IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ADRIAN GEORGE CAMACHO,
Defendant and Appellant.
S141080
San Diego County Superior Court
SCN 163535
November 28, 2022
Chief Justice Cantil-Sakauye authored the opinion of the Court,
in which Justices Corrigan, Liu, Kruger, Groban, Jenkins, and
Guerrero concurred.
PEOPLE v. CAMACHO
S141080
Opinion of the Court by Cantil-Sakauye, C. J.
At approximately 5:05 p.m. on June 13, 2003, uniformed
Officer Tony Zeppetella of the Oceanside Police Department
detained defendant Adrian Camacho in a traffic stop. By
5:09 p.m., defendant had shot the officer no fewer than 13 times,
beaten him as he laid wounded but conscious on the ground, and
fled the scene. Despite receiving immediate medical attention,
Officer Zeppetella died en route to the hospital.
At trial, defendant did not contest that he shot and killed
Officer Zeppetella. He claimed, however, that he did so during
a period of delirium and psychosis brought about by a
combination of illicit substances and prescription medication he
had ingested. Defendant argued that, due to the effects of the
drugs, he did not possess the requisite mental state for first
degree murder. (Pen. Code, § 187, subd. (a); all further
unspecified statutory references are to the Penal Code.
Defendant urged the jury to convict him of a lesser crime, one as
lenient as involuntary manslaughter, but in any event not more
severe than second degree murder.
The jury rejected defendant’s argument, finding him
guilty of first degree murder. (§ 189, subd. (a).) It also found
true two special circumstance allegations: (1) defendant
murdered Officer Zeppetella “for the purpose of avoiding or
preventing a lawful arrest” (§ 190.2, subd. (a)(5)), and
(2) defendant “knew, or reasonably should have known, that the
victim was a peace officer engaged in the performance of his or
PEOPLE v. CAMACHO
Opinion of the Court by Cantil-Sakauye, C. J.
her duties” and intentionally killed Officer Zeppetella while he
was engaged in the performance of said duties (§ 190.2, subd.
(a)(7)). The jury further found true the allegations that
defendant “personally use[d] a firearm” and “personally and
intentionally discharge[d] a firearm and proximately cause[d]
great bodily injury” in committing the murder. (§ 12022.5, subd.
(a); § 12022.53, subd. (d).) Finally, the jury convicted defendant
of being a felon in possession of a firearm and possessing a
controlled substance for sale.
At the conclusion of the penalty phase, the jury
recommended a sentence of death. The court so sentenced
defendant.
This is defendant’s automatic appeal. We affirm the
judgment in its entirety.
I. BACKGROUND
A. Evidence at the Guilt Phase
1. Prosecution case
a. Events at the scene of the shooting
The shooting and killing of Officer Zeppetella occurred on
a Friday afternoon in the parking lot of a Navy Federal Credit
Union in Oceanside. Because that Friday was payday at a
military base located close by, the credit union was busy and
multiple witnesses observed and testified to the events
surrounding the shooting.
Eyewitnesses testified to seeing a person later identified
as defendant driving a blue Toyota. Officer Zeppetella’s police
vehicle had pulled into the credit union’s parking lot behind the
Toyota, partially blocking it. The officer then walked up to
defendant, seated in the Toyota. Defendant handed the officer
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some sort of paperwork. The witnesses testified that the
interaction seemed routine.
As the officer half turned away from defendant with the
paperwork, however, defendant opened fire. Subsequent expert
testimony established that defendant fired his Ruger pistol,
hitting Officer Zeppetella multiple times. After a pause,
defendant and the officer began to exchange gunfire, and the
officer hit defendant once in the knee.
Laura Pallos observed the incident unfolding from her
vehicle. She testified that after hearing the initial gunshots, she
saw an officer “stumbling . . . out from between two cars.” She
then saw “a man,” defendant, “come out . . . from between those
same two cars with a gun pointing at the officer” and “shooting
at him.” After falling to the ground, Officer Zeppetella began
“pulling himself along with his right arm.” It appeared to Pallos
that Officer Zeppetella was “looking for some place to crawl
behind.” Defendant “watch[ed] very intently” before “following”
Officer Zeppetella, “taking the shortest path towards the
officer.” Having covered the distance to the victim, defendant
“reached down,” “grabbed the back of the police officer’s collar,”
“pulled him up,” then swung down with the gun held in his right
arm, striking the officer on the back of the head three or four
times. Defendant subsequently threw the officer “down to the
asphalt.”
Pallos testified that she saw defendant then “crouch[]
down” by the officer and press “at his waist line with both
hands.” Testimony by other witnesses indicated that defendant
had emptied his own firearm at this point, but that he found and
seized Officer Zeppetella’s Glock handgun, presumably when
Pallos saw defendant crouched by the officer. Pallos then saw
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defendant backing away while maintaining focus on the officer
“at all times.” When defendant saw movement from the officer,
he “stepped back in those two steps that he had backed up and
shot him again” — this time with the officer’s own handgun —
“three, four” more times. “The officer stopped moving.”
Defendant watched the victim for a second longer, then got into
the police vehicle and sped away from the scene.
Corpsman Gabriel Tellez, who specialized in “combat and
combat-related trauma,” was inside the credit union during the
shooting. Once the shooting ceased, Tellez made his way to the
parking lot and “noticed [an] officer laying on the ground face
down.” Based on the color and amount of the blood that “had
already pooled underneath the officer,” Tellez recognized that
Officer Zeppetella had “a very life threatening injury.”
“Working as quickly as [he] possibly c[ould],” Tellez rolled the
officer onto his back, got his ballistic vest off him, ascertained
that blood was pulsing from a wound in his chest, and inserted
his fingers into the wound to clamp off the severed artery that
was bleeding. Officer Zeppetella was still alive and responsive
at this stage, as he “winced in pain” when Tellez inserted his
fingers in the wound. Other bystanders joined Tellez in
rendering aid. An ambulance arrived. The paramedics loaded
Officer Zeppetella and Tellez, whose fingers were still inside the
officer’s chest maintaining “a critical hold,” into the ambulance.
Although the paramedics continued to provide medical care
during the ambulance ride, Tellez noticed “life [was] starting to
ebb out of Officer Zeppetella.” The officer was pronounced dead
at Palomar Hospital slightly more than an hour after the
shooting began.
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b. Events following the shooting
After defendant fled the scene in Officer Zeppetella’s
patrol vehicle, he drove to a neighborhood where he had
previously resided with his mother-in-law, Lorraine Camacho.1
Lorraine lived at a house on Via Isidro, and an eyewitness saw
defendant on foot and turning onto the street. The eyewitness,
together with another individual, Doug Cosley, discovered a
police car abandoned a short distance away from Via Isidro with
the engine still running. The witnesses then heard through a
radio transmitting from the vehicle that “there was an officer
down and a car and weapons missing.” Thinking that the
missing police vehicle was the one they were standing next to,
Cosley used the radio to report the car’s location.
Police officers arrived soon after and followed what
appeared to be blood stains leading to Lorraine’s residence.
Surmising that defendant had isolated himself inside, law
enforcement personnel spent the next few hours securing the
area and evacuating nearby residents. By approximately
9:00 p.m., a SWAT team led by Sergeant Thomas Aguigui was
ready to make contact with defendant.
Aguigui testified that he communicated with defendant
via a bullhorn. After Aguigui established rapport, defendant
told the sergeant that he was scared, he had cut his wrists, and
he did not want to come out of the house for fear of the police.
Defendant also asked if “the officer died,” to which Aguigui
replied that he did not know. Aguigui reassured defendant that
“it was safe for him to come out” and that “medical attention
1
We refer to people who share a surname with defendant
by their first names to avoid confusion.
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[would be given] to his injuries.” Defendant agreed to exit the
residence. Defendant then followed Aguigui’s directions, turned
on the porch light, stepped out, dropped a piece of cloth that he
had in his hand when directed to do so, and walked to the
officers. After the SWAT team placed handcuffs on defendant,
he was turned over to medics for first aid. When he was on the
gurney, defendant volunteered that he did not “ ‘know what that
officer did to make [him] snap.’ ” Based on his interaction with
defendant, Aguigui testified that although defendant was “in
some significant amount of pain,” he was “coherent” and able to
understand the instructions given to him.
Aguigui’s observations of defendant’s demeanor were
echoed by medical personnel who treated defendant that night.
Timothy Huerta, one of the paramedics who transported
defendant to the hospital, testified he and his partner undertook
an initial assessment of defendant at 9:41 p.m. after defendant
walked out of the house on Via Isidro. Defendant was “alert,”
“cooperative,” able to relay date, time, and location as well as
“his age, his weight, whether or not he was in pain, which he
said he wasn’t, and where he had been shot.” In communicating
all this information, defendant’s speech was “normal and clear.”
Once the paramedics placed defendant into the ambulance, they
began standard treatment procedure for a patient with a
gunshot wound, bandaging his injuries, establishing an IV, and
placing him on oxygen. Defendant remained “very alert,”
“looking around” and “watching [the paramedics’] movements.”
Once defendant arrived at the hospital, Dr. Imad Dandan
treated him at 11:00 p.m. Dandan’s assessment was that
defendant was “awake and alert.” He talked to defendant, who
was “calm, very courteous, and responsive to . . . questions.”
Defendant did not have pressured or rapid speech; he was not
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incoherent; he did not sweat excessively; and his temperature
was normal. Defendant did have lacerations on both of his
forearms, three on the left and one on the right. The lacerations
were “a little jagged and superficial,” measuring from two
centimeters to four centimeters. Dandan administered local
anesthesia, “cleaned the wounds and repaired them.”
Defendant also had a gunshot wound on his right knee. Dandan
cleaned the wound and gave defendant antibiotics but did not
remove the bullet because there was “no danger [from] leaving
the bullet [in]” and removal would result in more damage.
A nurse drew defendant’s blood at around 11:00 p.m., the
same time as Dr. Dandan’s examination. Toxicologist John
Treuting reported the results of the tests done on the sample
extracted. According to Treuting, defendant tested “positive for
methamphetamine at a qualitative level of 119 nanograms per
millimeter of blood.” This was a level that Treuting would
consider “toxic.”
In addition to methamphetamine, defendant’s blood also
contained “morphine at a level of 576 nanograms per ml and a
codeine level of 98 nanograms per ml.” Morphine is a byproduct
of heroin, while the presence of codeine could be explained both
by an individual using codeine or by the individual “converting
morphine to heroin.” Again, Treuting would consider this level
of morphine “toxic.”
Treuting further testified that defendant tested positive
for Valium and Paxil at levels that were within the therapeutic
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range.2 Based on the levels present in defendant’s blood alone,
however, it was difficult for Treuting to conclude when
defendant had ingested the various illicit drugs or what the drug
concentrations were at a point in time prior to the blood sample
being taken.
At approximately the time that defendant was receiving
medical care, police officers conducted a search of Lorraine’s
house on Via Isidro. Defendant had evidently broken into the
house3 by shattering a rear glass door. Inside one of the
bathrooms, there was writing on the walls in what appeared to
be blood. One of the writings said, “I,” followed by a picture of a
heart, and “my wife and kids.” Two others read, “sorry” and “I’m
sorry.” Yet another writing read, “Help me, Ordas.” As will be
detailed below, Ordas is the name of a psychiatrist who had been
treating defendant.
In the same bathroom were various drug paraphernalia.
In the toilet was “a small ziploc baggie with brown residue.”
There was also a glass pipe with white residue and a bag with
“squares cut out of it.” Karen Laser, a corporal with the
Oceanside Police Department and the person who discovered
the items, testified that the brown baggie contained heroin, the
2
Valium, the brand name for diazepam, is an antianxiety
drug. Paxil, the brand name for paroxetine, is an
antidepressant. Treuting described the “therapeutic range” as
indicating a dosage at which an individual taking the drug is
“getting the beneficial effects and not the toxic effects or the
adverse effects.”
3
Lorraine Camacho, who still resided at the location,
happened not to be home.
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glass pipe contained methamphetamine, and the bag appeared
to be used to package tar heroin.4
Marilyn Priem, a detective with the Oceanside Police
Department, searched one of the bedrooms in the house. Priem
saw a vacuum cleaner inside a closet and detected a hard object
inside the vacuum bag. Believing the object to have been too
large for a vacuum cleaner to have naturally suctioned up,
Priem “unzipped the outer portion of the bag” and saw that the
inner dust collection bag had been either torn or cut open. Inside
was a magazine containing bullets, next to which was “the back
end of a . . . Glock 17 gun.” Priem believed that both the
magazine and gun were “placed very carefully” rather than
“thrown in” the vacuum bag because “they were almost level
with [each other and had] almost the same amount of dust
surrounding [them].” After these two items were removed,
police personnel discovered a Ruger pistol inside the same
vacuum bag.
Officers also searched the blue Toyota that defendant had
been driving when he was stopped by Officer Zeppetella. John
Morgans, an investigator for the Oceanside Police Department,
processed the vehicle. Of relevance, Morgans recounted that he
found a blue nylon bag on the front passenger seat. Inside the
4
The items were sent for chemical testing. Although
laboratory work confirmed that the glass pipe contained
methamphetamine, it could not detect heroin from the baggie.
The criminalist who testified concerning the results explained
that heroin is “highly soluble” in water. As such, if a bindle
containing heroin was left in a toilet sometime between “5:00 in
the afternoon and 9:15 to 9:30 at night” and the bindle was not
recovered “out of the toilet until sometime after 4 or 5 o’clock the
next morning,” that could have “an impact on [the] ability to
detect . . . heroin.”
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bag were “tweezers, scissors, small jeweler’s bags, which are
used to package narcotics,” “small cotton swabs that are
generally used to dip into a substance that’s been heated up to
inject,” small plastic and metal spoons, two syringes, “a small
little ziploc bag that contained . . . some residue,” and small
glass vials, again, with residue. Morgans also testified that he
found a cell phone.
Finally, officers searched the house that defendant shared
with his wife, Stacey Camacho. Christopher Carnahan, another
Oceanside police officer, testified that both drug paraphernalia
and ammunition were found in the house. The police uncovered
plastic bags containing substances that looked like marijuana,
methamphetamine, and heroin, as well as spoons and pills.5
Carnahan was “an experienced narcotics detective,” and he
testified that the narcotics recovered from the Toyota and the
house were possessed not for “simple use” but for sale.
c. Expert testimony at trial
The prosecution in its case in chief presented various
experts, including that of a medical examiner and a crime scene
reconstruction expert. The medical examiner, Dr. Bethann
Schaber, performed an autopsy on Officer Zeppetella’s body “to
determine the cause and manner of [his] death” and testified as
follows.
Officer Zeppetella suffered 13 “penetrating and
perforating gunshot wounds.”6 Of these, two were fatal. The
5
Many of the items seized from the house were sent to a
laboratory for testing and tested positive for heroin.
6
There appears to have been two additional shots that
grazed the officer but did not enter his body.
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first fatal shot entered the victim’s chest, “traveled from front to
back,” and remained lodged in his neck and back. In moving
through the body, the bullet fractured the clavicle and
perforated the “right internal jugular vein and the right common
carotid artery,” “two large blood vessels supplying the head.”
The second fatal shot entered the officer’s back. “The bullet
travel[ed] through the body, perforating fat around the kidney,
perforating the diaphragm or the muscle between the chest and
abdominal cavity that allows people to breath. It then
perforate[d] the spleen and is lodged in the . . . chest below the
nipple.”
In addition to these injuries, Officer Zeppetella sustained
gunshot wounds to the neck, back, left arm, right arm, right
elbow, right hand, right thumb and wrist,7 thigh, and buttock.
He also sustained “four separate lacerations or tears in the scalp
resulting from blunt force injury.” These injuries were
consistent with Pallos’s testimony that defendant struck the
officer in the head with defendant’s gun.
The crime scene reconstruction expert, Rodney Englert,
related his opinion based on reports by others, his own
examination of the physical evidence, and a synthesis of
eyewitnesses’ accounts. Although Englert was not able to
pinpoint the exact sequence of shots, he was able to reconstruct
the following details regarding the shooting. Defendant fired
16 shots from his Ruger pistol, emptying the gun; of these,
7
Other testimony indicated that Officer Zeppetella held his
firearm in his right hand. The bullet that entered his right arm
fractured the officer’s humerus, the bone connecting his
shoulder to the elbow. The bullet through the thumb fractured
the ulna, one of the two bones in the wrist.
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11 struck Officer Zeppetella. Officer Zeppetella, in turn,
discharged his gun 14 times, hitting defendant once. In the
initial volley of shots, defendant fired his gun five times, hitting
the officer in the chest, neck, and right thumb and wrist.
Defendant fired the first fatal shot — the one that entered the
officer’s chest — in this burst of gunfire. During the subsequent
exchange of gunfire (when the officer had begun firing back),
defendant hit the officer another eight times, breaking his
shooting arm. After Officer Zeppetella attempted to crawl away,
defendant beat the officer, causing the head wounds observed by
the medical examiner. Defendant then seized Officer
Zeppetella’s Glock handgun and shot at him another four times,
emptying this firearm as well. One of these shots was the fatal
shot that entered through the officer’s back and perforated his
diaphragm and spleen.
2. Defense case
a. Testimony regarding defendant’s behavior
prior to the shooting
At trial, defendant argued that he suffered from a
diminished mental state at the time of the shooting due to his
use of drugs. To support his case, defendant introduced the
testimony of his wife, coworkers, and neighbor — witnesses who
recounted defendant’s addiction to heroin and his behavior prior
to the shooting.
Defendant’s wife, Stacey Camacho, testified that she had
known her husband for about ten years. Defendant was
addicted to heroin that entire time. Sometime in March or April
of 2002, Stacey arranged for defendant to begin seeing a
psychiatrist, Dr. Dennis Ordas. From 2002 to 2003, defendant’s
health was deteriorating. He “was going to rehab” and
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“methadone clinics.” At some point after he began seeing
Dr. Ordas, defendant was hospitalized at Aurora Hospital, “a
behavioral health center.” There he was prescribed Paxil, which
he continued to take until the day of the shooting. Between May
2002 and June 2003, defendant was hospitalized “five or six
times.” According to Stacey, defendant was “suicidal,” “had been
very depressed for a while,” and “was trying to stay off drugs,”
but “he said he couldn’t handle it anymore.”
Defense counsel also questioned Stacey concerning
whether there were “any times . . . when [defendant] exhibited
bizarre behavior [toward her].” Stacey answered affirmatively
and volunteered as examples the fact that defendant “would
hear voices that nobody else would hear” and “he always thought
that people were coming to the door, so he constantly was
staring [out] the window.” When asked if “there [was] a time
when he thought suspicious[ly]” of her, Stacey responded that
sometimes when she “wore a headband,” defendant “would grab
it” and “cut it up” or tell her that she had “wires in [her]
headbands” and was “trying to watch him.” Likewise, defendant
“thought [she] had hidden cameras in” her platform shoes.8
Regarding the shooting, Stacey told the jury that
defendant called her at work sometime after 5:00 p.m. on
June 13, 2003. Defendant sounded “real scared” and
“hysterical.” He said “he was at [her] mom’s house and that a
police officer was hurt, and he wanted to die.” On direct
examination, Stacey testified that defendant did not tell her
8
Due to the phrasing of defense counsel’s questions (“were
there any times” “was there a time”), it is difficult to ascertain
when defendant “exhibited [the] bizarre behavior” Stacey
recounted.
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“how or why or what happened to the police officer,” that he did
not tell her that “he shot a police officer and a police officer shot
him,” but merely that “he hurt a police officer.” After speaking
to defendant, Stacey called her mother, Lorraine Camacho,
relating that defendant was “at her house,” “really upset,” and
that she (Lorraine) needed “to go home.”
Stacey also left work and drove to Lorraine’s home. She
thought defendant “was going to kill himself.” Stacey
cooperated with law enforcement personnel she encountered
around her mother’s residence. After defendant surrendered
and received medical care, Stacey was able to talk to him at the
Oceanside police station. In contrast to the medical personnel’s
observations, Stacey thought her husband was far from coherent
or “clear headed” — “he was mumbling things,” “wasn’t making
any sense,” “was crying,” and still saying that “he wants to die.”
On cross-examination, Stacey agreed with the prosecutor’s
description of her conversation with her mother, some of which
was inconsistent with her testimony on direct examination. For
instance, the prosecutor asked if Stacey told her mother “words
to the effect of, you know, the defendant called me — or
whatever words you used — and he got scared and he shot a cop,
and the cop shot him and you know — and he took off, words to
that effect to your mother.” Stacey responded, “right.”
Lorraine Camacho corroborated parts of Stacey’s
testimony. Lorraine stated that Stacey called her on the
afternoon in question and “was very hysterical” and “crying.”
After speaking to Stacey, Lorraine immediately went home.
Like Stacey, Lorraine encountered law enforcement
surrounding her home and cooperated with them.
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When questioned by the prosecution, Lorraine admitted
that she had given statements to the police that either conflicted
with certain details in her daughter’s testimony or tended to
incriminate defendant. For example, Lorraine stated Stacey
told her that, during the telephone conversations she (Stacey
had with defendant, defendant told her, “I was speeding,” “got
pulled over in a traffic stop,” and “got scared.” Furthermore,
“the essence” of what defendant told Stacey, as Stacey related to
Lorraine, was that defendant “got scared, shot a cop, [and] a cop
shot him in the leg.” Although at trial Lorraine asserted she did
not remember saying so, in an audiotaped statement to the
police Lorraine had recounted that defendant told Stacey “he
shot a cop, and he got shot in the leg, and he — he went to your
house cause that’s the only place he could think of to hide
because it was right around there — or words to that effect.”
The defense also called to the stand two of defendant’s
coworkers, David Bates and Lonnie Roybal, and a neighbor,
Walter Priest. Bates testified that other employees told him
defendant had a drug problem. Bates also stated that
approximately a month before the shooting defendant stopped
showing up to work at his construction job. Defendant’s other
coworker, Roybal, testified that he knew about defendant’s drug
problem both because defendant confided to him about that, and
because Roybal observed behavior from defendant such as
“nodding out in the mornings.”
Walter Priest, who lived in the same mobile home complex
as defendant and Stacey, testified that he saw defendant driving
by between 2:30 and 3:00 p.m. on the day of the shooting. Priest
thought defendant’s behavior was unusual because he “stared a
lot,” looked like he was suspicious, and did not offer a “friendly
neighbor wave.”
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In response to Stacey’s testimony, the prosecution called
California Highway Patrol Officer William Grant. Grant had
assisted with directing traffic around Lorraine’s house on the
day of the shooting. When Stacey attempted to reach defendant
by driving to the residence, Grant stopped her, because no traffic
was allowed in or out of the area. Grant recounted that when
he talked to Stacey, she volunteered her husband had conveyed
that he shot a police officer, “that he wasn’t going to go back to
prison and that he was going to kill himself.”
b. Expert testimony at trial
In addition to the lay witnesses, the defense introduced
the testimony of two experts, psychiatrists Dennis Ordas and
Pablo Stewart. Ordas maintained a private practice and worked
at the Vista Detention Facility. Defendant had been one of
Ordas’s patients at his private clinic for about a year by the time
of Officer Zeppetella’s shooting. When Stacey first brought
defendant to Ordas in April 2002, defendant was addicted to
heroin and wanted help. During the next year, Ordas saw
defendant about 18 times. Defendant “struggle[d]” with his
addiction, trying to quit and relapsing, with “his longest clean
period [being] about ten days.”
On March 18, 2003, Dr. Ordas received a telephone
message from defendant. The message, as taken down by the
doctor’s secretary, said, “ ‘Please call. Hearing buzzing in
head.’ ” Ordas called defendant and scheduled an appointment
for two days later. When Ordas saw defendant at the
appointment, defendant told him that he had been “living on the
streets for a few weeks.” Defendant also conveyed that he “was
back to using more heroin, and he had actually done a small
amount of crystal meth.”
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On June 13, 2003, Dr. Ordas received telephone calls from
Stacey and law enforcement. Both informed him about the
events of the shooting, that defendant “was holed up in a house,
and [the Oceanside Police Department] wanted to see if [Ordas]
would attempt to talk him out of the house.” Ordas declined.
However, because of his work at the jail, Ordas did see
defendant the next day. Ordas’s impression was that defendant
was “mentally beat up” and suffering from “confusion about
what had just happened.” Defendant himself told the doctor
that he was “ ‘out of it.’ ”
When defendant was held at the jail, Dr. Ordas oversaw
his mental health care. Ordas believed defendant was
experiencing “traumatic recalls or intrusive thoughts” about the
events surrounding the shooting. Defendant reported having
nightmares, and Ordas prescribed him medications to help with
his anxiety, inability to sleep, and nightmares.
To lay groundwork for later testimony by Dr. Stewart, the
defense asked Dr. Ordas about methamphetamine-induced
psychosis. Ordas confirmed that such a condition is listed in the
Diagnostic and Statistical Manual of Mental Disorders and gave
a description of the condition. The defense then inquired about
the chemical makeup of Paxil and if “it might be similar to
methamphetamine.” Ordas responded “no,” but that “[t]here is
some literature that suggests that Paxil and methamphetamine
may compete at a similar receptor site in the liver.”
The defense also explored with Dr. Ordas defendant’s use
of Paxil. Ordas confirmed that defendant was prescribed the
medication during his visit at Aurora Hospital in 2002 and
Ordas “continued it [the prescription] when [defendant] came to
see me.” In fact, Ordas increased the dosage of the medication
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to treat defendant’s depression. On March 20, 2003 — the date
when
defendant
told
Ordas
that
he
was
using
methamphetamine — Ordas prescribed defendant Paxil,
keeping the dosage of the drug the same but changing the
formulation of the medicine to “sustained release” so that the
active chemical released “throughout the day” instead of in “one
solid hit.”
Picking up on the topic of Paxil and methamphetamine,
the prosecution solicited from Dr. Ordas the view that he was
“comfortable giving the Paxil knowing [defendant] was taking
some meth with his heroin.” Ordas further volunteered that
such treatment is “fairly common.”
The prosecution inquired about the diagnoses that
Dr. Ordas made of defendant based on his provision of care
when defendant was in the jail. Ordas stated he diagnosed
defendant with heroin dependence, methamphetamine
dependence, depression, and antisocial personality disorder.
The prosecution verified that Ordas was not expressing an
opinion that defendant had a “methamphetamine-induced
psychotic episode on June 13th, 2003.” Ordas responded,
“I would not be qualified to say that. I wasn’t there.”
The defense’s principal expert was a psychiatrist,
Dr. Stewart, who, unlike Dr. Ordas, did opine that defendant
had methamphetamine-induced psychosis during the shooting
of Officer Zeppetella. In arriving at his diagnosis, Stewart
reviewed defendant’s medical records, interviewed his family
members, and talked to defendant. Stewart diagnosed
defendant with heroin and methamphetamine abuse. He noted
that these diagnoses were the same diagnoses defendant
received at Aurora Hospital in 2002. Stewart further noted that
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defendant was prescribed Paxil by the staff at Aurora Hospital
and that in March 2003 he was transitioned to a controlled
release form of Paxil. In Stewart’s opinion, being on a controlled
release form of Paxil was comparable to receiving an increased
dosage of the drug because the drug would stay in the body for
longer.
In addition to the above diagnosis, Dr. Stewart opined that
in June 2003 defendant suffered from two other mental
disorders: (1) substance intoxication delirium, with the relevant
substances being “the mixture of methamphetamine and Paxil,
and
. . .
a
contribution
from
the
heroin,”
and
(2) methamphetamine-induced psychotic disorder. Regarding
the first diagnosis, Stewart explained that delirium is like “a
short-lived dementia.” A delirious person “may not be fully
aware of [the environment],” or “fully cognizant of things going
on,” and may have “memory problems” and “perceptual
disturbances where [the person is] misinterpreting the
intentions and . . . behavior of others.” Such delirium is “short
lived” and may “wax and wane.” Substance intoxication
delirium means that the delirium is “related to the use of
substances,” in this case “methamphetamine and the
antidepressant Paxil.”
Dr. Stewart supported his diagnosis by explaining the
biochemistry of the substances involved, followed by
observations about defendant’s behavior. Regarding the
biochemistry of Paxil and methamphetamine, Stewart
explained that Paxil works in the body “basically the same [way]
. . . methamphetamine works.” This means that “one drug Paxil
plus one drug methamphetamine doesn’t equal two”; instead,
the effect of the drugs is “multiplied so [the individual] get[s] a
much greater effect from the mixing of these two drugs.” In
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addition, an enzyme in the liver, called 2D6, which metabolizes
methamphetamine, is inhibited by Paxil. This results in the
body “seeing more methamphetamine.” Having both Paxil and
methamphetamine in the system brings about “changes of
consciousness, [and] cognitive problems” or substance
intoxication delirium.
Such delirium, Dr. Stewart testified, “overlap[s]” with his
second diagnosis — that defendant was experiencing
methamphetamine-induced psychotic disorder. A person
suffering from this disorder has “psychotic symptoms,
hallucinations or delusions, . . . that are temporally related to
the use of the substance.” Examples of psychotic symptoms are
“auditory, [or] visual hallucinations” and “paranoid delusions.”
Stewart identified the following as evidence that defendant was
experiencing psychotic symptoms: the “buzzing in his head” as
reported to Dr. Ordas; defendant’s belief, as related by Stacey
Camacho, that Stacey had cameras in her platform shoes and
wires in her headband; and Stacey’s testimony that defendant
was hearing people coming up to his door “when in fact they
really weren’t.”
Turning to the events on the day of the shooting,
Dr. Stewart opined that defendant’s behavior corresponded to
his “having both of these conditions” and exhibiting “clouded
consciousness,
cognitive
problems,
[and]
perceptual
disturbances” during the encounter with Officer Zeppetella.
Stewart characterized the shooting as a “bizarre killing” that
occurred in the middle of the afternoon, when it was “bright out”
and there were “a lot of people around.” In Stewart’s opinion,
defendant displayed a “lack of . . . awareness of all these
witnesses that were around him” and engaged in a “single-
minded” act of shooting the officer. Moreover, defendant acted
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“odd[ly]” in stealing the police car when “there were plenty of . . .
civilian vehicles that were readily available to him if in fact he
was choosing to [escape].”
When asked if delirium and psychosis due to intoxication
were consistent with witnesses’ testimony regarding
defendant’s conduct preceding and following the shooting,
Dr. Stewart answered affirmatively. For example, defense
counsel asked, “when the police removed [defendant] from the
home [of Lorraine Camacho], he said he blacked out and didn’t
know what the officer did to set him off, and he wanted to kill
himself . . . are those statements consistent or inconsistent with
. . . the diagnoses you’ve described?” Stewart responded, “You
certainly can see types of behavior like that, given these
particular diagnoses that we’ve been discussing today.”
Anticipating the prosecution’s questions, defense counsel
queried if some of defendant’s seemingly purposeful behavior
was consistent with delirium and psychosis. Dr. Stewart replied
that due to the fluctuating nature of the conditions, defendant
“could have moments of lucidity followed by moments of
confusion.” Moreover, “[t]hings that appear to be purposeful”
(i.e., that defendant “gets in the police car,” “drives away,” “gets
weapons and puts them in a vacuum cleaner bag”) do not “rule
out the presence of a delirium diagnosis” because one “can’t tell
[delirium] from just looking at the behavior.”
The prosecution cross-examined Dr. Stewart at length,
focusing on the fact that there were “between 16 and 17,000
pages” of documents in the case, out of which Stewart reviewed
only 20 items. Those 20 items were provided to Stewart by the
defense, and Stewart did not request any additional documents.
In particular, Stewart did not review statements given to the
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police by Lorraine Camacho; he did not read letters that
defendant wrote while he was in jail even though Stewart had
testified in a prior matter that “the writings of the person who
[he] was assessing” were important; and he did not write a
report documenting his opinion despite having done so in prior
cases and knowing that “when [he has written such reports, he
was] cross-examined on the contents of the report.”
The prosecutor also questioned the basis of Dr. Stewart’s
opinion concerning biochemistry and the effect of combining
Paxil and methamphetamine. Stewart had produced to the
prosecution the abstracts of about two dozen articles, identified
as the sources on which he based his opinion. The prosecutor
asked, and Stewart agreed, that none of the articles concerned
Paxil, methamphetamine, and their effects on human beings.
Focusing on the one abstract documenting the function of the
enzyme 2D6 that Stewart had testified is inhibited by Paxil, the
prosecutor first elicited an acknowledgment that the article was
“one of the main” articles “supporting [Stewart’s] theory about
what happened in this case.” The prosecutor then elicited from
Stewart the concession that he had not actually read the article,
but only the abstract. Furthermore, Stewart could not recall
whether the article had concluded that the increase in
concentration of a key chemical because of 2D6 inhibition was
“small.” Likewise, Stewart did not remember whether the
article had concluded that there were “parallel enzymes” that
could help to metabolize chemicals when 2D6 was inhibited.
Of the letters that the prosecution mentioned to
Dr. Stewart, two were introduced into evidence at trial.
Defendant had written these letters when he was in custody
facing charges in the present case. As part of its attempt to
rebut the defense theory that defendant’s shooting and killing of
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Officer Zeppetella was explained by drugs and no other motives
or factors, the prosecutor used the letters to argue that
defendant harbored animus toward law enforcement.
To further rebut Dr. Stewart’s testimony, the prosecution
called its own expert, Dr. Daryl Matthews, a board-certified
forensic psychiatrist. Matthews stated that he had prepared a
written report laying out his opinion concerning this case. He
confirmed that in connection with the preparation of the report,
he received from the prosecution 16 to 17,000 pages of
documents. He further articulated that if the prosecution had
“pick[ed] and cho[]se[n] among the material that [it] sent him,”
his work would have been compromised and he would have
insisted that the prosecution give him the entire corpus of
materials.
Dr. Matthews stated that on June 13, 2003, defendant
suffered opioid dependence and antisocial personality disorder.
In exploring Dr. Matthews’s opinion, the prosecutor asked a
series of leading questions to conform the doctor’s testimony to
the parameters the trial court had imposed, which limited
discussion of hearsay information the doctor relied on in
reaching his conclusions. Matthews enumerated the diagnostic
criteria for antisocial personality disorder and explained that
defendant met those criteria. The most relevant parts of his
testimony, however, concerned areas in which he disagreed with
Dr. Stewart.
Dr. Matthews briefly reviewed the diagnostic criteria
pertaining to delirium, emphasizing that “the essential feature”
is a disturbance in consciousness, or a drop in a person’s
alertness, accompanied by an impairment in attention —
specifically “the ability to focus, sustain or shift attention.” This
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means that a delirious person cannot “pay attention very closely
to something, to handle this task, then go do that task, then
come back to the original task, [or] to pay long attention to any
task.”
Next, Dr. Matthews explained that to determine whether
defendant experienced delirium or psychosis when he shot
Officer Zeppetella, it was important to focus on defendant’s
behavior “close to the time [of] the incident.” Matthews
cautioned that the “mental wherewithal for any particular
action is not the basis for deciding [whether a person is
impaired]”; instead “it’s looking at the whole pattern of
interactions over a period of time” that allows one to make a
diagnosis.
Dr. Matthews then examined defendant’s actions on
June 13, 2003, and concluded that they showed defendant was
not suffering from delirium during the relevant events. For
example, in summarizing defendant’s interaction with Officer
Zeppetella during the traffic stop, Mathews observed that
defendant was able to converse with the officer and present
some sort of documentation. Such actions require “recognizing
that it’s a police officer and answering appropriately,”
appreciating that the documentation “was requested, know[ing]
where it is in your car, get[ting] it, [and] giv[ing] it to the
[officer].” The shooting itself indicated corresponding mental
skills. For instance, defendant’s action in taking the officer’s
gun required “recognizing that you don’t have any more bullets,
that [the] person is not yet dead, that they need more things to
happen to render them that way, making the decision to [obtain
the gun], then locating the appropriate object and being able to
use it properly.” Matthews also placed significance on
defendant’s action in fleeing the scene, observing that the
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conduct implicated “the recognition that . . . he needed to get
away, . . . and then to recognize that there are better ways of
fleeing than just running, and recognizing that the car he
brought wasn’t available to him because it was blocked, and
then understanding that he could get away using the police
vehicle, getting into a strange vehicle, . . . operating it in reverse
and maneuvering it successfully out of a parking [lot] and into a
street.” These acts, Matthews continued, “may seem like simple
things,” but undertaking them “requires visuospatial abilities”
and the capacity “to pay attention to where you’re going, not just
drive randomly into a post or make a wrong turn, but to pick a
destination, select it and then get there.” Such conduct, he
asserted, is not consistent with delirium.
Turning to Dr. Stewart’s diagnosis of methamphetamine-
induced psychosis, Dr. Matthews stated that defendant did not
suffer from any such psychosis. Focusing on defendant’s
behavior after he reached Lorraine’s house, Matthews noted
that defendant was able to locate a telephone, call his wife, talk
to her, and describe what happened. Likewise, defendant’s
placement of the guns inside the vacuum cleaner was
“significant” because “it involves recognizing that having those
things around could get him in serious trouble” and taking
“careful steps” to hide the weapons and “avoid being
apprehended.” When asked about defendant’s statements
“ ‘I don’t want to go back to prison,’ ” and “ ‘I’m going to kill
myself,’ ” Matthews opined that “those are statements made by
someone who knows what’s going on around him and . . . doesn’t
have any delusions or false beliefs, doesn’t have any difficulty
communicating and that reflect normal motivation, normal
response, normal recognition of his environment.” Addressing
the writing in blood on the walls and the fact that defendant cut
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his wrists, Matthews admitted using blood was “kind of
dramatic” but the writing showed that defendant was able to
remember the name of his doctor and write it correctly.
Regarding defendant’s self-harm, Matthews noted that people
with personality disorders — and according to the doctor,
defendant had antisocial personality disorder — make such
suicide gestures “to bring attention to themselves,” “to show how
much they’re suffering,” or “to divert attention from other
problems that they’ve created.”
Dr. Matthews gave similar testimony regarding
defendant’s actions in surrendering and his demeanor as
observed by medical personnel. For example, Matthews stated
that, unlike defendant, “people who are delirious would not
know their surrounding[s] and would not be able to answer
questions intelligently and give a good medical history and
behave cooperatively. They are prevented from doing that by
their diminished level of consciousness and by their inability to
pay attention.”
On cross-examination, Dr. Matthews was asked if certain
behavior “could be evidence of psychotic delusion.” The
behavior, as described, was “believing someone had wires in
their headband that were monitoring your behavior,” taking the
headband and cutting it up, “believing someone had hidden
cameras in their platform shoes that could possibly spy on you,”
and “hearing foot falls on the steps outside the door, fearing
people coming when no one’s there.” Matthews answered that
such conduct was consistent with psychotic thinking. On
redirect examination, however, Matthews clarified that such
behavior “alone, would [not] mean that you’re psychotic.”
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3. Competing theories of the crime
Based on the foregoing evidence, the defense argued that
drug intoxication caused defendant’s shooting and killing of
Officer Zeppetella. The defense emphasized defendant’s
addiction, his hospitalizations, and the fact that his blood
showed “toxic” levels of drugs on the day of the shooting.
Relying on Dr. Stewart’s testimony, counsel argued that
defendant suffered from drug-induced delirium and psychosis
during the relevant events. In support, counsel highlighted
evidence of such a diagnosis, including Stacey’s report of
defendant’s “psychotic symptoms,” Dr. Ordas’s observations of
defendant’s confusion after the shooting, defendant’s single-
minded and bizarre conduct during the shooting, and his
statements afterward. Ultimately, counsel urged the jury not to
convict defendant of the more serious crimes — first degree
murder, second degree murder, or voluntary manslaughter —
because, it was asserted, the prosecution failed to prove beyond
a reasonable doubt that defendant, delirious and psychotic,
acted with the mental states required for those crimes.
The prosecution, on the other hand, theorized that the
killing of Officer Zeppetella constituted a premeditated and
deliberate first degree murder that defendant perpetrated to
avoid arrest. The prosecution pointed out that defendant had
reason to fear arrest because he had drugs and a stolen gun in
the car but no driver’s license.9 The prosecution highlighted
9
The parties stipulated that defendant had felony
convictions, making him a felon in possession of a firearm. The
parties likewise stipulated that the Department of Motor
Vehicles had not issued a license under any of the names or
aliases defendant used.
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details of the crime that, in its view, reflected mental alertness
and accurate perceptions of reality that were inconsistent with
an altered mental state like delirium or psychosis. For example,
the prosecution emphasized defendant’s marksmanship, how he
was able to hit Officer Zeppetella multiple times, landing both
fatal shots and shots that disabled the officer’s shooting arm;
defendant’s ability to divide his attention — to watch the officer
to see if he was still moving, and then shift his attention to
securing a getaway vehicle; defendant’s rational decision to
break into Lorraine Camacho’s house via a back door because
defendant was “much less likely to be seen . . . doing it from the
backyard.” The prosecution summarized its case as one in which
the perpetrator was “a dope-selling, armed, dope user . . . in
command of his faculties . . . who gunned down an officer”
because he had a “stolen gun, [and] no driver’s license.”
At the conclusion of the guilt phase, the jury found
defendant guilty of first degree murder and found true the
special circumstance allegations.
B. Evidence at the Penalty Phase
1. Prosecution case
The prosecution introduced victim impact evidence in the
form of testimony from Officer Zeppetella’s wife, his father, and
a colleague from the Oceanside Police Department.
Detective Marilyn Priem testified that she was Officer
Zeppetella’s field training officer.10 From February through
March of 2003 — just before Officer Zeppetella began patrolling
in his own car — Priem rode with him ten hours a day, four days
10
Priem was the individual who discovered Officer
Zeppetella’s firearm in a vacuum cleaner.
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a week. Priem said the developing police officer was “very
caring,” “good-hearted,” and “compassionate with people.”
Officer Zeppetella’s death left “a big hole in the [Oceanside
Police] Department.”
Officer Zeppetella’s father, Tony Mario Zeppetella
(“Mr. Zeppetella”), told the jury of his son’s upbringing.
Mr. Zeppetella testified that Officer Zeppetella was the
youngest of three children and especially close to his mother.
Growing up, Officer Zeppetella was a “good kid” and “the joy of
[his parents’] life.” When contemplating attending college,
Officer Zeppetella told his parents he would join the Navy so
they would not have to pay for his education. After serving in
the Navy, Officer Zeppetella decided to become a police officer
because he “wanted to help people.” He graduated from the
police academy in October 2002. The week before he was killed,
he visited his parents and told them he was looking forward to
Father’s Day, noting that it would be the first that he would be
celebrating as a father himself. When Mr. Zeppetella and his
wife received news that Officer Zeppetella was killed, “it felt like
somebody killed us, also.” Officer Zeppetella’s mother “lost the
will to live” and now “every day, she’s at the cemetery.”
Officer Zeppetella’s widow, Jamie Zeppetella (“Jamie”),
testified about the couple’s life together. Jamie met him in
January 2002. “Within the first week” she knew “he was the
person I wanted to spend the rest of my life with.” The couple
got married in May 2002. In December 2002, shortly after
Officer Zeppetella graduated from the police academy, the
couple had their son, Jakob. Officer Zeppetella was a “very
involved” father, and on the day he was killed, he spent time in
the morning with Jakob before heading to work. When Jamie
found out later that afternoon that her husband had died, she
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“started screaming,” “went into . . . a state of shock, and didn’t
want to talk to anybody.” Jamie believed that her husband’s
death had an impact on six-month old Jakob, who now has to
grow up without his father. Jamie believed that her own “goals
and hopes” that she had for her family were “gone.”
In addition to the victim impact evidence, the parties
stipulated defendant had four prior felony convictions. Two
involved possession of controlled substances, one involved
possession of a firearm by a felon, and the other was for driving
in willful or wanton disregard for safety of persons or property
while fleeing from a pursuing police officer.
2. Defense case
The defense’s case in mitigation consisted of testimony by
defendant’s wife, mother, and an emergency room doctor, Karen
Van Hoesen. Dr. Van Hoesen told the jury that, based on the
medical records she reviewed, defendant’s self-inflicted
lacerations on his arms were “full thickness” lacerations, or “the
most severe” of lacerations. She also testified concerning
defendant’s blood loss, stating that defendant’s hematocrit level,
or “the amount of red blood cells . . . in [the] body,” was “lower
than what is expected to be normal.” Finally, Van Hoesen stated
that the blood found in the bathtub and scrawled as writing on
the wall was “consistent with the blood loss” from defendant’s
self-inflicted wounds. On cross-examination, Van Hoesen
conceded that the description of defendant’s lacerations as being
“full thickness” was recorded only in the paramedic’s report —
not the treating physician’s (Dr. Dandan’s) — and that, in any
event, the injuries were not life-threatening.
Diana Gil, defendant’s mother, told the jury that
defendant was the second of her five children. Defendant spent
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the first years of his life with his grandparents at the Daley
Ranch in Escondido, where his grandfather worked as a
caretaker. Gil confirmed that a picture the defense showed was
of her son at the age of 15. Gil pointed out various people
(defendant’s grandfather, grandmother, and oldest brother) who
were in the gallery during her testimony. Finally, Gil said that
she was at defendant’s trial because she “love[s] [her] son.”
Stacey Camacho again testified on her husband’s behalf.
She related that she and defendant met in 1996 and that they
married the next year. They had two children together, Alexis
and Anthony, who were six and seven years old. After providing
more biographical details, Stacey narrated for the jury a number
of pictures showing defendant with herself, Alexis, Anthony, or
his coworkers. Like with defendant’s mother, defense counsel
ended by asking if Stacey still loved defendant. Stacey said she
did. She also said that his children still loved him.
II. DISCUSSION
A. Guilt Phase Issues
1. Verdin error
a. Background
Approximately ten months before trial began, the
prosecution filed a motion seeking a court order requiring
defendant to submit to psychiatric examination by professionals
of the People’s choosing for the purpose of rebutting defendant’s
anticipated mental state defense. The trial court denied the
request as premature because the defense had not directly
placed his mental state at issue. Citing People v. Danis (1973
31 Cal.App.3d 782 (Danis), however, the court indicated that if
defense counsel “present expert witnesses regarding mental
health issues, [the prosecution] is going be entitled to . . . have
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your client examined.” (See Danis, supra, 31 Cal.App.3d at
p. 786 [“even in the absence of an authorizing statute, a trial
court possesses the inherent power to order a defendant who has
imposed a defense of insanity or of diminished capacity to
submit to an examination of a psychiatrist selected by the
People”], disapproved in Verdin v. Superior Court (2008
43 Cal.4th 1096 (Verdin).
In August 2005, after defense counsel indicated that
Dr. Stewart would be rendering a medical opinion on
defendant’s behalf, the court stated that it would sign a “Danis
order,” allowing the prosecution to conduct a psychiatric
evaluation of defendant. Defendant objected to the order on
statutory and Fifth Amendment grounds. About a month later,
defense counsel informed the court that defendant would be
refusing to submit to the court’s order. Although defendant’s
attorney told the court that defendant was refusing to comply
on the advice of counsel, the court elicited a personal statement
from defendant that he was declining to cooperate with an
examination. The court accepted defendant’s refusal to obey its
order but, citing People v. Carpenter (1997) 15 Cal.4th 312
(Carpenter), told the parties that “the court will be instructing
the jury that [defendant] has refused.”
During his testimony, Dr. Matthews — the prosecution’s
forensic psychiatrist — testified that defendant declined an
interview with him. Immediately after this statement,
Matthews explained the difference between forensic and clinical
psychiatry. According to Matthews, forensic psychiatrists do
not see “patients” and are not involved in treatment; instead,
they perform examinations on “evaluee[s]” with the goal of
“learn[ing] enough about the situation so that [they] can be of
service in some way to the judicial system.” Furthermore, a
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forensic psychiatrist is “trained to make decisions largely from
documentary evidence” and does not depend on “see[ing] the
patient.” Matthews also admitted that when he had gone to the
jail seeking to examine defendant, he brought four questions
prepared by the prosecution.
Dr. Stewart, the defense expert, echoed Dr. Matthews’s
statement that interviews with defendant were not pivotal to his
opinion. Stewart acknowledged that, unlike with Matthews,
defendant did cooperate with his (Stewart’s) efforts to examine
him, and Stewart interviewed defendant twice. Stewart
nonetheless told the jury that “taking away any interview [he]
did with the defendant” would not change his opinion.
Both the prosecution and defense referenced defendant’s
refusal to be examined by Dr. Matthews during closing
arguments. In discussing the testimony of Dr. Stewart, the
prosecution criticized the expert for failing to take notes,
forgoing a written report, and withholding his opinion until the
last minute. The prosecution called such conduct — along with
defendant’s “refus[al] [of] a court-ordered exam” — “game
playing” and said that such behavior “stinks.”
In response, the defense explained why defendant
declined to be interviewed by Dr. Matthews. Emphasizing that
Matthews was a forensic psychiatrist and not a clinician, the
defense counsel asked rhetorically, “Who would subject
themsel[ves] to this evaluation by Dr. Matthews, who doesn’t
perceive you as a client . . . [but] as an evaluee?” Characterizing
Matthews as someone who was “into it for 50 grand” — the
amount of money Matthews said he received as his
remuneration — the defense stated that Matthews’s “opinion is
not going to change” and as such, “nothing good was going to
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come of [the doctor meeting with defendant].” Finally,
referencing the court’s instruction regarding the refusal,
defense counsel urged the jury to think of it as “the punishment
for Mr. Camacho not [being] willing to participate in that
particular sham.”
The court’s instruction to the jurors read:
“Pursuant to California law, this court ordered the
defendant, ADRIAN J. CAMACHO, to submit to a
psychological examination by a doctor selected by
the prosecution. The defendant refused to be
examined or interviewed by him. If you find the
defendant’s refusal to answer questions or
participate in the mental examination willful, you
may take that fact into consideration when weighing
the defense’s expert opinions about the defendant’s
mental condition in this case. You may infer that
the defendant wanted only his self-chosen experts,
not others, to evaluate him.”
b. Analysis
As the trial judge’s comments indicate, at the time of
defendant’s trial “decisional law authorized trial courts to order
a defendant who placed his or her mental state in issue to
submit to mental examination by prosecution experts.” (People
v. Clark (2011) 52 Cal.4th 856, 939 (Clark).) In 2008, however,
this court held that such decisions did not survive the 1990
passage of Proposition 15. (Verdin, supra, 43 Cal.4th at
pp. 1102, 1106.) That proposition added section 1054 to the
Penal Code, which specifies that “no discovery shall occur in
criminal cases except as provided by this chapter, other express
statutory provisions, or as mandated by the Constitution of the
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United States.” (§ 1054, subd. (e).) Because “nothing in the
criminal discovery statutes (§ 1054 et seq.) authorizes a trial
court to issue an order” requiring a defendant who has mounted
a mental state defense to submit to an examination by
prosecution experts, we concluded in Verdin that trial courts
lacked the needed statutory authority to order such
examinations. (Verdin, supra, 43 Cal.4th at p. 1109.
The Legislature responded to our decision in Verdin by
enacting a statute expressly conferring such power on trial
judges. (See § 1054.3, subd. (b)(1) [“whenever a defendant in a
criminal action . . . places in issue his or her mental state . . .
through the proposed testimony of any mental health expert,
upon timely request by the prosecution, the court may order that
the defendant . . . submit to examination by a prosecution-
retained mental health expert”]; id., subd. (b)(2).) However, the
rule announced in Verdin continues to apply to trials — like
defendant’s — conducted before January 1, 2010, the effective
date of the newly enacted statute. (See People v. Gonzales (2011
51 Cal.4th 894, 927 (Gonzales); see also, e.g., People v. Banks
(2014) 59 Cal.4th 1113, 1193.
Because Verdin applies in this case, the trial court erred
in ordering defendant to be examined by Dr. Matthews,
admitting Matthews’s testimony that defendant refused to
submit to the examination, allowing the prosecution to comment
on such refusal during closing argument, and instructing the
jury that it could consider defendant’s refusal in considering
Dr. Stewart’s opinion. (See, e.g., Verdin, supra, 43 Cal.4th at
p. 1116 [finding the court’s order to be error]; People v. Wallace
(2008) 44 Cal.4th 1032, 1087 (Wallace) [“admission of [a
prosecution expert’s] testimony regarding defendant’s refusal to
cooperate with the court-ordered psychiatric examination was
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also error”]; Clark, supra, 52 Cal.4th at p. 940 [“comment on
[the] defendant’s refusal to be questioned” was error]; Gonzales,
supra, 51 Cal.4th at p. 929 [court’s instruction to the jury that
“it could consider [the defendant’s] refusal to be interviewed” by
a prosecution-retained expert was “infected by the Verdin
error”].) The question before us is whether such errors are so
prejudicial as to require reversal of defendant’s convictions.
The parties disagree about the standard under which
these Verdin errors are to be assessed for prejudice. Defendant
argues that these errors violated his federal constitutional
rights and therefore should be subjected to a “harmless beyond
a reasonable doubt” standard. (Chapman v. California (1967
386 U.S. 18, 24 (Chapman).) The People, on the other hand,
contend that “[t]he errors here involve state statutory law” and
should be analyzed under the lower reasonable probability
standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
Our case law supports the People’s position that Verdin
errors occurring at the guilt phase are assessed for prejudice
“under the [Watson] standard for state law error, [i.e.,] whether
there is a reasonable probability that the outcome of trial would
have been more favorable to [the] defendant” had the errors not
occurred. (Clark, supra, 52 Cal.4th at pp. 940–941; see also
People v. Hoyt (2020) 8 Cal.5th 892, 941–942 (Hoyt).) This is
because, in the circumstances here presented, a defendant does
not have a constitutional right to refuse to be examined.
A long line of authorities, from both this court and the
United States Supreme Court, establishes that the federal
Constitution does not bar the government from performing a
mental examination of a defendant “to rebut that defendant’s
presentation of expert testimony in support of a [mental state]
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Opinion of the Court by Cantil-Sakauye, C. J.
defense.” (Kansas v. Cheever (2013) 571 U.S. 87, 89–90 [“The
question here is whether the Fifth Amendment prohibits the
government from introducing evidence from a court-ordered
mental evaluation of a criminal defendant to rebut that
defendant’s presentation of expert testimony in support of a
defense of voluntary intoxication. We hold that it does not”]; see
also, e.g., People v. Nieves (2021) 11 Cal.5th 404, 436 (Nieves
[“Once [a] defendant place[s] [his or] her mental state at issue,
[he or] she waive[s] her Fifth and Sixth Amendment rights to
object to the prosecution examinations”]; Maldonado v. Superior
Court (2012) 53 Cal.4th 1112, 1132–1133 (Maldonado) [“by
electing to present [a mental state defense], [a defendant] will
waive his privilege against self-incrimination to the extent
necessary to support his claim and allow fair rebuttal. Forcing
him to this choice does not offend the Constitution”]; Clark,
supra, 52 Cal.4th at p. 940 [“Defendant cites no decision, and we
are aware of none, holding that the Fifth Amendment or any
other federal constitutional provision prohibits a court from
ordering a defendant who has placed his or her mental state in
issue to submit to a mental examination by a prosecution
expert”]; Gonzales, supra, 51 Cal.4th at p. 929 [“It is settled that
a defendant who makes an affirmative showing of his or her
mental condition by way of expert testimony waives his or her
Fifth and Sixth Amendment rights to object to examination by
a prosecution expert”]; accord Buchanan v. Kentucky (1987
483 U.S. 402, 422–423.) As such, although the trial court in this
case committed error under state law by ordering an
examination by the prosecution expert and allowing the jury to
learn of defendant’s refusal to be examined, this did not violate
defendant’s federal constitutional rights. We therefore analyze
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whether the court’s errors were prejudicial under the Watson
standard.11
Based on the totality of the circumstances, we conclude it
was not reasonably probable that the outcome of the trial would
have been more favorable to defendant had the errors not
occurred. Regarding the refusal, although Dr. Matthews
referenced the fact that defendant declined to be examined, he
did not use such refusal to criticize the defense expert’s opinion.
(Accord People v. Krebs (2019) 8 Cal.5th 265, 347 (Krebs
[finding harmless an expert’s disclosure of the fact that a
defendant declined to be interviewed when “the prosecution
expert . . . ‘did not rely on defendant’s refusal to participate in
11
To the extent defendant argues that the errors here
amounted to constitutional violations of his right to remain
silent — so-called Griffin or Doyle errors — he is mistaken.
(Griffin v. California (1965) 380 U.S. 609, 615 [“the Fifth
Amendment . . . forbids either comment by the prosecution on
the accused’s silence or instructions by the court that such
silence is evidence of guilt”]; Doyle v. Ohio (1976) 426 U.S. 610,
619 [“the use for impeachment purposes of petitioners’ silence,
at the time of arrest and after receiving Miranda warnings,
violated the Due Process Clause”].) Neither Griffin nor Doyle
addressed circumstances in which a defendant has waived his
privilege against self-incrimination by electing to put in issue
his mental state, and it is clear that “[a] criminal defendant, who
neither initiates a psychiatric evaluation nor attempts to
introduce any psychiatric evidence, may not be compelled to
respond to a psychiatrist if his statements can be used against
him at a capital sentencing proceeding.” (Estelle v. Smith (1981
451 U.S. 454, 468.
Furthermore, “[t]he same reasoning [explaining why we
find meritless defendant’s Fifth Amendment arguments] applies
to defendant’s claim that [his] Fourteenth Amendment right to
due process was violated.” (Gonzales, supra, 51 Cal.4th at
p. 929, fn. 18.
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the court-ordered examination’ to criticize his opponent’s
conclusions”]; Wallace, supra, 44 Cal.4th at p. 1087 [same].)12
Indeed, both the prosecution and defense experts stated that
interviews with defendant were not pivotal to their opinions.
Matthews testified that forensic psychiatrists such as himself
rely on documentary evidence to form their opinions, not
examinations of the individuals whose mental states they are
assessing. Dr. Stewart likewise stated that without defendant’s
interviews, he would still reach the conclusions he did. These
circumstances tend to reduce the likelihood that defendant was
prejudiced by Matthews’s comment regarding defendant’s
refusal to be interviewed. (Accord Clark, supra, 52 Cal.4th at
p. 941 [finding evidence of a defendant’s refusal to be
interviewed to be harmless when a prosecution expert “did not
suggest the fact that defendant refused . . . had any bearing on
his diagnosis” and “nothing in the record shows [the expert]
found any significance in defendant’s refusal to submit to an
examination”].
Similarly, the prosecution’s remarks on defendant’s
noncooperation were brief and not inflammatory. (Accord Krebs,
supra, 8 Cal.5th at p. 347 [holding that Verdin errors were
harmless despite “the prosecutor’s brief comments in closing
argument highlighting defendant’s refusal to submit to an
interview”].) The prosecution criticized various aspects of
Dr. Stewart’s methodology and included in that criticism
defendant’s refusal to meet with the prosecution expert. Some
12
“We applied the higher ‘reasonable possibility’ standard in
. . . Wallace [and Krebs], because the error in th[ose] case[s]
occurred at the penalty phase of a capital trial when the more
exacting standard applies.” (Clark, supra, 52 Cal.4th at p. 941,
fn. 24.
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of the prosecution’s comments — those characterizing defense
strategy as “game playing” or protesting that defendant’s
refusal “just stinks” — certainly were pointed. Nonetheless, the
prosecution did not dwell on defendant’s noncooperation.
Rather, the thrust of the prosecution’s comments was properly
aimed at rebutting Dr. Stewart’s testimony by emphasizing his
failure to take notes, prepare a written report, disclose his
opinion in a timely manner, or obtain and consider facts the
prosecution viewed as crucial to evaluating defendant’s mental
state. To the extent the remarks amounted to a targeted attack
on the defense rather than generalized protests about “fairness,”
they nonetheless did not prejudice defendant. (Cf. Krebs, supra,
8 Cal.5th at p. 346 [finding any error to be harmless despite the
prosecution complaining about a lack of “ ‘fairness’ ” and
“ ‘looking for the truth’ ” when the defendant declined to talk to
the prosecution expert].
This is, in part, because defense counsel explained his
client’s refusal to see Dr. Matthews. (Accord Krebs, supra,
8 Cal.5th at p. 347 [“the fact that the defense provided the jury
with an explanation of why defendant refused to be examined
by [a prosecution expert] . . . lean[s] against a finding of
prejudice”].) Counsel suggested to the jury that Matthews was
biased because he saw the individuals he interviewed not as
“patients” but as “evaluee[s]” and that he brought questions
prepared by the prosecutor when he attempted to examine
defendant. In addition, by the time Matthews went to see
defendant, he had already reached an opinion and billed the
prosecution a substantial sum of money. Under such
circumstances, argued counsel, Matthews was not going to
change his views regardless of what defendant said to him.
Knowing this, counsel stated, defendant understandably
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Opinion of the Court by Cantil-Sakauye, C. J.
refused to participate in a “sham” and so declined to subject
himself to Matthews’s questioning. This explanation tended to
blunt the impact of defendant’s refusal to cooperate with
Matthews and diffused the prosecution’s criticism that such
refusal “just stinks.”
Finally, the court instructed the jury that it could consider
defendant’s “refusal to answer questions or participate in the
mental examination . . . when weighing the defense’s expert
opinions about the defendant’s mental condition.” It further
stated that jurors “may infer that the defendant wanted only his
self-chosen experts, not others, to evaluate him.”13 This last
part of the court’s instruction was taken from Carpenter, supra,
15 Cal.4th at page 413, where we said that “[t]he jury could
properly infer that defendant wanted only his self-chosen
13
This instruction is not materially different from that given
in Gonzales. There, the trial court told the jury “it had ordered
examinations by Kaser-Boyd and Dr. Mills [two experts retained
by the prosecution], that defendant had refused to be examined
by Dr. Mills, and that her refusal ‘may be considered by you
when weighing the opinions of the defense experts in this case.
The weight to which this factor is entitled is a matter for you to
decide.’ ” (Gonzales, supra, 51 Cal.4th at p. 926.) We held that
erroneous instruction to be harmless and, in so concluding,
relied in no small part on the existence of Evidence Code section
730. (See Gonzales, supra, 51 Cal.4th at p. 928; Evid. Code,
§ 730 [authorizing a trial court “on its own motion or on motion
of any party” to appoint an expert “to investigate, to render a
report as may be ordered by the court, and to testify as an expert
at the trial . . . to the fact or matter as to which the expert
evidence is or may be required”].) We do not discuss section 730
here because the Attorney General has not argued its relevance
to a determination of whether the Verdin errors were
prejudicial.
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experts, not others, to evaluate him, an inference relevant to its
consideration of all the evidence of his mental condition.”14
Evaluating the court’s instruction alongside the
prosecutor’s argument and Dr. Matthews’s reference to
defendant’s refusal to be interviewed, we are not convinced that
the instruction tips the balance toward reversible error under
Watson. First, we do not believe there was much further harm
in telling the jury it “may” — but, by implication, need not —
consider defendant’s refusal to be examined in weighing the
credibility of the defense expert, or infer that defendant wanted
only some experts, and not others, to evaluate him. The latter
is a sort of truism arising from the fact that defendant
cooperated with his own experts, Drs. Ordas and Stewart, but
not the prosecution’s expert, Dr. Matthews. More broadly, the
jury was not constrained by other instructions from considering
defendant’s nonparticipation even in the absence of an
instruction. Second, to the extent the instruction indicates to
the jury that it may weigh the defense expert’s opinion
differently if the defendant thwarts the prosecution expert’s
process, defense counsel highlighted what he considered to be
the illogicality of the directive. Without apparent disagreement
from the prosecution in rebuttal, counsel made this point,
arguing that “there’s nothing about Dr. Stewart’s evaluation
that is assailed” by a missing interview with Dr. Matthews.
14
Although Carpenter has been overruled to the extent that
it is inconsistent with Verdin (Verdin, supra, 43 Cal.4th at
pp. 1106–1107), parts of the decision remain good law. (See,
e.g., Gonzales, supra, 51 Cal.4th at p. 929 [quoting with
approval Carpenter, Danis, and People v. McPeters (1992
2 Cal.4th 1148 (McPeters) — cases that have been disapproved
in part in Verdin].
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Ultimately, the issue the jury had to decide was the credibility
of the experts, both the defense’s and the prosecution’s. With
regard to that determination, it is true that the parties made
arguments concerning defendant’s refusal to submit to an
examination and that the instruction facilitated the argument.
However, the record indicates that these arguments were
tangential to the primary dispute over the experts’ methods and
conclusions. In sum, a different verdict at the guilt phase absent
the Verdin errors was not reasonably probable.
In addition to contending that the Verdin errors warrant
reversal of his convictions, defendant also makes conclusory
assertions that the errors deprived him of his right to a reliable
penalty determination. Defendant forgoes any specific
argument regarding penalty phase prejudice. Instead, he
generically asserts (primarily in the section headings within his
briefing) that the various errors violated that right.
To the extent such arguments are not waived for failure to
support them (see, e.g., People v. Lawley (2002) 27 Cal.4th 102,
169, fn. 25; People v. Williams (1997) 16 Cal.4th 153, 206), they
are meritless. It does not appear that any mention of
defendant’s refusal to submit to a court-ordered examination
was made at the penalty phase. Certainly, defendant’s own
recitation of the relevant facts is limited to the guilt phase, and
he offers no elaboration concerning how evidence relating to the
Verdin claim may have spilled over to the penalty determination
and tainted that decision as well. Under these circumstances,
there was no reasonable possibility that the Verdin errors
affected the death judgment. (See, e.g., Clark, supra, 52 Cal.4th
at p. 941, fn. 24.
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Defendant advances various counterarguments in an
attempt to show that the Verdin errors rise to a constitutional
dimension in this case. (But see Clark, supra, 52 Cal.4th at
p. 940; Hoyt, supra, 8 Cal.5th at pp. 941–942.) Specifically,
defendant argues that the trial court violated his privilege
against self-incrimination because it did not confer upon him
“ ‘advance assurance of immunity against overbroad direct and
derivative use of [his] responses to the examiners.’ ”
We disagree.
Defendant’s argument rests largely on Maldonado, supra,
53 Cal.4th at page 1112. In Maldonado, this court confronted
the issue of “what general limits, if any, may properly be
imposed on prosecutorial access to court-ordered examinations
and their results . . . in order to vindicate or protect the
defendant’s Fifth and Sixth Amendment rights.” (Id. at
p. 1117.) We concluded that the limits mandated by the
Constitution are few. In the context of a court-ordered
examination, the Fifth Amendment allows “direct or derivative
use of [a defendant’s] statements to the prosecution examiners,”
although only to the extent necessary “to rebut any mental-state
evidence [the defendant] presents through his own experts.”
(Maldonado, supra, 53 Cal.4th at p. 1129; see also id. at p. 1125
[“The prosecution is . . . constitutionally permitted to obtain its
own examination of the accused, and to use the results,
including the accused’s statements to the prosecution
examiners, as is required to negate the asserted defense. If the
defendant refuses to cooperate with the prosecution examiners,
the court may impose sanctions, such as advising the jury that
it may consider such noncooperation when weighing the
opinions of the defense experts. On the other hand, except for
appropriate rebuttal, the defendant’s statements to the
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Opinion of the Court by Cantil-Sakauye, C. J.
prosecution experts may not be used, either directly or as a lead
to other evidence, to bolster the prosecution’s case against the
defendant”].
Maldonado also elucidated the various ways in which the
defense can ensure that the prosecution does not misuse
materials elicited during a court-ordered examination. This is
accomplished primarily through litigation at trial. (See
Maldonado, supra, 53 Cal.4th at pp. 1137–1138.) In particular,
once “the prosecution commences its rebuttal case, the defense
can raise specific objections to particular evidence.” (Id. at
p. 1138.) “At this stage, the court is in the best possible position
to determine whether particular rebuttal evidence proffered by
the prosecution exceeds the scope of the defendant’s Fifth
Amendment waiver.” (Ibid.) Furthermore, because Maldonado
was decided after the enactment of section 1054.3, we explained
in a footnote that “[t]o the extent petitioner and other criminal
defendants are entitled, as a prophylactic protection of their
Fifth Amendment privilege, to decline to submit to court-
ordered mental examinations until they receive advance
assurance of immunity against overbroad direct and derivative
use of their responses to the examiners, we may, and we do,
judicially declare such an immunity as ‘ “reasonably to be
implied” ’ from the statutory provision allowing the prosecution
to obtain such examinations for the limited purpose of rebutting
anticipated mental-state defenses.” (Maldonado, supra, at
p. 1129, fn. 10.
Seizing on this language, defendant argues that because
section 1054.3 did not exist at the time of his trial, no such
immunity may reasonably be deemed to have been conferred in
his case. Pointing to the language of the court’s order, which did
not provide “advance assurance of immunity against overbroad
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direct and derivative use of [the defendant’s] responses to the
examiners,” defendant argues that in fact no such immunity was
extended. (Maldonado, supra, 53 Cal.4th at p. 1129, fn. 10.
Defendant implies that under such circumstances, he was
within his constitutional right to refuse to submit to the order —
or conversely, that by signing such an order, the court violated
the constitutional guarantee protecting defendant against self-
incrimination.
We reject defendant’s argument. First, although we do not
need to decide the issue because the Attorney General did not
brief it, defendant’s argument appears forfeited. It is true that
defendant objected to the court’s order and ultimately refused to
cooperate with Dr. Matthews. Yet, he did not base either his
objection or refusal on the court’s alleged failure to provide
“advance assurance” that his statements would be introduced
only for proper rebuttal purposes. (Maldonado, supra,
53 Cal.4th at p. 1129, fn. 10.) If defendant were concerned
about the potential overbroad use of his statements, he could
have said as much. Even before Maldonado was decided, the
case law suggested that statements made during a court-
ordered examination could be used only for rebuttal purposes.
(See, e.g., Danis, supra, 31 Cal.App.3d at pp. 785–786; cf. People
v. Perez (2020) 9 Cal.5th 1, 7–8 (Perez) [“ ‘ “[r]eviewing courts
have traditionally excused parties for failing to raise an issue at
trial where an objection would have been futile or wholly
unsupported by substantive law then in existence” ’ ”].) Had
defendant brought the issue to the court’s attention, the court
could have addressed his concerns about any overbroad use of a
psychiatric evaluation. (See, e.g., People v. Simon (2001
25 Cal.4th 1082, 1103 [explaining that “the basic rationale of the
forfeiture doctrine” is “ ‘ “ ‘to encourage a defendant to bring
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Opinion of the Court by Cantil-Sakauye, C. J.
errors to the attention of the trial court, so that they may be
corrected or avoided and a fair trial had’ ” ’ ”].) Under such
circumstances, defendant’s failure to raise the issue may well
have resulted in forfeiture.
Second, the record in this case confirms that all parties
involved understood the intended use of any interview a
prosecution expert conducted with defendant would be limited
to rebutting defendant’s mental state defense. The People’s
motion requesting that the court issue an order requiring
defendant to sit for such an examination stated as much. The
People’s oral argument in the court and the exchange between
the trial judge and the parties suggest the same. And, of course,
the court referred specifically to Danis — with its attendant
limiting language — in granting the prosecution’s motion for an
examination.
In addition, decisional law relied upon by the trial judge
underscored the proper role of this evidence as limited to the
rebuttal of the defendant’s proffered mental state evidence. (See
McPeters, supra, 2 Cal.4th at p. 1190 [“By tendering his mental
condition as an issue in the penalty phase, defendant waived his
Fifth and Sixth Amendment rights to the extent necessary to
permit a proper examination of that condition. . . . Any other
result would give an unfair tactical advantage to defendants,
who could, with impunity, present mental defenses at the
penalty phase, secure in the assurance they could not be
rebutted by expert testimony based on an actual psychiatric
examination” (italics added)]; Carpenter, supra, 15 Cal.4th at
p. 412 [same]; Danis, supra, 31 Cal.App.3d at pp. 785–786 [“The
sole issues are whether the court committed reversible error in
granting the prosecution’s motion to have a court-appointed
psychiatrist examine defendant and in permitting the doctor to
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Opinion of the Court by Cantil-Sakauye, C. J.
testify in rebuttal to the medical testimony introduced by
defendant on the subject of defendant’s diminished capacity”
and “opinion testimony from a court-appointed psychiatrist
based upon his examination of a defendant in a criminal case is
admissible as prosecution rebuttal during the guilt phase of the
trial, once the defendant has placed his mental condition in
issue by proffering an insanity or diminished capacity defense”
(italics added)].
Third, defendant’s refusal to be examined was in fact used
only to rebut defendant’s argument that he lacked the requisite
mental state for the more serious crimes. As noted,
Dr. Matthews referenced defendant’s refusal in his testimony as
a rebuttal witness; the prosecution mentioned the refusal in
seeking to refute the defense expert’s opinion that defendant
suffered from a diminished mental state; and the court’s
instruction permitted the jury to consider the refusal in
assessing the same defense expert’s opinion. Defendant
therefore had no occasion to “raise [at trial] specific objections to
particular evidence” regarding his refusal to comply with the
court’s order. (Maldonado, supra, 53 Cal.4th at p. 1138.) In
such circumstances, to hold that the court nonetheless violated
defendant’s constitutional rights by not expressly specifying
that the result of the court-ordered examination would be used
only in rebuttal is unwarranted.
Defendant claims various other asserted infirmities
concerning the court’s instruction. He argues that the court
compounded its error by denying the defense proposal that the
court instruct the jury that defendant refused to submit to the
court-ordered examination on the advice of counsel. According
to defendant, “[r]elying on an attorney’s advice for a course of
action may defeat an allegation of willfulness and the trial court
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Opinion of the Court by Cantil-Sakauye, C. J.
should have instructed the jury that when [defendant] refused
to submit to the examination, he was acting on the advice [of]
his attorneys and that fact could be taken into consideration in
determining if the refusal was willful.”
Defendant has cited no case establishing the premise that
“[r]elying on an attorney’s advice for a course of action may
defeat an allegation of willfulness” in the context of court-
ordered examinations. (See Nieves, supra, 11 Cal.5th at p. 437
[“Defendant cites no authority for her view that she did not
personally refuse to be examined, and she offers no reason to
dispel the general rule that absent complaint at trial, the acts of
her counsel are imputed to her”].) Furthermore, even if we
accept that defendant followed his counsel’s advice, this might,
at most, have led a juror to find that defendant’s refusal was not
willful. But in assessing the harm caused by the instruction, we
have assumed one or more jurors found “the defendant’s refusal
to answer questions or participate in the mental examination
[was] willful” and took that into consideration when weighing
the expert opinions regarding the defendant’s mental condition.
Given this assumption, the fact that the jury was not instructed
that defendant followed the advice of his counsel could not have
prejudiced defendant.
Defendant further argues that the court’s instruction
allowing the jury to infer from defendant’s refusal to meet with
Dr. Matthews “that the defendant wanted only his self-chosen
experts, not others, to evaluate him” was unsupported by
evidence. But at trial, the parties presented testimony
establishing that defendant cooperated with experts chosen by
the defense, Drs. Ordas and Stewart, yet not with an expert
retained by the prosecution, Matthews. The defense also
explained why defendant did not want Matthews — the only
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psychiatric expert not selected by defendant — to examine him.
Upon this record, we cannot say that no evidence supports the
inference permitted by the court’s advisement. (Accord, People
v. Alexander (2010) 49 Cal.4th 846, 905–906.
2. Admission of letters written by defendant
a. Background
Defendant objects to the court’s admission into evidence of
two letters he authored. The prosecution sought to introduce
these letters to show defendant’s motive in the charged crimes.
Defendant wrote both letters while in pretrial detention on the
current charges. The first was written in early August 2003,
about two months after the June 13 shooting death of Officer
Zeppetella:
“I’m doing a lot better, thank you very much, had a
little problem here and there with these fucks (cops
but other than that and all the muthafucking crying
that goes on here, it’s all good! . . .
“Today they extracted p-wee’s celli there in E-1 over
some fuckin bullshit and the only reason I don’t put
a green light on these fucks is because he’s always
fucking up.”
The second letter was written in late August 2003, evidently in
response to some problem defendant was experiencing with the
mail system at the jail:
“I tell you these fucks are really asking for me to
make an example. These fucks don’t understand
how important it was for that letter to get out. Only
cause they go home everyday, they think theyre tuff
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ass’es. Its going to be a big surprise when I send one
of them home in a fucken bodybag!”
The prosecution argued that the letters showed “an
animosity towards law enforcement” and were “relevant on the
issue of intent” or motive. The defense objected to admission of
the letters on the grounds they purportedly constituted
inadmissible hearsay and should in any event be excluded under
Evidence Code section 352. After hearing arguments from both
sides, the trial court admitted the letters, finding them “directly
relevant to defendant’s attitude toward law enforcement” and
“relevant to motive and as to [defendant’s] state of mind in June
of 2003, the time of the incident.”
At trial, the prosecution mentioned the letters in its
opening and closing statements. During opening remarks, the
prosecution read to the jury portions of the letters and argued
that they were evidence of defendant’s “special malice, . . .
special anger directed towards law enforcement.” The
prosecution also introduced testimony to clarify that the term
“green light” — as used in the first letter — “is a prison
terminology or street terminology [that means] it’s okay to kill
this person.” During closing argument, the prosecution again
argued that the letters showed defendant harbored “special
malice towards officers.” Responding to defense questioning of
witnesses and anticipating opposing counsel’s closing
comments, the prosecution asserted that the letters explained
why defendant engaged in seemingly “[un]necessary” violence
against Officer Zeppetella. In contrast to defense counsel’s
theory that defendant displayed “violence beyond that necessary
. . . because [of] the drugs and the Paxil,” the prosecution
attributed defendant’s brutality — his shooting the victim
13 times — to defendant’s “special malice.”
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Opinion of the Court by Cantil-Sakauye, C. J.
The prosecution returned to the letters in its closing
statement at the penalty phase, using them to cast doubt on
defendant’s remorse for the killing of Officer Zeppetella.
b. Analysis
Defendant argues that the letters should have been
excluded as inadmissible character evidence under Evidence
Code section 1101, subdivision (a). Under that provision, and
subject to certain exceptions, “evidence of a person’s character
or a trait of his or her character (whether in the form of an
opinion, evidence of reputation, or evidence of specific instances
of his or her conduct) is inadmissible when offered to prove his
or her conduct on a specified occasion.” (Evid. Code, § 1101,
subd. (a).) Defendant further contends that whether the letters
constituted “[c]haracter evidence or not,” they were irrelevant to
the issue of his intent, motive, or state of mind. Finally, as
noted, he asserts the letters should have been excluded
pursuant to Evidence Code section 352, which provides: “The
court in its discretion may exclude evidence if its probative value
is substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury.” We address these arguments
seriatim.
As a preliminary matter, we agree with the People that
defendant has not preserved the issue for review because he
failed to argue below that the letters constituted inadmissible
character evidence. (See, e.g., People v. Valdez (2012) 55 Cal.4th
82, 130 (Valdez) [the “defendant’s argument under Evidence
Code section 1101 is not cognizable on appeal because he failed
to object on this basis at trial”]; People v. Demetrulias (2006
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Opinion of the Court by Cantil-Sakauye, C. J.
39 Cal.4th 1, 20–21 (Demetrulias).) At trial, defendant objected
to admission of the letters because, in his view, they were
hearsay, not subject to any exception and their probative value
was substantially outweighed by the danger of prejudice.
Defense did not once assert that the letters constituted
character evidence, or argue that they reflected evidence of a
trait of his character improperly offered to prove “his . . . conduct
on a specified occasion.” (Evid. Code, § 1101, subd. (a).) As such,
defendant cannot be heard now to complain on this ground. (See
Valdez, supra, 55 Cal.4th at p. 130.
Defendant seeks to excuse his failure to raise a specific
objection by arguing that “[a]ll of the parties were experienced
litigators” and therefore “saw no need to identify for the record
that the letters were character evidence” despite understanding
them to be such. The contention fails to persuade. Experienced
or not, counsel needed to make a timely and specific objection on
the ground asserted on appeal. (See, e.g., Valdez, supra,
55 Cal.4th at p. 130.) Furthermore, insofar as the parties
wrangled over the tendency of the letters to demonstrate
animosity toward law enforcement and therefore establish
defendant’s motive in killing a police officer, such arguments do
not reflect that the litigants and the court all implicitly treated
the letters as character evidence and, as defendant now asserts,
“moved directly to the subject of whether they came in as an
exception under [Evidence Code section] 1101(b).” Although
subdivision (b) of section 1101 refers to evidence of motive (along
with other types of evidence), there is no reason that evidence of
motive necessarily is also evidence of character. Moreover, the
record here makes clear that the prosecution described the
letters as tending to show motive in response to the court’s query
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Opinion of the Court by Cantil-Sakauye, C. J.
regarding their relevance, not how they fit under an exception
to character evidence.
On the merits, we are persuaded the trial court did not
abuse its discretion in finding the letters to be relevant
regarding the issue of motive and as such, admissible under
Evidence Code section 1101, subdivision (b). (See, e.g., People v.
Crittenden (1994) 9 Cal.4th 83, 132 (Crittenden) [“The trial court
has broad discretion in determining the relevance of evidence”];
People v. Mickey (1991) 54 Cal.3d 612, 668 (Mickey) [“The
appropriate standard of review for a ruling on admissibility over
an objection of irrelevance and/or undue prejudice is abuse of
discretion”]; People v. Gordon (1990) 50 Cal.3d 1223, 1239
(Gordon) [same].) That provision states: “Nothing in this
section prohibits the admission of evidence that a person
committed a crime, civil wrong, or other act when relevant to
prove some fact (such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or
accident . . .) other than his or her disposition to commit such an
act.” (Evid. Code, § 1101, subd. (b).
Relevant evidence is that “having any tendency in reason
to prove or disprove any disputed fact that is of consequence to
the determination of the action.” (Evid. Code, § 210.) In this
case, the central fact in dispute was defendant’s state of mind
when he shot and killed Officer Zeppetella. The prosecution
maintained that defendant premeditated and deliberated the
murder of the victim, and, as part of that charge, had to prove
that defendant acted with malice aforethought. The defense, on
the other hand, urged that defendant killed Officer Zeppetella
because defendant was delirious and psychotic due to the
influence of drugs. The letters were relevant to this dispute
“because, if the defense version of events were true, one might
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Opinion of the Court by Cantil-Sakauye, C. J.
reasonably expect defendant, upon recovering from the
psychotic episode and realizing the senseless violence he had
done” not to engage in thoughts and words showing him to
contemplate doing further violence to people detaining him.
(People v. Bell (2007) 40 Cal.4th 582, 606 (Bell).) Conversely, if
the prosecution theory of the crime were correct, defendant’s
hostility and willingness to resort to violence against persons in
authority “would more clearly be expected.” (Ibid.) More
directly, although other inferences are possible, one may
reasonably conclude that the letters showed defendant harbored
hostility toward law enforcement, and it was this hostility — not
delusions or psychosis — that drove him to shoot Officer
Zeppetella 13 times. Under such circumstances, we cannot say
that the letters did not have “any tendency” to prove a disputed
fact. (Evid. Code, § 210, italics added.
Defendant’s arguments to the contrary appear to conflate
the probative value of a piece of evidence with its relevance.
Reprising assertions raised before the trial court, defendant
contends the letters simply “reflected defendant’s attitude
towards his jailers” and so “were not relevant to any issues
involving a patrol officer such as Officer Zeppetella.” Yet, in his
early August letter, defendant referred to “these fucks” and
parenthetically clarified that he meant he was having trouble
with “cops.” Defendant then mentioned “put[ting] a green light
on these fucks.” Likewise, in the later August letter, defendant
once again alluded to “these fucks” and said it was going to be a
“big surprise” when he “send[s] one of them home in a . . .
bodybag.” Whether defendant was simply expressing
frustration with his jailers or manifesting hostility toward law
enforcement more generally in writing the letters was a factual
question for the jury. Likewise, whether the letters reflected
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Opinion of the Court by Cantil-Sakauye, C. J.
sentiments defendant held on the day of the crime was a
determination for the jury. Defendant was free to urge the jury
to discount the letters for the reasons he now suggests. At
bottom, although defendant couches his argument as one
concerning the relevance of the communications, his assertions
are really aimed at the weight of the evidence. (See, e.g., People
v. Turner (2020) 10 Cal.5th 786, 805 [“ ‘Relevance’ describes
whether evidence should be heard because it might reasonably
resolve a dispute. ‘Weight’ describes the degree to which the
jury finds the evidence probative”].) Simply because the letters
would have had more probative value if they contained a
“definitive indication” that “the sentiments expressed were long
held” or directly referenced “the crime or . . . Officer Zeppetella”
does not render them irrelevant otherwise.
We are further persuaded that the court did not err in
refusing to exercise its discretion under Evidence Code section
352 to exclude the letters. (See, e.g., Mickey, supra, 54 Cal.3d at
p. 668; Gordon, supra, 50 Cal.3d at p. 1239.) Any potential
prejudice arising from admission of the letters was low given
that the unsavory language and sentiment expressed therein
were not unduly prejudicial, or “ ‘of such nature as to inflame
the emotions of the jur[ors], motivating them to use the
information, not to logically evaluate the point upon which it is
relevant, but to reward or punish one side because of the jurors’
emotional reaction.’ ” (People v. Doolin (2009) 45 Cal.4th 390,
439.) Here, undisputed evidence showed that defendant —
unprovoked by anything the victim did — shot a police officer
13 times, firing when the officer was already down and crawling
away, beat the officer’s head repeatedly, and then absconded in
the patrol car after making sure the victim was no longer
moving. In light of the brutality of the charged crimes,
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Opinion of the Court by Cantil-Sakauye, C. J.
admission of evidence that defendant used offensive language in
describing unperformed acts of violence did not create an
intolerable risk of prejudice. (Accord, ibid. [“Although evidence
of D.’s rape and Hamblen’s mistreatment is unpleasant, it paled
in comparison to the testimony from four witnesses that
defendant tried to kill them”]; People v. Eubanks (2011
53 Cal.4th 110, 146 (Eubanks) [“here, where the charged
offenses included four counts of first degree murder based on
defendant having killed her four children, admission of evidence
that defendant had mistreated her nephew once by rubbing his
face in feces” was not an abuse of discretion].) This conclusion
is strengthened by the fact that the prosecution “did not suggest
to the jury that it consider the [letters] for any improper
purpose,” instead appropriately utilizing the evidence as
demonstrating defendant’s motive and to rebut the defense
theory of mental incapacity. (Demetrulias, supra, 39 Cal.4th at
p. 19; accord Doolin, supra, 45 Cal.4th at p. 439; Bell, supra,
40 Cal.4th at p. 607 [because “the evidence was probative on the
central factual issue of the case, and as its introduction was
clearly targeted to that issue rather than to creation of
prejudicial emotion, we cannot agree with defendant that the
court’s choice to admit it was arbitrary or capricious”].
Because we find no merit in defendant’s claims of state
evidentiary law, “we reject the associated contention that
introduction of the evidence violated defendant’s constitutional
rights . . . under . . . the United States Constitution.”15 (Bell,
15
Defendant also complains about the prosecution’s
reference to the letters at the penalty phase, arguing that their
assertedly erroneous admission at the guilt phase deprived him
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Opinion of the Court by Cantil-Sakauye, C. J.
supra, 40 Cal.4th at p. 607; see also, e.g., Valdez, 55 Cal.4th at
p. 134 [“Because there was no statutory error, his constitutional
claims . . . fail”].
3. Exclusion of defense witnesses’ testimony
a. Background
Defendant claims the trial court erred when, on three
occasions, it sustained objections to testimony of defense
witnesses “that would tend to prove [defendant] was sincere in
his efforts to end his addiction to drugs.” Two of these instances
occurred during the testimony of Stacey Camacho. During her
direct examination, Stacey was asked, “Did it appear to you that
Adrian was sincere in his efforts to get off of drugs [during the
year preceding the shooting], or did it appear that he was just
playing you?” The prosecutor interposed an objection, stating
“[Y]our Honor: Speculative.” The court sustained the objection,
and defense counsel continued, “If you know, based on your
relationship with Adrian, did it seem to you — were his actions
and words and behavior — did they appear sincere?” The
of a reliable penalty determination. As discussed, we are of the
view that there was no error relating to the trial court’s decision
to admit defendant’s writings. Moreover, the prosecution made
proper use of the letters during the penalty phase, employing
them to suggest that defendant did not experience remorse for
killing the victim. “ ‘[R]emorse is universally deemed a factor
relevant to penalty,” and “[n]o misconduct or constitutional
error occurred” when, as here, “the prosecutor merely
anticipated predictable defense argument urging sympathy for
defendant and sought to negate its mitigating effect by
highlighting defendant’s apparent lack of concern for the
murder victim.” (People v. Bemore (2000) 22 Cal.4th 809, 854–
855 (Bemore).
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prosecutor again objected on the same ground, and the court
once more sustained the objection.
The second occasion in which the court sustained an
objection concerned Stacey’s testimony regarding a time during
which defendant was being treated at Aurora Hospital. Defense
counsel had asked Stacey, “When he was hospitalized, can you
describe how his demeanor was, what he was physically
depicting to you by his demeanor?” Stacey responded, “He was
really depressed. He was — he was crying a lot because he
wanted to stop using drugs so bad, and he couldn’t. He would
try not to use drugs, and if he would go too long without it, he
would get sick. He couldn’t get out of bed. He said that his bones
would hurt.” At this point, the prosecutor made a hearsay
objection, which was sustained.
The third instance involved the testimony of Lonnie
Roybal, defendant’s coworker. The following exchange took
place during Roybal’s examination:
“Question:
Okay. And when [defendant]
talked with you about his drug
problem with heroin, what was his
demeanor like?
“Answer:
He cried a couple of times. He was
pretty sad about it. I mean, he
wanted help, you know, off it.
“[Prosecutor]:
I’m going to object, your honor, as
hearsay what he said.
“THE COURT: Sustained.
“[Prosecutor]:
Move to strike. Ask the jury be
told to disregard.
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Opinion of the Court by Cantil-Sakauye, C. J.
“THE COURT: Answer will be stricken. Jury to
disregard.
“Question:
When he’d talk with you about his
problems and he’d cry, did you ever
know him to also show evidence of
using, to the extent you might
know?”16
The examination thereafter resumed.
In contrast to the above witnesses, Dr. Ordas was
permitted to testify concerning defendant’s “sincer[ity] in his
efforts to end his addiction to drugs.” In setting up Ordas’s
testimony, defense counsel first asked the doctor to describe the
symptoms an addict experiences when withdrawing from
heroin. Ordas stated, “If . . . not treated, [that is] the addict
doesn’t actually get some more drugs or gets in treatment, then
often it [the withdrawal symptoms] progresses to a much worse
state that can include incredible joint pain — when I say joint,
I don’t mean just a bit — but serious pain in the joints of the
body, diarrhea, vomiting, nausea, headaches, that kind of stuff.”
Counsel subsequently asked Ordas to “describe for the jury
[defendant’s] demeanor and attitude about treatment with you.”
Ordas replied, “In general, he was highly motivated.” Counsel
then directly inquired whether in Ordas’s interactions with
defendant, defendant seemed “sincere in his efforts.” Ordas
reiterated that defendant was sincere most of the time.
16
Defense counsel’s question — referring to the prior
testimony of defendant crying — makes clear it is only the last
part of Roybal’s answer (that defendant “wanted help . . . off
[heroin]”) that was struck by the court.
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b. Analysis
Defendant asserts the trial court erred in sustaining the
prosecution’s objections to the defense witnesses’ testimony. In
examining defendant’s claims, we keep in mind that we review
the trial court’s ruling, “not the court’s reasoning and, if the
ruling was correct on any ground, we affirm.” (People v. Geier
(2007) 41 Cal.4th 555, 582 (Geier); see also, e.g., People v. Chism
(2014) 58 Cal.4th 1266, 1295, fn. 12 [same]; People v. Jones
(2012) 54 Cal.4th 1, 50 (Jones); People v. Fuiava (2012
53 Cal.4th 622, 668–669 (Fuiava); People v. Zapien (1993
4 Cal.4th 929, 976 [“ ‘ “No rule of decision is better or more
firmly established by authority, nor one resting upon a sounder
basis of reason and propriety, than that a ruling or decision,
itself correct in law, will not be disturbed on appeal merely
because given for a wrong reason. If right upon any theory of
the law applicable to the case, it must be sustained regardless
of the considerations which may have moved the trial court to
its conclusion” ’ ”].
Here, although the trial court sustained the prosecution’s
objections on varying grounds (hearsay and speculation), the
testimony regarding whether defendant was sincere in his
efforts to stop using drugs was properly excluded because it was
irrelevant. (See Evid. Code, § 350 [“No evidence is admissible
except relevant evidence”]; see also, e.g., Crittenden, supra,
9 Cal.4th at p. 132 [“The trial court has broad discretion in
determining the relevance of evidence [citations], but lacks
discretion to admit irrelevant evidence”].) Because defendant
did not contest that he shot and killed Officer Zeppetella, the
central issue for the jury was defendant’s state of mind when he
opened fire. Whether defendant was sincere in his attempts to
quit drugs in the year before he shot the officer was at best
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weakly linked to an impaired mental state on the day of the
shooting. Had defendant been sincere about wanting to quit
drugs, that would presumably increase the likelihood that
defendant had actually stopped taking drugs at the time of the
killing, was not then under the influence, and so would be more
likely to harbor malice. But this inference was not available in
this particular case given that all the evidence of defendant’s
supposed sincerity about stopping use of drugs — all sought to
be introduced by the defense — was coupled with evidence that
defendant, in fact, did not cease his drug use. Dr. Ordas, for
example, testified that defendant was “sincere in his efforts” to
quit drugs “most of the time” and yet “always seemed to relapse”
into drug use. Because there was no suggestion that defendant
actually stopped his drug use, the sincerity of his attempts to
cease his addiction had no “tendency in reason to prove or
disprove any disputed fact that is of consequence to the
determination” of defendant’s state of mind. (Evid. Code, § 210.
As such, testimony intended to show defendant “was sincere in
his efforts to end his addiction to drugs” was properly excluded.
Defendant offers no argument regarding the relevance of
the challenged testimony. Instead, he insists that Stacey should
have been allowed to answer the question about whether
defendant’s “actions and words and behavior . . . appear sincere”
because such question elicited a lay opinion permitted under
Evidence Code section 800. Likewise, he contends that Stacey’s
statement that defendant said “his bones would hurt”
constituted a statement concerning defendant’s “then existing
state of mind, emotion, or physical sensation” admissible under
Evidence Code section 1250. Last, he asserts that Roybal’s
statement that defendant “wanted help . . . off [drugs]” was not
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Opinion of the Court by Cantil-Sakauye, C. J.
hearsay but a description of defendant’s demeanor as Roybal
observed it.
Yet, none of the grounds of admissibility defendant posits
allows for the admission of irrelevant evidence. (See Evid. Code,
§ 800 [“If a witness is not testifying as an expert, his testimony
in the form of an opinion is limited to such an opinion as is
permitted by law” (italics added)]; People v. Edwards (2013
57 Cal.4th 658, 726 (Edwards) [“Even assuming the evidence
defendant sought to elicit from [two witnesses] was admissible
to show defendant’s state of mind, state of mind evidence must
nonetheless be relevant”]; People v. Hernandez (2003) 30 Cal.4th
835, 872 [“A prerequisite to this exception to the hearsay rule
[created by Evidence Code section 1250] is that the declarant’s
mental state or conduct be factually relevant”]; Geier, supra,
41 Cal.4th at p. 586 [similar]; Evid. Code, § 702, subd. (a
[providing that “the testimony of a witness concerning a
particular matter is inadmissible unless he has personal
knowledge of the matter” but does not otherwise establish that
testimony is admissible whenever a witness has personal
knowledge of the matter].) Evidence Code section 350 makes
clear that “[n]o evidence is admissible except relevant evidence,”
and defendant has not cleared this hurdle for admissibility.
Furthermore, even assuming that the trial court erred in
excluding portions of Stacey’s and Roybal’s testimony, any error
was harmless given what Dr. Ordas told the jury. (Accord,
Edwards, supra, 57 Cal.4th at p. 726.) Although Stacey’s
statement that defendant said his bones would hurt when he
stopped using drugs drew an objection, Ordas testified to the
severe joint pain, along with other serious symptoms, that
someone like defendant would experience when withdrawing
from drugs. Ordas further testified that defendant was “highly
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motivated” and sincere, although unsuccessful, in his efforts to
quit taking drugs. And as mentioned, any inference raised by
evidence of defendant’s supposed sincerity in stopping drug use
was adverse to defendant’s case of mental impairment on the
day of the shooting. Under such circumstances, it was not
“reasonably probable that a result more favorable to [defendant]
would have been reached” if the testimony from Stacey and
Roybal had been admitted. (Watson, supra, 46 Cal.2d at p. 836.
4. Asserted prosecutorial misconduct
a. Background
During closing argument, the prosecutor criticized
Dr. Stewart’s opinion and methodology at some length. The
prosecutor first highlighted Stewart’s failure to produce a report
or timely render an opinion and then stated, “[h]e does not
review the entire file, which is a violation of the ethics and
conduct of forensic psychiatry.” Defense counsel objected that
the prosecutor was testifying. The court asked counsel to clarify,
and counsel stated, “These are not facts in evidence.” The
prosecutor responded, “Dr. Matthews,” whereupon the court
overruled the objection.
The prosecutor then told the jury, “Check Dr. Matthews’
testimony. Dr. Mathews told us — remember that — I won’t
take a case unless I can have the whole file, because it isn’t
right.” The prosecutor further commented, “None of us can be
charged with knowing what the ethical obligations of forensic
psychiatry [are]. But it was Dr. Stewart’s responsibility to call
[defense counsel] up and say: Excuse me. I cannot consult in a
case unless I get the run of the file. Because [counsel] are
advocates, and we may inject our own bias into the materials
[we send].”
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b. Analysis
Defendant contends the prosecutor committed prejudicial
misconduct by arguing matters outside the record in stating
that Dr. Stewart’s failure to review the entire file was “a
violation of the ethics and conduct of forensic psychiatry.”
Certainly, “[a] prosecutor commits misconduct by referring in
argument to matters outside the record.” (People v.
Cunningham (2001) 25 Cal.4th 926, 1026 (Cunningham).
Nonetheless, “the prosecution has broad discretion to state its
views regarding which reasonable inferences may or may not be
drawn from the evidence” (ibid.) and “ ‘[w]hether the inferences
the prosecutor draws are reasonable is for the jury to decide’ ”
(People v. Letner and Tobin (2010) 50 Cal.4th 99, 179). “To
constitute a violation of the federal Constitution, prosecutorial
misconduct must ‘ “so infect[] the trial with unfairness as to
make the resulting conviction a denial of due process.” ’
[Citations.] Conduct by a prosecutor that does not render a
criminal trial fundamentally unfair is prosecutorial misconduct
under state law only if it involves ‘ “the use of deceptive or
reprehensible methods to attempt to persuade either the court
or the jury.” ’ ” (People v. Benavides (2005) 35 Cal.4th 69, 108.
Here, the prosecutor’s comment was based on
Dr. Matthews’s testimony. Matthews — a board certified
forensic psychiatrist — discussed the standards for forensic
psychiatry. He first described a forensic psychiatrist as “a
psychiatrist . . . who puts their expertise at the service of the
legal system,” stating that “[t]he purpose of forensic psychiatry
is to find the truth and to learn enough about the situation so
that you can be of service in some way to the judicial system.
It means that rather than having one’s loyalty to the patient or
the person you’re examining, that your major loyalty is to
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principles of honesty and principles of objectivity.” Matthews
was subsequently asked whether “it [was] important . . . that a
forensic psychiatrist be allowed to basically have at the whole
body of document” and responded that he could not do the work
without having access to the entire record.
The prosecutor’s comments did not infect the trial with
unfairness that rises to the level of prejudicial error. When
viewed in context, the prosecutor made clear that he was basing
his argument on Dr. Matthews’s testimony and not outside
knowledge regarding “the ethical obligations of forensic
psychiatry.” Not only did the prosecutor’s argument following
the challenged comment closely track Matthews’s testimony,
but the prosecutor also expressly told the jury to “[c]heck
Dr. Matthews’
testimony”
and
“remember”
“[w]hat
Dr. Matthews told us.” Furthermore, the prosecutor
acknowledged that “[n]one of us [advocates] can be charged with
knowing what the ethical obligations of forensic psychiatry
[are],” indicating he did not have independent knowledge of “the
ethics and conduct of forensic psychiatry.” It was thus not
reasonably likely that the jury construed the prosecutor’s
comments in the objectionable manner defendant suggests.
(See, e.g., Cunningham, supra, 25 Cal.4th at p. 1001.
5. Alleged errors under Sanchez
In his supplemental briefing, defendant argues that the
testimony of two witnesses — Dr. Matthews and Officer
Carnahan — violated the rule set forth in People v. Sanchez
(2016) 63 Cal.4th 665 (Sanchez) concerning hearsay and expert
testimony.
In Sanchez, we held that “[i]f an expert testifies to case-
specific out-of-court statements to explain the bases for his
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opinion, those statements are necessarily considered by the jury
for their truth, thus rendering them hearsay.” (Sanchez, supra,
63 Cal.4th at p. 684.) “Like any other hearsay evidence,” such
statements must be “properly admitted through an applicable
hearsay exception” or “an appropriate witness.” (Ibid.
Otherwise, the admission of such statements constitutes error.
Depending on whether the statements are testimonial, the
prejudicial effect of their admission is assessed under either the
standard articulated in Chapman, supra, 386 U.S. at page 18 or
that found in Watson, supra, 46 Cal.2d at page 818. (See, e.g.,
People v. Navarro (2021) 12 Cal.5th 285, 310 (Navarro).
The failure to object at trial before Sanchez was decided
does not forfeit a claim raising so-called Sanchez errors. (Perez,
supra, 9 Cal.5th at p. 9.
a. Dr. Matthews’s testimony
Regarding Dr. Matthews’s testimony, defendant argues
the doctor ran afoul of Sanchez in conveying to the jury “that he
relied on inadmissible hearsay to form his opinion regarding
defendant’s mental state.” But if all Matthews did was to tell
the jury that he relied on materials sent to him by the
prosecution in forming his opinion, then Sanchez does not
prohibit such testimony.
As we stated in Sanchez, “[a]ny expert may still rely on
hearsay in forming an opinion, and may tell the jury in general
terms that he did so.” (Sanchez, supra, 63 Cal.4th at p. 685,
italics in original; see also id. at p. 686 [recognizing that under
the court’s holding, an expert may “tell[] the jury the expert
relied on additional kinds of information that the expert only
generally describes”].) The limitations that Sanchez placed on
expert testimony concern case-specific information that an
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expert relates to a jury, not materials upon which the expert
relies. (See, e.g., id. at p. 685 [stating that experts cannot
“present, as facts, the content of testimonial hearsay
statements” and “only when a prosecution expert relies upon,
and relates as true, a testimonial statement would the fact
asserted as true have to be independently proven to satisfy the
Sixth Amendment” (first italics added)]; id. at pp. 676, 684.
Regarding the sources upon which the expert relies, Sanchez
recognizes that the expert “may still rely on hearsay” and the
expert is permitted “to relate generally the kind and source of
the ‘matter’ upon which his opinion rests.” (Id. at pp. 685–686.
Here, Dr. Matthews told the jury very little of the contents
of the materials he reviewed in forming his opinion. This was
deliberate. Before Matthews testified, the court had an
extensive discussion with the parties regarding the scope of the
expert’s testimony. Defense counsel argued at length that
Matthews should not be able to relate to the jury details gleaned
from defendant’s criminal record. In contrast, counsel accepted
that Matthews should be able to rely on such records in forming
his opinion, specifically the opinion that defendant had
antisocial personality disorder. Consistent with Sanchez,
counsel also conceded that Matthews “can say what he relied on”
but “should not be allowed to speak to hearsay.” The court
generally agreed with counsel, ruling, for instance, that the
expert is “not allowed to talk about the details of the convictions,
how many, what they are” but what “he can say is I’ve reviewed
the file, and it does show a criminal history.”
To ensure that Matthews’s testimony would conform to
the court’s rulings, the prosecutor asked leading “yes-no”
questions of the witness. A typical exchange is as follows:
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“Question:
[By the prosecutor] Okay. All
right. So let me just kind of
walk you through it, then.
“All right. And these are a
series of yes-no questions,
Doctor; okay?
“Answer:
[By Matthews] Yes.
“Question:
So part — so the first one we’ve
talked about in the category A,
those seven items [that are part
of the diagnostic criteria for
antisocial personality disorder],
three of which have to be met,
you saw a failure to conform to
social norms with respect to
lawful behavior, repeatedly
performing acts that are
grounds for arrest; is that right?
“Answer:
Yes.
“Question:
You also determined through
your review of the records that
the defendant lied repeatedly
about his date of birth and
name and has several aliases; is
that right?
“Answer:
Yes.”
The prosecution followed a similar pattern of eliciting yes-
no answers when questioning Dr. Matthews about the sources
of information upon which he relied. The inquiry confirmed that
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the prosecution sent Matthews “35 three-inch binders full of
documents,” consisting of “16 to 17,000 pages of stuff.” The
prosecution then asked if “those documents included — and I’m
going to talk generically here, all right — rehab records, police
records, a wide variety of records like that, correct?” Matthews
answered, “Yes,” and conveyed no further information to the
jury.
Against this backdrop, it is perhaps telling that defendant
does not specifically identify the portions of Dr. Matthews’s
testimony he asserts conveyed inadmissible case specific
hearsay. Instead, defendant essentially contends that three
areas of Matthews’s testimony constituted prejudicial error
under Sanchez: Matthews improperly opined that defendant
was not in a drug-induced delirium when he shot Officer
Zeppetella; Matthews improperly opined that defendant had an
antisocial personality disorder that accounted for defendant’s
behavior at the time of the crime; and Matthews emphasized
that he based his opinions on a swath of documents beyond those
considered by defense expert Dr. Stewart. Each of these points
was independently supported by properly admitted evidence,
such that either there was no Sanchez violation or that any
violation was harmless even under Chapman’s “beyond a
reasonable doubt” standard.17
17
In his reply brief, defendant contends that “the only way”
an expert may rely on case-specific hearsay that has been
admitted through an appropriate witness is to “ ‘assume its
truth in a properly worded hypothetical question in the
traditional manner.’ ” Although we have approved of such an
approach, we have not limited an expert’s discussion to
hypothetical questions. We stated in Sanchez, for example, that
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First, Dr. Matthews opined that defendant was not in a
drug-induced delirium when he shot Officer Tony Zeppetella. In
reaching this conclusion, Matthews relied in part on the facts of
the offense, stating, for example, that an individual suffering
from delirium could not drive a car, provide relevant
identification to a police officer during a traffic stop, reload a
gun, drive to his mother-in-law’s home, or hide evidence inside
a vacuum cleaner bag because all of these steps required a
presence of mind inconsistent with delirium. He opined, too,
that defendant’s “normal demeanor” when examined by health
care workers immediately after the crime indicated defendant
was not suffering from delirium because “[p]eople who are
delirious would not know their surroundings and would not be
able to answer questions intelligently and give a good medical
history and behave cooperatively.” Each of these facts was
independently established in prior testimony; the facts
themselves were not contested, and the jury was able to weigh
Matthews’s opinion (that the facts indicated defendant did not
suffer from delirium) against Dr. Stewart’s opinion (that the
facts indicated defendant did suffer from delirium). Any
Sanchez error that related to Matthews’s description of these
facts was not prejudicial.
Second, Dr. Matthews opined that defendant suffered
from antisocial personality disorder, and that this disorder
explained defendant’s behavior at the time of the crime.
Matthews based this diagnosis on defendant’s “failure to
a jury considers certain facts for their truth “[w]hen an expert is
not testifying in the form of a proper hypothetical question and
no other evidence of the case-specific facts presented has or will
be admitted . . . .” (Sanchez, supra, 63 Cal.4th at p. 684, italics
added.
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conform to societal norms with respect to lawful behaviors
indicated by repeatedly performing acts that are grounds for
arrest,” that he “lied repeatedly about his date of birth and
name,” that he “showed irresponsible work behavior and had
been unemployed for significant periods of time,” and that he
had been “using heroin and methamphetamine despite being
made [aware] of their high risk of harmful consequences.”
Although defendant appears to object to the bases for
Matthews’s diagnosis as inadmissible case-specific hearsay, the
diagnosis itself appears uncontested. Indeed, defendant’s own
expert, Dr. Ordas, also testified that defendant suffered from
antisocial personality disorder. Further, each basis of
Matthews’s diagnosis was independently established by other
admissible evidence introduced at trial, including testimony
from defendant’s wife, Dr. Ordas, Dr. Stewart, and the officers
investigating the offense. Defendant’s wife, for example,
testified that she knew defendant had a drug problem “for a long
time,” that he used the alias “Roberto Vasquez,” and that he was
not working for “a couple of months” before killing Officer
Zeppetella. Any Sanchez error related to Matthews having
discussed that diagnosis was harmless given testimony by other
witnesses.
Finally, defendant asserts Dr. Matthews bolstered his
credibility by improperly referring to the documents and records
on which he relied. We are not convinced that Matthews went
further than simply “tell[ing] the jury in general terms” that he
relied on hearsay in forming his opinion. (Sanchez, supra,
63 Cal.4th at p. 685.) To the extent that he did, any error is
harmless because, as discussed above, the basis for each of
Matthews’s opinions was independently established by other
admissible evidence introduced at trial.
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b. Officer Carnahan’s testimony
In addition to challenging Dr. Matthews’s testimony,
defendant contends Officer Carnahan’s opinion that defendant
possessed narcotics for sale was based on inadmissible
hearsay — Detective Morgans’s statement to Carnahan that he
(Morgans) found a scale in defendant’s car. Morgans had
testified about the items he discovered in defendant’s car
(including a cell phone and syringes); he did not testify about
having discovered a scale. As such, and as the Attorney General
concedes, Carnahan’s testimony regarding the scale was error
under Sanchez.
The error was harmless, however. Defendant’s sole
argument related to prejudice is that the scale “was the key
element of [Officer Carnahan’s] conclusion that the drugs . . .
were possessed for sale.” This is not so. The scale was but one
of many bases for Carnahan’s conclusion. The other bases
included items Carnahan personally seized from defendant’s
house, including the baggies and balloons used to package
narcotics for sale, and the ammunition indicating defendant had
armed himself for protection (a tactic Carnahan stated was
common for those selling narcotics). Carnahan also stated that
the cell phone and syringes found in defendant’s car supported
his opinion. Because Detective Morgans testified at trial to
recovering these items, Carnahan could properly rely on the
detective’s testimony. (See, e.g., Sanchez, supra, 63 Cal.4th at
p. 686.) Carnahan stated that the “totality of what was
recovered” in defendant’s home and car led to his opinion. This
evidence was sufficient to support the officer’s conclusion. (See,
e.g., People v. Newman (1971) 5 Cal.3d 48, 53 [experienced
officers may give their opinion that narcotics are held for
purposes of sale based on matters including packaging,
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quantity, and normal use of an individual], disapproved on
another ground in People v. Daniels (1975) 14 Cal.3d 857, 862.
Additionally, Roybal, defendant’s coworker, testified that
defendant told Roybal he sold drugs, including heroin. The jury
was therefore presented with evidence of narcotics sales, and
testimony that defendant admitted he sold narcotics.
In light of these facts, we may conclude beyond a
reasonable doubt that the error in admitting Officer Carnahan’s
statement regarding the scale did not contribute to the jury’s
verdict finding defendant guilty of possession of narcotics for
sale.
6. Cumulative effect of asserted errors
Defendant argues that all of the alleged errors occurring
at the guilt phase cumulated in his not “receiv[ing] a fair trial
on the issue of his mental state at the time of the shooting” and
urges us to reverse his convictions on this basis. We have found
or assumed errors in three areas: those relating to the court’s
order that defendant submit to an examination by
Dr. Matthews; the prosecutor’s remarks regarding the ethics of
forensic psychiatry; and the testimony implicating Sanchez,
supra, 63 Cal.4th at page 665. We do not find these errors to be
cumulatively prejudicial.
“Defendant was entitled to a fair trial but not a perfect
one.” (Cunningham, supra, 25 Cal.4th at p. 1009.) Because
“[t]he few errors that occurred during defendant’s trial were
harmless, whether considered individually or collectively”
(ibid.), we reject defendant’s contention that his constitutional
right to a fair trial was violated.
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B. Penalty Phase Issues
1. Excusal of prospective juror
a. Background
Over defendant’s objection, the trial court excused
Prospective Juror No. 70 for cause because of her views on the
death penalty. Juror No. 70 had indicated in her questionnaire
that she was “somewhat opposed” to the death penalty. When
asked “[f]or what kinds of crimes, if any, do you believe the death
penalty should be imposed,” she wrote, “Perhaps, serial[] killers
& serial rapists that are beyond any sort of redemption.” The
juror also gave responses indicating that although she was
willing to consider evidence offered by defendant favoring life in
prison, she was unwilling to consider evidence offered by the
prosecution to persuade jurors to vote for the death penalty.
Both the defense and prosecution questioned the
prospective juror regarding her position on the death penalty.
During examination by defense counsel, Prospective Juror No.
70 stated, “I’m not necessarily in support of the death penalty.
I think too many innocent people have been put to death. . . . If
one person is put to death, that’s too many for me.” She also
reiterated that “[i]t would be difficult for me to put somebody to
death.” In response to the question whether “in some cases you
could see it [the death penalty] apply,” she replied, “It would be
difficult for me. I mean, it would have to be somebody like —
it’s hard — I know there’s evil that exists in the world . . . but it
would have to be, you know, a serial killer that . . . beyond any
kind of reasonable doubt has committed horrible crimes, you
know, violent crimes against people.” Defense counsel reminded
the prospective juror that on her questionnaire she had said the
death penalty “was appropriate for serial killers and heinous
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people who are unredeemable” and asked “so . . . you do see it
[as] appropriate for some people.” She responded: “Well, yeah.
Like I said, I believe evil does exist in our world, but I think
that’s not a whole lot that would qualify as truly evil.”
Defense counsel subsequently asked if Prospective Juror
No. 70 was “open to hearing [aggravating] evidence.” She
responded, “Well, I’m open to hearing it. It would take an awful
lot to convince me. I just can’t . . . imagine myself condemning
somebody to die.” Counsel followed up with similar questions,
and the prospective juror confirmed that she was “open to
listening to both sides.”
The prosecutor likewise probed the prospective juror
about circumstances under which she could vote for the death
penalty. Upon being asked, “if it’s not a serial killer, . . . you
can’t really conceive of imposing the death penalty outside that,”
she answered: “I think the person themselves would have had
to have given up on themselves too.” The prosecutor queried if
“realistically” there was a way for him to convince the
prospective juror “that death would be a proper verdict in a case
where there’s no allegation there’s more than one dead person.”
She replied, “It would be very difficult.” She nonetheless
clarified that she could not “be a hundred percent sure.
I honestly — I mean, I could imagine coming across someone
who is without any merit whatsoever and maybe deserves to die,
but I don’t know if it’s this particular defendant.” Prospective
Juror No. 70 also agreed with the proposition that
“participat[ing] in rendering a death verdict” “endorses the
death penalty side of the system.” The prospective juror did not
think she would “want to do that” because her “general
philosophy would sort of impair or prevent [her] from finding
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death” as part of a “system of death penalty law that [she does
not] think is fair.”
The court held a sidebar conference with the attorneys,
opening the discussion by stating, “I am inclined to excuse
[Prospective] Juror[] 70 . . . for cause.” When asked if she
wished to be heard, defense counsel replied, “With regard to 70,
I think it’s — it’s one of those borderline questions.” Defense
counsel emphasized that the prospective juror was “open to
listening to see” if defendant was “the kind of defendant that
would deserve the death penalty.” She also disputed that “the
only type of person [Prospective Juror No. 70] could describe
that would fit that category [of somebody deserving of the
ultimate punishment] is a serial killer,” arguing that the
prospective juror also included in that category “someone so evil
and so unredeemable.” The prosecutor interjected, contending
the prospective juror’s answers indicated that her feelings would
“substantially impair [her] from reaching a verdict of death.”
The court agreed, stating, “she even went further. I have down
a quote. Quote: I can’t imagine condemning someone to die.”
The court elaborated that in its view, the juror was “saying
hypothetically there may be one person out there — if Ted
Bundy is in here, I may consider [the death penalty], but I really
have such strong feelings, I can’t imagine having to be in that
position.” The court thus concluded, “we’re in a Witt situation”
and granted the prosecution’s challenge for cause.
b. Analysis
Defendant asserts the court’s excusal of Prospective Juror
No. 70 violated his right to due process and an impartial jury
guaranteed by the federal Constitution. We disagree.
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“Under federal and state law, a prospective juror may be
excluded for cause where his views on capital punishment would
‘ “prevent or substantially impair the performance of his duties
as a juror in accordance with his instructions and his oath.” ’ ”
(People v. DePriest (2007) 42 Cal.4th 1, 20 (DePriest); see also
Wainwright v. Witt (1985) 469 U.S. 412, 420, 424 (Witt).) Such
a standard “does not require that a juror’s bias be proved with
‘unmistakable clarity.’ ” (Witt, supra, 469 U.S. at p. 424.
Indeed, “the question [to determine juror bias] is not whether a
reviewing court might disagree with the trial court’s findings,
but whether those findings are fairly supported by the record.”
(Id. at p. 434.) “[W]here answers given on voir dire are equivocal
or conflicting, the trial court’s assessment of the person’s state
of mind is generally binding on appeal.” (DePriest, supra,
42 Cal.4th at p. 21.) “Accordingly, in such situations where the
trial court has had an opportunity to observe the juror’s
demeanor, we uphold the court’s decision to excuse the juror so
long as it is supported by substantial evidence.” (People v.
Spencer (2018) 5 Cal.5th 642, 659 (Spencer).
Substantial evidence supports the trial judge’s decision to
excuse Prospective Juror No. 70. As the court noted, the juror
stated during voir dire that she “can’t imagine myself
condemning somebody to die.” Furthermore, she repeatedly
made clear that it would be “difficult” or “very difficult” for her
to vote for the death penalty. (See People v. Duenas (2012
55 Cal.4th 1, 12 [“Comments that a prospective juror would
have a ‘hard time’ or find it ‘very difficult’ to vote for death
reflect ‘a degree of equivocation’ that, considered ‘with the
juror’s hesitancy, vocal inflection, and demeanor, can justify a
trial court’s conclusion . . . that the juror’s views would
“ ‘prevent or substantially impair the performance of his duties
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as a juror . . . .’ ” ’ [Citation.] On appeal, such a finding binds
us”]; People v. Poore (2022) 13 Cal.5th 266, 296 [Although “ ‘it is
true that a prospective juror is not disqualified merely because
she would find it difficult to impose the death penalty’
[citations], these panelists did not merely note the difficulty of
reaching a penalty decision. They went on to question their
actual ability to vote for death under any circumstances. ‘When
a prospective juror repeatedly says he does not know whether
he could realistically impose the death penalty, we will not
second-guess the trial court’s determination that the juror is
substantially impaired’ ”].) As indicia concerning how difficult
it would be for her, the juror emphasized her feeling that “too
many innocent people have been put to death” and “[if] one
[such] person is put to death, that’s too many for me.” She
followed by observing that she would not want to participate in
rendering a death verdict because to do so would be to endorse
a system of death penalty law that she believed to be unfair.
Prospective Juror No. 70 also described in her questionnaire
only a set of narrow circumstances not presented in this case —
“serial[] killers & serial rapists that are beyond any sort of
redemption” — as a situation in which she could “perhaps” view
the death penalty as appropriate.
The prospective juror’s written answers further bolster
the inference that she could not consider evidence presented to
support a verdict of death. In contrast to her unequivocal
answer that she would take into account “evidence offered by
the defendant favoring life in prison without the possibility of
parole,” the juror indicated that she could only “possibly”
“consider and give weight to any evidence offered by the
prosecution favoring the death penalty.” She further elaborated
that even if the “evidence is overwhelming” she could only
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“maybe” consider it. Likewise, although the juror was clearly
willing to “consider evidence the defendant introduces about his
life and history in support of life in prison without the possibility
of parole,” she was decisively unwilling to consider “evidence the
prosecution introduces about the defendant and his past to
arrive at a verdict of death.”
Under such circumstances, we conclude the trial court did
not err in excusing Prospective Juror No. 70. (Accord, e.g.,
Fuiava, supra, 53 Cal.4th at pp. 660–661 [“the trial court could
reasonably view Prospective Juror L.’s own statements that she
could be fair in assessing guilt but not penalty, that she would
have a ‘real problem’ voting for death, and her agreement that,
although perhaps not impossible, it would be ‘very unlikely’ she
ever would vote for death, as establishing that her ability to
follow the law would be substantially impaired”]; People v.
Williams (2013) 56 Cal.4th 165, 181 (Williams) [deferring to the
trial court’s ruling sustaining a challenge for cause when the
prospective juror “repeatedly expressed extreme discomfort with
the prospect of imposing the death penalty, telling the
prosecutor at one point that even though he had voted for the
death penalty, if personally called upon to carry it out, ‘I’d have
to pass’ ”]; People v. Thomas (2011) 51 Cal.4th 449, 471 [similar];
Jones, supra, 54 Cal.4th at p. 43 [similar]; DePriest, supra,
42 Cal.4th at p. 22 [similar]; People v. Lancaster (2007
41 Cal.4th 50, 80 [upholding a trial court’s dismissals when the
prospective venirepersons “gave answers during voir dire
indicating there was only a slim possibility they could vote for
the death penalty, regardless of the state of the evidence”];
Spencer, supra, 5 Cal.5th at p. 661 [citing cases to support the
proposition that it is not error to excuse members of the venire
when their responses indicated that scenarios in which they
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could vote for death did not reflect circumstances in the present
trials]; People v. Jones (2017) 3 Cal.5th 583, 615 [similar]; People
v. Tully (2012) 54 Cal.4th 952, 999–1000 (Tully) [similar].
It is true that Prospective Juror No. 70 also gave answers
that were somewhat more supportive of her ability to consider
aggravating evidence and that arguably suggested she would
not categorically exclude the possibility of imposing the death
penalty in this case. But this is simply to say that the
prospective juror’s answers were equivocal. As discussed, “the
proper inquiry in determining whether [Witt] error occurred is
not whether some evidence exists that the prospective juror
could vote for the death penalty.” (Spencer, supra, 5 Cal.5th at
pp. 660–661.) “The standard is instead whether substantial
evidence exists to support the trial judge’s determination that
the juror was substantially impaired in terms of his [or her]
ability to do so.” (Id. at p. 661.) Here, the trial judge was “left
with [such a] definite impression that a prospective juror would
be unable to faithfully and impartially apply the law” that she
was first to suggest that Prospective Juror No. 70 should be
excused. (Witt, supra, 469 U.S. at p. 426.) Defense counsel, too,
conceded that whether the juror was substantially impaired was
a “borderline question.” The most that could be said, therefore,
is that the prospective juror was ambivalent in her responses.
Such equivocation “requires that we defer to the trial court’s
assessment of her initial and ultimate state of mind.” (Jones,
supra, 54 Cal.4th at p. 43.) In light of such deference, we
conclude the trial court did not err in excusing the prospective
juror.
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2. Rulings on scope of cross-examination
a. Background
Before the penalty phase began, the trial court held a
hearing to discuss evidence the parties intended to introduce.
(See Evid. Code, § 402, subd. (b).) The defense indicated that it
planned to call defendant’s mother, sister, grandfather, and
wife. The defense made the following offer of proof regarding
these witnesses.
With respect to defendant’s mother, Diana Gil, defense
counsel stated that the intention was for Gil “to say where and
how [defendant] grew up and that she’s his mother, and she
loves him.” Upon hearing this offer of proof, the prosecutor
referenced defendant’s juvenile record and remarked, “[u]ntil
now we have . . . sanitized this case from that, but depending on
what she says . . . [t]he door opens . . . and I get to start talking
to her about what happened as he was growing up.” The trial
court agreed, indicating that if Gil “start[s] talking about what
a good child he was . . . that’s going to open the door to a lot of
this information coming in about his criminal record.” Defense
counsel responded, “I agree if we try to paint a picture that he
was a good boy, then bad boy comes in.” Counsel emphasized
that the defense would not present defendant as “a good student,
. . . a good child,” and “well behaved, because we recognize that
would open doors.” Instead, defense counsel asserted, his
mother’s testimony would simply “paint a picture of this is a
mother who’s going to be affected and . . . regardless of what
[jurors] know about her son, she loves him.” Counsel also stated
that a photograph of defendant at age 15 would be introduced
through Gil’s testimony. The court indicated it would allow the
photograph and that neither the photograph nor Gil’s testimony,
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as proffered, would subject the witness to cross-examination
about defendant’s juvenile record.
Defense counsel next discussed the anticipated testimony
of defendant’s sister, Tatiana. The offer of proof concerning that
testimony, counsel explained, “is that she loves him and that
she’s his little sister and where she fits in the family. Rather
brief.” The court ruled that it would allow Tatiana to testify,
finding her testimony not to be cumulative. It further clarified
that if Tatiana “wants to say in general he’s my brother and
I love him, then it would not open the door” to rebuttal evidence.
However, if Tatiana testified to “details [about] what a
wonderful person [defendant has] been, character evidence
about things he’s done for the family, for example, through his
life . . . that would open the door to impeachment with this
information that we have discussed.” Defense counsel
responded, “Thank you.”
Defense counsel continued the discussion with an offer of
proof concerning the testimony of defendant’s grandfather, Jose
Gil Torres. According to counsel, Torres would “draw [a] picture”
for the jury that defendant and his brother grew up with their
grandfather on a ranch before they began school and that Torres
“knew him then and has stayed in his life ever since” and still
“loves [defendant] today.” The court remarked that Torres’s
proffered testimony “doesn’t sound cumulative . . . and I would
allow it with the caveat about opening doors.” The prosecutor
clarified that if Torres “says he was a good kid and always a good
kid around the ranch and a hard worker, then it seems . . . the
door is opened.” The court responded, “Okay.”
Turning to the anticipated testimony of defendant’s wife,
Stacey Camacho, the parties first focused on the number of
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photographs that would be introduced through her narrative.
The defense stated that it intended to present four pictures of
defendant on construction sites and 25 pictures of defendant and
his wife and two children. The prosecutor objected to the latter
group, contending that they were cumulative. The court agreed,
and after some back and forth, the defense settled on nine
pictures of defendant’s family. The defense was thus permitted
to introduce 14 photographs in total: one of defendant at age 15,
four of defendant at his work, and nine of defendant with his
wife and children.
The prosecutor contended that the introduction of the nine
photographs of defendant with his family constituted indirect
evidence that defendant was a “good father and a good
husband.” The prosecutor asked that he be allowed to respond
to those photographs with letters defendant wrote to women
who were not his wife while he was held in pretrial detention,
the content of which was “sexually explicit.” The court said that
based on a weighing under Evidence Code section 352 it would
not allow such impeachment. However, “[i]f the witnesses were
going to say he’s a wonderful husband, he’s a great father, he’s
attentive — if they’re going to give character opinions . . . all
that would open the door.”18 The prosecutor inquired if the court
would consider revisiting its ruling if “Stacey Camacho takes the
stand and doesn’t . . . use the word[] ‘good,’ but starts to describe
18
The court had also summarized the scope of permissible
impeachment evidence, indicating that such evidence included,
among other things, “the horrendous facts of the present case,
the four prior felony convictions, [defendant’s] drug dealing,”
“long-term drug abuse,” “having the drugs in the home” and
possibly any prior statements of the witnesses that contradict
their anticipated testimony.
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what could only be concluded as she’s saying he’s good.” The
court indicated its willingness to do so, stating “none of these
rulings are etched in stone.”
At trial, the defense elected not to call defendant’s sister
or grandfather to the stand. It did introduce the testimony of
defendant’s mother and wife, both of whom testified consistently
with the offers of proof.
b. Analysis
Despite having agreed with the trial court’s in limine
rulings and presenting testimony in conformity with the offers
of proof, defendant now claims that the court erred in deciding
that, if the witnesses testified generally concerning defendant’s
good character, the prosecutor would be entitled to rebut with
evidence of defendant’s juvenile record, gang activities, or other
discreditable conduct. Defendant is mistaken.
As an initial matter, the claim is not preserved for appeal.
(See, e.g., Evid. Code, § 353; Tully, supra, 54 Cal.4th at p. 1010.
Before the court made any rulings, defendant outlined the
anticipated testimony, and the witnesses who testified at trial
gave accounts that were consistent with the offers of proof.
Although two of the potential witnesses, defendant’s sister and
grandfather, did not ultimately take the stand, there is no
indication that they forwent the opportunity because of the trial
court’s preliminary rulings. Moreover, when the court indicated
that if defendant’s mother testified concerning what a “good
child” defendant had been, she may be confronted with his
juvenile record, defense counsel fully concurred, stating “I agree
if we try to paint a picture that he was a good boy, then bad boy
comes in.” Counsel likewise made no objection when the trial
court sketched the circumstances under which the witnesses’
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testimony may “open the door” to cross-examination. In
addition, even though the court told the parties that its rulings
were preliminary and could be revisited when the witnesses
testified, defendant made no effort to expand the scope of
testimony at trial. Given his conduct below, defendant has
waived his claim.
In any event, defendant’s argument is without merit.
“When a defendant places his character at issue during the
penalty phase of a capital trial, the prosecution may respond by
introducing character evidence to undermine the defendant’s
claim that his good character weighs in favor of mercy and to
present a more balanced picture of the defendant’s personality.”
(Valdez, supra, 55 Cal.4th at pp. 169–170.) “As in other cases,
the scope of rebuttal must be specific, and evidence presented or
argued as rebuttal must relate directly to a particular incident
or character trait defendant offers in his own behalf.” (People v.
Rodriguez (1986) 42 Cal.3d 730, 792, fn. 24.) When a
defendant’s “good character evidence [is] not limited to any
singular incident, personality trait, or aspect of his background,”
rebuttal evidence may likewise be tailored to the “breadth and
generality of [the] good character evidence.” (People v. Mitcham
(1992) 1 Cal.4th 1027, 1072 (Mitcham).) “The trial court has
broad discretion to determine the admissibility of rebuttal
evidence and, absent palpable abuse, an appellate court may not
disturb the trial court’s exercise of that discretion.” (Valdez,
supra, 55 Cal.4th at p. 170.
In this case, the court specified that if members of
defendant’s family testified that he was a “good child,” “a
wonderful person,” “always a good kid,” “wonderful husband,” or
“great father,” then the prosecution would be allowed to confront
the witnesses with evidence of defendant’s misconduct. Such
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rebuttal evidence included not only information already in the
record — e.g., “the horrendous facts of the present case, the four
prior felony convictions, [defendant’s] drug dealing,” “long-term
drug abuse,” “having the drugs in the home” — but also
information previously excluded from consideration by the jury,
e.g., defendant’s juvenile record and his gang affiliation.19
Such a ruling is in line with our precedent and within the
trial court’s discretion. (Accord, e.g., People v. Carter (2003
30 Cal.4th 1166, 1204 (Carter) [the prosecution was entitled to
rebut testimony that “as a child, defendant did not cause
problems at the boys and girls club and wanted to stay in school
and make his mother proud of him” with evidence of defendant’s
juvenile adjudications and confinements]; People v. Fierro
(1991) 1 Cal.4th 173, 238 (Fierro) [“The witness had testified
generally to defendant’s good character and offered specific
examples of his socially useful activities . . . . Membership in
youth gangs was relevant to the issue of defendant’s character
and activities as a youth and specifically rebutted the direct
testimony of the witness”]; id. at p. 239 [concluding that the
defendant “was not entitled to elicit testimony that he was a
19
With regard to some of the proposed testimony (e.g., that
of defendant’s sister and grandfather), the trial court stated that
it had the potential to “open doors,” but did not specify what
impeaching evidence would be admissible. We do not take the
trial court’s comments to mean that all possible rebuttal
evidence would be admitted should the witnesses “open doors.”
Rather, the court spoke in general terms, which was
understandable given that the rulings were tentative and the
witnesses had yet to take the stand. In any event, we reiterate
that proper rebuttal evidence must be tailored to the “breadth
and generality of [the] good character evidence.” (Mitcham,
supra, 1 Cal.4th at p. 1072.
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‘respectful’ youth who ‘would never hurt anybody,’ and preclude
cross-examination as to whether the witness was aware of
conduct by the defendant inconsistent with the witness’s
testimony,” including his trouble with law enforcement while
growing up]; Mitcham, supra, 1 Cal.4th at pp. 1071–1072
[similar]; People v. Clair (1992) 2 Cal.4th 629, 684–685 [finding
no error when a witness “ ‘express[ed] an opinion as to the good
character of the defendant’ [citation], viz., that he was
‘compassionate, warm and considerate of other people’ ” and the
prosecution was permitted to ask if the witness knew the
defendant “had been charged with rape and forcible oral
copulation”].
Insofar as defendant claims the trial court erred by
limiting the number of pictures the court permitted to be
introduced via Stacey’s testimony, we discern no abuse in the
court’s ruling. It is clear that the trial court conscientiously
examined the proffered evidence and used its judgment in
reasonably reducing the number of photographs to avoid
cumulation. (Accord People v. Virgil (2011) 51 Cal.4th 1210,
1273 [“It was within the trial court’s discretion to limit the
number of photographs” of the defendant’s child to five].
Because the trial court did not abuse its discretion in
articulating the scope of rebuttal, defendant’s constitutional
gloss on the same argument, “to the extent it is preserved for
appeal, also is without merit.” (Fuiava, supra, 53 Cal.4th at
p. 670.
3. Instruction on sympathy for defendant’s family
a. Background
At the conclusion of the penalty phase, the trial judge
instructed the jury with, inter alia, CALJIC No. 8.85.
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In relevant part, the instruction read as follows: “Sympathy for
the family of the defendant is not a matter that you can consider
in mitigation. Evidence, if any, of the impact of an execution on
family members should be disregarded unless it illuminates
some positive quality of the defendant’s background or
character.”
b. Analysis
Defendant argues the trial court’s giving CALJIC No. 8.85
violated his constitutional rights by precluding the jury from
being swayed by sympathy for his family. Our case law is to the
contrary.
In People v. Ochoa (1998) 19 Cal.4th 353 (Ochoa), we
addressed whether capital juries may consider sympathy for a
defendant’s family in determining the appropriate sentence. We
began by noting the unsettled state of the law on the issue,
which had not been decided previously. (Id. at p. 455.) We
reasoned that capital juries are required to engage in “an
individualized assessment of the defendant’s background,
record, and character, and the nature of the crimes committed,
both as a matter of state law [citations] and as a federal
constitutional requirement [citations].” (Id. at p. 456.) As such,
in the context of a capital sentence determination, “what is
ultimately relevant is a defendant’s background and
character — not the distress of his or her family.” (Ibid.) We
therefore held that “sympathy for a defendant’s family is not a
matter that a capital jury can consider in mitigation, but that
family members may offer testimony of the impact of an
execution on them if by so doing they illuminate some positive
quality of the defendant’s background or character.” (Ibid.) As
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defendant concedes, this language from Ochoa serves as the
basis for the portion of CALJIC No. 8.85 that he now challenges.
As defendant must also concede, our court’s adherence to
Ochoa has been unwavering. (See, e.g., People v. Rices (2017
4 Cal.5th 49, 89 (Rices) [“Defendant contends that Ochoa, supra,
19 Cal.4th 353, was wrongly decided. We have rejected
substantially similar arguments and continue to do so”];
Williams, supra, 56 Cal.4th at p. 197 [“Defendant contends this
aspect of the standard instruction [of CALJIC No. 8.85] violated
California’s death penalty statute and his rights under the
Eighth Amendment. Established precedent is to the contrary”];
Tully, supra, 54 Cal.4th at pp. 1047–1048; People v. Livingston
(2012) 53 Cal.4th 1145, 1178–1179 (Livingston); Fuiava, supra,
53 Cal.4th at pp. 723–724; People v. Bennett (2009) 45 Cal.4th
577, 602 (Bennett); People v. Romero (2008) 44 Cal.4th 386, 425;
People v. Vieira (2005) 35 Cal.4th 264, 294–295 (Vieira); Carter,
supra, 30 Cal.4th at p. 1205; Bemore, supra, 22 Cal.4th at p. 856;
People v. Smithey (1999) 20 Cal.4th 936, 1000–1001.
Still, defendant contends that Ochoa must be reconsidered
in light of Cullen v. Pinholster (2011) 563 U.S. 170 (Pinholster).
Defendant ignores the fact that many of our cases affirming
Ochoa postdate Pinholster. (See, e.g., Rices, supra, 4 Cal.5th at
pp. 88–89; Williams, supra, 56 Cal.4th at pp. 197–198; Tully,
supra, 54 Cal.4th at pp. 1047–1048; Livingston, supra,
53 Cal.4th at pp. 1178–1179; Fuiava, supra, 53 Cal.4th at
pp. 723–724.) This is for good reason, because nothing the high
court said in Pinholster compels us to reject Ochoa.
In Pinholster, the court examined an ineffective assistance
of counsel claim brought in a habeas corpus petition.
(Pinholster, supra, 563 U.S. at p. 174.) The petitioner’s trial had
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taken place in Los Angeles in 1984. (See id. at pp. 176, 196.
During the penalty phase, the defense called only his mother,
Burnice Brashear. (Id. at p. 177.) Brashear testified to the
petitioner’s difficult childhood and highlighted positive aspects
of her son’s character. (Ibid.) In concluding that the petitioner’s
counsel did not perform deficiently by presenting only
Brashear’s testimony, the court reasoned that because the
petitioner was “an unsympathetic client,” “it would have been a
reasonable penalty-phase strategy to focus on evoking sympathy
for [his] mother,” the so-called “family-sympathy defense.” (Id.
at p. 193.) The court also said that there was “no evidence . . .
that [a family-sympathy mitigation defense] would have been
inconsistent with the standard of professional competence in
capital cases that prevailed in Los Angeles in 1984” and indeed,
“at the time, the defense bar in California had been using that
strategy.” (Id. at p. 196; see also id. at p. 232, fn. 21 (dis. opn. of
Sotomayor, J.) [“I do not doubt that a decision to present a
family-sympathy mitigation defense might be consistent ‘with
the standard of professional competence in capital cases that
prevailed in Los Angeles in 1984’ in some cases”]; Pinholster v.
Ayers (9th Cir. 2009) 590 F.3d 651, 707 (dis. opn. of Kozinski, J.
[“The main point of Burnice’s testimony was to create sympathy
for herself and the other members of [the petitioner’s] family in
the hope that the jury would take pity on them and spare them
the agony of losing a son and brother to the executioner. That’s
what’s known as the ‘family sympathy’ mitigation defense and
other lawyers in California used it at the time”].
Defendant argues that although the Pinholster court did
not say so “in so many words,” the case must be read to mean
that “sympathy for the family of the accused is a factor in
mitigation that a jury must be allowed to consider . . . [under]
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the ambit of the Eighth Amendment’s guarantee of a reliable
penalty determination.” That is, not only is sympathy for the
defendant’s family a permissible consideration for a capital jury,
but it is constitutionally prohibited for the state to preclude a
jury from taking such sympathy into account.
Pinholster cannot be fairly read to establish such a
constitutional mandate. We agree with the People that, for our
present purposes, all Pinholster does is indicate that a family-
sympathy defense was a viable strategy in California in 1984
when that “capital trial took place.” This is hardly surprising.
When we decided Ochoa in 1998, we noted that up until that
point, the law was unsettled regarding “ ‘whether the jury may
consider evidence of the impact a judgment of death would have
upon the defendant’s family.’ ” (Ochoa, supra, 19 Cal.4th at
p. 455; see also, e.g., In re Visciotti (1996) 14 Cal.4th 325, 337,
fn. 3 [observing that this “court has not considered whether
family sympathy is within any statutory factor (§ 190.3) or an
aspect of the defendant’s character or record which the jury
must be allowed to consider” but finding no occasion to
undertake such an examination]; Fierro, supra, 1 Cal.4th at
p. 241 [assuming but not deciding that “[a] defendant has a right
to introduce evidence of the effect of a death sentence on his
family”]; People v. Cooper (1991) 53 Cal.3d 771, 844, fn. 14 [“We
need not now decide whether evidence of the impact on the
defendant’s family comes within this ‘broad’ range of
constitutionally pertinent mitigation”].
We “resolve[d] the point” of ambiguity in Ochoa. (Ochoa,
supra, 19 Cal.4th at p. 455.) Accordingly, the law now — and at
defendant’s trial — is that “execution-impact evidence is
irrelevant under section 190.3 because it does not concern a
defendant’s own circumstances but rather asks the jury to spare
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defendant’s life based on the effect his or her execution would
have on his or her family” and “nothing in the federal
Constitution requires a different result.” (Bennett, supra,
45 Cal.4th at p. 602.) The trial court thus did not err in
instructing the jury that it should not consider sympathy for
defendant’s family as a mitigating factor in itself.
Besides reliance on Pinholster, defendant makes various
arguments essentially asserting that Ochoa was wrong at its
inception. Defendant “identifies no reason to reconsider our
conclusion.” (Bennett, supra, 45 Cal.4th at p. 602.) Nothing in
the authorities that defendant cites establishes that sympathy
for a defendant’s family — when unilluminating of “any
[positive] aspect of a defendant’s character or record and any of
the circumstances of the offense” (Lockett v. Ohio (1978
438 U.S. 586, 604) — is a mitigating factor a capital jury is
permitted to consider under California law and is required to
consider (when proffered) under federal constitutional
principles. Consistent with the principle of stare decisis, we
continue to adhere to Ochoa and its line of cases. (See, e.g.,
Bourhis v. Lord (2013) 56 Cal.4th 320, 327.
Finally, defendant makes an equal protection argument,
asserting that because criminals seeking to obtain probation
instead of prison can present evidence of the impact on their
families (Cal. Rules of Court, rule 4.414(b)(5)), death eligible
defendants should be able to present family sympathy evidence.
Defendant has provided no authority to support the proposition
that capital and probation-eligible defendants are similarly
situated such that the former are constitutionally entitled to
introduce certain evidence simply because the latter may do so.
Indeed, in rejecting a prior challenge to CALJIC No. 8.85, we
held that reliance on “family considerations in probation
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determinations is not on point.” (Williams, supra, 56 Cal.4th at
p. 197.) We explained that was so because section 190.3, and
our subsequent interpretation thereof — and not the probation
statutes — control the scope of matters relevant to
“ ‘aggravation, mitigation, and sentence.’ ” (Williams, supra,
56 Cal.4th at p. 197; see also Bennett, supra, 45 Cal.4th at p. 602
[stating that the probation statute has “no bearing upon this
court’s construction of section 190.3”].) Defendant attempts to
circumvent our precedent by stressing that we did not
previously consider California Rules of Court, rule 4.414. But
we do not see how the logic of our case law is undermined by the
rule of court, nor any indication that the rule itself could give
rise to a constitutional claim.
More directly, we do not agree with defendant’s contention
that “there is no rational distinction to be made that supports
allowing a judge to consider the impact of imprisonment on [a
probation-eligible] defendant’s family while enjoining the jury
from taking into account the impact of a defendant’s execution
on his family.” Probation is an act of clemency for which
individuals convicted of serious crimes are categorically
ineligible. (See § 1203, subd. (k) [“Probation shall not be granted
to . . . any person who is convicted of a violent felony . . . or a
serious felony”]; see also id., subd. (e).) There are plausible
reasons why the Legislature might want to allow consideration
of how a would-be prisoner could positively impact his or her
family if put on probation but not allow consideration of
sympathy evidence — when unconnected to any “positive
quality of the defendant’s background or character” (Ochoa,
supra, 19 Cal.4th at p. 456) — to influence a decision between a
sentence of death and life without the possibility of parole.
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In short, defendant has not persuaded us that he was
denied equal protection under the law because, unlike,
probation-eligible defendants, the jury could not take sympathy
for his family into consideration when deciding his sentence.
4. Omission of instruction on remorse
a. Background
Before the penalty phase began, defendant submitted a
proposed instruction concerning the role of remorse. The
instruction read, “Remorse, which by definition can only be
experienced after a crime’s commission, is something commonly
thought to mitigate aspects of the crime and defendant’s
culpability. [¶] You may consider defendant’s remorse for his
actions as a factor in mitigation.” The prosecutor objected to the
instruction as being “subsumed under factor k” of section 190.3,
and the court rejected the defense’s proposal. The court,
however, left open the possibility that if the jury asked about
being able to consider remorse, it would “perhaps give
something along the lines of what you’re requesting.”
The court instructed the jury with CALJIC No. 8.85. In
relevant part, the instruction stated, “In determining which
penalty is to be imposed . . . [y]ou shall consider, take into
account and be guided by the following factors . . . : (k) Any
other circumstance which extenuates the gravity of the crime
even though it is not a legal excuse for the crime, and any
sympathetic or other aspect of the defendant’s character or
record that the defendant offers as a basis for a sentence less
than death, whether or not related to the offense for which he is
on trial.” (See also § 190.3.
Both the defense and prosecution highlighted defendant’s
remorse — or the lack thereof — in their closing statements.
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Defense counsel informed the jury remorse was a proper
consideration under factor (k) of the relevant instruction.
Counsel then summarized the evidence that, counsel believed,
showed defendant experienced remorse after shooting the
victim.
The prosecution likewise acknowledged that remorse was
a mitigating factor that the jury may consider under factor (k).
The prosecution, however, argued that defendant displayed no
remorse. The prosecution urged the jury to find that the
mitigating factors, including any “so-called . . . remorse,” were
substantially outweighed by the aggravating factors.
b. Analysis
Contrary to defendant’s claim, we find no error in the trial
court’s refusal to give the proposed instruction on remorse. “It
is settled that CALJIC No. 8.85 properly instructs the jury on
aggravating and mitigating factors, and the court need not give
pinpoint instructions on mitigation.” (People v. Gonzales (2012
54 Cal.4th 1234, 1297.) Moreover, although a defendant is
entitled, upon request, “to an instruction that pinpoints the
theory of the defense,” he has no right to “an argumentative
instruction” or “an instruction ‘of such a character as to invite
the jury to draw inferences favorable to one of the parties from
specified items of evidence.’ ” (People v. Mincey (1992) 2 Cal.4th
408, 437.) The proposed instruction at issue here invited the
jury to “consider defendant’s remorse for his actions as a factor
in mitigation.” Such an instruction is argumentative — not
least because it presupposed that defendant experienced
remorse, when whether defendant did so was a disputed factual
issue, as highlighted by the opposing parties’ closing
statements. (See People v. San Nicolas (2004) 34 Cal.4th 614,
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673 & fn. 16 (San Nicolas) [“a pinpoint instruction” telling the
jury it may consider “ ‘[w]hether or not the defendant expressed
remorse or shame for his crime’ ” “ ‘properly belongs not in
instructions, but in the arguments of counsel to the jury’ ”].
In addition, the trial court instructed the jury with
CALJIC No. 8.85, the relevant portion of which allowed the jury
to consider “[a]ny other circumstance which extenuates the
gravity of the crime . . . , and any sympathetic or other aspect of
the defendant’s character or record.” (CALJIC No. 8.85.) “This
court has interpreted section 190.3 factor (k), which CALJIC
No. 8.85, factor (k) incorporates, as ‘ “allow[ing] the jury to
consider a virtually unlimited range of mitigating
circumstances.” ’ ” (San Nicolas, supra, 34 Cal.4th at pp. 673–
674.) As both parties acknowledged in front of the jury, remorse
is subsumed under factor (k) of CALJIC No. 8.85, meaning that
the jury may consider it in deliberations as a potential
mitigating circumstance. Because “factor (k) is adequate for
informing the jury that it may take account of any extenuating
circumstance,” “there is no need to further instruct the jury on
specific mitigating circumstances.” (Vieira, supra, 35 Cal.4th at
pp. 299–300.) “It is generally the task of defense counsel in its
closing argument, rather than the trial court in its instructions,
to make clear to the jury which penalty phase evidence or
circumstances should be considered extenuating under
factor (k).” (Id. at p. 300.
Defendant contends there was “no issue concerning the
accuracy of the proposed defense instruction” and suggests that
it was not argumentative nor duplicative. He asserts that
“[n]either the prosecutor nor the trial court voiced any concern
with the instruction as a whole or any of the wording” and “[i]n
fact, the trial court indicated that it would use the instruction if
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the jurors had a question about remorse.” Defendant’s
contention is belied by the record. Both the prosecutor and the
court took exception with the proposed instruction, finding it
unnecessary in light of CALJIC No. 8.85. Furthermore, the
court never said “it would use the instruction” defendant
proposed. Instead, it merely suggested that the court would
“perhaps give something along the lines of what [the defense
was] requesting” should certain circumstances arise. Such a
qualified statement lends no support to defendant’s argument.
5. Exclusion of testimony concerning conditions of
confinement for a prisoner serving a sentence of life
without the possibility of parole
a. Background
Outside the presence of the jury, the defense indicated it
planned to call an “expert with regard to prison conditions.”
According to the defense, the expert would testify “just generally
as to the custodial situation for a person doing life without the
possibility of parole.” The court excluded the proposed
testimony on the ground that a defense expert “may not render
. . . testimony on general LWOP conditions in the prison
system.”
Although excluding testimony on the subject, the court
confirmed that defense counsel was entitled to argue “what
prison conditions [would] look like for somebody who’s going to
get a sentence” of life without the possibility of parole. Counsel
in fact so argued to the jury during closing remarks.
b. Analysis
As defendant acknowledges, our case law rejects the
notion that he had a statutory or constitutional right to present
in his case-in-chief evidence regarding conditions of confinement
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for a defendant sentenced to life in prison without the possibility
of parole. (See, e.g., Eubanks, supra, 53 Cal.4th at p. 149
[“ ‘evidence of the conditions of confinement that a defendant
will experience if sentenced to life imprisonment without parole
is irrelevant to the jury’s penalty determination because it does
not relate to the defendant’s character, culpability, or the
circumstances of the offense. [Citations.] Its admission is not
required either by the federal Constitution or by Penal Code
section 190.3’ ”]; People v. Ervine (2009) 47 Cal.4th 745, 794–
795; People v. Ledesma (2006) 39 Cal.4th 641, 735; People v.
Smith (2005) 35 Cal.4th 334, 365–366; People v. Coddington
(2000) 23 Cal.4th 529, 636; People v. Majors (1998) 18 Cal.4th
385, 415–416; People v. Quartermain (1997) 16 Cal.4th 600, 632;
People v. Fudge (1994) 7 Cal.4th 1075, 1117; People v. Thompson
(1988) 45 Cal.3d 86, 138–139; cf. People v. Smith (2015
61 Cal.4th 18, 58 [“the defense may not introduce such evidence
[regarding prison conditions] as a factor in mitigation. The
defense may, however, respond to aggravating evidence
suggesting the defendant will be dangerous in prison”].
Defendant insists that we should reconsider but offers no
persuasive reason for us to do so. Although “defendant might
have an interest in telling the jurors of . . . the rigors of
confinement in order to impress upon them the gravity of their
responsibility, that interest could be satisfied in his argument.”
(People v. Daniels (1991) 52 Cal.3d 815, 877–878.
6. Cumulative effect of asserted errors
Because we have found no error in the penalty phase of
defendant’s trial, we reject defendant’s claim that his sentence
of death must be reversed due to the cumulative effect of the
purported errors discussed above.
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7. Constitutionality of California death penalty law
Defendant raises familiar arguments contending that
California’s death penalty scheme is unconstitutional. He has
given us no reason to revisit our precedents holding to the
contrary. We therefore continue to hold as follows.
“California’s death penalty laws adequately narrow the
class of murderers subject to the death penalty. [Citation.] In
particular, the special circumstances of section 190.2, which
render a murderer eligible for the death penalty, are not so
numerous and broadly interpreted that they fail adequately to
narrow the class of persons eligible for death.” (Navarro, supra,
12 Cal.5th at p. 345.
“Section 190.3, factor (a), directs the jury to consider as
evidence in aggravation the circumstances of the capital crime.
This has not resulted in the wanton imposition of the death
penalty in violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments by permitting prosecutors to argue that the
various features of the murder, even features that are the
converse of those in other cases, are aggravating factors.”
(People v. Schultz (2020) 10 Cal.5th 623, 683 (Schultz).
“ ‘The language “ ‘so substantial’ ” . . . ’ in CALJIC No. 8.88
‘is not impermissibly vague.’ ” (People v. Silveria and Travis
(2020) 10 Cal.5th 195, 327.
“Use of adjectives such as ‘extreme’ and ‘substantial’ in
section 190.3, factors (d) and (g), respectively, does not create a
constitutionally
impermissible
barrier
to
the
jury’s
consideration of a defendant’s mitigating evidence.” (People v.
Johnson (2016) 62 Cal.4th 600, 656.
“The court’s instructions regarding the various
aggravating and mitigating factors did not act as a barrier to the
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jury’s consideration of defendant’s mitigating evidence or
infringe defendant’s constitutional rights.” (Schultz, supra,
10 Cal.5th at p. 684.) In particular, the court is not required to
“identify which factors are aggravating and which are
mitigating. [Citation.] Directing the jury to consider ‘ “whether
or not” ’ certain mitigating factors were present does not invite
the jury to use the absence of such factors as a factor in
aggravation.” (Ibid.
Contrary to defendant’s suggestion, there is no
constitutional mandate that the jury be instructed to “find
beyond a reasonable doubt that the aggravating factors in this
case outweighed the mitigating factors” or that “aggravating
factors other than prior criminality [must be] proven beyond a
reasonable doubt.” (See People v. McDaniel (2021) 12 Cal.5th
97, 155.
“[T]he federal Constitution does not require that the jury
agree unanimously on which aggravating factors apply.”
(Navarro, supra, 12 Cal.5th at p. 345.
“Neither the federal Constitution nor state law requires
the jury be instructed that the prosecution bears some burden
of proof as to the truth of the aggravating factors (other than
factor (b) or (c) evidence) or the appropriateness of a death
verdict.” (Schultz, supra, 10 Cal.5th at p. 683.
The trial court need not instruct the jury that “it must
return a sentence of life without the possibility of parole if it
finds that mitigation outweighs aggravation.” (People v.
Johnson (2019) 8 Cal.5th 475, 528.
“The penalty phase jury is not required to make written
findings regarding its penalty choice, and the absence of such
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written findings does not preclude meaningful appellate
review.” (Schultz, supra, 10 Cal.5th at p. 684.
“Contrary to defendant’s assertion, there is no Eighth
Amendment requirement that California’s death penalty
scheme provide for intercase proportionality review, either in
the trial court or on review.” (People v. Johnson, supra,
62 Cal.4th at p. 656.
“California does not regularly use the death penalty as a
form of punishment, and ‘ “its imposition does not violate
international norms of decency or the Eighth Amendment’s
prohibition against cruel and unusual punishment.” ’ ”
(Navarro, supra, 12 Cal.5th at p. 346.
“Defendant acknowledges that this court has previously
rejected each of the challenges to California’s death penalty
scheme that he presents here. He asserts, however, that our
analysis of these issues is constitutionally defective because we
have failed to consider their cumulative impact or to address the
capital sentencing scheme as a whole. This court has considered
and rejected identical arguments before, and we do so again
here.” (Schultz, supra, 10 Cal.5th at p. 685.
102
PEOPLE v. CAMACHO
Opinion of the Court by Cantil-Sakauye, C. J.
III. DISPOSITION
Because defendant has not demonstrated reversible error,
we affirm the judgment in its entirety.
CANTIL-SAKAUYE, C. J.
We Concur:
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
GUERRERO, J.
103
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Camacho
Procedural Posture (see XX below
Original Appeal XX
Original Proceeding
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted
Opinion No. S141080
Date Filed: November 28, 2022
Court: Superior
County: San Diego
Judge: Joan P. Weber
Counsel:
Barry Morris, under appointment by the Supreme Court, for
Defendant and Appellant.
Kamala D. Harris and Rob Bonta, Attorneys General, Dane R. Gillette
and Lance E. Winters, Chief Assistant Attorneys General, Julie L.
Garland and James William Bilderback II, Assistant Attorneys
General, Holly D. Wilkens, Heather F. Crawford and Robin Urbanski,
Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Barry Morris
Attorney at Law
1407 Oakland Boulevard, #200
Walnut Creek, CA 94596
(925) 934-1100
Robin Urbanski
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9115
Opinion Information
| Date: | Docket Number: |
| Mon, 11/28/2022 | S141080 |
