Supreme Court of California Justia
Docket No. S139702
People v. Bracamontes

Plaintiff and Respondent,
Defendant and Appellant.
San Diego County Superior Court
April 11, 2022
Justice Corrigan authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Liu, Kruger,
Groban, Jenkins, and Menetrez* concurred.

Associate Justice of the Court of Appeal, Fourth Appellate
District, Division Two, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
Opinion of the Court by Corrigan, J.
A jury convicted Manuel Bracamontes of the first degree
murder of nine-year-old Laura Arroyo, with special
circumstances for committing the murder while engaged in
kidnapping, lewd act on a child under 14, and oral copulation.1
A death sentence was returned and imposed. We affirm.
A. Guilt Phase
1. Prosecution Evidence
Luis and Laura Arroyo lived in a San Diego apartment
complex with their children: Augustine, aged 11; Jose, aged 10;
and Laura, aged 9.2 Maggie Porter lived in the same complex
with her three children, including four-year-old Jessica and an
infant son, Manuel Jr. Laura and Jessica were “best friends”
and played together almost daily. Defendant, Manuel Jr.’s
Penal Code sections 187, subdivision (a), 190.2,
subdivision (a)(17)(B), (17)(E), (17)(F). The jury also found true
an enhancement for personal deadly weapon use (Pen. Code,
§ 12022, subd. (b)(1)) and convicted defendant of assault with a
deadly weapon on a peace officer (Pen. Code, § 245, subd. (c)) in
connection with an attempt to evade arrest. The trial court
struck the enhancement and imposed a concurrent midterm on
the assault count.
To avoid confusion, we will refer to the younger Laura
Arroyo as “Laura” and her mother as “Mrs. Arroyo.”
Opinion of the Court by Corrigan, J.
father, had lived in the Porter apartment, but moved. After his
departure, he was often seen at the complex.
On June 19, 1991, Laura came home from school and
played outside with her friends, including preteens Elizabeth
Alcarez and Leonor Gomez. Defendant greeted the girls as he
walked past them toward Porter’s apartment. Defendant came
back a second time and told Elizabeth her mother was looking
for her. Laura went home with Elizabeth, but her mother said
she had not been looking for her. The children played outside
until just before 9:00 p.m., then Elizabeth walked Laura home
and saw her go inside. Luis had come home from work about
8:30 p.m. Laura asked if she could play a bit longer and he
agreed. At about the same time, a neighbor and his friend saw
defendant walking toward the complex from his car. They
invited him to join them but he declined. Defendant’s black
Volkswagen Jetta was seen leaving the complex about 20
minutes later.
Once home, Laura went upstairs and watched television
with her mother. Five minutes later, the doorbell rang and
Laura went downstairs to answer it. Mrs. Arroyo heard Laura
asking, “Who is it?” but heard nothing else. A few minutes after
that, Mrs. Arroyo went downstairs and noticed the front door
and metal security door were ajar. Thinking nothing was amiss,
she began cooking. When Luis and his sons came downstairs,
Mrs. Arroyo sent one of the boys to look for Laura. He could not
find her, and they noticed Laura’s shoes were inside. The entire
family went searching for Laura. Unsuccessful, they called
police at 9:31 p.m. Officers and neighbors searched for Laura
throughout the night.
Opinion of the Court by Corrigan, J.
About 6:30 the next morning, Laura’s body was found in
the parking lot of an industrial complex in Chula Vista, three-
and-a-half miles from her home. She lay on her back, wearing
pink pajamas and underwear. She had been stabbed at least 10
times in the upper body and torso. The concrete beneath her
had been chipped away at various spots, and her wounds were
consistent with having been stabbed with a pickaxe. Petechial
hemorrhaging indicated strangulation. Other injuries included
a broken nose and chipped teeth, along with bruising and
lacerations. Although her genitalia bore no signs of sexual
assault, swabs were collected from her mouth, vagina, anus, and
neck. An initial examination did not reveal the presence of
Between July 14 and August 1, 1991, Chula Vista Police
interviewed defendant four times. Initially, he claimed he first
went to the apartment complex at about 9:45 in the evening,
only after Porter called and told him about Laura’s
disappearance. He said he had not been to the complex in a
week. He subsequently asserted he went to the complex earlier
that day to pick up Manuel Jr. and returned that afternoon to
drop off the baby. He denied any involvement with Laura’s
disappearance and insisted he never spoke to Laura or any of
the neighborhood girls. Defendant ultimately refused to answer
more questions but did provide hair, blood, and saliva samples.
On August 1, 1991, pursuant to warrant, officers searched
defendant’s residence and car, seizing clothing and tools. These
items, along with evidence recovered during the autopsy, were
sent to an FBI lab. A blue-green fiber found on Laura’s pants
was deemed potentially consistent with a fiber from a sweater
found at defendant’s home and with other fibers recovered from
Opinion of the Court by Corrigan, J.
his car. At the time, no other physical evidence tied him to
Laura’s murder.
Police investigated other leads. Mrs. Arroyo and three
others reported seeing a suspicious brown car parked in a cul-
de-sac near the complex. Neither the car nor any occupants
were ever identified. Officers also investigated a dispute over
the Arroyos’ sale of their taco shop but found no link to the
abduction. In June 1992, approximately a year after the killing,
police spoke again with defendant, who continued to deny any
involvement. No new evidence was uncovered.
Eleven years later, the San Diego County District
Attorney’s Office established a “cold case” unit, and the evidence
in Laura’s case was reexamined in 2003. Chula Vista Police also
sought assistance from the San Diego Police crime lab. New
slides were prepared from the autopsy swabs using a method
that had not been employed in 1991. The new slides revealed
the presence of sperm in swabs from Laura’s mouth, neck, and
fingernails. A DNA profile was developed and found to match
DNA taken from defendant’s hair sample. The probability of a
random match was one in 2.7 trillion in the Latino population,
one in 3.2 trillion among Caucasians, and one in nine trillion
among African-Americans. Laura’s pajamas were placed under
an alternate light source which revealed biological matter.
Tested samples from the garment confirmed the presence of
sperm. The resulting DNA profile matched defendant’s
reference sample. The likelihood of a random match was one in
30 quadrillion.
On October 24, 2003, more than 12 years after Laura’s
murder, district attorney investigators Robert Marquez and
Michael Howard went to Porter’s apartment looking for
Opinion of the Court by Corrigan, J.
defendant. Manuel Jr. said his mother was not home, but
defendant was expected to pick him up shortly. While the
investigators waited in their car, defendant arrived and parked
his Ford Explorer in front of the apartment. As Manuel Jr.
approached the car, the investigators drove up and stopped in
front of the Explorer. Marquez approached defendant and
identified himself. Howard drew his gun, opened the passenger
door, and told defendant he was under arrest for murder.
Defendant initially raised his hands but then sped off. Howard
fired twice toward the fleeing car.
Early the next morning, officers saw defendant’s Explorer
parked at a Chula Vista motel and placed a tracking device on
it. About 10:30 a.m., the device indicated defendant had left the
motel. Two officers in separate marked patrol cars found the
Explorer parked in an alley. After blocking either end of the
alley, officers approached on foot. Defendant started the engine
and made a U-turn as officers drew their guns and ordered him
to stop. He sped past them and drove over a curb to escape.
After a high-speed freeway chase, defendant lost control of his
car, crashed, and was arrested.
2. Defense Evidence
Five years after the murder and eight years before the cold
case review, Chula Vista Police Detective Susan Rodriguez
looked into the case. Defendant’s Jetta, which had been sold,
was reexamined in vain. Latent fingerprints from the Arroyos’
front door did not match his. Rodriguez also recontacted a
psychic who had been consulted during the initial investigation.
No new leads were developed. Evidence from Laura’s body was
not reexamined because Rodriguez had no reason to doubt the
medical examiner’s conclusion ruling out sexual assault.
Opinion of the Court by Corrigan, J.
Manuel Jr. testified that when Marquez and Howard first
approached him at the apartment they only identified
themselves by name.3 They refused to tell defendant why he
was being arrested and both men shot at defendant’s fleeing car.
Several other witnesses testified about the attempted arrest.
Defendant checked into a motel later that night using his real
B. Penalty Phase
1. Prosecution Evidence
Laura’s parents and two brothers described the impact of
her life and murder. Laura wanted to be a high school
cheerleader and then a teacher, a role she often assumed while
playing with friends. She was friendly with everyone and her
mother’s constant companion. The family trip to Disneyland
was replaced by Laura’s funeral. Laura was buried in the dress
she was to wear for her first communion. Laura’s brothers were
afraid to go anywhere after the murder. The family kept Laura’s
room unchanged for six years after her death and still visited
her grave every Sunday and on her birthday. Mari Peterson,
Laura’s third grade teacher, testified about the impact of
Laura’s death on her and her class. The jury was also shown a
two-and-a-half minute video of an interview between Peterson
and Laura filmed a few weeks before the crimes.
In June 1996, Porter told defendant she wanted to end
their relationship and he became violent. He refused to leave,
pushed her, and held her down by the arm and neck. Photos
In rebuttal, the prosecution presented evidence of an
audiotape of the investigators’ interaction with Manuel Jr. in
which Marquez identified himself as being a district attorney
Opinion of the Court by Corrigan, J.
showed abrasions to Porter’s upper body. Defendant pled guilty
to inflicting corporal injury on the mother of his child.4
2. Defense Evidence
Twenty-one defense witnesses testified that defendant
was incapable of committing the murder. Porter related she
married defendant shortly before trial and believed he was not
capable of killing Laura. Porter’s ex-husband gave similar
testimony. Porter’s two adult children described defendant as a
good father who never said or did anything inappropriate with
them. Family members described defendant’s childhood as
normal and not marked by abuse. He played with his siblings,
participated in Little League, and cared for his pets. As an
adult, defendant was supportive of his family and a good father
to Manuel Jr. After his father was injured in a car accident and
confined to bed for two years, defendant helped care for him and
the family. He also comforted his sister when her husband was
fatally shot. He never acted inappropriately with his sisters or
nieces. A work supervisor testified he was a hard worker who
got along with others.
A. Pretrial Issues
1. Prefiling Delay
While the murder occurred in June 1991, defendant was
not charged until October 2003. He argues the delay was
unjustified and denied him due process because some evidence
he could have presented, particularly schooling and employment
Penal Code section 273.5, subdivision (a).
Opinion of the Court by Corrigan, J.
evidence for the penalty phase, became unavailable during that
time. We reject the claim.
a. Background
The defense argued that all charges should be dismissed
because the prefiling delay violated due process. The trial court
heard from numerous witnesses, primarily related to potential
prejudice from lost evidence. Elementary and high school
employees testified that, although records of enrollment are
kept permanently, other student files are usually destroyed
after five years. Defendant graduated from high school in 1981,
10 years before Laura’s murder. Several of defendant’s
elementary school teachers had died by the time of the 2005
hearing; two others did not remember him. Representatives
from seven companies where defendant worked between 1979
and 1993 testified as to defendant’s employment records and pay
stubs, with most indicating that detailed records were either
never kept or were no longer available. The defense also
presented evidence that three people who had a positive
impression of defendant had passed away. Defendant also
suggested that evidence regarding an alarm system at his
parents’ house and record of a U-Haul truck his sister rented for
her move supported his alibi but had been lost. Guadalupe
Echeverria, whom the defense claimed was unhappy following
her purchase of the Arroyos’ taco shop (see discussion post), had
died in December 1991.
In its opposition, the prosecution asserted the delay was
justified. It observed that the initial medical examination of the
victim’s body in 1991 did not reveal the presence of sperm or
injuries consistent with sexual assault, and the victim’s clothing
was intact, leading the medical examiner to conclude no such
Opinion of the Court by Corrigan, J.
assault had occurred. Police searched defendant’s car and home
and repeatedly interviewed him. The blue-green fiber from the
victim’s pajamas may have matched fibers from defendant’s car
and clothing, but the result was inconclusive. It was not until
2003 that a reexamination of evidence revealed sperm on swabs
from the victim and a subsequent DNA test linked the sperm to
defendant. Expert testimony explained that, in 1991, a water-
based extraction method was used to transfer evidence from a
swab to a slide for examination. It was later discovered that this
method, in contrast to a detergent-based method used in 2003,
was often ineffective and may have led to false negative results.
Further, the restriction fragment length polymorphism DNA
tests prevalent in 1991 required more material for testing than
was present on the oral swabs. Defendant’s sister Teresa also
testified that friends and family remained available to testify
about defendant’s life, which she described as normal and
unaffected by childhood abuse or involvement with gangs,
alcohol, or drugs. A prosecution investigator testified
defendant’s employers at the time of the murder remembered
him and that he had been disciplined for failing to perform
assigned duties and threatening a supervisor.
The trial court denied defendant’s motion. It concluded
that the prosecution could not reasonably bring charges in 1991
based on the uncertain state of the evidence. The court balanced
the justification for the delay with any potential prejudice. It
held the strong public interest in prosecution outweighed any
potential prejudice. The defense unsuccessfully renewed its
motion to dismiss at the penalty phase, arguing the charging
delay resulted in an “incomplete picture” of defendant being
presented to the jury.
Opinion of the Court by Corrigan, J.
b. There Was No Prejudicial Prefiling Delay
“Although precharging delay does not implicate speedy
trial rights, a defendant is not without recourse if the delay is
unjustified and prejudicial. ‘[T]he right of due process protects
a criminal defendant’s interest in fair adjudication by
preventing unjustified delays that weaken the defense through
the dimming of memories, the death or disappearance of
witnesses, and the loss or destruction of material physical
evidence.’ [Citation.] Accordingly, ‘[d]elay in prosecution that
occurs before the accused is arrested or the complaint is filed
may constitute a denial of the right to a fair trial and to due
process of law under the state and federal Constitutions. A
defendant seeking to dismiss a charge on this ground must
demonstrate prejudice arising from the delay. The prosecution
may offer justification for the delay, and the court considering a
motion to dismiss balances the harm to the defendant against
the justification for the delay.’ ” (People v. Nelson (2008) 43
Cal.4th 1242, 1250 (Nelson).
Nelson observed that both negligent and purposeful
charging delay, if accompanied by a showing of prejudice, can
violate due process. “This does not mean, however, that whether
the delay was purposeful or negligent is irrelevant . . . .
[W]hether the delay was negligent or purposeful is relevant to
the balancing process. Purposeful delay to gain an advantage is
totally unjustified, and a relatively weak showing of prejudice
would suffice to tip the scales towards finding a due process
violation. If the delay was merely negligent, a greater showing
Opinion of the Court by Corrigan, J.
of prejudice would be required to establish a due process
violation.”5 (Nelson, supra, 43 Cal.4th at pp. 1255–1256.
No prejudicial delay appears here. Defendant argues the
charging delay was unjustified because evidence of sperm on the
victim’s clothing and, thus, defendant’s DNA, could have been
detected sooner using technology available at the time. We
rejected a similar argument in Nelson, where the defendant
argued “the DNA technology used here existed years before law
enforcement agencies made the comparison in this case and
that, therefore, the comparison could have, and should have,
been made sooner than it actually was.” (Nelson, supra, 43
Cal.4th at p. 1256.) We cautioned there that “[a] court may not
find negligence by second-guessing how the state allocates its
resources or how law enforcement agencies could have
investigated a given case.” (Ibid.) Similarly here, the initial
investigation into Laura’s killing suggested a sexual assault was
not involved. The medical examination of the victim’s body did
not reveal a sexual assault. The victim’s clothing was intact and
her genitalia uninjured. Swabs collected from her body did not
reveal the presence of sperm. The medical examiner’s
conclusion that there had been no sexual assault, while
reasonable, may have set back the investigation. Not until
sperm was discovered later during a “cold case” review and a
Nelson noted that state and federal constitutional
standards regarding justification for delay differ. (Nelson,
supra, 43 Cal.4th at p. 1251; see United States v. Lovasco (1977
431 U.S. 783, 795–796; United States v. Marion (1971) 404 U.S.
307, 325–326.) Nelson, however, rested its holding on
California’s constitution because “the law under the California
Constitution is at least as favorable for defendant in this regard
as the law under the United States Constitution.” (Nelson, at p.
1251.) We do so here as well.
Opinion of the Court by Corrigan, J.
DNA profile was produced did physical evidence connect
defendant to the crimes. Indeed, defendant’s initial connection
to the murder was inconclusive. The only physical evidence
linking him to the crimes was a single blue-green fiber that may
have matched fibers found in his car and residence. He had been
seen at the apartment complex just before Laura’s
disappearance, and he initially lied to police about being there.
However, defendant denied involvement and no direct evidence
linked him to the crimes. Further, the inability to detect sperm
on the victim’s body not only deprived investigators of DNA
evidence but also a motive for Laura’s murder. That his
girlfriend’s daughter and Laura were friends did little to explain
why defendant would have killed the child.
Ultimately, “[t]he delay was investigative delay, nothing
else.” (Nelson, supra, 43 Cal.4th at p. 1256.) As we observed in
People v. Cordova (2015) 62 Cal.4th 104 (Cordova): “Sometimes
a crime simply is not solved immediately but must await some
break in the case, a break that occurred here . . . when a cold hit
revealed a match between defendant and the evidence samples.”
(Id. at p. 120.) As in Nelson: “ ‘The delay was the result of
insufficient evidence to identify defendant as a suspect and the
limits of forensic technology. [Citations.] When the forensic
technology became available to identify defendant as a suspect
and to establish his guilt, the prosecution proceeded with
promptness.’ ” (Nelson, supra, 43 Cal.4th at p. 1257.) There is
no indication that prosecution here was delayed to secure any
improper advantage.
In any event, “if the defendant fails to meet his or her
burden of showing prejudice, there is no need to determine
whether the delay was justified.” (People v. Jones (2013) 57
Cal.4th 899, 921.) The potential prejudice identified by
Opinion of the Court by Corrigan, J.
defendant appears minimal. As to the guilt phase, defendant
asserts that the delay prevented adequate defense investigation
into potential third-party culpability evidence, including the
occupants of a brown car near the victim’s apartment complex
and the Arroyos’ sale of a taco shop. (See discussion post.) Near
the time of the crimes, several witnesses reported seeing a
brown car, but no one could identify the car or its occupants.
Defendant speculates that an earlier investigation would have
identified these persons but does not suggest how the defense
investigation was hindered. With respect to the taco shop sale,
Echeverria died only five months after the murder. Defendant
also does not suggest what evidence Echeverria would have
provided that was not otherwise available.
As for the penalty phase, defendant broadly contends that
“whole categories of evidence essential to presenting the jury
with a full picture of appellant were lost,” including school,
employment, and medical records, as well as mitigation
witnesses who passed away. The record belies this claim.
Defendant presented 21 witnesses at the penalty phase who
testified about his childhood and adult life; positive family
interactions, favorable experiences and opinions; and testimony
from a work supervisor. In light of this extensive presentation,
any prejudice from the absence of additional similar evidence
would appear minimal. Defendant does not explain how
documentary evidence regarding his education, employment, or
medical care would have bolstered the evidence presented. On
this record, “the claimed prejudice is speculative” and
“[d]efendant was able to, and did, present evidence in his
defense . . . .” (Cordova, supra, 62 Cal.4th at p. 120.
Opinion of the Court by Corrigan, J.
2. Shackling
Defendant contends the trial court improperly ordered
him to wear leg chains during trial, which prejudiced him at
both the guilt and penalty phases. Prejudice does not appear on
this record.
a. Background
Defendant moved to appear without physical restraints,
pointing out that he had previously made court appearances
without disruption. The court tentatively indicated it would
deny the motion but explained that “Mr. Bracamontes will
have . . . ankle cuffs on, that they be tethered to a bolt in the
floor. His hands will not be shackled. He will not be waist
chained. He will be free to stand, turn to talk to both counsel,
certainly assist in his defense. [¶] What he will be prevented
from doing is leaving counsel table, which he isn’t allowed to do
anyway. [¶] We’ll make every effort to ensure that the panel is
not aware that he is chained to the floor.” When defense counsel
argued defendant had been cooperative and had not been
disruptive in the courtroom, the court noted that defendant had
twice fled from police before being apprehended. The court also
inquired whether it could consider the “mere fact of the charges
and the potential penalty in the case . . . .” Both defense counsel
responded that was not part of the inquiry whether there was a
manifest need for restraints. Although agreeing with defense
counsel that “Mr. Bracamontes has always been very respectful
in court” and no instances of jail disruption had been reported,
the court denied defendant’s motion. If defendant chose to
testify, the court indicated he would be allowed to walk to the
stand “unimpeded” and “when he’s excused, he’s free to walk
back and sit down. We’ll make those arrangements.” Defendant
elected not to testify so this eventuality did not arise.
Opinion of the Court by Corrigan, J.
Later, outside the presence of prospective jurors, defense
counsel commented that, the day before, “with the table turned
facing the audience, that the jurors that were seated in the jury
box, at least some of them could see that Mr. Bracamontes was
shackled to the floor . . . . The wire was visible underneath the
chairs at least to probably the six people that are closest to the
bench.” The “wire” was an apparent reference to the tether
mentioned by the court. The court stated it was “not going to
get rid of the panel” but asked the bailiff if counsel table could
be turned. The bailiff responded, “I don’t know how I can.
There’s more people at counsel table than expected, and there’s
more people in the way when he stands.” The court replied,
“We’ll leave it the way it is,” and defense counsel addressed
another matter.
b. The Trial Court Abused Its Discretion
“ ‘In general, the “court has broad power to maintain
courtroom security and orderly proceedings” [citation], and its
decisions on these matters are reviewed for abuse of discretion.
[Citation.] However, the court’s discretion to impose physical
restraints is constrained by constitutional principles. Under
California law, “a defendant cannot be subjected to physical
restraints of any kind in the courtroom while in the jury’s
presence, unless there is a showing of a manifest need for such
restraints.” [Citation.] Similarly, the federal “Constitution
forbids the use of visible shackles . . . unless that use is ‘justified
by an essential state interest’ — such as the interest in
courtroom security — specific to the defendant on trial.” . . . ’ ”
(People v. Bell (2019) 7 Cal.5th 70, 123 (Bell).) “The imposition
of physical restraints in the absence of a record showing of
violence or a threat of violence or other nonconforming conduct
will be deemed to constitute an abuse of discretion.” (People v.
Opinion of the Court by Corrigan, J.
Duran (1976) 16 Cal.3d 282, 291 (Duran).) “ ‘In deciding
whether restraints are justified, the trial court may “take into
account the factors that courts have traditionally relied on in
gauging potential security problems and the risk of escape at
trial.” [Citation.] These factors include evidence establishing
that a defendant poses a safety risk, a flight risk, or is likely to
disrupt the proceedings or otherwise engage in nonconforming
behavior.’ ” (People v. Virgil (2011) 51 Cal.4th 1210, 1270
As these authorities make clear, physical restraints are
considered extraordinary measures. Courts entertaining such
action must seriously consider the question on an individualized
basis and ensure there is an adequate record for their ruling.
Constitutional principles “prohibit the use of physical restraints
visible to the jury absent a trial court determination, in the
exercise of its discretion, that they are justified by a state
interest specific to a particular trial.” (Deck v. Missouri (2005
544 U.S. 622, 629 (Deck).) The individualized consideration
necessary before imposing restraints would be inconsistent with
a blanket policy of shackling defendants charged with certain
offenses, such as capital murder. (People v. Hawkins (1995) 10
Cal.4th 920, 944; Duran, supra, 16 Cal.3d at p. 293.) “The mere
facts that the defendant is an unsavory character and charged
with a violent crime are not sufficient to support a finding of
manifest need.” (People v. Bryant, Smith and Wheeler (2014) 60
Cal.4th 335, 389–390 (Bryant).
Defendant contends there was no manifest need to shackle
him, noting the lack of any courtroom or jail incidents involving
nonconforming behavior. However, the record here does not
support defendant’s assertion that the court relied primarily on
a blanket policy to shackle capital murder defendants and failed
Opinion of the Court by Corrigan, J.
to consider his particular circumstances. The court did inquire
at one point whether it could consider the present charges and
commented that its prior handling of similar murder cases had
“proved very successful in the past.” Nonetheless, the court
specifically cited as a relevant factor defendant’s two attempts
to evade arrest under dangerous circumstances.
A court’s determination that a defendant constitutes a
flight risk may justify a finding of manifest need for restraints.
For example, in Vigil, we concluded there was no abuse of
discretion in shackling the defendant because he “was a genuine
escape risk” where he used “a makeshift key to unlock another
inmate’s handcuffs” and lied about it. (Virgil, supra, 51 Cal.4th
at p. 1271; see People v. Cunningham (2001) 25 Cal.4th 926, 988
(Cunningham).) Further, a defendant’s recent attempt to
escape custody, or evidence of an intent to escape, could support
a finding of a manifest need for restraints. (See People v. Smith
(2015) 61 Cal.4th 18, 44; People v. Livaditis (1992) 2 Cal.4th 759,
774; People v. Condley (1977) 69 Cal.App.3d 999, 1006.
However, our cases teach that a mere disposition to
violence or escape standing alone cannot justify the use of
restraints. “A court’s decision about the use of restraints
involves a prediction of the likelihood of violence, escape, or
disruption weighed against the potential burden on the
defendant’s right to a fair trial. Given the serious potential
consequences on both sides of the scale, the range of factors the
court may consider in assessing and weighing the risks should
be broad.” (Bryant, supra, 60 Cal.4th at p. 390.) The necessary
individualized assessment requires a determination, based on
the totality of the circumstances, that a defendant presently
intends to engage in nonconforming courtroom behavior, i.e.,
conduct that “ ‘would disrupt the judicial process if
Opinion of the Court by Corrigan, J.
unrestrained.’ ” (People v. Cox (1991) 53 Cal.3d 618, 651 (Cox),
disapproved on another ground in People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22.) “The imposition of physical restraints
in the absence of a record showing of violence or a threat of
violence or other nonconforming conduct will be deemed to
constitute an abuse of discretion.” (Duran, supra, 16 Cal.3d at
p. 291; see People v. Montes (2014) 58 Cal.4th 809, 841.
A defendant’s prearrest attempt to evade capture,
standing alone, would not justify the use of physical restraints.
People v. Jacla (1978) 77 Cal.App.3d 878 concluded no manifest
need for shackling was shown where the defendant, while on
bail, was involved in a shooting and an ensuing high-speed
chase. The court explained: “We conceive Duran to hold that it
is the defendant’s conduct in custody, now or at other times
[citations], or his expressed intention to escape or engage in
nonconforming conduct during the trial that should be
considered in determining whether there is a ‘manifest need’ for
shackles.” (Jacla, at p. 884; see also People v. Burnett (1980) 111
Cal.App.3d 661, 667.) This court quoted Jacla positively in
People v. Allen (1986) 42 Cal.3d 1222. With respect to the
shackling of a witness, Allen observed that “none of the evidence
presented by the prosecution relates to [the witness’s] present
or past conduct in custody or in the courtroom, and most of the
evidence seems of limited value in predicting [his] future
conduct in the courtroom.” (Id. at p. 1263.
Similarly here, although defendant attempted to evade
capture before his eventual arrest, there was no evidence that
defendant harbored a present intent to escape from custody or
otherwise disrupt court proceedings. The trial court agreed that
defendant had “always been very respectful in court” and there
had been no reports of misbehavior in custody. The ultimate
Opinion of the Court by Corrigan, J.
question remains whether there exists a manifest need for
shackling or other restraint. The need must arise from a current
risk of flight, violence, or other disruptive behavior. Although
the court’s consideration is not limited solely to custodial
conduct, it must make a determination, based on the totality of
the circumstances, that a manifest need for restraints currently
exists. (See Cox, supra, 53 Cal.3d at p. 651.) The evidence was
insufficient to justify such a determination here. Under these
circumstances, the court abused its discretion by ordering the
use of restraints.
Finally, we emphasize that the justification “in support of
the court’s determination to impose physical restraints must
appear as a matter of record” (Duran, supra, 16 Cal.3d at p. 291).
When restraints are requested by the prosecution, the People
should place facts justifying their use on the record “so that the
court may make its own determination of the nature and
seriousness of the conduct and whether there is a manifest need
for such restraints.” (People v. Simon (2016) 1 Cal.5th 98, 115;
cf. People v. Miller (2009) 175 Cal.App.4th 1109, 1114; People v.
(1977) 67 Cal.App.3d 267, 275–276.) We note the court
may consider imposing restraints in the absence of a
prosecutorial request. Further, and importantly, the court must
ensure the record reflects both the reasons justifying the
restraints, along with a description of “the type of restraints
used [and] whether they were visible to the jury” (People v.
(1993) 14 Cal.App.4th 1818, 1826). Of course, “[i]t is
settled that the use of physical restraints in the trial court
cannot be challenged for the first time on appeal. Defendant’s
failure to object and make a record below waives the claim . . . .”
(People v. Tuilaepa (1992) 4 Cal.4th 569, 583 (Tuilaepa); see
People v. Majors (1998) 18 Cal.4th 385, 406.) As such, if the
Opinion of the Court by Corrigan, J.
defense disagrees with the trial court’s initial assessment of the
visibility of the restraints at any point during trial, the defense
should object so the trial court can make an appropriate record.
c. The Trial Record Does Not Establish Prejudice
As the high court has stated, where a court improperly
orders the use of visible physical restraints, “[t]he State must
prove ‘beyond a reasonable doubt that the [shackling] error
complained of did not contribute to the verdict obtained.’ ”
(Deck, supra, 544 U.S. at p. 635; see People v. Miracle (2018) 6
Cal.5th 318, 350, fn. 6.) Defendant contends that “the shackles
apparently remained in the jury’s view for the duration of the
trial.” The record on direct appeal does not support this
contention. Defense counsel commented during jury selection
that, “with the table turned facing the audience,” “at least some
of” the prospective jurors could see the “wire,” suggesting that it
was visible “to probably the six people that are closest to the
bench.” The record does not indicate whether counsel table
remained in the same location during trial, or any of the seated
jurors ever saw the restraints. All that can be established is
that, for an unspecified period of time during voir dire, some
prospective jurors may have seen a portion of the “wire” used in
the system. “Brief glimpses of a defendant in restraints have
not been deemed prejudicial.” (Cunningham, supra, 25 Cal.4th
at p. 988; see Duran, supra, 16 Cal.3d at p. 287, fn. 2.
“Even if the restraint had been glimpsed during that
portion of voir dire by one or more of the prospective jurors who
actually sat on the jury, the unjustified shackling was harmless
beyond a reasonable doubt.” (People v. Ervine (2009) 47 Cal.4th
745, 774.) As we reasoned in Tuilaepa, supra, 4 Cal.4th 569:
“Strong guilt evidence in the form of eight positive eyewitness
Opinion of the Court by Corrigan, J.
identifications established that defendant shot four individuals
and killed one of them in the course of robbing people in a
neighborhood bar. No other guilt errors are raised on appeal or
are evident from the record, and no prejudicial error occurred at
the penalty phase for reasons we will explain. Defendant
elected not to testify in his own behalf. Any glimpse jurors
might have received of the restraints as defendant entered the
courtroom could not possibly have shocked them or affected
their assessment of the evidence.” (Id. at pp. 584–585.
Similarly here, with respect to the guilt phase, strong DNA
evidence tied defendant to the murder. The lowest probability
for a random match among the samples was one in 2.7 trillion
among the Latino population. Further, as discussed below, no
other error appears on this record. The court, in deciding to
order shackling, reassured the defense that if defendant decided
to testify, he would be allowed to walk to and from the stand
unrestrained, and there is no assertion that the restraints
otherwise inhibited defendant’s ability to assist in his defense.
Even assuming some jurors may have briefly glimpsed the
restraints, the shackling error was also harmless beyond a
reasonable doubt at the penalty phase. During jury argument,
the prosecutor identified only three aggravating factors: the
circumstances of the crime; defendant’s age at the time of the
offenses; and defendant’s commission of a prior domestic
violence incident. (See Pen. Code, § 190.3, factors (a), (b), (i).
Of these, the prosecutor focused primarily on the circumstances
of the offense, calling it “one of the most important factors in this
case.” After acknowledging that defendant’s lack of felony
convictions constituted a mitigating factor, along with defense
evidence regarding “any good things about [defendant’s] life”
(see Pen. Code, § 190.3, factors (c), (k)), the prosecutor argued
Opinion of the Court by Corrigan, J.
these factors were “extremely weak” compared to “the facts,
circumstances of this case, like this one right here where her
final resting place on that sidewalk is, it’s like comparing tons
to ounces.” He graphically described the scene where the victim
was found: “How about comparing all of those stab wounds to
that little girl on that sidewalk, where she was impaled on that
sidewalk, compare that to all the mitigation. I submit it makes
the scale on this side go all the way to the ground. [¶] The chop
wounds to the face and the other injuries to the face, shoulders,
neck, each and every one of those facts, ladies and gentlemen,
wipes out any weight, any slight weight that any of those items
have on that mitigating side.” The prosecutor described the
impact of the murder on Laura’s parents, brothers, her teacher,
and classmates, then discussed Laura’s potential future and
how she might have experienced the crimes as they were
happening. Thereafter, the prosecutor argued: “You have to put
this now on that scale, ladies and gentlemen. When you
compare all of these things on this side of the scale, everything
we just talked about, including the assault on the cop, the
pickaxe that he used, the lewd act on the child, these are the
special circumstances, the forced oral [copulation]. And the
kidnapping, ladies and gentlemen, the aggravating side of this
scale outweighs the mitigating side of the scale like the Queen
Mary outweighs a rowboat. Like a 6’, 220-pound male outweighs
a 61-pound third grade girl.” The single reference to an “assault
on the cop” was not explained, and the prosecutor did not
otherwise mention defendant’s flight from police during jury
argument that spanned almost 30 pages of the reporter’s
transcript. Further, aside from the specific commission of a
domestic violence incident, the prosecutor did not suggest that
defendant had a violent background warranting the death
Opinion of the Court by Corrigan, J.
penalty. As noted, he acknowledged defendant’s lack of felony
convictions constituted a mitigating factor.
The defense acknowledged the prosecution’s emphasis on
the circumstances of the offense, with counsel commenting that,
“as expected, the prosecutor has focused on the facts of the
crime, because in this case that’s really all that he has to talk
about.” Both defense counsel mentioned that defendant had no
background of violence. This argument dovetailed into the two
primary defense themes: that jurors should have a lingering
doubt as to defendant’s guilt based on the multiple defense
witnesses who testified that defendant was incapable of
committing the murder; and that life imprisonment was a
sufficient punishment for the present crimes. Counsel discussed
lingering doubt at length, arguing that the DNA evidence only
linked defendant to the sexual assault and not the killing. They
argued evidence suggested others must be involved and that no
physical evidence tied Laura to defendant’s car. They urged
defendant had no history of child molestation, no history of
having been abused himself, and no history of mental illness or
drug addiction. All these facts were asserted to be inconsistent
with defendant’s guilt. Defense counsel suggested that DNA
evidence may someday exonerate defendant. They also
emphasized that defendant would not be eligible for parole and
there was no evidence that defendant had posed a danger to
anyone during the two years that he spent in custody awaiting
trial because “[t]here were no assaults on any guards or other
“[V]isible physical restraints like handcuffs or leg irons
may erode the presumption of innocence because they suggest
to the jury that the defendant is a dangerous person who must
be separated from the rest of the community.” (People v.
Opinion of the Court by Corrigan, J.
Hernandez (2011) 51 Cal.4th 733, 742; cf. Deck, supra, 544 U.S.
at pp. 632–633.) The record on direct appeal here reveals that
the jury convicted defendant of the gruesome murder and sexual
assault of a nine-year-old girl who had been kidnapped from her
home. The prosecution’s subsequent penalty phase argument
focused primarily on the circumstances of this horrific crime,
which the jury had previously assessed, rather than on
defendant’s dangerousness. The bulk of the defense case, both
with respect to jury argument and the evidence presented,
emphasized a theory of lingering doubt, a factor in mitigation as
to the circumstances of the crime. (See Pen. Code, § 190.3, factor
(a); People v. Holmes (2022) 12 Cal.5th 719, 753.) The record
before us only establishes that some prospective jurors may
have seen a portion of a “wire” during voir dire over a month
before the penalty phase began. In light of this record, the
unjustified shackling was harmless beyond a reasonable doubt
notwithstanding the possibility that some panel members may
have seen some form of restraint during jury selection.6
B. Guilt Phase Issues
1. Flight Instructions
Based on defendant’s flight from arresting officers, the
court gave a consciousness of guilt instruction using a modified
If there is evidence outside of the appellate record that the
jury’s view of defendant’s restraints was more extensive, a
habeas corpus proceeding would allow evaluation of such
evidence. (Cf. People v. Mendoza Tello (1997) 15 Cal.4th 264,
Opinion of the Court by Corrigan, J.
version of CALJIC No. 2.52.7 (See Pen. Code, § 1127c.) The
defense asked for an instruction on the absence of flight to show
he had no consciousness of guilt. It noted that defendant had
agreed to police interviews in 1991 and 1992 even after he had
become the focus of the investigation.8 The trial court observed
the defense could argue the point to the jury, but it would not
give “a pinpoint instruction on a negative.”
Defendant contends the court’s refusal to instruct on the
absence of flight deprived him of a fair trial. He argues the
court’s refusal, coupled with its instruction on flight, led to
“disparate treatment of the parallel inferences to be drawn from
a defendant’s response to an accusation,” which improperly
favored the prosecution.
The instruction stated here: “The flight of a person
immediately after the commission of a crime, or after he is
accused of a crime and has knowledge of the accusation, is not
sufficient in itself to establish his guilt, but is a fact which, if
proved, may be considered by you in light of all other proved
facts in deciding whether a defendant is guilty or not guilty. The
weight to which this circumstance is entitled is a matter for you
to decide.” (Italics added.) The italicized language was added
after discussion with counsel.
The proposed instruction stated: “The absence of flight of
a person immediately after the commission of a crime, or after
he is accused of a crime, although the person had the
opportunity to take flight, is a fact which may be considered by
you in light of all other proven facts, in deciding whether or not
the defendant’s guilt has been proven beyond a reasonable
doubt. The absence of flight may tend to show that the
defendant did not have a consciousness of guilt and this fact
alone may be sufficient to create a reasonable doubt as to
defendant’s guilt. The weight and significance of such
circumstances are matters of [sic] the jury to determine.”
Opinion of the Court by Corrigan, J.
We have previously rejected this argument in the context
of admissibility. As People v. Green (1980) 27 Cal.3d 1 observed,
evidence regarding absence of flight is generally not admissible.
People v. Montgomery (1879) 53 Cal. 576 concluded the trial
court did not err by excluding evidence that an in-custody
defendant “had an opportunity to escape from the jail, but
declined to avail himself of it.” (Id. at p. 577.) Montgomery
questioned whether an innocent inference could be made from
the lack of escape, noting the defendant “may very naturally
have been deterred from making an effort to escape from a fear
that he would be recaptured, and that his fruitless attempt to
escape would be evidence of guilt; or he may have felt so strong
a confidence of his acquittal, for want of the requisite proof of
his guilt, that he deemed it unnecessary to flee.” (Id. at pp. 577–
578.) Green clarified that “[t]he real issue here, however, is not
whether this evidence is relevant but whether it should be
excluded despite its relevance.” (Green, at p. 38.) Green
reasoned that such evidence presented “manifest risk of
confusion and delay” and “the absence of flight is so ambiguous,
so laden with conflicting interpretations, that its probative
value on the issue of innocence is slight.” (Id. at pp. 38–39; cf.
People v. Cowan (2010) 50 Cal.4th 401, 473 [exclusion of
evidence regarding the defendant’s offer to speak to police
proper].) Green concluded an instruction on the absence of flight
was properly denied because “the instruction would have
injected a new issue into the jury’s deliberations and invited the
kind of speculation that the Montgomery rule seeks to avoid.”
(Green, at p. 39.
We affirmed Green’s reasoning in considering the question
of instructions. People v. Staten (2000) 24 Cal.4th 434, rejected
the argument that the defense had “a ‘reciprocal’ right to an
Opinion of the Court by Corrigan, J.
instruction on absence of flight, as showing lack of guilt.” (Id. at
p. 459.) Staten noted Green “observed that such an instruction
would invite speculation; there are plausible reasons why a
guilty person might refrain from flight. [Citation.] Our
conclusion therein also forecloses any federal or state
constitutional challenge based on due process.” (Ibid.
Defendant relies on Cool v. United States (1972) 409 U.S.
100, but that case only bolsters our conclusion. Cool was
arrested along with her husband and one Robert Voyles. Voyles
had tried to pass counterfeit bills at a local store while Cool and
her husband waited outside. Cool testified in her own defense
and also called Voyles as a witness. The latter admitted his guilt
but insisted Cool and her husband were blameless. Over
defense objection the court instructed in a way that clearly
implied the jury “should disregard Voyles’ testimony unless it
was ‘convinced it [was] true beyond a reasonable doubt.’ ” (Id.
at p. 102.) The high court concluded such an instruction placed
an improper burden on the defense when an accomplice gave
exculpatory testimony because “the effect of the judge’s
instructions is to require the defendant to establish his
innocence beyond a reasonable doubt.” (Id. at p. 104.) Cool
underscored that accomplice testimony used to exonerate a
defendant should not be treated in the same way as testimony
used to implicate her. Similarly, there are valid reasons to treat
evidence of flight differently from the absence of flight. “[T]here
is no fundamental unfairness in not requiring an instruction on
the absence of flight . . . . [U]nlike the flight of an accused from
the scene of a crime or after accusation of a crime, the absence
of flight presents such marginal relevance it is usually not even
admissible. (See People v. Green, supra, 27 Cal.3d at p. 37.
Since flight and the absence of flight are not on similar logical
Opinion of the Court by Corrigan, J.
or legal footings, the due process notions of fairness and
parity . . . are inapplicable.”9 (People v. Williams (1997) 55
Cal.App.4th 648, 653; see People v. McGowan (2008) 160
Cal.App.4th 1099, 1105.
2. Third Party Culpability
Defendant contends the trial court improperly excluded
third party culpability evidence and precluded him from arguing
that someone else committed the crimes here. There was no
a. Background
The defense sought pretrial discovery of files from a
federal drug trafficking investigation tangentially involving the
victim’s father, Luis Arroyo. Defense counsel explained the
information was relevant to Luis’s possible involvement in
Laura’s disappearance. The court warned that if the defense
was pursuing a third party culpability theory, and “if you are
seeking reports that are going to suggest that some other
specific party is involved in the murder, I thought that had to be
the basis of a noticed motion.” After reviewing the Drug
Enforcement Administration records in camera, the court
Defendant’s reliance on Wardius v. Oregon (1973) 412 U.S.
470 fails for similar reasons. Wardius held that due process
principles precluded enforcement of a rule requiring defendants
give notice of an alibi defense “unless reciprocal discovery rights
are given to criminal defendants” (id. at p. 472), reasoning “[i]t
is fundamentally unfair to require a defendant to divulge the
details of his own case while at the same time subjecting him to
the hazard of surprise concerning refutation of the very pieces
of evidence which he disclosed to the State” (id. at p. 476). As
discussed, however, evidence of flight does not stand on equal
footing with evidence regarding absence of flight.
Opinion of the Court by Corrigan, J.
determined there was no relevant information pertaining to Mr.
Arroyo and denied the request.
The court thereafter took evidence on the question of
pretrial delay. (See discussion ante.) During that hearing, there
was evidence that Luis Arroyo had completed a police
investigative questionnaire. He listed as one of the “five most
important causes that would have created this situation
[involving Laura’s case]” the sale of a family-owned taco shop to
Guadalupe Echeverria. The defense also presented evidence of
a letter sent by Echeverria’s lawyer alleging the Arroyos had
made misrepresentations about the sale. Echeverria died in
December 1991. Detective Maxey testified he looked into the
taco shop transaction but did not interview Echeverria.
At trial, Enrique Loa testified that he had seen a small
brown car with several occupants parked in the cul-de-sac
around 8:45 to 9:00 p.m. on the night of Laura’s disappearance.
Loa’s sister, Teresa Thomas, testified Loa told her that night he
had seen a brown Datsun with three men and a woman inside
and that the occupants “squatted down to hide.” Thomas then
saw the car and occupants from her balcony. Robert Vazquez,
who was with Loa that night, told police that he had seen a
reddish-brown car parked in the cul-de-sac, describing the
occupants as a Filipino man, two Filipino women in their
thirties, and a Filipino woman “about 50 to 60.” The victim’s
mother informed police that some friends told her that they had
seen a small brown car with three men and a woman parked in
the cul-de-sac between 8:50 and 9:00 p.m. On cross-
examination, Mrs. Arroyo testified she did not remember
hearing about a Datsun with four occupants or telling the police
she suspected “a female from the taco shop” might have been
involved in Laura’s disappearance.
Opinion of the Court by Corrigan, J.
During cross-examination of Detective Maxey, defense
counsel asked whether police investigated the Arroyos’ possible
involvement in drug activity. The court sustained three
prosecution objections on relevance grounds. The questioning
then turned to the taco shop sale. Maxey testified that both the
person who sold the shop to the Arroyos and a subsequent
purchaser were “unhappy with Mr. Arroyo.” The court excluded,
as calling for hearsay, questions about Luis’s questionnaire
responses, the attorney letter to the Arroyos, and the name of
another person involved in the sale. When defense counsel
began to ask whether Luis had received threats at his
workplace, the prosecutor asked for a sidebar. The prosecutor
objected “to apparently all these lines of questioning having to
do with third-party culpability and trying to get it in through
hearsay.” The court suggested the admissibility of such
evidence should have been raised in a noticed, pretrial motion.
When defense counsel insisted she was not eliciting the evidence
for its truth but only to raise doubts regarding the thoroughness
of the police investigation, the court questioned the relevance of
the evidence and concluded “when I see something like this, I’ll
go ahead and make sure that it doesn’t get to the panel.” When
cross-examination resumed, defense counsel pursued a different
line of questioning.
b. There Was No Error
Defendant cannot demonstrate error on this record.
Initially, although defendant suggests the court “cut off the
defense from fully developing” his eschewed third party
culpability theory, he makes no effort to identify what specific
evidence the court precluded. Through cross-examination of
prosecution witnesses, the defense elicited that a car with up to
four occupants had been seen parked in the cul-de-sac at the
Opinion of the Court by Corrigan, J.
time of Laura’s disappearance. Defense counsel asked Detective
Maxey whether he investigated the taco shop sale as a possible
motive for the crimes here. Although the court sustained
hearsay objections to the contents of an attorney letter about the
sale, defendant makes no argument here that a hearsay
exception applied or that the letter itself was otherwise
Further, there was no basis for admitting the taco shop
evidence. The defense theory appears to have been that
Echeverria was a disgruntled purchaser and that an older
passenger in a “suspicious” car parked in the vicinity was a
woman. Whatever evidence supported this theory would have
shown “mere motive or opportunity to commit the crime in
another person” without providing any “direct or circumstantial
evidence linking the third person to the actual perpetration of
the crime.” (People v. Hall (1986) 41 Cal.3d 826, 833.) “We have
repeatedly upheld the exclusion of third party culpability
evidence when the third party’s link to a crime is tenuous or
speculative.” (People v. Turner (2020) 10 Cal.5th 786, 817
(Turner).) As we explained in Turner, “admissible evidence of
this nature points to the culpability of a specific third party, not
the possibility that some unidentified third party could have
committed the crime. [Citations.] For the evidence to be
relevant and admissible, ‘there must be direct or circumstantial
evidence linking the third person to the actual perpetration of the
.’ ” (Id. at pp. 816–817.) Defendant’s argument here fails
because there is no evidence linking the brown car’s occupants,
whoever they were, to the abduction of Laura, or with
Echeverria for that matter. (See People v. Kaurish (1990) 52
Cal.3d 648, 685.) Defendant’s third party evidence argument
rests on two layers of speculation: 1. That Echeverria was one
Opinion of the Court by Corrigan, J.
of the occupants of a car seen parked near the kidnapping scene,
and 2. that those occupants had something to do with Laura’s
disappearance. (See Turner, at pp. 817–818; People v. Ghobrial
(2018) 5 Cal.5th 250, 283–284; People v. Alcala (1992) 4 Cal.4th
742, 792–793.) The state of the record defeats his claim.
C. Penalty Phase Issues
1. Victim Impact Evidence
Defendant contends the trial court improperly allowed
victim impact testimony from Laura’s third grade teacher, Mari
Peterson. There was no error.
a. Background
Before the penalty phase, the parties discussed the
prosecutor’s intent to offer the video of a conversation between
Laura and her teacher. Defense counsel noted that the teacher
was on the prosecution’s witness list and inquired whether she
would merely authenticate the video or give victim impact
testimony. The prosecutor clarified that the teacher would
testify about the “impact of Laura’s death on her, friends, and
community. Her little friends and community.” The defense
objected to the presentation of victim impact testimony from
someone outside the victim’s family, and the parties discussed
relevant case authority. The trial court overruled the objection
but clarified that the teacher would only be allowed to discuss
the impact of Laura’s death in the days immediately following
the murder, excluding evidence that Laura’s classmates
purchased a plaque in her honor two or three years later.
Mari Peterson testified she was Laura’s third grade
teacher in 1991 and knew Laura “very well.” Laura was
Peterson’s “favorite student that year” and “was the type of
student that from the time you met her, you just wanted to love
Opinion of the Court by Corrigan, J.
her.” Laura “loved school,” was “best friends with everybody,”
and would welcome new students. Peterson described the
atmosphere at school the morning after Laura disappeared. Her
father was passing out flyers and concerned parents were asking
questions. Half the students “were crying already” and “wanted
to know where their friend was.” When Laura’s body was
discovered later that morning, Peterson and a psychologist
broke the news to the students. Peterson described the impact
on Laura’s classmates: “Of course, they are not going to work.
All they want to do is they want to know things. They want to
know where she is. They want her back. Everybody wanted to
sit at her desk. It was terrible.” After Laura’s death, parents
began walking their children to and from school. Many children
attended Laura’s funeral, which “was packed,” and Peterson
described how Laura’s body was in a “tiny little casket” with a
teddy bear. At the burial there were “just so many kids crying.”
After Laura’s death, Peterson was unable to teach third grade
again. She felt guilty for missing the last day Laura attended
class. Peterson identified Laura’s class photo and a clip of the
video conversation with Laura.
b. There Was No Error
Defendant contends Peterson’s testimony constituted “an
inflammatory appeal to the raw sentiments of the jurors that
went well beyond” permissible victim impact evidence, and the
probative value of the evidence was substantially outweighed by
the probability of undue prejudice. We reject these claims. “The
Eighth Amendment does not categorically bar victim impact
evidence. [Citation.] To the contrary, witnesses are permitted
to share with jurors the harm that a capital crime caused in
their lives.” (People v. Perez (2018) 4 Cal.5th 421, 461–462.
“That is because ‘the effects of a capital crime are relevant . . .
Opinion of the Court by Corrigan, J.
as a circumstance of the crime.’ [Citations.] And so long as
victim impact evidence does not invite the jury to respond in a
purely irrational way, it is admissible.” (People v. Mendez (2019
7 Cal.5th 680, 712.) “Victim impact evidence is simply another
form or method of informing the sentencing authority about the
specific harm caused by the crime in question, evidence of a
general type long considered by sentencing authorities.” (Payne
v. Tennessee
(1991) 501 U.S. 808, 825.) “ ‘ “Unless it invites a
purely irrational response from the jury, the devastating effect
of a capital crime on loved ones and the community is relevant
and admissible as a circumstance of the crime under section
190.3, factor (a).” [Citation.] “The federal Constitution bars
victim impact evidence only if it is ‘so unduly prejudicial’ as to
render the trial ‘fundamentally unfair.’ ” [Citation.]’ ” (People
v. Westerfield
(2019) 6 Cal.5th 632, 729, italics added
Westerfield recently endorsed similar victim impact
testimony from teachers “regarding [the victim’s] character and
contributions, and to the effect of her murder on themselves and
[her] classmates.” (Westerfield, supra, 6 Cal.5th at p. 728.
Westerfield reasoned: “ ‘The purpose of victim impact evidence
is to demonstrate the immediate harm caused by the
defendant’s criminal conduct.’ [Citation.] That harm is not
limited to immediate family members. [Citation.] Friends,
coworkers, classmates, and teachers, may all be affected by the
death of the victim under the specific circumstances of a case.
[Citations.] Here, defendant’s shocking abduction and murder
of seven-year-old Danielle caused emotional harm to her
teachers and classmates. Our review of the record does not
persuade us that her teachers’ testimony regarding Danielle and
those effects would invite a purely irrational response from the
Opinion of the Court by Corrigan, J.
jury or that it rendered defendant’s trial fundamentally unfair
under the circumstances.” (Id. at p. 729.
Westerfield’s reasoning applies equally here. Laura was
very close to her teacher and classmates. The impact of her
death on this community was relevant to assessing the harm
defendant caused. “Moreover, we have repeatedly held that
evidence related to a murder victim’s funeral is relevant and
admissible.” (People v. Winbush (2017) 2 Cal.5th 402, 465.
Peterson’s descriptions of the funeral and burial were not so
emotional as to elicit a purely irrational response from the jury.
(See ibid. [testimony regarding victim’s funeral and family’s
grave visits proper]; People v. Brady (2010) 50 Cal.4th 547, 579–
581 [videotape of victim’s funeral properly admitted]; see also
People v. Dykes (2009) 46 Cal.4th 731, 780, 782; People v.
(2010) 50 Cal.4th 263, 296–298.
2. Constitutionality of the Death Penalty Statute
Defendant raises numerous familiar challenges to the
constitutionality of California’s death penalty scheme. His
primary contention is that, when the jury returns a death
verdict, it must conclude beyond a reasonable doubt that the
aggravating factors outweigh the mitigating ones, because such
a finding increases punishment. Proof of that nature is not
required. As we have previously stated, “the only burden of
proof applicable at the penalty phase” involves proof of the
commission or conviction of other crimes under Penal Code
section 190.3 factors (b) and (c). (People v. Capers (2019) 7
Cal.5th 989, 1015 (Capers).) “Otherwise, our cases do not
require that a burden of proof be applied to aggravating
evidence.” (Ibid.) “We have previously held that the death
penalty is not unconstitutional ‘ “ ‘for failing to require proof
Opinion of the Court by Corrigan, J.
beyond a reasonable doubt that aggravating factors exist,
outweigh the mitigating factors, and render death the
appropriate punishment.’ [Citation.]” ’ [Citation.] We also have
consistently held the death penalty does not constitute an
increased sentence. [Citation.] And we have determined that
these conclusions are unaltered by Apprendi v. New Jersey
(2000) 530 U.S. 466, Ring v. Arizona (2002) 536 U.S. 584,
Blakely v. Washington (2004) 542 U.S. 296, or Cunningham v.
(2007) 549 U.S. 270. [Citation.]” (People v. Wilson
(2021) 11 Cal.5th 259, 317 (Wilson).) The jury’s determination
of the appropriate sentence within the statutorily specified
options “is ‘an inherently moral and normative function, and not
a factual one amenable to burden of proof calculations’ [citation],
[and] the prosecution has no obligation to bear a burden of proof
or persuasion [citation]. Nor does the federal Constitution
require an instruction that life is the presumptive penalty.”
(Turner, supra, 10 Cal.5th at p. 828.
Defendant relies upon Hurst v. Florida (2016) 577 U.S. 92,
but we have explained that case “does not alter our conclusion
under the federal Constitution or under the Sixth Amendment
about the burden of proof or unanimity regarding aggravating
circumstances, the weighing of aggravating and mitigating
circumstances, or the ultimate penalty determination.
[Citations.] And we have concluded that Hurst does not cause
us to reconsider our holdings that imposition of the death
penalty does not constitute an increased sentence within the
meaning of Apprendi[ v. Arizona], supra, 530 U.S. 466, or that
the imposition of the death penalty does not require factual
findings within the meaning of Ring v. Arizona[, supra,] 536
U.S. 584. [Citation.] As [defendant] acknowledges, neither Ring
nor Hurst decided the standard of proof that applies to the
Opinion of the Court by Corrigan, J.
ultimate weighing consideration.” (People v. McDaniel (2021) 12
Cal.5th 97, 155−156.
Likewise, Rauf v. State (Del. 2016) 145 A.3d 430, cited by
defendant, does not call our prior decisions into doubt. The
Delaware statute at issue there, like the Florida statute in
Hurst, required the trial court, rather than the jury, to engage
in additional factfinding before it determined whether death
was the appropriate sentence. Under that statutory approach,
the jury’s findings were merely recommendations. (See Del.
Code Ann. tit. 11, § 4209(d).)10 As we have noted with respect
to Hurst, “[t]he California sentencing scheme is materially
different from that in Florida, which, in contrast to our death
penalty statutes, mandates that the trial court alone must find
that sufficient aggravating circumstances outweigh the
mitigating circumstances.” (Capers, supra, 7 Cal.5th at p. 1014.
The Delaware statute states in part that “the Court, after
considering the findings and recommendation of the jury and
without hearing or reviewing any additional evidence, shall
impose a sentence of death if the Court finds by a preponderance
of the evidence, after weighing all relevant evidence in
aggravation or mitigation which bears upon the particular
circumstances or details of the commission of the offense and the
character and propensities of the offender, that the aggravating
circumstances found by the Court to exist outweigh the
mitigating circumstances found by the Court to exist. The jury’s
recommendation concerning whether the aggravating
circumstances found to exist outweigh the mitigating
circumstances found to exist shall be given such consideration
as deemed appropriate by the Court in light of the particular
circumstances or details of the commission of the offense and the
character and propensities of the offender as found to exist by
the Court. The jury’s recommendation shall not be binding upon
the Court.” (Del. Code Ann. tit. 11, § 4209(d)(1).
Opinion of the Court by Corrigan, J.
The same is true with respect to the Delaware statute at issue
in Rauf.
In addition to his primary claim, defendant summarily
asserts other challenges to the death penalty statute and related
instructions that we have previously rejected. He does so “in
order to urge reconsideration and to preserve these claims for
federal review,” but he presents no compelling argument to
reconsider our precedents. We reject these claims as follows:
1. The death penalty statute is not impermissibly
overbroad. It adequately narrows the class of defendants
eligible for a death sentence. (Wilson, supra, 11 Cal.5th at p.
317; People v. Chhoun (2021) 11 Cal.5th 1, 53 (Chhoun); Bell,
7 Cal.5th at p. 130; Westerfield, supra, 6 Cal.5th at p.
2. Penal Code section 190.3, factor (a), which directs the
jury to consider the “circumstances of the crime,” is not
overbroad. (See People v. Scully (2021) 11 Cal.5th 542, 610
(Scully); Wilson, supra, 11 Cal.5th at p. 317; Chhoun, supra, 11
Cal.5th at p. 54; Bell, supra, 7 Cal.5th at p. 130.
3. The prosecution did not bear the burden of persuasion
regarding proof of any aggravating factor, the weighing of
aggravating and mitigating factors, or imposition of the death
penalty. There was also no requirement to instruct the jury
regarding the lack of a burden of proof. (Wilson, supra, 11
Cal.5th at p. 317; Chhoun, supra, 11 Cal.5th at p. 54; Bell, supra,
7 Cal.5th at p. 131.
4. The jury need not find individual aggravating factors
unanimously. (Wilson, supra, 11 Cal.5th at p. 317; Chhoun,
11 Cal.5th at p. 54; Westerfield, supra, 6 Cal.5th at p.
Opinion of the Court by Corrigan, J.
5. An instruction that the jury should determine whether
“the aggravating circumstances are so substantial in
comparison with the mitigating circumstances that it warrants
death instead of life without parole” was not impermissibly
vague. (See Scully, supra, 11 Cal.5th at p. 609; Wilson, supra,
11 Cal.5th at p. 318.
6. CALJIC No. 8.88 is not unconstitutional for directing
the jury to determine whether the aggravating circumstances
“warrant” death rather than that the death penalty is
“appropriate,” or for failing to expressly state that the jury
should return a life sentence if it finds mitigating circumstances
outweigh aggravating ones. (Wilson, supra, 11 Cal.5th at p. 318;
Chhoun, supra, 11 Cal.5th at p. 54; People v. Morales (2020) 10
Cal.5th 76, 112.
7. There is no presumption in favor of a life term. (Wilson,
supra, 11 Cal.5th at pp. 317–318; Chhoun, supra, 11 Cal.5th at
p. 54; People v. Ramirez (2021) 10 Cal.5th 983, 1039 (Ramirez).
8. The jury need not make written findings. (Wilson,
supra, 11 Cal.5th at p. 317; Chhoun, supra, 11 Cal.5th at p. 54;
Bell, supra, 7 Cal.5th at p. 131.
9. The use of adjectives “extreme” and “substantial” do not
improperly limit the jury’s consideration of certain mitigating
factors. (Wilson, supra, 11 Cal.5th at p. 318; Chhoun, supra, 11
Cal.5th at p. 55; Bell, supra, 7 Cal.5th at p. 130.
10. There was no requirement that inapplicable
sentencing factors be deleted. (People v. Dworak (2021) 11
Cal.5th 881, 917; Wilson, supra, 11 Cal.5th at p. 318; Chhoun,
11 Cal.5th at p. 55.
Opinion of the Court by Corrigan, J.
11. There was no requirement to identify factors that were
only mitigating. (Chhoun, supra, 11 Cal.5th at p. 55; Ramirez,
10 Cal.5th at p. 1040; Bell, supra, 7 Cal.5th at p. 130.
12. Intercase proportionality review is not
constitutionally required. (Wilson, supra, 11 Cal.5th at p. 318;
Chhoun, supra, 11 Cal.5th at p. 55; Bell, supra, 7 Cal.5th at p.
131; Westerfield, supra, 6 Cal.5th at p. 734.
13. The death penalty scheme does not violate equal
protection principles “by providing significantly fewer
procedural protections for persons facing a death sentence than
are afforded persons charged with noncapital crimes.” (Wilson,
11 Cal.5th at p. 318; Chhoun, supra, 11 Cal.5th at p. 55;
Bell, supra, 7 Cal.5th at p. 131.
14. The death penalty is not a “regular” punishment that
violates international norms. (Wilson, supra, 11 Cal.5th at p.
318; Chhoun, supra, 11 Cal.5th at p. 55; Bell, supra, 7 Cal.5th
at pp. 131–132.
D. Cumulative Error Claim
Defendant contends cumulative error deprived him of a
fair trial. The only potential error identified was defendant’s
shackling, for which he failed to establish prejudice. Therefore,
there is no reversable error to accumulate. (Bell, supra, 7
Cal.5th at p. 132; Westerfield, supra, 6 Cal.5th at p. 728.
Opinion of the Court by Corrigan, J.
The judgment is affirmed.
We Concur:

Associate Justice of the Court of Appeal, Fourth Appellate
District, Division Two, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Bracamontes

Procedural Posture
(see XX below
Original Appeal XX
Original Proceeding
Review Granted
Review Granted (unpublished)
Rehearing Granted
Opinion No.
Date Filed: April 11, 2022

County: San Diego
Judge: John M. Thompson

Mary K. McComb, State Public Defender, under appointment by
the Supreme Court, and AJ Kutchins, Deputy State Public
Defender, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler,
Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney
General, Holly D. Wilkens, Theodore M. Cropley and Michael T.
Murphy, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for
publication with opinion):
AJ Kutchins
Deputy State Public Defender
1111 Broadway, Suite 1000
Oakland, CA 94607
(510) 267-3300
Michael T. Murphy
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9211
Opinion Information
Date:Docket Number:
Mon, 04/11/2022S139702