IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
GARY GALEN BRENTS,
Defendant and Appellant.
Super. Ct. No. 96NF2113
Defendant Gary Galen Brents argued with Kelly Gordon over $100 in
proceeds from a methamphetamine sale. Defendant tried to suffocate Gordon, and
he choked her. Then he placed Gordon in the trunk of a borrowed car, drove her
to a remote location, opened the trunk, poured gasoline on her, closed the trunk,
poured gasoline on the outside of the trunk, and lit the gasoline on fire. Gordon
burned to death, trapped in the trunk.
Defendant was charged with one count of first degree murder (Pen. Code,
§ 187, subd. (a)),1 one count of kidnapping (§ 207, subd. (a)), and one count of
assault by means of force likely to produce great bodily injury (§ 245, subd.
(a)(1)). Alleged were two special circumstances: that defendant committed the
murder while engaged in a kidnapping offense (§ 190.2, subd. (a)(17)(B)), and that
the murder was intentional and involved the infliction of torture (§ 190.2, subd.
All further undesignated statutory references are to the Penal Code.
(a)(18)). It was also alleged that defendant had three prior serious felony
convictions within the meaning of the three strikes law (§§ 667, subds. (b)-(e), and
1170.12), and also within the meaning of the five-year enhancement statute
(§ 667, subd. (a)), and that defendant had served five prior prison terms within the
meaning of section 667.5, subdivision (b). Defendant pleaded not guilty to the
charged crimes and denied the special circumstance and enhancement allegations.
The trial court granted defendant‟s motion to bifurcate the trial on the prior
A jury found defendant guilty of the charged crimes, and it found true the
kidnapping special circumstance. The jury was unable to reach a verdict on the
torture special circumstance; the trial court declared a mistrial on that allegation,
and the prosecution later stated on the record that it would not retry the allegation.
After defendant waived his right to a jury trial on the prior conviction and prior
prison term allegations, the trial court found all the prior conviction allegations
true, and it found four of the five prior prison term allegations true.
At the penalty phase, the jury returned a verdict of death. The trial court
denied postverdict motions, including the automatic motion to modify the verdict.
The court sentenced defendant to death on the first degree murder conviction.
Applying the three strikes law (§§ 667, subds. (b)-(e), and 1170.12), the court
imposed a consecutive 25-years-to-life term on the assault conviction; applying
the five-year enhancement statute (§ 667, subd. (a)), the court imposed three
consecutive five-year enhancements. The court stayed the sentence on the
kidnapping conviction and struck the prior prison term enhancements.
This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239,
subd. (b).) We affirm the convictions of first degree murder and the other charged
felonies, but we reverse the judgment as to the penalty of death and set aside the
kidnapping special circumstance finding because the trial court erroneously
instructed the jury.
I. FACTUAL BACKGROUND
A. Guilt Phase
1. Prosecution evidence
a. Defendant and his associates beat up Kelly Gordon
In October 1995, defendant rented a room at a Travelodge motel in
Anaheim and stayed there with Michelle Savidan, Abigail (Abby) Diaz, and
murder victim Kelly Gordon. Savidan testified that on October 3d, defendant
agreed to give her enough money to buy a quarter-ounce of methamphetamine,
which she would then sell at a profit, returning the proceeds to defendant.
Defendant gave Savidan the money, and Savidan returned with the
methamphetamine. When she returned, Diaz and victim Gordon were with
defendant. Gordon worked for defendant as a prostitute. Savidan had expected to
sell all the methamphetamine herself, but defendant gave two grams to Gordon to
That night, defendant and Gordon were stopped by City of Buena Park
police officers in an area frequented by prostitutes. Police took a thumbprint from
Gordon but did not arrest her or defendant.
On October 4th, defendant, Gordon, and Savidan met in defendant‟s motel
room. According to Savidan, she had sold her portion of the methamphetamine,
and she gave defendant the money. Gordon, however, did not have the two grams
of methamphetamine that defendant had given her (worth about $100), nor did she
have the money. Defendant and Gordon argued about the money. Diaz arrived
later. Anna Sara Uele and Victoria (Vickie) Myers, who knew defendant, also
came to the room, and they brought with them a woman named Jasmine (who died
before trial). Uele and Myers testified that Gordon was in the room, crying, when
they arrived, and defendant was demanding the money she owed him. Savidan,
Diaz, Uele, and Myers all testified about the events that transpired next.
At some point, Savidan told defendant that he should send Gordon away.
Savidan offered to wait for Gordon in the parking lot of a nearby motel, beat her
up, and tell her not to return. Defendant agreed to this plan, and Savidan left.
Gordon then told defendant that she could get the money she owed him, and Uele
offered to drive Gordon wherever she needed to go. Gordon, Uele, Myers, and
Jasmine all went out to a blue Cadillac that Uele had borrowed from someone in
exchange for drugs. Diaz remained behind. Defendant went to get Savidan, and
they got into the Cadillac with the other four women. Uele drove a short distance
and parked. The women dragged Gordon out of the car, beat her with their fists,
and kicked her. Gordon was on the ground, bleeding from her nose and mouth.
Defendant then pulled Savidan aside and expressed an intent to kill Gordon
for being a “snitch.” Savidan returned to the motel room, where she found Diaz.
Savidan told Diaz that they needed to get away from defendant, adding: “We [are]
going to either end up dead or in jail.”
Meanwhile, defendant, Gordon, Uele, Myers and Jasmine got back into the
Cadillac. Defendant put a plastic bag over Gordon‟s head and tightened it around
her neck. Gordon pulled the bag off. Defendant also choked Gordon from behind.
Defendant then told Uele to open the trunk, and he put Gordon into the trunk, hit
her, choked her, and closed the trunk. Uele and Myers asked defendant what he
was doing. Defendant answered: “We got to take her out . . . because she w[ill]
tell.” Uele, Myers, and Jasmine decided to return to the motel room, and Uele
gave the Cadillac keys to defendant. Defendant returned to the motel room
briefly, washed blood off his hands, used the bathroom, and then left.
About two hours later, Savidan and Diaz and some other people were
standing in front of the Stage Stop Motel, located about a half-mile from the
Travelodge. Defendant approached and said: “I took her to the hospital.”
Defendant then took Savidan away from the group and asked her: “Now, if I took
gasoline and I poured it all on the inside of the car and on the outside of the trunk,
do you think the fire would reach the inside of the trunk?”
b. Firefighters’ discovery of Gordon’s body in a burned blue
At 10:48 p.m., on October 4, 1995, Los Angeles County firefighters
responded to a report of a burning vehicle on Santa Fe Avenue, in an isolated
industrial area near Lakewood, approximately 16 miles from defendant‟s motel
room, but only three miles from the address on defendant‟s driver‟s license.
Firefighter Ken Salmans testified that when he arrived with the other firefighters,
they discovered a late-model luxury car, light in color, with the trunk engulfed in
flames. After the fire was extinguished, Salmans opened the trunk and saw the
dead body of a woman. The body was severely burned, with particularly severe
burns from the waist down. Salmans also smelled gasoline vapors. His opinion,
based on the severity of the burns and the location of the fire, was that someone
had poured gasoline directly on the woman.
Detective Barry Shapiro of the Los Angeles County Sheriff‟s Department
arrived at the scene while the fire in the trunk of the car was still burning. He
testified that he was present when the trunk was opened. He identified the car as a
light blue Cadillac, and he described the burned body of the woman in the trunk.
The burns were particularly severe on the legs. The body, which had the name
“Kelly” tattooed over the left shoulder blade, was later identified by thumbprint to
be that of Kelly Gordon, the woman stopped with defendant and thumbprinted on
the night before the murder.
Sheriff‟s investigators discovered a blue plastic antifreeze container in the
street near the car. The container smelled like gasoline. They also found rags that
smelled like gasoline on the front passenger-side floorboard of the car. DNA
taken from a cigarette butt found on the driver‟s seat of the car matched Uele‟s
DNA; only 1 in 3,400 people in the general population would have those same
An arson expert ruled out an accidental cause of the fire and concluded that
the fire was caused by igniting gasoline that had been poured inside the trunk,
between the legs of the burned woman, and also on the top of the trunk. An
autopsy discovered second- and third-degree burns covering 70 to 80 percent of
Gordon‟s body, with particularly bad burns on the legs. It appeared that Gordon
had suffered a bloody nose and a blunt force injury to the temple. She had an
elevated carbon monoxide level in her blood, and soot was in her larynx, trachea,
and lungs. These facts indicated that Gordon was alive when the fire was ignited
and that she died from smoke inhalation and burns.
c. Defendant’s attempts to influence witnesses
While defendant was in custody, awaiting trial, investigators involved in a
narcotics search of a motel room found a manila envelope addressed to Iris
Hernandez, Diaz‟s mother, with defendant‟s name as the sender. The envelope
contained several letters that bore defendant‟s fingerprints and were signed with
defendant‟s street name, “Dragon.” One letter was to Iris Hernandez, asking her
to deliver the other letters, which were addressed individually to Diaz, Savidan,
Uele, and Myers.
The letters instructed their recipients that, if questioned by police or in
court, they should say they could not remember anything. Savidan and Uele were
specially instructed: “As for possible alib[i] we all kicked in the room getting
hi[gh] all night or most of the night.” The letters to Diaz and Myers offered each
of them $10,000, and the letters to Savidan and Uele used a series of dollar signs
to indicate the offer of a large payment. The letters all stated that their author did
not want to go to court for a murder he “didn‟t do.” Each letter ended with “Now
burn this letter.”
Defendant also tried to influence other witnesses. Sandra Floyd testified
that in 1999 she met defendant on a jail bus on the way to court. Defendant
showed Floyd pictures of four women, and Floyd recognized Uele among these
women. Floyd discussed the matter with a defense investigator and conceded that
defendant was probably showing her the pictures because he was accusing them of
being “snitches.” She also warned Uele that she saw a picture of Uele “testifying
against a gentleman.” Later, a sheriff‟s deputy found the four photographs in a
search of defendant‟s cell.
Thereafter, during defendant‟s trial, Heather Castaneda met defendant on a
jail bus on the way to court. Defendant told her that he had been “snitched off” by
Uele, who was on the same bus to the court with him and Castaneda, and he
indicated that he wanted Uele to be killed. After Castaneda reported this
conversation to sheriff‟s deputies, defendant threatened to arrange the murder of
Castaneda‟s son, and he made similar threats against Castaneda.
2. Defense evidence
Defense investigators testified that Uele had once lived near the place
where Kelly Gordon‟s burned body was found.
B. Penalty Phase
1. Prosecution evidence
Pamela Hack testified that in 1979 defendant tried to snatch her purse as
she left a store. When Hack refused to let go of the purse, defendant dragged her
over the asphalt surface of the parking lot. Defendant also slapped her. Hack then
let go of her purse, and defendant fled. Hack suffered several injuries.
Bradford Miles testified that in 1984 he and defendant were both inmates at
the Los Angeles County jail. According to Miles, defendant and another inmate
attacked Miles and stole his property. Defendant forcibly sodomized Miles,
forced Miles to masturbate him, and tried to force Miles to orally copulate him.
Miles testified that an investigator named “Mr. Vacca” interviewed him in his
home about this incident, and he denied the incident because the interview took
place in front of Miles‟s girlfriend and friend, who did not know about the
In 1991, defendant asked Lisa Walker to work for him as a prostitute.
When she refused, defendant broke her jaw. He also threatened Vanessa Taylor,
who witnessed the assault on Walker, scaring her so much that she stabbed him.
Orange County Sheriff‟s Deputy Gene Hyatt testified that in October 1996,
he was assigned to the Orange County men‟s jail where defendant and Gary
Ahquin were inmates. Deputy Hyatt saw defendant assault Ahquin with closed
fists, although Ahquin had done nothing to provoke the attack. Ahquin suffered a
broken nose. Ahquin told Hyatt that defendant thought Ahquin was a “snitch.”
Sheriff‟s Deputy David Barr testified that in June 1999 he was assigned to
the Orange County men‟s jail where defendant and Andrew Lesky were inmates.
Deputy Barr was preparing to put defendant into restraints, but defendant said his
left wrist was fractured, so Barr left that wrist uncuffed. Deputy Barr then told
defendant to stand behind fellow inmate Lesky. Deputy Barr saw defendant punch
Lesky hard, in the back of the head, causing Lesky to fall. Lesky hit his head on
the ground, resulting in a cut that required seven stitches. When Deputy Barr later
testified about this incident in defendant‟s presence, defendant pointed his hand at
Barr and simulated pulling the trigger of a gun.
The parties stipulated that defendant had suffered nine prior felony
convictions. On November 19, 1979, defendant was convicted of attempted grand
theft of an automobile. The same day, he was convicted of the robbery of Pamela
Hack. On February 23, 1984, defendant was convicted of assault with a deadly
weapon. On October 10, 1984, defendant was convicted of the robbery of
Bradford Miles. On May 16, 1986, defendant was convicted of possession of
heroin. On August 19, 1988, defendant was convicted of possession of cocaine for
sale. On June 16, 1989, defendant was convicted of possession of a firearm by a
person previously convicted of a felony. On August 30, 1991, defendant was
convicted of possession of marijuana in jail. On October 19, 1992, defendant was
convicted of possession of a firearm by a person previously convicted of a felony.
Murder victim Kelly Gordon‟s mother, stepfather, and brother all testified.
Gordon‟s brother stated that he was “crushed inside” because of Gordon‟s murder
and added that he would have given defendant the money that Gordon owed if
defendant would have spared her life. Gordon‟s mother and stepfather said that
they are raising Gordon‟s young son, Joey. Gordon‟s mother said that Gordon had
been a good mother. Gordon‟s stepfather testified that her death had “taken away
a piece of us.”
2. Defense evidence
A defense investigator testified that he interviewed Bradford Miles at home
on August 16, 1999. During the interview, which took place in front of Miles‟s
friends, Miles denied that defendant had sodomized him when they were in jail in
1984. The interview was not recorded.
Several of defendant‟s family members testified that defendant was loving
and respectful when he was a young boy. One of defendant‟s nephews said that
defendant was a good uncle who urged him to do well in school and to play
football. According to defendant‟s sister, her children love defendant and he
“means everything to our family.” Defendant‟s brother testified that he loves
defendant, although he added that he disapproved of the way defendant had led his
Defendant was one of five children born to his mother. His father died in a
car accident when defendant was six years old.2 Defendant‟s stepfather beat
defendant and his siblings. Defendant‟s brother testified that their mother worked
hard to become a registered nurse and to support the family. She was a good role
model and tried to help defendant stay out of trouble, although she did give him
beatings “with a switch.” She died in 1981.
A. Sufficiency of Evidence to Support Kidnapping Special
Defendant argues that the evidence is insufficient to support the jury‟s true
finding regarding the kidnapping special circumstance. He asserts that this error
violated his constitutional rights under the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution, his analogous rights under the
California Constitution, and his rights under state law.3
Defendant‟s sister testified to “hav[ing] heard” that defendant‟s biological
father was a neighbor named “T. Sanster,” which if true would mean that the man
who died in the car accident was not actually defendant‟s father.
What we said in People v. Loker (2008) 44 Cal.4th 691, 704, footnote 7,
applies here: “[A]s to this, and almost every other appellate claim, defendant
contends the alleged error infringed his constitutional rights. In those instances
where he did not present constitutional theories below, it appears that either (1) the
appellate claim is one that required no objection to preserve it, or (2) the new
arguments are based on factual or legal standards no different from those the trial
court was asked to apply, but raise the additional legal consequence of violating
the Constitution. „To that extent, defendant‟s new constitutional arguments are
not forfeited on appeal.‟ (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.) No
(footnote continued on next page)
Section 190.2, subdivision (a) provides in relevant part: “The penalty for a
defendant who is found guilty of murder in the first degree is death or
imprisonment in the state prison for life without the possibility of parole if one or
more of the following special circumstances has been found under Section 190.4
to be true: [¶] . . . [¶] (17) The murder was committed while the defendant was
engaged in, or was an accomplice in, the commission of, attempted commission of,
or the immediate flight after committing, or attempting to commit, the following
felonies: [¶] . . . [¶] (B) Kidnapping . . . .” (Italics added.) At the time of
defendant‟s offense, this special circumstance required an independent felonious
purpose to commit one of the listed felonies (in this case, kidnapping).4 In other
words, the kidnapping could not be merely incidental to the murder, with the
murder being the defendant‟s primary purpose. (People v. Navarette (2003) 30
Cal.4th 458; People v. Green (1980) 27 Cal.3d 1, 61-62.) We have, however,
found sufficient evidence to support this special circumstance so long as there was
a concurrent purpose to commit both the murder and one of the listed felonies.
(footnote continued from previous page)
separate constitutional discussion is required, or provided, when rejection of a
claim on the merits necessarily leads to rejection of any constitutional theory or
„gloss‟ raised for the first time here.”
In 1998, the Legislature adopted section 190.2, subdivision (a)(17)(M),
which became effective after voter approval (Prop. 18, Primary Elec. (Mar. 7,
2000)). This new subdivision eliminated the independent felonious purpose
requirement for both the kidnapping and the arson special circumstances. It
provides: “To prove the special circumstances of kidnapping in subparagraph (B),
or arson in subparagraph (H), if there is specific intent to kill, it is only required
that there be proof of the elements of those felonies. If so established, those two
special circumstances are proven even if the felony of kidnapping or arson is
committed primarily or solely for the purpose of facilitating the murder.” (Italics
(People v. Bolden (2002) 29 Cal.4th 515, 554, 558; People v. Raley (1992) 2
Cal.4th 870, 903.)
Here, according to defendant, the evidence showed that his intent from the
outset was to kill Kelly Gordon, and that the kidnapping was merely incidental to
that killing. Defendant asserts that the record includes no evidence of an
independent purpose to kidnap Gordon.
The evidence that related to the kidnapping charge and kidnapping special
circumstance was the testimony that defendant placed Gordon in the trunk of the
Cadillac while she was still alive, shut the trunk, asked for the keys to the car, and
left. The same Cadillac was later found in a different location, burning, with
Gordon‟s burned body in the trunk. Defendant points out, however, that before
any of these events, he told Savidan of his intent to kill Gordon, he placed a bag
over Gordon‟s head, he choked her from behind, and then, after putting Gordon in
the trunk of the car, he told Uele and Myers: “We got to take her out . . . because
she w[ill] tell.” In defendant‟s view, all this evidence suggests that his primary
intent was to kill Gordon, and that the kidnapping was undertaken merely in
furtherance of the killing, not with an independent purpose. In the trial court,
defendant twice moved for dismissal of the kidnapping special circumstance
allegation, and the trial court denied the motion both times.
Defendant is wrong when he asserts that there was no evidence from which
the jury could infer an independent felonious purpose to kidnap Gordon. The
initial assault took place at night (after 7:00 p.m.), in a complex of automotive
repair shops that were likely closed for the night, at the end of a long, narrow
parking lot, behind a four-to-five-foot-high brick wall. Defendant could have
killed Gordon right there, by choking her, clubbing her, or by using a knife from
the motel (assuming he had no access to a firearm). Or, he could have obtained
gasoline from a nearby gas station, returned to the same secluded location where
the assault took place, and done his horrible deed right there, in the dark parking
lot, behind the brick wall. He then could easily have walked back to his motel
room, which was right next door.
Instead of killing Gordon where he was, however, defendant chose to take
her for a drive — and not just a few miles. He drove 16 miles, from Anaheim to
an unincorporated area near Lakewood. It took a detective from the Los Angeles
County Sheriff‟s Department about 25 minutes to drive the same distance in light
traffic. Defendant had not mentioned to anyone an intent to burn Gordon alive,
and her transgression would not seem to warrant so horrible a death. A reasonable
jury therefore could infer that defendant was not sure what he wanted to do with
Gordon when he drove away with her in the trunk. He wanted to think about it,
and going for a drive was his way of thinking about it.
It is also possible that defendant‟s initial plan was to use the gasoline to
destroy evidence of the assault, such as bloodstains in the interior of the Cadillac
or in the trunk. He may have kidnapped Gordon with the purpose of obtaining the
gasoline and then later decided to use the gasoline to kill Gordon.
Moreover, even if defendant intended from the beginning to kill Gordon
and even if that was his primary purpose, that point is irrelevant to our analysis.
The jury only needed to find that defendant also had another concurrent objective
when he kidnapped Gordon. (See People v. Bolden, supra, 29 Cal.4th at p. 554,
558; People v. Raley, supra, 2 Cal.4th at p. 903.) If defendant intended to kill
Gordon, but he wanted first to drive her around in a locked trunk, thoroughly
terrifying her before she actually died, then the independent purpose requirement
of People v. Green, supra, 27 Cal.3d at pages 59 to 62, is satisfied. (See People v.
Raley, at p. 903 [“Concurrent intent to kill and to commit an independent felony
will support a felony-murder special circumstance . . . .”].)
While lying bruised and bleeding in the dark trunk of a car that was being
driven toward some unknown destination, Gordon must have been terrified, and
defendant must have known that by driving her such a long distance, he was
increasing her terror. If, independent of any other purpose he might have had, he
took some satisfaction in the terror she was experiencing during the drive — that
is, if the terror was at least one of his purposes — then he had the independent,
concurrent purpose for the crime of kidnapping that our case law requires.
Defendant‟s actions during the assault on Gordon — which included
placing a plastic bag over her head (a bag she could easily tear off) and choking
her by putting his arm around her neck — were better calculated to instill fear than
to kill. The jury therefore could reasonably infer that even if defendant‟s ultimate
purpose was to kill Gordon, he also wanted to terrify her before she died.
Finally, our own view of what the evidence shows is irrelevant. The
relevant inquiry is whether it would be irrational for a jury to conclude that
defendant intended to kidnap Gordon for some reason (such as to instill fear) that
was in addition to and independent of his intent to murder her. (People v. Raley,
supra, 2 Cal.4th at p. 902.) Although the evidence of such a goal is far from
overwhelming, it is sufficient to support the jury‟s verdict.
It is true that the jury also could have inferred defendant‟s version of the
facts, but defendant is wrong to assert that his interpretation of the evidence is the
only reasonable interpretation. Because, as discussed above, the record contains
sufficient evidence to support the jury‟s finding of an independent purpose to
kidnap Gordon, we need not set aside the kidnapping special circumstance finding
on that ground. (See People v. Raley, supra, 2 Cal.4th at p. 903 [because the
defendant put his victims in the trunk of his car and drove them to his home, he
might not have formed the intent to kill until after the asportation]; see also People
v. Barnett (1998) 17 Cal.4th 1044, 1158 [although some evidence showed that the
defendant threatened to kill the victim on the day of the murder, the jury could
infer that the defendant had not finally decided the victim‟s fate at the time of the
B. Claims of Instructional Error Regarding Kidnapping Special
Defendant argues that the jury was not properly instructed regarding the
need to find an independent felonious purpose to kidnap Gordon, and therefore the
kidnapping special circumstance finding should be set aside. We agree.
The trial court instructed the jury using CALJIC No. 8.81.17, and the court
included this standard instruction‟s second paragraph because of evidence from
which the jury could infer that defendant‟s only purpose was to kill Gordon and
that he lacked an independent felonious purpose to kidnap her. (See People v.
Navarette, supra, 30 Cal.4th at p. 505.) The standard instruction does not
specifically mention kidnapping, but it has several blank spaces, with a use note
providing: “This instruction is designed to be adapted to any one or more of
the . . . crimes in Penal Code, § 190.2(a)(17) by inserting in the blank spaces the
names of the crime.” (Use Note to CALJIC No. 8.81.17 (5th ed. 1988), p. 396.)
Here, the trial court properly inserted “kidnapping” as the relevant crime in
most places in the instruction at issue, but in the first blank space of paragraph
No. 2 the court inserted not “kidnapping” but “assault by force likely to produce
great bodily injury.”5 For reasons that are not clear, the trial court insisted on
The full instruction as given by the court stated: “To find that the special
circumstance, referred to in these instructions as murder in the commission of
kidnapping, is true, it must be proved:
1. The murder was committed while the defendant was engaged in the
commission of a kidnapping; and
2. [A] The murder was committed in order to carry out or advance the
commission of the crime of assault by force likely to produce great bodily injury
(footnote continued on next page)
deviating from the instruction‟s use note in this way, and neither the defense nor
the prosecution objected.6 The effect of this alteration was to tell the jury that it
could find the kidnapping special-circumstance allegation true only if it found that
defendant committed the murder “to carry out or advance the commission of the
crime of assault by force . . . or to facilitate the escape therefrom or to avoid
During deliberations, the jury asked: “(1) Does the phrase „facilitate escape
therefrom‟ refer to the crime of assault by force, or the crime of kidnapping, or
something other than that? [¶] (2) Does the phrase „avoid detection‟ refer to the
crime of assault by force, or the crime of kidnapping, or something other than
that?” The court sent the jury‟s note back to the jury with this answer written on
the bottom: “1 & 2 both refer to the crime of assault by force.”
The trial court erred in altering CALJIC No. 8.81.17 to require a finding
that the murder was committed “to carry out or advance the commission of” the
assault on Gordon “or to facilitate the escape therefrom or to avoid detection.”
Under our holding in People v. Green, supra, 27 Cal.3d at pages 61 to 62, the
prosecution here had to prove (for purposes of establishing the kidnapping special
circumstance) that defendant kidnapped Gordon for an independent felonious
(footnote continued from previous page)
or to facilitate the escape therefrom or to avoid detection. [B] In other words, the
special circumstance referred to in these instructions is not established if the
kidnapping was merely incidental to the commission of the murder.” (Underlining
and bracketed capital letters added.)
Although defendant did not object at trial, the alleged instructional error
affected an element of the kidnapping special circumstance, and therefore we will
consider the merits of the issue. (See People v. Prieto (2003) 30 Cal.4th 226, 247;
see also § 1259.)
purpose and therefore that the kidnapping was not merely incidental to the murder.
Under Green, however, the jury did not need to find that the murder was
motivated in some way by defendant‟s initial assault on Gordon.
Accordingly, we agree with defendant that the trial court erred in its
alteration of the instruction regarding the kidnapping special circumstance. We
also agree that the error was prejudicial. An instructional error regarding an
element of a special circumstance requires reversal unless the error was harmless
beyond a reasonable doubt. (People v. Bolden, supra, 29 Cal.4th at p. 560.) In
this case, as explained below, we cannot conclude beyond a reasonable doubt that
the jury verdict would have been the same absent the error. Therefore, we must
set aside the true finding on the kidnapping special-circumstance allegation.
As given by the trial court, paragraph No. 2 of the instruction provided:
“[A] The murder was committed in order to carry out or advance the commission
of the crime of assault by force likely to produce great bodily injury or to facilitate
the escape therefrom or to avoid detection. [B] In other words, the special
circumstance referred to in these instructions is not established if the kidnapping
was merely incidental to the commission of the murder.” (Italics and bracketed
capital letters added.) The instruction is supposed to refer to the same target crime
throughout (here, kidnapping). When it does so, sentence [B] of the instruction‟s
second paragraph merely elaborates or clarifies the idea expressed in sentence [A]
of the paragraph, and sentence [A] (which is only illustrative) is not even
necessary to the instruction. (See People v. Dement (2011) 53 Cal.4th 1, 95, fn.
25.) For this reason, sentence [B] of the instruction‟s second paragraph begins
with the phrase “In other words.” But here the trial court erroneously inserted one
target offense (assault by force) in sentence [A], and a different target offense
(kidnapping) in sentence [B]. Because each sentence discussed a different target
offense, sentence [B] did not elaborate upon or clarify the idea discussed in
sentence [A], so the phrase “In other words” at the beginning of sentence [B] was
likely to have confused the jury.
The phrase “In other words” is often understood as the verbal equivalent of
an “equals” sign in mathematics; what comes before the phrase is substantively the
same as what comes after the phrase. Therefore, if the jury here was confused
about the meaning of sentence [B] of the instruction‟s second paragraph, it may
have decided simply to ignore that sentence, concluding from the introductory
phrase (“In other words”) that the sentence merely restated the idea expressed in
sentence [A] of the same paragraph (which the trial court had erroneously
modified). Significantly, the jury‟s question to the trial court indicates that
sentence [A] was the primary focus of the jury‟s attention, and the court‟s
response to the jury compounded the court‟s previous error by wrongly telling the
jury that sentence [A] was correct as written. The jury‟s question suggests that it
may have found the requirements of the special circumstance satisfied by finding
that defendant committed the murder to facilitate his escape from the assault or to
avoid detection of that crime.
In sum, we cannot conclude beyond a reasonable doubt that the jury gave
proper weight to sentence [B] of the instruction‟s paragraph No. 2. Because the
sentence began with the phrase “In other words” but expressed a new idea, entirely
distinct from the idea expressed in sentence [A] of the same paragraph (which the
court had erroneously modified), we cannot know beyond a reasonable doubt that
the jury read sentence [B], understood it, and applied it.
Sentence [B], however, is critical to paragraph No. 2 of the instruction in a
case like this one, in which the evidence could support an inference that
defendant‟s only purpose was to kill and that he lacked an independent purpose to
kidnap. (See People v. Navarette, supra, 30 Cal.4th at p. 505.) Indeed, the
evidence here of an independent purpose to kidnap was weak — although for the
reasons previously stated (see pt. II.A., ante), it was minimally sufficient. Given
the weakness of that evidence, sentence [B] — which told the jury of the need to
find that the kidnapping was not merely incidental to the murder — was of
particular importance here. That critical idea was not presented to the jury in any
other sentence of the instruction. Instead, sentence [A] of the same paragraph
(which the trial court had erroneously modified) inaccurately suggested to the jury
that the only thing the prosecution needed to prove (for purposes of satisfying
paragraph No. 2 of the instruction) was that the murder was motivated in some
way by defendant‟s initial assault on Gordon, a matter that was very easily proved
on this record. Hence, we cannot be sure that the jury ever found that the
kidnapping was not merely incidental to the murder, as is required by People v.
Green, supra, 27 Cal.3d at pages 61 to 62.
Therefore, we must set aside the jury‟s true finding with respect to the
kidnapping special circumstance. Because the jury failed to reach a verdict on the
torture special circumstance, we must also reverse the judgment of death. We will
nevertheless address defendant‟s additional arguments to the extent they challenge
the validity of his first degree murder, kidnapping, and assault convictions.
C. Excusal of Four Prospective Jurors for Cause Based on Their
Views Regarding the Death Penalty
Defendant faults the trial court for dismissing four prospective jurors based
on their inability to follow California law with respect to the death penalty. (See
Wainwright v. Witt (1985) 469 U.S. 412, 424; People v. Gray (2005) 37 Cal.4th
168, 192-193.) Because we are reversing the judgment of death, we need not
address this argument.
D. Admission of Uele’s Hearsay Statements
Defendant faults the trial court for admitting the hearsay statements Anna
Sara Uele made to Misty Sinks on the night of Gordon‟s murder.
Uele testified for the prosecution regarding the assault on Gordon. She
described her participation in the assault, but denied that she was an accomplice to
the murder. Uele admitted, however, that she had opened the trunk of the Cadillac
when defendant asked her to do so, after which defendant put Gordon in the trunk
and shut it, without Uele‟s help. Defendant‟s counsel cross-examined Uele
regarding her version of the assault on Gordon, and Uele admitted that at the
preliminary hearing she had denied opening the trunk. Uele also acknowledged
other minor inconsistencies between her testimony at trial and her prior
statements.7 In addition, Uele‟s testimony differed from that of the other women
on a couple of minor points.8
In an effort to corroborate Uele‟s testimony, the prosecution asked to
present the testimony of Misty Sinks, who had talked to Uele on the night of
Gordon‟s murder and who could testify to what Uele had said to her. Defendant
objected on hearsay grounds, but the trial court allowed the testimony as a prior
consistent statement admissible under Evidence Code section 791. Sinks then
testified that on a night in 1995 she got home between 10:00 p.m. and midnight,
and Uele and another woman were waiting there. Uele had blood on her shorts
and top. Uele told Sinks that she and some others “had beat up a girl” “over a
debt,” and that defendant had “put the girl in the trunk.” This testimony was
Those inconsistencies were (1) whether or not Savidan had blood on her
after the assault; (2) whether a pager that the women were using belonged to
Myers or to someone else; and (3) whether Uele went to defendant‟s motel room
to get drugs or for some other reason.
Those differences were (1) whether Gordon was hit before or after being
dragged out of the Cadillac; and (2) whether Diaz was already in defendant‟s
motel room when Uele arrived with Myers and Jasmine.
apparently significant to the jury, because the jury asked to hear it again during its
On this appeal, defendant argues that the trial court erred by admitting
Uele‟s statement to Sinks under Evidence Code section 791. That statute‟s
subdivision (b), in combination with Evidence Code section 1236, makes evidence
of a witness‟s prior consistent statement admissible if it is offered after an
“implied charge has been made that [the witness‟s] testimony at the hearing is
recently fabricated . . . and the statement was made before the . . . motive for
fabrication . . . is alleged to have arisen.” (Evid. Code, § 791, subd. (b).)9
Defendant concedes that his trial counsel‟s cross-examination of Uele amounted to
an “implied charge” that her testimony had been “recently fabricated” (Evid.
Code, § 791, subd. (b)), but he argues that Uele‟s statement to Sinks was not
“made before the . . . motive for fabrication” was “alleged to have arisen” (ibid.)
and therefore did not meet the temporal requirement of Evidence Code section
791. Defendant argues that Uele‟s motive to fabricate arose at the time of
defendant‟s assault on Gordon or immediately thereafter. Therefore, according to
Evidence Code section 1236 provides in full: “Evidence of a statement
previously made by a witness is not made inadmissible by the hearsay rule if the
statement is consistent with his testimony at the hearing and is offered in
compliance with Section 791.” Evidence Code section 791 provides in full:
“Evidence of a statement previously made by a witness that is consistent with his
testimony at the hearing is inadmissible to support his credibility unless it is
offered after: [¶] (a) Evidence of a statement made by him that is inconsistent
with any part of his testimony at the hearing has been admitted for the purpose of
attacking his credibility, and the statement was made before the alleged
inconsistent statement; or [¶] (b) An express or implied charge has been made that
his testimony at the hearing is recently fabricated or is influenced by bias or other
improper motive, and the statement was made before the bias, motive for
fabrication, or other improper motive is alleged to have arisen.”
defendant, Uele had the same motive to fabricate when making her statement to
Sinks as she had when later testifying at trial.
Uele‟s testimony at trial was broadly impeached when defense counsel
brought out on cross-examination inconsistencies between her testimony and her
prior statements and also between her testimony and the testimony of the other
women. Defense counsel‟s implied charge was that Uele‟s entire testimony was
unreliable, not just that Uele had fabricated some specific point, and this broad
charge of fabrication warranted admission of a prior consistent statement for
purposes of rehabilitating the witness. In People v. Kennedy (2005) 36 Cal.4th
595, 614, for example, we said that “Evidence Code section 791 permits the
admission of a prior consistent statement when there is a charge that the testimony
given is fabricated or biased, not just when a particular statement at trial is
On this appeal, defendant renews the argument that Uele‟s motive for
fabrication arose at the time of her participation in the assault on Gordon, and
therefore Uele‟s statement to Sinks was not made before the motive for fabrication
arose. But defense counsel‟s implied charge of fabrication was largely based on
inconsistencies between Uele‟s trial testimony and her testimony at the
preliminary hearing, and therefore the implied charge of fabrication must
contemplate some motive to fabricate that arose after the preliminary hearing.
We do not know what, if any, motive to fabricate arose after the preliminary
hearing, but assuming one did, Uele‟s statement to Sinks was made before the
preliminary hearing, and therefore the temporal requirement of Evidence Code
section 791, subdivision (b) was satisfied.
E. Admission into Evidence of Photograph of Gordon’s Burned Body
In a motion in limine before the guilt phase, the defense sought to exclude
photographs showing Gordon‟s burned body lying in the trunk of the Cadillac.
The prosecution argued that the photographs were relevant to show torture,
premeditation, deliberation, and identity. In opposition, the defense contended
that the admission of multiple photographs would be cumulative. Although the
defense ultimately reaffirmed its request for exclusion of all the photographs in
question, it also conceded that the trial court could properly admit one of the
photographs into evidence.
The trial court examined four photographs and selected a photograph that
showed Gordon‟s burned body from a slight distance, ruling that the photo was
admissible to show premeditation, deliberation, malice aforethought, and specific
intent. The prosecutor used the photograph at closing argument in support of the
torture special circumstance, and defendant did not object at that time.
“When conditions depicted in photographic evidence are relevant to the
prosecution‟s case, it is „not obliged to prove these details solely from the
testimony of live witnesses, and the jury was entitled to see how the physical
details of the scene and body supported the prosecution theory‟ of the crimes.
(People v. Turner (1990) 50 Cal.3d 668, 706; see also People v. Sheid (1997) 16
Cal.4th 1, 13-18.) „[T]he decision to admit victim photographs is a discretionary
matter we will not disturb on appeal unless the prejudicial effect of the
photographs clearly outweighs their probative value.‟ (People v. Taylor (2001) 26
Cal.4th 1155, 1168.)” (People v. Davis (2009) 46 Cal.4th 539, 615.)
Here, the photograph of Gordon‟s dead body depicted the full extent of her
burns and supported the prosecution‟s assertion that she was doused with gasoline
and then set on fire. Considered in combination with the autopsy evidence
showing that Gordon was alive when she was set on fire, the photograph was
probative of both premeditation and torture. The trial court selected a single
photograph that showed the body from a slight distance, explicitly rejecting a
photograph that showed a close-up view of the burned face. We find no abuse of
F. Motion to Impanel a New Jury
After the jury returned its verdict as to guilt, it sent a confidential note to
the trial court, expressing concern that defendant had threatened witnesses and
asking whether defendant had access to personal information about the jurors.
The trial court reassured the jury that defendant knew them only by number.
Defendant then unsuccessfully moved to impanel a new jury based on an asserted
inability of the existing jury to decide the penalty impartially. Defendant argues
on appeal that the trial court erred. Because we are reversing the judgment of
death, we need not address this argument.
G. Alleged Section 654 Violation
Section 654‟s subdivision (a) provides in relevant part: “An act or
omission that is punishable in different ways by different provisions of law shall
be punished under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more
than one provision.” Defendant argues that the trial court violated that provision‟s
prohibition against multiple sentences for a single act or course of conduct, by
imposing a death sentence for the murder conviction and a consecutive 25-years-
to-life term for the felony assault conviction.
According to defendant, he formed the intent to kill Gordon before he ever
assaulted her, and therefore any assaultive behavior that could possibly support his
felony assault conviction (§ 245, subd. (a)(1) [assault by means of force likely to
produce great bodily injury]) was done in an effort to kill Gordon. As such —
defendant asserts — his murder and felony assault convictions were necessarily
based on the same indivisible course of conduct, and under section 654, he can
only be sentenced for one of the two. (See People v. Hicks (1993) 6 Cal.4th 784,
789.) Although defendant did not make this argument in the trial court, we will
consider it on the merits. (See People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17
[§ 654 error results in an “ „unauthorized‟ sentence” and hence is reviewable on
appeal even if not raised in the trial court].)
A trial court‟s express or implied determination that two crimes were
separate, involving separate objectives, must be upheld on appeal if supported by
substantial evidence. (People v. Oban (1996) 13 Cal.4th 622, 730-731.) Here, in
sentencing defendant for both the murder and the assault, the trial court expressly
concluded that the murder of Gordon was separate from defendant‟s earlier assault
on her. The court said: “Count III, which is assault by force likely to produce
great bodily injury, that actually is a separate incident. It was before the
kidnapping and before the homicide.” (Italics added.) Substantial evidence
supports that conclusion.
As we pointed out earlier when addressing defendant‟s argument that the
evidence was insufficient to support the kidnapping special circumstance (pt. II.A.,
ante), defendant might not have finalized his intent to kill Gordon at the time of
the assault. Notwithstanding his boastful statements to Uele and Myers, if he had
truly intended to kill Gordon from the first moment he assaulted her, he could
have done so without first driving her 16 miles. Here, there was enough evidence
from which the trial court could conclude, as it did, that defendant arrived at his
final decision to kill Gordon after the assault. Accordingly, we find no error.
H. Constitutionality of California’s Death Penalty Law and Violation
of International Law
Defendant raises numerous constitutional challenges to California‟s death
penalty law, and he also asserts that his conviction and sentence violate
international law. Because we are reversing the judgment of death, we need not
address these arguments.
I. Trial Court’s Asserted Errors, Considered Cumulatively
Defendant contends that the trial court‟s multiple errors, considered
together, denied him due process and a fair trial. We have identified only a single
error (the trial court‟s erroneous instruction to the jury regarding the need to find
an independent purpose to support the kidnapping special circumstance), and we
have determined based on this error to reverse the judgment of death. (See pt.
II.B., ante.) Because the trial court did not make multiple errors, defendant‟s
claim of cumulative prejudice necessarily fails.
The judgment is reversed as to the sentence of death, and the jury‟s true
finding on the kidnapping special circumstance allegation is stricken. The case is
remanded to the trial court for further proceedings consistent with our opinion.
CANTIL-SAKAUYE, C. J.
CONCURRING OPINION BY LIU, J.
In reviewing the jury‟s finding of the kidnap-murder special circumstance, our role
is to “examine the evidence in the light most favorable to the prosecution and decide
whether a rational trier of fact could find beyond a reasonable doubt that defendant had a
purpose for the kidnapping apart from murder.” (People v. Raley (1992) 2 Cal.4th 870,
902.) Applying that deferential standard, the court concludes that the evidence that
defendant had an independent purpose for kidnapping Kelly Gordon was “minimally
sufficient.” (Maj. opn., ante, at p. 19.) At the same time, the court candidly notes that
the evidence was “weak” and “far from overwhelming.” (Id. at pp. 14, 19.) I offer one
additional observation. Although we typically apply sufficiency-of-the-evidence review
to a jury verdict, it is not clear that the jury in this case actually found an independent
purpose for the kidnapping because, as our opinion explains (maj. opn., ante, at pp. 15-
19), it was never properly instructed to do so. In light of the instructional error, our
conclusion that a rational jury could have returned a true finding on the special
circumstance does not mean that the jury in this case actually believed such a finding was
supported by the evidence beyond a reasonable doubt.
I CONCUR: CORRIGAN, J.
CONCURRING & DISSENTING OPINION BY WERDEGAR, J.
I agree with the majority that the jury‟s true finding on the kidnapping
special circumstance must be set aside and the judgment of death reversed.
I disagree that the evidence supporting the special circumstance was sufficient to
permit a retrial of the allegation that defendant committed the murder while
engaged in the commission of a kidnapping.
As the majority acknowledges and the concurring opinion underscores, the
evidence that defendant had a purpose for the kidnapping independent of his intent
to murder the victim, as required by law at the time of his offense (People v.
Navarette (2003) 30 Cal.4th 458, 505; People v. Green (1980) 27 Cal.3d 1, 61-
62), was “weak” and “far from overwhelming.” (Maj. opn., ante, at pp. 14, 18;
conc. opn. of Liu, J., ante.) I would add that it was, as well, entirely speculative.
Defendant‟s intent to kill Kelly Gordon was clear from the beginning. He
expressed his intent to Michelle Savidan in the parking lot, stating Gordon “is a
snitch. I want to put her out.” When he got into the Cadillac with Gordon and the
other women, he put a plastic bag over Gordon‟s head and tightened it. When
Gordon was able to tear the bag off, defendant put his arm around her neck,
choking her. He then told the driver of the Cadillac to open the trunk, whereupon
he pulled Gordon out of the car, forced her into the trunk, hit her and choked her,
and shut the lid. When the other women protested, defendant replied that Gordon
was “going to tell” on them and they “got to take her out.” Defendant took the
keys to the Cadillac and drove away with Gordon in the trunk. The car was later
found 16 miles away, burning, with Gordon‟s burned body in the trunk.
The majority finds the foregoing evidence, although weak, “minimally
sufficient” (maj. opn., ante, at p. 19) to permit a jury to find beyond a reasonable
doubt that defendant had a purpose independent of Gordon‟s murder for
transporting her away from the motel parking lot. In support, the majority
speculates that because defendant could have killed Gordon right there, in the
parking lot, and could have obtained gasoline from a supposed nearby gas station
if he wished to burn the car, a jury could infer he kidnapped the victim because he
was not sure what he wanted to do with her and wanted to think about it, “and
going for a drive was his way of thinking about it.” (Id. at p. 13.) Or he may have
wanted first to drive her around in a locked trunk, so as to terrify her before she
actually died. (Ibid.) Or “[h]e may have kidnapped Gordon with the purpose of
obtaining the gasoline and then later decided to use the gasoline to kill Gordon.”
(Ibid., italics added.)
I disagree. No evidence of any of the foregoing speculative purposes for
the kidnapping was presented to the jury. Nor did the prosecutor argue any such
independent purposes. In my view, the evidence, as opposed to speculation and
conjecture, admits only the conclusion that defendant transported the victim to
another location simply to kill her, viz., the kidnapping was in furtherance of the
killing. To uphold the sufficiency of the evidence to support the special
circumstance finding in this case is to stretch the principle of deferential review of
a jury verdict to the point of meaninglessness.
Consequently, insofar as the majority finds the evidence sufficient to
support the special circumstance, I dissent.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Brents
Original Appeal XXX
Date Filed: February 2, 2012
Judge: John J. Ryan
Counsel:Michael B. McPartland, under appointment by the Supreme Court, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Adrianne S. Denault, Kyle Niki Shaffer
and Robin Derman, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):Michael B. McPartland
P.O. Box 13442
Palm Desert, CA 92255
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
|Thu, 02/02/2012||53 Cal. 4th 599, 267 P.3d 1135, 136 Cal. Rptr. 3d 66||S093754|
1-s093754-appellant-opening-brief.pdf (3860746 bytes) - Appellant's Opening Brief
2-s093754-respondent-brief.pdf (2556803 bytes) - Respondent's Brief
3-s093754-appellant-reply-brief.pdf (1655296 bytes) - Appellant's Reply Brief