution. Defendant now claims the trial court erred in so ruling.

“Absent proof of invidious or vindictive prosecution, as a general matter a

defendant who has been duly convicted of a capital crime under a constitutional

death penalty statute may not be heard to complain on appeal of the prosecutor’s

exercise of discretion in charging him with special circumstances and seeking the

death penalty.” (People v. Lucas (1995) 12 Cal.4th 415, 477.) But the due

process clauses of the federal and state Constitutions (U.S. Const., 5th & 14th

Amends.; Cal. Const., art. I, §§ 7, 15) forbid the prosecution from taking certain

actions against a criminal defendant, such as increasing the charges, in retaliation

for the defendant’s exercise of constitutional rights. (United States v. Goodwin

(1982) 457 U.S. 368, 372; In re Bower (1985) 38 Cal.3d 865, 880, fn. 7.) It is not

a constitutional violation, however, for a prosecutor to offer benefits, in the form

of reduced charges, in exchange for a defendant’s guilty pleas, or to threaten to

increase the charges if the defendant does not plead guilty. (Bordenkircher v.

Hayes (1978) 434 U.S. 357, 365; see People v. Collins (2001) 26 Cal.4th 297,

309, fn. 4.) In the pretrial setting, there is no presumption of vindictiveness when

the prosecution increases the charges or, as here, the potential penalty. (United

States v. Goodwin, supra, at pp. 381-382; People v. Michaels (2002) 28 Cal.4th

486, 515.) Rather, the defendant must “prove objectively that the prosecutor’s

charging decision was motivated by a desire to punish him for doing something

the law plainly allowed him to do.” (United States v. Goodwin, supra, at p. 384,

fn. omitted; People v. Michaels, supra, at p. 515.)

The only evidence defendant submitted to the trial court to prove his claim

of vindictive prosecution was a declaration by his trial attorney recounting certain

events leading up to the prosecutor’s announcement of the decision to seek the

death penalty. On August 16, 1991, when defendant was arraigned on an

24



information charging him with the murder of Teresa Holloway and alleging the

special circumstance of lying in wait, the prosecutor, Deputy District Attorney

Mark Pettine, announced that his office was not seeking the death penalty. On

October 11, 1991, an amended information was filed adding the charge of

conspiracy to commit murder. On November 15 through 19, 1991, Brian Johnsen

testified at a conditional examination, describing how he and defendant had

discussed a plan to kill Doug Mynatt and how defendant later admitted killing

Teresa Holloway because “it had to be done.” Two days later, on November 21,

the trial court dismissed the special circumstance allegation and defendant pled

guilty to the remaining charges.

The prosecution then challenged the dismissal of the special circumstance

allegation by petitioning the Court of Appeal for a writ of mandate. In late March

or early April of 1992, after the Court of Appeal had granted the petition, but

before its decision had become final, Deputy District Attorney Pettine told

defendant’s trial attorney that if defendant withdrew his guilty pleas, Pettine

would talk to the District Attorney about whether to seek the death penalty, but if

defendant did not withdraw the guilty pleas it was likely that the death penalty

would not be sought.3 A few weeks later, however, Pettine advised defense

counsel that he intended to discuss the death penalty with the district attorney

3

On April 27, 1992, the trial court held a hearing to discuss the status of the

case. Defense counsel announced that defendant intended to petition this court for
review of the Court of Appeal’s decision reinstating the special circumstance
allegation, and that regardless of the outcome of that effort defendant did not
intend to withdraw his guilty pleas. Deputy District Attorney Pettine announced
that he had discussed with the district attorney whether to seek the death penalty,
and the district attorney said that no decision would be made until defendant
decided whether he would withdraw his guilty pleas. Pettine said he would
discuss the matter with the district attorney again in light of defendant’s decision
not to withdraw his guilty plea, but he explained that “all options are still open.”

25



whether or not defendant withdrew his guilty pleas, but he implied that the death

penalty might not be sought if defendant admitted the special circumstance

allegation. On July 6, 1992, at a hearing in superior court to discuss the status of

the case, after defense counsel announced that this court had denied defendant’s

petition for review of the Court of Appeal’s decision reinstating the special

circumstance allegation, Deputy District Attorney Pettine stated that he had again

met with the district attorney, who had decided to seek the death penalty against

defendant, and that he had immediately advised defense counsel of that decision.

Like the trial court, we see in this sequence of events no evidence that the

prosecution’s decision to seek the death penalty against defendant was motivated

by a desire to punish defendant for making the motion to dismiss the special

circumstance allegation under section 995, for pleading guilty and attempting to

assert a double jeopardy bar, for opposing the prosecution’s writ petition in the

Court of Appeal, or for petitioning this court to review the Court of Appeal’s

decision. Although the discussions between Deputy District Attorney Pettine and

defense counsel suggest that the decision to seek the death penalty may have been

influenced to some extent by defendant’s decision to deny the special

circumstance allegation, this was not an impermissible consideration.

(Bordenkircher v. Hayes, supra, 434 U.S. at p. 365; People v. Collins, supra, 26

Cal.4th at p. 309, fn. 4.)

Defendant argues, in substance, that the prosecution’s decision to seek the

death penalty against defendant must have been motivated by a desire to punish

him for challenging the validity of the special circumstance allegation through his

section 995 motion because nothing else of significance occurred between August

16, 1991, when the prosecutor said his office was not seeking the death penalty,

and July 6, 1992, when the prosecutor said it was. We disagree. In September

1991, Brian Johnsen told prosecution investigators of defendant’s involvement in

26



a plan to kill Doug Mynatt; in November 1991, the prosecutor conditionally

examined Brian Johnsen and assessed the credibility of his testimony; and, in early

1992, at Anna Humiston’s trial for the murder of Teresa Holloway, the

prosecution had an opportunity to assess the strength of its case. These events

could well have caused the prosecution to reassess its decision about the

appropriate penalty in this case.

Defendant argues that Brian Johnsen’s information could not have been

significant because the prosecution did not decide to seek the death penalty until

many months after receiving that information. We disagree. Because of its

concerns for the safety of Brian Johnsen and Doug Mynatt, the prosecution

decided to conditionally examine Johnsen immediately after disclosing the

information obtained from him. Two days after that conditional examination

ended, the trial court dismissed the special circumstance allegation. It was only

months later that the special circumstance was reinstated, and the prosecution then

immediately reassessed its decision and announced its intention to seek the death

penalty. Thus, the actual window of time for the prosecution to act on Brian

Johnsen’s information was not many months, as defendant asserts, but only a few

days. No inference of improper motive arises from the prosecution’s failure to act

during this brief period. Moreover, the decision to seek the death penalty

ultimately did not rest on Johnsen’s information alone, but also on the

prosecution’s opportunity to preview its case at the Humiston trial, including the

testimony of Denise Shigemura.

Because defendant did not present evidence of a vindictive motive for the

prosecution’s decision to seek the death penalty, the trial court did not err in

denying defendant’s motion to bar the prosecution from seeking that penalty.

27



C. Voir Dire Procedures

In Hovey v. Superior Court (1980) 28 Cal.3d 1, 80, this court decided that

in capital prosecutions the death-qualification portion of each prospective juror’s

voir dire should be sequestered, meaning that it should be conducted out of the

presence of other prospective jurors. This court did not hold that sequestered voir

dire was constitutionally required; instead, we mandated this practice as a rule of

procedure. (See People v. Vieira (2005) 35 Cal.4th 264, 286-287; People v. Cudjo

(1993) 6 Cal.4th 585, 628.) In 1990, however, the voters abrogated this aspect of

Hovey by enacting Proposition 115, which added section 223 to the Code of Civil

Procedure. That statute provides, in part, that “where practicable” the trial court

must conduct voir dire “in the presence of the other jurors in all criminal cases,

including death penalty cases.” (Code Civ. Proc., § 223.)

The jury selection process in this case began with hardship screening, after

which the remaining prospective jurors filled out a lengthy juror questionnaire. To

comply with the statutory mandate that voir dire occur in the presence of other

jurors “where practicable” (Code Civ. Proc., § 223), the trial court decided to

conduct voir dire, including questioning about the death penalty, with small

groups of 10 prospective jurors. Before the voir dire of the first small group, the

defense requested individual voir dire of five prospective jurors who, in the view

of defense counsel, had “expressed very strong attitudes toward the death penalty”

in their questionnaire responses. The trial court denied the request but stated that

it would reconsider the matter based on the individual jurors’ answers during voir

dire. Thereafter, however, the court agreed to separate4 or sequestered voir dire of


4

In some instances, jurors who expressed strong death penalty views on the

questionnaire responses were questioned with others who had expressed similar
views but out of the presence of jurors who had not expressed such views.

28



prospective jurors whose questionnaire responses indicated strong opposition to

the death penalty, and the court said that it would do the same if questionnaire

responses indicated a bias in favor of the death penalty. The court followed this

procedure during the remainder of the voir dire, providing sequestered death-

qualification voir dire for any juror who had expressed particularly strong views

about the death penalty, either for or against, in filling out the questionnaire, and

inviting counsel to assist in identifying the prospective jurors for whom

sequestered voir dire would be appropriate. After nearly 100 prospective jurors

had been questioned on voir dire in this manner, and challenges for cause had been

made and ruled upon, the jury selection process was completed by the exercise of

peremptory challenges. The defense expressed satisfaction with the jurors

selected, and they were sworn to try the case.

Defendant contends that the trial court’s failure to conduct sequestered

death-qualification voir dire—that is, to question each prospective juror on

subjects relating to the death penalty out of the presence of other prospective

jurors—violated his rights under the federal Constitution to due process, equal

protection, jury trial, effective assistance of counsel, and a reliable penalty verdict,

and his right under California law to individual juror voir dire when group voir

dire is not practical.

Insofar as defendant contends that the federal Constitution requires

sequestered death-qualification voir dire of every prospective juror in a capital

case, the claim has been frequently rejected by this court and is without merit.

(People v. Stitely (2005) 35 Cal.4th 514, 536-537; People v. Vieira, supra, 35

Cal.4th at pp. 286-287; People v. Box (2000) 23 Cal.4th 1153, 1180.)

29



Insofar as defendant contends that the trial court violated his rights under

the federal Constitution and under California law by failing to exercise its

discretion to consider whether group voir dire was “practicable,” the record in this

case does not support his claim. Rather, the trial court clearly understood it had

discretion to order individual voir dire, and it did so for those jurors whose

questionnaire responses suggested strong and possibly disqualifying views

regarding imposition of the death penalty. The trial court did not abuse its

discretion under Code of Civil Procedure section 223, nor did it violate

defendant’s constitutional rights. (People v. Box, supra, 23 Cal.4th at pp. 1180-

1181.)

D. Batson/Wheeler Claim

During jury selection, after the prosecution used its ninth peremptory

challenge to excuse B.J., a Black woman, the defense made an objection under

People v. Wheeler (1978) 22 Cal.3d 258. The trial court stated that it would hear

argument on the objection at the next recess. The prosecution then used its

eleventh peremptory challenge against N.M., another Black woman. After the

prosecutor had exercised 12 peremptory challenges and the defense had exercised

13 peremptory challenges, both sides expressed satisfaction with the jury as

constituted, and the jurors were sworn to try the case. Alternate jurors were then

selected and sworn.

30



During the next recess, the defense presented argument on the Wheeler

objection. Defense counsel stated that the objection was under Batson v. Kentucky

(1986) 476 U.S. 79 (Batson) as well as Wheeler and that “[t]he racial group we are

talking about in this instance is African American, specifically African American

women.” The court asked whether the challenge was “based on the race of the

two jurors who were excused.” Defense counsel replied that it was based on “race

and gender,” that the prosecutor had excused two of the three African-American

women who were on the jury panel, and that defense counsel believed this was

sufficient to raise an inference of impermissible discrimination.

In response, the prosecutor argued that the defense was improperly

“interrelating classes” and that the presence of seven women on the jury showed

there had been no discrimination against women. The prosecutor also noted that

of the four African-Americans on the initial panel, he had challenged two, the

defense had challenged one, and one was seated on the jury. Defense counsel

responded that, as to gender, the prosecution had used eight of 12 peremptory

challenges against women. The trial court stated that “out of an abundance of

caution” it was giving the prosecution “the opportunity to offer whatever

nongender-based or nonracially based rationale you care to offer for the

challenges.”

The prosecutor said he challenged N.M. because she “indicated that she

thought there was some problems with the district attorney’s office handling high-

profile cases” and because she “indicated that she had a brother that had been

arrested and prosecuted for drugs.” The prosecutor said he challenged B.J.

because her “son was prosecuted by our office, and she was an alibi witness in that

case” and because “she’s probably one of the most hostile jurors that I’ve ever

questioned.” The prosecutor added: “I think that she feels very, very upset with

the prosecution of her son.” Defense counsel declined the trial court’s invitation

31



to comment on these reasons, stating: “We would submit for the court’s ruling on

it.” The trial court then ruled on this aspect of the challenge, stating: “I think the

People—their explanation I think convinces me that the challenges to [B.J.] and

[N.M.] were not racially motivated or based upon their race.”

The trial court then “out of an abundance of caution” asked the prosecutor

to provide reasons for its peremptory challenges against the other six women. The

prosecutor asked for time to review his notes and papers, and the court agreed to

take up the matter later. The prosecutor noted that the defense had used most of

its peremptory challenges against men, possibly as many as 11 out of 13

challenges. The court replied, in substance, that it did not think that was relevant

in ruling on the defense challenge: “I’m not sure two wrongs make a right . . . .”

The next day, the prosecutor provided reasons for the remaining six

peremptory challenges to women. The prosecutor said he challenged L.J.

“because she indicated on five different places on the questionnaire that she was

against the death penalty.” He challenged J.O. because she “indicated on her

questionnaire that she felt she was a wishy-washy person,” that she “had

difficult[y] making up her mind,” that “pressure from other jurors might start her

to doubt herself,” and that “she thinks she is a bad judge of character.” He

challenged N.J. because she stated on her questionnaire that “the burden of

deciding a person’s life was really just too great a decision for her to make.” He

challenged F.C. because she stated on her questionnaire that she would “find it

difficult” to vote for death and the prosecutor thought she had “a clear leaning

against the death penalty.” He challenged L.H. because “a fair reading of her

questionnaire is that she hasn’t made up her mind” about the death penalty, and

because “a fair reading of her statements in court was that she really is much

opposed to the death penalty.” He challenged B.B. because she wrote on her

questionnaire that “she had religious and philosophical views so that she would

32



always vote against the death penalty” and because he thought she might have

difficulty understanding spoken English. Finally, he challenged M.B. because she

was 73 years old and appeared to be “basically overwhelmed” and because she

had apologized for believing in the death penalty.

After hearing defense counsel’s argument in response, the trial court

overruled the defense objection, stating: “I’m satisfied that the district attorney

has made an explanation for each of these challenges which persuades me that

they were not solely or sufficiently based on gender that they should be held to

have violated [defendant’s] constitutional rights.”

Defendant contends that the trial court erred in overruling the

Batson/Wheeler objection because the prosecutor’s reasons for the peremptory

challenges “found little or no support in the record” and because the trial court

“failed in its duty to seriously evaluate the credibility of the prosecutor’s excuses

and make a reasoned determination of whether purposeful discrimination existed.”

Defendant contends that this error violated his rights under the federal

Constitution to a fair trial, to due process of law, and to equal protection of the

law, and his rights under the state Constitution to trial by a jury drawn from a

representative cross-section of the community.

The use of peremptory challenges to remove prospective jurors because of

their race or gender violates both the federal and the California Constitutions.

(J. E. B. v. Alabama ex rel. T. B. (1994) 511 U.S. 127, 129; Powers v. Ohio (1991)
499 U.S. 400, 409; Batson, supra, 476 U.S. at p. 89; People v. McDermott (2002)

28 Cal.4th 946, 969.) The United States Supreme Court has set out a three-step

process to be followed when a party claims that an opponent has improperly

discriminated in the exercise of peremptory challenges. First, the complaining

party must make out a prima facie case of invidious discrimination. Second, the

party exercising the challenge must state nondiscriminatory reasons for the

33



challenge. Third, the trial court must decide whether the complaining party has

proved purposeful discrimination. (Johnson v. California (2005) 545 U.S. __ [125

S.Ct. 2410, 2416]; Purkett v. Elem (1995) 514 U.S. 765, 767; People v. Silva

(2001) 25 Cal.4th 345, 384.)

By asking the prosecutor to explain the peremptory challenges, the trial

court here implicitly found that defendant had made a prima facie showing of

impermissible discrimination in the exercise of peremptory challenges. (People v.

Cash (2002) 28 Cal.4th 703, 723.) Once the trial court ruled on the credibility of

the prosecutor’s stated reasons, the issue of whether the defense had made a prima

showing became moot. (Hernandez v. New York (1991) 500 U.S. 352, 359;

People v. Arias (1996) 13 Cal.4th 92, 135.)

When a trial court has made a sincere and reasoned effort to evaluate each

of the stated reasons for a challenge to a particular juror, we accord great

deference to its ruling, reviewing it under the substantial evidence standard.

(People v. McDermott, supra, 28 Cal.4th at p. 971; People v. Cash, supra, 28

Cal.4th at p. 725.)

We consider each of the eight challenged jurors, taking them in the order in

which the prosecutor provided reasons for the peremptory challenges.

The prosecutor’s stated reasons for challenging N.M. were that she

“indicated that she thought there was some problems with the district attorney’s

office handling high-profile cases” and because she “indicated that she had a

brother that had been arrested and prosecuted for drugs.” These reasons are

neutral as to race and gender, they are not inherently implausible, and substantial

evidence supports the trial court’s finding on the credibility of this explanation. In

response to a question on the juror questionnaire asking whether she had “any

specific feeling for or against . . . prosecutors (district attorneys),” she marked

“yes” and explained: “There seems to be many problems with high-profile cases.”

34



In response to another question, she indicated that a close relative or friend had

been arrested, charged, and tried for a crime, and she explained: “Brother arrested

for possession of drugs.”

Defendant argues that the prosecutor’s reasons for challenging N.M. are not

credible because other jurors whom the prosecutor did not challenge, and who

were ultimately seated on the jury, also had relatives who had been arrested for

drug-related offenses. Even if we assume we must conduct a comparative juror

analysis for the first time on appeal (see Miller-El v. Dretke (2005) 545 U.S. ___,

fn. 2 [125 S.Ct. 2317, 2326, fn. 2]; People v. Schmeck (2005) 37 Cal.4th 240, 270;

People v. Gray, supra, 37 Cal.4th at pp. 188-189), defendant does not identify any

seated juror who gave responses similar to N.M.’s on both of the topics mentioned

by the prosecutor. Although some of the seated jurors had relatives who had been

arrested for drug-related offenses, none of these jurors also expressed any feelings

against prosecutors.

The prosecutor said he challenged B.J. because her “son was prosecuted by

our office, and she was an alibi witness in that case” and because “she’s probably

one of the most hostile jurors that I’ve ever questioned.” The prosecutor added:

“I think that she feels very, very upset with the prosecution of her son.” These

reasons are neutral as to race and gender, they are not inherently implausible, and

substantial evidence supports the trial court’s finding on the credibility of this

explanation. On voir dire, B.J. said that she had been an alibi witness in her son’s

trial in San Diego County, that the case was dismissed after two trials resulted in

hung juries, and that her experiences with the police in that case “were not very

favorable,” although she denied having negative feelings toward the prosecutor or

the criminal justice system. When the prosecutor stated that B.J. was “probably

one of the most hostile jurors” he had ever questioned, the trial court said, “I recall

having that same impression when we were talking to her.” Defense counsel did

35



not dispute this characterization of B.J.’s demeanor on voir dire, instead merely

submitting the matter.

The prosecutor’s stated reason for challenging L.J. was that “she indicated

on five different places on the questionnaire that she was against the death

penalty.” The record supports this statement, which provides a credible and

gender-neutral ground for challenge. Skepticism about the death penalty is a

permissible basis for a prosecutor’s exercise of a peremptory challenge. (People v.

Panah (2005) 35 Cal.4th 395, 441; People v. McDermott, supra, 28 Cal.4th at

pp. 970-971.)

The prosecutor’s stated reasons for challenging J.O. were that she

“indicated on her questionnaire that she felt she was a wishy-washy person,” that

she “had difficult[y] making up her mind,” that “pressure from other jurors might

start her to doubt herself,” and that “she thinks she is a bad judge of character.”

The record supports these reasons, which provide credible and gender-neutral

grounds for challenge. A prosecutor could reasonably be concerned about a juror

who said she was a bad judge of character because she would “believe any hard

luck story.”

The prosecutor’s stated reason for challenging N.J. was her questionnaire

response that “the burden of deciding a person’s life was really just too great a

decision for her to make.” This is an accurate description of one of N.J.’s

questionnaire responses, in which she marked the “no” response to a question

asking whether she would like to serve as a juror on this case, adding this

explanation: “The burden of decision for a person’s life—either the death

sentence or life imprisonment.” This response provides a legitimate and credible

reason for the challenge.

The prosecutor said he challenged F.C. because she stated on her

questionnaire that she would “find it difficult” to vote for death and the prosecutor

36



thought she had “a clear leaning against the death penalty.” In response to a

question asking for her “feelings about the death penalty,” F.C. wrote on her

questionnaire, “In a few cases it may be necessary, but in general I would find it

difficult to give this recommendation.” These reservations about the death penalty

provided a permissible basis for a prosecutor’s exercise of a peremptory challenge.

(People v. Panah, supra, 35 Cal.4th at p. 441; People v. McDermott, supra, 28

Cal.4th at pp. 970-971.)

The prosecutor said he challenged L.H. because “a fair reading of her

questionnaire is that she hasn’t made up her mind” about the death penalty, and

because “a fair reading of her statements in court was that she really is much

opposed to the death penalty.” In response to the question asking for her “feelings

about the death penalty,” L.H. wrote this response: “Well, it seems that killing a

person by the death penalty for killing someone else is confusing. What will

sentencing someone to die do for our society? I’m not sure of this ‘eye for an eye’

sentence.” In response to a question asking what purpose or purposes the death

penalty serves, she wrote: “I’m not sure it does serve a valid purpose.

Unfortunately, it seems to be disproportionately given to non-whites. Also,

there’s no going back once it’s done—what if new evidence comes to light?” Her

responses on voir dire also revealed skepticism about the death penalty. These

reservations about the death penalty provided a legitimate, credible, gender-neutral

basis for a prosecutor’s exercise of a peremptory challenge.

He challenged B.B. because she wrote on her questionnaire that “she had

religious and philosophical views so that she would always vote against the death

penalty” and because he thought she might have difficulty understanding spoken

English. The record supports these reasons. The questionnaire asked the

prospective jurors whether they had “any moral, religious, or philosophical

opposition to the death penalty so strong that [they] would be unable to impose the

37



death penalty regardless of the facts.” In response to this question, B.B. put a

check mark next to “yes,” with this explanation: “Thou shalt not kill, one of the

10 commandments of God.” She also indicated that she had been born in the

Philippines, thereby suggesting that English might not be her first language.

These are permissible, neutral, and credible reasons for the peremptory challenge

of B.B.

Finally, the prosecutor said he challenged M.B. because she was 73 years

old and appeared to be “basically overwhelmed” and because she had apologized

for believing in the death penalty. The record supports these reasons, which are

credible and gender neutral. The questionnaire asked the prospective jurors to

state their “feeling about the death penalty.” M.B. wrote in response: “I am sorry

to say but I am for the death penalty.” She also indicated on the questionnaire that

she would not like to serve as a juror on this case. On voir dire, when the

prosecutor asked her about this response, she said: “I have served on juries before

and I also been on election boards, I think somebody else should do it. You know,

my years living.”

We are unpersuaded by defendant’s argument that the trial court erred in

deferring argument on defendant’s Batson/Wheeler motion until the next recess,

which occurred after the jury selection process had been completed and a jury had

been sworn to try the case. Defense counsel did not object to this procedure at the

time, and in fact indicated that the defense was satisfied with the jury that was

sworn to try the case. Moreover, the swearing of the jury would not have made it

impossible for the trial court to grant effective relief in the event the court granted

the Batson/Wheeler motion. Although jeopardy attached with the swearing of the

jury, a Batson/Wheeler motion may be deemed a motion for mistrial and thus a

waiver of any double jeopardy defense. (See People v. Batts (2003) 30 Cal.4th

660, 679 [a defendant’s request for a mistrial waives any double jeopardy claim];

38



see also People v. Yeoman (2003) 31 Cal.4th 93, 115 [Wheeler motions often

termed motions for mistrial].)

We conclude that substantial evidence supports the trial court’s rulings

rejecting defendant’s Batson/Wheeler challenges on the basis of race and gender.

III. ISSUES RELATING TO GUILT AND SPECIAL CIRCUMSTANCES

A. Conditional Examination Testimony

Defendant contends that the trial court erred under state law in overruling

his objection to admission at trial of the conditional examination testimony of

Brian Johnsen, and that this error violated defendant’s constitutional rights to due

process, to counsel, to confrontation, and to fair and reliable determinations of

guilt and penalty under the Fifth, Sixth, Eighth, and Fourteenth Amendments to

the United States Constitution.

1. Factual background

On November 1, 1991, the trial court granted the prosecutor’s request under

section 1054.7 for an in camera hearing out of the presence of defendant and his

attorney to consider postponement or limitation of discovery. At the hearing, the

prosecutor told the court that in September 1991, during an interview with a

prosecution investigator, Brian Johnsen had said that defendant had killed

Holloway to prevent her from revealing a plan to kill a man named Doug Mynatt,

who was believed to have ties to the Hell’s Angels and whose whereabouts was

unknown. The prosecutor expressed concern that disclosure of this information to

the defense through the discovery process could endanger Mynatt’s life or cause

Mynatt to become a threat to the lives of Johnsen and Anna Humiston, who was

not then in custody. The prosecutor also stated his intention to secure Johnsen’s

testimony by conditional examination. The trial court granted the prosecutor a

39



one-week extension of the deadline for disclosure of the information obtained

during the September interview of Johnsen.

At a hearing on November 8, 1991, the prosecutor gave the defense an

investigator’s report of the September interview of Brian Johnsen, and the

prosecutor submitted a written motion for a conditional examination of Johnsen on

the ground that his life was in jeopardy (§ 1336, subd. (b)). Defendant’s attorney

asked for more time to study the report and the motion, but the trial court granted

the motion for conditional examination. The court observed, however, that under

section 1341, if the magistrate was convinced, on the date set for the conditional

examination, that Johnsen’s life was not in jeopardy, then the conditional

examination would not take place.

The conditional examination of Brian Johnsen, which was recorded on

videotape, began on November 15, continued on November 18, and concluded on

November 19, 1991. Thereafter, on July 6, 1992, the prosecutor announced that

he was seeking the death penalty against defendant, in part because of the

evidence disclosed at the conditional examination. On September 10, 1993, the

defense filed a motion to exclude the conditional examination at trial, primarily on

the ground that conditional examinations are not permitted in capital cases. After

receiving opposition to the motion from the prosecution, and holding a hearing,

the trial court denied the motion on October 29, 1993.

Defendant petitioned the Court of Appeal for a writ of mandate barring use

of the conditional examination at trial. The Court of Appeal denied the petition in

an unpublished opinion on December 2, 1993. This court granted defendant’s

petition for review of the Court of Appeal’s decision and transferred the matter

back to the Court of Appeal to reconsider in light of People v. Municipal Court

(Ahnemann) (1974) 12 Cal.3d 658 (stating that mandate is unavailable to resolve

40



an issue as to the admissibility of evidence). After reconsideration, the Court of

Appeal again denied the mandate petition, this time citing Ahnemann.

On March 22, 1994, defendant filed a motion asking the trial court to

reconsider his motion to exclude the conditional examination on the ground that

the controlling law had been clarified by the Court of Appeal’s decision in Dalton

v. Superior Court (1993) 19 Cal.App.4th 1506 (holding that in a capital case the

prosecution could not conditionally examine a witness whose life was in

jeopardy). The trial court agreed to reconsider its ruling, but after reconsideration

it again denied the motion to exclude the conditional examination.

Defendant sought appellate review of this ruling by again petitioning the

Court of Appeal for a writ of mandate. The Court of Appeal summarily denied the

petition, and this court denied defendant’s petition for review.

At trial, the parties stipulated to Brian Johnsen’s unavailability as a witness.

Over defendant’s continuing objection, the videotape of the conditional

examination was played for the jury. In his conditional examination testimony,

Johnsen described how he and Teresa Holloway had become acquainted with

defendant, Denise Shigemura, Anna Humiston, and Doug Mynatt, and how their

relationships had developed. His testimony provided the only evidence of the

telephone conversations in which the plan to kill Mynatt was discussed and

concern was expressed that Holloway not be told about the plan for fear she would

disclose it. His testimony also described a telephone conversation after

Holloway’s murder in which Johnsen asked defendant why he had killed

Holloway and defendant had replied that it had to be done.

2. Conditional examinations in capital cases

Defendant contends that conditional examinations are not permitted in

capital cases. He relies on section 1335, subdivision (a), which provides: “When

41



a defendant has been charged with a public offense triable in any court, he or she

in all cases, and the people in cases other than those for which the punishment

may be death, may, if the defendant has been fully informed of his or her right to

counsel as provided by law, have witnesses examined conditionally in his or her or

their behalf, as prescribed in this chapter.” (Italics added.) Defendant argues that

this provision bars the prosecution from conditionally examining any of its

witnesses in a capital case. In ruling the conditional examination admissible,

however, the trial court relied on subdivision (b) of the same section, which at the

time of defendant’s trial provided: “When a defendant has been charged with a

serious felony, the people may, if the defendant has been fully informed of his or

her right to counsel as provided by law, have a witness examined conditionally as

prescribed in this chapter if the people have evidence that the life of the witness is

in jeopardy.” (§ 1335, former subd. (b), as amended by Stats. 1985, ch. 783, § 2,

p. 2525.)5

On first reading, subdivision (a) and former subdivision (b) of section 1335

appear inconsistent. Subdivision (a) appears to generally prohibit the prosecution

from conditionally examining witnesses in cases “for which the punishment may

be death,” whereas former subdivision (b) appears to allow the prosecution to

conditionally examine a witness whose life is in jeopardy in any case in which the

defendant is charged with a serious felony.


5

The Legislature has since amended this subdivision to also allow a

defendant to take a conditional examination of a witness whose life is in danger.
(Stats. 2005, ch. 305, § 1.) It now reads: “When a defendant has been charged
with a serious felony, the people or the defendant may, if the defendant has been
fully informed of his or her right to counsel as provided by law, have witnesses
examined conditionally as prescribed in this chapter, if there is evidence that the
life of the witness is in jeopardy.” (§ 1335, subd. (b).)

42



To resolve this apparent inconsistency, we view the provisions in their

statutory context as part of an overall statutory scheme for conditional

examinations in criminal cases, seeking to harmonize the provisions in light of the

apparent legislative purpose. (Robert L. v. Superior Court (2003) 30 Cal.4th 894,

901; People v. Acosta (2002) 29 Cal.4th 105, 112; People v. Murphy (2001) 25

Cal.4th 136, 142.)

The statutory scheme for conditional examinations includes section 1336.

At the time of defendant’s trial, subdivision (a) of that section provided: “When a

material witness for the defendant, or for the people, is about to leave the state, or

is so sick or infirm as to afford reasonable grounds for apprehension that he or she

will be unable to attend the trial, the defendant or the people may apply for an

order that the witness be examined conditionally.” (Stats. 1985, ch. 783, § 3, p.

2525.) Subdivision (b) of section 1336 provided: “When the people have

evidence that the life of a prosecution witness is in jeopardy, the people may apply

for an order that the witness be examined conditionally.” (Stats. 1985, ch. 783,

§ 3, p. 2525.)6

Reading sections 1335 and 1336 together, it appears that the Legislature

may have intended to prohibit the prosecution in a capital case from taking a


6

Since defendant’s trial, the Legislature has amended section 1336 to

include witnesses 65 years of age or older and dependent adults, and to authorize
the defendant, as well as the prosecution, to take a conditional examination under
subdivision (b). (Stats. 2005, ch. 305, § 2.) Those subdivisions now read: “(a)
When a material witness for the defendant, or for the people, is about to leave the
state, or is so sick or infirm as to afford reasonable grounds for apprehension that
he or she will be unable to attend the trial, or is a person 65 years of age or older,
or a dependent adult, the defendant or the people may apply for an order that the
witness be examined conditionally. [¶] (b) When there is evidence that the life of
a witness is in jeopardy, the defendant or the people may apply for an order that
the witness be examined conditionally.” (§ 1336, subds. (a)-(b).)

43



conditional examination of a witness for any of the reasons stated in subdivision

(a) of section 1336—illness, dependency, age, or impending departure from the

state—but to permit the prosecution in a capital case to conditionally examine a

witness whose life is in jeopardy. This reading would resolve the apparent

inconsistency between subdivision (a) and former subdivision (b) of section 1335

and harmonize those provisions with section 1336.

Arguing against this construction, defendant relies on Dalton v. Superior

Court, supra, 19 Cal.App.4th 1506. The Court of Appeal there expressed the view

that allowing the prosecution to conditionally examine a witnesses in a death

penalty case only when the witness’s life was in jeopardy “would create a

distinction in the use of preserved testimony which seemingly would have no

justification” in that “the testimony of a witness who is to die before the death

penalty trial because of natural causes could not be preserved, while that same

witness’s testimony could be preserved if the threat of nonattendance at trial were

based upon possible kidnap or murder.” (Dalton, supra, at p. 1512.) We do not

view this distinction as irrational, however. When a prosecution witness may die

before trial from natural causes, the prosecution risks the loss of important

evidence. This same interest is at stake when the witness’s life is in jeopardy from

criminal violence, but there is in addition the strong public interest in deterring

criminal conduct in the form of an actual or attempted murder of the witness.

Recognizing the presence of this additional interest, the Legislature could

reasonably decide to authorize prosecutorial conditional examinations in capital

cases when the witness’s life is in jeopardy from criminal violence, to remove the

incentive a capitally charged defendant or his or her allies might otherwise have to

murder prosecution witnesses to prevent them from testifying.

This construction is also consistent with the history of conditional

examinations in criminal cases in California. As enacted in 1879, the California

44



Constitution granted the Legislature power to authorize prosecutorial conditional

examinations “in criminal cases, other than cases of homicide.” (Cal. Const.,

former art. 1, § 13, repealed Nov. 5, 1974.) In 1905, the Legislature exercised this

constitutionally granted authority by providing, in section 1335, for conditional

examinations of prosecution witnesses in cases “other than homicide.” (Stats.

1905, ch. 540, § 1, p. 702.) In 1951, section 1335 was amended to permit

conditional examinations of prosecution witnesses in cases other than “those for

which the punishment may be death.” (Stats. 1951, ch. 96, § 1, p. 354.) In 1974,

the state Constitution was amended to remove the prohibition on conditional

examinations in capital cases. The relevant provision now reads: “The

Legislature may provide for the deposition of a witness in the presence of the

defendant and the defendant’s counsel.” (Cal. Const., art. 1, § 15, cl. 4.) In 1985,

the Legislature amended section 1335 to permit the prosecution to take a

conditional examination when the defendant has been charged with a serious

felony and there is evidence the witness’s life is in jeopardy. (Stats. 1985, ch. 783,

§ 2, p. 2525.) We infer that, after the 1974 constitutional amendment removed the

blanket prohibition on conditional examinations by the prosecution in capital

cases, the Legislature used its new authority in 1985 to authorize the prosecution

to take conditional examinations in capital cases in the limited situation where the

witness’s life is threatened.

The 1985 amendment of sections 1335 and 1336 was included in Assembly

Bill No. 2059 (1985-1986 Reg. Sess.), which also added section 1350 to the

Evidence Code. That provision establishes an exception to the hearsay rule for a

statement by an unavailable declarant when, among other things, “[t]here is clear

and convincing evidence that the declarant’s unavailability was knowingly caused

by, aided by, or solicited by the party against whom the statement is offered for

the purpose of preventing the arrest or prosecution of the party and is the result of

45



the death by homicide or the kidnapping of the declarant.” (Evid. Code, § 1350,

subd. (a)(1).) Like the “life in jeopardy” provision for conditional examinations

(§ 1335, subd. (b)), the hearsay exception of Evidence Code section 1350 applies

in criminal proceedings in which a serious felony is charged (id., subd. (a)), and

“serious felony” is defined to include felonies listed in subdivision (c) of section

1192.7. (Compare Evid. Code, § 1350, subd. (d), with Pen. Code, § 1335, subd.

(c).) Those listed felonies include “any felony punishable by death . . . .”

(§ 1192.7, subd. (c)(7).) Because they were packaged together, it is reasonable to

infer that the adoption of the hearsay exception in Evidence Code section 1350

and the amendment of the conditional examination provisions of Penal Code

sections 1335 and 1336 address a common problem and result from a common

Legislative concern—criminal violence against prospective prosecution witnesses

to prevent their testimony. The risk that this will occur likely increases in

proportion to the potential punishment for the charged offense, and thus it is

greatest in capital cases. Absent language expressly barring application of these

provisions to capital cases, therefore, it is reasonable to infer that the Legislature

intended to permit the prosecution to conditionally examine witnesses in capital

cases when there is evidence that their lives are in serious danger.

We conclude, therefore, that under subdivision (b) of section 1335,

conditional examination of a prosecution witness is permitted in a capital case

when the witness’s life is in jeopardy.7


7

Dalton v. Superior Court, supra, 19 Cal.App.4th 1506, is disapproved.

46



3. Required showing for conditional examination

Defendant argues, next, that the prosecution should not have been allowed

to conditionally examine Brian Johnsen because there was no evidence that his life

was in jeopardy.

Section 1335, subdivision (b), permits the prosecution to conditionally

examine a witness “if there is evidence that the life of the witness is in jeopardy.”

(Italics added.) Section 1336, subdivision (b), similarly requires the prosecution

to produce evidence to support a claim that a witness’s life is jeopardy. Section

1337 provides that an application for conditional examination “shall be made upon

affidavit stating” among other things “that the life of the witness is in jeopardy.”

Section 1338 requires that the application be made on “three days’ notice to the

opposite party,” and section 1339 provides that “[i]f the court or judge is satisfied

that the examination of the witness is necessary, an order must be made that the

witness be examined conditionally, at a specified time and place, and before a

magistrate designated therein.”

Here, the prosecution’s application to conditionally examine Brian Johnsen

was supported by evidence in the form of a declaration of Deputy District

Attorney Pettine stating, in relevant part: “I am informed that witness Brian

Johnsen was directly involved with defendants Shigemura and Jurado in a plot to

kill Doug Mynatt. According to Mr. Johnsen, the defendants, acting on their own

and without the knowledge of Mr. Johnsen, killed victim Teresa Holloway so that

she would not disclose the plan to murder Mr. Mynatt. Mr. Mynatt’s current

whereabouts is unknown. Mr. Johnsen, who was in custody on the date of the

Holloway murder, is currently out of custody. [¶] Declarant believes that once

this information becomes known, witness Brian Johnsen’s life will be jeopardized

by Mr. Mynatt, the defendants, and/or their associates.”

47



The trial court granted the application without allowing the defense the

three days’ notice specified in section 1338, but the court said that under section

1341 the conditional examination would not take place if, on the day set for the

conditional examination, the defense was able to show to the magistrate’s

satisfaction that Johnsen’s life was not in danger.8 The conditional examination

began a week later. Before it began, defendant offered no evidence that Johnsen’s

life was not in danger.

The prosecution satisfied the requirements of sections 1335, 1336, and

1337 by submitting a declaration stating that Johnsen’s life was in danger from

Doug Mynatt, defendant and his codefendants, and their associates. In granting

the prosecutor’s application for a conditional examination, the trial court did not

abuse the broad discretion with which the statutory scheme vested it. In particular,

it was not necessary, under the circumstances of this case, for the prosecution to

present evidence that anyone had expressly threatened Johnsen or conspired to

harm him. Because of the evidence that defendant, Shigemura, and Humiston had

killed Holloway to prevent her from exposing a plot to kill Mynatt, the trial

court—who both granted the application for conditional examination and served

as magistrate in the taking of the examination—could justifiably conclude that

defendant and the persons with whom he associated would be likely to use deadly

force against anyone perceived as a threat, and that the substance of Johnsen’s


8

In full, at the time of defendant’s trial, section 1341 read: “If, at the time

and place so designated, it is shown to the satisfaction of the magistrate that the
witness is not about to leave the state, or is not sick or infirm, or that the life of the
witness is not in jeopardy, or that the application was made to avoid the
examination of the witness on the trial, the examination cannot take place.” (Stats.
1985, ch. 783, § 5, p. 2525.) Since defendant’s trial, section 1341 has been
amended to include witnesses 65 years of age or older and dependent adults.
(Stats. 2005, ch. 305, § 4.)

48



proposed testimony made him an actual or potential threat to defendant and his

codefendants, and also to Mynatt.

Although defendant did not receive the three days’ notice to which section

1338 entitled him, he was not prejudiced by the shortened notice because seven

days elapsed before the conditional examination began during which, under

section 1341, defendant could have presented evidence to contradict the

prosecutor’s declaration that Brian Johnsen’s life was in danger. We conclude that

defendant has failed to show that any prejudicial error occurred in the taking of

Brian Johnsen’s conditional examination.

4. Admission of conditional examination at trial

The prosecutor argued below, and the Attorney General argues in this

court, that even if the prosecution is prohibited from taking conditional

examinations in capital cases, that prohibition did not apply here because the

prosecutor had not yet decided to seek the death penalty, and indeed had

announced the death penalty would not be sought, when the trial court granted the

prosecution’s application for a conditional examination and when Brian Johnsen

was conditionally examined. In response to this argument, defendant argues that

even if it was proper to conditionally examine Johnsen because the prosecutor was

not then seeking the death penalty, it was error to admit Johnsen’s conditional

examination in evidence at defendant’s capital trial. Because we have concluded

that the prosecution in a capital case may conditionally examine a witness whose

life is in jeopardy, we need not address this issue.

Defendant also argues that admission of Brian Johnsen’s conditional

examination in evidence at trial denied him his rights under the federal

Constitution to due process, confrontation of adverse witnesses, and reliable guilt

and penalty determinations in a capital case. But Johnsen testified under oath at

49



the conditional examination, and defendant had a full and fair opportunity to

cross-examine him at that time. For purposes of due process, confrontation, and

reliability, the situation is no different than if Johnsen or any other witness had

testified at the preliminary hearing or at an earlier trial and then, because he had

become unavailable, his prior testimony was admitted at trial. When a defendant

has had an adequate opportunity for cross-examination and the witness is

unavailable at trial, use of prior testimony does not violate the defendant’s rights

under the federal Constitution. (People v. Wilson (2005) 36 Cal.4th 309, 343; see

Crawford v. Washington (2004) 541 U.S. 36, 55-57.)

Defendant asserts that he did not have an adequate opportunity to cross-

examine Brian Johnsen at the conditional examination because his attorneys later

acquired additional information that would have been useful in cross-examining

Johnsen. In particular, he calls our attention to the statements that Johnsen later

made, after he had been charged with capital murder,9 admitting that he was aware

of and agreed with defendant’s plan to kill Holloway. Again, however, the

situation is no different than if Johnsen had testified at defendant’s preliminary

hearing or at a prior trial of defendant on the same charges. Absent wrongful

failure to timely disclose by the prosecution, a defendant’s subsequent discovery

of material that might have proved useful in cross-examination is not grounds for

excluding otherwise admissible prior testimony at trial. (See People v. Samayoa

(1997) 15 Cal.4th 795, 851 [admission of prior testimony does not violate the right

of confrontation “regardless whether subsequent circumstances bring into question

the accuracy or the completeness of the earlier testimony.”].)


9

Brian D. Johnsen was sentenced to death on June 9, 1994, for crimes

committed in Stanislaus County.

50



B. Shigemura’s Out-of-court Statement

Defendant contends that the trial court erred in overruling defense hearsay

objections to the testimony of Steven Baldwin relating out-of-court statements by

Denise Shigemura. Baldwin testified that on the day after Holloway’s murder,

defendant and Shigemura came to his house with Mark Schmidt. As the four of

them sat together in the living room, Shigemura said to Baldwin: “I no longer

need what it was I asked you for. We took care of the problem and we dumped

the body at Balboa Park.” Baldwin testified that he thought Shigemura was

referring to a conversation a few days earlier during which she had asked him if he

could get her a “gat” because she had a problem she needed to take care of. The

trial court admitted this evidence under the adoptive admissions exception to the

hearsay rule.

“Evidence of a statement offered against a party is not made inadmissible

by the hearsay rule if the statement is one of which the party, with knowledge of

the content thereof, has by words or other conduct manifested his adoption or his

belief in its truth.” (Evid. Code, § 1221.) When a defendant remains silent after a

statement alleging the defendant’s participation in a crime, under circumstances

that fairly afford the defendant an opportunity to hear, understand, and reply, the

statement is admissible as an adoptive admission, unless the circumstances support

an inference that the defendant was relying on the right of silence guaranteed by

the Fifth Amendment to the United States Constitution. (People v. Riel (2000) 22

Cal.4th 1153, 1189; People v. Mayfield (1997) 14 Cal.4th 668, 741.)

Denise Shigemura’s out-of-court statement—“We took care of the problem

and we dumped the body at Balboa Park”—was admissible as an adoptive

admission by defendant. He must have heard and understood the statement

because he was sitting on the same couch with Shigemura, the circumstances

called for a denial or protest if the statement was inaccurate, nothing prevented

51



him from making a response, and nothing supports an inference that he was

relying on a constitutional right of silence. In this situation, the jury could

properly view defendant’s silence as adopting Shigemura’s statement.

Defendant claims that admission of this evidence violated his right of

confrontation under the Sixth Amendment to the federal Constitution. He did not,

however, make a specific objection on constitutional grounds at trial. Assuming

without deciding that the issue is preserved for appellate review (see People v.

Champion (1995) 9 Cal.4th 879, 908, fn. 6; see also People v. Partida (2005) 37

Cal.4th 428), the claim is without merit. The right of confrontation is not violated

when the jury hears evidence, from a witness subject to cross-examination,

relating a defendant’s own out-of-court statements and adoptive admissions.

(People v. Roldan (2005) 35 Cal.4th 646, 711, fn. 25; People v. Combs (2004) 34

Cal.4th 821, 842-843.)

As defendant points out, he was not present a few days before when

Shigemura asked Baldwin for a “gat” and said she needed it to take care of a

problem, so this earlier statement was not admissible as an adoptive admission.

The request for the gun, by itself, was not hearsay, however, because an out-of-

court statement is hearsay only when it is “offered to prove the truth of the matter

stated.” (Evid. Code, § 1200.) Because a request, by itself, does not assert the

truth of any fact, it cannot be offered to prove the truth of the matter stated. (See

People v. Mayfield, supra, 14 Cal.4th at p. 741 [pleas for help “were not hearsay

because they were not admitted for the truth of the matter stated”]; People v.

Bolden (1996) 44 Cal.App.4th 707, 714-715 [request that defendant “not come

around the house anymore” was not hearsay because it was not offered for the

truth of matter stated]; People v. Reyes (1976) 62 Cal.App.3d 53, 67 [“words of

direction or authorization do not constitute hearsay since they are not offered to

52



prove the truth of any matter asserted by such words”].) Thus, Shigemura’s

request for a gun was not hearsay.

Shigemura’s earlier out-of-court statement to Baldwin was hearsay insofar

as it asserted that Shigemura had a problem that she needed to take care of. The

Attorney General argues that it was admissible under the coconspirator exception

to the hearsay rule (Evid. Code, § 1223) because it was made to further a

conspiracy between defendant, Shigemura, and Brian Johnsen to kill Doug

Mynatt. There was no substantial evidence at trial, however, that these three

individuals reached any agreement to kill Doug Mynatt until the evening of May

15, 1991, shortly before Holloway’s murder, whereas Shigemura’s statement to

Baldwin occurred a day or two earlier. Accordingly, this statement was not

admissible under the coconspirator exception to the hearsay rule, and the trial

court erred in not excluding it.

Even if we assume this error violated defendant’s right of confrontation

under the federal Constitution, reversal is not required because defendant suffered

no prejudice. Shigemura repeated the substance of the earlier hearsay statement

(that she had a problem she needed to take care of) in defendant’s presence (“We

took care of the problem and we dumped the body at Balboa Park”) and defendant

by his conduct adopted that statement as his own. We conclude the error was

harmless beyond a reasonable doubt.

C. Sufficiency of the Evidence

Defendant contends that the evidence presented at the guilt phase was

insufficient to establish the premeditation element of first degree murder, the

lying-in-wait special circumstance, and the conspiracy conviction, and he asserts

that basing a conviction or special circumstance finding on insufficient evidence

violates his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to

53



the federal Constitution to due process of law, a fair trial, and reliable verdicts in a

capital case.

“To determine the sufficiency of the evidence to support a conviction, an

appellate court reviews the entire record in the light most favorable to the

prosecution to determine whether it contains evidence that is reasonable, credible,

and of solid value, from which a rational trier of fact could find the defendant

guilty beyond a reasonable doubt.” (People v. Kipp (2001) 26 Cal.4th 1100, 1128;

accord, People v. Silva, supra, 25 Cal.4th at p. 368.)

A murder that is premeditated and deliberate is murder of the first degree.

(§ 189.) “In this context, ‘premeditated’ means ‘considered beforehand,’ and

‘deliberate’ means ‘formed or arrived at or determined upon as a result of careful

thought and weighing of considerations for and against the proposed course of

action.’ ” (People v. Mayfield, supra, 14 Cal.4th at p. 767.) “An intentional

killing is premeditated and deliberate if it occurred as the result of preexisting

thought and reflection rather than unconsidered or rash impulse.” (People v.

Stitely, supra, 35 Cal.4th at p. 543.) A reviewing court normally considers three

kinds of evidence to determine whether a finding of premeditation and

deliberation is adequately supported—preexisting motive, planning activity, and

manner of killing—but “[t]hese factors need not be present in any particular

combination to find substantial evidence of premeditation and deliberation.”

(Ibid.; see also People v. Combs, supra, 34 Cal.4th at p. 850; People v. Silva,

supra, 25 Cal.4th at p. 368.)

The evidence of preexisting motive was ample. During the days before

Holloway’s murder, defendant had talked to Brian Johnsen and Denise Shigemura

about whether they should kill Doug Mynatt, but they had decided not to tell

Teresa Holloway about this because of concern that she would reveal it to the

police. On the night of the murder, defendant told Johnsen that he had decided to

54



proceed with the plan to kill Mynatt and that it could not wait until Johnsen was

released from jail. Teresa Holloway then got on the phone and asked Johnsen

whether there was a plan to kill Mynatt. From this evidence, a rational juror could

infer that defendant had a motive to kill Holloway, to prevent her from revealing

his planned killing of Mynatt.

The evidence of planning activity was ample as well. Shortly before the

murder, defendant asked Mark Schmidt for a chain. When Schmidt offered

defendant an 18-inch length of plastic weed-eater cord, defendant wrapped the

cord around his own neck, with one end in each fist clenched at shoulder height,

and said: “It will do.” From these actions, a rational juror could infer that

defendant had already decided to use the cord to strangle Holloway. Defendant

then asked Schmidt to tell Teresa Holloway to get off the phone because he

(Schmidt) needed to leave the apartment. A rational juror could infer that

defendant made this request so that Holloway would be forced to leave Schmidt’s

apartment and then could be lured into Anna Humiston’s car, where the fatal

attack would take place. In the car, defendant positioned himself directly behind

Holloway. A rational juror could infer that defendant did so to facilitate his

planned strangulation of Holloway.

Because this evidence of preexisting motive and planning activity was by

itself sufficient to support the first degree murder conviction on a theory of

premeditation and deliberation, we need not review the evidence concerning the

manner of killing.

The lying-in-wait special circumstance requires proof of “an intentional

murder, committed under circumstances which include (1) a concealment of

purpose, (2) a substantial period of watching and waiting for an opportune time to

act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim

from a position of advantage.” (People v. Morales (1989) 48 Cal.3d 527, 557;

55



accord, People v. Combs, supra, 34 Cal.4th at p. 853; People v. Michaels, supra,

28 Cal.4th at p. 516.)

There is sufficient evidence that defendant concealed from Holloway his

purpose to kill her. As explained earlier, there is substantial evidence from which

a rational juror could infer that defendant had already formed this purpose when

he obtained a cord from Mark Schmidt that could be used to strangle Holloway.

He did not reveal that purpose to Holloway immediately by attacking her, but

instead lured her into Humiston’s car.

There is sufficient evidence of a substantial period of watching and waiting

for an opportune time to act. The place where Teresa Holloway’s body was found

was two to three miles from Mark Schmidt’s apartment. A rational juror could

infer that defendant did not attack Holloway immediately after luring her into

Humiston’s car, but instead waited for a substantial period while the car was

driven to a location where there was little risk that the attack would be observed

by other motorists or by pedestrians.

Finally, there is substantial evidence that once the car reached a suitable

location, defendant immediately launched a surprise attack on an unsuspecting

victim from a position of advantage. Defendant ensured a position of advantage

by occupying the back seat of Humiston’s car, directly behind Teresa Holloway.

From the blood evidence found in the car, the very nature of the planned attack,

and the lack of injury to defendant, Humiston, or Shigemura, a rational juror could

infer that Holloway was taken by surprise, with little or no opportunity to escape

or fight back.

In concluding that the evidence is sufficient to support the lying-in-wait

special circumstance, we are guided by this court’s decisions in People v. Combs,

supra, 34 Cal.4th 821, and People v. Morales, supra, 48 Cal.3d 527, which

involved nearly identical facts. In Combs and Morales, as here, the defendant

56



armed himself with a weapon suitable for use in strangulation, lured an

unsuspecting victim into the front seat of an automobile, positioned himself

directly behind the victim, waited until the car reached a suitable location, and

then launched a surprise attack on the unsuspecting victim. (People v. Combs,

supra, at p. 853; People v. Morales, supra, at p. 554.) In Morales, as here, the

defendant bludgeoned the victim to death after an initial attempt at strangulation

was unsuccessful. (People v. Morales, supra, at p. 554.)

We consider next defendant’s challenge to the sufficiency of the evidence

to support the conspiracy conviction.

“A conviction of conspiracy requires proof that the defendant and another

person had the specific intent to agree or conspire to commit an offense, as well as

the specific intent to commit the elements of that offense, together with proof of

the commission of an overt act ‘by one or more of the parties to such agreement’

in furtherance of the conspiracy.” (People v. Morante (1999) 20 Cal.4th 403, 416;

accord, People v. Russo (2001) 25 Cal.4th 1124, 1131.) “Disagreement as to who

the coconspirators were or who did an overt act, or exactly what that act was, does

not invalidate a conspiracy conviction, as long as a unanimous jury is convinced

beyond a reasonable doubt that a conspirator did commit some overt act in

furtherance of the conspiracy.” (People v. Russo, supra, at p. 1135.)

Here, defendant’s plan to attack and kill Teresa Holloway in Anna

Humiston’s car required the cooperation of Humiston and Denise Shigemura.

There is ample evidence that one or both of them did agree or conspire to commit

the murder. Shigemura shared defendant’s motive to kill Holloway, because she

also had been part of the plot to kill Doug Mynatt and, like defendant, would be

put at risk if Holloway revealed that plot. Although there is no direct evidence

that defendant and Shigemura discussed in advance the killing of Holloway, there

was evidence that they were alone together at Mark Schmidt’s residence shortly

57



before the killing, during which a discussion and agreement could have taken

place. Shigemura’s later conduct provided additional evidence that she agreed to

the murder. She was driving Humiston’s car at the time of the fatal attack, she did

not separate herself from defendant or report the killing afterward, and with

defendant’s help she concocted a false story to explain why, on the night of

Holloway’s murder, she failed to return to the halfway house where she was then

required to live. As for Humiston, there was evidence that defendant engaged in

an intense conversation with her at Schmidt’s residence, that she allowed

Shigemura to drive her car, and that she did not report the murder afterward and

continued to associate with defendant. From this evidence, a rational juror could

conclude beyond a reasonable doubt that defendant and either Shigemura or

Humiston (or both) had the specific intent to agree or conspire to murder

Holloway, as well as the specific intent to commit the elements of murder.

The overt act requirement was also satisfied. The prosecution alleged five

overt acts in support of the conspiracy charge. Two alleged overt acts occurred

before Holloway’s murder (defendant, Denise Shigemura, and Anna Humiston

met with Teresa Holloway at Mark Schmidt’s residence and defendant,

Shigemura, Humiston, and Holloway left Schmidt’s residence in Humiston’s car);

two alleged acts occurred after the murder (defendant, Shigemura, and Humiston

placed Holloway’s body in the culvert and walked to a nearby phone from which

defendant called to request a ride); and one alleged act was the murder itself. The

jury returned “not true” findings on the preoffense overt acts allegations, but it

found each of the other overt act allegations to be true.

Commission of the target offense in furtherance of the conspiracy satisfies

the overt act requirement. (People v. Padilla (1995) 11 Cal.4th 891, 966.)

Because the jury found that defendant committed the murder itself in furtherance

of the conspiracy, and because substantial evidence supports that finding, the overt

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act requirement is satisfied. Although defendant is correct that the overt act

requirement may not be satisfied by conduct occurring after the target offense is

complete (People v. Zamora (1976) 18 Cal.3d 538, 560), defendant was not

prejudiced by the jury’s consideration of the invalid postoffense overt act

allegations, and the valid finding of a single overt act is sufficient to support the

conspiracy verdict. (People v. Padilla, supra, at pp. 965-966.)

Defendant argues that the jury’s “not true” findings on the preoffense overt

act allegations conclusively demonstrate the jury’s rejection of the prosecution’s

theory that defendant had agreed with Shigemura or Humiston (or both) to kill

Holloway before Holloway was lured into Humiston’s car, and that this

inconsistency fatally undermines the conspiracy verdict. We disagree. An

inconsistency between a “not true” finding on an overt act and a verdict or another

finding is not a ground for overturning the inconsistent verdict or finding. (People

v. Hernandez (2003) 30 Cal.4th 835, 862; see People v. Santamaria (1994) 8

Cal.4th 903, 911 [recognizing that an apparently inconsistent not true finding may

be the result of mistake, compromise, or lenity].)

D. Instructions on Conspiracy

Defendant contends that the trial court’s instructions to the jury defining the

charged offense of conspiracy omitted part of the specific intent element of that

crime and that, during jury deliberations, the trial court erred in failing to dispel

the jurors’ confusion about the overt act element of conspiracy. He further

contends that these errors denied him his rights under the federal Constitution to

due process, to proof of each element beyond a reasonable doubt, to a fair and

impartial jury trial, and to reliable factfinding in a capital case.

The trial court instructed the jury with two modified versions—one spoken,

one written—of CALJIC No. 6.10 defining the crime of conspiracy. As here

59



relevant, the spoken version stated: “A conspiracy is an agreement entered into

between two or more persons with the specific intent to commit a crime, in this

case alleged to be the crime of murder, the murder of Teresa Holloway, followed

by an overt act committed by one or more of the parties for the purpose of

accomplishing the object of the agreement.” (Italics added.) As here relevant, the

written version stated: “A conspiracy is an agreement entered into between two or

more persons with the specific intent to agree to commit the public offense of

murder, followed by an overt act committed in this state by one or more of the

parties for the purpose of accomplishing the object of the agreement.” (Italics

added.) The written version was given to the jury for its use during deliberations.

As this court has explained, the crime of conspiracy requires dual specific

intents: a specific intent to agree to commit the target offense, and a specific

intent to commit that offense. (People v. Russo, supra, 25 Cal.4th at p. 1131;

People v. Swain (1996) 12 Cal.4th 593, 600.) We have cautioned trial courts not

to modify CALJIC No. 6.10 to eliminate either of these specific intents. (People

v. Marks (1988) 45 Cal.3d 1335, 1345.)

Here, neither of the modified versions of the standard instruction expressly

mentioned both of the required specific intents. The written instruction mentioned

only the specific intent to agree, while the spoken instruction mentioned only the

specific intent to commit the target offense of murder. As defendant points out,

when the jury has received an instruction in both spoken and written forms, and

the two versions vary, we assume the jury was guided by the written version.

(People v. Davis (1995) 10 Cal.4th 463, 542; People v. Crittenden (1994) 9

Cal.4th 83, 138; People v. McLain (1988) 46 Cal.3d 97, 111, fn. 2.)

Although the trial court erred in modifying CALJIC No. 6.10 to delete

mention of the required specific intent to commit the target offense of murder,

defendant suffered no prejudice. For a conspiracy to commit murder, intent to

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commit the target offense means an intent to kill. (People v. Swain, supra, 12

Cal.4th at p. 607.) As defendant concedes, the jury’s verdict that defendant was

guilty of the first degree murder of Teresa Holloway necessarily included a

finding that defendant himself had that intent. He argues, however, that the jury

made no similar finding for either Denise Shigemura or Anna Humiston, the other

alleged conspirators. But defendant does not identify any evidence in the record

that could lead a rational juror to conclude that Shigemura and Humiston agreed to

kill Holloway, with the specific intent to agree to do so, but without a specific

intent to actually kill her. Because we find in the record no evidence that could

rationally lead to such a finding, we are satisfied that the instructional error was

harmless beyond a reasonable doubt. (Neder v. United States (1999) 527 U.S. 1,

9; People v. Davis (2005) 36 Cal.4th 510, 564.)

During guilt phase deliberations, the jury sent a note to the trial judge. It

read: “Is the jury merely deciding whether the overt acts alleged actually

occurred, or are we also determining whether or not the acts do indeed meet the

requirements of being overt acts as defined in CALJIC 6.10[?]” The trial court

sent the jury this written response: “As [CALJIC No.] 6.10 states, in order to find

Mr. Jurado guilty of conspiracy, you must unanimously find to be true at least one

of the alleged Overt Acts, as that term is defined in 6.10.” (Italics added.)

Defendant maintains that this response did nothing to answer the jury’s

question, and that there is an unacceptable risk that the jury merely determined

whether the conduct charged as overt acts occurred, without also determining

whether any of the acts was committed in furtherance of the conspiracy. We

disagree. The trial court’s response expressly directed the jury’s attention to the

definition of an overt act in CALJIC No. 6.10, which stated that “ ‘overt act’

means any step taken or act committed by one or more of the conspirators . . . in

furtherance of the accomplishment of the object of the conspiracy.” (Italics

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added.) That the jury so understood the court’s response is conclusively shown by

the jury’s findings on the overt acts. The jury found “not true” the overt act

allegations that defendant, Denise Shigemura, and Anna Humiston met with

Teresa Holloway at Mark Schmidt’s residence and that they left Schmidt’s

residence with Holloway in Humiston’s car. Because undisputed evidence

established that both of these acts occurred, the jury’s “not true” finding can be

explained only by inferring that the jury was not satisfied beyond a reasonable

doubt that these acts were done in furtherance of the conspiracy.

E. Instruction on Motive

The trial court instructed the jury with this slightly modified version of

CALJIC No. 2.51: “Motive is not an element of either one of the crimes charged

and, therefore, need not be proved. However, you may consider motive or lack of

motive as a circumstance in the case. Presence of motive may tend to establish

that an accused is guilty. Absence of motive may tend to establish that he is not

guilty of a charged offense. You will therefore give the presence or absence of

motive, as you find the case to be, the weight to which you find it to be entitled.”

Defendant contends that this instruction improperly allowed the jury to

convict him of the charged offenses of capital murder and conspiracy based solely

on evidence of motive, and in so doing it violated his rights under the Fifth, Sixth,

Eighth, and Fourteenth Amendments to the federal Constitution to due process, a

fair trial, and a reliable verdict in a capital case. He points out that in contrast to

certain other instructions that the trial court read to the jury—relating to

consciousness of guilt based on falsehoods, efforts to suppress evidence, and flight

after a crime—each of which included an admonition that the specified

circumstance was insufficient by itself to prove guilt—the instruction on motive

included no admonition that motive alone was insufficient to prove guilt.

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Because it challenges merely the clarity of the instruction, and because

defendant did not ask the trial court to modify or clarify the instruction,

defendant’s contention is not preserved for appellate review. (People v. Cleveland

(2004) 32 Cal.4th 704, 750.) Had defendant preserved the contention, we would

reject it on the merits. What we wrote in People v. Cleveland applies with equal

force here: “The court fully instructed the jury on the reasonable doubt standard.

We find no reasonable likelihood the jury would infer from the motive instruction

that motive alone could establish guilt. Moreover, given the strong evidence of

guilt aside from motive, the jury certainly did not base its verdicts solely on

motive.” (Ibid.)

F. Instruction on Lesser Offense

Defendant contends the trial court erred when it instructed the jury, in the

language of CALJIC No. 8.75, that it would not accept a verdict that defendant

was guilty of second degree murder unless the jury also unanimously returned a

verdict that he was not guilty of first degree murder. Defendant maintains that this

“acquittal first” instruction violated his federal constitutional rights to due process

and to a fair and reliable jury consideration of lesser included offenses in a capital

case.

As defendant concedes, this court has repeatedly rejected the same

contention. (E.g., People v. Nakahara (2003) 30 Cal.4th 705, 715.) As we stated

in Nakahara, “[w]e see no reason for reconsidering these decisions.” (Ibid.)

G. Instructions on Consciousness of Guilt

Defendant contends that the trial court’s instructions to the jury on

consciousness of guilt were impermissibly argumentative, permitted the jury to

draw irrational inferences, were potentially misleading, and were unsupported by

the evidence.

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The trial court instructed the jury that it could infer consciousness of guilt

from efforts to suppress evidence (CALJIC No. 2.06), from flight after a crime

(CALJIC No. 2.52), and from the telling of a falsehood (CALJIC No. 2.03). The

trial court declined defense requests to modify the instructions to state that they

were inapplicable to fix the degree of a crime.

We have repeatedly rejected contentions that these standard jury

instructions on consciousness of guilt were impermissibly argumentative or

permitted the jury to draw irrational inferences about a defendant’s mental state

during the commission of the charged offenses. (E.g., People v. Benavides (2005)

35 Cal.4th 69, 100; People v. Nakahara, supra, 30 Cal.4th at p. 713; People v.

Kipp (1998) 18 Cal.4th 349, 375.) We see no reason to reconsider these decisions.

Because the instructions as given correctly stated the law and did not invite the

jury to draw irrational inferences about defendant’s mental state, the trial court did

not abuse its discretion in declining the defense requests to modify them.

Whenever the prosecution relies on evidence of flight as tending to show a

defendant’s guilt, the trial court must instruct the jury substantially in this

language: “The flight of a person immediately after the commission of a crime, or

after he is accused of a crime that has been committed, is not sufficient in itself to

establish his guilt, but is a fact which, if proved, the jury may consider in deciding

his guilt or innocence. The weight to which such circumstance is entitled is a

matter for the jury to determine.” (§ 1127c.) In this context, flight “requires

neither the physical act of running nor the reaching of a faraway haven” but it does

require “a purpose to avoid being observed or arrested.” (People v. Crandell

(1988) 46 Cal.3d 833, 869; accord, People v. Bradford (1997) 14 Cal.4th 1005,

1055.) “Mere return to familiar environs from the scene of an alleged crime does

not warrant an inference of consciousness of guilt [citations], but the

circumstances of departure from the crime scene may sometimes do so.” (People

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v. Turner (1990) 50 Cal.3d 668, 695; accord, People v. Bradford, supra, at p.

1055.)

Here, the circumstances of defendant’s departure from the scene of Teresa

Holloway’s murder were sufficient to support an inference that his purpose was to

avoid being observed or arrested, and thus an inference of consciousness of guilt

for her death. Although there was a call box around 20 yards from the culvert in

which Holloway’s body had been placed, defendant did not use the call box to

summon aid after Anna Humiston’s car broke down. Instead, defendant,

Humiston, and Denise Shigemura walked a half-mile to a 7-Eleven Store, along

the way hiding in a tree the scissors jack that had been used to kill Holloway,

before calling a friend for assistance. Defendant’s failure to use the call box, and

the secreting of the murder weapon, support an inference that in leaving the crime

scene defendant acted with a purpose to avoid observation and arrest. The flight

instruction was properly given.

H. Instructions Affecting Burden of Proof

Defendant contends that certain of the trial court’s instructions to the jury

misled the jury regarding the reasonable doubt standard of proof and

impermissibly lightened the prosecution’s burden of proof. He maintains that

these instructions violated his federal constitutional rights to due process, a fair

trial, a unanimous jury verdict, and reliable guilt and penalty determinations.

We have previously rejected each of the claims that defendant makes, and

we decline to reconsider these decisions. Contrary to defendant’s arguments,

CALJIC Nos. 2.01, 2.02, 8.83, and 8.83.1, which direct the jury to accept

reasonable inferences and to reject unreasonable ones, do not permit the jury to

base a determination of guilt on something less than proof beyond a reasonable

doubt. (People v. Harris (2005) 37 Cal.4th 310, 351; see also People v. Crew

65



(2003) 31 Cal.4th 822, 847; People v. Nakahara, supra, 30 Cal.4th at pp. 713-

714.) CALJIC No. 1.00, which directs the jury not to “infer or assume” that

defendant “was more likely to be guilty than not guilty” merely because he had

been arrested, charged, or brought to trial, does not undercut the burden of proof.

(People v. Crew, supra, at pp. 847-848; People v. Nakahara, supra, at p. 714.)

CALJIC No. 2.21.2, the standard instruction on willfully false testimony, does not

lighten the prosecution’s burden of proof. (People v. Cleveland, supra, 32 Cal.4th

at p. 751; People v. Nakahara, supra, at p. 714; People v. Maury (2003) 30

Cal.4th 342, 428-429.) CALJIC No. 2.22, the standard instruction on weighing

conflicting testimony, does not undermine the standard of proof beyond a

reasonable doubt. (People v. Cleveland, supra, 32 Cal.4th at p. 751; People v.

Nakahara, supra, at p. 714; People v. Maury, supra, at p. 429.) Finally, CALJIC

No. 8.20, defining premeditation and deliberation, does not suggest that a

defendant must absolutely preclude the possibility of premeditation rather than

merely raising a reasonable doubt. (People v. Nakahara, supra, at p. 715.)

I. Cumulative Effect of Errors at Guilt Phase

Defendant argues that even if no single error requires reversal of the guilt

verdicts, the cumulative effect of the errors at the guilt phase must be deemed

sufficiently prejudicial to warrant reversal of the guilt verdicts. Defendant has

demonstrated few errors, and we have found each error or possible error to be

harmless when considered separately. Considering them together, we likewise

conclude that their cumulative effect does not warrant reversal of the guilt

verdicts.

J. Constitutional Validity of Lying-in-wait Special Circumstance

Defendant contends that the lying-in-wait special circumstance (§ 190.2,

subd. (a)(15)), as interpreted by this court, violates the Eighth Amendment to the

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federal Constitution by failing to appropriately narrow the class of persons eligible

for the death penalty. “We have repeatedly rejected this contention, and defendant

fails to convince us the matter warrants our reconsideration.” (People v.

Nakahara, supra, 30 Cal.4th at p. 721; see also People v. Vieira, supra, 35 Cal.4th

at p. 303; People v. Gutierrez (2002) 28 Cal.4th 1083, 1148-1149.)

IV. ISSUES RELATING TO PENALTY

A. Exclusion of Videotape of Interrogation

Defendant contends that the trial court erred in excluding a videotape of his

interrogation by police detectives on May 18, 1991, shortly after his arrest for the

murder of Terry Holloway. He further contends that this error violated his rights

under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal

Constitution.

As part of its case in mitigation, the defense proposed to have the jury

watch a videotape that was made, without defendant’s knowledge, while he was

being interrogated by police detectives about the murder of Terry Holloway.

During the interrogation, defendant at first denied any involvement in the murder,

but eventually he admitted killing Holloway, and he insisted that he had done it

entirely on his own and that neither Denise Shigemura nor Anna Humiston was

present. He said he killed Holloway because he was in danger and his family was

in danger. He expressed fear that Brian Johnsen had friends in prison who would

kill him or his mother or other family members in retaliation for killing Holloway.

He also expressed concern that he would be perceived in prison as a snitch and

killed for that reason, or that he would have to spend his entire life in prison.

During this part of the interrogation, defendant displayed considerable emotion,

sobbing and at one point grasping an interrogating officer’s hand. The defense

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argued that the evidence of defendant’s emotional responses was admissible to

show his remorse for the killing.

The prosecution objected that the videotape was inadmissible under the

hearsay rule (Evid. Code, § 1200), because defendant’s emotional displays were

assertive conduct, and also under Evidence Code section 352, because the

evidence’s probative value was substantially outweighed by the risk of undue

prejudice and jury confusion. After viewing the videotape, the trial court

sustained the hearsay objection and excluded the evidence. The court agreed with

the prosecution that defendant’s emotional displays were a form of hearsay and

not within any exception to the hearsay rule. The court also rejected the defense

argument that defendant’s constitutional right to present mitigating evidence in a

capital case overrode the hearsay rule in this instance. The court noted there was

no compelling need for the evidence, because defendant could testify to any

remorse he might have felt, and that the evidence was not particularly trustworthy

as evidence of remorse because on the videotape defendant never articulated any

feelings of sorrow or regret for killing Teresa Holloway, or any sympathy for

Holloway or her family, although he did indicate concern for his own safety and

well-being, and also concern for his mother and for Anna Humiston. Thus, in the

court’s view, it was by no means clear that defendant’s emotional display was in

any way caused by remorse, and it seemed more likely that it was caused entirely

by concern for his own predicament.

The defense raised the issue again after both sides had rested at the penalty

phase and the prosecutor had given his closing argument to the jury. Defense

counsel requested permission to reopen the evidence to play the videotape for the

jury to rebut the prosecutor’s assertion, in argument to the jury, that defendant

“lacked a conscience.” Defense counsel pointed out that during the videotaped

interview defendant said, in response to a question asking whether he had received

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any injuries in his struggle with Teresa Holloway, “The only injury I got is from

my, just from my conscience.” The trial court denied the request to reopen.

The defense raised the issue a final time after the jury had returned the

penalty verdict of death. In a motion for a new trial, the defense argued that the

trial court had erred in excluding the videotape. To demonstrate prejudice, the

defense submitted declarations by three trial jurors stating that evidence that

defendant lacked remorse for killing Teresa Holloway was an important factor in

aggravation, and that evidence that defendant had an emotional reaction to the

murder and talked about his conscience would have counterbalanced that

evidence. The trial court denied the motion for a new trial.

Defendant is correct that, by themselves, defendant’s emotional displays

were nonassertive conduct, and thus not within the hearsay rule. For purposes of

the hearsay rule, conduct is assertive if the actor at the time intended the conduct

to convey a particular meaning to another person. (Evid. Code, § 225 [defining

statement to include “nonverbal conduct of a person intended by him as a

substitute for oral or written verbal expression”].) For example, a nod of the head

in response to a question calling for a yes-or-no answer, or a gesture pointing to a

particular person when asked to identify a perpetrator, are examples of assertive

conduct. Here, nothing in the videotape suggests that defendant’s emotional

responses were voluntary or that he intended them to convey any particular

meaning to the interrogating officers.

But the defense sought to introduce more than just evidence of the

emotional displays themselves. To explain the significance of the emotional

displays, and particularly defendant’s statement that as a result of the murder he

had received an “injury from [his] conscience,” the defense sought to introduce the

statements defendant made during the videotaped interview. As defendant must

concede, those statements, including assertions and descriptions of his own

69



feelings and other mental states, were hearsay. They were not admissible under

the state-of-mind exception to the hearsay rule (Evid. Code, § 1250) if they were

made under circumstances indicating a lack of trustworthiness (id., § 1252). As

the trial court correctly determined, the circumstance that defendant made his

statements during a postarrest police interrogation, when he had a compelling

motive to minimize his culpability for the murder and to play on the sympathies of

his interrogators, indicated a lack of trustworthiness. In past decisions, we have

upheld the exclusion of self-serving postcrime statements made under similar

circumstances. (People v. Livaditis (1992) 2 Cal.4th 759, 779-780; People v.

Edwards (1991) 54 Cal.3d 787, 820; People v. Whitt (1990) 51 Cal.3d 620, 642-

643.)

We have also rejected the argument that exclusion of this sort of hearsay

evidence violates a capital defendant’s right to a fair trial and a reliable penalty

determination under the federal Constitution. As we have explained, a capital

defendant has no federal constitutional right to the admission of evidence lacking

trustworthiness, particularly when the defendant seeks to put his own self-serving

statements before the jury without subjecting himself to cross-examination.

(People v. Stanley, supra, 10 Cal.4th at pp. 838-840; People v. Livaditis, supra, 2

Cal.4th at p. 780; People v. Edwards, supra, 54 Cal.3d at pp. 820-821; People v.

Whitt, supra, 51 Cal.3d at p. 644.)

In excluding the entire videotape of defendant’s postarrest interrogation,

the trial court did not err under state law, nor did it violate defendant’s rights

under the federal Constitution. The defense never offered to redact the videotape

to show only the nonassertive conduct, and, even if it had done so, any error in

excluding the admissible portions of the videotape was harmless.

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B. Murder Victim’s Pregnancy

Before defendant’s trial began, the trial court denied his motion to exclude

from the penalty phase any evidence that Teresa Holloway was pregnant when

defendant murdered her. Defendant contends that the ruling was error because the

evidence was irrelevant and unduly prejudicial. He further contends that

admission of the evidence violated his rights under the Fifth, Sixth, Eighth, and

Fourteenth Amendments.

The trial court did not err in admitting evidence of the murder victim’s

pregnancy at the penalty phase as a circumstance of the offense. The Eighth

Amendment to the federal Constitution permits the prosecution, in a capital case,

to present evidence about the murder victim and the specific harm that the

defendant caused as relevant to the jury’s penalty decision. (Payne v. Tennessee

(1991) 501 U.S. 808, 827; People v. Harris, supra, 37 Cal.4th at p. 351.) In

California, the prosecution may introduce evidence of the specific harm caused by

a defendant’s crime at the penalty phase in aggravation as a circumstance of the

crime (§ 190.3, factor (a)). (People v. Panah, supra, 35 Cal.4th at p. 494; People

v. Fierro (1991) 1 Cal.4th 173, 235.)

Defendant argues that evidence of the pregnancy was irrelevant because,

although the prosecution presented evidence that Terry Holloway told him she was

pregnant, there was also uncontradicted evidence that he did not believe it. This

court has concluded, however, that facts concerning the victim that are admissible

at the penalty phase of a capital trial as circumstances of the crime are not limited

to those known to or reasonably foreseeable by the defendant at the time of the

murder. (People v. Pollock (2004) 32 Cal.4th 1153, 1183; accord, People v.

Roldan, supra, 35 Cal.4th at p. 732.)

We also reject defendant’s argument that the trial court abused its

discretion by not excluding the pregnancy evidence as unduly prejudicial. We

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have explained the parameters of the trial court’s discretion in these situations in

this way: “ ‘On the one hand, it should allow evidence and argument on

emotional though relevant subjects that could provide legitimate reasons to sway

the jury to show mercy or to impose the ultimate sanction. On the other hand,

irrelevant information or inflammatory rhetoric that diverts the jury’s attention

from its proper role or invites an irrational, purely subjective response should be

curtailed.’ ” (People v. Edwards, supra, 54 Cal.3d at p. 836, quoting People v.

Haskett (1982) 30 Cal.3d 841, 864; accord, People v. Panah, supra, 35 Cal.4th at

pp. 494-495; see also People v. Pollock, supra, 32 Cal.4th at 1180 [evidence

admissible if it “is not so inflammatory as to elicit from the jury an irrational or

emotional response untethered to the facts of the case”].) That in murdering

Teresa Holloway defendant also terminated the life of a healthy 17-week-old fetus

she was carrying was part of the harm caused by defendant’s crime and thus was a

legitimate, though emotional, consideration for the jury in making its penalty

decision. We note also that defendant does not challenge the manner in which the

evidence was presented, and we conclude it was not presented in an unnecessarily

inflammatory way. Therefore, we reject defendant’s claim that the trial court

abused its discretion in admitting evidence of the victim’s pregnancy.

C. Victim Impact

Defendant contends that admission of detailed and emotional testimony

about the impact of Teresa Holloway’s murder on members of her family rendered

his penalty trial unfair and unreliable, in violation of his rights under the Fifth,

Sixth, Eighth, and Fourteenth Amendments to the federal Constitution. He further

contends that section 190.3, factor (a), which permits introduction of victim

impact evidence as a circumstance of the crime, is unconstitutionally vague, and

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that retroactive application of case law allowing use of this evidence violates

federal constitutional principles of ex post facto and due process.

We have rejected claims that section 190.3, factor (a), is unconstitutionally

vague insofar as it permits introduction of victim impact evidence as a

circumstance of the crime (People v. Wilson, supra, 36 Cal.4th at p. 358; People v.

Boyette (2002) 29 Cal.4th 381, 445, fn. 12), and that use of victim impact evidence

in trials for capital crimes committed before the United States Supreme Court’s

decision in Payne v. Tennessee, supra, 501 U.S. 808, violates federal

constitutional principles of ex post facto and due process (People v. Brown (2004)

33 Cal.4th 382, 394-395). Defendant does not persuade us to reconsider these

decisions.

Nor are we persuaded that the trial court erred in failing to exclude victim

impact testimony that defendant claims was overly emotional or irrelevant. Three

witnesses testified to the impact of Teresa Holloway’s murder on members of her

family. Carol Holloway, Teresa Holloway’s mother-in-law, testified primarily

about the impact of the murder on Teresa’s young daughter, but also about its

impact on herself. James and Joan Cucinotta, Teresa’s parents, testified mainly

about the impact of the murders on themselves, but also about its impact on their

other two children and on their grandchild. The testimony of these three witnesses

was relatively brief, comprising just 25 pages in the reporter’s transcript. During

their testimony, the defense made no objections to any questions put to the

witnesses, nor did the defense move to strike any of the answers. During a break

in proceedings immediately after the testimony of Carol Holloway, however, the

defense moved for a mistrial or in the alternative to preclude any further victim

impact testimony. Defense counsel pointed out that as the jury was leaving the

courtroom for the break, four of the jurors were “very visibly crying.” The trial

court denied the motions, although it agreed with defense counsel that at least two

73



of the jurors had been in tears, and the trial court added that defendant had been

“crying and sobbing” as well. Later, out of the jury’s presence, the trial court

observed for the record that during the testimony of Teresa Holloway’s parents it

had been watching the four jurors that defense counsel had previously identified as

crying and that it did not notice “nearly as much emotional response on their part,

frankly.”

As examples of testimony that was irrelevant, defendant cites, among other

things, Joan Cucinotta’s testimony that her mother died of cancer shortly after

Teresa Holloway’s death and that her husband lost his job two weeks after

Holloway’s death. By failing to make timely objections during the witnesses’

testimony, defendant forfeited the claim that any of the victim impact evidence

was irrelevant. (People v. Wilson, supra, 36 Cal.4th at p. 357.) In any event, we

are satisfied that all of that testimony was relevant. For example, Joan Cucinotta

explained that because she did not want to upset her mother during her final

illness, she had pretended that Holloway was still alive, which was “very

difficult.” And James Cucinotta explained that he lost his job “pretty much

because of this [meaning Holloway’s death].” Thus, all of this testimony was

relevant to explain the direct impact of the murder on Holloway’s family

members.

Defendant provides examples of testimony he considers overly emotional.

In the testimony of Teresa Holloway’s mother, Joan Cucinotta, defendant cites,

among other things, her statements that “there is nothing worse to me than the

death of a child,” that she lunged at and wanted to hit the detective who told her

Holloway was dead, that she visits Holloway’s grave every week and at first she

would “cry, sobbing, cry and cry, throw [her]self on the grave,” and that

Holloway’s daughter, when she visits the grave, “says a prayer and kisses her

[mother’s] picture.” In the testimony of Holloway’s father, James Cucinotta,

74



defendant cites, among other things, his statements that he and his wife visit

Holloway’s grave every week, that they “couldn’t take a look at her [Holloway]

for the last time because of the condition that she was in . . . [a]nd of course she’d

laid out in the road for a couple days,” that while he was making the funeral

arrangements for Holloway he “had to stuff everything” (meaning suppress his

emotions) and “because of that stuffing, [he] started to do a lot of inappropriate

things,” his “drinking got out of hand,” and he “had to finally go to a treatment

center and get that taken care of,” that as a result of Holloway’s death his son, who

was 34 years old, was “not the same anymore” and was “in a recovery home here

in San Diego,” and that during the first year after Holloway’s death he and his

wife “didn’t even have a holiday in the house,” they “didn’t have a turkey for

Thanksgiving . . . didn’t have a Christmas tree for Christmas.”

This testimony was not dissimilar from, or significantly more emotion-

laden than, other victim impact testimony that has been held admissible. For

example, in Payne v. Tennessee, supra, 501 U.S. 808, the defendant was convicted

of murdering a 28-year-old woman and her two-year-old daughter. At the trial,

when asked how the woman’s three-year-old son had been affected by the murders

of his mother and sister, the boy’s grandmother replied: “ ‘He cries for his mom.

He doesn’t seem to understand why she doesn’t come home. And he cries for his

sister Lacie. He comes to me many times during the week and asks me,

Grandmama, do you miss my Lacie. And I tell him yes. He says, I’m worried

about my Lacie.’ ” (Id. at pp. 814-815.) In People v. Harris, supra, 37 Cal.4th

310, the murder victim’s mother “described how she learned of the murder, and of

the emotional and financial costs involved in planning and attending the funeral.”

(Id. at p. 328; see also id. at pp. 351-352 [holding this evidence properly

admitted].) In People v. Panah, supra, 35 Cal.4th 395, the murder victim’s father

testified that before the victim’s death, her 16-year-old brother “was the family

75



athlete, and was a ‘4.0 student,’ but, following her death, his grades deteriorated,

‘he is drinking a lot and doing drugs,’ and would not talk about his sister but ‘kept

it all inside himself,’ and refused to go to counseling.” (Id. at p. 495.) We

concluded that this testimony was “neither irrelevant nor prejudicial but, in

context, depicted the ‘residual and lasting impact’ he ‘continued to experience’ as

a result of [the victim’s] murder.” (Ibid.) In People v. Boyette, supra, 29 Cal.4th

381, a murder victim’s father “testified and related how close he was with the

victim, how her eight-year-old son had said he wanted to die so he could be with

his mother, how her six-year-old son had nightmares and would telephone wanting

to know where his mother was, and how [the victim] had been in a drug

rehabilitation program and had turned her life around.” (Id. at p. 440; see also id.

at p. 444 [holding the evidence was properly admitted].) As in these cases, we

conclude that the victim impact evidence here “did not surpass constitutional

limits.” (Id. at p. 444.)

The record does not support defendant’s suggestion that after hearing the

victim impact testimony the jurors were so overwhelmed by emotion that they

were unable to make a rational determination of penalty. Of particular

significance, the jury deliberated on penalty for five days before reaching its

verdict. The length of their deliberations rather strongly implies that, rather than

rushing to judgment under the influence of unbridled passion, the jurors arrived at

their death verdict only after a full and careful review of the relevant evidence and

of the legitimate arguments for and against the death penalty.

D. Jail Assault

Defendant contends that the trial erred in overruling his objections to

admission of evidence of his assault on Steven Baldwin, and that this error

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violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to

the federal Constitution.

On April 14, 1994, the prosecution notified defendant that it intended to

introduce in aggravation evidence of defendant’s assault on Steven Baldwin,

which had occurred in July 1991, soon after defendant’s arrest. The defense

moved to exclude evidence of the incident on the ground that the notice was

untimely. After a hearing, the trial court denied the motion without prejudice to

its renewal if the trial reached the penalty phase.

Defendant renewed the motion to exclude after the jury returned its guilt

verdicts and made its special circumstance finding. In support of the motion,

defendant informed the court that jail documents listing the inmates who were

housed in the module where the assault occurred and the employees who worked

in that module had been destroyed on or before July 1993, although a report

relating to the incident had been preserved. The trial court denied the renewed

motion to exclude, rejecting defendant’s argument that, in light of the document

destruction, use of the incident in aggravation would violate his constitutional

right to due process of law. Defendant contends the trial court erred in denying

the motions to exclude.

“Section 190.3, factor (b) provides for the admission, during the penalty

phase of a capital trial, of evidence of any criminal activity by the defendant

involving the use or attempted use of force or violence.” (People v. Kraft (2000)

23 Cal.4th 978, 1070.) Section 190.3, factor (b), imposes no time limitation on the

introduction of unadjudicated violent crimes; rather, it permits the jury to consider

a capital defendant’s criminally violent conduct occurring at any time during the

defendant’s life. (People v. Barnett (1998) 17 Cal.4th 1044, 1174; People v.

Williams (1997) 16 Cal.4th 153, 233.) Thus, evidence of violent criminal activity

is admissible even though prosecution of the crime would be time-barred (People

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v. Williams, supra, at p. 233), the right to a speedy trial is not implicated (People

v. Rodrigues (1994) 8 Cal.4th 1060, 1161), and the defense of laches is not

available (People v. Koontz (2002) 27 Cal.4th 1041, 1087-1088). As we have

explained, the remoteness in time of a prior incident “goes to its weight, not to its

admissibility.” (People v. Catlin (2001) 26 Cal.4th 81, 172.) Defendant asks us to

reconsider these decisions, but he does not persuade us to do so.

Here, as defendant concedes, defendant’s assault on Steven Baldwin was

not remote in time; indeed, it occurred after the charged capital offense, the

murder of Teresa Holloway. Defendant nonetheless contends that the trial court

should have excluded evidence of the incident because the prosecutor’s lack of

diligence in discovering the incident and in providing notice of his intention to

offer evidence of the incident in aggravation resulted in the destruction of relevant

jail records, thereby compromising defendant’s ability to defend against the

charge.

The prosecutor told the trial court that he first learned of the incident in

December 1993 during an interview of Steven Baldwin while preparing the case

for trial. Although defendant argues that the prosecutor could have discovered the

incident earlier, he cites no authority for the proposition that a prosecutor in a

death penalty case has an obligation to promptly and diligently search for all

available aggravating evidence, or that, if such a duty exists, exclusion of evidence

is an appropriate and lawful sanction for its violation. Thus, defendant fails to

persuade us that he suffered any legally cognizable harm as a result of the

prosecution’s failure to discover the incident at an earlier time.

The prosecution is required to notify a capital defendant of its intended

penalty phase evidence “within a reasonable period of time as determined by the

court, prior to trial.” (§ 190.3.) Notice provided before jury selection begins is

generally considered timely, and the purpose of the notice provision is satisfied if

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the defendant has a reasonable chance to defend against the charge. (People v.

Stitely, supra, 35 Cal.4th at p. 562.) Here, the prosecutor gave notice to defendant

of his intention to introduce evidence of the Baldwin assault 11 days before jury

selection began. Defendant then received, or had already received, a report that

described the incident and included the names of two inmates, in addition to

Baldwin and defendant, who had been present in the module and were questioned

about the incident. The trial court did not abuse its discretion in concluding that

defendant received timely and adequate notice.

Defendant also argues that the incident was inadmissible because it did not

constitute a crime by defendant. Evidence of other criminal activity introduced in

the penalty phase under section 190.3, factor (b), must demonstrate “the

commission of an actual crime, specifically, the violation of a penal statute.”

(People v. Phillips (1985) 41 Cal.3d 29, 72; see also People v. Kipp, supra, 26

Cal.4th 1100, 1133; People v. Boyd (1985) 38 Cal.3d 762, 772.) The prosecution

did not argue that defendant personally assaulted Baldwin, but instead that he

aided and abetted an assault on Baldwin by loudly referring to Baldwin as a

“snitch,” knowing that snitches are commonly the targets of assault in jail. “[A]n

aider and abettor is a person who, ‘acting with (1) knowledge of the unlawful

purpose of the perpetrator; and (2) the intent or purpose of committing,

encouraging, or facilitating the commission of the offense, (3) by act or advice

aids, promotes, encourages or instigates, the commission of the crime.’ ” (People

v. Prettyman (1996) 14 Cal.4th 248, 259, quoting People v. Beeman (1984) 35

Cal.3d 547, 561.) On the evidence presented, the jury could reasonably conclude

that defendant, acting with the intent to have Baldwin assaulted, and with

knowledge that other inmates would likely do so if told that Baldwin was a snitch,

encouraged or instigated the assault by openly announcing to the other inmates

that Baldwin was a snitch. Defendant’s remark to Baldwin after the assault (“You

79



can’t be in this cell”) supports an inference that defendant orchestrated the assault

to achieve his own purposes, intimidation of Baldwin and his removal from the

module. Therefore, we reject defendant’s argument that the evidence was

insufficient to show that defendant violated a penal statute.

E. Weapon Possession in Jail

In regard to the prosecution’s evidence at the penalty phase that defendant

illegally possessed a weapon in the county jail, defendant claims, first, that the

evidence was insufficient to establish that the weapon he possessed was a deadly

weapon within the meaning of section 4574; second, that the trial court

misinstructed the jury regarding the elements of a section 4574 violation; and,

third, that the trial court should not have permitted the jury at the penalty phase to

consider the section 4574 violation as an aggravating circumstance because the

offense does not necessarily involve an actual or implied threat of violence.

Section 4574 makes it a felony for a county jail inmate to possess a “deadly

weapon.” Within the meaning of this penal statute, an object is a deadly weapon if

it has a reasonable potential of inflicting great bodily injury or death. (People v.

Pollock, supra, 32 Cal.4th at p. 1178; see People v. Hughes (2002) 27 Cal.4th 287,

383.)

Arguing that here the prosecution’s evidence was insufficient to establish

that the weapon he possessed had a reasonable potential of inflicting great bodily

injury or death, defendant asserts that the evidence did not show which of several

weapons he possessed and that some of the weapons, such as soap bars in socks,

were incapable of inflicting great bodily injury. We disagree with defendant’s

characterization of the evidence.

Mark Thiede testified, on direct examination, that on September 5, 1993, he

was working as a deputy sheriff at the county jail in San Diego when he saw

80



groups of Black and Hispanic inmates facing off against each other in one of the

tanks. Several Hispanic inmates had steel poles or posts that they were slamming

against the steel bunks and using to make stabbing motions to keep the Black

inmates in another part of the room. He later wrote a report identifying four

inmates “who possessed weapons.” Defendant was one of the four. Asked to

describe “with a little more particularity what type of weapons . . . these inmates

were possessing,” Thiede replied: “The weapons that was used in the riot, they’re

bars about between 12 and 18 inches long, quarter inch in diameter. There was

also socks. They take a sock and they put two, one or two bars of soap in the

socks to make it weighted. You can use that as a clubbing instrument. Thin

pieces about a half inch wide, five or six inches long with tape on the end that you

can sharpen down to a point. Those are I believe the weapons that were found.”

(Italics added.)

Defendant argues that from this testimony the jury could not determine

which weapon, of the several that Deputy Thiede described, he had possessed

during the riot, and thus the jury could not determine whether the weapon satisfied

the section 4574 definition of a deadly weapon. The more likely interpretation of

this testimony, we think, is that defendant was one of four inmates that Thiede saw

wielding the steel poles or posts and that the other weapons were merely found

during a later search of the tank. Moreover, any confusion or uncertainty in this

regard was dispelled by cross-examination. Defense counsel asked: “You never

saw Mr. Jurado, or the person that you identified as Mr. Jurado, that is, the person

in the tank that you said had the pipe, you never saw that individual strike

anybody, did you?” (Italics added.) Thiede replied, “No, I didn’t.” Thus, the

evidence before the jury sufficiently established that defendant possessed one of

the steel objects 12 to 18 inches in length—variously described as poles, posts,

bars, and pipes—that the inmates were slamming against bunks and using to make

81



stabbing motions. As defendant does not dispute, an object of this sort is capable

of inflicting great bodily injury or death, and thus it is a deadly weapon within the

meaning of section 4574.

We next consider defendant’s claim that the trial court misinstructed the

jury regarding the elements of a section 4574 violation. Specifically, the trial

court instructed the jury that in reaching the penalty verdict it could consider

evidence that defendant had engaged in criminal activity that involved the express

or implied use of force or violence or the threat of force or violence. The court

then stated: “And indeed, evidence has been introduced during this phase of the

trial for the purpose of showing and proving that [defendant] committed the

following criminal activity: . . . possession of a weapon in the county jail.”

Defendant contends that this instruction was inaccurate or at least misleading

because it referred merely to “a weapon” rather than “a deadly weapon.”

As defendant recognizes, we considered a similar claim in People v.

Hughes, supra, 27 Cal.4th 287. There, the prosecution introduced evidence at the

penalty phase of a capital trial that the defendant while in a county jail had

possessed “a four-inch, slightly bent but straightened, hard, sharp object with a

loop at the end.” (Id. at p. 381.) The trial court instructed the jury that “ ‘evidence

has been introduced for the purpose of showing that the defendant has committed

the following criminal act: possession of a sharpened instrument while confined

in the county jail . . . .’ ” (Id. at p. 382.) We concluded that the trial court had

erred in instructing in these terms because possessing a sharpened instrument

while confined in the county jail “was, at the time, and without more (that is, a

showing that the object was a deadly weapon), not a crime.” (Id. at p. 383.) The

trial court’s instruction “should have used the words ‘deadly weapon’ rather than

‘sharpened instrument,’ ” an error we characterized as “minor.” (Id. at p. 384.)

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We also concluded, beyond a reasonable doubt, that the defendant was not

prejudiced by the error. We observed that the object the defendant had possessed

qualified as deadly weapon under section 4754. (People v. Hughes, supra, 27

Cal.4th at p. 383.) We reasoned: “To find prejudice, we would need to

hypothesize two things, which tend to be self-canceling: (i) that the jury would

consider the shank, although a sharpened instrument, not to be a deadly weapon,

and (ii) that despite such a finding, the jury nonetheless considered the evidence to

be so important that it affected the penalty determination. [¶] It is quite unlikely

that the jury would find the object to be a sharpened instrument but not a deadly

weapon. But if the jury made that improbable finding, thus minimizing the

seriousness of the evidence, it is also quite unlikely that it would then consider the

evidence to be so important as to control, or even have a significant impact upon,

the penalty determination.” (Id. at p. 384; see also People v. Pollock, supra, 32

Cal.4th at p. 1179.)

Similarly here, we conclude that defendant was not prejudiced by the trial

court’s description of the alleged criminal conduct as defendant’s possession of a

“weapon” rather than a “deadly weapon.” It is quite unlikely that the jury would

view the object that defendant possessed—a steel rod or bar 12 to 18 inches in

length—as a weapon but not a deadly weapon. It is also quite unlikely that if the

jury made such an improbable finding, it would then nonetheless treat the incident

as sufficiently aggravating to have affected the penalty verdict. The combination

of these improbabilities persuades us beyond a reasonable doubt that the

instructional error was harmless.

Defendant also argues that the instruction was erroneous insofar as it

required the jury to treat defendant’s possession of a deadly weapon in county jail

as aggravating without making its own determination that the conduct involved

actual or threatened force or violence. Defendant argues that the instruction

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precluded the jury from considering any possible innocent explanation for his

weapon possession. We have previously rejected this argument (People v. Gray,

supra, 37 Cal.4th at p. 235; People v. Monterroso (2004) 34 Cal.4th 743, 793),

and defendant does not persuade us to reconsider these decisions.

Finally, we reject defendant’s argument that the trial court should not have

permitted the jury at the penalty phase to consider the section 4574 violation as an

aggravating circumstance because the offense does not necessarily involve illegal

violence. This court has consistently concluded, to the contrary, that a prisoner’s

possession of a weapon is conduct that necessarily involves an actual or implied

threat to use force or violence. (E.g., People v. Hines (1997) 15 Cal.4th 997,

1057; People v. Ramirez (1990) 50 Cal.3d 1158, 1186-1187; People v. Harris

(1981) 28 Cal.3d 935, 962-963.) “The trier of fact is free to consider any

‘innocent explanation’ for defendant’s possession of the item, but such inferences

do not render the evidence inadmissible per se.” (People v. Tuilaepa (1992) 4

Cal.4th 569, 589.)

F. Lack of Remorse

Defendant claims the death judgment must be reversed because the

prosecutor improperly urged the jury to consider defendant’s lack of remorse after

the crime as an aggravating circumstance.

During his argument to the jury at the conclusion of the penalty phase, the

prosecutor began to read the testimony of Christie Medlin about statements

defendant had made to her during telephone calls after the murder of Teresa

Holloway. Defense counsel interrupted and asked to approach the bench, where

he argued that defendant’s postoffense statements were “inappropriate evidence in

aggravation to show lack of remorse,” and that the court should not permit the

prosecutor to make an argument urging the jury to view defendant’s postoffense

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lack of remorse as aggravating. The court overruled the objection, noting that

defendant’s postoffense statements could properly be used in aggravation insofar

as they constituted circumstantial evidence of his state of mind during the crime.

The prosecutor then quoted defendant’s postoffense statements that “the bitch is

gone” and that he did not care if he had to spend the rest of his life paying for it.

The prosecutor argued that this showed “the state of mind of [defendant] at or

about the time this crime occurred as to his idea of punishment.”

The prosecutor then discussed evidence showing that defendant knew that

killing Teresa Holloway was wrong. The prosecutor mentioned that there were

seven factors in aggravation and mitigation that the jury would be asked to

consider, and that the jury was not merely to count the factors on each side but

was to weight them to determine their “convincing force.” As factors in

aggravation, the prosecutor mentioned and discussed the circumstances of the

crime, including the victim impact testimony, the presence or absence of criminal

activity involving force or violence, and the presence or absence of prior felony

convictions. The prosecutor mentioned and discussed whether the offense was

committed while the defendant was under the influence of extreme mental or

emotional disturbance; whether at the time of the offense defendant had the

capacity to appreciate the criminality of his conduct or to conform his conduct to

the requirements of law, and whether that capacity was impaired by intoxication;

defendant’s age at the time of the crime; and “the last factor,” which was “any

other circumstances which extenuate the gravity of the crime, even though it is not

a legal excuse for the crime, and any sympathetic or other aspect of the

defendant’s character or record that the defendant offers as a basis for a sentence

of less than death.”

In connection with this last factor, the prosecutor discussed the evidence

that the defense had presented during its case in mitigation. During this

85



discussion, the prosecutor made this argument, which defendant now challenges:

“I listened as the defense witnesses testified yesterday for any evidence or

testimony pertaining to the victim. And there was. There was. The defendant’s

grandmother testified, bless her heart, that she not only prays for [defendant] but

she prays for the victim and the victim’s family. What a nice thing. What a

human thing. What a nice person from a nice family. [¶] When she testified to

that I kind of thought back in the evidence that was presented in the guilt phase

and the penalty phase, about the defendant and his view of the victim. After the

murder of Terry Holloway, she had only been in the drainage ditch a matter of

minutes, what was [defendant] doing at Christie Medlin’s house? He was playing

darts. What was he doing the next day with Denise Shigemura while the victim

still lay cold in the drainage ditch? He was having pizza and beer. [¶] And after

he got arrested and he talked to Christie Medlin on the telephone, how did he feel

about the victim at that time, right around the time of the crime? ‘On, on, the bitch

is gone.’ [¶] And when he identified Steve Baldwin as a snitch in the county jail,

what were his words? ‘That’s the guy who told the cops I killed the bitch.’ [¶]

What’s his grandmother doing during this time? She’s praying for the victim. [¶]

Do you see what I mean? He’s not like them. He doesn’t share in their goodness,

he doesn’t share in their compassion, he doesn’t share in their humanity. [¶] I

think those statements that he made in the presence of Baldwin and in the presence

or on the telephone to Christie Medlin tell you who the real Robert Jurado is. All

right out there, very clear and open for you to understand and evaluate.”

Although a prosecutor in a capital case may not argue that a defendant’s

postcrime lack of remorse is an aggravating factor, a prosecutor may, as the

prosecutor did here, argue that lack of remorse is relevant to the evaluation of

mitigating factors. (People v. Pollock, supra, 32 Cal.4th at p. 1186; People v.

Mendoza (2000) 24 Cal.4th 130, 187.) The prosecutor here never suggested that

86



lack of remorse was an aggravating factor, and he did not refer to lack of remorse

during the portion of his argument devoted to the discussion of aggravating

factors. Instead, the challenged argument occurred during the course of the

prosecutor’s review of the defense case in mitigation and the potential mitigating

factors. A reasonable juror likely would have understood the prosecutor’s

argument to be that defendant’s failure to demonstrate any concern for the woman

he had killed meant “that remorse was not available as a mitigating factor and also

that defendant was not entitled to the jury’s sympathy.” (People v. Pollock, supra,

at p. 1186.)

G. Incidents Between Defendant and His Mother

Defendant argues that the trial court should have exercised its discretion to

exclude, as inflammatory and lacking in probative value, the evidence that on one

occasion he pushed and spit on his mother, and on another occasion he approached

with raised arm as if to strike her and threatened to kill her and shoot up the house.

He further argues that admission of this evidence violated his statutory and due

process right that the penalty evidence admitted against him be limited to evidence

relevant to a factor listed under section 190.3, and his constitutional rights under

the Fifth, Eighth, and Fourteenth Amendments to due process, a fair penalty trial,

and reliability in the determination of capital punishment.

We reject the argument that defendant’s conduct toward his mother was not

admissible under section 190.3, factor (b), as criminal activity that involved the

use or attempted use of force or violence or the express or implied threat to use

force or violence. Defendant does not argue that his conduct did not violate a

penal statute, nor does he argue that it did not involve the use or attempted use of

force or violence or the express or implied threat to use force or violence. Instead,

he argues that the evidence was “not the kind of evidence that justified sentencing

87



[him] to execution,” because it is “unfortunately not that uncommon for a teenager

or a nineteen-year-old to have such confrontations with his parents.” But the

admissibility of section 190.3, factor (b), evidence does not depend on how

common or uncommon the criminal conduct is, or whether viewed in isolation it

would be sufficient to justify a death sentence. The evidence met all statutory

requirements for admission under section 190.3, factor (b).

We reject also defendant’s argument that the trial court should have

exercised its discretion under Evidence Code section 352 to exclude the evidence

on the ground that its probative value was substantially outweighed by the

probability that its admission would create a substantial danger of undue

prejudice. As we have explained, Evidence Code section 352 does not give the

trial court discretion to exclude all evidence of a criminal incident that is

admissible under section 190.3, factor (b). (People v. Cunningham (2001) 25

Cal.4th 926, 1017; People v. Anderson (2001) 25 Cal.4th 543, 586; People v.

Sanders (1995) 11 Cal.4th 475, 542-543.)

Nor are we persuaded by defendant’s constitutional arguments, which are

based on the unrealistic perspective of viewing this evidence in isolation from all

the other evidence offered in aggravation and mitigation at the penalty phase,

including the circumstances of the capital offense. In the context of the entire

penalty determination process, we find nothing improper or unfair about allowing

the jury to consider each occasion during defendant’s life when he violated a penal

statute by conduct that involved the use or attempted use of force or violence or

the express or implied threat to use force or violence.

H. Reasonable Doubt Standard

Defendant claims that his death sentence must be reversed because the trial

court did not instruct the jurors to return a death verdict only if they were

88



persuaded beyond a reasonable doubt that the aggravating circumstances were so

substantial in comparison with the mitigating circumstances that the death penalty

was justified. As defendant acknowledges, this court has held that “neither the

federal nor the state Constitution requires the jury to agree unanimously as to

aggravating factors, or to find beyond a reasonable doubt that aggravating factors

exist, that they outweigh mitigating factors, or that death is the appropriate

sentence.” (People v. Fairbank (1997) 16 Cal.4th 1223, 1255.) Defendant urges

us to reconsider this holding in light of the United States Supreme Court’s

decisions in Apprendi v. New Jersey (2000) 530 U.S. 466, Ring v. Arizona, supra,
536 U.S. 584, and Blakely v. Washington (2004) 542 U.S. 296. We have already

done so, and we have concluded that these decisions do not require us to alter our

previous conclusion on this point. (People v. Cornwell (2005) 37 Cal.4th 50, 103-

104; People v. Morrison (2004) 34 Cal.4th 698, 730-731.)

I. Unanimity on Aggravating Circumstances

Defendant contends that the trial court erred in not instructing the jury that

unanimity was required before a particular circumstance could be considered

aggravating. As defendant acknowledges, this court has consistently rejected this

argument (e.g., People v. Gray, supra, 37 Cal.4th at p. 236; People v. Morrison,

supra, 34 Cal.4th at pp. 730-731), and he fails to persuade us to reconsider these

holdings.

J. Aggravating and Mitigating Circumstances

Contrary to defendant’s contention, “[t]he trial court was not

constitutionally required to inform the jury that certain sentencing factors were

relevant only in mitigation, and the statutory instruction to the jury to consider

‘whether or not’ certain mitigating factors were present did not impermissibly

invite the jury to aggravate the sentence upon the basis of nonexistent or irrational

89



aggravating factors.” (People v. Morrison, supra, 34 Cal.4th at p. 730; accord,

People v. Gray, supra, 37 Cal.4th at p. 237.)

Defendant argues, however, that certain instructions given in this case

created an unacceptable risk that the jurors would treat as aggravating a

circumstance that could only be mitigating. First, the trial court modified the

standard jury instruction on penalty factors, CALJIC No. 8.85. After listing the

seven factors that the parties had agreed were relevant to penalty determination in

this case, the instruction stated: “The circumstances in the above list which you

determine to be aggravating are the only ones which the law permits you to

consider.” The instruction also stated, however, that “[t]he absence of a statutory

mitigating circumstances does not constitute an aggravating circumstance.”

Second, during penalty deliberations, the jury sent the trial court a note

with this question: “Can we consider the conspiracy to kill Doug Mynatt a

‘circumstance of the crime,’ as this term is used in CALJIC [No.] 8.85.(a)?” The

trial court replied: “Yes, it can be considered as a ‘circumstance of the crime’

under CALJIC [No.] 8.85(a), as either a circumstance in aggravation or

mitigation.” Defendant suggests that this reply would cause the jury to conclude

that it could consider any of the statutory factors as either aggravating or

mitigating. We disagree. On the same day, the jurors also sent the trial court a

note asking whether section 190.3, factor (k), as described in CALJIC No. 8.85

(“Any other circumstance which extenuates the gravity of the crime even though it

is not a legal excuse for the crime and any sympathetic or other aspect of the

defendant’s character or record that the defendant offers as a basis for a sentence

less than death, whether or not related to the offense for which he is on trial”)

could be either mitigating or aggravating. The trial court replied that this factor

was “mitigating only.” Thus, no reasonable juror could have been misled into

believing that any factor could be either aggravating or mitigating.

90



K. Absence of Written Findings

Defendant claims that California’s death penalty law is unconstitutional

because it does not require the jury to make a written statement of findings and

reasons for its death verdict. This court has consistently rejected this claim (e.g.,

People v. Gray, supra, 37 Cal.4th at p. 236; People v. Cornwell, supra, 37 Cal.4th

at p. 105; People v. Morrison, supra, 34 Cal.4th at pp. 730-731), and defendant

does not persuade us to reconsider these decisions.

L. Cumulative Effect of Errors

Defendant claims that the judgment must be reversed because of the

cumulative effect of errors at both the guilt and penalty phases of his trial.

Defendant has demonstrated few errors at either phase of the trial, and we have

found each error or possible error to be harmless when considered separately.

Considering them together, we likewise conclude that their cumulative effect does

not warrant reversal of the judgment.

V. DISPOSITION

The judgment is affirmed.

KENNARD,

J.

WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN J.
MORENO, J.
CORRIGAN, J.

91











CONCURRING OPINION BY KENNARD, J.




In 1993, in a concurring opinion in a noncapital case (People v. Ceja (1993)

4 Cal.4th 1134), I expressed a “growing concern” that the definition of lying in

wait that this court had earlier adopted in People v. Morales (1989) 48 Cal.3d 527

“may have undermined the critical narrowing function of the lying-in-wait special

circumstance: to separate defendants whose acts warrant the death penalty from

those defendant who are ‘merely’ guilty of first degree murder.” (People v. Ceja,

supra, at p. 1147.) I expressed this concern again in separate opinions in People v.

Hillhouse (2002) 27 Cal.4th 469, 512, and People v. Combs (2004) 34 Cal.4th

821, 869. In none of these cases, however, did I indicate how I would decide this

constitutional issue.

During the same period, without writing separately, I have concurred in

decisions affirming judgments of death based in part on lying-in-wait special

circumstances, including decisions rejecting claims that the lying-in-wait special

circumstance is unconstitutional because it does not adequately narrow the class of

death-eligible defendants. In each of these cases, however, the issue was not

squarely presented because other special circumstances had been found true and

the lying-in-wait special circumstance had no effect on the evidence presented at

the penalty phase. (See Brown v. Sanders (2006) 546 U.S. __ [126 S.Ct. 884];

People v. Combs, supra, 34 Cal.4th 821, 869.) Since I expressed concern about

the lying-in-wait special circumstance in People v. Ceja, supra, 4 Cal.4th 1134,

1



this court has not, until now, affirmed a judgment of death in which lying in wait

was the only special circumstance. In this case, however, no other special

circumstance was alleged, and defendant’s eligibility for the death penalty is based

solely on the jury’s finding that defendant murdered Teresa Holloway while lying

in wait. For this reason, I have taken a careful look at the constitutional issue to

which I alluded in 1993.

Since 1972, the United States Supreme Court has “required States to limit

the class of murderers to which the death penalty may be applied.” (Brown v.

Sanders, supra, 546 U.S. at p. ___ [126 S.Ct. at p. 889].) The court announced

that requirement in Furman v. Georgia (1972) 408 U.S. 238. Justice White’s

concurring opinion in Furman identified the problem in the death penalty systems

of Georgia and other states as the absence of a “meaningful basis for

distinguishing the few cases in which [the death penalty] is imposed from the

many cases in which it is not.” (Id. at p. 313.) In 1980, Justice Stewart’s plurality

opinion in Godfrey v. Georgia (1980) 446 U.S. 420, 427, converted this

description into a requirement: “A capital sentencing scheme must, in short,

provide a ‘ “meaningful basis for distinguishing the few cases in which [the death

penalty] is imposed from the many cases in which it is not.” ’ ”

Over the ensuing years, the decisions of the United States Supreme Court

gradually dispelled the impression that to satisfy the federal Constitution’s

narrowing requirement only a small percentage of murders may be punishable by

death. (See, e.g., Arave v. Creech (1993) 507 U.S. 463, 475.) In 1994, the court

summarized in rather precise terms the federal Constitution’s requirements for

death eligibility in a homicide case: “To render a defendant eligible for the death

penalty in a homicide case, we have indicated that the trier of fact must convict the

defendant of murder and find one ‘aggravating circumstance’ (or its equivalent) at

either the guilt or penalty phase. [Citations.] The aggravating circumstance may

2



be contained in the definition of the crime or in a separate sentencing factor (or in

both). [Citation.] As we have explained, the aggravating circumstance must meet

two requirements. First, the circumstance may not apply to every defendant

convicted of a murder; it must apply only to a subclass of defendants convicted of

murder. [Citation.] Second, the aggravating circumstance may not be

unconstitutionally vague. [Citations.]” (Tuilaepa v. California (1994) 512 U.S.

967, 971-972.) Under California’s death penalty law, the special circumstances

listed in Penal Code section 190.2 function as the “aggravating circumstances”

making a defendant eligible for the death penalty. (Brown v. Sanders, supra, 546

U.S. at p. ___ [126 S.Ct. at p. 892]; People v. Bacigalupo (1993) 6 Cal.4th 457,

467-468.)

The lying-in-wait special circumstance (Pen. Code, § 190.2, subd. (a)(15)),

as this court defined it in People v. Morales, supra, 48 Cal.3d at page 557,

satisfies the constitutional requirements that the United States Supreme Court

articulated in Tuilaepa v. California, supra, 512 U.S. 967. The special

circumstance applies only to a subclass of murderers, not to all murderers, and it is

not unconstitutionally vague; therefore, it satisfies the federal Constitution’s

narrowing requirement for a death-eligibility factor. (See People v. Moon (2005)

37 Cal.4th 1, 44; People v. Nakahara (2003) 30 Cal.4th 705, 721; People v.

Gutierrez (2002) 28 Cal.4th 1083; see also Morales v. Woodford (9th Cir. 2004)
388 F.3d 1159, 1174-1178, cert. den. sub nom. Morales v. Brown (Oct.11, 2005)

__ U.S. __ [126 S.Ct. 420]; People v. Earp (1999) 20 Cal.4th 826, 904-905;

People v. Sanchez (1995) 12 Cal.4th 1, 60-61.)

KENNARD,

J.

3



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Jurado
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S042698
Date Filed: April 6, 2006
__________________________________________________________________________________

Court:
Superior
County: San Diego
Judge: David M. Gill

__________________________________________________________________________________

Attorneys for Appellant:

Lynne S. Coffin and Michael T. Hersek, State Public Defenders, under appointments by the Supreme
Court, and Mark Hammond, Deputy State Public Defender, for Defendant and Appellant.




__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons,
Assistant Attorney General, William M. Wood, Larissa Karpovics Hendren and Marvin Mizell, Deputy
Attorneys General, for Plaintiff and Respondent.











Counsel who argued in Supreme Court (not intended for publication with opinion):

Michael T. Hersek
State Public Defender
801 K Street, Suite 1100
Sacramento, CA 95814
(916) 322-2676

Marvin Mizell
Deputy Attorney General
110 W “A” Street, Suite 1100
San Diego, CA 92101
(619) 645-2230

Opinion Information
Date:Docket Number:
Thu, 04/06/2006S042968

Parties
1Espinoza-Bojorquez, Edmundo B. (Appellant)
Represented by Edmundo Espinoza-Bojorquez
The Bristol Square
185 West "F" Street
Suite 430
San Diego, CA

2State Bar Of California (Appellant)

Disposition
Dec 14 1994Petition for writ of Review denied

Dockets
Oct 28 1994Petition for writ of review filed (S.B. proceeding Pending)
  By: Petnr. Espinoza in Pro per
Oct 28 1994Note:
  See S041593 Add'l Matter Pending.
Nov 14 1994Response by State Bar filed
 
Dec 14 1994Petition for writ of review denied