Supreme Court of California Justia
Docket No. S097886

People v. Zaragoza

Filed 7/11/16



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S097886

v.

LOUIS RANGEL ZARAGOZA,

San Joaquin County

Defendant and Appellant.

Super. Ct. No. SP076824A



In February 2001, a San Joaquin County jury found defendant Louis Rangel

Zaragoza guilty of the 1999 first degree murder of David Gaines and the robbery

of William Gaines. (Pen. Code, §§ 187, 189.)1 The jury found true the robbery-

murder and lying-in-wait special circumstances — making defendant eligible for

the death penalty (§ 190.2, subd. (a)(15), (17)(A)) — and also concluded that

defendant personally used a handgun and caused a death in the commission of the

murder and robbery. (Former §§ 12022.5, subd. (a), 12022.53, subd. (d).)

Following the penalty phase trial, the jury returned a verdict of death. This appeal

is automatic. (§ 1239, subd. (b).) We reverse the death judgment because of error

in the death-qualification of the jury, but otherwise affirm.


1

All further undesignated statutory references are to the Penal Code.

1


I. FACTS

The judgment of death under review rests on the jury‘s finding that

defendant murdered David Gaines in the commission of a robbery and while lying

in wait. The prosecution‘s theory was that defendant and his brother, David

Zaragoza, together committed the robbery murder and that defendant was the

shooter. The brothers were originally charged in a single information. After

David Zaragoza was found incompetent to stand trial, defendant was tried alone.

A. Guilt Phase

1. The Prosecution’s Case

The murder victim was 36-year-old David Gaines. He worked with his

father, William Gaines, 87, at Gaines Liquors in Stockton. On Friday, June 11,

1999, David Gaines arrived for work in the afternoon, as usual. William Gaines

returned to the store around 7:00 p.m., bringing food his wife Mary had prepared.

Mary usually packed a meal and salad for her son on Friday nights because there

was no time for him to go out for a sandwich. The salad was in a fluted Pyrex

glass bowl with a blue lid.

After closing the store at 11:00 p.m., David and William Gaines drove in

separate cars back to their home, located at 1122 Cameron Way, in an

unincorporated area of Stockton. David Gaines parked his car in the garage;

William parked his in front of the house. When William Gaines got out of the car,

he was holding a brown paper bag in one hand and his keys in the other. On rare

occasions, William Gaines would bring home the day‘s receipts, but the paper bag

on this day contained only the Pyrex bowl. As soon as William Gaines shut the

car door, a man punched him in the chin and shoulder. With his other hand, the

man grabbed the bag containing the Pyrex bowl. William Gaines briefly fell to

one knee. When he got back up, he called out ―David‖ to his son. The assailant,

2

later identified by William Gaines as David Zaragoza, took off running in an

eastbound direction.

David Gaines rushed outside with a canister of Mace and said, ―Hey.‖

David Zaragoza was already 10 to 30 feet down the street, with his back to

William Gaines. Suddenly, William Gaines heard gunshots, so he ducked behind

his vehicle. He did not see any muzzle flash coming from the fleeing David

Zaragoza before he lost sight of his assailant. Seconds later, when the gunfire had

ceased, William found his son on the driveway in a pool of blood. David

Zaragoza and another man were running down the street. The men were 50 to 100

feet away, one trailing about 10 feet behind the other. William Gaines entered the

house to tell his wife what had happened and to call 911. The 911 call came in at

11:16 p.m.

Carol Maurer, who lived across the street and a little to the east of the

Gaines residence, testified that she looked outside her bedroom, the room closest

to the Gaines residence, after hearing gunfire. She saw two young men, medium

build and ―not too tall,‖ heading east. The men were running fast and only a few

feet apart. The one in back was wearing white. Maurer had told neighbor David

French at the scene that she saw two young people running down the street after

the shots were fired, and French in turn relayed that information to 911. Cindy

Grafius, who lived east of the Gaines family home on Cameron Way, heard four

loud ―pops‖ and then saw a person run by her driveway. She did not recall seeing

anything in this person‘s hands. By the time she walked outside her home, she

looked west and then east but did not see anyone.

David Gaines was not breathing and had no pulse when the paramedics

arrived. He suffered four gunshot wounds: one each to his head and wrist, and

two to his chest. The presence of soot indicated that these must have been contact

wounds, except for the wound to the head, where the muzzle would have been no

3

more than 18 inches away. The three bullets that could be recovered were so

damaged as to preclude the conclusion that they were fired by any particular gun,

but the criminalist was able to determine that they all could have been fired by the

same gun.

The prosecution theorized that the first shot, a defensive wound, hit David

Gaines‘s wrist and caused his watch to shatter and spread pieces over a large area.

The remaining shots, which were fatal, spun David Gaines around. Based on the

trajectory of the bullets, the northwesterly direction of the blood spatter, and the

recovery of a spent bullet in the next-door neighbor‘s yard to the east, the

prosecution argued that David Gaines must have been facing south, away from the

fleeing David Zaragoza but toward his killer, at the time he was shot. According

to the prosecution, this was the only explanation for the downward trajectory of

the bullets that entered David Gaines, who was taller than defendant or his brother

and was on a driveway that sloped up from the street toward the house.

Later that night, William Gaines scooped up some papers from the ground

near his car door. He assumed they must have fallen out of his shirt pocket when

he was accosted. The next morning, after looking at the papers, he realized they

were not his and called the San Joaquin County Sheriff‘s Department. The papers

included a number of items that bore David Zaragoza‘s name or fingerprints,

including a Medi-Cal identification card, a transit card, and a San Joaquin County

Medical Facility interoffice memo.

Meanwhile, at the crime scene, the sheriff‘s department had already

recovered a torn book-and-release form and another piece of paper with the words

―Mr. Zar‖ on it. Further research revealed that the form belonged to David

Zaragoza. The next morning, June 12, 1999, Detective Jerry Alejandre went to the

board and care home where David Zaragoza resided; David was not home.

Alejandre interviewed the caretakers and was shown photographs of David

4

Zaragoza and his family, including a single photo of defendant. When Detective

Alejandre returned to the board and care home in the afternoon, the photo of

defendant was missing from the display.

In his statement to police on June 12, 1999, David Zaragoza denied being

with defendant on the previous evening. A clinical psychologist who examined

David in January 2000 diagnosed him as suffering from chronic paranoid

schizophrenia, polysubstance abuse (in remission because of his incarceration),

and severe personality disorder with paranoid, antisocial, and schizotypal features.

David had borderline intellectual functioning, a verbal IQ of 61, a second grade

reading level, and a global assessment of functioning score indicating severe

impairment and psychosis.

On June 13, 1999, Detective Bruce Wuest went to 429 South Airport Way,

where defendant lived with his sister, Nina Koker, and her disabled husband, John

Koker, to search for evidence. In the garbage bin outside the Koker residence,

Wuest found a fluted Pyrex glass bowl, which had been wrapped in a plastic bag

from Grocery Outlet and placed in a white kitchen-size garbage bag. There was

oil inside the bowl, which was consistent with its having contained a salad. Mary

Gaines identified the bowl as the one she had used to pack dinner for her son on

the day he died. Wuest also found a small white bag containing a receipt from a

Jack in the Box on Pacific Avenue, which was less than a mile from the Gaines

residence, and an empty pack of Marlboro 100 Lights. The Jack in the Box receipt

was dated June 12, 1999, at 12:03 a.m. The garbage bin was otherwise empty, as

the garbage had been picked up on Friday, June 11.

Two days later, Wuest returned to the Koker residence and looked in the

garbage bin again. This time, he found the blue lid to the fluted Pyrex bowl. The

lid had been placed in a coffee can that was used for cigarette butts. Wuest

5

recalled seeing the coffee can inside the house during his earlier visit. Mary

Gaines identified the lid as hers.

No Pyrex products were found inside the Koker residence. Yolanda Tahod,

defendant‘s mother, confirmed that neither she nor her daughter owned any Pyrex

bowls of the type found in the garbage at the Koker residence. Koker claimed that

she sometimes would put plastic containers of dog food in the refrigerator, forget

about them, and then throw them away when she was cleaning up. She did not

know whether she had thrown any bowls away between that Friday, when the

garbage was picked up, and that Sunday, when the police found the Pyrex bowl in

the garbage can. Nor did she know how the blue lid to the Pyrex bowl came to be

in the coffee can.

On Sunday, June 13, 1999, defendant voluntarily went to the sheriff‘s

department for a videotaped interview. The jury viewed excerpts from that

interview, as well as excerpts from defendant‘s interview the next day following

his arrest. During the first interview, defendant admitted that he had been with his

brother on Friday night, but denied any involvement in the robbery or murder.

According to defendant, David Zaragoza had called on Friday to ask whether he

could spend the night at the Koker residence. Defendant secured permission from

his sister and called his brother back to tell him that he would be picked up after

their mother dropped off the car. (Koker, however, testified that she had not given

permission for David to sleep over that night.) Defendant picked up David around

9:30 p.m. in front of the board and care home. David, who (according to

defendant) often dresses ―weird,‖ was wearing a white tuxedo vest and gray or

6

blue pajama-style pants from the Stockton State Hospital.2 Defendant complained

that his hands were numb and tingling from his work as a welder, and asked David

to rub some ointment on his hands and feet. After David did so, defendant fell

asleep. When defendant woke up between 11:00 p.m. and 11:30 p.m., David was

gone. Defendant estimated that he must have fallen asleep between 10:00 p.m.

and 10:30 p.m. David called the next morning to explain that he had decided to

leave the previous night because he was hearing voices. Defendant said he left for

work on Saturday morning around 4:45 a.m., but was told when he arrived that

there was no work for him.

After defendant was arrested and reinterviewed on June 14, 1999, he told

police that David Zaragoza wanted to spend Friday night at the Koker residence,

that defendant picked David up and brought him to the house between 9:45 p.m.

and 10:00 p.m., that David was wearing a white vest and tennis shoes, that

defendant asked David to massage a sports cream into his aching feet, that

defendant fell asleep around 10:30 p.m., and that defendant woke up around 11:30

p.m. or 11:45 p.m. to find that David was gone. The following afternoon, David

called defendant to explain that he had left because he was hearing voices and

could not get any medication until Monday. When defendant asked David about

his two visits with the police, David said, ―I got nothing to worry about, because I

ain‘t did nothing.‖ Defendant admitted that he was the person who empties the

trash at the Koker residence, but said he had no knowledge about the bowl that

was found in the garbage can outside the house. He did point out, though, that his


2

David Zaragoza was wearing those pants when he was interviewed on June

12, 1999, and likewise told police he had been wearing those same pants, which
had no pockets, the night before.

7

sister ―throws a lot of bowls away.‖ He also denied going to Jack in the Box that

night. He added that his sister eats a ―lot‖ of fast food.

Defendant and his mother, Yolanda Tahod, told police that David Zaragoza

did not drive and that they had never known him to drive. Stella Lee Tahod,

defendant‘s sister-in-law, believed that she had seen David drive in 1985 or 1986;

David, however, had been in prison for all but four months in 1985 and all but two

months in 1986. Eddie Tahod, defendant‘s half brother, recalled that David had

driven as a teenager, 20 to 25 years earlier. Yolanda Tahod testified at trial that

David had driven a car before, but not since 1975. Yolanda Tahod also testified

that she regularly let defendant use her car, a beige Honda, to drive back and forth

to work and that she returned the car to defendant around 7:00 p.m. on the night of

the murder.

Billy Gaines, grandson of William Gaines and nephew of David Gaines,

testified that defendant came into the liquor store in the early afternoon on the day

before the murders to buy a beer. Defendant pointed to a ―funny‖ ball behind the

counter and asked what it was. Billy Gaines told defendant it was a camera.

Defendant asked whether it worked and, before leaving, said ―Cool, pretty neat.‖

Defendant‘s timesheet, however, showed that he was at work in Tracy until 4:32

p.m. that day.

Paul Banning, who worked evening shifts at the liquor store, testified that

he had seen defendant there on occasion. He, like Billy Gaines, did not remember

ever seeing David Zaragoza.

Howard Stokes, who lived down the street from the Gaines family, testified

that William Gaines came home from closing the store each night at the same

time. On Monday, June 7, 1999, four days before the murder, Stokes was walking

his dog when he saw a male, possibly Latino, with a stocky build, between five

feet six inches and five feet eight inches tall, get out of a green minivan and walk

8

towards the Gaines residence. When William Gaines drove up to the house,

however, the man hid behind a tree. As Stokes and the man walked on opposite

sides of Cameron Way in the same direction, Stokes saw what appeared to be

some sort of coating on the man‘s face, which gave the man a ―scary‖ look.

Stokes was not sure whether the man had facial hair. (Defendant had a very full

mustache at the time.)

Stanley Monckton, who lived on Cameron Way near the Gaines family,

testified that he was watering his lawn around noon on Saturday, June 12, 1999,

the day after the murder, and saw defendant driving a car — an older white or

cream Honda, like the car defendant typically drove — that seemed to be out of

place in the neighborhood. Defendant drove by slowly.

In an effort to challenge defendant‘s claim that his sister, Nina Koker, must

have visited Jack in the Box just after midnight on Saturday, June 12, 1999, the

prosecution offered evidence that Koker and the man who became her fiancé,

Raymond Padilla, visited Padilla‘s cousin, Marcus Anthony Ellsworth II, on June

11 for dinner at his home. Ellsworth testified that Koker realized at the end of the

night that she had locked her keys in her car and had to call a locksmith, who took

30 to 45 minutes to arrive. Ellsworth estimated that Koker left between 1:00 a.m.

and 2:00 a.m.

Koker, on the other hand, denied having anything to eat that night until she

stopped at the Jack in the Box on her way home. Koker agreed that she and

Padilla had gone to Ellsworth‘s house that evening for a barbecue, but claimed that

there was no food because Ellsworth‘s parents had gone to Reno for their

daughter‘s graduation. Koker said the three of them watched television all

evening instead. She did not realize she had locked her keys in the car until it was

time to leave. She was able to retrieve her keys 10 or 15 minutes before midnight,

9

went to Jack in the Box, and got home around 12:25 a.m. Koker said she got up

for work less than three hours later.

Padilla could not recall whether they ate anything at Ellsworth‘s home. He

said Koker left around midnight, between five and 20 minutes after the locksmith

retrieved her keys from the locked car.

The bookkeeper at Cecil‘s Security Systems testified that Koker‘s request

for assistance with a locked car was received at 11:51 p.m., that a locksmith

arrived at 11:59 p.m., and that the work was completed at 12:08 a.m. — five

minutes after the time stamped on the Jack in the Box receipt. The Jack in the

Box on Pacific Avenue was about a quarter-mile from Ellsworth‘s house.

2. The Defense Case

Detective Alejandre testified that William Gaines did not claim when

interviewed at the scene to have observed two people running away after shots

were fired. In fact, Gaines told Alejandre that he did not see anyone other than the

man who assaulted him.

When Deputy Sheriff Daniel Anema spoke to Carol Maurer around 12:30

a.m. on June 12, 1999, Maurer was very shaken up and did not give her name.

Anema found it difficult to get information out of her. Maurer said she heard four

shots and then saw two White males running down the street. A defense

investigator, Wilson Stewart, talked with Maurer in May 2000. Maurer told

Stewart that she heard the shots and then saw two ―Mexican boys‖ fleeing.

Stewart also talked with Howard Stokes, who said that David Zaragoza‘s

10

photograph was ―consistent‖ with the person he had seen on June 7, 1999, who did

not have a mustache like the one depicted in defendant‘s newspaper photograph.3

Antoinette Duque, defendant‘s former girlfriend, testified that defendant

called her three times between 6:24 a.m. and 10:42 a.m. on Saturday, June 12,

1999. In the early morning of June 14, 1999, defendant called to say that he

believed he was going to be arrested.

James Allen, a caretaker at the group home where David Zaragoza lived,

testified that David was absent from the home during the evening of the murder

but returned sometime during the 10 o‘clock news. Allen stated that the weekend

curfew at the group home was between 10:00 p.m. and 11:00 p.m. Ernie

Williams, who was David‘s roommate at the group home, told Detective Wuest

that David came home near the end of the Late Night with David Letterman show,

which began at 11:00 p.m.

Kimberly Kjonaas, a senior psychiatric technician for the San Joaquin

County Mental Health Department, testified that David Zaragoza came to the

clinic in the morning of June 13, 1999. He claimed that he was sick and needed to

be admitted for treatment. Although David strained to defecate in his pants and

then smeared feces on his shirt, Kjonaas did not have a basis to commit him at that

time.


3

By the end of the case, the prosecution no longer insisted on the theory that

Stokes had seen defendant — rather than his brother David, who was of similar
height and build — on that Monday night. The prosecution focused instead on
evidence establishing that defendant and his brother were together that evening:
defendant had picked up David from Eddie Tahod‘s house before 9:00 p.m. on
Monday; defendant stopped next at Gaines Liquor Store, which was two or three
blocks away, to pick up cigarettes for his brother; and the two of them then went
to the Back Door bar for about an hour.

11

David Zaragoza‘s mother testified that David had a temper and that what he

said sometimes did not make any sense.

The defense commissioned an animated recreation depicting its version of

the events surrounding the murder and showed it to the jury. The depiction

assumed that David Zaragoza knew how to drive, that David Zaragoza took the car

from the Koker residence without permission, that he returned to the group home

between 10:00 p.m. and 10:30 p.m., that he drove from there to the Gaines

residence, that a number of identifying papers spilled out of his pocket when he

pulled out a gun and shot David Gaines, that he placed the bag containing the

Pyrex bowl into the garbage can at the Koker residence around 11:30 p.m., and

that he left the car there and walked back to the group home, which was over two

miles away. The animation did not explain how the bag containing the bowl was

placed in a Grocery Outlet bag or how the lid got into the Koker residence. The

information underlying the animation came from defense counsel, not from

transcripts of the trial or statements made by defendant.

Nina Koker told police that she smoked Marlboro Lights, which was the

brand of the empty pack that police found in the Jack in the Box bag. When

defendant was interviewed by police on June 14, 1999, he was smoking Camel

cigarettes.

3. Rebuttal

Psychiatrist Kent Edward Rogerson, who evaluated David Zaragoza in

2000 and found him incompetent to stand trial, testified that David was

intellectually disabled, had reduced activity in the parts of the brain associated

with executive functioning, and was very easily led. Rogerson opined that

David‘s illness was ―variable‖ and that he was capable of goal-directed behavior

as well as great violence.

12

B. Penalty Phase

1. Prosecution Evidence

The prosecution presented evidence of defendant‘s prior crimes as well as

testimony from David Gaines‘s family about David‘s life and the effect of his

murder.

On September 21, 1975, defendant, then 15, and Daryl Thomas, 19,

planned to rob a liquor store in Stockton. Upon arriving at the store, defendant

recognized the clerk and decided not to commit the robbery. After a bite to eat,

defendant and Thomas robbed a cab driver, Benny Wooliver. Thomas shot the

driver behind the right ear and killed him. They took $50 and fled from the cab,

which had jumped the curb and hit a tree and a house.

Defendant and Thomas were picked up in a van driven by their friend

Gilbert Renteria, who was with three male occupants. This larger group decided

to rob a 7-Eleven store in north Stockton. One of the van occupants, Marcus

Duron, took the money from the cash register. Before leaving the store, defendant

fired twice, hitting the store clerk, Dale Sym, once in the small of his back. The

other bullet passed through Sym‘s shirt and hit a slushie machine. Renteria and

Duron got back to the van first and drove off at high speed. Police stopped the van

shortly thereafter and arrested the occupants. Defendant, who had been left

behind, stole a bicycle and rode home. The van‘s occupants implicated him in the

robbery, and he surrendered to police three days later.

Defendant admitted to first degree murder as an aider and abettor, was

committed to the California Youth Authority, and was released five years later.

During Thomas‘s trial for Wooliver‘s murder, defendant testified that he had shot

the victim and that Thomas was not even in the cab at the time. Thomas was

nonetheless convicted of first degree murder.

13

On December 24, 1980, defendant was stopped while driving and was

found in possession of stolen property. In addition, a .22-caliber pistol was found

underneath the car‘s right rear seat, and a shortened rifle with a ―banana clip‖ was

found in the trunk. He was sentenced to prison.

On July 6, 1982, the FBI and the Stockton Police Department, based on a

tip, were able to thwart the robbery of a Bank of America branch in Stockton. One

of defendant‘s accomplices, who discharged his weapon immediately upon

entering the bank, was shot by an FBI agent. This accomplice managed to shoot

and wound another FBI agent before dying. Another accomplice was shot and

wounded trying to run from the scene. Defendant initially pointed his sawed-off

shotgun at an FBI agent when ordered to drop his weapon, but complied with the

order when an agent on top of the building fired a warning shot. Subsequent

inspection of defendant‘s shotgun revealed that it had malfunctioned. Defendant

was sentenced to federal prison for his part in the attempted bank robbery and was

released in October 1998.

David Gaines was described as an innocent and gentle son, brother, and

uncle, who enjoyed gadgetry, flying airplanes, history, and his family. David

lived with his parents, who were both over 80 years old, and was the son who

helped out the most at the liquor store. David‘s parents were convinced they

would not have another good day for the rest of their lives.

2. Defense Evidence

Defendant testified at his penalty trial. He started skipping school in junior

high, ―took off‖ from juvenile hall but turned himself in, and then was sent to the

California Youth Authority when he was 12 or 13. After he was released from the

Youth Authority in 1975, he lived on the streets and met Daryl Thomas. He and

Thomas committed four or five strong-arm robberies of people on the street. He

14

admitted his involvement in planning to rob a liquor store, robbing a cab driver,

robbing a 7-Eleven, and shooting the 7-Eleven clerk. Defendant said he agreed to

testify at Thomas‘s trial because Thomas was facing a sentence of life in prison

and defendant felt sorry for Thomas, who was the father of a newborn baby.

Defendant also admitted burglarizing some homes just before he was pulled over

and arrested for receiving stolen property in 1980.

When defendant was released from state prison, he joined a crew of friends

and committed five bank robberies in a 30-day period. Defendant said that he was

armed with a sawed-off shotgun during the attempted robbery at the Bank of

America, but that he had broken the firing pin to render it inoperable prior to the

robbery. Over the course of his 16 years in federal prison, defendant came to

realize that he wanted the family life that his brothers and sisters had.

When defendant was released from federal prison in October 1998, he

completed Delta College courses in machinery and welding and got a job as a

welder in April 1999, after passing a welding test, a physical exam, and a drug

test. This was his first regular job, and it made him feel proud. He worked six

days a week, spent Sundays with Duque, who was at first his girlfriend and then

just a friend when his desire to start a family could not be reconciled with her lack

of interest in having more children. He also went to church regularly.

Defendant admitted driving David Zaragoza home from Eddie Tahod‘s

house on the Monday prior to the murder and testified that they stopped at Gaines

Liquors before dropping David at the board and care home. But he denied going

to the Back Door bar that evening, although he conceded that he and David had

gone there some other evening. Defendant‘s description of his actions on the night

of the murder and his conversation with his brother David the next day largely

tracked the version he had given in his police statements.

15

Defendant‘s mother, Yolanda Tahod, testified that defendant‘s father, Louis

Zaragoza, Sr., often beat her and that the family was on welfare much of the time

because her husband could not keep a job. Louis, Sr., often drank and physically

and verbally abused the children, particularly David and defendant. In 1967,

Yolanda Tahod separated from Louis, Sr., after he was hospitalized for digging a

grave big enough for the whole family in their backyard, and left Los Angeles.

Defendant was seven years old. She moved the children to Stockton and married

Albert Tahod a year later. Shortly thereafter, Louis, Sr., kidnapped the children,

but was arrested on the freeway. Yolanda and Albert drank a lot, and Yolanda

started to neglect her children.

Defendant‘s troubles with the law coincided with the family‘s move to

Stockton. He began shoplifting at seven, was arrested for shoplifting and

malicious mischief at 11, and was arrested for shoplifting, vehicular burglary, and

glue-sniffing at 12. He was made a ward of the juvenile court. The family

believed that Ruben Arellano, Sr., a counselor at the Youth Authority and old

enough to be defendant‘s father, had a negative influence on defendant.

Defendant was driving Arellano‘s car at the time he was arrested for receiving

stolen property, and it was Arellano who connected defendant, once he was

released from prison, with a woman who organized bank robberies.

Yolanda and other family members testified that defendant decided to

change his life upon his release from prison in 1998: he reestablished his

relationship with her, his siblings, and their children with the help of religion;

attended college welding classes and got a job he enjoyed; had a girlfriend and

wanted to start a family; and made arrangements to borrow money from his half

brother Eddie to purchase a car. David, on the other hand, was known for his

bursts of anger and his delusions of persecution.

16

When David Zaragoza called his mother on the night of the murder, he told

her that defendant had fallen asleep while he was massaging defendant‘s feet and

that he was going to walk home. A week after David was arrested, he admitted

taking her car to commit the robbery and killing David Gaines. He said he needed

money to buy rock cocaine.

On June 21, 1999, David Zaragoza told his brother Reynaldo that he left the

house after defendant fell asleep and met up with an unknown White man who

offered him a ride. While in the vehicle, he saw a revolver. The White man, who

had long blond hair, a thin build, and raggedy clothing, drove to somewhere in

north Stockton and shot someone at a residence before taking David home.

During defendant‘s trial, David told family members visiting him at Napa

State Hospital that he had committed the shooting himself. David recounted to

them that he had needed drugs, and a White male he did not know had handed him

a gun. David then drove off in his mother‘s car. After the shooting, he sold the

gun for drugs, drove back to Nina‘s house, left the car there, and walked home.

David also stated four times during a pretrial hearing that he had shot and killed

David Gaines and added that he wanted to be sentenced that day. Later in the

hearing, David pulled down his pants and defecated in the courtroom.

A crisis clinician at the San Joaquin County Mental Health Services

considered David a danger to others, based on an assessment he had conducted in

February 1999, and testified that David had stopped taking his medications at that

time, was abusing drugs, and indicated he might kill himself or others.

Defendant attended Bible study and religious services in jail while awaiting

trial in this case. Defendant recruited other inmates to participate and hold Bible

study on days when the prison ministry was not present. A number of fellow

inmates testified that they gained salvation and the determination to improve their

lives as a result of defendant‘s ministry.

17

3. Rebuttal

Yolanda Tahod spoke with a district attorney investigator on August 3,

1999. According to Yolanda, David Zaragoza told her he had been walking to a

donut shop on Charter Way to buy a soda when he approached a White man in a

car. The White man offered to give him some change if David went with him. The

White man then drove to a residence in north Stockton and shot somebody. Later

in the conversation, David told his mother that he killed a man. As he was on

medication, he did not remember everything about it, but did know that he didn‘t

mean to do it.

Stella Tahod, defendant‘s sister-in-law, told an investigator working for

David Zaragoza that David had called her from the county jail on August 12,

1999, to say, ―I‘m getting 250 milligrams of Haldol. Then they wonder why we

shot that man.‖ Stella, however, denied telling the investigator that David had said

―we.‖ During a jail visit that same day, David told Eddie Tahod, Stella‘s husband

and defendant‘s half brother, that he left the house after defendant had fallen

asleep, that he was picked up by a White man in a car, that the White man flashed

a gun, and that he then dozed off. David did not mention anything about a

shooting.

During a police interview on June 12, 1999, David said he had not been

with defendant at all the night before. David said instead that he had walked to a

Taco Bell from the board and care home, did not mention meeting any White man,

and denied any involvement in the murder. Yolanda initially denied to police that

David had contacted her on the night of the murder, but admitted on June 21,

1999, that such a call occurred. She could not remember what David had said.

18

II. JURY SELECTION ISSUES

A. Asserted Error in Excusing Jurors for Cause

Defendant contends that the trial court erred by dismissing two prospective

jurors based solely on responses in their written questionnaires concerning the

death penalty. We conclude that the dismissal of one juror was error, requiring

reversal of the penalty judgment.

The Sixth and Fourteenth Amendments to the United States Constitution

guarantee a criminal defendant the right to an impartial jury that has not been tilted

in favor of capital punishment by prosecutorial challenges for cause. (Uttecht v.

Brown (2007) 551 U.S. 1, 9.) To protect that right, a challenge for cause because

of a prospective juror‘s views on the death penalty may properly be sustained only

when ―the juror‘s views would ‗prevent or substantially impair the performance of

his duties as a juror in accordance with his instructions and his oath.‘ ‖

(Wainwright v. Witt (1985) 469 U.S. 412, 424.) Thus, a death sentence cannot

stand if the jury that imposed or recommended the penalty was selected by

excluding prospective jurors for cause ―simply because they voiced general

objections to the death penalty or expressed conscientious or religious scruples

against its infliction.‖ (Witherspoon v. Illinois (1968) 391 U.S. 510, 522.) Even

those who ―firmly believe that the death penalty is unjust may nevertheless serve

as jurors in capital cases so long as they state clearly that they are willing to

temporarily set aside their own beliefs in deference to the rule of law.‖ (Lockhart

v. McCree (1986) 476 U.S. 162, 176.)

When the trial court‘s assessment of a prospective juror‘s capacity to serve

is based at least in part on the juror‘s tone, demeanor, or other elements that

cannot be reflected in the written record, its ruling is owed deference by reviewing

courts. (People v. Avila (2006) 38 Cal.4th 491, 529.) But no such deference is

19

warranted when a trial court‘s ruling on a for-cause challenge is based solely on

the prospective jurors‘ answers to a written questionnaire. (Ibid.) In those

circumstances, we review de novo the trial court‘s dismissal of the prospective

juror for cause. (People v. Riccardi (2012) 54 Cal.4th 758, 779.)

1. Prospective Juror No. 129

Prospective Juror No. 129‘s questionnaire responses reflected the extent of

her personal opposition to the death penalty. When asked whether she had any

religious convictions that would in any way interfere with her ability to sit as a

juror in a capital case, Juror No. 129 answered ―Yes‖ and wrote ―Don‘t feel I have

the right to decide if a person is to die.‖ A similar question 11 pages later asked

whether she had any religious, moral, or personal beliefs that would make it

difficult to impose the death penalty. She responded ―Yes‖ and wrote ―Don‘t

believe I have the right to make judgement [sic] for another human being to die.‖

The juror provided a very similar answer when asked for her ―general feelings

about the death penalty.‖ When asked if there were ―particular reasons‖ for her

feelings on the issue, the juror responded ―No[,] other than moral,‖ and referred to

her earlier responses. Near the end of the questionnaire, the juror answered ―No‖

when asked whether her ―answers given above‖ were ―based on a religious

consideration‖ but then said ―Somewhat‖ when asked in question No. 19 whether

she believed ―that any religious beliefs [she] may have would have a substantial

impact on [her] decision in this case.‖

What her responses to the same questionnaire also suggested, though, is

that Juror No. 129 could nonetheless put aside her views about capital punishment

in determining the appropriate penalty in this case. In the section entitled

―Attitudes Regarding The Death Penalty,‖ she stated without qualification that she

would not refuse to find the defendant guilty of first degree murder just to prevent

20

the penalty phase from taking place, nor would she refuse to find a special

circumstance allegation true just to prevent a penalty phase from taking place. She

also conveyed that she would not automatically vote for life imprisonment without

the possibility of parole ―because of any views [she] may have concerning the

death penalty,‖ that she would not substitute a different standard of proof in a

capital case, and that she would be able to follow the court‘s instructions not to

consider the issue of penalty during the guilt phase and not to consider the relative

costs of execution and life imprisonment in deciding the penalty. Moreover, when

asked in question No. 9d, assuming she was in the penalty phase of the trial,

―Could you set aside your own personal feelings regarding what the law in this

case ought to be and follow the law as the court explains it to you?,‖ the juror

answered, ―Yes.‖

When the prosecutor then challenged Juror No. 129 for cause based on her

religious beliefs, defense counsel objected: ―I don‘t believe she‘s presented an

unwillingness to follow the law.‖ The trial court initially expressed some

uncertainty about the juror‘s responses, and the adequacy of some of the questions.

With respect to question No. 19 in particular, which asked whether the juror

believed her religious beliefs would have a substantial impact on her decision, the

court admitted, ―I don‘t think it was a very good question. We probably should

have elaborated a little bit on this.‖ Nonetheless — and based solely on the

written responses in the questionnaire — the trial court excused the juror, citing

only in a conclusory fashion ―a substantial impairment to prevent her ability to be

neutral‖ and to ―follow the Court‘s instructions.‖

Reviewing that ruling independently, we conclude the trial court erred. The

prosecution, as the party making the challenge, had the burden to establish the

juror‘s impairment. (People v. Stewart (2004) 33 Cal.4th 425, 445 (Stewart).) In

assessing whether the prosecution carried its burden, the question is not whether

21

the record might reasonably have supported a finding that the juror was unwilling

to follow instructions pertaining to the death penalty. Rather, a prospective juror

may be discharged for cause solely on the basis of written questionnaire responses

only if it is ―clear‖ from those responses that the juror is unable or unwilling to

temporarily set aside the juror‘s beliefs and follow the law. (People v. Riccardi,

supra, 54 Cal.4th at p. 781, fn. 11; People v. Avila, supra, 38 Cal.4th at p. 531; see

also People v. McKinnon (2011) 52 Cal.4th 610, 647-648.) Where a prospective

juror‘s written responses are ambiguous with respect to the individual‘s

willingness or ability to follow the court‘s instructions in a potential penalty phase,

the record does not support a challenge for cause. (Stewart, at pp. 448-449.)

The for-cause challenge should not have been sustained on this record. A

prospective juror‘s conscientious objection to capital punishment is not by itself a

sufficient basis for excluding that person from jury service. (Stewart, supra, 33

Cal.4th at p. 446.) Although the juror here also stated that her beliefs would make

it ―difficult‖ to vote for execution, we have explained that ―[b]ecause the

California death penalty sentencing process contemplates that jurors will take into

account their own values in determining whether aggravating factors outweigh

mitigating factors such that the death penalty is warranted, the circumstance that a

juror‘s conscientious opinions or beliefs concerning the death penalty would make

it very difficult for the juror ever to impose the death penalty is not equivalent to a

determination that such beliefs will ‗substantially impair the performance of his

[or her] duties as a juror‘ . . . .‖ (Id. at p. 447.) That is especially true here, where

the juror affirmed that her personal views would not control her approach to

various aspects of the case and that she could set aside her personal feelings and

follow the law as instructed by the court.

As the People point out, the prospective juror‘s responses also raised the

possibility that her religious views could have interfered with her ability to sit as a

22

juror. Indeed, she believed ―[s]omewhat‖ that these views could have a substantial

impact on her decision in the case. We need not decide whether these responses

alone would have sufficiently buttressed a challenge for cause, though, because we

conclude that even if these responses could have been disqualifying in the absence

of any contrary responses, the prospective juror‘s other responses in this case also

mattered. At most, the prospective juror‘s concerns about the death penalty

created an ambiguity when considered together with the juror‘s other responses.

(See People v. Avila, supra, 38 Cal.4th at p. 533 [analyzing the prospective juror‘s

written responses ―taken together‖].) Not only did the juror‘s responses indicate

that she would not always or automatically reject the death penalty, but she also

answered ―Yes‖ to the question that ― ‗directly address[ed] the pertinent

constitutional issue‘ in Witt — i.e., whether the prospective juror could

temporarily set aside his or her personal beliefs and follow the court‘s instructions

in determining penalty.‖ (People v. McKinnon, supra, 52 Cal.4th at p. 645.)

On voir dire, the juror might have demonstrated that her personal beliefs

were of such overwhelming weight that they would substantially burden her

ability to fulfill her oath at a potential penalty phase. (See People v. Nunez and

Satele (2013) 57 Cal.4th 1, 23-24 [deferring to the trial court‘s resolution of the

prospective juror‘s equivocal and conflicting responses on the questionnaire and in

voir dire]; People v. Whalen (2013) 56 Cal.4th 1, 48 [―Although her written

questionnaire responses were somewhat ambiguous, her answers on oral voir dire

made it quite clear that because of her beliefs, she was unwilling to vote to impose

the death penalty under any circumstances, even if this were the most ‗horrible

crime in history.‘ ‖].) Alternatively, the juror might have reaffirmed in open court

her written response to question No. 9d that she would set aside those views and

follow the court‘s instructions. But such further probing never took place, and

nothing in the record suggests that the trial court had a clear basis on which to

23

resolve the ambiguity. (People v. Riccardi, supra, 54 Cal.4th at p. 782.).

Accordingly, the juror‘s written responses do not clearly establish that she should

have been disqualified. (See Stewart, supra, 33 Cal.4th at pp. 448-449.)

People v. Duff (2014) 58 Cal.4th 527 underscores this very point. There, a

prospective juror‘s questionnaire revealed ―someone profoundly conflicted as to

whether she could ever personally vote to impose the death penalty.‖ (Id. at p.

541.) After identifying herself as Catholic, the juror stated that she did not believe

she could send someone to his or her death, that she believed only God had the

right to take away life, that the conflict between her beliefs and the efficacy of

deterrence was one that she has ― ‗not yet been able to resolve,‘ ‖ but that she

would ― ‗err on the side of God.‘ ‖ (Id. at pp. 541-542.) On the other hand, the

juror also responded that she could give honest consideration to both penalties,

that her views would not cause her automatically to vote against the death penalty,

and that she ― ‗would follow the law‘ ‖ — even though she was ― ‗not sure [she]

could live with it‘ ‖ and recognized that God would hold her ― ‗accountable‘ ‖ for

her acts. (Id. at p. 542.) Because the questionnaire left it ―unclear‖ whether the

prospective juror was could or would follow the law, we found that the trial court

and counsel then ―appropriately‖ used voir dire to resolve the ambiguity. (Ibid.)

The People seek to rely on People v. Avila, supra, 38 Cal.4th 491. But that

reliance is misplaced. Although the questionnaire responses of Prospective Juror

O.D. in that case included an acknowledgement at the outset concerning a juror‘s

duty to follow the law and an indication that the juror could set aside his feelings

and follow the law, O.D. nonetheless went on to respond that he would, in every

case and regardless of the evidence presented, ―automatically vote for something

other than first degree murder so as not to reach the penalty phase, automatically

vote for a verdict of not true as to the special circumstances alleged so as not to

reach the penalty phase, and, automatically vote for life imprisonment without the

24

possibility of parole if there were a penalty phase.‖ (Id. at p. 532.) O.D. also

wrote, ― ‗I was taught that there should be no reason to kill and I will continue to

think this way.‘ ‖ (Ibid.)

In contrast to the situation we encountered in Avila, Prospective Juror No.

129‘s written responses did not clearly reveal personal views that would interfere

with her ability to judge the penalty based on the evidence presented. Rather –– as

in Duff –– her written responses, at worst, left it uncertain whether she had the

ability to perform as a juror. Because those responses did not ―clearly reveal‖ an

inability to perform her duties, the trial court erred in granting the prosecution‘s

challenge for cause without examining the juror in court to ascertain her true state

of mind. (People v. Riccardi, supra, 54 Cal.4th at p. 782.) When a trial court errs

in excusing a prospective juror for cause because of that person‘s views

concerning the death penalty, we must reverse the penalty. We do so in this case.

(Id. at p. 783; accord, Gray v. Mississippi (1987) 481 U.S. 648, 659-667.)

2. Prospective Juror No. 16

Prospective Juror No. 16, was examined in court after completing the

questionnaire. Her written and oral responses conveyed inconsistent views about

the death penalty. At first, her questionnaire responses indicated that she had no

religious, moral, or personal beliefs that would interfere with her ability to impose

the death penalty. Yet when asked for her general feelings about the death

penalty, she wrote, ―I don‘t feel that I would be able to take a life‖ and added that

the death penalty served no purpose. Although she stated that she would

automatically refuse to vote for the death penalty without regard to any

aggravating or mitigating factors regarding the crime and the defendant‘s

background and character, she said she would change her answer and set aside her

views and follow the law if so instructed by the court. On the other hand, when

25

asked if she would be able to follow an instruction not to consider the monetary

cost of keeping the defendant in prison for life or executing him, she marked

―No.‖

During voir dire, the juror disavowed her questionnaire response and said

she would be able to disregard the monetary cost of keeping defendant in prison or

executing him. When asked why she had said otherwise on the questionnaire, she

replied, ―Well, I really don‘t feel that I should be — should take — or be a part of

taking another person‘s life. [¶] But if the law says you — I have never broken

the law in my life, and I don‘t intend to do one now.‖ She also said she would be

able to follow the law as well as weigh and consider the aggravating and

mitigating circumstances. The prosecutor challenged the prospective juror on the

basis of her ―contradictory‖ and ―conflicted‖ answers. He also noted that she was

not being forthcoming, that she rolled her eyes upon being called into the jury box,

that she seemed ―pretty entrenched in her views‖ — and therefore suspected that

she had ―an agenda.‖ Defense counsel admitted that ―there‘s some ambivalence‖

in the juror‘s responses, but argued that she did not exhibit ―the inability to follow

the law that I think is required.‖ The trial court agreed with counsel that the

juror‘s responses could be viewed as ―equivocal.‖ Based on its finding that the

juror‘s true views would ―substantially impair‖ her ability to impose the death

penalty, the trial court sustained the challenge.

The trial court was able to observe and speak with the prospective juror, so

we review its ruling for abuse of discretion. (People v. Scott (2015) 61 Cal.4th

363, 378-379 (Scott).) The juror here stated on her questionnaire that she would

not be able to follow the court‘s instruction to disregard the monetary cost of

imprisonment or execution in selecting the appropriate penalty. In voir dire, she

changed course and said she would be able to follow the court‘s instructions on

this topic, connecting her prior answer to her reluctance to be involved with the

26

death penalty. We defer to the trial court‘s resolution of these conflicting

responses, because that court had the opportunity to assess the juror‘s tone,

apparent level of confidence, and demeanor. (People v. Capistrano (2014) 59

Cal.4th 830, 862.)

B. Asserted Error in Denying Defendant‘s Batson/Wheeler Motion

Defendant, who is Latino, contends that the prosecutor violated his state

and federal constitutional rights to equal protection and a jury drawn from a fair

cross-section of the community by peremptorily excusing two Latino prospective

jurors, L.R. and R.C. (See Batson v. Kentucky (1986) 476 U.S. 79; People v.

Wheeler (1978) 22 Cal.3d 258.) The claim lacks merit.

The familiar Batson/Wheeler inquiry consists of three distinct steps. The

opponent of the peremptory strike must first make out a prima facie case by

showing that the totality of the relevant facts gives rise to an inference of

discriminatory purpose. If a prima facie case of discrimination has been

established, the burden shifts to the proponent of the strike to justify it by offering

nondiscriminatory reasons. If a valid nondiscriminatory reason has been offered,

the trial court must then decide whether the opponent of the strike has proved the

ultimate question of purposeful discrimination. (Johnson v. California (2005) 545

U.S. 162, 168; Scott, supra, 61 Cal.4th at p. 383.) Because the trial court ruled

that defendant had failed to make out a prima facie case of discrimination, but did

so in reliance on ―the since disapproved ‗strong likelihood‘ standard,‖ we

independently review the record then before the trial court to determine whether it

supports an inference that the prosecutor excused either of these jurors on the basis

of race. (People v. Edwards (2013) 57 Cal.4th 658, 698.)

Defendant‘s claim of discrimination rested solely on the fact that the

prosecutor exercised his first two peremptory challenges against Latino

27

prospective jurors and that defendant was Latino. We have previously recognized

that removing members of an identifiable group, where the defendant is a member

of that group, is a fact that ―may prove particularly relevant‖ to the first-stage

inquiry. (Scott, supra, 61 Cal.4th at p. 384.) But a prima facie case of

discrimination can be established only if the totality of the relevant facts gives rise

to an inference of discriminatory purpose. A court, in particular, may also

consider nondiscriminatory reasons ―that are apparent from and ‗clearly

established‘ in the record [citations] and that necessarily dispel any inference of

bias.‖ (Ibid.)

The record in this case clearly establishes nondiscriminatory reasons for

excusing Prospective Jurors L.R. and R.C. L.R.‘s questionnaire responses

revealed that she had been convicted of shoplifting; that her sister had been

convicted of a drug charge and had been incarcerated; and that she strongly

disagreed with the proposition that the rights of persons charged with crimes are

better protected than the rights of crime victims and that harsh punishment is the

best solution to the crime problem. She also stated that she would impose a higher

burden than proof beyond a reasonable doubt in a capital case and would require

proof ―without doubt‖ that ―the defendant was 100% guilty.‖ The record thus

contained a compelling nondiscriminatory justification for excusing L.R. (See

Scott, supra, 61 Cal.4th at p. 385.)

R.C.‘s questionnaire responses revealed that she did not ―believe‖ in the

death penalty, that she doubted it served any purpose, and that her religious

convictions on the topic would interfere with her ability to sit as a juror in a

murder case or in a case involving the death penalty. Although she marked ―yes‖

when asked whether she could set aside her personal feelings and follow the

court‘s instructions, she also wrote, ―I don‘t believe that another life should be

taken and although I don‘t believe in it that I could not rule for it.‖ Despite the

28

responses above, she marked ―no‖ when asked at the end of the questionnaire

whether her religious beliefs would have a substantial impact on her decision.

In voir dire, R.C. said that she ―probably‖ could get to the point of

believing that she ―could‖ impose the death penalty. Nonetheless, she reaffirmed

in open court her previous responses that her religious beliefs would interfere with

her ability to be a juror in a murder or death penalty prosecution and added that

her beliefs were ―firmly held.‖ R.C. recalled that when a co-worker was

murdered, she had thought that the murderer ―probably‖ deserved to die. On the

other hand, she said, ―I don‘t know that I could get to that point if I was actually

involved . . . in the decision.‖

R.C. may have offered inconsistent responses as to her ability to consider

the death penalty, but a prosecutor could readily have concluded that her true

views were consistent with her confession in voir dire that she had ―never been

able to say, ‗Well, he should be dead.‘ ‖ This prospect was sufficient to dispel any

inference of discrimination. (Scott, supra, 61 Cal.4th at p. 385.) The trial court

therefore did not err in denying the Batson/Wheeler motion.

III. GUILT PHASE ISSUES

A. Asserted Insufficiency of the Evidence that Defendant Was Involved in

the Murder

Defendant argues that the evidence was insufficient to convict him of

murder or robbery. In his view, the evidence showed that his brother David

Zaragoza committed the crimes by himself and there was insufficient evidence

that defendant was even present. We disagree.

When the sufficiency of the evidence to support a conviction is challenged

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

to determine whether it contains evidence that is reasonable, credible, and of solid

value from which a trier of fact could find the defendant guilty beyond a

29

reasonable doubt. (People v. Elliott (2013) 53 Cal.4th 535, 585.) Our review

must presume in support of the judgment the existence of every fact the jury could

reasonably have deduced from the evidence. (People v. Manibusan (2013) 58

Cal.4th 40, 87.) Even where, as here, the evidence of guilt is largely

circumstantial, our task is not to resolve credibility issues or evidentiary conflicts,

nor is it to inquire whether the evidence might reasonably be reconciled with the

defendant‘s innocence. (Id. at p. 92; People v. Maury (2003) 30 Cal.4th 342, 403.)

It is the duty of the jury to acquit the defendant if it finds the circumstantial

evidence is susceptible to two interpretations, one of which suggests guilt and the

other innocence. (People v. Snow (2003) 30 Cal.4th 43, 66.) But the relevant

inquiry on appeal is whether, in light of all the evidence, ―any reasonable trier of

fact could have found the defendant guilty beyond a reasonable doubt.‖ (People v.

Towler (1982) 31 Cal.3d 105, 118.)

The sole issue in dispute in this case was the identity of the shooter. The

evidence that defendant was the shooter was entirely circumstantial — but it was

sufficiently substantial to uphold his convictions.

First, there was substantial evidence that David Zaragoza did not commit

the robbery by himself. Carol Maurer told another neighbor at the crime scene

that she had seen two men running down Cameron Way after hearing gunfire; she

reiterated that fact to a deputy sheriff that night and to a defense investigator in

May 2000; and she testified at trial that she had seen two men fleeing. Although

Cynthia Grafius, who lived east of Maurer, saw only one person running down the

street, it was entirely possible that the other suspect had been ahead of or behind

the man she saw from her kitchen window, given that William Gaines testified that

the men in flight were separated by about 10 feet. Indeed, the trial court observed

that Grafius‘s vantage point blocked her from a view of the entire street.

30

The circumstances of the robbery and the murder also supported the

conclusion that two people were involved. William Gaines, who watched David

Zaragoza flee eastbound down Cameron Way, testified that David was between 10

and 30 feet away when the shots rang out and Gaines ducked behind his station

wagon. At the time that Gaines heard the shots, David Zaragoza‘s back was to

Gaines, and Gaines did not see any muzzle flash coming from David‘s direction.

Nor did he ever see David turn around and head up the driveway. Yet according

to the pathologist, the gun used in the murder left three contact wounds and a set

of stipple marks, which indicated that the muzzle could have been no more than 18

inches away from the victim.

Additional forensic evidence supported the theory of a second assailant.

Both David Zaragoza and defendant were shorter than David Gaines, and the

Gaines‘s driveway sloped upward from the street to the house. But the pathologist

testified that two of the bullets entered David Gaines on a downward trajectory. A

downward trajectory suggested that the shorter gunman must have been on higher

ground — that is, between David Gaines and the house, not approaching David

Gaines from the street.

David Zaragoza was also unlikely to have committed these crimes alone.

He had substantial intellectual deficits. The Gaines‘s house was 6.1 miles from

defendant‘s residence, yet David had no driver‘s license, was driven everywhere

by family members, and had not driven a car in over a dozen years — if ever.

David also was wearing pants that had no pockets that night. If David had a gun

that night, it was odd, under the circumstances, that he did not use it during the

robbery of William Gaines and that William Gaines did not see it. All this

suggested that the gunman was someone other than David Zaragoza.

Second, there was substantial evidence to connect defendant to the crime.

Defendant admitted he was with his brother David that evening — although David

31

initially attempted to cover that up and even removed defendant‘s photograph

from the board and care home. The fruits of the robbery — i.e., the Pyrex salad

bowl and lid — were found in the garbage bin outside defendant‘s residence.

Both items had previously been inside defendant‘s house: the bowl was in a

kitchen garbage bag that defendant had taken out of his mother‘s hands to place in

the bin outside, and the bowl‘s blue lid was in a coffee can that the police saw on a

coffee table during their first visit.

A receipt from a Jack in the Box located less than a mile from the Gaines

residence was also found in the garbage bin outside defendant‘s house. The

receipt was time-stamped at 12:03 a.m., approximately 45 minutes after the

murder. The defense argued vigorously that the receipt reflected a purchase by

defendant‘s sister, Nina Koker. But the evidence showed that Nina was at the

home of Raymond Padilla‘s cousin, dealing with the locksmith who had helped

recover her keys from her locked car, until at least 12:08 a.m., and may not have

left there until after 1:00 a.m.

The record also shows that it was defendant, not David, who was familiar

with Gaines Liquors. Paul Banning, a clerk, testified that he recognized defendant

as a customer who came to the store in the afternoons and evenings. Stella Lee

Tahod, defendant‘s sister-in-law, testified that defendant sometimes walked her

two daughters the block or two to get candy at the store. Billy Gaines, who was

the murder victim‘s nephew, testified that defendant had come to the store and had

asked about the surveillance camera. Billy testified in January 2001 that this

conversation had occurred in the early afternoon on the day before the murder,

although there was evidence that Billy may have mistaken as to the date or time.

And defendant himself admitted that he had been to Gaines Liquors on many

occasions, including on the Monday or Tuesday prior to the murder.

32

The evidence also connected defendant to the area around the Gaines

residence before and after the murder.

Howard Stokes testified that on the Monday prior to the murder, he saw a

man resembling David Zaragoza walking towards the Gaines residence late at

night. When William Gaines arrived home from work, the man hid behind a tree.

Defendant admitted that he and David were together that night after having dinner

at the Tahod home.

Around noon on the day after the murder, Stanley Monckton saw defendant

driving a car slowly through the neighborhood. Defendant was in an older, white

or cream Honda, like defendant‘s mother‘s car. Interestingly, defendant told

police that he drove straight back from Tracy early on that Saturday morning to his

mother‘s house to return the car, and that she then drove him home. His mother

told police, however, that defendant did not return the car until 2:00 or 3:00 p.m.

Finally, the timeline tended to rebut the theory that David Zaragoza had

borrowed his mother‘s car, committed the robbery and murder, returned the car to

defendant‘s house, and walked home before midnight. The murder victim‘s watch

stopped at 11:16 p.m. According to the defense theory, David had to run to the car

after the shooting, drive the 6.1 miles back to defendant‘s house, wrap the salad

bowl in a Grocery Outlet bag and place it in the kitchen garbage, slip the salad

bowl lid into the coffee can in the room where his brother was still sleeping, and

leave on foot no later than 11:30 p.m. — given that defendant told police that he

woke up between 11:00 p.m. and 11:30 p.m. to discover that David was gone.

David then had to dispose of the murder weapon and walk the 2.3 miles to the

board and care home, where his roommate, Ernie Williams, told police that he

arrived near the end of the David Letterman show, which began at 11:00 p.m.

Even defendant concedes it was ―improbable‖ that David could have

accomplished all this in the allotted time.

33

The record, in sum, contained substantial evidence that David did not

commit these crimes by himself, that defendant was present at the scene with his

brother, and that defendant was the shooter.

B. Denial of Defendant‘s Request to Subpoena David Zaragoza

Defendant and his brother, David Zaragoza, were originally charged

together. During a pretrial hearing shortly after arraignment, David blurted out in

court that he shot and killed the victim, that his brother was ―not involved in none

of this,‖ and that he wanted to be sentenced that day. As the parties discussed

future court dates, David pulled down his pants and defecated. Bailiffs then

removed him from the courtroom. David was subsequently found incompetent to

stand trial.

When the defense subpoenaed David to testify, David‘s attorney filed a

motion to quash, invoking the privilege against self-incrimination on his client‘s

behalf. (Evid. Code, § 940.) Because the district attorney would not stipulate to

David‘s unavailability, the trial court conducted a hearing on the motion. At the

hearing, David‘s attorney asserted that he had the authority and responsibility to

invoke the privilege on his client‘s behalf, given the finding that his client was

incompetent to stand trial. David‘s attorney also expressed his understanding that

the question presented was ―about [David‘s] availability and that [defense counsel]

really is seeking my client to be found unavailable‖ so that David‘s confession at

the pretrial hearing could be introduced. (See Evid. Code, § 1230.) The trial court

agreed that defendant had issued the subpoena ―to show that [David] is

unavailable to testify,‖ since ―[t]here is no other way he can do that.‖

Defense counsel offered no objection to the assertion of the privilege by

David‘s attorney, on behalf of his client (David). Indeed, defense counsel had

nothing to say at all in response to the argument presented by David‘s attorney,

34

other than to clarify that (once David‘s unavailability had been established) he

intended to introduce not only the postarraignment confession, but also statements

David had made admitting his involvement in the murder to his mother, his

brother Reynaldo, and a fellow inmate.

Over the district attorney‘s objection, the trial court ruled that David‘s

attorney was entitled to invoke the privilege against self-incrimination on his

client‘s behalf. Based on its conclusion that David was unavailable, the trial court

quashed the subpoena.

On appeal, defendant for the first time complains that David‘s attorney

lacked the authority to invoke the privilege on David‘s behalf and claims that the

trial court‘s finding of unavailability deprived him of his state and federal

constitutional rights to compulsory process, to present a defense, and to a reliable

verdict in a capital trial. But defendant plainly forfeited this claim by failing to

object at the time David‘s attorney asserted the privilege and by failing to identify

the substance, purpose, and relevance of David‘s live testimony. (Evid. Code,

§ 354, subd. (a); People v. Fuiava (2012) 53 Cal.4th 622, 691; People v. Blacksher

(2011) 52 Cal.4th 769, 821; accord, State v. Diaz (Conn.App.Ct. 2006) 893 A.2d

495, 498.)

Indeed, the record tends to show that defendant had no interest in actually

having his brother David testify at trial. Rather, the apparent purpose of the

subpoena was to have David declared unavailable so that his statements against

penal interest, in and out of court, could be introduced. Defendant‘s reluctance to

offer David as a live witness was understandable, as David had given a number of

different statements about his involvement (or noninvolvement) in the incident.

David had twice denied to law enforcement any involvement in the murder. He

told his mother, on the other hand, that he left the Koker residence after defendant

fell asleep, was given a ride by a White male, and had no other recollection of

35

what occurred that night. He told his half brother, Eddie Tahod, that the White

male had flashed a gun before David ―lost track of things.‖ And he told his

brother Reynaldo Zaragoza that the White male had shot someone at a residence in

north Stockton and later dropped him off — but subsequently confessed to

Reynaldo that he had committed the murder by himself. Counsel thus could

reasonably have decided, given the additional uncertainty posed by David‘s

incompetency to stand trial, that the safest course was to rely on David‘s prior

statements, rather than to risk having David testify.

Having gambled and lost with that strategy, defendant cannot belatedly

argue here that he is entitled to a reversal in order to pursue some other strategy.

― ‗ ― ‗If any other rule were to obtain, the party would in most cases be careful to

be silent as to his objections until it would be too late to obviate them, and the

result would be that few judgments would stand the test of an appeal.‘ ‖ ‘ ‖

(People v. Saunders (1993) 5 Cal.4th 580, 590.) We therefore need not consider

the novel question whether an attorney may validly invoke the privilege against

self-incrimination on behalf of a codefendant, where the codefendant has been

declared unfit to stand trial, in the face of a criminal defendant‘s constitutional

right to compulsory process and to present a defense.

C. Exclusion of a Segment from David Zaragoza‘s Videotaped Interview

The key evidence connecting David Zaragoza to the robbery of William

Gaines included the numerous bits of paper containing David‘s name that were

recovered next to and around the driver‘s side door of Gaines‘s car. The

prosecution theorized that the papers fell out of David‘s shirt pocket at some point

when he assaulted Gaines, struggled with Gaines over the brown paper bag

containing the Pyrex bowl, and reached down with both hands to pick up the bag

after the bag fell to the ground. The defense, on the other hand, contended that the

36

papers must have fallen out when David pulled a gun out of his pants pocket.

When the prosecution introduced David‘s admission during his videotaped

interview that the pants he was wearing that night did not have pockets, the

defense requested permission to show the jury a different segment of the

videotaped interview. In the segment identified by the defense, the interviewing

officers asked David, who had a tobacco pouch and a lighter in his shirt pocket, to

stand and then bend over to pick up something from the ground. Neither the

tobacco nor the lighter fell out of David‘s pocket.

The People objected that the interviewing officers‘ experiment was

irrelevant, and more prejudicial than probative. The trial court agreed that

―[t]here‘s a lot of things that aren‘t the same‖ in the experiment as compared to the

circumstances at the crime scene, and sustained the objection. Defendant claims

on appeal that the evidence was relevant and, for the first time, that its exclusion

deprived him of his due process right to present a complete defense and his Eighth

Amendment right to a reliable guilt determination. We deem his federal claims

preserved only to the extent that they represent merely a gloss on the arguments he

presented in the trial court. (People v. Streeter (2012) 54 Cal.4th 205, 236-237.)

A ruling admitting or excluding the results of an experiment or

demonstration as evidence for the existence or nonexistence of a material fact in

controversy ―is a determination largely within the discretion of the trial court and

its ruling will not be disturbed except upon a clear showing of an abuse thereof.‖

(Grupe v. Glick (1945) 26 Cal.2d 680, 685.) Experimental evidence is admissible

only when the results are relevant, the experiment was conducted under conditions

substantially similar to those of the actual occurrence, and the presentation will not

unduly delay the trial or confuse the jury. (People v. Lucas (2014) 60 Cal.4th 153,

228.)

37

This is not a case where the trial court abused its discretion. Given the

dissimilarities between the experiment conducted at the interview and the

circumstances at the crime scene, it was within the bounds of the trial court‘s

discretion to exclude the experiment. The experiment showed that a pouch of

tobacco and a lighter did not fall out of David Zaragoza‘s shirt pocket when he

bent over. But the question in this case was whether small pieces of paper

more than a dozen in all — could fall out of his shirt pocket. Moreover, in the

experiment, David Zaragoza simply walked to a certain spot and bent over to pick

up an item. At the crime scene, however, the papers allegedly fell out after David

punched William Gaines twice and struggled with him to take the bag, which fell

to the ground. David then quickly reached down with both hands to scoop up the

bag and ran away.

Given the different size, weight, and number of items in David‘s pocket

during the experiment as well as the lack of speed and suddenness when David

bent over to pick up an item from the floor during the interview, it was not

unreasonable for the trial court to conclude that the experiment lacked the

necessary foundation to be relevant. (People v. Lucas, supra, 60 Cal.4th at p.

227.) Nor did defendant suffer any deprivation of his federal rights, given the

experiment‘s limitations. (Ibid.; see People v. Mincey (1992) 2 Cal.4th 408, 442.)

D. Failure to Provide the Defense with a Copy of the Jack in the Box

Videotape

Defendant claims that the prosecution violated its discovery obligations

under section 1054.1, as well as its constitutional duty to disclose exculpatory

evidence, by failing to provide the defense with a usable copy of the videotape

from the night of the murder obtained from the Jack in the Box near the Gaines

residence.

38

The Jack in the Box receipt that was recovered from the garbage bin outside

defendant‘s home recorded a transaction less than an hour after the murder. The

parties vigorously disputed at trial the identity of the person who had gone to this

Jack in the Box that night. In an effort to bolster the evidence of identity, police

investigators visited the Jack in the Box and recovered the surveillance videotape

of the drive-through for the relevant period. Detectives Alejandre and Wuest

viewed the videotape at the Jack in the Box.

According to the prosecution, these police officers stated that the grainy,

monochrome videotape offered only a very limited view of the vehicles as they

approached the drive-through. The corner of the vehicle that was visible could

have belonged to a Toyota, a Honda — or, indeed, ―any car from 1979 to 1999‖

that was beige, brown, white, or a faded color. The videotape could not exclude

defendant‘s mother‘s car, which was in his possession that night, or his sister‘s

vehicle. The videotape did not show the driver, either.

Because the videotape had ―no probative value whatsoever,‖ the

prosecution decided not to use it. A copy of the tape was not provided to the

defense, however, because the recording system used by Jack in the Box was not

compatible with VHS machines and the tape could not be converted to play on a

VHS player. The videotape‘s existence was nonetheless known to counsel, and

the prosecution made the videotape available to the defense to be viewed, as police

investigators already had, at Jack in the Box.

We perceive no violation of the prosecution‘s statutory or constitutional

discovery obligations. By alerting the defense to the existence of the videotape

and making it available for viewing offsite, the prosecution complied with its

obligations under section 1054.1, subdivision (e) to disclose exculpatory evidence

in its possession. (See Schaffer v. Superior Court (2010) 185 Cal.App.4th 1235,

1242 [the current discovery statutes, like the earlier ones, provide that the

39

prosecution‘s obligations can be satisfied ―by making the information available

‗for inspection and copying‘ ‖].) Even if the prosecution had a duty to supply a

―usable copy,‖ as defendant contends, its obligation would have been excused on

the ground of impossibility. The prosecutor stated that ―we had someone come in

with a particular machine that . . . supposedly converts these kind of videotapes

from their particular format to normal VHS tape,‖ but the conversion could not be

completed. Indeed, defense counsel admitted that a copy ―turned out not be

available, as I understand it, through whatever technical reasons.‖ The trial court

therefore did not abuse its discretion in concluding that ―so long as [the defense]

had access to the actual physical evidence, it was not necessary for the prosecutor

to search the world to see whether there‘s proper technology to do the transfer.‖

(See Hill v. Superior Court (1974) 10 Cal.3d 812, 816-817.)

Defendant contends that the prosecution further violated its duties by

failing to provide ―clear directions as to how [the defense] could view the tape.‖

But defendant does not explain why the prosecution would have been obligated to

facilitate a screening of the tape, given defense counsel‘s statement that he ―didn‘t

need a copy‖ of the Jack in the Box tape if the prosecution was not going to

introduce it. Nor does defendant cite any authority, or otherwise offer a

persuasive argument, for requiring the prosecution to volunteer directions for

viewing the tape. In any event, defense counsel appeared to have been well aware

of all he needed to know about how to view the tape, since he admitted to the trial

court that ―the viewing machine I was told existed only at the Jack in the Box.‖

For similar reasons, we conclude that the prosecution did not deny

defendant his rights under Brady v. Maryland (1963) 373 U.S. 83. To challenge a

conviction on Brady grounds, defendant must show that the prosecution

suppressed evidence, that the suppressed evidence was favorable to the defense,

and that it was material. (Barnett v. Superior Court (2010) 50 Cal.4th 890, 900-

40

901; People v. Salazar (2005) 35 Cal.4th 1031, 1043.) Defendant has failed to

establish that the prosecution, by alerting him to the existence of the videotape and

by making it available for him to view at the Jack in the Box, suppressed any

information. (Salazar, at p. 1049 [evidence is not suppressed when it ―is available

to a defendant through the exercise of due diligence‖]; accord, Amado v. Gonzalez

(9th Cir. 2014) 758 F.3d 1119, 1137 [―defense counsel cannot ignore that which is

given to him or of which he otherwise is aware‖].) Nor has defendant discharged

his burden to show that the evidence allegedly withheld was favorable and

material. (Barnett, at pp. 900-901.) Defendant does not deny that the prosecutor‘s

secondhand description of the videotape did not reveal any evidence favorable to

the defense. He instead hypothesizes that favorable inferences might have been

discovered if the defense had viewed the tape. But speculation that favorable and

material evidence might be found does not establish a violation of Brady. (People

v. Williams (2013) 58 Cal.4th 197, 259.)

E. Refusal of Pinpoint Instruction on Circumstantial Evidence

The jury was instructed how to evaluate circumstantial evidence with

CALJIC No. 2.01, as modified at defendant‘s request: ―[A] finding of guilt as to

any crime may not be based on circumstantial evidence unless the proved

circumstances are not only, one, consistent with the theory that the defendant is

guilty of the crime, but, two, cannot be reconciled with any other rational

conclusion. [¶] Further, each fact which is essential to complete a set of

circumstances necessary to establish the defendant‘s guilt must be proved beyond

a reasonable doubt. [¶] In other words, before an inference essential to establish

guilt may be found to have been proved beyond a reasonable doubt, each fact or

circumstance on which the inference necessarily rests must be proved beyond a

reasonable doubt. [¶] Also, if the circumstantial evidence as to any particular

41

count permits two reasonable interpretations, one of which points to a finding of

guilt and the other to a finding that guilt has not been proven, you must adopt that

interpretation which points to a finding that guilt has not been proven and reject

that interpretation which points to a finding of guilt. [¶] If, on the other hand, one

interpretation of this evidence appears to you to be reasonable, and the other

interpretation to be unreasonable, you must accept the reasonable interpretation

and reject the unreasonable.‖

The trial court rejected defendant‘s pinpoint instruction attempting to link

the principle above to its theory of the case. The rejected instruction provided: ―If

the evidence permits two reasonable interpretations, one of which points to the

guilt of the defendant and the other to the guilt of [David Zaragoza], you must

reject the interpretation that points to the defendant‘s guilt and return a verdict of

not guilty.‖ The court expressed concern that the jury could ―easily‖ interpret the

instruction to mean that ―the evidence can only point to the guilt of one or [the]

other,‖ even though the jury in this case could conclude ―that the evidence points

to the guilt of both.‖ The court also noted that there were ―sufficient other

instructions‖ to make the point ―I think that you‘re trying to make, which is if they

think it was David alone, they have to acquit the defendant.‖ What we find is that

the refusal to give the requested instruction was not error.

A trial court may properly reject an instruction proposed by the defendant if

the instruction incorrectly states the law; is argumentative, duplicative, or

potentially confusing; or is not supported by substantial evidence. (People v.

Moon (2005) 37 Cal.4th 1, 30.) The instruction proposed by defendant, as the trial

court pointed out, was an incorrect statement of the law. The proposed instruction

posited that only one person (defendant or his brother David) could be ―guilty.‖

Yet, as defendant himself concedes, the jury could have believed that defendant

shot David Gaines ―as part of the robbery‖ committed by defendant and his

42

brother. Under that version of the events, defendant could be guilty of murder.

But so could David, as an accomplice under the instructions given to the jury, if

the jury found that the murder was a natural and probable consequence of the

robbery. (See People v. Prettyman (1996) 14 Cal.4th 248, 262-263.) Because it

was possible to interpret the evidence as pointing towards David‘s guilt of the

murder as an accomplice — and yet also find that defendant was guilty of murder

as the shooter — the instruction was erroneous and thus properly rejected.

To the extent defendant merely sought to advise the jury that only one man

could have been the shooter, the trial court correctly concluded that the matter was

covered adequately by the other instructions. (People v. Jones (2012) 54 Cal.4th

1, 81-82; People v. Clark (2011) 52 Cal.4th 856, 975.) Under CALJIC No. 2.01,

the jury was instructed that if the circumstantial evidence was reasonably

susceptible to two interpretations, only one of which pointed to guilt, it was

obligated to reject that interpretation and adopt the interpretation pointing to a

finding that guilt was not proven. Moreover, the jury was instructed that the

burden was on the People to prove beyond a reasonable doubt that defendant was

the person who committed the charged crimes and that defendant was present at

the time the crime was committed. (CALJIC Nos. 2.91, 4.50.) These instructions

correctly advised the jury what to do if it harbored a reasonable doubt that David

was the shooter.

The cases on which defendant relies are plainly distinguishable. In People

v. Rogers (2006) 39 Cal.4th 826, the trial court failed to instruct the jury how to

evaluate the sufficiency of circumstantial evidence, except as to evidence of

mental state, thus depriving the jury of guidance as to how circumstantial evidence

of identity should be evaluated. (Id. at p. 885; see also People v. Fuentes (1986)

183 Cal.App.3d 444, 455 [―None of the required instruction, which is set forth in

CALJIC No. 2.01, was given.‖].) Here, by contrast, the jury not only received the

43

general instruction as to circumstantial evidence, but was also told that the

standard of reasonable doubt applied specifically to the issue of identity.

F. Refusal of Request to Modify the Instruction on Motive

Defendant contends that the trial court erred in denying his request to

modify the pattern instruction concerning motive. The trial court did not

prejudicially err.

The jury was instructed about motive in accordance with CALJIC No. 2.51,

as follows: ―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 the defendant is not guilty.‖ The defendant

proposed, but the trial court rejected, a modification of the final paragraph of the

instruction so that it would read: ―Presence of motive IN THE DEFENDANT OR

[DAVID ZARAGOZA] may tend to establish THAT PERSON‘S GUILT.

Absence of motive IN THE DEFENDANT OR [DAVID ZARAGOZA] may tend

to establish THAT PERSON‘S innocence. You will therefore give its presence or

absence, as the case may be, the weight to which you find it to be entitled.‖ The

trial court rested its rejection of the instruction on the ground that the jury was not

deciding David Zaragoza‘s guilt in this proceeding, and that defendant remained

free to argue that David ―had motives.‖

The trial court properly refused the modified instruction. What that

instruction directed the jury to consider is a third party‘s guilt, which in this case

would have been a distraction from the jury‘s duty to decide whether the

prosecution had proven defendant‘s guilt beyond a reasonable doubt. (People v.

Lucas, supra, 60 Cal.4th at p. 286 [rejecting defense modification to CALJIC No.

2.03 that would have instructed the jury to consider a third party‘s false and

44

misleading statements as evidence of his consciousness of guilt].) As stated in the

preceding section, this was not a situation in which only one of the two men could

be guilty. Moreover, the pattern instruction, which correctly stated the law

(People v. Daya (1994) 29 Cal.App.4th 697, 714), did not preclude the jury from

considering David Zaragoza‘s motives in analyzing whether there was a

reasonable doubt about defendant‘s guilt. Indeed, defense counsel discussed

David‘s possible motives in argument.

Even if the jury had been instructed with the modified instruction, it is not

reasonably probable that defendant would have achieved a more favorable result.

(People v. Earp (1999) 20 Cal.4th 826, 887.) The issue of David Zaragoza‘s

motivation for the robbery was essentially moot, given the undisputed evidence

that he committed the robbery. The question for this jury, as far as motive was

concerned, was whether defendant may have wanted to support or protect his

brother while his brother was committing the robbery. Evidence of David’s

motivation sheds little light on that question. Accordingly, any error would have

been harmless. (People v. Ledesma (2006) 39 Cal.4th 641, 720-721.)

G. Denial of Motion to Suppress Defendant‘s Statements

Defendant contends that the trial court erred in failing to suppress his

statements to police on June 13 and 14, 1999, as the product of an illegal detention

and an illegal arrest, respectively. The claim lacks merit.

1. Statements Made on June 13, 1999

For his initial interview, defendant accompanied two detectives from his

home to the sheriff‘s department. There, he was interviewed for two hours, and

then driven to his mother‘s home. Defendant claims that his consent to

accompany the detectives was not voluntary and was instead the product of an

implied assertion of authority. The trial court ruled that defendant‘s consent was

45

―clearly voluntary.‖ We review the trial court‘s characterization of defendant‘s

contact with the detectives as a consensual encounter independently, but we

review its factual findings under the deferential substantial evidence standard.

(People v. Zamudio (2008) 43 Cal.4th 327, 342.)

On June 13, 1999, Detectives Alejandre and Wuest drove up to the Koker

residence and found defendant sitting on the front porch. The detectives were in

plainclothes (jeans) and were driving an unmarked vehicle. No other police units

or personnel were present. After introducing themselves, they informed defendant

that they were investigating a homicide that had occurred two days earlier and

mentioned that they had already talked to his brother. When they asked whether

defendant would be willing to come down to the sheriff‘s department for an

interview, defendant said he would. Defendant remained on the porch,

unsupervised, while the detectives went into the house to talk to defendant‘s sister.

When the detectives exited the house, they asked defendant whether he was ready

to accompany them to the sheriff‘s department. Defendant said he was. After a

―real quick patdown‖ for weapons, defendant got in the front passenger seat. He

was not handcuffed or otherwise involuntarily restrained.

About 15 minutes later, defendant and the detectives arrived at the station

and went to an interview room, which remained unlocked throughout. Defendant

was told that he was not under arrest, that the interview was voluntary and could

be stopped at any time, and that they would drive him home at the end of the

interview. Defendant appeared to understand. During the course of the interview,

defendant agreed to a participate in a computer voice stress analysis and to allow

photographs of his injuries. At the end of the interview, he rode with the

detectives in the unmarked vehicle to his mother‘s house.

A detention occurs when the officer, by means of force or show of

authority, has restrained a person‘s liberty. (Terry v. Ohio (1968) 392 U.S. 1, 19,

46

fn. 16.) Unlike a consensual encounter, a detention must be supported by

reasonable suspicion the person is involved in criminal activity. (People v. Souza

(1994) 9 Cal.4th 224, 231.) The facts here demonstrate that defendant was not

detained by the officers. Defendant was told that he was not under arrest and that

the interview was ―voluntary.‖ He was reminded that he could stop the

questioning at any time, and that he would then be driven back home. The

detectives conducting the interview were dressed casually, they displayed no

weapons and uttered no commands. They asked defendant for his permission

before each of the investigative steps they undertook, and they at no point placed

defendant under any restraints. Indeed, defendant was left alone on the porch after

the detectives secured his consent to accompany them to the station. Given these

facts, a reasonable person in defendant‘s situation would not have believed he or

she lacked the freedom to leave, decline the detectives‘ requests, or otherwise

terminate the encounter. (People v. Zamudio, supra, 43 Cal.3d at pp. 344-345;

People v. Hughes (2002) 27 Cal.4th 287, 328-329 [―the record amply supports the

trial court‘s factual finding that defendant freely consented to remain for the

purposes of speaking with [the] [d]etective [] . . . and being transported in

handcuffs to the police station for further questioning,‖ where the defendant was

handcuffed for safety reasons and expressed no reluctance about being

handcuffed]; accord, People v. Anderson (Ill.App.Ct. 2009) 917 N.E.2d 18, 26.)

2. Statements Made on June 14, 1999

The next day, Detective Wuest arrested defendant and his brother outside

the county mental health facility. Defendant contends that his postarrest

statements should have been excluded as the fruits of an illegal arrest without

probable cause. The trial court denied his suppression motion, ruling that there

was ―a strong suspicion of probable cause‖ at the time defendant was arrested.

47

Where, as here, the underlying facts are undisputed, we independently review

whether those facts constitute probable cause for an arrest. (People v. Glaser

(1995) 11 Cal.4th 354, 362.) Probable cause is shown ―when the facts known to

the arresting officer would persuade someone of ‗reasonable caution‘ that the

person to be arrested has committed a crime.‖ (People v. Celis (2004) 33 Cal.4th

667, 673.)

The police had probable cause here. The investigating officers quickly

identified David Zaragoza as a suspect based on the personal papers he left at the

scene, including his book-and-release form and Medi-Cal identification card.

Further investigation revealed that a second person must have been involved in the

robbery homicide, and created a strong suspicion that the second person was

defendant. William Gaines told investigators that he saw his assailant running

eastbound down the street at the same time he heard the gunshots. In light of the

contact wounds on David Gaines‘s body, Detective Wuest did not believe that one

person could have been close enough to David Gaines to cause the contact wounds

while also running down the street. Indeed, one of the neighbors confirmed to a

deputy sheriff that she saw two people running down the street after shots were

fired.

Suspicion focused on defendant as the detectives investigated David

Zaragoza‘s claim not to have been with defendant on the night of the murder. Not

only had David announced that he was meeting his brother when he left the board

and care home between 8:00 p.m. and 9:00 p.m. that night, but defendant himself

admitted that he had been with his brother at that time. Moreover, the fruits of the

robbery — i.e., the Pyrex salad bowl and lid — were found in the garbage bin

outside defendant‘s home a short time after the murder. A receipt from a Jack in

the Box located less than half a mile from the Gaines residence, reflecting a

transaction that occurred not long after the murder, was also found in the garbage

48

bin outside defendant‘s home. Taken together, these facts supplied a strong

suspicion that defendant was a participant, along with his brother, in the robbery

homicide. (People v. Kraft (2000) 23 Cal.4th 978, 1037.)

H. Failure to Excuse Juror No. 8

Defendant claims the trial court violated his constitutional rights to due

process and to an impartial jury by failing to conduct a full inquiry into a seated

juror‘s potential bias and by failing to discharge that juror at the guilt phase. We

reject the claim.

During the presentation of the defense case, Juror No. 8 sent a note to the

trial judge. The note recited that the juror and Steve Gaines, the victim‘s brother,

both worked at Save Mart, that the two had talked on the phone, and added: ―I

think this should be no problem, but you should know.‖ Under examination by the

court, the juror explained that he had only just realized the connection to David

and William Gaines. The juror had never met Steve Gaines in person, but had

talked with him on the phone at least three times in the preceding three or four

months, and expected to have contact with him again in the future. Their phone

conversations, which all predated the trial, involved work-related matters, such as

installation of a punch clock in the store. The juror pledged to avoid contact with

Steve Gaines during the trial. When defense counsel asked whether returning a

verdict ―that‘s not proper with Mr. Gaines‖ would cause the juror any problems,

the juror responded, ―I have no idea. That‘s something you would have to, you

know, it‘s something that could be a possibility.‖ The juror then reaffirmed that

he would not feel an obligation to explain his verdict, regardless of what it was, to

anyone, including Steve Gaines. When defense counsel asked the juror whether

―[y]ou feel comfortable with where you‘re at right now then,‖ the juror replied,

49

―I‘m fine. I just wanted to make you aware of this.‖ Defense counsel then

announced, ―I have no more questions.‖

Defendant forfeited his challenge to the adequacy of the court‘s inquiry into

the juror‘s potential bias. He did so by announcing that he had no more questions

and by failing to seek a broader or more extensive inquiry. (People v. Holloway

(2004) 33 Cal.4th 96, 126 (Holloway).) Defendant also forfeited his claim of error

arising from the trial court‘s failure to discharge the juror. Defendant neither

sought the juror‘s excusal nor objected to the trial court‘s handling of the issue.

(Id. at p. 124.) But even if these claims had been preserved, we would find that

they were meritless.

The decision whether to investigate the possibility of juror bias or to

discharge a juror rests within the sound discretion of the trial court. (People v.

Ray (1996) 13 Cal.4th 313, 343.) We find no abuse of discretion in the trial

court‘s failure to inquire further into Juror No. 8‘s possible bias or to discharge

him. (Holloway, supra, 33 Cal.4th at p. 127.) The record shows that the juror‘s

infrequent contacts with Steve Gaines were limited to work matters and predated

his jury service. The juror also pledged to avoid contact with Gaines during the

trial. Although the juror expressed uncertainty when asked to predict whether a

verdict that displeased Gaines might be a problem for the juror in the future, the

juror was emphatic that he would not feel any obligation to justify his verdict,

whatever it might be, to Gaines and that he was ―fine‖ sitting as a juror in the case.

The trial court, which was able to observe the juror‘s tone and demeanor,

conducted an inquiry adequate to determine that Juror No. 8 could be impartial

and would be unaffected by the coincidence that the victim‘s brother, who was not

a witness in the case, worked at the juror‘s place of employment. (Cf. Ray, at p.

344 [no abuse of discretion in failing to investigate where a juror disclosed that he

worked at the high school attended by the murder victim‘s daughter but had never

50

discussed the case with her].) Indeed, defendant fails to identify what part of the

record could have supported the juror‘s inability to perform ― ‗as a demonstrable

reality.‘ ‖ (People v. Johnson (1993) 6 Cal.4th 1, 21.)

We also find that defendant forfeited his claim that Juror No. 8 actively

concealed his work relationship with Gaines, as well as his claim that this

misconduct heightened the likelihood the juror was actually biased. Defendant

failed to object at trial that the juror had engaged in misconduct or to seek the

juror‘s discharge. (People v. Dykes (2009) 46 Cal.4th 731, 808, fn. 22.) These

claims are, in any event, meritless. The juror stated that he had only recently

realized that the Steve Gaines on the witness list was the Steve Gaines who

worked at Save Mart, and the juror‘s claim of inadvertence was bolstered by the

fact that he volunteered the possible connection rather than remain silent. (People

v. Ray, supra, 13 Cal.4th at p. 344.) An honest mistake on voir dire cannot upset a

judgment in the absence of proof that the juror‘s wrong or incomplete answer hid

actual bias, and the trial court‘s finding that Juror No. 8 was ―especially fair,‖

based on his sensitivity to defendant‘s viewpoint in answering the court‘s

inquiries, is supported by the record here. (See In re Hamilton (1999) 20 Cal.4th

273, 300.)

Finally, defendant‘s speculation that Gaines had supervisorial authority

over the juror fails to acknowledge the juror‘s statement that Gaines was ―not

anywhere within my path to have any effect on my career at all.‖

I. Cumulative Error

Defendant contends that the cumulative effect of the asserted errors

requires reversal of his murder and robbery convictions, even if none of the errors

is prejudicial individually. The only error we have found involved the death-

qualification of his jury, and the only error we have assumed, for purposes of

51

argument, was the failure to modify the instruction on motive. Neither error

increased the impact of the other, and their cumulative impact did not deprive

defendant of a fair trial or his right to due process of law.

IV. PENALTY PHASE ISSUES

Because we have determined that the penalty judgment must be reversed on

account of the trial court‘s error in the death-qualification of the jury, we need not

consider defendant‘s other claims of penalty phase error.

52



V. DISPOSITION

The judgment of death is reversed. In all other respects, the judgment is

affirmed.















CUÉLLAR, J.



WE CONCUR:

CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
KRUGER, J.


53

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Zaragoza
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S097886
Date Filed: July 11, 2016
__________________________________________________________________________________

Court:
Superior
County: San Joaquin
Judge: Thomas Teaford

__________________________________________________________________________________

Counsel:

Michael R. Snedeker, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys
General, Michael P. Farrell, Assistant Attorney General, Stephanie Mitchell, Sean M. McCoy and Peter H.
Smith, Deputy Attorneys General, for Plaintiff and Respondent.
















Counsel who argued in Supreme Court (not intended for publication with opinion):

Michael R. Snedeker
Snedeker, Smith & Short
4110 SE Hawthorne Boulevard
Portland, OR 972414-5246
(503) 234-3584

Peter H. Smith
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 324-5114


Opinion Information
Date:Docket Number:
Mon, 07/11/2016S097886