Supreme Court of California Justia
Citation 44 Cal. 4th 386, 187 P.3d 56, 79 Cal. Rptr. 3d 334

People v. Romero



Filed 7/14/08




IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S070686

v.

GERARDO ROMERO,

Los Angeles County

Defendant and Appellant.

Super. Ct. No. BA1022638



A jury convicted defendant Gerardo Romero of the murder of Eugene

Afable (Pen. Code, § 187; all further statutory references are to the Penal Code

unless otherwise indicated); the murder of Reynaldo Hau (§ 187); the attempted

willful, deliberate, and premeditated murder and attempted second degree robbery

of Francisco Piceno (§§ 664, 187, 211); the second degree robbery of Gabriel Hau

Cruz (§ 211); and the attempted second degree robbery of Jose Aguilar (§§ 664,

211). The jury found true the special circumstance allegations of multiple murder

(§ 190.2, subd. (a)(3)), and found that Reynaldo Hau was murdered during a

robbery (§ 190.2, subd. (a)(17)(A)). The jury also found true allegations that

defendant inflicted great bodily injury upon Francisco Piceno (§ 12022.7, subd.

(a)) and personally used a firearm in the commission of each offense (§ 12022.5,

subd. (a)). The jury returned a verdict of death, and the trial court sentenced

defendant to death. This appeal is automatic. (§ 1239, subd. (b).)

1




I. FACTS AND PROCEEDINGS

A. Guilt Phase

1. Prosecution’s case

On October 9, 1994, Ismael Magallanes was working as the manager of the

J & L Video Store at the intersection of Temple Street and Rampart Boulevard in

Los Angeles. Magallanes was acquainted with 17-year-old Eugene “Temper”

Afable, a member of the Temple Street gang. Afable would sometimes come into

the store to watch videos. On the night of October 9, Magallanes and Afable were

watching a video at the store. Magallanes was sitting behind the counter; Afable

was standing next to the counter, about four feet from Magallanes. At

approximately 9:00 p.m., Magallanes heard a gunshot, saw Afable fall down, and

got a glimpse of the shooter as he fled from the store. Afable was killed by a

single bullet fired into the back of his head.

Several hours later, at 12:50 a.m., Detective John Freitas of the Los

Angeles Police Department arrived at the murder scene. Afable was lying on his

back wearing a black football jersey with the letters “T-S-T” on it, resembling

jerseys worn by Temple Street gang members. About two feet away from the

victim was a .380-caliber shell casing from an automatic pistol.

Store manager Magallanes described the shooter as a male Hispanic, five

feet four inches to five feet six inches tall, clean shaven, with a light complexion,

and a shaved head with a three- to four-inch ponytail in the back. The next day,

police showed Magallanes six photographs of different men. He selected

defendant’s picture as “close” or “similar” to, but heavier than, the shooter. At

trial, Magallanes identified defendant with 90 percent certainty as the shooter.

Around 9:00 p.m. on October 9, 1994, the time of the Afable murder, Felix

Callejas was inside the laundromat next to the J & L Video store when he heard a

shot. He then saw a man, some 21 feet away from him, come out of the video

2



store walking quickly. The man was light skinned, between 18 and 20 years old,

and bald except for “a little pony tail.” The next day, Callejas selected defendant’s

picture from a six-pack photographic lineup as bearing “some similarities with the

person at the scene.”

At about midnight, three hours after the killing of Afable, Jose Aguilar,

Francisco Piceno, Gabriel Hau Cruz, Joaquin Hau Cruz, and Reynaldo Hau were

talking and drinking beer in front of a residence at 1022 North Bonnie Brae Street,

which is part of Temple gang territory and within a mile of the video store where

Afable was killed. One of the men, Reynaldo Hau, was sitting in the car of his

brother-in-law Gabriel Cruz, which was parked in the driveway of the residence.

The other men were standing next to the car. They were approached by two men,

one wearing a Halloween mask and the other wearing white pants, a dark shirt,

and a baseball hat with the letters “L.A.” on it.

The unmasked man pulled out a gun and demanded that the men in the

group give him what they had. The gunman took Gabriel Cruz’s Emit brand

watch and Reynaldo Hau’s Citizen watch. When Piceno told the gunman to take

whatever he wanted, the gunman told him to “shut up” and hit him in the face with

the gun, breaking his nose. Piceno fell to the ground and covered his face with his

hands. The gunman knelt down, placed the gun on Piceno’s hand and shot him in

the face. The gunman attempted to strike Joaquin Cruz with the gun but dropped

it in the process. While the gunman was picking up the gun, Gabriel Cruz and

Piceno fled. They heard more gunshots and saw the two assailants run away.

Gabriel Cruz went back to the driveway and saw Reynaldo Hau lying next to the

car. Reynaldo Hau had been shot once in the chest and once in the leg. He later

died from the gunshot wounds.

3



Detectives Charles Salazar and Robert Bub recovered four .380-caliber

automatic gun shell casings from the crime scene at North Bonnie Brae Street.1

Later, at the police station, Detective Bub showed Gabriel Cruz and

Joaquin Hau Cruz 25 photographs of persons known to the police as gang

members. Gabriel identified defendant as the shooter; Joaquin did not identify

anyone. At the hospital to which Piceno had been taken, he identified defendant’s

picture as looking “similar” to the gunman.

Between 8:00 and 8:30 a.m. on October 10, 1994, Detectives Salazar and

Bub conducted a consensual search of defendant’s bedroom at his parents’ house.

The detectives found an Emit watch, which robbery victim Gabriel Cruz identified

as the watch taken from him. Also recovered were a .380-caliber ammunition clip

with two live rounds in it, a plastic video cassette container that had defendant’s

name written on it and contained several .380-caliber rounds of ammunition, loose

.380- and .22-caliber rounds, and two baseball caps, one with the letters L.A. on

the front and the other bearing the words “WS Rockwood.” Detective Bub

arrested defendant.

At trial, Gabriel Cruz identified defendant as the gunman in the robbery,

and he again identified the Emit watch recovered from defendant’s bedroom as the

watch taken from him. Joaquin Cruz testified that defendant had the same face as

the gunman. Piceno also identified defendant at trial as looking like the gunman.

Detective Vincent Balderamma, of the Los Angeles Police Department’s

Rampart Division’s gang unit, testified as a gang expert. He stated that the

Temple Street gang controlled the area around the J & L Video Store at the

intersection of Temple and Rampart Street, and that a rival gang named Rockwood


1

It was stipulated at trial that Hau and Afable were killed by bullets from the

same gun. The gun itself was never recovered.

4



had its territory roughly a mile away. The residence at 1022 North Bonnie Brae

was outside the Rockwood gang territory, but within an area where Temple Street

gang members congregated.

Detective Balderamma explained at trial that in the culture of gangs a gang

member’s standing or prestige within the gang would be increased by going into a

rival gang’s territory to “do a mission,” such as a shooting or a robbery. In his

opinion, the murder of Afable was a gang killing.

Detective Balderamma also described the significance of tattoos defendant

got after his arrest and while incarcerated. The letters “RWST” and “LCS”

tattooed on the back of defendant’s shaved head identified him as a member of the

Rockwood gang; the large size of the letters indicated defendant’s pride in his

gang. The letters “RW” tattooed on defendant’s lower lip and left ear lobe stood

for Rockwood. The tattoos on his left wrist of three dots and the numbers “213,”

the telephone area code for Los Angeles, were symbols used by Los Angeles

gangs. The tattoos of “Youngster 1,” “VRWST,” and “LCS” on defendant’s lower

right leg represented, respectively, defendant’s gang name, Varrio Rockwood

Street, and Locos. These tattoos showed others in jail and prison that defendant

was proud to be a member of the Rockwood Street gang.

2. Defense case

In addition to challenging the credibility of prosecution witnesses,

defendant presented an alibi defense. Martha Dravis testified that her daughter

Carla had a number of people, including defendant and Magin Munoz, over to

Dravis’s house for a barbeque the afternoon and evening of October 9, 1994, the

day of the murders. Defendant arrived at the home at 5:00 p.m. as Dravis was

leaving to take her son to the hospital because he had a fever; defendant was still

at the house when Dravis returned home at 9:00 p.m., the time the first victim,

Afable, was killed. Magin Munoz, defendant’s next-door neighbor and a member

5



of the Rockwood gang, testified that he and defendant arrived at the Dravis house

about 5:00 p.m. and did not leave until 10:30 or 11:00 p.m. Munoz said that the

Rockwood and Temple Street gangs had never had problems with each other, but

that there had been trouble between the Rockwood gang and the 18th Street gang,

and that defendant was a member of the Rockwood gang.

B. Penalty Phase

1. Prosecution’s case

At the penalty phase, the prosecution introduced evidence of defendant’s

prior violent conduct, summarized below.

Officer Kevin Burke of the Los Angeles Police Department testified that on

May 27, 1993, he arrested defendant for attacking Tony Schmidt with a small ax.

Schmidt was the manager of a building on West Sunset Boulevard in Los Angeles.

When Schmidt confronted two men spray painting graffiti on the building, one of

them pulled a small ax from his waistband and swung it towards Schmidt, whose

little finger was cut when he raised his hand to protect himself. Schmidt retrieved

a gun from his apartment and confronted the two again. As they ran towards

Schmidt, one of the men raised the ax and the other pulled out a knife. The two

fled when Schmidt fired his gun into the air three times. Five minutes later, one of

the men (defendant) was found hiding in nearby bushes. He had an ax in the

waistband of his pants. Schmidt identified defendant as his attacker.

Victor Can testified that just after midnight on October 9, 1993, he was at a

bus stop on Beverly Boulevard in Los Angeles when four men came up to him.

One of them held a knife to Can’s neck while the others twisted his arms and told

him not to move. They demanded money and threatened to cut Can’s throat if he

did not cooperate. When Los Angeles Police Officer Henry Covarrubias

approached in a police car, the assailants fled. They were apprehended and later

identified by Can. The parties stipulated that as a result of the attack on Can,

6



defendant was convicted of the felony of attempted robbery and placed on

probation subject to conditions that included a jail term of one year.

Gustavo Rosas, a member of the Rascals gang, testified that in the early

morning hours of October 3, 1994, he was asleep at his home at 1022 North

Bonnie Brae in Los Angeles when approximately seven gunshots were fired into

his house. Rosas heard defendant, whom Rosas knew, yell, “Fuck trash cans,” a

derogatory term for the Rascals gang. Rosas gave the police four shell casings he

had found on the ground. The parties stipulated that two of the bullet casings

found by Rosas were fired from the same gun used in the October 9, 1994 murders

of Eugene Afable and Renaldo Hau.

Duk An testified that on the afternoon of December 2, 1994, he was in a

county jail cell with other inmates. When someone took his personal belongings,

An reported the theft to a deputy. When An confronted the person who had taken

his belongings, he was attacked by six men, who kicked and punched him until he

lost consciousness. Later, An identified defendant as one of the six attackers.

Los Angeles County Deputy Sheriff Jackie Spencer testified that on

January 5, 1995, Isaac Gonzales was attacked while in the courthouse lockup by

other inmates. When Gonzales did not identify his attackers, deputy sheriffs

checked the other inmates for physical signs of involvement. Defendant and three

others showed such signs, and defendant was breathing heavily. Immediately after

that testimony by Spencer, the court, outside the jury’s presence, told the attorneys

that it would instruct the jury to disregard that testimony because a jury could not

reasonably find that defendant’s participation in the attack had been proven

beyond a reasonable doubt. Later, during the reading of the jury instructions, the

court did instruct the jury to disregard the testimony concerning Gonzales.

Enrique

Diaz

testified

that in the late evening of March 6 and early morning

hours of March 7, 1997, he was in the gang member section of the county jail

7



while on trial for murder when he was told by other inmates to go to cell No. 9,

which was occupied by defendant and another man. When Diaz denied being a

gang member, both men beat him with their fists and kicked him while holding a

homemade knife to his back. They then lowered Diaz’s boxer shorts and said they

were going to have sex with him. Diaz responded they would have to kill him

first. Defendant attempted to sexually assault Diaz, including trying to force Diaz

to orally copulate him. The beating lasted approximately four hours. Diaz was

then beaten again in his cell by two other men. Diaz identified defendant as one of

the men who had been involved in the beatings. He was hospitalized for three

days. He said he was still having nightmares and headaches, and was suffering

from mental problems. Diaz, who was serving a life sentence for murder when he

testified at defendant’s trial, said he was afraid of what would happen to him as a

“snitch” after going back to prison.

The prosecution provided the following victim impact evidence at the

penalty phase:

Eleno Afable, the father of murder victim Eugene Afable, testified that he

and his son had been very close and that he had been devastated by his son’s

death. Eugene’s mother, Ida Afable, testified that Eugene had been a Boy Scout,

was thoughtful, and was affectionate towards her. Since his death she has known

nothing but sadness. His brothers and sisters stopped going to school for a

semester when Eugene was killed, and they talked about his death regularly.

Maria Feliciana Hau Cruz, widow of murder victim Reynaldo Hau, testified

that they had two children, a nine-year-old daughter and a three-year-old son.

Reynaldo was a kind man, who cared much about his children. After his death

and the loss of his support, she had to find work and as a result had to be separated

from her children.

8



2. Defense case

At the penalty phase, defendant presented the testimony of Nancy Kaser

Boyd, a clinical and forensic psychologist, who had evaluated defendant’s

personality. As a baby, defendant had a serious bacterial infection that caused a

very high fever. That illness, according to Boyd, might explain his mental

deficiency, that is, an intelligence quotient score of 77. Dr. Boyd described

defendant as having had a happy early childhood, but said that he became

depressed when his childhood friend, Joseph Sosa, died from cancer. At age 12,

when his mother was hospitalized for two months with uterine cancer, defendant

helped take care of his five brothers and sisters when his aunt was unable to do so.

During this time he started failing in school. He became defensive and violent

after someone stabbed him with a screwdriver in the alley behind his home. In Dr.

Boyd’s opinion, defendant is socially dysfunctional, a condition that can be

successfully treated.

Maria Sosa testified that while her son Joseph was ill with cancer defendant

often came to see him.

Angelina Romero, defendant’s mother, testified that defendant was born

healthy but developed serious health problems in early childhood. He was a nice

boy, was very good at sports, which he played at the Boys and Girls Club, and he

had a drawer full of trophies. Defendant was very sad when his friend Joseph

died, but he recovered in a few days.

Rosalba Romero, defendant’s sister, testified that family problems

adversely affected defendant. Defendant lost his sports trophies when the family

was evicted and lost everything except the clothes they were wearing. Defendant

was badly hurt by the death of his friend Joseph from cancer. When defendant

was 12 years old he took care of his five siblings while their mother was sick with

cancer.

9



Martin Uitz, defendant’s former neighbor, who had known defendant since

the age of 10, testified that the two played sports together at the Boys and Girls

Club, that defendant was helpful, and that the death of defendant’s friend Joseph

caused defendant to have nightmares. Another childhood friend, Yenissen De

Santiago, testified that he used to play sports with defendant at the Boys and Girls

Club, that defendant was a good boy, that he never saw defendant hurt anyone,

and that defendant stopped coming to the Boys and Girls Club when his friend

Joseph became ill and died.

II. GUILT PHASE ISSUES

A. Sufficiency of Evidence

Defendant

contends

that his conviction for the murder of Eugene Afable

violated his state and federal constitutional rights to due process because the

evidence was insufficient. We reject the contention.

1. Standard of review

“ ‘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. Tafoya (2007) 42 Cal.4th 147,

170.) The pertinent inquiry is “whether, after viewing the evidence in the light

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

essential elements of the crime beyond a reasonable doubt.” (People v. Rodriguez

(1999) 20 Cal.4th 1, 11.)

2. Identification

Defendant contends that the eyewitness testimony identifying him as the

killer of Eugene Afable does nothing more than raise a suspicion of his

involvement in the crime. We disagree.

10



Defendant points out that Magallanes, who was in the video store with

Afable at the time of the shooting, said that he only got a glimpse of the fleeing

shooter, that he described defendant’s picture in the six-pack photographic lineup

as being “close” and “similar” to but “heavier” than the shooter, and that his in-

court identification of defendant was, in his words, “90 percent” certain. As to

eyewitness Callejas, who was inside the laundromat next door to the video store,

he testified that after hearing a gunshot some 21 feet away he then saw a man run

out of the video store, that he selected defendant’s picture from the six-pack

photographic lineup based on “some similarities with the person at the scene,” and

that he did not make an in-court identification. Defendant also observes that

Magallanes had described the shooter as having a ponytail bound with a rubber

band, while Callejas said the ponytail was unbound.

Next, defendant notes that no physical evidence such as fingerprints or

DNA connected him to the scenes of the two killings. And the fact that the same

gun was used to kill Afable and Hau, defendant argues, does not necessarily show

that the same person used the gun in both killings. According to defendant, police

recovery from defendant’s bedroom of several rounds of ammunition of the same

caliber that had been fired into the two murder victims was insufficient to link him

to the murders because the ammunition was not unique to the gun used in the

killings and because someone else — his brother — also occupied the same

bedroom.

Defendant also asserts that the shooter did not act alone. In support,

defendant points to eyewitness Callejas’s testimony that when he heard the

gunshot and saw the person come out of the video store where Afable was shot

and killed, he also heard a car’s engine start and saw a small car drive away. And

defendant observes that two men, one wearing a Halloween mask and the other a

baseball cap, were there when Hau was killed.

11



Viewing the record as a whole and presuming the existence of every fact

the trier of fact could reasonably deduce from the evidence (People v. Kraft (2000)

23 Cal.4th 978, 1053), we conclude that evidence that is reasonable, credible, and

of solid value supports the jury’s finding that defendant shot and killed Afable.

Eyewitnesses Magallanes and Callejas identified defendant as having a ponytail

and as the shooter of Afable the morning after the shooting. The same gun was

used in the killings of Afable and Hau, and defendant was identified by Cruz and

Piceno as the killer of Hau. Gabriel Cruz’s Emit watch and ammunition consistent

with that used in the Afable and Hau killings were recovered from defendant’s

bedroom. Even if the evidence could be reconciled with a different finding, that

does not justify a conclusion that the jury’s verdict was not supported by the

evidence, nor does it warrant a reversal. (Id., at p. 1054.)

3. Premeditation and deliberation

Defendant contends the evidence is insufficient to support the jury’s finding

that his killing of Afable was premeditated and deliberate, thus constituting

murder in the first degree. We disagree.

“The test on appeal is whether a rational juror could, on the evidence

presented, find the essential elements of the crime — here including premeditation

and deliberation — beyond a reasonable doubt.” (People v. Stewart (2004) 33

Cal.4th 425, 495.) A first degree murder conviction will be upheld when there is

extremely strong evidence of planning, or when there is evidence of motive with

evidence of either planning or manner. (People v. Anderson (1968) 70 Cal.2d 15,

27, see People v. Thomas (1992) 2 Cal.4th 489, 517 [Anderson provides

framework or guidelines typically used to evaluate evidence of premeditation and

deliberation].)

Here, there is evidence from which the jury could infer planning.

Defendant brought a gun to the video store where, without any warning or

12



apparent awareness of the impending attack, Afable was shot in the back of the

head. And there was evidence of motive. Detective Balderamma, an expert on

street gangs, testified that at the time of Afable’s murder the Temple and

Rockwood gangs were rival gangs; that Afable, when killed, was wearing a jersey

with the letters “T-S-T,” which signified membership in the Temple gang; and that

killing a member of a rival gang would elevate the killer’s status within his own

gang and could lead to becoming a “shot caller” or leader in the gang. The

testimony by defense witness Magin Munoz that defendant was a member of the

Rockwood gang and police recovery from defendant’s bedroom of a baseball cap

with the word “Rockwood” on it support the conclusion that defendant was a

member of the Rockwood gang. And the manner in which Afable was killed is

indicative of premeditation and deliberation. Afable was killed by a single

gunshot fired from a gun placed against his head. We have held that this

execution-style manner of killing supports a finding of premeditation and

deliberation when, as here, there is no indication of a struggle. (See People v.

Stewart, supra, 33 Cal.4th at p. 495; People v. Caro (1988) 46 Cal.3d 1035, 1050;

People v. Bloyd (1987) 43 Cal.3d 333, 348.)

B. Failure to Instruct on Second Degree Murder

Defendant contends that with respect to the killing of Hau the trial court

should on its own initiative have instructed the jury on second degree murder. We

disagree.

In count two of the information the prosecution alleged that defendant “did

unlawfully, and with malice aforethought murder REYNALDO HAU” and it

alleged the special circumstances of multiple murder (§ 190.2 subd. (a)(3)) and

robbery murder (§ 190.2 subd. (a)(17)).

During discussions between the trial court and counsel on guilt phase jury

instructions, the court stated that as to count two there were two prosecution

13



theories — express malice murder and felony murder — and the court asked the

prosecutor whether he was going to proceed with both theories or just the theory

of felony murder. When the prosecutor replied he would proceed with both

theories, the court said: “If you go felony murder only, he is guilty of first degree

murder or not guilty. [¶] If you throw in that additional express malice theory in

count 2, then the jury must be given the option, obviously, to convict him of

murder under the second degree under that theory.” The court added that “the

evidence will support either or both of those theories.” Later in the discussions,

the prosecutor said that he would proceed on count two only on the robbery-

murder theory. When defense counsel responded that this was acceptable, the

court said, “Count 2, felony murder only then.”

Murder is an “unlawful killing of a human being . . . with malice

aforethought.” (§ 187, subd. (a).) A killing that is “willful, deliberate, and

premeditated” (§ 189) is murder of the first degree. Killings in the commission of

certain specified felonies are also murder of the first degree (ibid.) under what is

generally referred to as the felony murder rule, as are murders in certain other

circumstances enumerated in section 189 but not pertinent here. “All other

murders are of the second degree.” (Ibid.)

Defendant argues that the trial court should have instructed the jury on

second degree murder as a lesser included offense. Citing Beck v. Alabama (1980)
447 U.S. 625, he asserts that the trial court’s failure to so instruct violated his

constitutional right to due process and the Eighth Amendment to the federal

Constitution.

We have not previously determined whether second degree murder is a

lesser included offense when, as here, the prosecution proceeds solely on the

theory that the killing is first degree murder under the felony-murder rule and does

not argue that the killing is first degree murder because it is willful, deliberate, and

14



premeditated. (People v. Valdez (2004) 32 Cal.4th 73, 114, fn. 17.) We need not

decide this question here because, as we will explain, the evidence in this case did

not support an instruction on second degree murder.

A defendant’s constitutional right to have the jury determine every material

issue presented includes the obligation of a trial court to instruct the jury on the

general principles of law relevant to the issues raised by the evidence. (People v.

Dominguez (2006) 39 Cal.4th 1141, 1158; People v. Valdez, supra, 32 Cal.4th at

p. 115.) Thus, the trial court must give “ ‘ “instructions on lesser included

offenses when the evidence raises a question as to whether all of the elements of

the charged offense were present [citation], but not when there is no evidence that

the offense was less than that charged.” ’ ” (People v. Valdez, supra, 32 Cal.4th at

p. 115, quoting People v. Breverman (1998) 19 Cal.4th 142, 154.) “As our prior

decisions explain, the existence of ‘any evidence, no matter how weak’ will not

justify instructions on a lesser included offense, but such instructions are required

whenever evidence that the defendant is guilty only of the lesser offense is

‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial

evidence’ in this context is ‘ “evidence from which a jury composed of reasonable

[persons] could . . . conclude[]” ’ that the lesser offense, but not the greater, was

committed.” (People v. Breverman, supra, 19 Cal.4th at p. 162.)

In this case, when defendant approached the five men, including murder

victim Hau, he demanded that they give him what they had. Cruz gave defendant

his watch. When Piceno told defendant to take whatever defendant wanted,

defendant used his gun to hit Piceno in the face, breaking his nose, and then shot

him in the face. (Piceno survived.) While Hau was still sitting in the car,

defendant took a Citizen watch from Hau, who minutes later was shot dead. This

evidence overwhelmingly shows that defendant killed Hau while committing the

felony of robbery. There was no evidence from which the jury could conclude

15



that defendant killed Reynaldo Hau with malice, but without premeditation or

deliberation, that is, second degree express-malice murder, and not as part of a

robbery.

Defendant

contends

the

jury could have found that the evidence showed

beyond a reasonable doubt that defendant killed Reynaldo Hau and took his watch,

while simultaneously finding that (1) the evidence did not show beyond a

reasonable doubt that defendant initiated the encounter that led to Hau’s death by

demanding that Hau and his friends give defendant what they had, and (2) the

evidence did not show beyond a reasonable doubt that defendant took Hau’s watch

before shooting him. Under this view of the facts, defendant argues, the jury

could reasonably have found that defendant did not intend to take Hau’s property

until after he had shot Hau, and therefore that the killing did not occur in the

commission of a robbery. Thus, he contends, the jury could have found him not

guilty of first degree murder under the felony-murder rule (because the killing did

not occur in the commission of a robbery) but guilty of second degree murder

(because the killing of Hau was an unlawful killing with malice aforethought).

Thus, he asserts, the trial court should have instructed the jury on the lesser

included offense of second degree murder.

But that scenario is so implausible and unlikely on these facts that it would

not have merited the jury’s consideration. The only evidence at trial was that the

killer accosted the victims, demanded property, and fired the fatal shot after taking

Reynaldo Hau’s watch. The defense did not dispute that Hau’s death occurred

during a robbery, and argued instead that defendant was not the killer. As a result,

here, as in People v. Valdez, supra, 32 Cal.4th at page 117, “ ‘[a]ll the evidence

points to robbery as the motive for the killing[],’ ” and “a jury finding of second

degree murder . . . would have been based on pure speculation.” Thus, as in

Valdez, the trial court did not err in not instructing the jury on second degree

16



murder as a lesser included offense. When, as here, “there was no substantial

evidence supporting an instruction on second degree murder, the high court’s

decision in Beck [v. Alabama, supra, 447 U.S. 625] is not implicated.” (People v.

Valdez, supra, 32 Cal.4th at p. 118.)

In arguing to the contrary, defendant points to the trial court’s comment

that there was substantial evidence from which the jury could find defendant guilty

of first degree murder either because the killing occurred in the course of a

robbery or because it was a premeditated, deliberate killing. Defendant attempts

to characterize this comment as expressing the view that the evidence could

support a jury finding that the killing did not occur in the course of the robbery,

and thus that there was evidence supporting an instruction on second degree

murder. This mischaracterizes the trial court’s comment; the court never said

there was evidence that the killing did not occur in the course of a robbery. In any

event, it is the evidence presented at trial, not the comments of the trial court, that

determines whether a defendant is entitled to an instruction on a lesser included

offense. (See People v. Valdez, supra, 32 Cal.4th at p. 116.)

C. Discussions Between Interpreter and Witnesses

Defendant

contends

that unreported discussions at trial between the

interpreters and three witnesses violated his right to confrontation under the Sixth

Amendment to the United States Constitution, his right to due process under the

federal Constitution, his state constitutional right to an interpreter, his right under

California Rules of Court, rule 2.890(b) to a complete and accurate interpretation

of everything that was said during the testimony of a witness, and his due process

right to a record that is sufficient to permit adequate and effective appellate

review.

17



1. Background



Witnesses Gabriel Hau Cruz, Francisco Piceno, and Victor Can testified in

Spanish. Their testimony was translated into English by court-approved

interpreters. The record reflects the following exchanges during that testimony.

a. Gabriel Hau Cruz

i. Prosecution’s direct examination

“[Prosecutor]: Okay. Now when he first came up, Gabriel, we are just

talking about the first part of the incident. [¶] Okay? [¶] He put the gun to you

and he took your watch and put the gun to Luis. [¶] Did you see him take

property from anyone else at the beginning of the incident?

“[Witness]: Well, I only saw — [¶] I didn’t see that he took anything

from him. But only — [¶] I saw when I —

“The Court: Sir —

“The Witness: When I was asked if they had taken something from my

brother. My brother-in-law.

“The Court: Sir, I want you to do me a favor here. [¶] You will be out of

here a lot quicker if you listen carefully to the question and simply answer the

question that is asked. [¶] They will get this entire story out little by little, but just

listen to the question carefully and take your time. [¶] I think the last question

was at any time during this incident did you see property taken from anyone other

than yourself. [¶] Yes or no.

“The Witness: No.

“The Court: All right. [¶] Next question.

“[Prosecutor]: At some point after he came up and tried to rob the group

that you were with, Gabriel, did he drop the gun?

“[Witness]

Yes.

“Q What was he doing with the gun right before he dropped the gun?

18



“The Interpreter: Your honor, let me inquire.

“The Court: Do so, please.

“The Witness: He only hit my brother with the gun.”

ii. Defense cross-examination

“[Defense counsel]: Now who was the person that he asked for?” [¶] Do

you remember the name?

“[Witness]: A He only asked for Eftie (phonetic).

“Q Can you spell that for us?

“A I do not know how you write that.

“Mr. Clark [defense counsel]: May I ask the interpreter to give me a

phonetic spelling?

“The Court: Can you ask him if he is giving initials or giving a name.

(The interpreter conferred with the witness.)

“The witness: Only a name. Eftie”

b. Francisco Piceno

i. Prosecution’s direct examination

“[Prosecutor] Now at some point when you were at the hospital, did the

police come out and interview you?

“[Witness]: Yes.

“Q Do you remember them showing you different photographs?

“A Yes.

“Q And did you make a selection of one person in one of the photographs

that looked familiar?

“A Yes.

“Q And what do you remember telling the police about the photo that you

picked out?

“A That it was the first time I see him —

19



“The Interpreter: May I inquire, your honor?

“The Court: Yes.

(The Interpreter conferred with the Witness.)

“The Witness: That it was my first time that I seen that picture up to that

moment.

“[Prosecutor]: Now when you looked at that photograph, did you tell the

police: [¶] That’s definitely him, or did you tell them: [¶] That looks similar to

him, [¶] or did you tell them something else?

“[Witness] I said it looked like him.”

ii. Defense cross-examination

“[Defense counsel]: How tall was the gunman, approximately?

“[Witness]: A About one and seven meters.

“Q One and seven tenths meters?

“A One meter, seven centimeters.

“The Court: Are you sure that is what he said, Mr. Interpreter?

(The Interpreter conferred with the witness.)

“[Witness]: I don’t know exactly the measurement.

“The Court: I know. I just wanted to know what you said. [¶] Mr. Clark

[defense counsel] said 1.7 meters and the interpreter said one meter and seven

centimeters. [¶] Which was it if either?

“The Witness: Since I am 165 —

“The Interpreter: I’m sorry.

“The Witness: Since I am 175, then I would say he was about 170.

“The Court: Are you talking weight or height?

“The Witness: Height.

“The Court: Height?

“The Witness: Yes.

20



“The Court: You are talking centimeters then, I take it.

“The Witness: yes. [¶] I am talking about meters and centimeters.”

c. Victor Can

The record reflects the following during the prosecution’s penalty phase

direct examination of Victor Can concerning prior violent conduct of defendant in

being involved in an assault on Can with a knife:

“[Prosecutor]: And what did you do as a result of this group surrounding

you and at knifepoint demanding your money?

“[Witness]: Well, I told them that I didn’t have anything.

“Q Okay. [¶] How afraid were you when they were doing this to you?

“A Well, the truth is a lot. [¶] I didn’t know what to do. I was there alone

at the bus stop.

“Q And at some point, it is your testimony, that you see the police driving

by?

“A Yes.

“Q And that is still while you have the knife to your throat?

“A Yes. And I said: [¶] And if I have to die, I would rather die here like

this. [¶] So then I got up and the officer saw me.

“Q And what happens at that point?

“A So then the officer arrived and two of them ran this way and the other

two ran this way and then the officer came and asked me what happened

(indicating).

“Q And at some point after you told the officer what happened, did the

officer catch some of the people involved?

“A Yes.

“Q And over the next 10 or 15 minutes, did various police officers bring

four of the five guys back to you so you could get a look at them?

21



“A Yes. Because the officer put me in his patrol car.

“Q All right. [¶] Did you identify those three, recognize and indentify

those three, as three of the four robbers?

“A Yes.

“Q Now, Mr. Can, I don’t want you to guess, but do you remember today

what those three looked like?

“The Interpreter: Your honor, may I ask for a clarification?

“The Court: Yes.

(Interpreter spoke with witness.)

“[Witness]: Since I came in here, I saw him right from here as if I were in

front of him right now. [¶] Yes. Uh-huh.

“[Prosecutor]: Again, I am not asking you to guess, but do you recognize

anybody in court today as being one of the three that the police caught?

“A Well, if I see his face, I do.

“Q All right. [¶] Can you say whether the gentleman in the orange jump

suit at the end of the table is one of the three or not? [¶] Again, I don’t want you

to guess, but do you remember the face well enough to tell me if he was one of the

three?

“A Well, the truth is —

“The Interpreter: Your honor, may I inquire?

“The Court: Yes.

(The interpreter conferred with the witness.)

“[Witness]: Well the truth is, the way he is wearing his hair now, it’s not

the way he had his hair then.

“[Prosecutor]: Okay.

22



“The Court: Indicating the defendant for the record. [¶] The record should

reflect that the defendant has had a haircut as well since we have come back in

court having shaved it over the weekend.

“[Prosecutor]: Mr. Can, what did you do after the police took those three

suspects to jail for robbing you?

“[Witness]: They took me to the police station on Temple and Rampart.

And then —

“The Interpreter: You honor, may I inquire.

“The Court: Yes.

(The interpreter conferred with the witness.)

“The Witness: Then the officer at 1:00 in the morning took me to work.”

2. Discussion

In a criminal proceeding, an interpreter may perform three interrelated but

distinct roles: (1) as a “witness interpreter,” to enable questioning of witnesses

who do not speak English; (2) as a “proceedings interpreter,” to assist a non-

English-speaking defendant to understand the exchanges at trial among attorneys,

witnesses, and the court; and (3) as a “defense interpreter,” to enable a non-

English-speaking defendant to communicate with the defendant’s English-

speaking attorney. (People v. Aguilar (1984) 35 Cal.3d 785, 790 (Aguilar).)

The right to an interpreter has its underpinnings in a number of state and

federal constitutional rights. These include a defendant’s rights to due process, to

confrontation, to effective assistance of counsel, and to be present at trial. (People

v. Rodriguez (1986) 42 Cal.3d 1005, 1011.) The California Constitution provides

that a criminal defendant who does not understand English “has a right to an

interpreter throughout the proceedings.” (Cal. Const., art I, § 14.) In addition,

California Rules of Court, rule 2.890(b) (former rule 984.4(b)) states that an

interpreter must interpret accurately, without embellishing, omitting, or editing,

23



and when “interpreting for a witness, the interpreter must interpret everything that

is said during the witness’s testimony.” Defendant here asserts that the unreported

exchanges between the interpreters and the three witnesses quoted above violated

the rights just mentioned and compels reversal of the judgment against him.

The Attorney General argues that defendant’s failure to object at trial

precludes him from now asserting a denial of his right to the assistance of an

interpreter. Defendant, citing Aguilar, supra, 35 Cal.3d 785, maintains that the

failure to object does not operate as a waiver of his right.

Defendant

correctly

points out that in Aguilar, supra, 35 Cal.3d at page

794, this court held that a defense counsel’s acquiescence would not result in a

defendant’s waiver of the state Constitution’s provision entitling a non-English-

speaking defendant “to an interpreter throughout the proceedings.” (Cal. Const.,

art. 1, § 14.) Such a waiver, this court said, would require an affirmative showing

in the record that the defendant personally waived the right, and that the defendant

made the waiver intelligently and voluntarily. Aguilar, however, is not controlling

here. Unlike Aguilar, this case does not involve the state constitutional right of a

non-English-speaking criminal defendant to be provided with a “proceedings

interpreter;” rather, it concerns alleged error involving “witness interpreters.”

The Attorney General contends that defendant’s failure to object presents

an issue of forfeiture, not waiver. As we have observed previously, forfeiture

results from the failure to invoke a right, while waiver denotes an express

relinquishment of a known right; the two are not the same. (In re Sheena K.

(2007) 40 Cal.4th 875, 880-881 & fn. 1.)

“ ‘[A]s a general rule, “the failure to object to errors committed at trial

relieves the reviewing court of the obligation to consider those errors on appeal.”

[Citations.] This applies to claims based on statutory violations, as well as claims

based on violations of fundamental constitutional rights. [Citations.]’ ” (People v.

24



Kennedy (2005) 36 Cal.4th 595, 612.) The reason for this rule is to allow errors to

be corrected by the trial court and to prevent gamesmanship by the defense. (In re

Sheena K., supra, 40 Cal.4th at p. 881; In re Seaton (2004) 34 Cal.4th 193, 198-

199.) We see no reason why the general rule of forfeiture should not be applied to

violations of rules of court or to claims of error relating to interpreters for the

witnesses. Here, each of the claimed violations of defendant’s rights could easily

have been addressed and corrected in the trial court had defendant objected. His

failure to do so precludes him from now asserting errors relating to the witness

interpreters. (See People v. Aranda (1986) 186 Cal.App.3d 230, 237 [failure to

object to competency of interpreter during trial precludes issue from being raised

on appeal].)

We likewise reject defendant’s claim that because of the unreported

discussions between the interpreters and witnesses, the record is insufficient to

permit adequate and effective appellate review. The transcripts of the reported

exchanges, which we quoted earlier, were sufficient to permit full review of what

occurred at trial.

D. Gang Association

Defendant

contends

that trial court comments during voir dire referring to

evidence of gang affiliation and instructions given the jury concerning gang

affiliation violated his state and federal constitutional rights to due process, trial by

jury, and a fair trial. We disagree.

During voir dire the trial court twice stated that if gang evidence was

introduced such evidence could be used only to show intent, motive, or identity

and not as evidence of guilt.2 At the guilt phase, the jury was instructed on the use


2

This court addressed the admissibility of evidence of gang membership in

People v. Hernandez (2004) 33 Cal.4th 1040. We there noted: “In cases not


(footnote continued on next page)

25



of gang evidence and on motive. As to the use of gang evidence, it was told:

“Gang membership evidence has been introduced in this case for the limited

purpose of proving motive and intent to commit the crime charged. [¶] Such

evidence may not be used for any other purpose, such as to assume a pre-

disposition of the defendant to commit the crime.” As to motive, the jury was

instructed: “Motive is not an element of the crime charged and need not be

shown. However, you may consider motive or lack of motive as a circumstance in

this case. Presence of motive may tend to establish the defendant is guilty.

Absence of motive may tend to show that the defendant is not guilty.”



Defendant argues that advising the jury that gang affiliation may be

considered to prove motive followed by instructing the jury that the presence of

motive may tend to establish guilt was improper because there was no substantial,

credible evidence that he was associated with a gang when the crimes were

committed or that the offenses were gang related. We disagree.



Defense alibi witness Magin Munoz, a member of the Rockwood gang,

testified on cross-examination by the prosecution that defendant was a member of

the Rockwood gang and that his gang name was Steam. A baseball cap bearing

the name “Rockwood” was found in defendant’s bedroom. This evidence is



(footnote continued from previous page)

involving the gang enhancement, we have held that evidence of gang membership
is potentially prejudicial and should not be admitted if its probative value is
minimal. [Citation.] But evidence of gang membership is often relevant to, and
admissible regarding, the charged offense. Evidence of the defendant’s gang
affiliation — including evidence of the gang’s territory, membership, signs,
symbols, beliefs and practices, criminal enterprises, rivalries, and the like — can
help prove identity, motive, modus operandi, specific intent, means of applying
force or fear, or other issues pertinent to guilt of the charged crime.” (Id. at
p. 1049.)

26



sufficient to support a finding that defendant was associated with the Rockwood

gang when the crimes in this case were committed. When considered with that

evidence, defendant’s acquisition of gang-related tattoos after the crimes were

committed and while he was incarcerated provides additional evidence of

defendant’s gang affiliation. To prove that the crimes were gang related, the

prosecution presented gang expert testimony that defendant’s Rockwood gang and

the Temple gang to which murder victim Afable belonged were enemies and that a

gang member could elevate his standing within his own gang by committing

crimes in a rival gang’s territory. Here, Afable was killed in Temple gang territory

and Hau was killed outside of Rockwood gang territory in an area that a

Rockwood gang member would consider enemy territory. (See People v.

Gardeley (1996) 14 Cal.4th 605, 617-620.) We consider this sufficient evidence

of a gang-related connection to the crimes.

E. Instruction on First or Second Degree Murder

Defendant faults the trial court for instructing the jury: “If you are

convinced beyond a reasonable doubt and unanimously agree that the crime of

murder has been committed by the defendant, but you unanimously agree that you

have a reasonable doubt whether the murder was of the first or the second degree,

you must give the defendant the benefit of the doubt and return a verdict fixing the

murder as of the second degree.” He argues that requiring the jury to first

unanimously agree to acquit a defendant of a greater charge before convicting the

defendant of a lesser charge violated his state and federal constitutional rights to

due process and a jury trial because it precluded the jury from fully considering

lesser included offenses. As defendant concedes, we have in the past rejected this

argument. (People v. Fields (1996) 13 Cal.4th 289, 309.) We see no reason to

revisit the issue here. (People v. Cox (2003) 30 Cal.4th 916, 967.)

27



F. Record Correction

On February 24, 1998, the trial court instructed the jury at the guilt phase.

The reporter’s transcript of that proceeding indicates that in the course of giving

the jury instruction on special circumstances the court stated: “You must not

decide separately each special circumstance alleged in this case. If you cannot

agree as to both of the special circumstances but can agree as to one, you must

make your finding as to the one upon which you do agree.” (Italics added.) The

jury was also given written copies of the instructions for its use during

deliberations. Sometime after the trial, however, those written instructions were

lost, and they are not part of the record before us.

On November 1, 2002, the trial court held a record certification proceeding.

The same judge who had presided at trial presided at the certification proceeding,

which was attended by the prosecutor, the trial defense attorney, the appellate

defense attorney, and a deputy attorney general. Among the court’s proposed

corrections to the record, which were faxed to counsel before the proceeding, was

to strike the word “not” from the sentence in the reporter’s transcript that read,

“You must not decide separately each special circumstance alleged in this case.”

After appellate defense counsel objected to this proposed change in the

reporter’s transcript, the trial prosecutor said that he would “generally follow

along” the reading of instructions and that “if I overheard a jury instruction which

I believe was incorrectly being read . . . it would be my practice to approach and

ask the court to correct that.” Then, after having quoted the statement at issue

here, the trial prosecutor said he did not ask the court for any correction. The

court commented: “I’m aware of it. It’s an absolute mistake by the court reporter,

as clear as it can be, as are these others.” The court went on to say: “I would

never read it that way. I never did. The written instruction, I guarantee, didn’t say

that. That’s why I’m correcting it because it’s erroneous and it is not appropriate

28



to have an erroneous record go up. [¶] I’m as sure of that as I am that I’m sitting

here breathing today.” After the court noted that people do misspeak on occasion,

“but I didn’t on that occasion,” appellate defense counsel observed that “this isn’t

a grammatical error.” The court responded: “It is an error nonetheless, counsel.

That’s an error and the court is about to correct it over your objection.” The court

expressed its “certainty that these are errors of transcription,” and it had the record

reflect that patterned jury instructions were used in this case.

Defendant contends the trial court’s correction of the record was based on

speculation violating his right to due process. We disagree. As defendant

concedes, a trial court has a duty to correct the record. (Williams v. Davis (1946)

27 Cal.2d 746, 753.) A trial judge’s own memory is among the considerations that

may be taken into account in making corrections to the trial record. (See Marks v.

Superior Court (2002) 27 Cal.4th 176, 196.) Here, as discussed above, the judge

was certain that the court reporter had made an error in transcription, and the

judge’s correction reflected the language of the standard jury instruction on special

circumstances. (CALJIC No. 8.80.1 (1996 ed.).)

Likewise misplaced is defendant’s contention that the trial judge’s

correction of the trial record was invalid because the judge bypassed proper record

settlement procedures. In support, defendant cites Marks v. Superior Court, supra,

27 Cal.4th 176. That case involved the question of whether the proper procedures

were followed in the preparation of a settled statement, which is used when a

portion of the proceedings was not reported or cannot be transcribed. (Id. at

pp. 192-193; Cal. Rules of Court, rules 8.130(g), 8.137; id., former rule 7.) At

issue here was the making of a correction to a transcript of trial proceedings (Cal.

Rules of Court, rule 8.619), not an effort, as in Marks, to fill in gaps in a record

through a settled statement. Also, in Marks the trial judge effectively eliminated

the parties’ participation in the process by making the judge’s own settled

29



statement that was not subject to “negotiations.” (27 Cal.4th at pp. 194-195.) By

contrast, although here defendant and the court reporter were not at the record

correction proceeding, present were the judge who had presided at trial, the trial

attorneys for both the defense and the prosecution, as well as the appellate

attorneys for both parties, and they participated or had an opportunity to

participate in the process. We also reject defendant’s assertion that under People

v. Lucas (1995) 12 Cal.4th 415, 468-469, we must remand the matter for

additional proceedings to settle the record. In Lucas there was a remand because

there had been no proceeding in the trial court to correct the record; here there was

such a proceeding.

G. Jury Instructions

Defendant contends the trial court erred in giving four standard jury

instructions that, according to defendant, had the effect of lessening the

prosecution’s burden of proof in violation of his state and federal constitutional

rights to due process, to a jury trial, to present a defense, to a unanimous jury

verdict, and to a reliable verdict. Each of the challenged instructions (CALJIC

Nos. 2.01 [sufficiency of circumstantial evidence], 2.02 [sufficiency of

circumstantial evidence to prove specific intent or mental state], 8.83 [special

circumstance — sufficiency of circumstantial evidence — generally], and 8.83.1

[special circumstance — sufficiency of circumstantial evidence to prove required

mental state]) told the jury that if one interpretation of circumstantial evidence

appeared reasonable and another interpretation unreasonable, the jury must accept

the reasonable interpretation. Defendant argues that because the instructions

contained the language “appears to be reasonable,” the instructions allowed the

jury to find guilt based on proof less than beyond a reasonable doubt.

As defendant recognizes, we have in the past rejected this argument.

(People v. Maury (2003) 30 Cal.4th 342, 428; People v. Hughes (2002) 27 Cal.4th

30



287, 346-347.) The instruction does not, as defendant tries to portray it, simply

tell the jury that it must accept a reasonable interpretation. It tells the jury that it

must accept a reasonable interpretation when the only other interpretation

available is unreasonable. And the jury was instructed through CALJIC No. 2.01

that if there were two reasonable interpretations of the evidence, the jury must

adopt the interpretation favorable to the defendant. As we stated in People v.

Crittenden (1994) 9 Cal.4th 83, 144, in rejecting this same argument: “When the

questioned phrase is read in context, not only with the remaining language within

each instruction but also together with related instructions, including the

reasonable doubt instruction, it is clear that the jury was required only to reject

unreasonable interpretations of the evidence and to accept reasonable

interpretation that was consistent with the evidence.”

Nor did the prosecutor’s closing argument misuse the language of the

instruction to lessen the prosecution’s burden of proof beyond a reasonable doubt.

In closing argument the prosecutor explained that the reasonable doubt standard

asks jurors to “decide what is reasonable to believe versus unreasonable to

believe” and to “accept the reasonable and reject the unreasonable.” Nothing in

the prosecutor’s explanation lessened the prosecution’s burden of proof. The

prosecution must prove the case beyond a reasonable doubt, not beyond an

unreasonable doubt.

Also unpersuasive is defendant’s argument that the prosecution’s burden of

proof was lessened by language in CALJIC No. 2.01, which told the jury that if

there were two reasonable interpretations of the circumstantial evidence, one

pointing to guilt and the other to innocence, the jury must accept the one pointing

to innocence. Contrary to defendant’s contention, this instruction does not require

defendant to come forth with evidence and thereby shift the burden of proof from

the prosecution to the defense. It is true that if a defendant cannot explain or

31



counter incriminating evidence adduced by the prosecution, the defendant may be

found guilty of the crime charged, but that is a consequence of the evidence

pertaining to the defendant’s wrongdoing, not an error in the jury instructions.

Likewise without merit is defendant’s challenge to the instruction on a

defendant’s right to rely on the state of the evidence. That instruction, CALJIC

No. 2.61, as given states: “In deciding whether or not to testify, the defendant

may choose to rely on the state of the evidence and upon the failure, if any, of the

People to prove beyond a reasonable doubt every essential element of the charge

against him. No lack of testimony on defendant’s part will make up for a failure

of proof by the People so as to support a finding against him on any such essential

element.” (Italics added.) We reject defendant’s argument that the instruction’s

use of the word “every,” as italicized above, permits conviction of a defendant if

the jury finds that the prosecution proved beyond a reasonable doubt some but not

all of the elements of the charged offense. That the instruction correctly tells the

jury that the prosecution must prove “every” essential element of the charged

crime is clear from the language appearing thereafter, stating that a defendant’s

failure to testify cannot make up for the prosecution’s failure of proof “on any

such essential element.” We conclude there is no reasonable likelihood that the

jury misconstrued or misapplied the instruction at issue.

H. Defendant’s Absence During Response to Jury Question

Shortly before noon on February 24, 1998, the jury retired to deliberate.

The trial court then advised defendant that he had “a right to be present every time

we do anything, if we answer a question or give readback or whatever.” The court

asked defendant if he would allow his counsel to “exercise that right” on

defendant’s behalf and to determine when there would be a need for defendant to

be brought back into the courtroom. Defendant agreed.

32



The next morning, the jury sent this note: “What time was the suspect

identified by the first two witnesses? [¶] Immediately after, that evening or the

next morning?” The court and counsel for both parties discussed the question and

agreed to respond that the suspect was identified the next morning. When the

court asked defense counsel whether defendant needed to be present when the

answer was given to the jury, counsel responded, “If it does not go any farther

than that, I would say no.”

The following colloquy then occurred in the jury’s presence but outside

defendant’s presence:

“[The Court] We got your note. Let me read it.

“[¶] Once again, counsel and the court discussed it.

“[¶] Your question is: what time was the suspect identified by the first two

witnesses immediately after? That evening or the next morning?

“[¶] Signed by the foreperson dated February 24th.

“[¶] When you say first two witnesses, you mean the first two civilian

witnesses from over at the video incident?

“[Juror No. 8] In the first incident. Yes.

“[The Court] All right. Counsel has conferred and the answer is the next

morning. Am I correct, gentlemen?

“[Prosecutor]

Yes.

“[Defense counsel] Yes.

“[The Court] The next morning.

“[Juror No. 8] Okay. The question again, is what time the next morning.

“The concern is about the lapse of time in questioning the witnesses and

whether there was maybe a problem in recalling the events as they occurred

because there was so much time involved, as I understand the question.

“There was a memory lapse question.

33



“[The Court] I don’t know — I don’t want to know what you guys are

doing. If you have another question, put it in writing and we will do our best to

answer it. We have answered this one. If you have another one, fill out a form

and I will keep counsel standing by here. Let’s do it that way rather than just ad

hoc.

“[Juror No. 8] Okay.”

The trial court then granted Juror No. 8’s request to allow the jury 10

minutes for further discussion. Fourteen minutes later, the jury returned to the

courtroom. When the court asked Juror No. 8, “What do you need?,” the juror

replied that the jury had no further questions and that counsel did not have to be

kept waiting any longer. The jury then resumed deliberations.

Defendant

contends

the

colloquy between the trial judge and Juror No. 8

violated his federal and state constitutional rights to confrontation and due process

and his statutory right under section 977 to be present during all critical stages of

the trial. As to his constitutional right, he argues the exchange between the judge

and the juror exceeded his waiver of the right to be present. As to his statutory

right, defendant asserts the waiver was invalid because it was not in writing.

“A criminal defendant charged with a felony has a due process right under

the Fifth and Fourteenth Amendments to the United States Constitution, as well as

a right to confrontation under the Sixth Amendment, to be present at all critical

stages of the trial. [Citation.] A competent defendant may waive that right,

however. [Citation.] Neither the constitutional right to confrontation nor the right

to due process precludes waiver of a defendant’s right to be present at a critical

stage of a capital trial. [Citation.] Section 977 permits a felony defendant, with

leave of court, to waive his or her presence at all stages of the trial other than

arraignment, plea, presentation of evidence, and sentencing. Section 977 requires,

34



however, that the defendant personally execute, in open court, a written waiver of

the right to be present.” (People v. Coddington (2000) 23 Cal.4th 529, 629.)

Because defendant here did not personally execute a written waiver, his

statutory right under section 977, subdivision (b)(1) to be present was violated.

We need not, however, decide whether Juror No. 8’s statements made in court

when defendant was not present exceeded the scope of defendant’s waiver of his

presence for purposes of his constitutional rights. Under any standard of harmless

error, the violation of the statutory right and any violation of the constitutional

rights did not prejudice defendant. As mentioned earlier, the trial court did not

respond to Juror No. 8’s comments beyond advising the juror that any further

questions by the jury should be put in writing for consideration by the court and

counsel. After a brief meeting, the jury returned to the courtroom and announced

it had no further questions. Under the circumstances, we conclude beyond a

reasonable doubt that there was no prejudice to defendant when in his absence the

trial court, in the presence of counsel, responded to a question from the jury.

I. Trial Court’s Statement to Prospective Juror

During voir dire, a prospective juror told the trial court that in a different

case in which the prospective juror had served as a juror, another juror had

considered “things other than the evidence” and that no one informed the court of

the juror’s actions. This prompted the court in this case to tell the prospective

jurors: “If any juror for whatever reason cannot or will not follow the law, it is the

obligation of that juror and each juror to let the Court know so that we can, if

necessary, get somebody in there that can. [¶] It is not appropriate deciding the

case based on things, evidence not received, things the person knows about the

scene, for example, or anything of that nature. [¶] But the Court will not be able

to do anything about it unless somebody tells the Court that.” That language

closely resembles the language of former CALJIC No. 17.41.1 that instructed the

35



jury that if any juror refused to deliberate or expressed an intention to disregard

the law or to decide that case on any improper basis, it was the duty of other jurors

to so inform the court immediately. In People v. Engelman (2002) 28 Cal.4th 436,

449, we held, “in the exercise of our supervisory power . . . that CALJIC No.

17.41.1 not be given in trials conducted” after our decision in that case.

Defendant

contends

the trial court’s statement violated his federal

constitutional rights to a jury trial and due process. He argues that the court’s

statement invaded the requisite secrecy of jury deliberations undermining “the

jury’s free exercise of the power of nullification.” As defendant concedes, this

court has in the past rejected the argument that the language of former CALJIC

No. 17.41.1 violates federal or state constitutional rights. (People v. Brown (2004)

33 Cal.4th 382, 393; People v. Engelman, supra, 28 Cal.4th at pp. 444-445.) We

see no reason to reconsider that view.

J. Cumulative Effect of Guilt Phase Errors

Defendant contends the cumulative effect of error at the guilt phase

compels reversal of the judgment. We disagree. We have found only minor errors

and our careful review of the record convinces us that the errors were not

prejudicial to defendant.

III. PENALTY PHASE ISSUES

A. Developmental Disability and Competence

Defendant

contends

the trial court violated his state and federal

constitutional rights to due process when it did not on its own initiative suspend

the criminal proceedings because there was sufficient evidence to raise a doubt as

to whether defendant was developmentally disabled. We disagree.

Section 1367, subdivision (a) prohibits trying a person who is mentally

incompetent. Mental incompetency exists “if, as a result of mental disorder or

developmental disability, the defendant is unable to understand the nature of the

36



criminal proceedings or to assist counsel in the conduct of a defense in a rational

manner.” (Ibid.) If the trial court has a doubt as to the mental competency of the

accused, it must suspend proceedings until the issue of mental competency has

been determined.

At the penalty phase, defense Psychologist Nancy Kaser Boyd, testified that

defendant was mentally deficient, that the deficiency arose before defendant was

18 years of age, and that the deficiency constituted a substantial disability. This

testimony, defendant asserts, provided evidence of his developmental disability,

triggering the trial court’s duty to declare a doubt as to defendant’s mental

competency and to suspend the criminal proceedings.

A trial court’s duty to suspend criminal proceedings, however, arises only

when there is a doubt as to defendant’s competency to stand trial (§ 1368, subd.

(a)), not when there is merely a doubt as to the existence of a mental disorder or

developmental disability that does not implicate a defendant’s competency to

stand trial. (See People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1047.) The

trial court’s obligation arises when there is a doubt “as to the mental competence

of the defendant . . . .” (§ 1368, subd. (a).) Here, defendant concedes that the

evidence did not raise a doubt on the issue of mental competence.

B. Right to Confront Adverse Witnesses

At the penalty phase, Los Angeles Police Officer Kevin Burke testified to

certain statements by Tony Schmidt about defendant’s attack on Schmidt with a

hammer-sized ax. Officer Burke testified, after the trial court overruled a defense

hearsay objection, to the following: On May 27, 1993, he and his partner, in

response to a call, arrived at a building on West Sunset Boulevard in Los Angeles.

Tony Schmidt (who was deceased by the time of the trial in this case) came

running up to the police car. He was yelling, and very upset. Schmidt had a cut

on the little finger of his right hand, which was bleeding. Schmidt said that he was

37



the one who had called the police and that he was the property manager of the

building. Schmidt related that when he confronted two men spray-painting graffiti

on the building and told them to stop, one of them pulled a small ax from his

waistband and swung it at Schmidt, hitting Schmidt’s little finger with the ax when

Schmidt put his hand up to protect himself. Schmidt then went to his apartment,

got a gun, and again confronted the two men, who threatened to attack him with

the small ax and a knife. When Schmidt fired three shots into the air, the two men

fled. A few minutes later, two police officers working with Officer Burke found

two men hiding in some bushes down the street. A small ax was found on

defendant. Schmidt identified the two men, one of whom was defendant, as his

attackers. The total time that elapsed between Schmidt’s first approach of Officer

Burke and Schmidt’s identification of defendant was approximately five minutes.

Defendant contends the admission into evidence of Officer Burke’s

testimony as to victim Schmidt’s statements describing the ax attack and his later

identification of defendant violated his federal constitutional right to confront

adverse witnesses. Even assuming the right to confront and cross-examine

witnesses applies to the penalty phase of a capital trial, that right was not violated

here, as we explain below.

In support of his contention, defendant cites the United States Supreme

Court’s decision in Crawford v. Washington (2004) 541 U.S. 36. There the high

court held that the confrontation clause of the Sixth Amendment to the federal

Constitution prohibits “admission of testimonial statements of . . . witness[es] who

did not appear at trial unless [the witness] was unavailable to testify, and the

defendant had had a prior opportunity for cross-examination.” (Crawford, at

pp. 53-54, italics added.)

Thereafter,

in

Davis v. Washington (2006) 547 U.S. 813, the high court

gave this explanation: “Statements are nontestimonial when made in the course of

38



police interrogation under circumstances objectively indicating that the primary

purpose of the interrogation is to enable police assistance to meet an ongoing

emergency. They are testimonial when the circumstances objectively indicate that

there is no such ongoing emergency, and that the primary purpose of the

interrogation is to establish or prove past events potentially relevant to later

criminal prosecution.” (Id. at p. 822.) As this court observed in People v. Cage

(2007) 40 Cal.4th 965, 991, statements are not testimonial simply because they

might reasonably be used in a later criminal trial. Rather, a critical consideration

is the primary purpose of the police in eliciting the statements. Statements are

testimonial if the primary purpose was to produce evidence for possible use at a

criminal trial; they are nontestimonial if the primary purpose is to deal with a

contemporaneous emergency such as assessing the situation, dealing with threats,

or apprehending a perpetrator. (Id. at p. 984; see Davis, supra, 547 U.S. at

p. 832.)

Applying those holdings to the facts here, we conclude that victim

Schmidt’s statements to Officer Burke were not testimonial. Officer Burke,

responding to an emergency call, encountered an agitated victim of a serious

assault, who described defendant’s attack on him with a small ax. The statements

provided the police with information necessary for them to assess and deal with

the situation, including taking steps to evaluate potential threats to others by the

perpetrators, and to apprehend the perpetrators. The statements were not made

primarily for the purpose of producing evidence for a later trial and thus were not

testimonial. The same is true of the statements pertaining to identification. The

primary purpose of the police in asking victim Schmidt to identify whether the

detained individuals were the perpetrators, an identification made within five

minutes of the arrival of the police, was to determine whether the perpetrators had

39



been apprehended and the emergency situation had ended or whether the

perpetrators were still at large so as to pose an immediate threat.

In any event, any error was not prejudicial. Defendant was found with the

hammer-sized ax used in the attack shortly after it occurred, and at the penalty

phase the prosecution introduced sufficient evidence of other incidents of

defendant’s violent propensities. Such evidence included defendant’s conviction

for the attempted robbery of Victor Can, the firing of shots into the home of

Gustavo Rosas, and defendant’s participation in the brutal beatings in prison of

Duk An and Enrique Diaz. We conclude that any error in admitting victim

Schmidt’s statement identifying defendant as a perpetrator of the attack on him

was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386

U.S. 18, 24.)

C. Trial Court’s Comments on Voir Dire, and Jury Instructions

Defendant

contends

the trial court violated his state and federal

constitutional rights to due process, to a jury trial, to present a defense, to a penalty

determination based on all available mitigating evidence, and to a reliable penalty

determination by giving biased explanations to prospective jurors during voir dire,

and by improperly placing on the jury the burden of determining which guilt phase

instructions applied to the penalty phase. He also complains that the court gave

the jury an incorrect supplemental instruction during defense counsel’s closing

argument. We reject these contentions.

1. Trial court comments during voir dire

During voir dire of the first and second panels of prospective jurors, the

trial court made general comments about capital cases. The court explained that

aggravating factors make the crime worse than it normally would be and that

mitigating factors are the opposite, as they tend to ameliorate the punishment. The

court gave brief examples of aggravating and mitigating factors. In its comments

40



to the first panel, the court cautioned that “[t]hese are just examples; not at all an

exhaustive list.” In its comments to the second panel, the court stated, “And the

court will give you a rather exhaustive list, if we ever get to that point.” In

addition, during the voir dire of a prospective juror on the second panel, the trial

court commented: “You have to weigh the bad things, serious things about the

case, versus the mitigating factors, the things that make the crime perhaps less

blameworthy or good things about the defendant’s background.”

Defendant argues that the trial court’s comments, which he

mischaracterizes as jury instructions, were biased and misled the jury because they

did not include a statement that mitigation includes any other circumstance that

extenuates the gravity of the crime. (§ 190.3, factor (k).) The trial court, however,

was not instructing the jury at the time it made the comments in question. Indeed

it was conducting voir dire of prospective jurors. Its “comments ‘were not

intended to be, and were not, a substitute for full instructions at the end of trial.’ ”

(People v. Seaton (2001) 26 Cal.4th 598, 636.) “ ‘The purpose of these comments

was to give prospective jurors, most of whom had little or no familiarity with

courts in general and penalty phase death penalty trials in particular, a general idea

of the nature of the proceeding.’ ” (People v. Livaditis (1992) 2 Cal.4th 759, 781.)

In the context of voir dire, the trial court’s comments in this case were proper.

2. Penalty phase instructions

Just before the trial court read to the jury the penalty phase instructions, it

commented: “I am not going to reread to you the guilt phase instruction packet.

There is no need to do so. And a great many of those instructions simply no

longer apply, you don’t need to concern yourself with them. However, you may

refer to the guilt phase instructions for definitions [of] such things as attempted

robbery for example will be mentioned in these instructions, it was also mentioned

in the guilt phase so you may if you need to refresh your recollection as to what

41



that charge entails, for example you should take a look at the guilt phase

instructions. Likewise, the term reasonable doubt is used in a portion I will read

you now, reasonable doubt is defined in the guilt phase instruction so if you need

to refer back to that you may. [¶] Likewise, credibility of witnesses so forth, we

had witnesses testify, both phases so when you get to judging credibility again

guilt phase instruction 2.20 touched on that. Many of them will apply. If you

need further clarification whether one does or does not apply, let us know, send a

note out and we will certainly deal with it. Primary difference was at the guilt

stage I told you all not to consider penalty or punishment and I’ve told you not to

consider sympathy and things of that nature. And now those instructions no

longer apply because of [sic] the penalty phase you are obviously to consider

penalty and punishment and the sympathetic factors set forth and shown by the

evidence are not to be ignored by the jury in th[is] phase. That will be the primary

difference.” The trial court also instructed the jury to “[d]isregard all instructions

given to you in other phases of this trial if they conflict with anything stated in

these instructions.”

Defendant contends the trial court’s failure to specify for the jury which of

the guilt phase instructions were to apply at the penalty phase must have misled

the jury. Of particular significance, defendant argues, was the guilt phase

instruction that the jury was not to be influenced by, among other things,

sympathy. There was no error.

Defendant correctly observes that a trial court’s failure to specify which

previously given guilt phase instructions apply at the penalty phase may mislead

the jury (People v. Weaver (2001) 26 Cal.4th 876, 982), and that we have

admonished trial courts that they should “expressly inform the jury at the penalty

phase which of the instructions previously given continue to apply” (People v.

Babbitt (1988) 45 Cal.3d 660, 718, fn. 26). But a trial court’s failure to do so is

42



error only if there is a reasonable likelihood that the jury was misled. (People v.

Weaver, supra, 26 Cal.4th at p. 984.) No such reasonable likelihood is present

here. The trial court told the jury that many of the guilt phase instructions would

not apply at the penalty phase, and to disregard any guilt phase instructions that

conflicted with the penalty phase instructions. And it specifically singled out

punishment and sympathy as matters “obviously” to be considered by the jury at

the penalty phase. Accordingly, no error occurred.



3. Supplemental instruction

The trial court interrupted defense counsel’s penalty phase argument to give

the jury a supplemental instruction. Defendant contends the supplemental

instruction improperly limited the jury’s consideration of defendant’s good

character evidence. We disagree.

During his penalty phase argument to the jury, defense counsel said: “I

also believe that both that the families involved here and there are three, there’s

the Hau family, there’s the Afable family, and there’s the Ramirez [Romero]

family. If you think the Ramirez [Romero] family isn’t hurt, you haven’t been

thinking. I see in your sympathetic consideration no reason why after putting two

families through this I know of no mother, as a matter of fact you heard it

yesterday, when Mrs. Romero is still in denial. She’s not unusual in that fashion.

Even though I am a member of a mother/son relationship, they are estranged. And

I can understand how they are. [¶] So it’s not that Gerardo hurt other people, he

hurt his family, too. I see no reason to increase that, particularly when you can’t

bring Renaldo back, or you can’t bring Eugene back. There is no way. [¶] The

way the sheriff handles things hopefully it will get better. I’m not here to dump on

the sheriff, there is enough people dumping on him already with respect to getting

health care for the inmates, or I don’t know but the way that you solve how the

sheriff behaves, how these incidents.” The trial court then interrupted defense

43



counsel and told the jury: “Your job is to weigh the aggravation, weigh the

mitigation, arrive at a penalty in that fashion. That is without regard to the effect

that that decision will have on anyone other than this defendant. So you can’t vote

for death to make the victim’s family better. You can’t hold for life to make the

defendant’s mother feel better. That is not what this is about. This is not about

the sheriff’s department or sending a message if we will hear that.”

Defendant faults that supplemental instruction for not telling the jury his

family’s feelings for him were relevant as evidence of his character. We perceive

no error. The trial court’s comments were prompted by defense counsel’s

argument to the jury that the defendant’s punishment should not be death because

that would worsen the anguish of defendant’s family. As this court held in People

v. Ochoa (1998) 19 Cal.4th 353, 456, “sympathy for a defendant’s family is not a

matter that a capital jury can consider in mitigation, but . . . family members may

offer testimony of the impact of an execution on them if by so doing they

illuminate some positive quality of the defendant’s background or character.”

Fairly read, here defense counsel’s argument was designed to invoke sympathy for

defendant’s family, not to highlight a positive attribute of defendant’s background

or character. Consequently, there was no error in the challenged instruction.

D. Request to Give Post-verdict Testimony

The trial court explained to defendant his right to testify at the penalty

phase, in which event he would be subject to cross-examination. Defendant asked

if he would “be able to testify after I find out the verdict or whatever it might be?”

The trial court replied that he could not. Defendant asserts that his request to

“testify” was a request for allocution, which he defines as an unsworn statement to

the sentencing judge or jury that is not subject to cross-examination in which the

defendant can ask for mercy, apologize, or say anything else in an effort to lessen

44



the impending sentence. The trial court’s ruling, defendant asserts, violated his

federal constitutional right to allocute. We disagree.

As defendant concedes, “we have repeatedly held there is no right of

allocution at the penalty phase of a capital trial.” (People v. Lucero (2000) 23

Cal.4th 692, 717; accord, People v. Davenport (1995) 11 Cal.4th 1171, 1209;

People v. Clark (1993) 5 Cal.4th 950, 1036.) In addition, defendant did not make

a request for allocution as he defines that term. Defendant asked to make a

statement only after the jury reached its penalty verdict. Because in a capital case

the trier of fact, here a jury, determines the sentence at the penalty phase of the

trial (§ 190.3), a request to make a statement after the jury has already determined

the sentence cannot be an effort to lessen the impending sentence. Nor, contrary

to defendant’s assertion, could his statement later have affected the judgment of

death. The jury’s penalty verdict is reviewed by the trial court on an automatic

motion to modify the death verdict. (§ 190.4, subd. (e).) The trial court at the

hearing on the motion to modify is limited to considering the evidence presented

at the penalty phase of the trial. (People v. Cleveland (2004) 32 Cal.4th 704, 766.)

A statement made by defendant after the jury rendered its verdict would not be

evidence presented at the penalty phase, and therefore the trial court could not

consider it in ruling on the modification motion.

E. Automatic Motion to Modify Penalty Verdict

The trial court denied defendant’s automatic motion to modify the jury’s

verdict of death. (§ 190.4, subd. (e).) In response to the argument of defense

counsel, the trial court stated that it would consider the aggravating and mitigating

factors in this case and not compare this case to other cases in which the death

penalty was not imposed. The court then said that the “sad fact for your client is

that there is no mitigation, with one exception that the court can see and that is his

age. [¶] I will give him that. [¶] 19, you are right. [¶] If you were my age at age

45



19, you would have needed my parents’ permission to do almost everything. [¶] I

was clueless as to almost everything and most 19 year olds are. [¶] But things

have changed and you see a situation now where people 14, 15, 16, 18, et cetera,

have evolved into predators at a very young age for whatever reason. And

Mr. Romero [defendant] clearly fits into the category.” The court then discussed

the severity of defendant’s crimes, including the murders and the assaults

committed by defendant, stating that the “mitigation is quite insubstantial given

the gravity of the crime.” The court concluded with the statement that the jury’s

finding was amply justified by the record, that the “mitigation is insubstantial,” the

“aggravation great,” and that defendant “deserves what [the jury] came up with as

far as the court can see, 19 or not.”

Defendant

contends

the trial court violated his state and federal

constitutional rights to due process, to present a defense, to a penalty

determination based on all available mitigating evidence, and to a reliable penalty

determination by committing a number of errors in denying his automatic motion

to modify. We disagree.

Defendant argues the trial court violated section 190.4, subdivision (e) by

failing to reweigh mitigating evidence and erroneously finding no mitigating

factors except defendant’s age of 19 years. The record, however, shows that the

trial court did reweigh the mitigating evidence. The court mentioned that the

mitigation evidence was insubstantial and explained why it did not consider

defendant’s age alone as sufficient mitigation to warrant modification of the death

verdict. In ruling on an automatic motion to modify a death verdict, a trial court

need not recount details of, or identify, all evidence presented in mitigation or in

aggravation. (People v. Samayoa (1997) 15 Cal.4th 795, 860.) The trial court’s

only obligation was to provide a ruling that allows effective appellate review.

(People v. Arias (1996) 13 Cal.4th 92, 191-192.) The trial court here did: It

46



identified what it viewed as mitigating and aggravating evidence of significance to

its ruling, and it engaged in the requisite weighing.

Defendant next asserts that in denying the automatic motion to modify, the

trial court engaged in intercase proportionality review in a manner that was

arbitrary and irrational. He argues that the court both refused to undertake

intercase proportionality review by considering sentences in other capital cases

and considered intercase proportionality review by identifying defendant as being

within the group of people 14 to 18 years of age that have “evolved into predators

. . . .” Not so. The trial court’s reference to changing attitudes and conduct of

youth was not a comparison to other potential capital cases. There was no

irrationality or arbitrariness in the trial court’s comments.

Finally, defendant contends the trial court improperly deferred to the jury’s

verdict instead of exercising its independent judgment. Defendant misapprehends

the nature of the trial court’s role in ruling on such a motion. In ruling on a capital

defendant’s automatic motion to modify the jury’s verdict of death, the “ ‘trial

judge’s function is not to make an independent and de novo penalty determination,

but rather to independently reweigh the evidence of aggravating and mitigating

circumstances and then to determine whether, in the judge’s independent

judgment, the weight of the evidence supports the jury verdict.’ ” (People v.

Weaver, supra, 26 Cal.4th at pp. 989-990.) Here, the trial court did independently

reweigh the mitigating and aggravating evidence. The court commented on what

it viewed as mitigating and aggravating evidence of significance and

independently reweighed that evidence, concluding that the weight of the evidence

supported the jury’s verdict of death.

47



F. Challenges to Death Penalty Law

Defendant challenges the constitutional validity of California’s death

penalty law on various grounds. We have in prior decisions rejected similar

challenges, and again do so here.

The death penalty law is not unconstitutional for failing to adequately

distinguish the cases in which death is imposed from the cases in which it is not.

(People v. Kennedy, supra, 36 Cal.4th at pp. 639-640; People v. Bolden (2002) 29

Cal.4th 515, 566.)

The sentencing factor allowing the jury to consider the circumstances of the

crime (§ 190.3, factor (a)) does not result in the arbitrary or capricious imposition

of the death penalty. (People v. Kennedy, supra, 36 Cal.4th at p. 641.)

There is no constitutional right to conduct sequestered, individual voir dire

of prospective jurors. (People v. Box (2000) 23 Cal.4th 1153, 1178-1182.)

The jury at the penalty phase “need not make written findings, or achieve

unanimity as to specific aggravating circumstances, or find beyond a reasonable

doubt that an aggravating circumstance is proved (except for other crimes), that

aggravating circumstances outweigh mitigating circumstances, or that death is the

appropriate penalty. [Citations.] The death penalty statute is not unconstitutional

for failing to provide the jury with instructions of the burden of proof and [the]

standard of proof for finding aggravating and mitigating circumstances in reaching

a penalty determination.” (People v. Morrison (2004) 34 Cal.4th 698, 730-731.)

At the penalty phase, the trial court need not and should not instruct the jury on the

burden of proof. (People v. Panah (2005) 35 Cal.4th 395, 499.) It is sufficient

that the jury be instructed, as it was here, that to return a verdict of death each

member of the jury “ ‘must be persuaded that the aggravating circumstances are so

substantial in comparison with the mitigating circumstances that it warrants death

instead of life without parole.’ ” (People v. Box, supra, 23 Cal.4th at p. 1216.) It

48



is not unconstitutional to allow the jury to consider unadjudicated criminal activity

(§ 190.3, factor (b)) and doing so does not make the sentence unreliable. (People

v. Morrison, supra, 34 Cal.4th at p. 682; People v. Kipp (2001) 26 Cal.4th 1100,

1138.) The United States Supreme Court’s decisions in Cunningham v. California

(2007) 549 U.S. 217, United States v. Booker (2005) 543 U.S. 220, Blakely v.

Washington (2004) 542 U.S. 296, Ring v. Arizona (2002) 536 U.S. 584, and

Apprendi v. New Jersey (2000) 530 U.S. 466, do not effect or change these

conclusions. (People v. Prince (2007) 40 Cal.4th 1179, 1297-1298.)

The use of the adjectives “extreme” and “substantial” do not make the

sentencing statute (§ 190.3) or instructions unconstitutional. (People v. Kennedy,

supra, 36 Cal.4th at p. 641.)

The federal Constitution does not require intercase proportionality review.

(People v. Kennedy, supra, 36 Cal.4th at p. 641.) The absence of disparate

sentence review does not deny a defendant the constitutional right to equal

protection. (People v. Brown, supra, 33 Cal.4th at p. 402.)

Sentencing

factors

are

not constitutionally required to be identified as

aggravating or mitigating. (People v. Earp (1999) 20 Cal.4th 826, 898.)

We have repeatedly rejected the claim that the death penalty is

unconstitutional on the ground it violates international norms. (People v. Panah,

supra, 35 Cal.4th at pp. 500-501; People v. Hillhouse (2002) 27 Cal.4th 469, 511.)

We do so again here.

G. Cumulative Effect of Alleged Errors

Defendant contends the cumulative effect of the errors he asserts occurred

at trial was prejudicial. We disagree. We have found only minor errors in this

case. Careful review of the record convinces us that the trial was fair and the

jury’s decision reliable.

49



CONCLUSION

The judgment is affirmed.

KENNARD,

J.

WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.



50



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Romero
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S070686
Date Filed: July 14, 2008
__________________________________________________________________________________

Court:
Superior
County: Los Angeles
Judge: Charles E. Horan

__________________________________________________________________________________

Attorneys for Appellant:

Stephen M. Lathrop, under appointment by the Supreme Court, for Defendant and Appellant.




__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant
Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Sharlene A. Honnaka, Robert F.
Katz and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.









Counsel who argued in Supreme Court (not intended for publication with opinion):

Stephen M. Lathrop
904 Silver Spur Rd., #430
Rolling Hills Estates, CA 90274
(310) 237-1000, ext. 3

Marc A. Kohm
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2384


Automatic appeal from a judgment of death.

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Mon, 07/14/200844 Cal. 4th 386, 187 P.3d 56, 79 Cal. Rptr. 3d 334S070686Automatic Appealclosed; remittitur issued

ROMERO (GERARDO) ON H.C. (S167166)


Parties
1The People (Respondent)
Represented by Attorney General - Los Angeles Office
Marc A. Kohm, Deputy Attorney General
300 South Spring Street, Suite 500
Los Angeles, CA

2Romero, Gerardo (Appellant)
San Quentin State Prison
Represented by Stephen M. Lathrop
Attorney at Law
904 Silver Spur Road, Suite 430
Rolling Hills Estate, CA


Disposition
Jul 14 2008Opinion: Affirmed

Dockets
May 22 1998Judgment of death
 
Jun 1 1998Filed certified copy of Judgment of Death Rendered
  5-22-98.
Jun 1 1998Penal Code sections 190.6 et seq. apply to this case
 
Oct 27 1998Record certified for completeness
 
Apr 8 2002Filed:
  applt's application for appointment of counsel (IFP form).
Apr 12 2002Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Stephen M. Lathrop is hereby appointed to represent appellant Gerardo Romero for the direct appeal in the above automatic appeal now pending in this court.
Apr 16 2002Date trial court delivered record to appellant's counsel
  6,472 pp. record
Apr 22 2002Appellant's opening brief letter sent, due:
  11-18-2002.
Jun 12 2002Counsel's status report received (confidential)
  from atty Lathrop.
Aug 14 2002Counsel's status report received (confidential)
  from atty Lathrop.
Sep 23 2002Received copy of appellant's record correction motion
  Applic. to correct, complete and settle the record on appeal. (52 pp. plus attachments)
Oct 11 2002Counsel's status report received (confidential)
  from atty Lathrop
Nov 12 2002Request for extension of time filed
  to file appellant's opening brief. (1st request)
Nov 18 2002Extension of time granted
  To 1/17/2003 to file appellant's opening brief. The court anticipates that after that date, only five further extensions totaling 300 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Dec 13 2002Counsel's status report received (confidential)
  from atty Lathrop
Jan 17 2003Request for extension of time filed
  to file appellant's opening brief. (2nd request)
Jan 23 2003Request for extension of time filed
  to 3/18/2003 to file appellant's opening brief. The court anticipates filing that after that date, only four further extensions totaling 240 additional days will be granted Cousnel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any seprate counsel of record of this schedule, and to take all steps necessary to meet it.
Feb 14 2003Counsel's status report received (confidential)
  from attorney Lathrop
Feb 14 2003Counsel's status report received (confidential)
  from atty Lathrop.
Mar 18 2003Request for extension of time filed
  to file appellant's opening brief. (3rd request)
Mar 24 2003Extension of time granted
  to 5/19/2003 to file appellant's opening brief. The court anticipates that after that date, only three further extensions totaling 180 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Apr 14 2003Counsel's status report received (confidential)
 
May 13 2003Change of Address filed for:
  atty Stephen M. Lathrop for aplt Romero
May 19 2003Request for extension of time filed
  to file appellant's opening brief. (4th request)
May 23 2003Extension of time granted
  to 7/18/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his orher assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
May 28 2003Record certified for accuracy
 
Jun 17 2003Counsel's status report received (confidential)
  from atty Lathrop.
Jul 18 2003Request for extension of time filed
  to file AOB. (5th request)
Jul 23 2003Extension of time granted
  to 9-16-2003 to file AOB. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Aug 12 2003Counsel's status report received (confidential)
  from attorney Lathrop
Aug 26 2003Record on appeal filed
  20 vols. clerk's transcript (3,959 pp.) and 26 vols. of reporter's transcript (2,314 pp.), including 2,171 pp. of juror questionnaires, sealed material, and ascii disks.
Aug 26 2003Letter sent to:
  counsel advising that record on appeal was filed this date.
Aug 27 2003Motion to decertify AA record filed
  Appellant's motion to vacate the trial court's order certifying the record for accuracy and directing the trial court to correct, complete and settle the record on appeal.
Sep 16 2003Request for extension of time filed
  to file appellant's opening brief. (6th request)
Sep 19 2003Extension of time granted
  to 11/17/2003 to file appellant' s opening brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon counsel Stephen M. Lathrop's representation that he anticipates filing that brief by 1/15/2004.
Sep 24 2003Record decertification denied
  Appellant's "Motion for Order Vacating the Trial Court's Order Certifying the Record for Accuracy and Directing the Trial Court to Correct, Complete, and Settle the Record on Appeal," filed on August 27, 2003, is denied.
Oct 2 2003Compensation awarded counsel
  Atty Lathrop
Oct 21 2003Counsel's status report received (confidential)
  from atty Lathrop.
Nov 17 2003Request for extension of time filed
  to file AOB. (7th request)
Nov 21 2003Extension of time granted
  to 1/15/2004 to file appellant's opening brief. Extension is granted based upon counsel Stephen M. Lathrop's representation that he anticipates filing that brief by 1/15/2004. After that date, no further extension will be granted.
Dec 12 2003Counsel's status report received (confidential)
  from atty Lathrop.
Jan 15 2004Request for extension of time filed
  to file AOB. (8th request)
Jan 20 2004Filed:
  Supplemental affidavit of attorney Lathrop in support of request for extension of time.
Jan 28 2004Extension of time granted
  to March 15, 2004 to file appellant's opening brief. After that date, only one further extensions totaling about 70 additional days will be granted. Extension is granted based upon counsel Stephen Lathrop's representation that he anticipates filing that brief by May 24, 2004. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Feb 13 2004Counsel's status report received (confidential)
  from attorney Stephen M. Lathrop
Feb 25 2004Compensation awarded counsel
  Atty Lathrop
Mar 15 2004Request for extension of time filed
  to file appellant's opening brief. (9th request)
Mar 19 2004Extension of time granted
  to 5/24/2004 to file appellant's opening brief. Extension is granted based upon counsel Stephen M. Lathrop's representation that he anticipates filing that brief by 5/24/2004. After that date, no further extension will be granted.
May 19 2004Request for extension of time filed
  to file AOB. (10th request)
May 26 2004Extension of time granted
  to 6/23/2004 to file appellant's opening brief. Extension is granted based upon counsel Stephen Lathrop's representation that he anticipates filing that brief by 6/23/2004. After that date, no further extension will be granted.
Jun 23 2004Appellant's opening brief filed
  (67,948 words - 267 pp.)
Jun 23 2004Request for judicial notice filed (AA)
  appellant.
Jun 25 2004Respondent's brief letter sent; due:
  October 21, 2004.
Jun 30 2004Compensation awarded counsel
  Atty Lathrop
Sep 28 2004Request for extension of time filed
  to file respondent's brief. (1st request)
Oct 1 2004Extension of time granted
  to December 20, 2004 to file respondent's brief.
Dec 7 2004Request for extension of time filed
  to file respondent's brief. (2nd request)
Dec 13 2004Extension of time granted
  to 2-18-2005 to file respondent's brief. After that date, only one further extension totaling about 30 additional days is contemplated. Extension granted based upon Supv. Deputy AG Robert F. Katz's representation that he anticipates filing the brief by 3-20-2005.
Feb 1 2005Request for extension of time filed
  to file respondent's brief. {3rd request}
Feb 4 2005Extension of time granted
  to 4/19/2005 to file respondent's brief. based upon Supervising Deputy Attorney General Robert Katz's representation that he anticipates filing that brief by 4/19/2005. After that date, no further extension will be granted.
Mar 30 2005Request for extension of time filed
  to file respondent's brief. (4th request)
Apr 6 2005Extension of time granted
  to 5/19/2005 to file respondent's brief. Extension is granted based upon based upon Supervising Deputy Attorney General Robert F. Katz's representation that he anticipates filing that brief by 5/19/2005. After that date, no further extension will be granted.
May 18 2005Respondent's brief filed
  (56009 words; 177 pp.)
Jun 16 2005Change of contact information filed for:
  attorney Stephen M. Lathrop
Jul 13 2005Request for extension of time filed
  appellant's reply brief. (1st request)
Jul 19 2005Extension of time granted
  to 9/16/2005 to file appellant's reply brief.
Aug 29 2005Request for extension of time filed
  appellant's reply brief. (2nd request)
Sep 13 2005Extension of time granted
  to 11/16/2005 to file appellant's reply brief. After that date, only three further extensions totaling about 180 additional days will be granted. Extension is granted based upon counsel Stephen M. Lathrop's representation that he anticipates filing that brief by 5/18/2006.
Nov 7 2005Request for extension of time filed
  to file appellant's reply brief. (3rd request)
Nov 15 2005Extension of time granted
  to 1/17/2006 to file he reply brief. After that date, only two further extensions totaling about 120 additional days will be granted. Extension is granted based upon counsel Stephen M. Lathrop's representation that he anticipates filing that brief by May 18, 2006.
Jan 17 2006Request for extension of time filed
  to file appellant's reply brief. (4th request)
Jan 20 2006Extension of time granted
  to 3/20/2006 to file appellant's reply brief. After that date, only three further extensions totaling about 150 additional days will be granted. Extension is granted based upon counsel Stephen M. Lathrop's representation that he anticipates filing that brief by 8/16/2006.
Mar 20 2006Request for extension of time filed
  to file appellant's reply brief. (5th request)
Mar 23 2006Extension of time granted
  to May 19, 2006 to file the appellant's reply brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted based upon counsel Stephen M. Lathrop's representation that he anticipates filing that brief by August 16, 2006.
May 18 2006Request for extension of time filed
  to file reply brief. (6th request)
May 22 2006Extension of time granted
  to July 18, 2006 to file the reply brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon counsel Stephen Lathrop's representation that he anticipates filing that brief by August 16, 2006.
Jul 14 2006Request for extension of time filed
  to file appellant's reply brief. (7th request)
Jul 18 2006Extension of time granted
  to August 16, 2006 to file appellant's reply brief. Extension is granted based upon counsel Stephen M. Lathrop's representation that he anticipates filing that brief by August 16, 2006. After that date, no further extension is contemplated.
Aug 14 2006Appellant's reply brief filed
  (33,106 words; 140 pp.)
Aug 23 2006Compensation awarded counsel
  Atty Lathrop
Feb 29 2008Oral argument letter sent
  advising counsel that the court could schedule this case for argument as early as the May 2008 calendars, to be held the weeks of May 5 and May 26, 2008, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
Apr 9 2008Case ordered on calendar
  to be argued on Thursday, May 8, 2008, at 1:30 p.m. in San Francisco
Apr 16 2008Received:
  appearance sheet from Attorney Stephen M. Lathrop, indicating 45 minutes for oral argument for appellant.
Apr 16 2008Filed:
  appellant's focus issues letter, dated April 15, 2008.
Apr 18 2008Order filed
  The request by defendant and appellant for judicial notice of the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. Text Revision 2000) pages 39 through 49, inclusive, is denied.
Apr 21 2008Filed:
  respondent's focus issues letter, dated April 17, 2008.
Apr 21 2008Received:
  appearance sheet from Deputy Attorney General Marc A. Kohm, indicating 45 minutes for oral argument for respondent.
Apr 25 2008Received:
  respondent's letter of additional authorities for oral argument, dated April 24, 2008.
Apr 28 2008Received:
  appellant's list of additional authorities for oral argument, dated April 25, 2008.
May 2 2008Filed letter from:
  appellant, dated May 1, 2008."Appellant's Request for Briefing on Issue First Raised in Respondent's Supplemental Authorities, filed April 25, 2008"
May 8 2008Cause argued and submitted
 
May 14 2008Compensation awarded counsel
  Atty Lathrop
Jul 11 2008Notice of forthcoming opinion posted
 
Jul 14 2008Opinion filed: Judgment affirmed in full
  opinion by Kennard, J. -----joined by George, C.J., Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
Jul 30 2008Rehearing petition filed
  (3,092 words; 14 pp) (filed pursuant to California Rule of Court 8.25(b)(3)(A).)
Aug 1 2008Time extended to consider modification or rehearing
  The time for granting or denying rehearing in the above-entitled case is hereby extended to and including October 10, 2008, or the date upon which rehearing is either granted or denied, whichever occurs first.
Aug 20 2008Rehearing denied
  The petition for rehearing is denied.
Aug 20 2008Remittitur issued (AA)
 
Aug 29 2008Received:
  acknowledgment for receipt of remittitur.
Oct 1 2008Related habeas corpus petition filed (post-judgment)
  No. S167166.
Nov 21 2008Received:
  Letter from U.S.S.C., dated November 18, 2008, advising the petition for writ of certiorari was filed on November 12, 2008 and placed on the docket November 18, 2008 as No. 08-7280.
Jan 21 2009Certiorari denied by U.S. Supreme Court
 

Briefs
Jun 23 2004Appellant's opening brief filed
 
May 18 2005Respondent's brief filed
 
Aug 14 2006Appellant's reply brief filed
 
Brief Downloads
application/pdf icon
AOB.pdf (6648107 bytes) - Appellants Opening Brief
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Application to Correct, Augment, Settle Record - Supp. 1.pdf (3645063 bytes) - Application to Correct, Augment, Settle Record - Supp. 1
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Application to Correct, Augment, Settle Record.pdf (15322344 bytes) - Application to Correct, Augment, Settle Record
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ARB.pdf (908509 bytes) - Appelants Reply Brief
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CSC 041508 - Oral Arg Appearance Sheet.pdf (62445 bytes) - Oral Argument Appearance Sheet
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CSC 041508 - Oral Arg Focus Issues Letter.pdf (168736 bytes) - Oral Argument Focus Issues Letter
application/pdf icon
Petition for Rehearing.pdf (171699 bytes) - Petition For Rehearing (Jul. 28, 2008)
application/pdf icon
Petition for Rehearing, DENIED.pdf (89898 bytes) - Petition For Rehearing Is Denied (Aug. 20, 2008)
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Petition for Writ Cert, Reply, Romero.pdf (109801 bytes) - Reply To Brief In Opposition To Petition For Writ Of Certiorari
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Petition for Writ Cert, Romero.pdf (1302057 bytes) - Petitioner For Writ Of Certiorari
application/pdf icon
Petition, Opposition.pdf (316940 bytes) - Brief In Opposition To Petition For Writ Of Certiorari
application/pdf icon
RB.pdf (9524181 bytes) - Respondent's Brief
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Respondent 041808 - Oral Arg Focus Issues Letter.pdf (77291 bytes) - Respondent's focus issues for oral argument on May 8, 2008
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Pet Writ HC, Filed.pdf (619995 bytes) - Petition For Writ Of Habeas Corpus By Inmate Under Sentence Of Death
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Order, Record Preservation 052303.pdf (311852 bytes) - Order Re: Appellant Gerardo Romero's Motion For Order Preserving Discovery Materials To Which Defendant Has A Right Of Access Pursuant To Penal Code Section 1054.9 Pending Execution Of The Death Sentence
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Order, Copying of Exhibits 052303.pdf (53073 bytes) - Order Re: Photocopying Of Trial Exhibits
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Order 1 - Proposed, Record Correction.pdf (54781 bytes) - [Proposed] Order Re Correction Of Reporter's Transcript For Accuracy
application/pdf icon
Motion, Record Preservation.pdf (142762 bytes) - Notice Of Motion And Motion For Order Preserving Discovery Materials To Which Defendant Has A Right Of Access Pursuant To Penal Code Section 1054.9
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Letter re Add'l Briefing 050108.pdf (57773 bytes) - Appellant's Request For Briefing On Issue First Raised In Respondent's Supplemental Authorities (Apr 25, 2008)
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Lathrop Decl. & Proposed Order Re Correction for Accuracy, Fax Filed 102902.pdf (461350 bytes) - Declaration of Lathrop In Support Of Proposed Order Re Correction Of Reporter's Transcript For Accuracy; [Proposed] Order Re Correction Of Reporter's Transcript For Accuracy
application/pdf icon
Judicial Notice, Request.pdf (1344512 bytes) - Appellant's Motion For Judicial Notice; Proposed Order [Filed Concurrently With Appellant's Opening Brief]
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Jan 9, 2009
Annotated by admin.ah

Written by: Hernandez

Procedural Background and Prior History

A jury convicted defendant of two counts of murder, as well as multiple counts of attempted murder, robbery, and attempted robbery, in a jury trial in the Superior Court, Los Angeles County, No. BA1022638, Charles E. Horan, J.

The jury also found that there were special circumstances in the multiple murders, and that defendant murdered one of the victims while in commission of a felony. The jury returned a verdict of death, and the trial court sentenced the defendant to death. This appeal to the California Supreme Court is automatic, as are all capital convictions in California.

Factual Background/Summary of the Case

I. Guilt Phase:

A) Prosecution’s Case

Eugene “Temper” Afable was shot in a video store at approximately 9:00 p.m. on October 9, 1994. Afable was wearing a black football jersey with the letters “T-S-T” on it, resembling jerseys worn by the Temple Street gang members. Witnesses later identified defendant as the shooter. Afable was killed by a single bullet fired into the back of this head.

Around midnight on October 9, 1994, Jose Aguilar, Francisco Piceno, Gabriel Hau Cruz, and Reynaldo Hau were relaxing outside a residence when they were approached by two men, one of whom pulled a gun on them and demanded that the men in the group give him what they had. The gunman took Reynaldo Hau’s Citizen watch, and, even though the men complied with the gunman’s orders, the gunman assaulted and shot Piceno, and shot Reynaldo Hau. Three of the men escaped, but Reynaldo Hau later died from the gunshot wounds.

The next day, detectives conducted a consensual search of the defendant’s home. Though the detectives did not (and would never) find the murder weapon, they did recover a watch that was later identified as one taken from robbery victim Gabriel Cruz, as well as ammunition of the same caliber used in the shootings, and items of clothing that matched those seen by witnesses. Detectives arrested defendant. Three of the victims later identified the defendant as the gunman.

At trial, LAPD produced and expert from their gang unit, who identified the defendant’s tattoos as being indicative of his involvement in a gang. Moreover, defendant’s gang was a rival of the gang of the first murder victim. The gang expert also testified that in the gang culture, a gang member’s prestige within the gang would be increased by going into a rival gang’s territory and committing a crime such as a robbery or murder (what is termed a “mission”). In the expert’s opinion, the murder of Afable was a gang killing.

B) Defense Case

In the defense case, the defendant provided alibi witnesses, as well as a witness who testified that defendant’s gang did not have a rivalry with Afable’s gang.

II. Penalty Phase

A) Prosecution Case

Prosecution put forth evidence of defendant’s history of violence, including previous robberies and assaults, even a sexual assault. Some of these assaults occurred in prison, and one occurred while defendant was in the county courthouse lockup. The prosecution then provided testimony from the victims’ families.

B) Defense Case

Defense presented the testimony of a clinical and forensic psychologist, who testified that as a baby, defendant suffered from a serious bacterial infection that caused a very high fever, and that this illness may have caused defendant’s low IQ of 77. In the psychologist’s opinion, moreover, the defendant is socially dysfunctional, a condition that can be treated. The defense also presented testimony that defendant suffered psychological damage from family problems. For example, when he was 12, his mother developed uterine cancer, and he had to take care of his brothers and sisters—it was at this point that defendant started failing in school. Defendant also lost all of his possessions, including his beloved sports trophies, when his family was evicted. Defendant also, according to testimony, never got over the death of his childhood friend from cancer.

Personal Summary/Discussion

This case features a wealth of information on many different areas of law (the version on Westlaw had 58 (!) headnotes), so it can be very useful to students interested in learning more about the legal frameworks involved in capital cases in California. It is thorough and well-written.

At the same time, it’s a very sad case. Those readers interested in working for the District Attorney should read the case; as illustrative as it is legally, it is just as illustrative with respect to the realities of prosecuting criminals—it’s not for the faint of heart. We all—naturally—sympathize with the victims’ families, but it takes a pretty hard heart not to at least feel for the defendant and his family. The passages detailing the difficulties the defendant faced—his poverty, the illness of his mother, the death of his friends—make this a complicated case. Even if we see the defense’s presentation of Romero’s difficulties as a biased and incomplete picture, we still are forced with the reality that this person was not born a monster. And once we see that, we are also confronted with the fact that if the “good guys” win, then another family will be destroyed.

One also can gain some insight into the inner workings of a trial. First, it doesn’t take long to realize that there are many cards a defendant can play in an attempt to thwart a death sentence—and with those many options comes a mountain of work and possibilities for the defense attorney. Unfortunately for this defendant (at least), none of the cards seemed to work—even what would appear to be a last-ditch effort, a facial challenge of the death penalty law in general. (At the same time, the defense attorney wrote me on January 6th, 2009, and let me know that there is a habeas petition pending, so all is not entirely lost for this defendant.)

One also has to wonder what if must have been like in the trial courtroom, and what the jury must have thought about the defendant. As far-fetched as the facial challenge to the death penalty may seem, the defense brings up some intriguing issues that make the case seem like not as much of a “slam dunk” as one might think—including the fact that some witnesses seemed to remember more clearly after speaking with interpreters. In the end, it appears that a lot depended (as it most always does) on the jury’s perception of the defendant and his credibility. What becomes clear in this case is that at the appellate level, once the jury has returned a verdict of death, it’s hard to overturn.

On a final note, the thoughtful reader should at least pause to consider how easy (or difficult) it would be to make the same mistakes as the defendant, given his circumstances. That is not to say that anyone should (necessarily) condone or forgive anything Romero has done. At the same time, though, it seems clear that this crime did not occur in a vacuum, and (in my humble opinion) anyone of middle- or upper-class upbringing should at least pause before throwing stones at Romero. In other words, those who see this case a pure legal exercise, without regard to the psychological and sociological overtones, are missing out.

Legal issues, Holdings, and Cases Cited

I. GUILT PHASE ISSUES

A) Standard of Review for Sufficiency of Evidence

1. Holdings: Trial Court’s record contains evidence that is credible and reasonable, from which a rational trier of fact could find the elements of the crime beyond a reasonable doubt.

2. Cases

a. On the standard for determining the sufficiency of evidence to support a conviction:

i. People v. Tafoya (2007) 42 Cal.4th 147, 170; 64 Cal.Rptr.3d 163; 164 P.3d 590:
http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

b. On the proposition that the pertinent inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt:

i. People v. Rodriguez (1999) 20 Cal.4th 1, 11; 82 Cal.Rptr.2d 413; 971 P.2d 618: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

B) Sufficiency of Evidence for Identification

1. Holdings: Evidence behind jury’s finding was reasonable and credible. Even without fingerprint or DNA evidence, evidence recovered at defendant’s home, as well as eye-witness identification, supports jury’s finding that defendant is guilty of murder.

2. Case

a. On the proposition that an appellate court is to view the record as a whole and presume the existence of every fact the trier of fact could reasonably deduce from the evidence:

i. People v. Kraft (2000) 23 Cal.4th 978, 1053; 99 Cal.Rptr.2d 1; 5 P.3d 68: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

C) Sufficiency of Evidence for Premeditation and Deliberation

1. Holdings: There is sufficient evidence from which a rational juror could infer planning and premeditation.

2. Cases

a. On the proposition that the test on appeal is whether a rational juror could, on the evidence presented, find the essential elements of the crime—including premeditation and deliberation—beyond a reasonable doubt:

i. People v. Stewart (2004) 33 Cal.4th 425, 495; 15 Cal.Rptr.3d 656; 93 P.3d 271: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

b. On the proposition that a first degree murder conviction will be upheld when there is extremely strong evidence of planning:

i. People v. Anderson (1968) 70 Cal.2d 15, 27; 73 Cal.Rptr 550; 447 P.2d 942: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

ii. People v. Thomas (1992) 2 Cal.4th 489, 517; 7 Cal.Rptr.2d 199; 828 P.2d 101: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

c. On the proposition that an execution-style killing supports a finding of premeditation and deliberation:

i. People v. Stewart, supra, 33 Cal.4th at p. 495; 15 Cal.Rptr.3d 656; 93 P.3d 271.

ii. People v. Caro (1988) 46 Cal.3d 1035, 1050; 251 Cal.Rptr. 757; 761 P.2d 680: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

iii. People v. Bloyd (1987) 43 Cal.3d 333, 348; 233 Cal.Rptr.368; 729 P.2d 802: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

D) Failure to Instruct on Second Degree Murder

1. Holdings: The evidence in this case did not support an instruction, especially on the court’s own initiative, for second degree murder. Defendant’s theory that the jury could have found that the murders took place without premeditation or deliberation is not credible. The trial court did not commit error by failing to instruct the jury on second degree murder.

2. Cases

a. On the proposition that a defendant’s constitutional right to have the jury determine every material issue presented includes the obligation of a trial court to instruct the jury on the relevant principles of law relevant to the issues raised by the evidence:

i. People v. Dominguez (2006) 39 Cal.4th 1141, 1158; 47 Cal.Rptr.3d 575, 140 P.3d 866: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

b. On the proposition that a trial court must give instructions on lesser offenses when the evidence raises questions as to whether all of the elements of the offense charged are present:

i. People v. Valdez (2004) 32 Cal.4th 73, 114, fn. 17; 8 Cal.Rptr.3d 271; 82 P.3d 296: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

c. On the proposition that instructions on lesser included offenses are only warranted when there is substantial evidence, enough to merit consideration by the jury:

i. People v. Breverman (1998) 19 Cal.4th 142, 154; 77 Cal.Rptr.2d 870; 960 P.2d 1094: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

d. On the proposition that it is the evidence presented at trial, not the comments of the trial court (nor pure speculation), that determines whether a defendant is entitled to an instruction on a lesser included offense:

i. People v. Valdez, supra, 32 Cal.4th at p. 116; 8 Cal.Rptr.3d 271; 82 P.3d 296.

E) Discussions Between Interpreter and Witnesses

1. Holdings: Unreported discussions at trial between interpreters and three witnesses did not violate defendant’s right to confrontation under the Sixth Amendment to the United States Constitution. Though waiver does not result in forfeiture for interpreters for the defendant, the same rule does not for “witness interpreters.” The defendant’s failure to object to the witness interpreters at the trial level precludes him from asserting errors relating to witness errors.

2. Cases:

a. On the three distinct roles for interpreters in criminal proceedings:

i. People v. Aguilar (1984) 35 Cal.3d 785, 790; 200 Cal.Rptr. 908; 677 P.2d 1198: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

b. On the proposition that the right to an interpreter has its underpinnings in a number of state and federal constitutional rights:

i. People v. Rodriguez (1986) 42 Cal.3d 1005, 1011; 232 Cal.Rptr. 132; 728 P.2d 202: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

c. On the proposition that a defense counsel’s acquiescence would not result in a defendant’s waiver of the state Constitution’s provision entitling a non-English-speaking defendant to an interpreter:

i. People v. Aguilar, supra, 35 Cal.3d at page 794; 200 Cal.Rptr. 908; 677 P.2d 1198.

d. On the proposition that forfeiture results from a failure to invoke a right, while waiver denotes an express relinquishment of a known right:

i. In re Sheena K. (2007) 40 Cal.4th 875, 880-1 & fn. 1; 55 Cal.Rptr.3d 716; 153 P.3d 282: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

e. On the general rule that failure to object during trial relieves the reviewing court of the obligation to consider those errors on appeal, even for claims based on fundamental constitutional rights:

i. People v. Kennedy (2005) 36 Cal.4th 595, 612; 31 Cal.Rptr.3d 160; 115 P.3d 472: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

f. On the rationale that this general rule allows errors to be corrected by the trial court, and prevents gamesmanship by the defense:

i. In re Sheena K., supra, 40 Cal.4th at p. 881; 55 Cal.Rptr.3d 716; 153 P.3d 282.

ii. In re Seaton (2004) 34 Cal.4th 193, 198-199; 17 Cal.Rptr.3d 633; 95 P.3d 896: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

g. On the proposition that a failure to object to the claimed violations during trial precludes defendant from now asserting errors relating to witness interpreters:

i. People v. Aranda (1986) 186 Cal.App.3d 230, 237; 230 Cal.Rptr. 498: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

F) Gang Association

1. Holdings: Trial court comments during voir dire referring to evidence of gang affiliation did not violate defendant’s state and federal rights to due process, trial by jury, and a fair trial.

2. Cases

a. On the admissibility of evidence of gang membership to prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime:

i. People v. Hernandez (2004) 33 Cal.4th 1040; 16 Cal.Rptr.3d 880; 94 P.3d 1080: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

b. On the sufficiency of evidence needed to prove a gang-related connection to a crime:

i. People v. Gardeley (1996) 14 Cal.4th 605, 617-20; 59 Cal.Rptr.2d 356; 927 P.2d 713: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

G) Instruction on First or Second Degree Murder

1. Holdings: Jury instruction requiring the jury to first acquit the defendant of a greater charge before convicting the defendant of a lesser charge did not violate defendant’s state and federal rights to due process and a jury trial.

2. Cases

a. On the rejection of the argument that an instruction requiring the jury to first acquit the defendant of a greater charge before convicting the defendant of a lesser charge violates defendant’s state and federal rights to due process and a jury trial:

i. People v. Fields (1996) 13 Cal.4th 289, 309; 52 Cal.Rptr.2d 282; 914 P.2d 832: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

b. On the proposition that there is no need to revisit the issue in this case:

i. People v. Cox (2003) 30 Cal.4th 916, 917; 135 Cal.Rptr.2d 272; 70 P.3d 277: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

H) Record Correction

1. Holdings: Trial court’s correction of the record was not based on speculation which violated defendant’s right to due process, and, since there was a proceeding in the trial court to correct the record, there is no need to remand the matter.

2. Cases

a. On the proposition that the trial court has an obligation to correct the record:

i. Williams v. Davis (1946) 27 Cal.2d 746, 753; 167 P.2d 189: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

b. On the trial judge’s memory being one fo the considerations that may be taken into account in making corrections to the trial record:

i. Marks v. Superior Court (2002) 27 Cal.4th 176, 196; 115 Cal.Rptr.2d 674; 38 P.3d 512: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

c. On the proposition that an appellate court need remand a record correction matter only when there has been no proceeding in the trial to correct the record:

i. People v. Lucas (1995) 12 Cal.4th 415, 468-469; 48 Cal.Rptr.2d 525; 907 P.2d 373: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

I) Jury Instructions

1. Holdings: By giving standard jury instructions that featured the phrase “appears to be reasonable,” the court did not allow the jury to find guilt based on proof less than beyond a reasonable doubt, and thus did not violate defendant’s state and federal rights to due process.

2. Cases

a. On the rejection of the argument that the language “appears to be reasonable” allows the jury to find guilt based on proof less than a reasonable doubt:

i. People v. Maury (2003) 30 Cal.4th 342, 428; 133 Cal.Rptr.2d 561; 68 P.3d 1: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

ii. People v. Hughes (2002) 27 Cal.4th 287, 346-347; 116 Cal.Rptr.2d 401; 39 P.3d 432: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

b. On the proposition that when the instructions are read in context, a jury is only required to reject unreasonable interpretations of the evidence and to accept a reasonable interpretation that is consistent with the evidence:

i. People v. Crittenden (1994) 9 Cal.4th 83, 144; 36 Cal.Rptr.2d 474; 885 P.2d 887: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

J) Defendant’s Absence During Response to Jury Question

1. Holdings: Defendant’s right to be present during all critical stages of the trial was violated, but under any standard of harmless error, the violation did not prejudice the defendant.

2. Cases

a. On a felony defendant’s right to be present, a right that may be waived if defendant personally executes, in open court, a written waiver of the right to be present:

i. People v. Coddington (2000) 23 Cal.4th 529, 629; 97 Cal.Rptr.2d 528; 2 P.3d 1081: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

K) Trial Court’s Statement to Prospective Jurors

1. Holdings: Trial court’s statement—that resembled CALJIC No. 17.41.1—that jurors should inform the court if a juror has expressed an inability to judge the case solely on the evidence did not violate the defendant’s federal right to a jury trial and due process.

2. Cases

a. On CALJIC No. 17.41.1, and the proposition that CALJIC No. 17.41.1 need not be given in trial conducted after the decision in the Engelman case:

i. People v. Engelman (2002) 28 Cal.4th 436, 449; 121 Cal.Rptr.2d 862; 49 P.3d 209: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

b. On the proposition that CALJIC No. 17.41.1 does not violate federal or state constitutional rights:

i. People v. Brown (2004) 33 Cal.4th 382, 393; 15 Cal.Rptr.3d 624; 93 P.3d 244: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

ii. People v. Engelman, supra, 28 Cal.4th at pp. 444-445; 121 Cal.Rptr.2d 862; 49 P.3d 209.

L) Cumulative Effect of Guilt Phase Errors

1. Holdings: Cumulative effect of error at the guilt phase does not compel reversal. Errors found are only minor.

II. PENALTY PHASE ISSUES

A) Developmental Disability and Competence

1. Holdings: Mental deficiency is not mental incompetence; therefore, trial court did not err in suspending criminal proceedings, since there was evidence only of mental deficiency, not mental incompetence.

2. Cases

a. On the proposition that a trial court’s duty to suspend criminal proceedings arises only when there is doubt as to defendant’s competency to stand trial, not when there is merely a doubt as to the existence of a mental disorder or developmental disability that does not implicate a defendant’s competency to stand trial:

i. People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1047; 47 Cal.Rptr.3d 467; 140 P.3d 775: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

B) Right to Confront Adverse Witnesses

1. Holdings: Statements made by previous assault victim who was unavailable to testify did not qualify as testimonial, and therefore were not inadmissible hearsay; even if the statements were improperly admitted, any error was harmless.

2. Cases

a. On the right to confrontation with respect to “testimonial statements,” and the guidelines for when statements are to be considered “testimonial”:

i. Crawford v. Washington (2004) 541 U.S. 36; 124 S.Ct. 1354; 158 L.Ed.2d 177.

ii. Davis v. Washington (2006) 547 U.S. 813; 126 S.Ct. 2266; 165 L.Ed.2d 224.

b. On the proposition that statements are not testimonial simply because they might be used in a later criminal trial:

i. People v. Cage (2007) 40 Cal.4th 965, 991; 56 Cal Rptr.3d 789; 155 P.3d 205: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

c. On the proposition that given sufficient evidence to corroborate statements that may be considered testimonial, admitting such statements will result in harmless error:

i. Chapman v. California (1967) 386 U.S. 18, 24; 87 S.Ct. 824; 17 L.Ed.2d. 705.

C) Trial Court’s Comments on Voir Dire, and Jury Instructions

1. Holdings: Trial court did not give biased explanations to potential jurors during voir dire, and did not give incorrect supplemental instructions during defense counsel’s closing argument.

2. Cases

a. On the proposition that comments made during voir dire are not meant to substitute for full instructions at the end of the trial:

i. People v. Seaton (2001) 26 Cal.4th 598, 636; 110 Cal.Rptr.2d 441; 28 P.3d 175: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

b. On the proposition that the purpose of introductory comments during voir dire is to give prospective jurors a general idea of the nature of the proceeding:

i. People v. Livaditis (1992) 2 Cal.4th 759, 781; 9 Cal.Rptr.2d 72; 831 P.2d 297: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

c. On the proposition that a trial court’s failure to specify which guilt phase instructions apply at the penalty phase may mislead the jury:

i. People v. Weaver (2001) 26 Cal.4th 876, 982; 111 Cal.Rptr.2d 2; 29 P.3d 103: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

d. On the proposition that trial courts should expressly inform the jury which of the instructions from the guilt phase apply at the penalty phase:

i. People v. Babbitt (1988) 45 Cal.3d 660, 718, fn.26; 248 Cal.Rptr. 69; 755 P.2d 253: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

e. On the proposition that a trial court’s failure to do so is error only if there is a reasonable likelihood that the jury was misled:

i. People v. Weaver, supra, 26 Cal.4th at p. 984; 111 Cal.Rptr.2d 2; 29 P.3d 103.

f. On the validity of supplemental instructions that remind the jurors they are not to consider the impact of a death sentence on the defendant’s family:

i. People v. Ochoa (1998) 19 Cal.4th 353, 456; 79 Cal.Rptr.2d 408; 966 P.2d 442: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

D) Request to Give Post-Verdict Testimony

1. Holdings: In denying the defendant an opportunity to “testify” (in the defendant’s words), that is, give an unsworn statement to the jury in which he would ask for mercy, apologize, or say anything in an effort to lessen the impending sentence, trial court did not violate the defendant’s federal right to allocute.

2. Cases

a. On the proposition that there is no right of allocution at the penalty phase of a trial:

i. People v. Lucero (2003) 23 Cal.4th 692, 717; 97 Cal.Rptr.2d 871; 3 P.3d 248: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

ii. People v. Davenport (1995) 11 Cal.4th 1171, 1209; 47 Cal.Rptr.2d 800; 906 P.2d 1068: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

iii. People v. Clark (1993) 5 Cal.4th 950, 1036; 22 Cal.Rptr.2d 689; 857 P.2d 1099: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

b. On the proposition that a trial court is limited at a hearing on a motion to modify a verdict to consider the evidence presented at the penalty phase of the trial, and a statement made by the defendant after the jury returned its verdict would not be evidence presented at the penalty phase of the trial:

i. People v. Cleveland (2004) 32 Cal.4th 704, 766; 11 Cal.Rptr.3d 236, 86 P.3d 302: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

E. Automatic Motion to Modify Penalty Verdict

1. Holdings: In denying defendant’s automatic motion to modify jury’s verdict of death, trial court did re-weigh the evidence, used independent judgment, and did not decide arbitrarily or irrationally.

2. Cases

a. On the proposition that a trial court need not recount all the evidence presented in mitigation or in aggravation:

i. People v. Samayoa (1997) 15 Cal.4th 795, 860; 64 Cal.Rptr.2d 400; 938 P.2d 2: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

b. On the proposition that the trial court’s only obligation is to provide a ruling that allows for appellate review:

i. People v. Arias (1996) 13 Cal.4th 92, 191-192; 51 Cal.Rptr.2d 770; 913 P.2d 980: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

c. On the proposition that the trial judge’s function is to independently reweigh the evidence of aggravating and mitigating circumstances, and then to determine whether, in the judge’s independent judgment, the weight of the evidence supports the jury verdict:

i. People v. Weaver, supra, 26 Cal.4th at pp. 989-990; 111 Cal.Rptr.2d 2, 29 P.3d 103

F) Challenges to Death Penalty Law

1. Holdings: The death penalty is not unconstitutional for failing to adequately distinguish the cases in which the death penalty is imposed from the cases in which it is not. The death penalty likewise is not unconstitutional for failing to provide the jury with instructions on the burden of proof and the standard of proof for finding aggravating and mitigating circumstances in reaching a penalty determination. The sentencing statute is not unconstitutional. The death penalty is not unconstitutional on the ground it violates international norms.

2. Cases

a. On the proposition that the death penalty law is able to distinguish cases in which death is imposed from the cases in which it is not:

i. People v. Kennedy, supra, 36 Cal.4th at pp. 639-640; 31 Cal.Rptr.3d 160; 115 P.3d 472.

ii. People v. Bolden (2002) 29 Cal.4th 515, 566; 127 Cal.Rptr.2d 802; 58 P.3d 931: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

b. On the proposition that the sentencing factor allowing the jury to consider the circumstances of the crime does not result in arbitrary or capricious imposition of the death penalty:

i. People v. Kennedy, supra, 36 Cal.4th at p. 641; 31 Cal.Rptr.3d 160; 115 P.3d 472.

c. On the proposition that there is no constitutional right to conduct sequestered, individual voir dire of prospective jurors:

i. People v. Box (2000) 23 Cal.4th 1153, 1178-1182; 99 Cal.Rptr.2d 69; 5 P.3d 130: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

d. On the proposition that the death penalty statute is not unconstitutional for failing to provide the jury with instructions of the burden of proof and standard of proof for finding aggravating and mitigating circumstances in reaching a penalty determination:

i. People v. Morrison (2004) 34 Cal.4th 698, 730-731; 21 Cal.Rptr.3d 682; 101 P.3d 568: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

e. On the proposition that that the trial court need not and should not instruct the jury on the burden of proof at the penalty phase:

i. People v. Panah (2005) 35 Cal.4th 395, 499; 25 Cal.Rptr.3d 672; 107 P.3d 790: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

f. On the sufficiency of instructions that ask the jury to find for a penalty of death only if they are persuaded that the aggravating factors are substantial in comparison with the mitigating circumstances:

i. People v. Box, supra, 23 Cal.4th at p. 1216; 99 Cal Rptr.2d 69; 5 P.3d 130.

g. On the proposition that it is not unconstitutional to allow the jury to consider unadjudicated criminal activity, and doing so does not make the sentence unreliable:

i. People v. Morrison, supra, 34 Cal.4th at p. 729; 21 Cal.Rptr.3d 682; 101 P.3d 568.

ii. People v. Kipp (2001) 26 Cal.4th 1100, 1138; 113 Cal.Rptr.2d 27; 33 P.3d 450: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

h. On the proposition that recent United States Supreme Court decisions do not affect* the validity of California’s jury instructions, and the evidence California jurors are allowed to consider:

i. People v. Prince (2007) 40 Cal.4th 1179, 1297-1298; 57 Cal.Rptr.3d 543; 156 P.3d 1015: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

[* Editor’s note: The original decision reads “The United States Supreme Court decisions…do not effect or change these conclusions.” People v. Romero, supra, 44 Cal.4th at p. 429 (emphasis added). Given that “effect” as a verb means “to bring about,” and “affect” as a verb means “to have an influence on,” it seems clear that the court mistakenly interchanged the two. If there are concerns with this analysis, please contact the author of this piece, at luke@stanford.edu.]

i. On the constitutionality of the use of “extreme” and “substantial” in the statute’s sentencing instructions:

i. People v. Kennedy, supra, 36 Cal.4th at p. 641; 31 Cal.Rptr.3d 160; 115 P.3d 472.

j. On the proposition that the federal Constitution does not require intercase proportionality review:

i. People v. Kennedy, supra, 36 Cal.4th at p. 641; 31 Cal.Rptr.3d 160; 115 P.3d 472.

k. On the proposition that the absence of a disparate sentence review does not deny a defendant the constitutional right to equal protection:

i. People v. Brown, supra, 33 Cal.4th at p. 402; 15 Cal.Rptr.3d 624; 93 P.3d 244

l. On the proposition that sentencing factors are not constitutionally required to be identified as aggravating or mitigating:

i. People v. Earp (1999) 20 Cal.4th 826, 898; 85 Cal.Rptr.2d 857; 978 P.2d 15: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

m. On the proposition that the death penalty is not unconstitutional on the ground it violates international norms:

i. People v. Panah, supra, 35 Cal.4th at pp. 500-501; 25 Cal.Rptr.3d 672; 107 P.3d 790.

ii. People v. Hillhouse (2002) 27 Cal.4th 469, 511; 117 Cal.Rptr.2d 45; 40 P.3d 754: http://w3.lexis-nexis.com/research2/delivery/download/retrieve.do?filena...

G) Cumulative Effect of Alleged Errors

1. Holdings: Record of trial reveals only minor errors, which were not prejudicial. The jury’s decision was reliable.