Supreme Court of California Justia
Docket No. S033440
People v. Benavides

Filed 2/17/05



Plaintiff and Respondent,






Super.Ct.No. 48266


Defendant and Appellant.

A jury found defendant Vicente Figueroa Benavides guilty of the murder of

Consuelo Verdugo (Pen. Code, § 187),1 finding that he committed the murder under the

special circumstances of felony-murder rape, felony-murder sodomy, and felony-murder

lewd conduct (§ 190.2, subd. (a)(17)(C), (D), (E)). The jury also found defendant guilty

of rape, sodomy, and lewd conduct (§§ 261, subd. (2), 286, subd. (c), 288, subd. (a))

against Consuelo, and that he inflicted great bodily injury in the commission of the

sodomy and lewd conduct (§ 12022.8). At the penalty phase the jury fixed the

punishment for the murder at death. The trial court rendered judgment accordingly. This

appeal is automatic. (§ 1239, subd. (b).)

We affirm the judgment in its entirety.


Hereafter, all statutory references are to the Penal Code unless otherwise specified.



A. Guilt Phase Evidence

1. The People’s Case

The prosecution presented evidence showing that defendant raped, sodomized, and

fatally injured 21-month-old Consuelo Verdugo while babysitting her.

On November 17, 1991, at 7:30 p.m., Consuelo’s mother, Estella Medina, brought

her into the emergency room at the Delano Medical Center (DMC) and reported that

Consuelo was hit by or had run into a door and injured her head. Consuelo was limp and

flaccid, but responsive to outside stimuli in that she withdrew from pain and was moving

her arms and legs. The only external signs of trauma were abrasions on her forehead.

Medical personnel were concerned about a possible head injury, and the initial

examination did not include a complete rectal or vaginal examination. They noted slight

redness on the inside genitalia at the outer portion of the vagina, and that something

obstructed their efforts to insert a catheter.

Within an hour Consuelo’s stomach began to distend. Her blood pressure fell and

her breathing became labored as she fell into a coma. Suspecting internal injuries,

doctors transferred her to the Kern County Medical Center.

The transporting paramedic reported that Medina said Consuelo had run into a

steel door while chasing her older sister Christina Medina, age nine. The emergency

room charge nurse found this explanation unsatisfactory because Consuelo had blown

pupils, a condition normally related to the blunt trauma of a car accident, and there were

no abrasions or contusions on her body to indicate such an accident had occurred. The

nurse attempted to insert a catheter and discovered a “massive” hematoma,2 or bruise, to


The charge nurse noted the hematoma was larger than a nickel and smaller than a



the external genitalia, and a tear from the urethra at the top of the external genitalia to the

vaginal opening. Eventually a small rubber feeding tube was inserted as a catheter.

Consuelo’s abdomen soon became very distended. The emergency room

physician noted severe swelling throughout the entire anal area, and “absolutely no rectal

tone.” He suspected Consuelo had been sexually abused, but did not conduct a complete

sexual abuse examination because her condition was critical and her resuscitation was his

main concern.

Consuelo was taken to surgery at midnight. The pediatric surgeon found recent

internal injuries in the midline section of the abdomen. All of the central organs—the

bowel, duodenum, and pancreas—had been compressed and were “cracked in half” with

portions lying over both sides of the spine, and there were injuries to the colon. The

surgeon thought these injuries were caused by a kick or punch. He noted scarring and

signs of prior injuries, one to two months old, in the area between the colon and the liver.

A pediatrician with an expertise in child endangerment examined Consuelo the

following morning. He found a tear in her hymen and a bruise of the perineum. The

anus was markedly swollen and gaping. There were tears in the anal sphincter and

damage to the sphincter muscles caused by the insertion of some object into the anus and

resulting in the loss of sphincter tone. The loss of sphincter tone, the pediatrician

concluded, was not caused by the surgery. There was a tear in the back portion of the

vaginal wall resulting from the insertion of some object into the vagina, which would

explain the initial difficulty in inserting the catheter. The injuries to the anus and vagina

were not consistent with Consuelo being hit by, or running into, a door. The pediatrician

believed Consuelo had been sodomized, that something had penetrated the vaginal area

and torn the vaginal wall, and that she had been kicked or punched in the abdomen

causing the internal injuries.

Consuelo’s condition remained critical and on November 19, 1991, she was

transferred to UCLA Medical Center for ongoing critical care. The attending physician


noted that she was swollen all over, with significant swelling in the external genitalia that

precluded him from fully examining her vagina. She had abnormal sphincter tone. A

CAT scan revealed no evidence that Consuelo had been struck in the head. In an effort to

stop continuing internal bleeding, a second operation, including a splenectomy, was

performed on November 20, 1991. Following the operation, the surgeon examined the

external genitalia and the anus and saw no evidence of any lacerations at that time. He

explained that his inability to see any anal lacerations could have been due to the

significant genital swelling.

All efforts to save Consuelo’s life failed on November 25, 1991.

The forensic pathologist testified that Consuelo died as a result of acute blunt

force penetrating injury of the anus that caused lacerations of the anus and injuries to

multiple internal organs. The anus was expanded to seven or eight times its normal size.

The injuries to the anus were consistent with penile penetration. There was an acute

one-half-inch tear in the vaginal wall at the opening at the back, and the vagina was

purple and bruised. Because the tip of a catheter is soft, the forensic pathologist did not

think the numerous attempts to insert a catheter caused the vaginal tear, but, rather,

thought the existence of the vaginal tear was the cause of the difficulty in inserting a

catheter. The skin between the anus and vagina had been rubbed off. The anus, vagina,

and bladder showed signs of previous injuries four weeks old.

There were bruises and contusions on both sides of the chest, and five ribs were

fractured near the spinal column in a manner consistent with Consuelo being gripped

tightly around the chest from behind. There were bruises on Consuelo’s back where

thumbs would naturally come to rest when she was grabbed around the chest. There was

evidence of previous rib fractures three to four weeks old. There was an acute subdural

hemorrhage and generalized swelling of the brain, suggesting Consuelo was shaken

during the course of the assault.


Consuelo suffered from facial abrasions and contusions, including tearing inside

the upper lip consistent with someone holding a hand over her mouth. The injuries to her

face were not consistent with a fall or running into something because there were no

loose teeth and her nose was not broken. The forensic pathologist believed that after such

an assault, Consuelo could not have gotten up and walked around.

Medina testified that in November 1991 she lived in an apartment in Delano with

her daughters Christina and Consuelo. Defendant worked as a farm laborer, living both

with fellow farm workers at a motel in McFarland and with Medina in her Delano

apartment on her days off from work as a nurse’s aide at DMC.

On the afternoon of Sunday, November 17, 1991, Consuelo was in good health.

Medina testified she changed Consuelo’s diaper and then left for work about 6:40 p.m.,

leaving defendant to care for Christina and Consuelo. Christina and Consuelo were at the

table eating hamburgers; defendant was sitting watching television.

Medina testified that at 7:20 p.m. she received a call from Christina, who told her

Consuelo was pale, sick, and could not breathe. Medina returned home approximately

five minutes later to find defendant sitting on the edge of her bed with Consuelo in his

arms. Medina immediately drove Consuelo to DMC, accompanied by defendant and

Christina. When the family arrived at the hospital, Medina parked the car in front of the

emergency room and took Consuelo inside. Defendant stayed outside in the car alone for

approximately 10 minutes.

Child Protective Services removed Christina from Medina’s custody following

Consuelo’s death. As a prerequisite to regaining custody, Medina was required to stop

having contact with and visiting defendant in jail, which she had done several times

following his arrest. Medina testified that on May 22, 1992, six months after Consuelo’s

death, Christina told Medina that she remembered a time when defendant, who was

caring for them alone overnight, took Consuelo and kept her in his locked bedroom until



Christina testified that after her mother left for work on November 17, 1991,

Christina asked defendant for permission to go out and play with her friend Mirabel, who

lived in the same apartment complex. Defendant agreed to let her go, and told her to

return in 30 minutes. When Christina left, Consuelo was coloring at the kitchen table and

defendant was cutting onions to cook with eggs for dinner. Christina went out the front

door, which opened inward into the living room of the apartment, and closed the door

behind her because it was cold outside. Consuelo, who could not open the door by

herself, stayed inside and did not come near the front door as Christina was leaving.

Christina further testified that after she had been playing with Mirabel for about 15

minutes, defendant, acting nervous, came around the corner of the building and called for

her to come home. When Christina got back to the apartment, defendant was in Medina’s

bedroom, holding Consuelo. Consuelo was wearing the same clothes she had been

wearing when Christina left, including a diaper. Consuelo had a bruise on her forehead

and dried blood under her nose, and defendant was putting alcohol on her forehead.

Christina did not wipe the blood from Consuelo, nor did she pick up anything from the

bathroom or bedroom floor.

Defendant did not explain what happened but told Christina to call Medina at the

hospital. Medina came right home and immediately drove Consuelo, Christina, and

defendant back to DMC. Christina testified that while they were in the car, defendant

told Medina to “drive slowly.” She testified that defendant said Christina hit Consuelo

with the front door when Christina walked outside, and that he found Consuelo outside,

picked her up, sat her on Medina’s bed, and then went to get Christina. Christina testified

she did not hit Consuelo with the door.

A Delano Police Department detective interviewed defendant twice on

November 18, 1991. Defendant was informed of his rights pursuant to Miranda v.

Arizona (1966) 384 U.S. 436, prior to the second interview, which took place after he

was arrested. Defendant told the detective he started preparing dinner for himself,


Christina and Consuelo when Medina left for work; that Christina asked for his

permission to play with her friend and said she would only be gone for about 15 minutes;

Consuelo apparently followed Christina outside, and Christina brought her back inside.

Defendant told the detective that when Christina started to go out again, he told her she

was to take Consuelo along, but Christina did not want to and tried to hurry out the door.

When Consuelo again attempted to follow, Christina shut the door hard and quickly.

Defendant told the detective that either just before or just after the door was shut,

defendant returned to the kitchen. About a minute later, he noticed he was hearing no

sound from Consuelo. He could not see the front door from the kitchen, and went into

the living room where he found the front door partially ajar. He opened the front door

and saw Consuelo right outside the door on a grassy area adjacent to the carport. She was

lying on her back looking up, her head slightly tilted to one side, with blood on her nose

and mouth. She was vomiting. Defendant picked her up and took her to Medina’s

bedroom, put her on the bed, and then cleaned up her face using some toilet tissues. At

that point, defendant said, “[Consuelo] looked bad, that her eyes were contorting and

rolling and he could tell she was injured bad.” Defendant told the detective he went

outside and walked to the end of the apartment building where he met up with Christina,

who was then returning home. Defendant remembered cleaning up the vomit. He

confirmed that Consuelo had only been out of his sight for one minute.

On November 20, 1991, the criminalist for Kern County Regional Crime

Laboratory searched the apartment. She looked for but could not find any blood or vomit

or any indication that either had been cleaned up in the area outside or just inside the

front door. In a wastebasket near the entrance to the dining room, she found paper towels

soaked with vomit that contained semi-digested food particles consistent with a

hamburger bun and carpet fibers consistent with the rug in the apartment. She found no

dirt or gravel or any other substance she would have expected to find had the vomit been


cleaned up from outside. Uncooked eggs were found in a bowl on the kitchen counter;

crayons and a coloring book were found on the dining room table.

The criminalist found a towel containing blood and semen on the master bedroom

floor.3 Definitive identification of the donors of the blood and semen was not possible,

but the blood was consistent with that of both Medina and Consuelo, and the semen was

consistent with that of defendant. She found a few drops of blood, which might have

been older and which could not be tested, splattered on the wall of the master bedroom,

bloody tissues in the bathroom wastebasket, and vomit, in a pattern indicating it came

from a downward motion, on the right leg of the pants defendant was wearing when he

was arrested. Neither defendant’s pants nor his underclothes revealed evidence of blood

or semen. The clothing that had been removed from Consuelo at DMC and placed in a

hospital bag revealed no tearing or dirt or other markings that would indicate that

Consuelo had hit the pavement, and no semen was detected. There was no diaper

included in the bag of clothing. The only diaper ever found in the apartment was a soiled

diaper found in the kitchen trash; it contained no blood.

A California Highway Patrol accident investigator testified Consuelo would not

have landed outside the apartment door on the grassy area between the building and the

carport had she been hit by a car traveling in the driveway, or by a car backing into a

parking space in the carport. Had a car traveling on the driveway hit Consuelo, he would

have expected to see signs of trauma on her clothing as well as contusions and abrasions

at the point of impact. A microscopic examination of her clothing revealed no signs of


Medina testified that she and defendant had had sexual intercourse the night before

Consuelo was injured, that Medina had her menstrual period, and that she and defendant
had used a brown towel to clean themselves afterward. She threw the towel on the floor,
and the next morning gathered up laundry, including towels from the bedroom floor, to
take to the laundromat, but was unable to do a wash because the laundromat was too full.
She did not explain how the brown towel came to be found again on the bedroom floor.


trauma. Had a car backing into a parking space in the carport hit her, he would have

expected to see far less severe injuries to Consuelo and possibly damage to the carport

pole. He found no damage to the carport pole. He had never seen vaginal or anal injuries

result from a car accident.

2. The Defense Case

The defense presented testimony of two medical experts who explained that

Consuelo’s injuries were consistent with a fall or a car accident or the effects of various

medical procedures employed during the eight days Consuelo was in the hospital, and

were inconsistent with anal and vaginal penetration. The defense also established that the

criminalist discovered an unidentified pubic hair on the outside of Consuelo’s jacket, and

the UCLA Pathology Department removed some plant material from Consuelo’s nasal


Defendant testified that before Medina left the house, she changed Consuelo’s

diaper. When she left, Christina and Consuelo were watching television in the living

room and defendant got up and went to the kitchen to cook eggs for himself for dinner.

He gave Christina permission to play with Mirabel but told her not to be too long.

Defendant offered conflicting testimony regarding whether or not Consuelo went

outside when Christina left. In one version he stated Christina and Consuelo both went

outside and he did not know if Consuelo came back inside. In a second version he stated

Christina picked up or grabbed Consuelo and they went outside together. He saw them

both come back inside and Christina then left again, and defendant was not aware that

Consuelo had gone outside again until he didn’t hear her while he was in the kitchen

cooking the eggs.

When he did not hear Consuelo, he went to the front door and saw that the door

was open. He looked outside and saw her lying on the ground. He picked her up and

saw that she was “real sick.” She was lying on her back, her eyes were turned up, she

was bleeding from her nose and mouth, and she was vomiting. He laid her on the sofa


and went to call Christina. He then took Consuelo into his bedroom and turned on the fan

so she could get some air because she was having trouble breathing. He tried to clean her

face using some toilet paper. When Christina came in, he was in the bedroom with

Consuelo on his lap, and he told Christina to call her mother. After he took Consuelo

inside, and before going to call Christina, he cleaned up the vomit that was outside, using

kitchen towels he threw in the trash can.

Defendant testified Christina used a towel to clean the blood off Consuelo. He

told her not to use the towel that was on the bedroom floor because it was dirty. He never

told anyone he thought Consuelo ran into the door, and he did not tell Christina he

thought she had closed the door on Consuelo. The front door to Medina’s apartment

opened inward; a person leaving the house would pull the door closed behind her.

Defendant agreed that if Consuelo had hit her head on the door while trying to follow

Christina outside, she would have been inside, not outside, the apartment.

Defendant denied knowing what happened to Consuelo, and denied taking off her

diaper, sodomizing her, throwing her against the wall, kicking her, or otherwise harming


B. Penalty Phase Evidence

The prosecution presented three witnesses at the penalty phase. Consuelo’s aunt

and two cousins testified regarding how Consuelo’s death had affected her family.

Defendant presented two witnesses. A lifelong friend testified that defendant was a

noble, calm person, and a prior employer testified that defendant was a good worker and

a good, nonviolent person. The parties stipulated that defendant had no prior felony

convictions or prior acts of violent conduct.


A. Absence of Lead Counsel During Portion of Jury Selection

For less than an hour on March 25 and March 26, 1993, Jeffrey Harbin, who had

been appointed pursuant to section 987, subdivision (d) in January 1992, as defendant’s


cocounsel, conducted the voir dire of prospective jurors while lead counsel Donnalee

Huffman was not present in the courtroom. Defendant contends that Huffman’s absence

was a presumptively prejudicial violation of his right to counsel at a critical stage of the

proceedings. (United States v. Cronic (1984) 466 U.S. 648, 659 (Cronic).)

A criminal defendant enjoys the right to counsel under both the state and federal

Constitutions (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Gideon v. Wainwright

(1963) 372 U.S. 335, 339–345; People v. Koontz (2002) 27 Cal.4th 1041, 1069). A

complete denial of counsel at a critical stage of the proceedings, including during jury

voir dire (Gomez v. United States (1989) 490 U.S. 858, 873), gives rise to a presumption

that the trial was unfair (Cronic, supra, 466 U.S. at p. 659). But when the defendant is

represented by counsel, the presumption of prejudice will only stand when counsel

entirely failed to subject the prosecution’s case to meaningful adversarial testing. (Bell v.

Cone (2002) 535 U.S. 685, 695; Cronic, at p. 659.) A trial court has discretion to appoint

second counsel for a capital defendant (§ 987, subd. (d); Keenan v. Superior Court (1982)

31 Cal.3d 424), but a capital defendant is not entitled to the courtroom presence of both

appointed counsel at all times (People v. Carpenter (1997) 15 Cal.4th 312, 376

(Carpenter); People v. Montiel (1993) 5 Cal.4th 877, 906, fn. 5).

Here, either lead counsel or cocounsel, or both, were present at all times, and

defendant does not contend that cocounsel entirely failed to subject the prosecution’s case

to meaningful adversarial testing. We will not presume, and defendant does not show,

prejudice resulted from lead counsel’s absence for less than an hour during jury selection.

B. Excusal of Prospective Jurors Based Upon Questionnaire

Defendant contends the trial court erred in excusing, upon stipulation, eight

prospective jurors based solely upon their responses to juror questionnaires without

follow-up questioning.

The court, which has the discretion to allow parties to ask or submit supplemental

questions, must conduct the initial examination of jurors. (Code Civ. Proc., § 223.)


Upon completion of the court’s initial examination, the parties have the right to examine

the prospective jurors. (Ibid.) In capital cases, death-qualifying examination pursuant to

Hovey v. Superior Court (1980) 28 Cal.3d 1, is conducted individually, and in

sequestration at the discretion of the court. (Covarrubias v. Superior Court (1998) 60

Cal.App.4th 1168, 1172, 1177-1182.)

The court initially submitted two questionnaires to each prospective juror, one

regarding hardship and the other specific to death qualification. The court and counsel

conducted the hardship voir dire. Thereafter, taking groups of 24 prospective jurors at a

time, the court and counsel conducted additional general voir dire in the presence of all

prospective jurors, and then began with the individualized and sequestered Hovey voir

dire. Later, after having conducted several days of general and Hovey voir dire, the court

stated, “Counsel have indicated also, yesterday, that, having reviewed the questionnaires

from today, and having the benefit of extensive voir dire of a number of other individuals

in this particular case, that, in the interest of time, and more particularly in the interests of

justice, they are prepared to agree that certain of our prospective jurors for this morning

may be excused.” Over the course of the day, counsel stipulated that eight prospective

jurors could be excused based upon their responses to questionnaires alone. As a result,

these eight prospective jurors were excused without having been subject to the general

voir dire by court and counsel, or the individual Hovey voir dire.

Defendant contends this procedure violated his rights to an impartial jury because

it materially departed from the statutory scheme in that it eliminated the court from the

voir dire process and resulted in the excusal of at least seven death-qualified prospective


Defendant is barred from raising on appeal this claim regarding defects in the jury

selection procedure. (See, e.g., People v. Cudjo (1993) 6 Cal.4th 585, 627–628.) “As we

stated in [People v.] Visciotti [(1992) 2 Cal.4th 1, 37–38], ‘counsel acquiesced in the

[voir dire] procedure of which defendant now complains. . . . [¶] . . . [¶] . . . While the


parties are not free to waive, and the court is not free to forego, compliance with the

statutory procedures which are designed to further the policy of random selection, equally

important policies mandate that criminal convictions not be overturned on the basis of

irregularities in jury selection to which the defendant did not object or in which he has

acquiesced. [Citations.]’ [Citation; see also Cal. Const., art. VI, § 13 [no reversal for

procedural errors absent a ‘miscarriage of justice’].)” (People v. Ervin (2000) 22 Cal.4th

48, 73 (Ervin).)


Ervin, the parties stipulated to the excusal of numerous prospective jurors based

upon their answers to questionnaires. Because the defendant acquiesced in the procedure,

and the procedure benefited all parties by screening out “overzealous ‘pro-death’ as well

as ‘pro-life’ venirepersons,” thereby culling out prospective jurors who probably would

have been unable to serve as jurors, we found no error. (Ervin, supra, 22 Cal.4th at

p. 73.) Defendant asserts, without authority, that Ervin was wrongly decided, and argues

Ervin is distinguishable because the trial court here requested counsel show a legitimate

reason for agreeing to the stipulated excusals. By doing so, argues defendant, the trial

court rendered the excusal procedure to be one based upon judicial discretion rather than

stipulation of parties. We disagree. The record reveals no indication that in making the

request the trial court was passing on the adequacy of the reasons for the stipulations.

Were we to address this claim on the merits, it would fail. An appellate court

applies the abuse of discretion standard of review to a trial court’s conduct of the voir

dire of prospective jurors. (See Code Civ. Proc., § 223.) A trial court abuses its

discretion when its ruling “ ‘ fall[s] “outside the bounds of reason.” ’ ” (People v. Waidla

(2002) 22 Cal.4th 690, 714, quoting People v. DeSantis (1992) 2 Cal.4th 1198, 1226.)

The trial court did not act unreasonably in allowing counsel to prescreen prospective

jurors whose questionnaires showed they were probably subject to challenge and excusal.

(See Ervin, supra, 22 Cal.4th at pp. 72-74.) Both defense counsel and the prosecutor

recognized upon review of the questionnaires alone that they did not want to accept any


of these prospective jurors, and neither felt it necessary to inquire further into the

prospective jurors’ views on the death penalty. Instead of pursuing additional

questioning, they mutually agreed to reject these prospective jurors. Defendant fails to

show how this procedure was unreasonable.

Finally, defendant argues that because he was absent when the prosecutor and

defense counsel agreed to stipulate to the excusal of these eight prospective jurors, he

was denied the right to be present at a critical stage of the trial in violation of the

Fourteenth Amendment guarantee of due process. (United States v. Gagnon (1985) 470

U.S. 522.)

This claim is without merit. A defendant is not entitled to be personally present

during proceedings that bear no reasonable, substantial relation to his opportunity to

defend the charges against him, and the burden is on the defendant to demonstrate that his

absence prejudiced his case or denied him a fair and impartial trial. (See People v. Hovey

(1988) 44 Cal.3d 543, 585–586 (Hovey).) Defendant was present at all stages of jury

selection, including when counsel entered into the stipulation and when the prospective

jurors were excused. When trial was not in session, the court overheard the meeting in

the courtroom between all counsel during which counsel discussed and agreed to exclude

a number of prospective jurors, but whether defendant was present at counsel table during

these prestipulation discussions is not a matter of record. Even assuming he was absent,

however, he only speculates “his consultation with [counsel] could reasonably have

resulted in these prospective jurors not being excused.” He fails to show that his

presence would have served a purpose.

For the foregoing reasons, we also reject defendant’s claims this jury selection

procedure violated his right to due process, an impartial jury, and a reliable penalty

verdict in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal

Constitution, and article 1, sections 13 and 15 of the state Constitution.



A. Evidence that Medina Associated with Convicted Child Molester

The prosecution sought to introduce evidence showing that sometime after

Consuelo’s death, Medina began an association with Joe Avila, who she knew had been

convicted of molesting some of the children in his own family. She saw Avila at

Consuelo’s funeral in 1991, and on various holidays in 1992. He gave her gifts and

helped her move; she lent him tools. Avila lived in a house with his sister and her

children, and Medina allowed Christina to spend the night at that house on one occasion.

Medina did not tell Christina that she should be wary of Avila. In July 1992, when

Medina was asked if she knew Avila was a child molester, she replied that she did not

know and did not care.

Defendant argued this evidence was irrelevant and was being offered to prove that

because Medina consorted with a known child molester, defendant was a child molester

as well. By way of explanation, the prosecutor stated, “I believe it is relevant to show

that she would allow a man who was abusing her child to be around her child even

though she had that knowledge. And I think it is very relevant at this point to show how

this man had access to this child and how he was able to do the things he had done

without her reporting anything to anyone and without her divulging that material.” The

court confessed a curiosity as to why Consuelo’s prior injuries had not been reported, and

concluded that the evidence regarding Avila “might be relevant to show that this is the

type of mother who would not report that because she cares more about her adult

companion than she does her minor children. . . . And this is probably the only evidence

that is going to be available to explain some of the apparent inconsistencies or

deficiencies with regard to the actions and/or inactions of the mother.” The court

admitted the evidence, and instructed the jury that the evidence was admitted “for a

limited purpose . . . [and] that limited purpose is not to show that the accused may have

shared any of the traits that apparently are going to be attributable to this other individual,


but instead this evidence is only to be considered by you, if at all, with regard to what

[Medina] has said and/or has done.”

Defendant again now claims this evidence was irrelevant. We conclude the

evidence was of limited probative value and the court did abuse its discretion in admitting

the evidence in question, but that the error was harmless.

Only relevant evidence is admissible (Evid. Code, §§ 210, 350), and all relevant

evidence is admissible unless excluded under the federal or state Constitutions or by

statute. (Evid. Code, § 351; see also Cal. Const., art, I, § 28, subd. (d); People v. Heard

(2003) 31 Cal.4th 946, 972-973 (Heard).) The test of relevance is whether the evidence

“tends ‘logically, naturally, and by reasonable inference’ to establish material facts such

as identity, intent, or motive.” (People v. Garceau (1993) 6 Cal.4th 140, 177.) The trial

court has broad discretion in determining the relevance of evidence, but lacks discretion

to admit irrelevant evidence. (See People v. Crittenden (1994) 9 Cal.4th 83, 132.) We

review for abuse of discretion a trial court’s rulings on the admissibility of evidence.

(Heard, at pp. 972, 974; People v. Rowland (1992) 4 Cal.4th 238, 264.)

Consuelo sustained serious injuries on November 17, 1991, while left by Medina

under defendant’s care. Nothing in the record established that before then, Medina either

associated with Avila or had knowledge or reason to suspect defendant was abusing

Consuelo.4 The fact, therefore, that she kept company with known child-molester Avila

after Consuelo’s death was of limited probative value to the determination of defendant’s


That being said, any error in admitting this evidence was harmless. In light of the

strong evidence against defendant, including facts showing that Consuelo’s fatal injuries

were sustained during the 15 minutes defendant was alone with her, that defendant


Christina did not tell Medina about the incident when defendant took Consuelo

into his bedroom overnight until six months after Consuelo’s death.


admitted she was out of his sight for only one minute, and that her injuries were strongly

consistent with physical and sexual abuse, it is not reasonably probable the jury would

have reached a different result regarding defendant’s guilt had the court excluded the

evidence that Medina was not fastidious in her choice of adult companions. (People

v. Watson (1956) 46 Cal.2d 818, 836; see People v. Marks (2003) 31 Cal.4th 197, 226


For the first time on appeal, defendant also claims that the trial court’s ruling

violated his rights to due process and a reliable penalty determination pursuant to the

Fifth, Sixth, and Fourteenth Amendments to the federal Constitution. The People

contend defendant waived his constitutional claims by failing to raise them below and

only objecting that the evidence was not relevant and was more prejudicial than

probative. (Evid. Code, § 352.) Assuming the claim was properly preserved for appeal

(see People v. Yeoman (2003) 31 Cal.4th 93, 117, 133 (Yeoman)), defendant’s

constitutional claims fail on the merits because generally, violations of state evidentiary

rules do not rise to the level of federal constitutional error. (See Estelle v. McGuire

(1991) 502 U.S. 62, 70.)5

B. Evidence of Uncharged Crimes

Before trial, defendant moved in limine to exclude from the guilt phase any

evidence of uncharged crimes, specifically Christina’s statements that, when she and

Consuelo were left alone with defendant overnight sometime before September 24, 1991,

she saw defendant take Consuelo from her own bedroom into his bedroom, that he locked

the door and kept her there all night, and that Consuelo emerged her usual self the

following morning. Christina told officers she “believed [defendant] raped [Consuelo].”


Further, because we conclude this evidence was irrelevant, we need not address

defendant’s new contention that it was inadmissible character evidence pursuant to
Evidence Code section 1101, subdivision (a).


Defendant also sought exclusion of statements of Diana Alejandro, Consuelo’s aunt, that

around Halloween, 1991, Consuelo had not been feeling well, was throwing up, was not

herself, was not smiling, and had changed. Diana told officers she had a “gut feeling”

that defendant was molesting and sodomizing Consuelo.

In his moving papers defendant sought exclusion of these statements on the

ground that Evidence Code section 1101, subdivision (a), precluded the admission of

such evidence because it tended to show his disposition to commit criminal acts. He also

argued the evidence was unduly prejudicial and violated the Fifth, Eighth, and Fourteenth

Amendments to the federal Constitution and parallel provisions of the state Constitution.

At the hearing on the motion, defense counsel clarified they sought exclusion

solely of two “statements of opinion”—the portion of Christina’s statement that she

believed defendant raped Consuelo, and the portion of Diana’s statement that she had a

“gut feeling” defendant was molesting and sodomizing Consuelo. The trial court granted

the motion to exclude these statements of opinion, and defense counsel stated she had no

objection to the introduction of the remaining “percipient” portions of the statements—

that in September Christina saw defendant take Consuelo into his bedroom overnight and

lock the door, and that Diana observed Consuelo’s illness at or around Halloween.

Defendant now claims the trial court erred by not excluding the percipient portions

of the statements, contending these statements constituted evidence of uncharged prior

criminal acts of physical and sexual abuse, inadmissible under Evidence Code section

1101, subdivision (a). Because defendant failed to object to the introduction of this

evidence at trial, however, he failed to preserve this claim for appeal. (Evid. Code,

§ 353; see, e.g., People v. Champion (1995) 9 Cal.4th 879, 918–919 (Champion)

[reviewing courts will not consider a challenge to the admissibility of evidence absent a

specific and timely objection in the trial court on the ground sought to be urged on



Anticipating our conclusion, defendant contends that defense counsel rendered

ineffective assistance in violation of the Sixth Amendment to the federal Constitution

(see Strickland v. Washington (1984) 466 U.S. 668, 687-692 (Strickland)) and section 15

of article I of the state Constitution (see People v. Ledesma (1987) 43 Cal.3d 171, 216–

218) by failing to object to the introduction of the percipient portions of the statements or

to seek a jury instruction limiting the use of this evidence. To prevail on a claim of

ineffective assistance of counsel, a defendant must show both that counsel’s performance

was deficient and that the deficient performance prejudiced the defense. (Strickland, at

pp. 687-688, 693; Ledesma, at p. 216.) Counsel’s performance was deficient if the

representation fell below an objective standard of reasonableness under prevailing

professional norms. (Strickland, at pp. 687-688.) Prejudice exists where there is a

reasonable probability that, but for counsel’s errors, the result of the proceeding would

have been different. (Id. at pp. 693-694.)

We find no deficient performance. Defendant claimed Consuelo’s fatal injuries

were caused by an accident or by medical personnel. The prosecution had the burden of

proving every element of the crime charged, including that the death was the result of an

intentional act by someone, and not an accident. (See Estelle v. McGuire, supra, 502

U.S. at p. 69.) Medical evidence established Consuelo had suffered prior internal injuries

similar to the fatal injuries suffered on November 17, 1991. Forensic evidence

established the prior injuries were inflicted one to two months prior to November 17.

The percipient evidence established that in late September 1991, defendant exhibited

abnormal, secretive behavior with Consuelo and had the opportunity to inflict these

injuries. Within the same time frame, Consuelo exhibited physical and emotional

symptoms consistent with the intentionally inflicted injuries the later medical

examinations disclosed. Thus, the percipient evidence was in harmony with the forensic

evidence. From this evidence, the jury could reasonably infer that defendant’s intentional

acts caused Consuelo’s prior injuries. This inference, in turn, was probative in


establishing that the fatal injuries resulted from sexual abuse rather than an accident.

Admission of the percipient evidence, therefore, was proper under Evidence Code,

section 1101, subdivision (b),6 and counsel was not deficient in failing to seek its


Defendant further claims the introduction of this percipient evidence violated his

right to due process under the Fourteenth Amendment to the federal Constitution. This

claim fails because, as we have concluded, the evidence was properly admitted. He also

argues the trial court failed to weigh the prejudicial effect of this evidence against its

probative value. This claim has no merit: Counsel agreed to the admission of this

evidence and the court was not required to make such a determination sua sponte. (See

People v. Visciotti, supra, 2 Cal.4th at p. 53, fn. 19.)

Finally, defendant contends the trial court erred by failing to instruct the jury sua

sponte with CALJIC No. 2.50 regarding the limited purpose for which the evidence of

other crimes was admitted.7 At a conference on jury instructions, defense counsel asked

the trial court not to instruct on evidence of uncharged crimes, asserting there was no


Evidence Code section 1101, subdivision (b) provides: “Nothing in this section

prohibits the admission of evidence that a person committed a crime, civil wrong, or
other act when relevant to prove some fact (such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his
or her disposition to commit such an act.”


CALJIC No. 2.50, as applicable here, instructs as follows: “Evidence has been

introduced for the purpose of showing that the defendant committed a crime other than
that for which he is on trial. This evidence, if believed, may not be considered by you to
prove that defendant is a person of bad character or that he has a disposition to commit
crimes. It may be considered by you only for the limited purpose of determining if it
tends to show: The defendant had knowledge or possessed the means that might have
been useful or necessary for the commission of the crime charged. For the limited
purpose for which you may consider such evidence, you must weigh it in the same
manner as you do all other evidence in the case.”


evidence defendant had committed any prior crimes. The trial court had no duty to give

such an instruction in the absence of a request. (People v. Padilla (1995) 11 Cal.4th 891,

950, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 822–823, fn. 1.)

A fortiori, it had no duty to do so over counsel’s objection. We conclude there was no

ineffective assistance in the position taken by counsel with regard to this instruction.

Counsel could reasonably have concluded such an instruction would have emphasized in

the jurors’ minds a characterization of defendant she was trying to avoid—that

defendant’s actions toward Consuelo were, indeed, criminal.

C. Questioning of Defendant Regarding Surprise at Being Charged with

Sodomy and Rape

During defendant’s direct examination, defense counsel asked, “Mr. Benavides,

were you surprised when the Police Department charged you with the crime of sodomy

and rape of this child?” Before he replied, the court sustained the prosecutor’s objection

on the grounds of relevancy.

Defendant now argues that his objective in seeking to introduce this testimony was

to refute the implication that he harbored consciousness of guilt, as suggested by

prosecution evidence regarding his demeanor at the hospital where he exhibited “little

concern,” his having stayed in the car while Consuelo was initially brought into the

emergency room, his “nonchalant” attitude witnessed by nurses at DMC, his silence, his

staring at the floor, and his failure to make eye contact with the detectives during initial

interrogations. He argues that the exclusion of his answer amounted to the exclusion of

exculpatory evidence showing that he had no such guilty knowledge.

This claim was not properly preserved for appeal. As we have emphasized in the

past, “ ‘our review on direct appeal is limited to the appellate record.’ ” (People v.

Jenkins (2000) 22 Cal.4th 900, 952.) Defendant did not answer the question posed to him

or make an offer of proof (Evid. Code, § 353; People v. Valdez (2004) 32 Cal.4th 73, 108

(Valdez) [to preserve an alleged error for appeal an offer of proof must inform the trial


court of the purpose and relevance of the excluded evidence]), and we decline to

speculate as to what defendant now claims—that he was surprised at his arrest because he

did not think himself guilty of the charges.

Further, defendant fails to show the court abused its discretion in excluding the

answer to his question. In light of defendant’s consistent testimony that he did not know

what happened to Consuelo and was not guilty of the charged offenses, any self-serving

assertion that he was surprised at his arrest for rape and sodomy was of limited probative

value and would have added little, if anything, to defendant’s posture at trial.

Defendant also claims that court error in excluding this evidence violated his

rights to due process, to present a defense, to testify on his own behalf, and to a reliable

penalty determination pursuant to the Fifth, Sixth, Eighth, and Fourteenth Amendments

to the federal Constitution. This federal claim fails because, as we have concluded, the

trial court’s exclusion of this evidence was not in error.

D. Admission of Photographs of Victim While Still Alive

Over defendant’s objections, the court admitted into evidence three photographs of

Consuelo taken at the UCLA Medical Center on November 21, 1991, four days after she

sustained her fatal injuries and four days before she died.

People’s exhibit No. 35 depicted Consuelo lying naked and swollen on a hospital

bed, her genitals exposed, covered with medical tubing and bandages. Defendant

objected to its admission, arguing that the angle from which that picture was taken

emphasized the genital area and was inflammatory and prejudicial. The court agreed that

when first viewed, the photograph “invokes a certain amount of sympathy,” but found

that it fairly and objectively assisted in explaining much of the testimony.

Defendant’s exhibit Z is a close-up view of Consuelo’s anus and vagina, showing

profound redness, rawness, and swelling. Defendant’s exhibit AA is a close-up view of

her vagina with a catheter inserted. The prosecution offered the photographs into

evidence, noting a medical expert was asked about them. The defendant objected to their


introduction on the ground they were inflammatory. The court received defendant’s

exhibits Z and AA into evidence, stating, “[I]n terms of them being inflammatory, I

might have agreed at the outset of the case, but I certainly don’t think so now.”

Defendant argues the admission of these photographs violated Evidence Code

section 352 in that they had no probative value and were extremely prejudicial,

inflammatory, and cumulative.

When a defendant makes a claim that photographs of the victim are unduly

gruesome or inflammatory, their admission lies within the broad discretion of the trial

court. (People v. Kipp (2001) 26 Cal.4th 1100, 1136 (Kipp).) “ ‘The [trial] court’s

exercise of that discretion will not be disturbed on appeal unless the probative value of

the photographs clearly is outweighed by their prejudicial effect.’ ” (Heard, supra,

31 Cal.4th at p. 976.) Evidence is prejudicial when it “ ‘ “uniquely tends to evoke an

emotional bias against a party as an individual, while having only slight probative value

with regard to the issues. [Citations.]” ’ (People v. Hart (1999) 20 Cal.4th 546, 616.)

‘[T]rial courts should be alert to how photographs may play on a jury’s emotions,

especially in a capital case, [and] we rely on our trial courts to exercise their discretion

wisely, both to allow the state fairly to present its case as well as to ensure that an

accused is provided with a fair trial by an impartial jury.’ ” (People v. Boyette (2002) 29

Cal.4th 381, 424 (Boyette).)

The central factual dispute was how Consuelo received the fatal injuries. With the

exception of the radiologist, each medical professional who testified regarding her

treatment on or after November 17, 1991, was asked to describe what Consuelo’s genitals

looked like. The jury was entitled to see for itself the condition of Consuelo’s body in

order to determine whether that evidence did or did not support the prosecution’s theory

that Consuelo was sexually abused. (Marks, supra, 31 Cal.4th at p. 226.) As the trial

court stated, these photographs are disturbing, but they are not particularly gruesome, and


their probative value far outweighed any prejudicial effect. Having reviewed the

photographs, we agree with this assessment.

Further, the photograph in People’s exhibit No. 35 was not cumulative, as

defendant argues, merely because the facts for which it was offered had been established

by the testimony of the pediatrician and the forensic pathologist. (Heard, supra,

31 Cal.4th at p. 976.) The photograph helped to clarify the testimony of these medical

professionals, much of which, the court admitted, was difficult to follow.

For the first time on appeal, defendant argues the introduction of these

photographs violated his rights to due process and a reliable penalty determination

guaranteed by the Fifth, Eighth and Fourteenth Amendments to the federal Constitution.

Assuming the claim was properly preserved on appeal (Yeoman, supra, 31 Cal.4th at

pp. 117, 133), defendant’s constitutional claims fail on the merits because the

photographs were properly admitted.

E. Conviction for Lewd and Lascivious Conduct

Defendant was convicted of rape, in violation of section 261, former

subdivision (2) (now subd. (a)(2), as amended by Stats. 1993-1994, 1st Ex. Sess., ch. 40,

§ 1), sodomy, in violation of section 286, former subdivision (c) (now subd. (c)(1), as

amended by Stats. 1998, ch. 936, § 4), and lewd and lascivious conduct, in violation of

section 288, subdivision (a). He moved unsuccessfully for an acquittal of the charge of

lewd conduct pursuant to section 1118.1, arguing that the only evidence was the same as

that which supported the charges of rape and sodomy. Defendant did not receive

multiple punishments for the rape, sodomy and lewd conduct convictions; on sentencing

defendant to death, the court stayed the execution of sentence on all three sex crimes

under section 654.

Defendant now argues that he cannot be convicted of lewd or lascivious conduct

under section 288 absent evidence separate from, and independent of, the evidence of

rape and sodomy. Upon this premise he also argues that the prosecutor was required to


elect the specific act upon which the lewd conduct charge was based; that in failing to

make such an election, the prosecution misled the court; and that the jury’s finding of

guilt of the rape and sodomy charges necessarily precluded a finding of lewd conduct. In

essence, he is arguing that the facts of the rape and sodomy alone do not establish lewd


Defendant’s basic premise is unsound. Unless one offense is necessarily included

in the other (People v. Pearson (1986) 42 Cal.3d 351, 355), multiple convictions can be

based upon a single criminal act or an indivisible course of criminal conduct (§ 954).

Lewd conduct with a child is not a necessarily included offense of either rape or sodomy,

which require only general intent. (People v. Griffin (1988) 46 Cal.3d 1011, 1029-1030.)

Lewd conduct with a child is a distinct crime that requires an act upon or with the body of

a child under the age of 14, with the specific intent to arouse, appeal to, or gratify the lust

or passions or sexual desire of either the perpetrator or the child (§ 288), and can be

proven by circumstantial evidence including the nature of the act itself. (People v.

Martinez (1995) 11 Cal.4th 434, 444-445.) Rape and sodomy are inherently sexual

acts—rape is defined in terms of sexual intercourse (§ 261), and sodomy is defined in

terms of sexual penetration (§ 286)—and such definitions support an inference that in

raping or sodomizing the victim, the perpetrator intended to sexually gratify himself or

the victim. Under such circumstances, a conviction for lewd conduct with a child can be

obtained at trial and upheld on appeal by the same evidence used to show the defendant

raped and sodomized the child.

Further, contrary to the defendant’s assertions, there is evidence in the record in

addition to the rape and sodomy that would support a conviction of lewd acts upon a

child; in picking up, disrobing, removing the diaper from, and holding and placing

Consuelo in a position that facilitated the rape and sodomy, defendant was touching

Consuelo with the intent to sexually gratify himself. Even if defendant had stopped short


of actually committing the rape and sodomy, the crime of lewd act upon a child would

have been complete when defendant touched Consuelo with sexual intent.

Defendant argues that the court erred in failing to instruct the jury that it must

unanimously decide which specific act supported the lewd conduct charge. Again, this

claim lacks merit. We have observed that “[t]he unanimity instruction is not required

when the acts alleged are so closely connected as to form part of one transaction.”

(People v. Stankewitz (1990) 51 Cal.3d 72, 100.) The criminal acts here took place

within a very small window of time. The condition of Consuelo’s body presented the

strongest evidence in support of the crimes of rape and sodomy and of defendant’s sexual

intent. The jury was not presented with different or conflicting theories as to how the

lewd act could have occurred. This was not a case where the jury would agree the

defendant sexually assaulted the victim but disagree about which acts he committed.

Thus, a unanimity instruction was not required.

Further, because we conclude the lewd conduct charge can be based upon the

same conduct as the rape and sodomy charges, defendant’s argument that the prosecution

failed to elect the specific act upon which the lewd conduct charge was based, and that a

finding of guilt of the rape and sodomy charges would necessarily preclude a finding of

guilt of the lewd conduct charge, has no merit.

Finally, defendant argues that the lewd and lascivious conduct conviction was

obtained in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the

federal Constitution. Assuming the claim was properly preserved on appeal (Yeoman,

supra, 31 Cal.4th at pp. 117, 133), defendant’s constitutional claims fail on the merits

because, as we have concluded, there was no error in the conviction for lewd conduct.

F. Lewd and Lascivious Conduct Special Circumstance

Defendant, citing the plurality opinion in People v. Harris (1984) 36 Cal.3d 36, 62

(disapproved on other grounds in People v. Bell (1989) 49 Cal.3d 502, 526, fn. 12),

argues that because the lewd conduct special circumstance is based on the same evidence


as the rape and sodomy special circumstances, the lewd conduct special circumstance

violates the federal and state constitutional prohibitions against cumulative use of the

same conduct.

This essentially reiterates defendant’s earlier contention that the rape or sodomy

and the lewd conduct are actually the same act described as different crimes, and that it is

therefore error to allege three different special circumstances based upon what were

actually two criminal acts. Again, defendant’s premise is unsound. The distinction

between the crimes of rape and sodomy and that of a lewd act on a child, as set forth

above, is identical to the distinction between the special circumstance for felony murder

in the course of a lewd act on a child and that of felony-murder rape and felony-murder

sodomy (see People v. Stansbury (1993) 4 Cal.4th 1017, 1069 (Stansbury), revd. on other

grounds in Stansbury v. California (1994) 511 U.S. 318)—even if based upon the same

acts, they are different crimes. The special circumstance allegation of felony murder in

the course of a lewd act on a child can be based on the same conduct as the allegations of

felony-murder-rape and felony-murder-sodomy special circumstances.

Defendant’s attempt to distinguish People v. Melton (1988) 44 Cal.3d 713, is

unpersuasive. There, we held underlying felonies based on separate felonious acts arising

from an indivisible course of conduct with a single criminal intent do not preclude each

felony from being considered a distinct aggravating factor under section 190.3, factor (a).

Defendant argues his case presented a single act, not an indivisible course of conduct, and

separate consideration of special circumstances based upon the rape or sodomy and lewd

act would constitute an improper “double-counting” of a single aggravating factor. As

discussed above, the rape or sodomy and lewd conduct, while based upon the same

conduct, are not the same crimes but were part of an indivisible course of conduct, and

therefore each felony can be considered a distinct aggravating factor.

G. Jury Instruction on Consciousness of Guilt


Over defendant’s objection that there was insufficient evidence in support, the

court instructed the jury pursuant to CALJIC No. 2.03 regarding consciousness of guilt.8

Defendant again raises this claim, and further argues the instruction was argumentative

and lessened the prosecution’s burden of proof.

The People are incorrect in their assertion that defendant forfeited his latter claim

on appeal by failing to make a timely objection. (People v. Hannon (1977) 19 Cal.3d

588, 600 [lack of objection did not waive right to appellate review of instruction on

consciousness of guilt]; § 1259.) Defendant’s claim of error, however, has no merit.

Contrary to his assertions, there was sufficient factual support for this instruction.

Defendant’s statements to the detective (“I didn’t know what had happened to her, if she

fell from a ladder or she got hit by a car”), and to his family (“they had found the little

girl on the street thrown, and . . . [I] thought that there had been an accident on the

street”) could properly have been understood by the jury as attempts by defendant to

deflect attention away from his own criminal responsibility by deliberately offering

misleading speculation as to what might have caused Consuelo’s injuries. That his

efforts to do so were unsuccessful does not render these statements any less powerful

indicators of his consciousness of guilt; “[a] prior statement, although exculpating in

form, may prove highly incriminating at the trial because, upon a showing of its falsity, it

can constitute evidence of consciousness of guilt.” (People v. Underwood (1964) 61

Cal.2d 113, 121.)

In addition, we have previously determined that CALJIC No. 2.03 does not lessen

the prosecution’s burden of proof. (People v. Jackson (1996) 13 Cal.4th 1164, 1224.)


The court instructed, “If you find that before this trial the defendant made a

willfully false or deliberately misleading statement concerning the crime or crimes for
which he is now being tried, you may consider such statement as a circumstance tending
to prove a consciousness of guilt. However, such conduct is not sufficient by itself to
prove guilt, and its weight and significance, if any, are matters for your determination.”


The instruction does not improperly permit the jury to draw irrational inferences, nor is it

impermissibly argumentative. (People v. Nakahara (2003) 30 Cal.4th 705, 713.) We

decline defendant’s invitation to reconsider these determinations.

Defendant also argues on appeal that the instruction allowed the jury to draw

impermissible inferences of guilt in violation of his rights to due process, a fair trial, and

a reliable penalty verdict under the Fifth, Sixth, Eighth, and Fourteenth Amendments to

the federal Constitution. Because the instruction was properly given, these claims have

no merit.

H. Failure to Give Unanimity Instruction on Theory of Murder

The court instructed the jury on the alternative first degree murder theories of

willful, premeditated, and deliberate murder, as well as felony murder and second degree

murder. It further instructed that if the jury agreed defendant was guilty of murder, they

must unanimously agree whether the murder was first or second degree. Although

requested by the defense to do so, the court did not instruct that the jury must

unanimously agree which of the two theories of first degree murder supported the verdict.

Defendant claims this omission violated his rights to proof beyond a reasonable doubt, to

due process, and to a reliable determination of allegations that he committed a capital

offense pursuant to the Sixth, Eighth, and Fourteenth Amendments to the federal

Constitution and parallel provisions of the state Constitution.

In a criminal case, the jury must agree unanimously that defendant is guilty of a

specific crime. (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) In order to

“ ‘eliminate the danger that the defendant will be convicted even though there is no single

offense which all the jurors agree the defendant committed,’ ” when the evidence

suggests more than one distinct crime either the prosecution must elect among the crimes

or the court must require the jury to agree on the same criminal conduct. (Ibid.)

In People v. Dillon (1983) 34 Cal.3d 441, 476, footnote 23, we said that “in this

state the two kinds of murder are not the ‘same’ crimes and malice is not an element of


felony murder.” Premised on a mistaken interpretation of this language, defendant argues

that felony murder and willful, premeditated, and deliberate murder are two separate and

distinct crimes, requiring unanimous agreement as to each. He is incorrect. “Felony

murder and premeditated murder are not distinct crimes.” (People v. Davis (1995) 10

Cal.4th 463, 514.) As we have repeatedly explained, the statement referred to in Dillon

“means only that the two forms of murder have different elements even though there is

but a single statutory offense of murder.” (Kipp, supra, 26 Cal.4th at p. 1131; Carpenter,

supra, 15 Cal.4th at pp. 394–395.) When, as here, the evidence shows only a single

discrete crime but leaves room for disagreement as to exactly how that crime was

committed, the jury need not unanimously agree on the theory under which the defendant

is guilty. (See Russo, supra, 25 Cal.4th at p. 1132.) This rule of state law passes federal

constitutional muster. (Schad v. Arizona (1991) 501 U.S. 624, 630–646.) We decline

defendant’s invitation to reconsider these determinations.


I. Failure to Instruct on Voluntary and Involuntary Manslaughter

The trial court instructed the jury on two theories of first degree murder: willful,

premeditated, and deliberate murder, and felony murder during the course of rape,

sodomy, or lewd acts. The court also instructed on second degree murder. The court

refused defendant’s request for instructions on voluntary and involuntary manslaughter.

Defendant argues the court erred in refusing to give instructions on manslaughter

because there was sufficient evidence to support a verdict of involuntary or voluntary

manslaughter, and without such instructions the jury was left with an “all or nothing”

choice between conviction for capital murder and acquittal. We disagree.

We have held that a defendant has a constitutional right to have the jury determine

every material issue presented by the evidence and that, whenever there is substantial

evidence raising a question as to whether all of the elements of the charged offense are

present, the failure to instruct on a lesser included offense, even in the absence of a

request, constitutes a denial of that right. (Heard, supra, 31 Cal.4th at p. 980.)

“ ‘ “Substantial evidence is evidence sufficient to ‘deserve consideration by the jury,’ that

is, evidence that a reasonable jury could find persuasive.” ’ ” (Id. at p. 981.)

“Manslaughter is ‘the unlawful killing of a human being without malice.’ ”

(People v. Blakeley (2000) 23 Cal.4th 82, 87.) A court is not obligated to instruct sua

sponte on voluntary manslaughter as a lesser included offense in the absence of

substantial evidence that the defendant acted in a “sudden quarrel or heat of passion”

(§ 192, subd. (a)), or that the defendant killed in “ ‘ “unreasonable self-defense” ’ ”

(Blakeley, at p. 88). Pointing to medical evidence that Consuelo’s internal injuries were

caused by external blows and to the statement of the defense expert who suggested it was

not likely Consuelo was injured by running into a door but “the most likely scenario is

that this child was abused by someone in a rage,” defendant argues a reasonable juror

could conclude Consuelo was beaten to death in response to provocation, passion, and

spontaneous rage. We disagree. In light of evidence that Consuelo was severely beaten


and sexually assaulted, the isolated statement of the expert is not substantial support for a

reasonable conclusion that there existed passion and provocation sufficient to reduce

culpability from murder to voluntary manslaughter.

Further, a court is not obligated to instruct on involuntary manslaughter in the

absence of substantial evidence that the defendant killed his victim “ ‘in the commission

of an unlawful act, not amounting to [a] felony; or in the commission of a lawful act

which might produce death, in an unlawful manner, or without due caution and

circumspection.’ ” (People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on other

grounds in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1.) Consuelo suffered tearing

injuries to her anus and vagina and internal injuries equivalent to those suffered in a car

accident. For this evidence to support an involuntary manslaughter instruction, there

would have to have been sufficient evidence from which the jury could conclude that

medical personnel, not defendant, were the sole cause of the injuries to Consuelo’s anus

and vagina, and that a misdemeanor, not felony, battery was the cause of her internal

injuries. A battery is “any willful and unlawful use of force or violence upon the person

of another.” (§ 242.) A battery is deemed to be a felony unless specifically designated as

a misdemeanor by either the prosecution or the court. (§ 17, subd. (b); Robert L. v.

Superior Court (2003) 30 Cal.4th 894, 902; People v. Statum (2002) 28 Cal.4th 682,

685.) Defendant cites numerous cases of involuntary manslaughter that involved a

misdemeanor assault or battery where the act was of a less serious nature than that which

would constitute a felony (People v. McGee (1947) 31 Cal.2d 229, 238 [the defendant not

acting in self-defense fired fatal shot with intent to frighten victim]; People v. Wild

(1976) 60 Cal.App.3d 829, 832-833 [bar owner’s use of deadly force in attempting to

stop fleeing misdemeanant]; People v. Jackson (1962) 202 Cal.App.2d 179, 183

[defendant knocked victim to ground and jumped on him]; People v. Mullen (1908) 7

Cal.App. 547, 549 [victim intervened in fight, was hit in head and died a few days later]),

and argues that the evidence here could have supported a charge of misdemeanor battery.


It could not; in light of Consuelo’s vulnerability at the hands of defendant, the secrecy in

which the crimes occurred, and the number and severity of injuries inflicted, we cannot

find sufficient evidence that Consuelo’s assailant engaged in misdemeanor activity, much

less that he had committed a lawful act without due caution and circumspection, and that

therefore the killing was involuntary manslaughter.

In addition, the jury found true three special circumstance allegations, namely that

defendant killed Consuelo during the commission of the felony offenses of rape, sodomy,

and lewd conduct on a child under the age of 14. Given these findings, the jury

necessarily determined that the killing of Consuelo “was first degree felony murder

perpetrated in the commission of rape[, sodomy,] and lewd conduct, and not any lesser

form of homicide.” (People v. Earp (1999) 20 Cal.4th 826, 886 (Earp).)

Further, contrary to defendant’s assertions, the jury was not left with an “all or

nothing” choice between capital murder and acquittal when the court refused to instruct

on manslaughter. (See Beck v. Alabama (1980) 447 U.S. 625, 633-635 [sentence of death

violates the Fourteenth Amendment when the jury was not permitted to consider a verdict

of guilt of a lesser included noncapital offense and the evidence would have supported

such a verdict].) The jury had the choice of finding defendant guilty of second degree

murder as instructed by the court.

Finally, defendant argues that the failure to give instructions on voluntary and

involuntary manslaughter was prejudicial error resulting in a denial of his rights to due

process, a fair trial, and a reliable penalty verdict under the Fifth, Sixth, Eighth, and

Fourteenth Amendments to the federal Constitution and parallel provisions of the state

Constitution. This claim fails because, as we have concluded, the court did not err.


A. California Death-eligibility Process


Defendant makes a number of facial challenges to the death penalty scheme in

California, arguing in essence that the California death-eligibility process fails to

adequately narrow the class of death-eligible defendants. None has merit.

“The Eighth Amendment to the United States Constitution . . . imposes various

restrictions on the use of the death penalty as a punishment for crime. One such

restriction is that any legislative scheme defining criminal conduct for which death is the

prescribed penalty must include some narrowing principle that channels jury discretion

and provides a principled way to distinguish those cases in which the death penalty is

imposed from the many cases in which it is not. A death-eligibility criterion that fails to

meet this standard is deemed impermissibly vague under the Eighth Amendment.”

(People v. Bacigalupo (1993) 6 Cal.4th 457, 462.)

Defendant argues that under California’s statutory scheme, section 190.2 fails to

adequately narrow the class of first degree murderers eligible for the death penalty, and

that the felony-murder special circumstance, section 190.2, subdivision (a)(17), is

overbroad and arbitrary because it can impose capital punishment on one who kills

unintentionally. We have held otherwise. (People v. Anderson (2001) 25 Cal.4th 543,


Defendant further claims that the “complete discretion given to the prosecutor by

California’s death penalty statute to seek, or not to seek, a sentence of death violates the

Eighth Amendment ban against cruel and unusual punishment.” Again, we have held

otherwise. (People v. Anderson, supra, 25 Cal.4th at p. 601.)

Finally, defendant contends that because sections 189 and 190.2 overlap,

rendering virtually all premeditated murders death eligible, California’s death penalty

scheme fails to adequately perform the required narrowing function. We have repeatedly

held to the contrary. (People v. Holt (1997) 15 Cal.4th 619, 697.)

B. Victim Impact Evidence


The prosecution presented three witnesses at the penalty phase: Diana Alejandro,

Consuelo’s aunt, and Darlene and Virginia Salinas, Consuelo’s cousins. All three

testified to the effect of Consuelo’s death upon family members. Diana told of how one

member had a mental breakdown and another suffered from nightmares. Christina,

Consuelo’s sister, lived with Virginia Salinas in the first months following Consuelo’s

death; Virginia testified to her observations of Christina, of how Christina would dote

upon her four-year-old cousins in a manner similar to the way she used to dote upon

Consuelo, and of how Christina said that pictures in magazines of rabbits and bear cubs

reminded her of Consuelo.

Darlene Salinas read the following, which she had written: “Chiquita was a

playful little girl. Chiquita was her nickname because she was so small and petite. All

we could ever see was her two little ponytails bouncing around. She was a very playful

and active little girl. She was a joy to be around. I know her cousins and her little nieces

will never forget all of the times that she’d been there. Now she is gone, but we will

never forget her. We will never get to see her ride a bike or hear her talking or see her

graduate from Head Start. And there will never be one day that goes by that we will

forget her. We know that she is with God and he will take care of her. Like her sister

Christina quoted Matthew 19:14, suffer little children to come to me, and do not forbid

them, for such is the kingdom of heaven. Chiquita’s family wants justice to be done. We

wish and hope to God that nothing like this ever happens again to our children. They are

precious and special to us.”



none of these witnesses, and in total the prosecution’s

penalty phase evidence was recorded in seven pages of trial transcript.

Following the prosecution’s evidence, defense counsel stated in camera: “There

were a couple of objections I would like to make, your Honor. I realize it might be like

closing the door after the horse is gone, however, I think to object under these

circumstances in the middle of that kind of testimony would have been suicide on behalf


of the defense. I would have just about sealed his fate. [¶] The main objection I have is

to Darlene Salinas’s testimony. It incorporated certain areas that I think were improper

for victim impact statement. The statement that she read, we were never given any notice

of, we never saw that statement in advance. It referenced things in the future which I

think were not proper for victim impact statement. [¶] The other objection I had was to

the last witness, which was [Virginia] Salinas. Much of her statements that were made

were—contained hearsay, things that were told to her by Christina. I think the hearsay

objection still applies in this case. [¶] I don’t think that really objection at that time

would have cured it, because, frankly, the bell would have been rung and like I said it

would be suicide on behalf of the defense to make the objection at that time. But I

wanted to put that on the record.” Defense counsel did not make a motion to strike.

The prosecutor countered that he did give notice to the defense that the three

witnesses would testify and that Darlene Salinas intended to read something she had

written about Consuelo’s death. Defense counsel did not deny being given such notice,

but stated that he did not recall being told something would be read. The court overruled

the objection, finding it untimely and unmeritorious.

Defendant now argues the objection was timely; the prosecution failed to provide

proper notice; the evidence presented was not proper victim impact evidence; Darlene’s

written statement was hearsay and violated the Eighth Amendment to the federal

Constitution; and section 190.3, factor (a) is vague and overbroad in violation of the

Eighth Amendment.

Although defendant did not object until after the evidence was adduced, he argues

that in light of the delicate nature of the evidence being presented, he did, indeed, object

at the earliest opportunity. He offers no authority or principle of law supporting this

contention. Moreover, he made no motion to strike or exclude the evidence or otherwise

correct the perceived error. (See Evid. Code, § 353.) Accordingly, we conclude

defendant failed to preserve these claims for appeal. (See, e.g., Champion, supra,


9 Cal.4th at pp. 918–919.) Anticipating our conclusion, defendant argues defense

counsel was ineffective in failing to make a timely objection. No deficient performance

is evident in counsel’s tactical decision to refrain from interrupting the emotional

testimony of Consuelo’s family members with an objection. Counsel’s concerns about

the propriety of that testimony, however, could reasonably have been addressed with a

motion to strike, but failure to do so was not prejudicial. The victim impact testimony

was short, focused on the expected emotions of the family, not unduly inflammatory, and

was therefore admissible (cf. People v. Pollock (2004) 32 Cal.4th 1153, 1180).

Defendant argues that the prosecutor failed to give him adequate notice of the

evidence he intended to produce at the penalty phase. (§ 190.3.) Defendant concedes

that the day before the penalty phase began, counsel was given oral notice of the

prosecution’s intent to call the three witnesses, and further acknowledges that the

prosecutor filed a “generic” written notice of aggravation, but argues he was not told that

one witness would be reading a prepared statement, or that witnesses were going to be

providing evidence of the impact on persons other than themselves. Defendant, however,

was not entitled to a summation of the witnesses’ expected testimony. (People v. Scott

(1997) 15 Cal.4th 1188, 1219.) In light of defendant’s failure to seek a continuance and

failure to cross-examine any of the penalty phase witnesses, he cannot demonstrate

prejudice resulting from any delay in receiving notice. (People v. Medina (1995)

11 Cal.4th 694, 771.)

Further, contrary to defendant’s assertions, the evidence of how Consuelo’s death

affected extended family members was not improper victim impact evidence.

“Admission of victim impact evidence at the penalty phase of a capital trial is permissible

under the Eighth Amendment (Payne v. Tennessee (1991) 501 U.S. 808)” (People v.

Brown (2003) 31 Cal.4th 518, 572-573), and such evidence is admissible as

circumstantial evidence of the offense under section 190.3, factor (a) (People v. Brown

(2004) 33 Cal.4th 382, 397–398). We recently held that evidence showing the direct


impact of the defendant’s acts on the victim’s family and friends is not barred by state or

federal law (People v. Pollock, supra, 32 Cal.4th at p. 1180). So, too, is the testimony of

extended family members.

Defendant’s assertion that Darlene’s written statement was inadmissible hearsay is

incorrect. The statement read by Darlene Salinas was not “a statement that was made

other than by a witness while testifying at the hearing” (Evid. Code, § 1200, subd. (a)),

but was part of Darlene’s in-court testimony. He is also wrong in arguing Darlene’s

statement that “Chiquita’s family wants justice to be done” is “so inflammatory it tended

to encourage the jury towards irrationality and an emotional response untethered to the

facts of the case, rendering his trial fundamentally unfair under the due process clause of

the Fourteenth Amendment to the United States Constitution.” (Boyette, supra, 29

Cal.4th at p. 444, citing Payne v. Tennessee, supra, 501 U.S. at p. 825.) It was a one-line

statement without additional explanation or discourse that came at the end of Darlene’s

short testimony, and could not reasonably be seen as having encouraged an inappropriate

response by the jury.

Finally, we reject defendant’s argument that section 190.3, factor (a) is

unconstitutionally vague and overbroad. (Boyette, supra, 29 Cal.4th at p. 445, fn. 12.)

C. Prosecution Argument Asking for Equal Mercy

During closing arguments in the penalty phase, the prosecutor remarked, “I ask

you one final thing, that is to give the defendant the mercy that he gave Consuelo

Verdugo. When he asked for your mercy here today through Mr. Harbin, you remember

him on the stand denying anything that happened. Mr. Harbin says that he could be

rehabilitated, I ask you to remember how he denied every single thing for hours on there.

I ask you to show him the same mercy that he showed Consuelo Verdugo and to do

justice here today, that is to sentence him to death. Thank you.”

Although defendant did not object, he now argues that the prosecutor’s statements

were an improper appeal to the passions and prejudices of the jury, and thereby


constituted misconduct in violation of his rights to due process, a fair trial, and a reliable

and individualized penalty determination in violation of the Fifth, Sixth, Eighth, and

Fourteenth Amendments to the federal Constitution and parallel provisions of the state


To constitute a violation of the federal Constitution, prosecutorial misconduct

must “ ‘so infect[] the trial with unfairness as to make the resulting conviction a denial of

due process.’ ” (Valdez, supra, 32 Cal.4th at p. 122; Darden v. Wainwright (1986) 477

U.S. 168, 181.) Conduct by a prosecutor that does not render a criminal trial

fundamentally unfair is prosecutorial misconduct under state law only if it involves “ ‘the

use of deceptive or reprehensible methods to attempt to persuade either the court or the

jury.’ ” (Valdez, at p. 122, quoting Earp, supra, 20 Cal.4th at p. 858.)

Because defendant did not object, and because an admonition would have cured

any harm caused by the prosecutor’s statements, he forfeited this claim of misconduct for

appellate purposes. (Valdez, supra, 32 Cal.4th at p. 122.)

We also conclude this claim fails on the merits.

In the penalty phase of a capital trial the jury may properly consider any sympathy

or pity for the defendant raised by the evidence. (Lockett v. Ohio (1978) 438 U.S. 586;

Woodson v. North Carolina (1976) 428 U.S. 280, 304; People v. Haskett (1982) 30

Cal.3d 841, 863; People v. Robertson (1982) 33 Cal.3d 21, 56-59.) The trial court

“should allow evidence and argument on emotional though relevant subjects that could

provide legitimate reasons to sway the jury to show mercy or to impose the ultimate

sanction. On the other hand, irrelevant information or inflammatory rhetoric that diverts

the jury’s attention from its proper role or invites an irrational, purely subjective response

should be curtailed.” (Haskett, at p. 863.) Considerable leeway is given for appeal to the

emotions of the jury as “long as it relates to relevant considerations.” (People v. Bittaker

(1989) 48 Cal.3d 1046, 1110, fn. 35.)


The jury was instructed that they were allowed to consider sympathy, pity,

compassion, and mercy for the defendant, as raised by the facts presented.9 We have

held that it is not inappropriate for the prosecution to urge the jury to show the defendant

the same degree of mercy he showed his victim. (See People v. Ochoa (1998) 19 Cal.4th

353, 464–465; People v. Edwards (1991) 54 Cal.3d 787, 840.) In light of the aggravated

nature of the offense, a reminder by the prosecution that Consuelo was helpless in the

hands of the man to whom she had been entrusted and a suggestion that he deserved an

equal measure of mercy did not constitute deceptive or reprehensible methods of

persuasion, nor did such comments infect the trial with unfairness. (Cf. People v. Brown,

supra, 33 Cal.4th at pp. 398–400.)

D. Limitation of Defense Argument Comparing the Gravity of the Offense to

Other Well-known Murder Cases

During the penalty phase closing argument, defense counsel stated, “There’s

plenty of examples through history that talk about cases where life was given, life

without parole or the death penalty was involved. You may recall Angelo Buono,

Hillside Strangler, some years back, early eighties, raped, murdered nine women,

strangled them, left their nude bodies thrown by the side of the freeways in Los Angeles.”

At that point the prosecution objected to the references to other cases. Defense

counsel argued that the references were to matters of common knowledge offered to


In full, the instruction read: “An appeal to the sympathy or passions of a jury is

inappropriate at the guilt phase of the trial. However, at the penalty phase, you may
consider sympathy, pity, compassion, or mercy for the defendant that has been raised by
any aspect of the offense or of the defendant’s background or character in determining
the appropriate punishment. [¶] You are not to be governed by conjecture, public
opinion, or public feeling. [¶] You may decide that a sentence of life without the
possibility of parole is appropriate for the defendant based upon the sympathy, pity,
compassion and mercy you felt as a result of the evidence adduced during the penalty


“give the jury some balancing, to give an idea” of “the worst of the worst,” and further

indicated he wished to discuss two more recent cases, one that ended in a sentence of life

without the possibility of parole, and the other that did not.

The court sustained the objection, stating, “I have no problem with your talking

about Charlie Manson . . . Adolf Hitler . . . the Boston Strangler . . . in general terms . . .

suggesting that it is the people who commit crimes of such atrocity who are entitled to the

death penalty. . . . And suggest then that by comparison an individual who has taken the

life of an infant or someone who has gone in and shot two people while in their sleep

ought not to receive the death penalty. [¶] But . . . you cannot appropriately single out

one, two or three cases, talk about the facts in general and say this person killed nine

nurses, fourteen nuns, did whatever, left them and then turned around and got life without

parole. . . . . [C]ounsel, if your intent was to say that Buono got life without parole, and if

that’s what he got then from that jury down there that by contrast Mr. Benavides should

get the same thing, I am not going to let you do it.”

The court thereafter admonished the jury, stating, “I have sustained the objection

that has been raised by the prosecution. In your deliberations you are not to go back and

to consider what other jurors may or may not have done in any particular case at any

particular time because you were not there. . . . [T]he decision is yours. And in making

that decision you ought not to attempt to rely on what some other jurors may have done

in any other case, one way or the other.”

Defendant argues that the trial court abused its discretion in restricting his closing


A criminal defendant has a well-established constitutional right to have counsel

present closing argument to the trier of fact. (People v. Marshall (1996) 13 Cal.4th 799,

854.) “[The] right is not unbounded, however; the trial court retains discretion to impose

reasonable time limits and to ensure that argument does not stray unduly from the mark.”

(Ibid.) We have held that when, as here, a factual comparison with other notorious


crimes cannot be made without a time-consuming inclusion of all of the facts in

mitigation and aggravation, the trial court can exercise its discretion to control the scope

of oral argument by refusing to allow defense counsel to compare the subject crime to

other murders. (People v. Hughes (2002) 27 Cal.4th 287, 398-400; People v. Roybal

(1998) 19 Cal.4th 481, 528-529.) The court precluded defendant from presenting specific

facts about other notorious murder cases where the death penalty was not imposed, but

did not preclude him from arguing that there were other murderers worse than he. By

imposing such restrictions, the trial court acted within its discretion.

Further, the admonition to the jury was not overly broad. The court did not

prohibit the jury from having a point of reference with other cases with which they were

familiar while assessing whether or not defendant was the “worst of the worst,” but

correctly told the jury that each case is to be considered independently, and they were not

to speculate as to what was before the jury in another particular case where the defendant

did not receive the death penalty when assessing what was before them in this case.

Defendant finally claims the restrictions of the trial court on defendant’s closing

argument denied his right to counsel and due process under the Fifth, Sixth, Eighth and

Fourteenth Amendments to the federal Constitution, and section 15 of article 1 of the

state Constitution. These claims fail because, as we have concluded, the court did not err.

E. Jury Instructions on General Principles of Law Relevant to the

Evaluation of the Evidence

As noted, the penalty phase evidence consisted of the testimony of three members

of Consuelo’s family, who spoke to the grief and sorrow they suffered by her death, and

the testimony of two of defendant’s long-time friends, who spoke to defendant’s good


Counsel and the court conferred regarding instructions; defense counsel offered no

instructions of his own, and agreed with or did not object to the instructions selected by

the court. Nevertheless, to the extent defendant asserts instructional error affected his


substantial rights, he is not precluded from raising the claim on appeal even absent an

objection in the trial court. (§ 1259; see People v. Prieto (2003) 30 Cal.4th 226, 247.)

The court instructed the jury, inter alia, “You must accept and follow the law as I

am stating it to you now. And unless I indicate to the contrary, you shall disregard all

other instructions that have been given to you in the other phase of this trial.” Defendant

argues that the jury thus ignored 15 instructions given only at the guilt phase, and the

only guidance given in the evaluation of evidence at the penalty phase was a truncated

version of CALJIC No. 2.20, which instructed, “Every person who testifies under oath is

a witness and you are the sole judges of the credibility of each witness and as to the

weight to be given to the testimony of each. In determining the believability of a witness

you may consider anything that has a tendency in reason to prove or to disprove the

truthfulness or the testimony of the witness including, but not limited to, those factors

which were given to you in the earlier instructions.” He argues the jury was left with

little or no guidance as to how to assess the difficult and emotional penalty phase


The trial court must instruct, even in the absence of a request, on general

principles of law that are closely and openly connected to the facts and that are necessary

for the jury’s understanding of the case. (People v. Carter (2003) 30 Cal.4th 1166, 1174-

1175.) Contrary to defendant’s assertions, the court did not limit the use of the guilt

phase instructions, but specifically “indicated to the contrary” that “in determining the

believability of a witness, you may consider anything that has a tendency in reason to

prove or disprove the truthfulness of the testimony of the witness, including, but not

limited to, those factors which were given to you in the earlier instructions.” (Italics

added.) At the penalty phase the court need not reread guilt phase instructions when the

latter were not limited to use at the guilt phase and when no penalty phase instructions

contradict the guilt phase instructions. (People v. Sanders (1995) 11 Cal.4th 475, 561.)


Defendant further argues that the court erred in failing to instruct the jury sua

sponte with CALJIC No. 2.40, which advises that proof of good character may be

sufficient, by itself, to raise a reasonable doubt as to guilt. Defendant asserts that this

instruction applies to the penalty phase consideration of lingering doubt. By its very

language—referring to reasonable doubt as to guilt—this instruction applies only to the

guilt phase of trial. (Cf. People v. Hawthorne (1992) 4 Cal.4th 43, 79.) Even if the court

did err in not giving this instruction, however, the jury was not without guidance as to the

use of the character evidence presented at the penalty phase. The court instructed

pursuant to CALJIC No. 8.85, which states, in pertinent part, “You shall consider, take

into account and be guided by . . . any sympathetic or other aspect of defendant’s

character or record that the defendant offers as a basis for a sentence less than death,

whether or not related to the offenses for which he has been on trial.”

Defendant argues that the court erred in not instructing sua sponte pursuant to

CALJIC No. 2.27, which admonishes the jury to carefully review the uncorroborated

testimony of a single witness offered for proof of a fact. He argues that had this

instruction been given, the jury would not have taken the testimony of the grieving family

members “at face value” but would have “looked at this evidence [regarding the effect of

Consuelo’s death upon the surviving family members] with greater skepticism, and given

it less weight or even rejected it.” We disagree. The court’s instruction pursuant to

CALJIC No. 2.20, that the jury could consider bias and interest, adequately advised the

jury how to assess the credibility of these witnesses.

Defendant finally argues the failure to reinstruct rendered the death verdict

inherently unreliable in violation of the Eighth and Fourteenth Amendments to the United

States Constitution and parallel provisions of the state Constitution. This claim fails

because, as we have concluded, the court did not err.

F. Jury Instructions on Evidence of Uncharged Acts of Violence as an



Section 190.3, factor (b) permits the introduction of all evidence of violent crimes,

whether or not they resulted in a conviction, except those of which the defendant has

been acquitted. (People v. Robertson (1989) 48 Cal.3d 18, 47.) When the prosecution

presents substantial evidence of uncharged acts of violence, state law requires an

instruction to the effect that the jury may consider such evidence as a factor in

aggravation only when the commission of such other crimes is proved beyond a

reasonable doubt. (See People v. Stanworth (1969) 71 Cal.2d 820, 841-842; People v.

Robertson, supra, 33 Cal.3d at pp. 53–56.)

Defendant contends the trial court prejudicially erred by failing to instruct sua

sponte that the jury could not consider evidence that he had committed acts of violence

against Consuelo—in particular, the “percipient evidence” (see ante, at pp. 17-20), when

defendant took Consuelo to his bedroom, locked the door, and kept her there all night—

unless it first found those other acts proved beyond a reasonable doubt.

This claim has no merit. “[I]n the absence of a request, the trial court is under no

duty to give an instruction at the penalty phase regarding evidence received at the guilt

phase.” (People v. Maury (2003) 30 Cal.4th 342, 443; People v. Anderson, supra,

25 Cal.4th at p. 588; People v. Lang (1989) 49 Cal.3d 991, 1039.) “Even when section

190.3, factor (b), criminal activity is expressly alleged, . . . ‘the rule absolving the court

of a sua sponte duty to instruct on the elements of crimes introduced under [section

190.3, factor (b)] “ ‘is based in part on a recognition that, as [a] tactical matter, the

defendant “may not want the penalty phase instructions . . . [to] lead the jury to place

undue emphasis on the crimes rather than on the central question of whether he should

live or die.” ’ ” ’ ” (People v. Maury, supra, 30 Cal.4th at p. 443.) Further, when the

evidence of uncharged acts of violence is admitted at the guilt phase and is not referred to

at the penalty trial, as here, the reasonable doubt instruction is not required. (People v.

Pinholster (1992) 1 Cal.4th 865, 967; People v. Rich (1988) 45 Cal.3d 1036, 1121.) The

percipient evidence, which was but a small part of the guilt phase, played no part in the


evidence or arguments in the penalty phase. The prosecution relied upon the facts of the

crime itself and the effects of the crime on the victim’s family as factors in aggravation

under section 190.3, factor (a). Neither the prosecution nor the defense referred to the

percipient evidence, and the court did not err by failing to instruct the jury as defendant


Defendant further argues the failure to so instruct the jury violated his right to due

process, a fair penalty trial, and a reliable penalty proceeding pursuant to the Fifth, Sixth,

Eighth, and Fourteenth Amendments to the federal Constitution, and section 16 of

article 1 of the state Constitution. These claims are rejected because, as we have

concluded, there was no error.

G. Lewd and Lascivious Conduct Special Circumstance as Factor in

Reformulating one of his guilt phase arguments, defendant contends the jury

improperly was permitted to consider duplicative special-circumstance findings since the

murder in the course of a lewd act on a child finding was based upon the same set of facts

as the felony-murder-rape and felony-murder-sodomy findings, thus resulting in an

artificial inflation of the facts in aggravation.

We have previously rejected defendant’s premise, and conclude it is equally

without merit in the context of the penalty phase. (Stansbury, supra, 4 Cal.4th at p. 1069

[rape and lewd act special-circumstance findings required different elements of proof and

could be separately considered as aggravating factors].) Again, the rape, sodomy, and

lewd conduct were all separate violations, each relevant to the determination of

defendant’s culpability (see ante), and we reject defendant’s contention that the inclusion

of the lewd act special circumstance constituted double counting of the factors in


H. Response to Jury Questions


During penalty phase deliberations, the jury sent a note to the court asking, “Life

without the possibility of parole - how permanent is it? Can it be overturned by legal

changes? (other than appeal.) Is there a chance for him to walk out of prison? EVER!!

EXPLANATION?” Without objection from counsel, the court answered the jury by

rereading the instruction that advised, “A sentence of life without the possibility of parole

means that Mr. Benavides will remain in state prison for the rest of his life and will not

be paroled at any time. A sentence of death means that Mr. Benavides will be executed

in state prison.” The court then stated, “That instruction answers your question.”

Defendant asserts that the court had a duty to admonish the jury it was not to

speculate about how future changes in the law might affect defendant’s sentence, and to

guide the jury into consideration of only relevant evidence, and failed to do so.

Defendant made no objection to the court’s explanatory response to the jury’s question,

and, accordingly forfeited his present argument. (People v. Martinez (2003) 31 Cal.4th

673, 698.) Had it been properly presented, it would fail on the merits.




People v. Ramos (1984) 37 Cal.3d 136, precludes either court or

counsel from advising the jury regarding the Governor’s power to commute both a

sentence of death and a sentence of life without the possibility of parole. Such advice

violates the guarantee of a fair decisionmaking process because it invites the jury to

speculate about the future actions of unknown persons, directs the jury’s attention away

from its proper function of weighing aggravating and mitigating factors, and renders

arbitrary the decision regarding defendant’s punishment. (Id. at p. 157.)

When the jury makes a specific inquiry about how a postconviction proceeding

such as commutation might affect defendant’s sentence, we have suggested that trial

courts issue a short statement emphasizing that it would be a violation of the jury’s duty to

consider the possibility of commutation in determining the appropriate sentence. (People

v. Ramos, supra, 37 Cal.3d at p. 159, fn. 12.) But such an instruction is not mandatory

(see People v. Bonillas (1989) 48 Cal.3d 757, 798), and we have not required the trial


court to address information generally relating to “matters of common knowledge

appreciated by every juror who must choose between a death sentence and a sentence of

life without parole” such as changes in the law (Hovey, supra, 44 Cal.3d at p. 581).

The court’s response did not, contrary to defendant’s assertions, mislead the jury

into improper speculation. By remaining silent on the question regarding the effect

changes in the law might have on defendant’s sentence and stating “[t]hat instruction

answers your question,” the trial court essentially focused the jury’s attention on the

choice they were charged with making—whether defendant was to remain in prison for

the rest of his life, or be executed in prison.

Defendant further argues the failure to admonish the jury violated his rights to due

process and a reliable penalty determination under the Fifth, Sixth, Eighth and Fourteenth

Amendments to the federal Constitution and parallel provisions of the state Constitution.

This claim fails because, as we have concluded, the court did not err.

I. Cumulative Effect of Penalty Phase Errors

Defendant argues that, even if no single error warrants reversal of the penalty

verdict, the cumulative effect of all the errors necessitates reversal. We have found no

error, and defendant’s argument is consequently without merit.

Finally, defendant urges us to adopt a rule of “plain error review” in capital cases

whereby we would reach the merits of otherwise forfeited or waived claims of error. We

have previously rejected such suggestions. (See People v. Wash (1993) 6 Cal.4th 215,

276–279 (conc. & dis. opn. of Mosk, J.).)


The judgment is affirmed.

















See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Benavides

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: February 17, 2005

County: Kern
Judge: James M. Stuart


Attorneys for Appellant:

Lynne S. Coffin and Michael J. Hersek, State Public Defenders, under appointment by the Supreme Court, and Kent
Barkhurst, Deputy State Public Defender, for Defendant and Appellant.


Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant
Attorney General, Carlos A. Martinez and Kelly E. Lebel, Deputy Attorneys General, for Plaintiff and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Kent Barkhurst
Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
(415) 904-5600

Kelly E. Lebel
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 327-3572


Opinion Information
Date:Docket Number:
Thu, 02/17/2005S033440

1The People (Respondent)
Represented by Attorney General - Sacramento Office
Kelly E. LeBel, Deputy Attorney General
P.O. Box 944255
Sacramento, CA

2Benavides, Vicente Figueroa (Appellant)
San Quentin State Prison
Represented by Habeas Corpus Resource Center
Michael Laurence, Executive Director
303 Second Street, Suite 400 South
San Francisco, CA

3Benavides, Vicente Figueroa (Appellant)
San Quentin State Prison
Represented by Office Of The State Public Defender-Sf
Kent Barkhurst, Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA

Feb 17 2005Opinion: Affirmed

Jun 16 1993Judgment of death
Jun 21 1993Filed cert. copy of Judgement of Death Rendered
Jul 1 1998Order appointing State Public Defender filed
  to represent appellant for the direct appeal.
Jul 24 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
Jul 27 1998Extension of Time application Granted
  To Applt To 10-2-98 To request Corr. of Record.
Sep 28 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
Oct 2 1998Extension of Time application Granted
  To Applt To 12-1-98 To request Corr. of Record.
Oct 9 1998Filed:
  Supplemental Decl. of Service of Appliction for Ext. of time
Nov 25 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
Dec 1 1998Extension of Time application Granted
  To Applt To 12-31-98 To request Corr. of Record.
Dec 28 1998Received:
  Copy of Applt's motion to Complete, correct, Augment & Settle Record (14 Pp.)
Mar 18 1999Order filed appointing H.C. Resource Center
  The Habeas Corpus Resource Center is appointed to represent appellant for habeas corpus/executive clemency proceedings related to the automatic appeal.
Sep 17 1999Record on appeal filed
  C-21 (5,177 Pps.) and R-29 (4,085) Including Material Under Seal; Clerk's Transcript includes 3,330 pages of Juror Questionnaires.
Sep 17 1999Appellant's opening brief letter sent, due:
Oct 25 1999Application for Extension of Time filed
  To file Aob.
Oct 27 1999Extension of Time application Granted
  To 12/27/99 To file Aob.
Dec 23 1999Application for Extension of Time filed
  To file Aob.
Dec 30 1999Extension of Time application Granted
  To 2/25/2000 To file Aob.
Feb 23 2000Application for Extension of Time filed
  To file Aob.
Feb 28 2000Extension of Time application Granted
  To 4/25/2000 To file Aob.
Apr 21 2000Application for Extension of Time filed
  To file Aob.
Apr 28 2000Extension of Time application Granted
  To 6/26/2000 To file Aob.
Jun 23 2000Application for Extension of Time filed
  To file Aob.
Jul 3 2000Extension of Time application Granted
  To 8/25/2000 to file AOB.
Jul 10 2000Counsel's status report received (confidential)
  from Habeas Corpus Resource Center.
Aug 11 2000Counsel's status report received (confidential)
  from State Public Defender.
Aug 18 2000Application for Extension of Time filed
  To file AOB. (6th request)
Aug 25 2000Extension of Time application Granted
  To 10/24/2000 to file AOB. No further ext. of time are contemplated.
Sep 8 2000Counsel's status report received (confidential)
  from HCRC.
Oct 19 2000Application for Extension of Time filed
  To file AOB. (7th request)
Oct 27 2000Extension of Time application Granted
  To 12/26/2000 to file AOB. No further ext. of time will be granted.
Nov 8 2000Counsel's status report received (confidential)
  from HCRC.
Dec 19 2000Application for Extension of Time filed
  To file AOB. (8th request)
Dec 20 2000Counsel's status report received (confidential)
  from State P.D.
Dec 21 2000Extension of Time application Granted
  To 1/25/2001 to file AOB. No further ext. of time will be granted.
Jan 9 2001Counsel's status report received (confidential)
  from HCRC.
Jan 22 2001Filed:
  copy of reporter's transcript from 1/12/2001 hearing held at the superior court
Jan 25 2001Appellant's opening brief filed
  250 pages
Jan 29 2001Filed letter from:
  Applt counsel dated 1/26/2001 re attached are the missing pages of the Table of Authorities for AOB
Feb 22 2001Counsel's status report received (confidential)
  from State P.D.
Feb 22 2001Application for Extension of Time filed
  To file resp's brief. (1st request)
Feb 27 2001Extension of Time application Granted
  To 4/30/2001 to file resp's brief.
Mar 9 2001Counsel's status report received (confidential)
  from HCRC.
Apr 23 2001Application for Extension of Time filed
  To file respondent's brief. (2nd request)
Apr 26 2001Counsel's status report received (confidential)
  from State P.D.
Apr 27 2001Extension of Time application Granted
  To 6/29/2001 to file respondent's brief.
May 9 2001Counsel's status report received (confidential)
  from HCRC.
Jun 28 2001Application for Extension of Time filed
  to file respondent's brief. (3rd request)
Jul 9 2001Counsel's status report received (confidential)
  from HCRC.
Jul 9 2001Extension of Time application Granted
  To 8/28/2001 to file respondent's brief.
Aug 21 2001Application for Extension of Time filed
  To file respondent's brief. (4th request)
Aug 24 2001Extension of Time application Granted
  To 9/27/2001 to file respondent's brief.
Sep 7 2001Counsel's status report received (confidential)
  from HCRC.
Sep 27 2001Respondent's Brief filed. (144 pp.)
Oct 11 2001Counsel's status report received (confidential)
  from State P.D.
Oct 12 2001Application for Extension of Time filed
  To file reply brief. (1st request)
Oct 15 2001Extension of Time application Granted
  To 12/17/2001 to file reply brief.
Nov 8 2001Counsel's status report received (confidential)
  from HCRC.
Dec 7 2001Counsel's status report received (confidential)
  from HCRC.
Dec 11 2001Counsel's status report received (confidential)
  from State P.D.
Dec 11 2001Request for extension of time filed
  To file reply brief. (2nd request)
Dec 14 2001Extension of time granted
  To 2/15/2002 to file reply brief. Dep. State PD Barkhurst anticipates filing the brief by 4/16/2002. Only one further extension totaling 60 additional days is contemplated.
Jan 10 2002Counsel's status report received (confidential)
  from HCRC.
Feb 11 2002Request for extension of time filed
  To file reply brief. (3rd request)
Feb 19 2002Extension of time granted
  To 4/16/2002 to file reply brief. Dep. State PD Barkhurst anticipates filing the brief by 5/16/2002. Only one further extension totaling 30 additional days will be granted.
Mar 6 2002Counsel's status report received (confidential)
  from HCRC.
Apr 11 2002Request for extension of time filed
  To file reply brief. (4th request)
Apr 16 2002Extension of time granted
  To 5/16/2002 to file reply brief. Dep. State Public Defender Barkhart anticipates filing the brief by 5/16/2002. After that date, no further extension will be granted.
May 6 2002Counsel's status report received (confidential)
  from HCRC.
May 16 2002Appellant's reply brief filed
  (103 pp.)
Jul 3 2002Counsel's status report received (confidential)
  from HCRC.
Sep 5 2002Counsel's status report received (confidential)
  from HCRC.
Nov 12 2002Related habeas corpus petition filed (concurrent)
  In re Vicente Benavides Figueroa on Habeas Corpus, no. S111336
Aug 17 2004Oral argument letter sent
  advising counsel that case could be scheduled for oral argument as early as October calendar, to be held the week of Oct. 4, 2004, in Los Angeles. Any request for additional time (to argue), notification of requirement for two counsel, or advisement of "focus issues" must be made no later than 10 days after the case has been set for oral argument.
Oct 4 2004Case ordered on calendar
  11/3/04 @ 1:30pm, Sacramento
Oct 7 2004Filed letter from:
  Respondent, dated 10/7/2004, re focus issues for oral argument.
Oct 20 2004Filed letter from:
  appellant's counsel, dated 10/20/2004, re focus issues for oral argument.
Nov 3 2004Cause called and continued
  Dec. 7, 2004
Nov 3 2004Case ordered on calendar
  12/7/04 @ 2pm., San Diego
Dec 7 2004Cause argued and submitted
Feb 17 2005Opinion filed: Judgment affirmed in full
  Opinion by Brown, J. -----joined by George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, JJ.
Mar 4 2005Rehearing petition filed
  by appellant
Mar 7 2005Request for modification of opinion filed
  by Los Angeles County Public Defender.
Mar 8 2005Time extended to consider modification or rehearing
  to 5/18/2005, or the date upon which rehearing is either granted or denied, whichever occurs first.
Mar 9 2005Filed:
  certificate of word count of appellant's petition for rehearing. (5202 words)
Apr 27 2005Rehearing denied
  Request for modification denied.
Apr 27 2005Remittitur issued (AA)
Apr 29 2005Order filed (150 day statement)
May 6 2005Received:
  receipt for remittitur.

Jan 25 2001Appellant's opening brief filed
Sep 27 2001Respondent's Brief filed. (144 pp.)
May 16 2002Appellant's reply brief filed
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