Supreme Court of California Justia
Docket No. S058019
People v. Contreras

Filed 12/12/13



Plaintiff and Respondent,




Tulare County

Defendant and Appellant.

Super. Ct. No. 37619

A Tulare County jury convicted George Lopez Contreras (defendant) of

robbing and murdering a storeowner, Saleh Bin Hassan (Hassan). Defendant was

found guilty, as charged, of first degree felony murder (Pen. Code, § 187, subd.

(a))1, and of robbery (§ 211). The jury also sustained a special circumstance

allegation of murder in the commission of a robbery. (§ 190.2, subd. (a)(17)

(section 190.2(a)(17).) Defendant was found to have personally used a firearm

(shotgun) in committing each crime. (§§ 1192.7, subd. (c)(8), 1203.06, subd.

(a)(1), 12022.5, subd. (a).)

After a penalty trial, the same jurors who had decided guilt fixed the

penalty at death. The trial court denied defendant‟s automatic motion to modify


All further unlabeled statutory references are to the Penal Code except as

otherwise stated.


the penalty verdict. (§ 190.4, subd. (e).) The court pronounced a death judgment

for the special circumstance murder. Sentence also was imposed for the robbery

count and related firearm-use finding. This appeal is automatic. (Cal. Const., art.

VI, § 11, subd. (a); § 1239, subd. (b).)

We find no prejudicial error at defendant‟s trial. The judgment will be

affirmed in its entirety.


A. Summary

Prosecution evidence showed that Hassan was killed on December 29,

1994, while working at the Casa Blanca Market, which he and his wife owned in

Farmersville, near Visalia. He had been shot twice, including once in the back.

His dead body was lying prone behind the counter. Nothing was missing from the

cash register. However, Hassan‟s wallet and handgun were gone. Defendant was

implicated in the crime along with three other men: Jose Gonzalez (Jose), Santos

Acevedo Pasillas (Santos), and Louis Phillip Fernandez, Jr. (Louis). Defendant

carried a shotgun into Hassan‟s store, and was identified as the actual killer. At

the outset, criminal charges were jointly filed against all four men. Severance was

later granted, and defendant was tried alone. The jury returned a guilty verdict, as

stated above.

B. Prosecution Case-in-Chief

1. Testimony of witnesses present during the capital crime

A key witness was Jose Guadalupe “Lupe” Valencia (Lupe). At the

relevant time, Lupe lived with both his sister, Yesenia Valencia, and her


boyfriend, Jose. Jose introduced Lupe to defendant shortly before the capital


In December 1994, when Lupe had nothing to do, he went with Jose and

defendant to pick up the other alleged accomplices, first Louis and then Santos.

When Louis joined the group, they used his car.

Lupe described an unusual event that happened when the group picked up

Santos that day. Defendant and Santos brought two “long rifles” from the house,

and set them in the back seat of Louis‟s car. Louis was the driver, and Lupe was

the front passenger. The other three men — defendant, Jose, and Santos — sat in

the back on top of the guns.

Louis drove the group to a store in Visalia. Lupe did not know the store‟s

name. However, he recalled that on the way there, defendant, Jose, and Santos put

on makeshift masks. These masks were made of small pieces of cloth, and

covered each man‟s face from the nose down. Because of the masks and guns,

Lupe assumed the group planned to rob the store. However, the car did not stop,

and no robbery occurred, because there were too many people nearby.

Lupe‟s account continued: Louis drove to another spot, the Casa Blanca

Market, in Farmersville. Santos said he wanted to see if anyone was inside the

store. With the mask hanging around his neck, he exited the car and pretended to

use the pay phone near the door. Santos returned to the car and said the store was

empty. Defendant and Jose each responded by grabbing a gun and going inside.


Lupe‟s age is not clear from the trial record. However, as shown below, the

defense elicited on cross-examination that Lupe attended high school starting at
some point before December 1994, when the capital crime occurred, and
continuing through September 1996, when he testified at trial.


About 20 seconds later, Lupe heard a loud gunshot. He testified that Santos

reentered the car after “running out saying that George [i.e., defendant] got shot.”

Louis made a U-turn, apparently preparing to drive away. At some point, both

Jose and defendant, who had not been shot, joined the trio already inside the car.

Lupe testified that Louis drove the group to Santos‟s home. On the way,

defendant said he would “never forget the smile on his face,” an apparent

reference to the victim, Hassan. Lupe recalled that defendant was smiling and in a

“happyish” mood. At Santos‟s house, Louis dropped off his passengers and left.

Later, defendant accompanied Lupe and Jose to their home.

At trial, Lupe described certain conversations that night which implicated

both Jose and defendant in the robbery murder. According to Jose, the clerk at the

store displayed a gun. Jose said he attempted to shoot the clerk but his gun

jammed. Jose stated that he tried breaking into the cash register, which did not

open, and he took the clerk‟s wallet. After giving this account, Jose showed the

wallet to Lupe.3

Defendant incriminated himself on the same occasion. First, he offered

Lupe a handgun, which Lupe did not take. Lupe identified the handgun that

belonged to the victim, Hassan, as the one defendant displayed.


Lupe‟s testimony about Jose was corroborated, in part, by Lupe‟s sister,

Yesenia. She testified that Jose was her boyfriend at the time of the capital crime
and at trial. They had a child together. According to Yesenia, Jose admitted that
he entered the Casa Blanca Market to commit a robbery, and that “they had killed
a man” inside. Jose denied having a weapon inside the store. Jose showed
Yesenia a wallet, and said it came from the clerk. The last time Yesenia saw the
wallet was when Jose was arrested in August 1995. The police took the wallet at
that time. Both Lupe and Yesenia identified the wallet seized by the police as the
one Jose had shown them and used after the capital crime.


Second, Lupe testified that defendant said that “when he walked in, he

pointed the gun at the clerk and the clerk pulled out a gun and [defendant] shot

him.” Defendant promised to “get” any informers. Lupe assumed that this threat

was aimed at him, and that it meant defendant would “shoot [him] or something.”

Like Lupe, another witness, Amanda Garcia, saw events outside the Casa

Blanca Market on the day of the capital crime. At 3:00 p.m., she drove from the

Kmart in Visalia towards Farmersville, where she lived. Around 3:30 p.m. or 4:00

p.m., Garcia encountered a car she identified as Louis‟s car blocking traffic

outside the market. She stopped five or six car lengths behind the car, and saw

two people inside — one in the driver‟s seat and the other in the backseat.

Suddenly, two other individuals rushed out of the store. One of them carried a

long object shaped like a gun. Each person leaving the store wore a dark mask

that covered the face except for the eyes. Garcia saw a similar disguise on one of

the occupants of the car in front of her, after that person turned around in her

direction. The pair on foot got into the waiting car, which sped away.

2. Testimony of Artero Vallejo, Jr., and supporting witnesses

In 1994, Artero Vallejo, Jr. (Vallejo) was friends with defendant and

Santos. Vallejo testified that on December 29, the day of the capital crime, he

worked his regular swing shift in Visalia, which began at 3:00 p.m. and ended

between 11:00 p.m. and 11:30 p.m. After work, Vallejo went to Santos‟s house.

Both defendant and Santos were there.4


Vallejo‟s supervisor, Walter Cypert, confirmed at trial that, on December

29, 1994, Vallejo punched his time card at 2:55 p.m., when his shift began, and
punched it again at 11:03 p.m., when the shift ended.


Vallejo testified about incriminating statements Santos, defendant, and Jose

made the night of the capital crime. Santos told Vallejo that “[t]hey tried to pull a

little robbery,” that a “shooting” occurred, and that they got “nothing out of it.”

According to Vallejo, defendant volunteered that he “shot the clerk at the

store,” and that the shooting occurred as follows: Defendant held the shotgun in

one hand. The clerk offered no cash, and none could be found. Defendant warned

the clerk that he would be shot if he did anything. Defendant ended up shooting

him. Defendant then approached the wounded man and saw a smile on his face.

Defendant said, “I told you I was going to kill you.” Defendant kicked the clerk

and shot him a second time. Vallejo testified that, in recounting the crime,

defendant acted like “it was no big deal.” 5

During the same conversation, defendant admitted taking a .25-caliber

handgun from the store clerk. Defendant pulled the gun from his jacket pocket

and showed it to Vallejo. At trial, Vallejo identified Hassan‟s gun as the one that

defendant had displayed.6


Defense questioning revealed that Santos spoke to Vallejo a second time on

an uncertain date after December 29, 1994. Santos reportedly said during the
second conversation that defendant‟s infant son, Marco, was in the getaway car
with Louis outside the Casa Blanca Market. In addition, without identifying the
source of such information, Vallejo testified that he understood that Santos, not
Jose, wielded the .22-caliber rifle inside the store and watched the back area.
Either way, Vallejo consistently maintained at trial that, to his knowledge,
defendant shot Hassan twice with the shotgun.


The handgun that defendant showed to both Lupe and Vallejo was

discovered shortly after the capital crime in the possession of defendant‟s brother,
Fernando Contreras. Officer Jeff McIntosh of the Visalia Police Department
testified that on January 9, 1995, he encountered Fernando sitting in a stolen truck
“[r]ight next door” to his Visalia home. McIntosh detained Fernando, performed a
patdown search, and found a loaded .25-caliber handgun in his pants pocket. At
trial, McIntosh identified Hassan‟s handgun as the one he took from Fernando.
Two other witnesses, Police Officer Gary James and defendant‟s mother Maria

(footnote continued on next page)


Vallejo testified about other guns that linked defendant to the Casa Blanca

crimes, as follows: When defendant needed guns, he would borrow them from

Jesus Manuel Fernandez, or “Shorty” (Shorty). One or two weeks before the

capital crime, Vallejo went with defendant and Santos to Shorty‟s home and

borrowed a shotgun and a .22-caliber rifle. Later, on December 28, the night

before the murder, Vallejo was told by either defendant or Santos that defendant

had picked up the same guns at Shorty‟s house earlier that day.7 The purpose was

to “pull a little job,” which Vallejo understood to mean an armed robbery, and to

get some quick cash. Shorty‟s wife transferred the weapons at that time.8

Vallejo‟s testimony also encompassed his contact with the other

perpetrators, Jose and Louis, the night that Hassan was killed. Specifically, Jose

and Louis arrived at Santos‟s house while defendant, Santos, and Vallejo were

there. According to Vallejo, Jose discussed events inside the Casa Blanca Market.

(footnote continued from previous page)

Contreras Lopez, testified that in December 1994 and January 1995, defendant and
Fernando both lived with their mother at the same address — the one adjacent to
where Hassan‟s gun was recovered from Fernando.


Shorty testified at trial consistently with Vallejo‟s account, as follows:

Shorty and defendant were good friends who sometimes went hunting together
with Shorty‟s guns — a 12-gauge shotgun and a .22-caliber rifle. Other times,
Shorty loaned the guns to defendant for his own use. Defendant usually returned
them within two days. Around Christmas 1994, defendant and Santos borrowed
the shotgun and rifle. They picked them up from Shorty‟s wife with Shorty‟s
permission. But this time, unlike before, defendant did not return the weapons.
He told Shorty that Santos lost them.


Shorty‟s wife, Mariela Fernandez, testified that she once lent both of her

husband‟s long guns to defendant. Though she was uncertain of the date, the
transaction might have happened around November, a “long time” before trial.
Mrs. Fernandez recalled defendant being accompanied by at least one other
person, Santos.


Jose told Vallejo that “George [i.e., defendant] had shot him [i.e., the clerk], that

he [apparently, Jose] couldn‟t find the money, and that he said he was looking all

over the place for the money.”

Vallejo further testified that all five men left Santos‟s house together that

night. After stopping briefly at Louis‟s house, the group went out to “celebrate”

the shooting. They visited a bar named The Break Room, and then attended a

party in Farmersville. Vallejo testified that he and his companions each drank

alcohol at both places, and that they also ingested “crank,” or methamphetamine,

at the party. The group eventually split up. Santos and Louis went home, and

defendant, Jose, and Vallejo attended a second party.

Vallejo denied being present at the Casa Blanca Market during the robbery

murder or otherwise having any involvement in the crime.

3. Postcrime investigation

At 3:27 p.m. on December 29, 1994, Deputy Scott O‟Neill of the Tulare

County Sheriff‟s Department was dispatched to the Casa Blanca Market. When he

arrived a few minutes later, he found Hassan, dead, behind the cash register. His

body was lying facedown on the floor. Based on witness statements at the scene,

O‟Neill estimated that the crime happened at 3:20 p.m.9

The autopsy physician, Dr. Leonard Miller, testified that Hassan sustained

two fatal gunshot wounds. One shot had penetrated the left side of the victim‟s


A sheriff‟s detective, James Schwabenland, was called to the crime scene at

3:40 p.m. on December 29, 1994. He took photographs and collected physical
evidence. Almost no useable fingerprints were found in the store — a scenario
that Schwabenland testified was common in public places. The only exceptions
were the victim‟s fingerprint, which was found on a cigarette pack, and another
unidentified fingerprint left on a soda can.


abdomen. The other shot had entered his lower back, toward the right side of the

body. Each wound was inflicted with a shotgun.

Sheriff‟s Detective James Hilger investigated the Casa Blanca Market

crimes. They went unsolved for several months. The situation changed in August

1995. At that time, under circumstances discussed further below, Vallejo

voluntarily contacted law enforcement officials. He offered to provide

information about the killing and to identify the perpetrators. On August 11,

Detective Hilger tape-recorded Vallejo‟s statement. Defendant apparently was

arrested the same day.

A short time later, law enforcement officials contacted Lupe. For the first

time, he disclosed what he knew about the capital crime.10

C. Defense Case

Defendant called two witnesses who were outside the Casa Blanca Market

the day of the capital crime. Byron Northcutt, who lived one block away, testified

that he heard three gunshots, and saw a man with a rifle leave and then reenter the

store. Two men then left the store, led by the one with the rifle. They entered a

waiting car. Both wore hoods. Northcutt could not tell if the second man had a

gun. The second defense witness, Joel Mohr, was repairing a car 50 yards away

when he saw one man leave the store, yelling at someone inside to hurry. A

second man, wearing a hood, came out, stood in the driveway, and shot toward the

store. At most, Mohr heard two shots. He did not see whether the first man had a


In response to questioning by the prosecutor, Lupe testified that, before

trial, he signed an agreement with the district attorney‟s office to testify truthfully
in exchange for avoiding prosecution for his presence outside the Casa Blanca
Market at the time of the robbery murder.


gun or hood. Mohr watched the men enter a car that had been parked near the pay

phone and that swung around to meet them. Two other men were in the front seat.

The defense also elicited testimony from Detective Hilger to the effect that

certain details in Vallejo‟s pretrial taped statement did not match his trial

testimony. For instance, in the police interview, Vallejo said that when he arrived

at Santos‟s house after work on the night of the capital crime, Jose was already

there with defendant and Santos. However, Vallejo testified at trial that he arrived

before both Jose and Louis.

The rest of the defense case consisted of an alibi for the Casa Blanca

crimes. It was offered by the following members of defendant‟s family: Claudia

Gutierrez Contreras, who was defendant‟s girlfriend in December 1994 and his

wife at the time of trial; Claudia‟s sisters, Erika Gutierrez and Patricia Murillo;

Patricia‟s husband, Raul Murillo; and Martina Gutierrez, the mother of Claudia,

Erika, and Patricia.

Together, these witnesses (whom we identify by their first names) testified

as follows: Defendant picked up Claudia after she left work at 3:36 p.m. on

December 29, 1994. After stopping at Claudia‟s house, defendant and Claudia

went to pick up Claudia‟s sister, Erika, at the accounting firm in Visalia for which

she worked. Defendant and Claudia — who had defendant‟s infant son, Marco, in

the car — waited 45 minutes in the parking lot until Erika left work.11


Defendant‟s son, Marco, turned one year old in mid-December 1994. His

mother is Arcadia Hernandez, with whom defendant was involved while
temporarily estranged from Claudia. Defendant and Arcadia have a second child
Jasmine, who was born in February 1995, shortly after the capital crime. In
December 1994 and January 1995, defendant lived in his mother‟s home, and
Arcadia lived elsewhere with her family. Members of defendant‟s family testified
that defendant had physical custody of Marco in December 1994, including the

(footnote continued on next page)


Meanwhile, Erika looked out of an office window and recognized two

couples in the parking lot: (1) defendant and Claudia, and (2) Patricia and Raul.

Each couple waved at the other. Patricia and Raul had arrived there around 4:00

p.m. to obtain a personal loan from a finance company in Erika‟s office

building.12 After Erika left work at 5:00 p.m., defendant drove Claudia and Erika

home. He did not leave their house before midnight.

Claudia testified that in January 1996, one year after the killing and five

months after defendant‟s arrest in August 1995, she found the written loan

agreement that Patricia and Raul had signed on December 29, 1994. This

information was passed along to Erika, Patricia, and Martina. These family

members testified that the contract helped them recall defendant‟s whereabouts

when it was signed.

D. Prosecution Rebuttal

The prosecution challenged the defense theory that, shortly after the Casa

Blanca Market crimes, defendant was in a car with his infant son, Marco, and with

Claudia, meeting Claudia‟s sister, Erika, after work. As noted, Marco‟s mother is

Arcadia Hernandez (Arcadia). Arcadia‟s sister, Elisabeth Hernandez (Elisabeth),

testified that throughout December 1994, Marco stayed with Arcadia and

(footnote continued from previous page)

week between Christmas and New Year‟s Day. The prosecution contested the
latter point on rebuttal, as discussed below.


Isaac Perez testified that he worked for the finance company from which

Patricia and Raul obtained their loan, and that he met with them the day they
signed the contract, December 29, 1994. On cross-examination, Perez noted that
no time of day appeared on the contract, and that he had no memory in that regard.
The loan signing could have occurred anytime in the afternoon, most likely
between 2:00 p.m. and 4:30 p.m.


Elisabeth in their mother‟s home, and that he was not visited or taken by defendant

during this time.13

E. Defense Surrebuttal

Claudia (defendant‟s girlfriend in 1994 and his wife at trial) testified that a

photograph depicting defendant with her and Marco was taken around Christmas,

1994. Defendant‟s mother testified that Marco‟s head was shaved in December

1994, as depicted in the same photograph.14


A. Prosecution Case

1. Victim Impact Evidence

Hassan‟s widow, Alya Saed Hassan, testified (through an interpreter) about

her husband‟s character and the effect of his death on loved ones. The couple had

been married for 30 years and had three children, the youngest of whom was 10

years old at the time of trial. Alya described her husband as irreplaceable — the

love of her life. He was exceptionally hardworking. For 16 years, he labored on

farms, and the couple saved money, in order to buy the Casa Blanca Market.

During the eight-year period in which they owned the store, Hassan worked on the

premises 15 hours a day. The family lived next door in a trailer. Alya regretted


The prosecution‟s rebuttal case also touched on the capital crime itself.

Detective Hilger testified that defense witness Byron Northcutt stated before trial
that each perpetrator may have had a gun when exiting the store. This evidence
(1) supported the two-gun scenario described by Lupe and Vallejo in the
prosecution‟s case-in-chief, and (2) undermined Northcutt‟s testimony for the
defense that he could not tell if there was more than one rifle.


Arcadia, Marco‟s mother, was called as the last defense witness at the guilt

phase. Contrary to defense counsel‟s apparent expectation, Arcadia testified that
defendant did not take Marco from her custody in December 1994. As noted,
Arcadia‟s sister Elisabeth gave a similar account in the prosecution‟s rebuttal case.


having to start using welfare benefits after Hassan‟s death. The family could not

afford mental health counseling to handle the loss.

2. Unadjudicated Assault with a Firearm

The prosecution presented evidence that, on August 29, 1994, four months

before the capital crime, defendant shot at a car, knowing that his own son, Marco,

was one of several people inside. The incident began when Arcadia came home

from work and discovered that defendant had picked up Marco while he was being

watched by Arcadia‟s sisters, Elisabeth and Maria Torres (Maria). Six people

drove in a Thunderbird to retrieve Marco from defendant‟s mother‟s home, where

defendant lived. They were Arcadia, Elisabeth, Maria, Maria‟s husband Ramon,

Ramon‟s brother Angel, and Maria and Ramon‟s infant son.

According to all three witnesses who described the incident at trial —

Maria, Elisabeth, and Ramon — Arcadia went to defendant‟s door, and the two

began arguing. The couple then sat down on a bench. Meanwhile, Maria and

Elisabeth exited the car, took Marco from the house, and got into the car with him.

Maria testified that defendant may have momentarily retrieved Marco during this

process, but Elisabeth had no such recollection. At some point, defendant asked

Ramon to identify the driver, Angel. Arcadia reentered the car last. It then

contained the six original occupants plus Marco.

All three witnesses gave similar, though not identical, accounts of what

happened next. Maria heard multiple shots, and turned to see defendant holding a

gun and “pointing to the car” at a downward angle. For reasons she did not

explain, Maria believed defendant may have shot up into the air first before firing

at the car. Elisabeth, in turn, saw defendant pull an object out of his pants, and

heard several gunshots. Though Elisabeth did not see a gun or the direction in

which it was aimed, she knew defendant was the shooter because no one else was


nearby. Ramon looked back out of the car window, and saw defendant get up

from the bench and approach the car from behind. Defendant then took out a

handgun and “pointed at the car.” Standing seven or eight feet away, defendant

fired three or four shots. Arcadia screamed, and the Thunderbird sped away.15

Angel, the driver, headed directly to a store, where the police were called.

Officer James Rapozo of the Visalia Police Department arrived at the scene of the

shooting around 10:00 p.m., soon after the shooting occurred. The victims

described a custody dispute in which the child was retrieved from the father. The

officer testified that he found two expended shells from a .380-caliber handgun in

the road. He also saw two bullet holes in a wall nearby. One of them was two feet

from the ground. In the dark, neither Officer Rapozo nor anyone in the

Thunderbird saw damage to the car. The next day, however, Maria and Ramon

saw a bullet hole in the rear spoiler.

B. Defense Case

Defendant‟s older sister, Angelica Torres, provided a substantial amount of

background information, as follows: Defendant‟s parents and all 10 of their

children, including defendant (the third youngest child), were natives of Mexico.

When they wed, defendant‟s father was 18 years old and his mother was 13 years

old. They remained married at the time of trial.

Angelica recalled that, in Mexico, the family lived a “normal” life in a

small town. They were neither rich nor poor. Both parents were hardworking.

Defendant‟s father was the main provider, but he could not support the family

alone. Defendant‟s mother was a seamstress. She cared for the children at home.


Maria was not asked to describe the weapon defendant used. In passing,

however, she called it a “shotgun.” Elisabeth could not see what kind of gun it
was. Ramon saw a handgun, not a long gun.


According to Angelica, she and defendant had a close emotional bond. She

was 10 years older, and helped care for him as a child. When defendant was four

years old and Angelica was 14 years old, she moved from Mexico to Los Angeles.

Angelica stayed in touch with defendant and the rest of the family, visiting them


Angelica continued: When defendant was six or seven, the family moved

to Visalia, where they bought their own home and have lived ever since. Both

parents continued to support the family. Angelica, who moved back and forth

between Los Angeles and Visalia, remained close to defendant. She eventually

bought a home next door to her parents. At one point, Angelica, her mother, and

other female relatives worked in the same factory. The extended family was both

large and close.

At trial, Angelica acknowledged that her parents‟ marriage was not strife

free. A few days before defendant was born in 1974, defendant‟s father beat his

mother — a fact that upset defendant when he learned about it several years later.

Angelica insisted defendant was a normal, healthy, and playful child. She

described her mother as affectionate and gentle, and her father as emotionally

distant from all of his children. The parents argued over little things. Angelica

learned from her siblings that, once or twice, while she was not present or living at

home, her father hit her mother.

Angelica testified that the family shared a strong belief that defendant did

not commit the capital crime. Defendant‟s mother and other relatives helped care

for his two children after his arrest. Their mother, Arcadia, was young and


reportedly distracted from her parental duties. According to Angelica, defendant

was a proud and devoted father.16

Defendant‟s wife Claudia testified that she had known defendant since the

eighth grade. She would love, support, and communicate with him even if he

spent his entire life in prison. She planned to maintain a relationship with

defendant‟s children and to help them stay close to their father. When asked how

she would feel if defendant were sentenced to death, Claudia replied that “they

could put me to death, too.”

The defense also called Bill Wittman, who was elected Sheriff of Tulare

County 18 months before he appeared at trial. Wittman testified that he had

known defendant for at least 10 years ending in 1993, before the capital crime.

Defendant was a “good kid” who participated in recreational sports at a

community center that Wittman helped build and run. Wittman occasionally

visited defendant‟s family in their home near the center. Except for defendant‟s

older brother, Fernando, who was a bully with an arrest record, other family

members seemed warm and hospitable. Once, defendant refused payment for

work he and other children had performed on Wittman‟s ranch.

Louisa Duarte had lived next door to defendant‟s family since they moved

from Mexico to Visalia. She testified that defendant and his siblings were well-


On cross-examination, Angelica acknowledged that all of her siblings,

including defendant, had volatile temperaments. For the most part, however, they
were a productive and law-abiding group. At the time of trial, Angelica was a
college student who worked for the Federal Aviation Administration. One sister,
Gloria, had held the same job since she came to the United States, and another
sister, Erma, was a housewife and former factory worker. Two other sisters,
Maria Alejandra and Monica, were medical assistants studying nursing in college.
Their brother, Pablo, was married and employed in the construction industry.


behaved and respectful. Defendant practiced speaking English, his second

language, with Duarte. He always had a “special smile.”

C. Prosecution Rebuttal

Arcadia, the mother of defendant‟s children, testified that defendant had

seen his daughter, Jasmine, only twice since her birth. He provided no financial

support for either Jasmine or her brother, Marco.

Jerry Speck supervised defendant when he was on juvenile probation for

possessing a pellet gun at school. Speck testified that in October 1991, defendant

declined Speck‟s request to perform court-ordered community service. Defendant

became loud and defiant and refused to calm down. Speck arrested him and took

him to juvenile hall. On cross-examination, Speck disclosed that defendant was

pleasant when he was not angry, and that he had trouble appreciating the

consequences of his actions.

D. Defense Surrebuttal

Victor De Vaca was a teacher who met defendant when he attended middle

school. De Vaca testified that he once drove defendant to a special event where

defendant received an award that the teachers gave to certain students. Defendant

was a typical student — “all boy” — in De Vaca‟s view. On cross-examination,

De Vaca noted that defendant had participated in a few fights at school, and that

De Vaca had driven him home afterwards.


Defendant maintains that, for various reasons, the trial court failed to

explain to the prospective jurors certain general legal principles applicable in all

criminal trials. He contends the omission violated his federal and state

constitutional rights to due process, an impartial jury, equal protection, effective

representation, and a reliable capital determination. (U.S. Const., 5th, 6th, 8th &


14 Amends.; Cal. Const., art. I, §§ 16, 17.) A related statutory claim is also made.

(Code Civ. Proc., § 223.) No error occurred.17

A. Background

The jury selection process took place over a three-week period in August

and September 1996. The trial court first read the information to all prospective

jurors, and emphasized that it involved “mere allegation.”

The court then explained the bifurcated nature of the trial, to wit, that jurors

would decide guilt of the charged crimes in the first phase, and that only in the

event of a first degree murder conviction and a special circumstance finding would

a penalty phase occur. The court identified the death penalty as one possible

sentencing choice. As a time estimate, the court predicted (accurately) that, at

most, the guilt trial would last one to two weeks, and that the pretrial jury selection

process could take “a little bit longer.”

Prospective jurors were divided into two panels. In the presence of both

counsel, the court questioned and excused numerous candidates on hardship


As to this and virtually all other appellate claims, defendant contends that

an issue raised and decided in the trial court resulted in constitutional violations,
but he did not present those constitutional theories below. In such instances, it
appears that (1) the appellate claim is the kind that required no trial court action to
preserve it, or (2) the new arguments do not invoke facts or legal standards
different from those the trial court was asked to apply, but merely assert that the
trial court‟s act or omission, in addition to being wrong for reasons actually
presented to that court, had the legal consequence of violating the Constitution.
To that extent, defendant‟s new constitutional arguments are not forfeited on
appeal. (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17 (Boyer), applying
People v. Partida (2005) 37 Cal.4th 428, 433-439.) In the latter case, no separate
constitutional discussion is required or provided where rejection of a claim that the
trial court erred on the issue presented to that court necessarily leads to rejection of
any constitutional theory or “gloss” raised for the first time here.


grounds. Counsel jointly stipulated to many of these excusals. The court

estimated that as many as 137 people “passed hardship.”

Next, the trial court described the jury selection process to each panel of

prospective jurors. First, the court discussed the need for written questionnaires

on a broad range of topics. The court also announced its plan to examine each

person on an individual basis, outside the presence of other prospective jurors. In

doing so, the court sought to promote candor and save time.

Second, the trial court told all prospective jurors that the death penalty

would be explored during each personal sequestered voir dire. The court further

stated that, during these sessions, both the court and counsel (i.e., “myself and the

attorneys”) would inquire about “additional areas concerning [jurors‟] ability to

be fair and impartial.” Counsel would receive copies of the completed

questionnaires before voir dire in order to study them and prepare questions.

Third, the trial court advised both groups of prospective jurors about the

standard of proof at the guilt phase. The court said, “If the jury is convinced

beyond a reasonable doubt the defendant is guilty of murder in the first degree,

and that the special circumstance of murder in the commission of a robbery is true,

then the trial will go into a second phase.” Each panel was also told that both

parties were entitled to a fair and impartial jury, and that jurors must “abide by the

law” set forth in the instructions.

Following these advisements, the trial court asked prospective jurors to

complete a lengthy questionnaire, and to sign it under penalty of perjury. The

written questions concerned such topics as personal background, views on capital

punishment, attitudes toward the criminal justice system, and opinions about

defendant and the charged crimes.

On the latter topic, question No. 64(a) asked whether, for any reason, the

prospective juror had “formed or expressed any opinion as to the guilt or


innocence” of defendant, and to explain any “yes” answer. Question No. 76

(echoed in question No. 85) addressed the related issue whether the person

harbored any “bias” or “prejudice” toward defendant that would affect the ability

to render a decision “under the law.” Question No. 79 alluded, in turn, to certain

controlling legal principles — the defendant‟s privilege not to testify, the

presumption of innocence, and the People‟s burden of proof. Thus, prospective

jurors were asked to explain whether they “disagree[d] with the law” or could not

“follow the law” allowing the defendant to remain silent at trial. A similar

explanation was sought as to any belief that a criminal defendant “should have to

prove he or she is not guilty,” as opposed to the People having to prove guilt.

Guided by the handwritten answers to such questions, the trial court and

counsel jointly conducted individual sequestered examinations of all prospective

jurors. Each interview had a similar format, as follows:

First, the trial court almost always began by repeating its advisement about

application of the reasonable doubt standard at the guilt phase, and/or by

emphasizing that the People bore such burden of proof. Otherwise, except in a

few cases not involving persons who later served as actual or alternate jurors, any

deviation from this general pattern involved instances in which (1) defense

counsel advised prospective jurors about the standard and burden of proof at the

guilt phase, (2) the prospective juror volunteered his or her understanding of such

principles, or (3) defense counsel summarily exercised or agreed to a challenge for

cause based on some patently disqualifying factor (e.g., automatic preference as to

penalty or inability to attend trial).

Second, during the interviews, the trial court inquired about the person‟s

views on the death penalty and on life imprisonment without the possibility of

parole. Both counsel routinely asked follow-up questions on sentencing.


Third, as previously authorized by the court, counsel on both sides inquired

during individual sequestered voir dire, often vigorously, about other factors

bearing on the prospective juror‟s ability and willingness to serve in a fair and

impartial manner. Many exchanges concerned the meaning of a criminal

defendant‟s right to a fair determination of guilt beyond a reasonable doubt,

including any knowledge or experience gained during prior jury service in

criminal trials. Other questions concerned whether the person harbored any bias

against the defense, or could follow the law and instructions.

During this process, the trial court granted numerous challenges for cause

by the parties. Apparently, 81 prospective jurors remained in the pool afterwards

— almost 60 fewer persons than before the process began.

Defense counsel then asked whether the trial court intended to conduct “any

so-called general type voir dire in the sense of jurors that have any problems with

reasonable doubt or the burden of proof.” Counsel suggested that prospective

jurors be assembled “in the box” for this purpose. The court declined to do so,

saying “[w]e did a voir dire. I don‟t know why I need to do any more.” When the

court sought to clarify the defense request in any event, counsel said, “We never

had a question that really has to do with just jurors[‟] understanding and

acceptance of the burden of proof, the presumption of innocence. Some of this

general stuff that we always do.”

In response, the court offered to read CALJIC No. 0.50, a standard pretrial

instruction on the basic functions, duties, and conduct of jurors. Counsel agreed.

He said, “[f]ine with me,” “I don‟t have any problem with that,” and “I don‟t want

to tie up a lot of time.” The court said it would “go ahead and do it,” and would


ensure that no one had “any problem[ ]” with “following those laws.” Counsel did

not raise the issue again.18

One week later, at the next court session, the court assembled the

prospective jurors to allow the parties to exercise peremptory challenges. Before

this process began, the court instructed the jury with the legal principles to which

defense counsel had referred. Specifically, prospective jurors were reminded of

the nature of the charges, and were repeatedly told that the People bore the burden

of proving guilt beyond a reasonable doubt. The court dismissed any suggestion

that defendant “need[ed] to prove his innocence,” and reaffirmed that defendant

“ha[d] no burden to prove anything.”

Ultimately, in selecting the actual jury, the prosecution exercised nine

peremptory challenges and the defense exercised seven peremptory challenges.

Each side exercised three peremptory challenges against potential alternate

jurors.19 After the actual and alternate jurors were sworn, and before opening

statements began, the court read CALJIC No. 0.50, as it had promised to do.

B. Analysis

Defendant‟s main claim is that the trial court essentially had a sua sponte

duty to question every prospective juror either individually or collectively about


The version of CALJIC No. 0.50 ultimately given at defendant‟s trial

described the nature of the factfinding function, the duty to accept and follow the
law and instructions whether or not the juror agrees with them, the need for a
verdict free of bias and outside influence, the definition of evidence, the sanctity
of the deliberative process, and the right of jurors to take written notes and request
a read-back of testimony.


Now, as at the time of defendant‟s trial, Code of Civil Procedure section

231, subdivision (a), states in pertinent part: “In criminal cases, if the offense
charged is punishable with death, or with imprisonment in the state prison for life,
the defendant is entitled to 20 and the people to 20 peremptory challenges.”


general principles of law concerning both the standard and burden of proof, and

the presumption of innocence. Having not done so, the court allegedly deprived

defendant of the opportunity to identify and excuse persons who were biased

against him or unable to follow such laws. We disagree.

There is no constitutional right to voir dire per se. Nor is there any

constitutional right to conduct voir dire in a particular manner. (People v.

Robinson (2005) 37 Cal.4th 592, 613.) Rather, the voir dire process serves as a

means of implementing the defendant‟s Sixth Amendment right to an impartial

jury. (Ibid.; accord, People v. Fuiava (2012) 53 Cal.4th 622, 654 (Fuiava).)

Consistent with applicable statutory law,20 the trial court has wide latitude

to decide the questions to be asked on voir dire (People v. Rogers (2009) 46

Cal.4th 1136, 1149), and to select the format in which such questioning occurs.

(See Stitely, supra, 35 Cal.4th 514, 536-539.) The court likewise has broad

discretion to contain voir dire within reasonable limits. (People v. Zambrano

(2007) 41 Cal.4th 1082, 1120.) Unless the voir dire “is so inadequate that the

reviewing court can say that the resulting trial was fundamentally unfair, the


At the time of trial, Code of Civil Procedure section 223 stated in pertinent

part: “In a criminal case, the court shall conduct the examination of prospective
jurors. However, the court may permit the parties, upon a showing of good cause,
to supplement the examination by such further inquiry as it deems proper, or shall
itself submit to the prospective jurors upon such a showing, such additional
questions by the parties as it deems proper. Voir dire of any prospective jurors
shall, where practicable, occur in the presence of the other jurors in all criminal
cases, including death penalty cases.” (Added by Prop. 115, as approved by
voters, Primary Elec. (June 5, 1990).) Effective January 1, 2001, the statute was
amended to give counsel for each party an expanded, though not unlimited, right
to examine prospective jurors through direct oral questioning. However, the
provision regarding group voir dire and the limitation thereon remained
unchanged. (Code Civ. Proc., § 223, as amended by Stats. 2000, ch. 192, § 1,
p. 2216; see People v. Stitley (2005) 35 Cal.4th 514, 536-537 & fn. 11 (Stitley).)


manner in which voir dire is conducted is not a basis for reversal.” (People v. Holt

(1997) 15 Cal.4th 619, 661 (Holt); accord, Fuiava, supra, 53 Cal.4th 622, 654;

People v. Bolden (2002) 29 Cal.4th 515, 538 (Bolden).) We know of no authority,

and defendant cites none, suggesting that group voir dire is necessarily required,

or that the trial court must always question every prospective juror either alone, or

as part of a group, about general legal principles, including those at issue here.

In applying the foregoing authorities, we note as a threshold matter that

defendant has not properly preserved his challenge to the fairness and adequacy of

voir dire on reasonable doubt and similar concerns. Trial counsel requested a

group voir dire on such general law after individual sequestered examinations had

occurred and challenges for cause had been exercised. The court made a

preliminary ruling that the individualized voir dire it had already conducted was

sufficient, and that a resumption of the process in any form was unnecessary and

unduly time consuming. After briefly discussing the matter further, and in an

apparent abundance of caution, the court decided to give further instruction on the

matter. Counsel did not object to this ruling on any ground. Instead, he embraced

the court‟s instructional approach and stopped pursuing additional voir dire.

Under these circumstances, defendant has forfeited his claim that the trial

court‟s rejection of his request for additional voir dire on certain issues, and its

related decision to instruct jurors on their proper role at trial, was erroneous or

incomplete. Regarding the alleged shortcoming in voir dire, defendant could not

merely “suggest that particular questions be asked, and then silently stand by when

the trial court suggests and subsequently takes a different course — a trial court

reasonably could view such silence as constituting assent to the court‟s approach.”

(Fuiava, supra, 53 Cal.4th 622, 653 [defendant forfeited claim that trial court

should have asked questions he had requested about self-defense in the context of


the particular case, where defendant did not object when the court instead asked

prospective jurors about generally following the law on self-defense].)21

Defendant‟s substantive claim also fails on the merits. The trial court did

not conduct voir dire alone, devoid of any meaningful participation by counsel.

Rather, both parties had ample opportunity to probe for hidden bias and to explore

any other factor bearing on juror impartiality. (See Holt, supra, 15 Cal.4th 619,

661.) Counsel took full advantage of the situation. Indeed, defendant admits in

his opening brief on appeal that the court “did not restrict” counsel on voir dire.

(See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 47.)

Moreover, viewed as a whole, the oral examination and the questionnaires

on which it was based covered the general principles of law that defendant now

claims were not adequately explored on voir dire. Before completing the

questionnaires, all prospective jurors were told that the reasonable doubt standard

applied to a determination of guilt of the charged crimes, and that they must

follow the law as instructed by the court. Against this backdrop, the questionnaire

asked — albeit, in lay terms — about the presumption of innocence (i.e., whether


The Attorney General argues in passing that defendant‟s claim of

inadequate voir dire was forfeited primarily because he failed to challenge biased
jurors for cause or to exhaust his peremptory challenges. (Compare People v.
(1999) 20 Cal.4th 546, 589 [holding defendant cannot complain on appeal
that the jury included specific unacceptable persons where he failed to challenge
them for cause, failed to exhaust his peremptory challenges, and expressed
satisfaction with the jury as impaneled] with Bolden, supra, 29 Cal.4th 515, 537-
538 [holding failure to exhaust peremptory challenges does not forfeit complaint
about the adequacy of general group voir dire because defendant may have been
denied information needed to intelligently exercise such challenges].) In light of
the alternative analysis set forth above, we need not, and do not, address the
Attorney General‟s particular theory of forfeiture here.


the prospective juror had formed any bias or prejudged guilt) and about the

People‟s burden of proof (i.e., whether defendant must prove his own innocence).

Armed with the questionnaires, and guided by relevant written answers,

both the court and counsel questioned prospective jurors about their views on the

reasonable doubt standard, the burden of proof, and the presumption of innocence.

The court began most exchanges by repeating its advisement on reasonable doubt.

Where necessary or advisable, the court and counsel also explored whether

prospective jurors could give defendant the benefit of these principles, or whether

some bias or other factor would prevent them from following the law and

instructions in this regard. In short, nothing prevented defendant from identifying

and removing prospective jurors who did not understand or accept the general

principles of law involved here.

Taking a different tack, defendant next contends that voir dire was

prejudicially incomplete insofar as the trial court did not ask certain questions in

the exact form recommended by the Judicial Council in the California Standards

of Judicial Administration (Standards). (See, e.g., stds. 4.30(b)(13) [whether

prospective juror can ignore everything heard as a juror in a prior criminal case

and decide the present case based solely on the evidence and applicable law],

4.30(b)(14) [whether prospective juror can ignore instructions received as a juror

in a prior civil case, and apply the different rules which govern the trial of criminal

cases, including the People‟s burden to prove guilt beyond a reasonable doubt], as

renumbered and amended eff. Jan. 1, 2007.)

Contrary to what defendant implies, any trial court decision declining to use

the Standards verbatim does not necessarily mean that voir dire failed to expose

prospective jurors who were biased or unable to follow the law. (See, e.g., People

v. Lopez (2013) 56 Cal.4th 1028, 1046; Bolden, supra, 29 Cal.4th 515, 538.) Nor

does any technical deviation from the Standards excuse a reviewing court from


examining “ „the entire voir dire‟ ” to determine whether it was sufficient to secure

an impartial jury. (Lopez, supra, 56 Cal.4th at p. 1046, quoting Holt, supra, 15

Cal.4th 619, 661.)

As we have explained, our review shows that prospective jurors were

informed before the exercise of challenges for cause about the need to apply the

reasonable doubt standard and to follow the law and instructions. Later, at the

start of the peremptory challenge phase, the court gave another reasonable doubt

instruction that included additional principles about the People‟s burden of proof

and the presumption of innocence. In the interval between these two events, the

trial court instructed and questioned specific jurors on all of these principles of

law. Counsel on both sides freely asked their own informed questions on the

topic. Thus, regarding the Standards, “all appropriate areas of inquiry [were]

covered in an appropriate manner.” (Holt, supra, 15 Cal.4th 619, 661.)

Finally, defendant argues that voir dire concerning reasonable doubt and

related principles was constitutionally deficient because defense counsel did not

know until after all prospective jurors had been examined alone that no general

group voir dire was planned. Citing no authority, defendant insists the trial court

was required to specifically advise counsel of this procedure before jury selection

began to ensure counsel examined each prospective juror about any biases he or

she might harbor toward “specific legal doctrines.” No error occurred.

Contrary to what defendant suggests, defense counsel could not reasonably

assume that group voir dire would inevitably occur or that it was necessary in light

of jury selection procedures otherwise in place. Counsel presumably was

competent and aware of the trial court‟s authority to decide the manner in which

questioning would occur, including the option to forgo general voir dire in open

court. (See Holt, supra, 15 Cal.4th 619, 704 [assuming trial counsel had sound

basis on which to conduct voir dire and ensure bias-free jury absent contrary


evidence in record].) To this end, the trial court announced twice, before

conducting any individual sequestered voir dire, that the private interviews would

include, but would not be limited to, the death penalty. In fact, the court made

clear that “additional areas” of potential bias would be explored, and that both the

court and counsel would perform that task.

It follows that defense counsel was responsible during each individual

sequestered session for being informed about any critical topic overlooked by the

trial court, and for making tactical decisions on how best to respond. Counsel was

on notice that he could examine prospective jurors one-on-one about their

willingness and ability to apply reasonable doubt and related principles in

determining guilt. As noted above, we presume counsel was competent to perform

this task. Accordingly, the trial court had no constitutional or other duty to advise

counsel about when or how to ask questions on certain general legal principles, or

about individual sequestered voir dire constituting his sole opportunity to do so.

For all the foregoing reasons, we reject defendant‟s claim that the trial court

conducted an inadequate voir dire, or that reversible error otherwise occurred.


A. Relationship between Charge and Conviction of Murder

Defendant observes that the information charged him with “MURDER, in

violation of PENAL CODE SECTION 187(a),” and alleged that he acted

“willfully, unlawfully, and with malice aforethought.” According to defendant, he

stood accused only of “second degree malice murder,” and could not be convicted

of first degree felony murder, as set forth in the instructions and verdict. Insisting

he was never properly charged with the latter crime under section 189, defendant

asks us to conclude that the trial court exceeded its jurisdiction and violated his

federal and state constitutional rights to due process and a fair trial, trial by jury,


and a reliable guilt determination. (U.S. Const., 6th, 8th & 14th Amends.; Cal.

Const., art. I, §§ 7, 15-17.)22

Similar claims — whether framed in terms of a lack of jurisdiction,

inadequate notice, erroneous instruction, insufficient proof, or the absence of jury

unanimity — have been rejected before. As defendant recognizes, our cases have

long made clear that an accusatory pleading charging malice murder supports

conviction of first degree murder on a felony-murder theory. Malice murder and

felony murder are two forms of the single statutory offense of murder. Thus, a

charge of murder not specifying the degree is sufficient to charge murder in any

degree. The information also need not specify the theory of murder on which the

prosecution relies at trial. (See People v. Jones (2013) 57 Cal.4th 899, 968-969);

People v. Abel (2012) 53 Cal.4th 891, 937 (Abel); People v. Moore (2011) 51

Cal.4th 386, 412-413 (Moore); People v. Geier (2007) 41 Cal.4th 555, 591;

People v. Hughes (2002) 27 Cal.4th 287, 368-369; People v. Gallego (1990) 52

Cal.3d 115, 188-189; People v. Murtishaw (1981) 29 Cal.3d 733, 750-751 &

fn. 11; In re Walker (1974) 10 Cal.3d 764, 781; People v. Golston (1962) 58

Cal.2d 535, 539; People v. Witt (1915) 170 Cal. 104, 107-108.)

Defendant counters that insofar as we have recognized a single statutory

offense of first degree murder, the only charging statute applicable here was

section 189. This assertion stems solely from People v. Dillon (1983) 34 Cal.3d

441. In pertinent part, Dillon described section 189 “as a statutory enactment of

the first degree felony-murder rule in California.” (Dillon at p. 472.)


As pertinent here, section 187, subdivision (a), defines murder as “the

unlawful killing of a human being . . . with malice aforethought.” Section 189
defines first degree murder to include, among other things, murder “which is
committed in the perpetration of, or attempt to perpetrate, . . . robbery.”


However, in People v. Harris (2008) 43 Cal.4th 1269 (Harris), we rejected

a similar argument, as follows: “Dillon made it clear that section 189 serves both

a degree fixing function and the function of establishing the offense of first degree

felony murder. [Citation.] It defines second degree murder as well as first degree

murder. Section 187 also includes both degrees of murder in a more general

formulation.” (Id. at p. 1295.) As in Harris, the section 187 charge brought here

supported a murder conviction in any degree, including first degree felony murder.

Nothing in Dillon compels a different result. We decline to reconsider this view.

In his final challenge to the murder charge, defendant argues that the

foregoing principles and authorities have been abrogated by Apprendi v. New

Jersey (2000) 530 U.S. 466 (Apprendi). The sole support for this claim is a

statement in Apprendi that “ „any fact (other than prior conviction) that increases

the maximum penalty for a crime must be charged in an indictment, submitted to a

jury, and proven beyond a reasonable doubt.‟ ” (Id. at p. 476, italics added.) The

“fact” defendant claims was fatally omitted from murder as charged in the

information here was his alleged commission of the serious felony (robbery) on

which the first degree felony-murder verdict was ultimately based.

Contrary to what defendant implies, the Apprendi court expressly declined

to address the constitutional implications, if any, of omitting sentencing factors

from accusatory pleadings. (Apprendi, supra, 530 U.S. 466, 477, fn. 3 [noting that

no “indictment question” was properly presented or actually addressed in the

case].) Absent any authority compelling a different result, we conclude here, as in

other cases, that defendant‟s reliance on Apprendi is misplaced. (See Abel, supra,

53 Cal.4th 891, 938; People v. Famalaro (2011) 52 Cal.4th 1, 37 (Famalaro);

Moore, supra, 51 Cal.4th 386, 413; Harris, supra, 43 Cal.4th 1269, 1295.)

In particular, Apprendi‟s core reasoning is that every factual finding (other

than the fact of a prior conviction) required by law in order to increase the penalty


beyond the prescribed statutory maximum for the offense is the “functional

equivalent” for constitutional purposes of an element of a greater offense.

(Apprendi, supra, 530 U.S. at p. 494, fn. 19.) Hence, consistent with due process

and jury trial guarantees, sentencing factors having such an “ „elemental‟ nature”

must be submitted to a jury and proved by the State beyond a reasonable doubt.

(Id. at p. 494; see People v. Anderson (2009) 47 Cal.4th 92, 105-106, 116.)

In light of the high court‟s “narrow” holding (Apprendi, supra, 530 U.S.

466, 474), which focuses on facts that must be proved to, and found by, a jury,

“[i]t is highly doubtful that Apprendi has any effect whatever on pleading

requirements” (Famalaro, supra, 52 Cal.4th at p. 37). In other words, Apprendi‟s

requirements for how element-like sentencing factors must be proved and found

create no “new notice requirements for alternative theories of a substantive

offense such as a theory of first degree murder.” (Abel, supra, 53 Cal.4th at

p. 938; accord, Moore, supra, 51 Cal.4th at p. 413.)

Thus, this court does not violate Apprendi by continuing to apply the

traditional California rule that a murder charge under section 187 places the

defense on notice of, and allows trial and conviction on, all degrees and theories of

murder, including first degree felony murder under section 189. Defendant‟s

opposing view is unfounded. We reject it here.

B. Cross-examination of Lupe

Defendant argues that, for several reasons, the trial court erred in

preventing him from admitting Lupe‟s report cards to contradict testimony elicited

on cross-examination about Lupe‟s performance in high school after the capital

crime. He alleges the court‟s ruling violated his federal constitutional rights to due

process, to confrontation and compulsory process, and to a reliable capital

determination. (U.S. Const., 5th, 6th, 8th & 14th Amends.)


1. Background

As noted, Lupe testified on direct examination about defendant‟s statement

promising to “get” anyone who spoke about the robbery murder. The implication,

which redirect examination confirmed, was that Lupe felt personally threatened by

defendant, and that he (Lupe) believed he would be harmed or killed if he made

any incriminating statements. The prosecution elicited no other information about

how the capital crime may have affected Lupe‟s daily life at any point after

December 29, 1994, the day the crime occurred.

With no initial objection from the prosecutor, defense counsel raised the

latter issue near the end of Lupe‟s cross-examination. Specifically, Lupe testified

that he had read in the newspaper the day after the robbery murder that someone

died in the store. Despite being scared and upset, Lupe did not report the incident

to the police or to any other authority figure. Lupe testified, however, that once he

was contacted by the police in August 1995, he had no difficulty cooperating with

them and disclosing what he knew.

In the course of this exchange, defense counsel inquired about Lupe‟s

performance in high school during the same time period. When asked whether he

did “better or worse” in school after the capital crime, Lupe replied, “I don‟t

know, a little worse.” He testified that as time passed, he felt no increased

pressure to report the capital crime. Indeed, Lupe found that he “could

concentrate more” a couple of months after returning to school in January 1995.

He explained that he did not forget about the crime, but that the negative feelings

did not bother him as much. Lupe further testified on cross-examination that, after

first speaking with the police in August 1995, he felt relieved and “could

concentrate better.”

At this point in the process, defense counsel asked whether Lupe had

received any high school report cards, a question answered in the affirmative. The


prosecutor requested a sidebar conference, and objected on relevance grounds.

Defense counsel explained that, contrary to what Lupe had testified, his grades

“went up” when he returned to school in January 1995, such that his existing 1.0

grade point average rose somewhat to “all Cs and passing.” Counsel contrasted

this initial upward trend with Lupe‟s grades after he spoke to the police in August

1995. That semester, according to counsel, Lupe‟s grades did not improve as

Lupe had implied they did. Rather, they “drop[ped] way down, worse than he had

ever done He had some D-minuses and Cs.”

Consistent with the prosecutor‟s view, the trial court declined to allow Lupe

to be cross-examined about his report cards. Lupe‟s grades had no logical bearing,

the court said, on whether Lupe felt good or bad because of the capital crime. The

court viewed any inferences raised in that regard as improper impeachment on a

collateral matter, saying “[i]t is way, way out.”

Cross-examination resumed. Defense counsel raised the possibility that

Lupe was not telling the truth regarding his feelings about the capital crime and

cooperating with the police. First, Lupe was asked whether, between the time the

capital crime occurred in December 1994, and the time Lupe spoke to the police in

August 1995, he was not actually bothered or distressed because he was “not

really at the little market the day that the incident happened.” The answer was

“[n]o.” In a follow-up question, counsel asked whether, from the time Lupe spoke

to the police about the capital crime through the next semester in school, he was

actually bothered and distressed because he had “claimed to be involved in that

incident when [he] really [wasn‟t].” Again, Lupe answered “[n]o.” This line of

inquiry ended when Lupe denied implicating defendant in the shooting in order to

shift blame away from Jose, defendant‟s alleged accomplice and the boyfriend of

Lupe‟s sister, Yesenia.


Following both redirect and recross examination, and outside the presence

of the jury, defense counsel renewed his request to admit the report cards to

impeach Lupe‟s testimony about his school performance and about his feelings

regarding the capital crime. Counsel claimed it was “common knowledge that

young people do have problems with school” and that poor grades show “when a

problem‟s going on in their life.” All counsel sought to do, he said, was to ask

Lupe about the apparent discrepancy between his testimony concerning the effect

of his feelings on his school performance on the one hand, and his grades as

reflected in his report cards on the other hand. In the alternative, counsel was

willing to offer only the report cards themselves into evidence.

The prosecutor again objected on relevance grounds. She argued that the

defense had not shown that there was any link between Lupe‟s grades and the

capital crime, or that other life problems had not affected his school performance.

Consistent with its prior ruling, the trial court declined to admit the grade

reports in any form. The court reasoned that such evidence had “no relevance to

anything.” In other words, to the extent Lupe‟s actual grades contradicted his

testimony about his school performance, such impeachment would involve an

irrelevant, collateral matter. Hence, the court saw no reason to discuss whether the

probative value was substantially outweighed by the risk of unfair prejudice, jury

confusion, or the undue consumption of time under Evidence Code section 352.

On this score, the court said, “I don‟t think I even have to bring in [section] 352

because [the proffered impeachment evidence] is simply not relevant.”

2. Manner in which trial court exercised its discretion

Defendant first argues that the report cards contradicted Lupe‟s testimony

about whether the capital crime upset him and affected his school performance.

This information, which was elicited on cross-examination, was assertedly


material because it bore on the larger question whether Lupe was credible insofar

as he implicated defendant in the capital crime. On this basis, defendant claims

the trial court abused its discretion in preventing him from asking Lupe about his

report cards and in excluding them at trial. We disagree.

To be relevant, evidence must have some “tendency in reason to prove or

disprove any disputed fact that is of consequence to the determination of the

action.” (Evid. Code, § 210.) This definition includes evidence “relevant to the

credibility of a witness.” (Ibid.; see Evid. Code, § 780 [the fact finder may

consider matters relevant to the truthfulness of the witness‟s testimony].)

Conversely, a matter is “collateral” if it has no logical bearing on any

material, disputed issue. (People v. Rodriguez (1999) 20 Cal.4th 1, 9

(Rodriguez).) A fact may bear on the credibility of a witness and still be collateral

to the case. (Ibid. [preventing prosecution witness who saw the murder from the

roof of his apartment building from being impeached with evidence disputing his

claim that he had management‟s permission to be there]; see People v. Dement

(2011) 53 Cal.4th 1, 50-52 (Dement) [holding that an inmate who testified for the

prosecution about seeing a prison murder could not be impeached with evidence

that he had lied in court about a murder he was convicted of many years before];

Harris, supra, 43 Cal.4th 1269, 1291-1292 [not allowing prosecution witness who

described alleged murderer‟s incriminating statements to be impeached with his

poor performance on juvenile probation even though it showed lax character].)

Of course, the trial court has wide latitude under state law to exclude

evidence offered for impeachment that is collateral and has no relevance to the

action. (People v. Homick (2012) 55 Cal.4th 816, 865; Harris, supra, 43 Cal.4th

1269, 1291; Rodriguez, supra, 20 Cal.4th 1, 9-10.) This exercise of discretion

necessarily encompasses a determination that the probative value of such evidence

is “substantially outweighed” by its prejudicial, “confusing,” or time-consuming


nature. (Evid. Code, § 352; see People v. Lewis (2001) 26 Cal.4th 331, 374-375

[noting that Evid. Code, § 352 gives trial court broad power to prevent

“ „ “nitpicking” ‟ ” over “ „ “collateral credibility issues” ‟ ”].)

Also, as long as the excluded evidence would not have produced a

“ „ “significantly different impression” ‟ ” of the witness‟s credibility, the

confrontation clause and related constitutional guarantees do not limit the trial

court‟s discretion in this regard. (Dement, supra, 53 Cal.4th 1, 52 [The “ „ordinary

rules of evidence do not impermissibly infringe on the accused‟s right to present a

defense‟ ”]; see Harris, supra, 43 Cal.4th 1269, 1292 [“ „Within the confines of

the confrontation clause, the trial court retains wide latitude in restricting cross-

examination that is repetitive, prejudicial, confusing of the issues, or of marginal

relevance.‟ ”]; accord, People v. Mendoza (2011) 52 Cal.4th 1056, 1090.)

Here, the trial court did not abuse its discretion in excluding the report

cards as virtually irrelevant and wholly collateral to the case. The report cards

showed nothing more than that Lupe‟s grade pattern differed from his testimony

about his school performance (i.e., whether his performance or concentration was

“worse” or “better”) in the months after the capital crime. At most, the report

cards suggested he was lying or mistaken about the pattern of his grades during

that time. Any discrepancy between Lupe‟s grade pattern and his related

testimony does not show (1) why he performed in school in a particular manner

and earned certain grades, (2) whether he saw events at the crime scene or heard

the perpetrators‟ admissions afterwards, or (3) whether he had any reason to

falsely implicate defendant in the latter events. In other words, no substantive

inference could be drawn from the report cards, or from any testimony proffered

thereon, about defendant‟s guilt of the capital crime. Hence, the report cards

merely constituted an attempt to collaterally impeach Lupe on an irrelevant matter.


It bears emphasis that the defense otherwise had “ample opportunity” to

impeach Lupe. (Harris, supra, 43 Cal.4th 1269, 1292.) Cross-examination

revealed certain discrepancies between Lupe‟s trial testimony on the one hand, and

both his testimony at the preliminary hearing and his statements to police on the

other hand. Examples included whether defendant or Jose ever told Lupe what

happened inside the Casa Blanca Market; whether defendant, Jose and Santos used

masks when committing the capital crime; and whether Louis made a U-turn to

pick up defendant and Jose before fleeing the crime scene. Lupe testified that he

either could not remember, or did not know, why his various accounts may have

differed in these respects.

In addition, defense counsel tested Lupe‟s memory of certain details he

gave on direct examination. This process covered key issues, such as the

circumstances under which the guns were placed in Louis‟s car before the capital

crime. Lupe was also asked whether he was generally guessing or lying at trial —

accusations he denied.

For all these reasons, no abuse of discretion in excluding testimony and

documentary proof about Lupe‟s high school grades occurred.

3. Trial court’s alleged failure to exercise discretion

Defendant next contends that the trial court behaved in an erroneous and

arbitrary manner because it “failed to perform any balancing functions” in

excluding Lupe‟s report cards and preventing cross-examination about them. This

claim focuses on the court‟s statement about not “bring[ing] in” Evidence Code

section 352. Defendant insists the court simply refused to decide whether the

evidence offered to impeach Lupe was substantially more prejudicial than

probative or otherwise implicated Evidence Code section 352.


Defendant mischaracterizes the trial court‟s ruling. As noted above, a

determination that impeachment or other evidence should be excluded as

“collateral” inherently involves the balancing contemplated by Evidence Code

section 352. In such cases, the risk of causing the adverse effects that the court is

statutorily authorized to prevent is necessarily high where the probative value of

the evidence is low. Notwithstanding any inartful language used to describe its

ruling, the court properly exercised such discretion here. For reasons we have

explained, the proffered impeachment of Lupe about his school performance and

related emotional state threatened to distract the jury‟s attention from critical

concerns about the truth and accuracy of his testimony implicating defendant in

the capital crime. No refusal to exercise discretion occurred.

4. Trial court’s alleged lack of discretion

In an apparent departure from his other two claims about Lupe‟s report

cards, defendant insists the trial court had no discretion to exclude such evidence.

He reasons as follows: The prosecutor did not object when defense counsel began

questioning Lupe about his school performance and related emotional state —

testimony defendant concedes could properly have been excluded as irrelevant if

such a request had been made. Only after Lupe testified in a manner marginally

favorable to the prosecution (e.g., that he felt relieved and more focused after

speaking to the police) was a prosecutorial objection made and sustained by the

court. This ruling was belated, erroneous, and unfair in defendant‟s view because,

once the prosecution allowed Lupe to testify in a manner that could be proven

false, the trial court was required to allow impeachment even if the line of inquiry

was otherwise tangential to the case.

Defendant cites no authority, and we are aware of none, supporting his

suggestion that both the prosecutor and the trial court breached some duty they


were obligated to perform concerning cross-examination about Lupe‟s school

performance and grade reports after the capital crime. Rather, as noted above, the

defense had no right to impeach Lupe on this collateral matter. (See People v.

Mayfield (1997) 14 Cal.4th 668, 748, citing People v. Lavergne (1971) 4 Cal.3d

735, 744 [a party cannot “cross-examine a witness upon collateral matters for the

purpose of eliciting something to be contradicted”].) Thus, even though Lupe was

allowed to suggest that his grades went up or down for one reason or another, the

trial court could properly sustain the prosecution‟s objection that further testimony

along such lines lacked probative value and threatened to sidetrack the case. We

reject defendant‟s contrary claim.

C. Instruction on Past Misdemeanor Conduct

Defendant contends the trial court erred by failing to instruct sua sponte

that the jury could consider past misdemeanor conduct in assessing the credibility

of witnesses, namely, Vallejo. Defendant notes that the trial court gave CALJIC

No. 2.20, which lists various factors that potentially affect such determinations.

He complains, however, that the version given at his trial did not include standard

language, which the court had the option of giving at the time, concerning “[p]ast

criminal conduct of a witness amounting to a misdemeanor.” (CALJIC No. 2.20

(6th ed. 1996).)23 Such omission allegedly violated defendant‟s federal


CALJIC No. 2.20, as given at trial, stated: “Every person who testifies

under oath is a witness. You are the sole judges of the believability of a witness
and the weight to be given the testimony of each witness. [¶] In determining the
believability of a witness you may consider anything that has a tendency in reason
to prove or disprove the truthfulness of the testimony of a witness, including but
not limited to any of the following: [¶] The extent of the opportunity or the ability
of the witness to see or hear or otherwise become aware of any matter about which
the witness has testified; [¶] The ability of the witness to remember or to
communicate any matter about which the witness has testified; [¶] The character

(footnote continued on next page)


constitutional rights to due process, a fair jury trial, and a reliable capital

determination. (U.S. Const., 6th, 8th & 14th Amends.) We reject the claim.

1. Background

On both direct and cross-examination, Vallejo explained that in August

1995, he had personal problems, was abusing drugs and alcohol, and was facing

arrest on certain warrants. While intoxicated and determined to change his life, he

called law enforcement officials. He was arrested that night and taken into

custody. Vallejo told one or more officers, including Detective Hilger, that he had

information about the capital crime. In doing so, Vallejo hoped to “take care” of

his warrants.

Vallejo was cross-examined about his prior contact with the criminal justice

system. Counsel began by asking whether Vallejo was “arrested” in the

possession of certain “burglar tools” in April 1994. Vallejo said, “Yes, I got

arrested with them.” Counsel attempted to mark a police booking sheet related to

that arrest as a defense exhibit. The trial court sustained the prosecutor‟s

objection to the document, saying “booking is irrelevant.”

Counsel then asked whether Vallejo had been arrested in another incident

two months earlier, in February 1994. Before Vallejo answered, the prosecutor

objected to the evidence as irrelevant, collateral, and unduly time-consuming.

Defense counsel explained that the February 1994 arrest involved facts — e.g.,

(footnote continued from previous page)

and quality of that testimony; [¶] The demeanor and manner of the witness while
testifying; [¶] The existence or nonexistence of a bias, interest, or other motive;
[¶] Evidence of the existence or nonexistence of any fact testified to by the
witness; [¶] The attitude of the witness toward this action or toward the giving of
testimony; [¶] A statement previously made by the witness that is consistent or
inconsistent with the testimony of the witness.”


possession of a shotgun — that tended to link Vallejo to the capital crime, which

occurred 10 months later, in December 1994. Counsel theorized that when Vallejo

told the police about the capital crime in August 1995, he lied about defendant‟s

guilt in order to “throw suspicion off himself” as the person who killed Hassan

with a shotgun. Counsel otherwise denied trying to “impeach [Vallejo] because

he‟s done bad things.” After further discussion with counsel, the court decided to

allow the questioning of Vallejo about the February and April 1994 arrests.

When cross-examination resumed, Vallejo answered “yes” when asked

whether he was “arrested” for having “a couple of 12-gauge shotgun shells in [his]

jacket pocket.” Vallejo also noted that a shotgun was found nearby, but denied

that it was in his possession. Defense counsel assumed in subsequent questioning

that the same incident involved a “billy club” — an assumption Vallejo did not

confirm or refute.

Vallejo was then cross-examined about what counsel referred to as a

“misdemeanor” proceeding arising from the February 1994 arrest. Though he did

not identify the underlying criminal charge at trial, Vallejo admitted that a warrant

had issued for his “failure to appear,” and that he had been jailed on December 31,

1995, as a result. Vallejo also answered “yes” when asked whether other warrants

had issued in the misdemeanor case for failing to pay restitution and to serve 20

days in custody.

Next, defense counsel pressed Vallejo about his reasons for acting as an

informant and witness against defendant. Vallejo answered “yes” when asked if

he had been “supplying and selling drugs” to defendant and the other three men,

and whether they owed him money as a result. However, Vallejo denied

participating in the present case because of anger over an unpaid debt. In a related

vein, Vallejo gave a “yes” answer when asked whether he had ever “use[d]

methamphetamine during work hours.”


Finally, both parties asked Vallejo and Detective Hilger to describe events

after Vallejo gave his taped statement about the capital crime. Vallejo testified

that he was promptly released from custody — a procedure that Hilger

characterized as normal in misdemeanor warrant cases like Vallejo‟s. According

to Vallejo, he signed no agreement with any agency concerning his testimony

herein. Hilger gave a similar account. Hilger made no arrangement with the

district attorney‟s office on Vallejo‟s behalf. Nor, to Hilger‟s knowledge, did

Vallejo‟s cooperation in the present case affect any court matter in which he was

otherwise involved.

2. Analysis

Defendant argues for the first time on appeal that the trial court should have

instructed on “[p]ast criminal conduct of a witness amounting to a misdemeanor.”

(CALJIC No. 2.20 (6th ed. 1996); see CALCRIM No. 105.) He insists that, absent

such an instruction, the jury would not have known it could consider such

evidence in evaluating Vallejo‟s credibility insofar as he implicated defendant in

the capital crime.

As a threshold matter, we assume solely for the sake of argument that the

following circumstances are true, all of which favor defendant: (1) his complaint

about the omitted instruction was not forfeited by failing to raise it at trial (see

§ 1259 [instructional claims affecting substantial rights are reviewable on appeal

absent objection in trial court]), (2) evidence elicited on cross-examination about

Vallejo‟s prior arrests and misconduct involved “moral turpitude” and therefore

bore on his credibility as a prosecution witness, (3) the jury would not have known

to consider Vallejo‟s past misconduct as a factor bearing on his credibility absent


the instructional language at issue here, and (4) the trial court had a sua sponte

duty to give such an instruction.24

Nevertheless, any error was harmless. We are persuaded that an instruction

highlighting Vallejo‟s past conduct would not have induced the jury to disbelieve

his testimony that defendant shot and killed Hassan while robbing the Casa Blanca

Market. (See, e.g., People v. Farley (2009) 46 Cal.4th 1053, 1105; People v.

Whisenhunt (2008) 44 Cal.4th 174, 208.)

Though the defense showed that Vallejo had several brushes with the law,

they were not highly persuasive on the issue of his character for honesty. Vallejo


Though not mentioned by the parties on appeal, the law provides that any

criminal act or other misconduct involving moral turpitude suggests a willingness
to lie and is not necessarily irrelevant or inadmissible for impeachment purposes.
(People v. Wheeler (1992) 4 Cal.4th 284, 295-296 (Wheeler); see id. at pp. 297-
299 [misdemeanor conviction itself is inadmissible over a hearsay objection to
prove misconduct bearing on credibility]; see also Cal. Const., art. I, § 28, subd.
(f)(2) (Truth-in-Evidence provision).) However, to the extent such misconduct
amounts to a misdemeanor or is not criminal in nature, it carries less weight in
proving lax moral character and dishonesty than does either an act or conviction
involving a felony. (Wheeler, supra, 4 Cal.4th at p. 296; see Evid. Code, § 788
[authorizing prior felony convictions for impeachment].) Hence, trial courts have
broad discretion to exclude impeachment evidence other than felony convictions
where such evidence might involve undue time, confusion, or prejudice.
(Wheeler, supra, 4 Cal.4th at pp. 296-297; accord, People v. Lightsey (2012)
54 Cal.4th 668, 714; People v. Clark (2011) 52 Cal.4th 856, 931-932.)

We further note that “moral turpitude” refers to a general “ „readiness to do

evil‟ ” even if dishonesty is not necessarily involved. (People v. Castro (1985)
38 Cal.3d 301, 315; see Wheeler, supra, 4 Cal.4th 284, 295.) Under Castro,
, 38 Cal.3d at page 317, the crime of possessing heroin for sale involves
moral turpitude because of the intent to corrupt others. (See People v. Harris
(2005) 37 Cal.4th 310, 336-339 [trial court erred in barring impeachment of
prosecution witness as a “drug dealer”].) As noted above, Vallejo admitted,
among other things, that he sold drugs to defendant and others implicated in the
capital crime.


admitted selling drugs to defendant and his alleged accomplices. Otherwise, the

evidence did not make clear what crimes Vallejo committed or whether any of the

conduct involved moral turpitude. He did not dispute being arrested for

possessing weapons (e.g., a billy club) and other items (e.g., burglary tools)

associated with criminal activity. One of these arrests also apparently led to a

misdemeanor proceeding in which warrants were issued for failure to perform

court-ordered conditions. Indeed, defense counsel conceded that at least some of

Vallejo‟s past misconduct was not even offered as evidence of a general bad

character bearing on veracity.

Balanced against this checkered history, the prosecution introduced

extensive evidence corroborating Vallejo‟s testimony about the capital crime, and

indicating that he was telling the truth. At trial, Vallejo — who received no

benefit from his cooperation in the case — described being present when Santos,

Jose, and defendant incriminated themselves in a robbery murder the night of the

Casa Blanca crimes. Based on these statements, Vallejo testified that defendant

shot Hassan twice with a shotgun after he failed to cooperate and hand over any

cash. According to Vallejo, defendant displayed a handgun he admitted taking

from Hassan during the crime. Vallejo also testified that either defendant or

Santos said that they had borrowed two long guns from Shorty (a shotgun and

rifle) the night before, and that the guns would be used to pull a robbery “job.”

Lupe gave the most detailed testimony supporting the information Vallejo

attributed to the perpetrators. Lupe testified that he was in the car when Louis

drove defendant, Jose, and Santos to the Casa Blanca Market in order to commit a

robbery. According to Lupe, defendant and Jose each entered the store wearing

face masks and carrying weapons similar to the ones Vallejo had described.

Consistent with Vallejo‟s account, Lupe further testified that both Jose and

defendant described what happened in the store, as follows: defendant shot Hassan


after he took out a handgun; no cash was offered or found; and property belonging

to the victim was taken from the store. Like Vallejo, Lupe testified that defendant

displayed a handgun while discussing his role as the actual killer.

Notably, other prosecution witnesses, some of whom did not know the

perpetrators, confirmed both Vallejo‟s and Lupe‟s testimony in key respects. Like

Lupe, an eyewitness, Amanda Garcia, saw three men at the crime scene wearing

face masks. Two of the masked men ran out of the Casa Blanca Market (at least

one of whom may have been armed), and a third man wore a similar disguise in

the getaway car. Garcia identified Louis‟s car as the one the robbers used at the

crime scene. In addition, defendant‟s friend Shorty and his wife, Mariela,

corroborated Vallejo‟s testimony that defendant had access to the probable murder

weapon, a shotgun. Defendant was also linked to Hassan‟s stolen handgun

through Officer McIntosh, who obtained the weapon from defendant‟s brother,

Fernando, shortly after the capital crime.

Thus, under any applicable standard, an instruction directing the jurors‟

attention to Vallejo‟s past misconduct would not have caused them to reject his

testimony identifying defendant as the shooter in the capital crime. No prejudice

occurred under the circumstances presented here.

D. Single Witness Instruction

Defendant insists the trial court erred prejudicially in failing to instruct sua

sponte with CALJIC No. 2.27, which concerns the circumstances under which the

jury may rely on the uncorroborated testimony of a single witness. Defendant

acknowledges that Lupe, Vallejo, and other prosecution witnesses corroborated

each other with respect to defendant‟s guilt of robbery murder, including his

identity as the actual killer. He insists, however, that CALJIC No. 2.27 was

required because the credibility of certain witnesses was “highly suspect,” and the


jury could have rejected all or some of their testimony and decided material facts

based on only one witness.25 Defendant invokes his federal constitutional rights

to due process, a fair jury trial, and a reliable capital determination. (U.S. Const.,

6th, 8th & 14th Amends.) The claim lacks merit even assuming defendant is

correct that no objection was needed to preserve it for appeal. (See § 1259.)

Fairly understood, CALJIC No. 2.27 targets the situation in which the

proponent of a particular fact offers the testimony of only one witness to establish

it. In other words, when the proponent of evidence seeks to establish a material

fact through the “testimony of a single witness” as to whom no corroboration is

legally required, jurors may “believe” such testimony, and accept it as “sufficient

for the proof of that fact,” but they should do so only after “carefully review[ing]

all the evidence upon which the proof of that fact depends.” (Ibid.)

Nothing in CALJIC No. 2.27 concerns suspect witnesses in particular. Nor

does CALJIC No. 2.27 address the anomalous situation in which multiple

witnesses testify to the same material fact, but the jury is inclined to reject all but

one of the witnesses‟ testimony. Otherwise, the instruction would be nothing


CALJIC No. 2.27, which is virtually unchanged since the time of trial,

provides as follows: “You should give the [uncorroborated] testimony of a single
witness whatever weight you think it deserves. Testimony concerning any fact by
one witness, which you believe, [whose testimony about that fact does not require
corroboration] is sufficient for the proof of that fact. You should carefully review
all the evidence upon which the proof of that fact depends.”

We note that defendant does not challenge other standard instructions given

at trial identifying Lupe as an accomplice as a matter of law, and subjecting his
testimony to rules requiring corroboration. (CALJIC Nos. 3.10 [Accomplice
Defined], 3.11 [Testimony of Accomplice Must Be Corroborated], 3.12
[Sufficiency of Evidence to Corroborate an Accomplice], 3.13 [One Accomplice
May Not Corroborate Another], 3.14 [Criminal Intent Necessary to Make One an
Accomplice], 3.16 [Witness Accomplice as Matter of Law], 3.18 [Testimony of
Accomplice to be Viewed with Caution].)


more than a superfluous advisement to carefully consider the testimony of each

witness in every case. (See People v. Turner (1990) 50 Cal.3d 668, 695-698 [trial

court properly gave CALJIC No. 2.27 where defendant offered only his own

uncorroborated testimony to defend against a robbery murder charge on grounds

the killing was provoked and involved no pre-formed intent to steal]; People v.

Rincon-Pineda (1975) 14 Cal.3d 864, 883-885 [holding that, in all criminal cases

not requiring corroboration, a prophylactic instruction like CALJIC No. 2.27 must

be given to aid defendants implicated by only the victim or other single witness].)

Applying these principles, we conclude no prejudicial error occurred. The

proponent of the challenged evidence, the prosecution, did not seek to establish,

by the testimony of only one witness, that defendant robbed and shot Hassan. On

the contrary, the prosecution presented more than one witness to prove each

material fact. Thus, as noted above, Lupe and Vallejo both identified defendant at

trial as the person who killed Hassan during a robbery at the Casa Blanca Market.

Both witnesses described defendant‟s statements essentially bragging about his

role as the shooter shortly after the crime occurred. Lupe and Vallejo also testified

that Jose admitted being defendant‟s partner in the actual robbery. Although no

money was found, Lupe and his sister, Yesenia, testified that Jose admitted taking

the victim‟s wallet from the store. Likewise, according to Lupe and Vallejo,

defendant showed each of them the handgun that belonged to Hassan.

Of course, Lupe and Vallejo were not the only witnesses the prosecution

used to prove defendant‟s guilt of robbery murder. Like Lupe, Amanda Garcia

saw the perpetrators wearing face masks at the crime scene, and fleeing in Louis‟s

car afterwards. Shorty and Shorty‟s wife Mariela buttressed Vallejo‟s testimony

that defendant acquired a shotgun the night before the capital crime. The autopsy

physician confirmed that Hassan suffered two shotgun blasts. Finally, Officer


McIntosh obtained the victim‟s handgun under circumstances corroborating

Lupe‟s and Vallejo‟s testimony that defendant possessed it after the capital crime.

No reversible error occurred insofar as the trial court failed to give CALJIC

No. 2.27, the single witness instruction, at defendant‟s trial.

E. Reasonable Doubt Instructions

Defendant contends that various standard instructions read by the trial

court, when viewed alongside the standard reasonable doubt instruction also given

at trial, impermissibly diluted the prosecution‟s burden of proof in violation of his

federal and state constitutional rights to due process, trial by jury, and reliable

capital trial. (U.S. Const., 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15-

17; see CALJIC No. 2.90 [presumption of innocence, reasonable doubt, and

burden of proof].) Based on a long line of authority, we disagree.

The first set of challenged instructions concerned the sufficiency of

circumstantial evidence to prove three things: guilt (CALJIC No. 2.01), the special

circumstance (CALJIC No. 8.83), and the mental state underlying the special

circumstance (CALJIC No. 8.83.1). These instructions made clear that all

circumstances supporting an inference of guilt or a true special circumstance

finding must be proved beyond a reasonable doubt; that circumstantial evidence

cannot support either a conviction or a true special circumstance finding unless it

cannot be reconciled with any other rational conclusion; that between two

reasonable interpretations of the evidence, the one more consistent with innocence

or an untrue special circumstance finding must be accepted; and that a reasonable

interpretation prevails over an unreasonable one.

In short, the jury was properly told to “ „reject unreasonable interpretations

of the evidence and to give defendant the benefit of any reasonable doubt.‟ ”

(People v. McKinzie (2012) 54 Cal.4th 1302, 1355 (McKinzie).) The


circumstantial evidence instructions did not permit, induce, or compel jurors to

convict defendant or to sustain the special circumstance merely because he

reasonably appeared to have committed the charged crimes. (Ibid.; see People v.

Jones, supra, 57 Cal.4th 899, 972; People v. Solomon (2010) 49 Cal.4th 792, 826-

827; People v. Maury (2003) 30 Cal.4th 342, 428; People v. Millwee (1998) 18

Cal.4th 96, 160.) Nor would the jury, when considering the circumstantial

evidence instructions alongside the reasonable doubt instruction, somehow still

have been misled about the requisite standard of proof. (People v. Carey (2007)

41 Cal.4th 109, 129-130 (Carey).) Defendant offers no persuasive reason to

reconsider our decisions, and we decline to do so.

The second set of challenged instructions concerned the credibility and

weight of evidence. (CALJIC Nos. 1.00 [outlining basic duties of judge and jury,

including jurors‟ duty not to infer defendant is “more likely to be guilty than

innocent” because he was prosecuted for the charged crimes], 2.21.1 [directing the

“weighing” of discrepancies in witness testimony], 2.21.2 [allowing rejection of

the whole testimony of a witness who was willfully false in one material part

unless “the probability of truth” dictates otherwise], 2.22 [stating that conflicting

testimony is to be weighed not by counting the witnesses on either side but by

determining “the convincing force of the evidence”].)

Contrary to what defendant suggests, these instructions did not vitiate the

reasonable doubt standard and allow jurors to decide each element of the charged

crimes or special circumstance allegation simply by weighing the probabilities or

considering the preponderance of the evidence. “ „Jurors are not reasonably likely

to draw, from bits of language in instructions that focus on how particular types of

evidence are to be assessed and weighed, a conclusion overriding the direction,

often repeated in voir dire, instruction, and argument, that they may convict only if

they find the People have proven guilt beyond a reasonable doubt.‟ ” (McKinzie,


supra, 54 Cal.4th 1302, 1356-1357.) No reasonable juror would have “parsed”

these instructions and believed that the People had some lesser burden of proof.

(People v. Livingston (2012) 53 Cal.4th 1145, 1169; see People v. Jones, supra, 57

Cal.4th 899, 972-973; People v. Streeter (2012) 54 Cal.4th 205, 253; Carey,

supra, 41 Cal.4th 109, 130-131.)26

F. Validity of Felony-Murder Special Circumstance

Defendant challenges the validity of both the felony-murder special-

circumstance statute and the lone special circumstance finding of felony murder

underlying his death sentence. (See § 190.2(a)(17).) In defendant‟s view, capital

punishment is disproportionate to culpability under both the Eighth Amendment of

the United States Constitution and international law unless the People prove that

“an actual killer had a culpable state of mind with regard to the murder.”

Defendant‟s descriptions of this alleged mental state vary. He argues in his

opening brief that a valid felony-murder special circumstance requires actual

killers to possess at least a “reckless indifference to human life.” In his reply

brief, however, defendant states that “[t]o impose a death sentence, there must be

proof that the defendant, whether the actual killer or an accomplice, acted with an

intent to kill.” Defendant is wrong on both counts.


Regarding forfeiture, the Attorney General recognizes that nothing compels

us to conclude that defendant has failed to preserve his challenge to the reasonable
doubt instructions here by not objecting on similar grounds below. (See § 1259.)
However, contrary to what the Attorney General asks us to do, we reach no
different conclusion and find no procedural bar as to two instructions, CALJIC
Nos. 2.21.1 and 2.21.2, which defendant requested at trial. (See People v.
(1988) 45 Cal.3d 744, 781 (Belmontes) [propriety of instruction
affecting substantial rights addressed on appeal where defendant requested it at
trial]; see also People v. DePriest (2007) 42 Cal.4th 1, 52 (DePriest).)


The analysis starts from the premise that the death penalty is impermissibly

excessive under the Eighth and Fourteenth Amendments where the defendant aids

and abets a felony resulting in murder, but “does not himself kill, attempt to kill,

or intend that a killing take place or that lethal force will be employed.” (Enmund

v. Florida (1982) 458 U.S. 782, 797 (Enmund); see id. at pp. 784, 788 [prohibiting

death for a getaway driver who waited outside the crime scene to help associates

escape a robbery, and who did not join in the killings or possess either an intent to

kill or other lethal mental state].) Enmund‟s limits on death eligibility and

sentencing are “categorical.” (Cabana v. Bullock (1986) 474 U.S. 376, 386.)

When such rules are stated in terms of the circumstances under which capital

punishment is allowed, no constitutional violation occurs where the defendant “in

fact killed, attempted to kill, or intended to kill.” (Ibid., italics added.)

Accordingly, in the context of first degree felony murder, we have not

conditioned capital punishment upon an intent to kill for actual killers.

(Belmontes, supra, 45 Cal.3d 744, 794 [“The United States Supreme Court has

made clear that felony murderers who personally killed may properly be subject to

the death penalty in conformance with the Eighth Amendment — after proper

consideration of aggravating and mitigating circumstances — even where no

intent to kill is shown.”].) The felony-murder special circumstance in section

190.2(a)(17) is valid absent any requirement that a defendant who actually killed

during an enumerated felony acted with the intent to kill. (People v. Anderson

(1987) 43 Cal.3d 1104, 1138-1148, overruling Carlos v. Superior Court (1983) 35

Cal.3d 131, 138-154.) We reject defendant‟s contrary claim. We also decline to

reconsider Anderson, supra, 43 Cal.3d 1104 in this regard. (E.g., People v.

Stanley (2006) 39 Cal.4th 913, 958; People v. Young (2005) 34 Cal.4th 1149,

1204; People v. Diaz (1992) 3 Cal.4th 495, 569.)


Likewise, we disagree with defendant that, to withstand constitutional

scrutiny, the felony-murder special circumstance in section 190.2(a)(17)

minimally requires a finding of “reckless indifference to human life” for actual

killers lacking an intent to kill. In Tison v. Arizona (1987) 481 U.S. 137 (Tison),

on which defendant relies, the court addressed whether an accomplice to a first

degree felony murder who neither killed nor intended to kill could receive a death

sentence consistent with the standards set forth in Enmund, supra, 458 U.S. 782.

(See Tison, supra, 481 U.S. at pp. 139-141, 151-152 [allowing the death penalty

for brothers who helped kidnap and rob the victims in an ongoing scheme to

prevent the capture of their father, a dangerous fugitive, and who watched the

father and another accomplice slaughter the victims].) Tison answered in the

affirmative, holding that death is not disproportionate to culpability where there

was “major participation in the felony committed, combined with reckless

indifference to human life.” (Tison, supra, 481 U.S. at p. 158.) Indeed, while

noting that these two requirements are technically “separate[ ],” the court opined

that some felonies carry such a grave risk of death that “one could properly

conclude that any major participant necessarily exhibits reckless indifference to

the value of human life.” (Tison, supra, at p. 158, fn. 12; see id. at p. 157.)

Consistent with Tison, supra, 481 U.S. 137, the felony-murder special

circumstance applicable to certain accomplices in section 190.2, subdivision (d),

provides that “in the absence of a showing of intent to kill, an accomplice to the

underlying felony who is not the actual killer, but is found to have acted with

„reckless indifference to human life and as a major participant‟ in the commission

of the underlying felony,” may be sentenced to death. (People v. Estrada (1995)

11 Cal.4th 568, 575; see People v. Mil (2012) 53 Cal.4th 400, 408-409.)

However, the principles and authorities that allow the death penalty for

nonkiller accomplices to felony murder have no direct bearing on what is


minimally required to impose death on someone who actually kills during a felony

and who possesses no lethal mental state. We recently made this point, as follows:

“The circumstance that the court concluded in Tison[,] [supra, 481 U.S.

137] that major participation in the underlying crime coupled with reckless

indifference to human life was sufficient culpability for the death penalty to be

imposed upon an aider and abettor does not signify that the high court concluded

— or even implied — such circumstances are necessary in all cases to establish

death eligibility, such as, for example, when the defendant is the actual killer. . . .

[P]roof that a defendant who is guilty of felony murder was the actual killer of the

victim — by itself — establishes the degree of culpability required to impose the

death penalty. Tison and Enmund[,] [supra, 458 U.S. 472], which addressed

different concerns, do not alter that established principle. Indeed, those cases,

viewed properly, reinforce that rule.” (People v. Letner and Tobin (2010) 50

Cal.4th 99, 193 (Letner and Tobin) [holding trial court need not instruct that

felony-murder special circumstance requires the actual killer to be a major

participant in the felony who acted with reckless disregard of human life]; accord,

People v. Taylor (2010) 48 Cal.4th 574, 661 (Taylor).)

We reject defendant‟s further suggestion that Kennedy v. Louisiana (2008)
554 U.S. 407 (Kennedy), invalidates section 190.2(a)(17) as we have construed the

statute here and in prior cases. In Kennedy, the high court held that the Eighth and

Fourteenth Amendments prohibited imposition of the death penalty upon an adult

male defendant for the violent rape of an eight-year-old girl “where the crime did

not result, and was not intended to result, in death of the victim.” (Id. at p. 413.)

In so doing, the Kennedy court surveyed and weighed both legislative and societal

opinion, and found a national consensus that death was disproportionate under

such circumstances. (Id. at pp. 422-434.) The court also conducted its own

proportionality analysis based on settled case law, including Enmund, supra, 458


U.S. 782, and Tison, supra, 481 U.S. 137, and on the underlying aims of the death

penalty. (Kennedy, supra, 554 U.S. at pp. 421, 434-447.)

Contrary to what defendant claims, nothing in Kennedy, supra, 554 U.S.

407, undermines any decision of the United States Supreme Court or this court

concerning the circumstances under which a death sentence is allowed for felony

murderers who actually kill their victims. We discern no change in the law

supporting our conclusion that an actual killer need not, in defendant‟s words,

have “a culpable state of mind with regard to the murder.” (See Letner and Tobin,

supra, 50 Cal.4th 99, 197 [observing that Kennedy, supra, 554 U.S. 407, “did not

overrule” Tison, supra, 481 U.S. 137, insofar as Tison permitted death for certain

accomplices who did not kill or intend to kill in the course of felony murder].)

For all of these reasons, the Eighth and Fourteenth Amendments do not

compel us to interpret the special circumstance in section 190.2(a)(17) in the

manner defendant suggests for persons who actually kill in the course of a felony

murder. Also, because defendant‟s death sentence complied with federal and state

constitutional and statutory requirements in this respect, his related international

law claim fails. (People v. Watkins (2012) 55 Cal.4th 999, 1033-1034 & fn. 17;

Taylor, supra, 48 Cal.4th 574, 661.)

Here, consistent with the foregoing law, prosecution evidence showed that

defendant actually killed Hassan in the course of an armed robbery at the Casa

Blanca Market. The previous night, defendant borrowed a shotgun and rifle from

his friend Shorty in order to commit a robbery and get some quick cash. The next

day, defendant and his accomplices brought along two long guns — presumably,

Shorty‟s shotgun and rifle — as they drove around looking for places to rob.

During the drive, defendant, Jose, and Santos put on face masks. The group

targeted the second store they saw, the Casa Blanca Market, because they


perceived a lower risk of being seen by potential witnesses. When defendant

crossed the threshold, he was carrying the shotgun.

Once inside, Jose searched for cash. Hassan displayed a handgun. Jose,

who apparently wielded the rifle, tried to shoot Hassan but could not do so.

Defendant, who was already pointing his weapon at Hassan, reacted in a deadly

manner. By his own admission, defendant warned Hassan that he would be shot if

he resisted. After firing the shotgun once and seeing Hassan wounded on the

floor, defendant continued the assault. He approached Hassan, thought he was

smiling, and said he would be killed. Defendant kicked Hassan, and shot him a

second time. Hassan died from two shotgun blasts, including one to the back.

Afterwards, defendant admitted that he shot and killed Hassan, and twice

displayed the handgun he had taken in the process. Defendant seemed pleased

about having shot Hassan, and helped celebrate the crime the night it occurred.

Accordingly, defendant‟s challenge to the felony-murder special

circumstance and to its application here fails. We decline to reverse the judgment

on this ground.


A. Instructions on Witness Credibility

The trial court gave CALJIC No. 8.84.1, the standard instruction describing

the jury‟s basic duties at the penalty phase, including the requirement that jurors

accept and follow the law as stated by the court. The language in CALJIC

No. 8.84.1 has not changed since the time of trial, and requires the jury, among

other things, to “[d]isregard all other instructions given to you in other phases of

this trial.” As relevant here, the court also made two rulings at the penalty phase

concerning standard instructions it had given at the guilt phase affecting the

evaluation of witness credibility. First, the court declined to repeat those


credibility instructions. Second, contrary to the apparent preference of counsel on

both sides, the court did not instruct that guilt phase instructions on witness

credibility applied at the penalty phase.27

Defendant now claims the trial court withheld guidance the jury needed to

properly evaluate biased and conflicting testimony given by members of Arcadia‟s

family at the penalty phase (i.e., her sisters Maria and Elisabeth and brother-in-law

Ramon). Such aggravating evidence involved defendant‟s alleged assault with a

firearm upon Arcadia and six relatives, including young Marco, four months

before the capital crime. (See §§ 190.3, factor (b) (factor (b)) [other violent

criminal activity], 245, subd. (a)(2) [assault with a firearm].) Citing no specific

constitutional provisions, defendant asserts violations of his federal and state

rights to a fair penalty trial and reliable death verdict.28

In general, the trial court need not repeat or highlight “generic” guilt phase

instructions on witness credibility at the penalty phase as long as the jury can

properly infer that these instructions continue to apply. (People v. Brown (1988)

46 Cal.3d 432, 460; see People v. Rogers (2006) 39 Cal.4th 826, 905 [reasonable


The relevant instructions were CALJIC No. 2.00 (defining direct and

circumstantial evidence, and allowing reasonable inferences to be drawn from the
evidence), CALJIC No. 2.01 (regulating the use and sufficiency of circumstantial
evidence), CALJIC No. 2.20 (authorizing the jury to decide the credibility of
witnesses and identifying relevant factors), and CALJIC No. 2.22 (concerning the
weighing of conflicting testimony).


The trial court gave other standard instructions, not challenged on appeal,

concerning the evidence of assault with a firearm under factor (b). These
instructions required proof beyond a reasonable doubt to consider such crime in
aggravation (CALJIC No. 8.87), defined the crime of assault (CALJIC No. 9.00),
defined assault with a firearm (CALJIC No. 9.02), required a concurrence of act
and general intent for assault with a firearm (CALJIC No. 3.30), and defined
reasonable doubt (CALJIC No. 2.90).


doubt].) Such is the case where the instructions are not limited by their terms to

the guilt phase or contradicted by other advisements at the penalty phase. (People

v. Sanders (1995) 11 Cal.4th 475, 561; People v. Wharton (1991) 53 Cal.3d 522,

600.) However, penalty jurors cannot reasonably be expected to apply guilt phase

instructions on credibility where they are categorically told to disregard them and

no reinstruction is given. Under the latter circumstances — which existed at

defendant‟s trial — error occurs. (People v. Lewis (2008) 43 Cal.4th 415, 535

(Lewis); People v. Moon (2005) 37 Cal.4th 1, 36-37 (Moon).)

Nevertheless, defendant has not shown that the instructional omission

resulted in prejudice as to the jury‟s evaluation of the evidence of assault with a

firearm under factor (b). (E.g., People v. Brasure (2008) 42 Cal.4th 1037, 1073

(Brasure); Lewis, supra, 43 Cal.4th 415, 535-536; Moon, supra, 37 Cal.4th 1, 37-

39; People v. Carter (2003) 30 Cal.4th 1166, 1220 (Carter).) Events leading up to

the shooting were undisputed. Consistent with statements made to Officer Rapozo

at the crime scene, all three witnesses testified that the shooting involved a quarrel

over child custody. Arcadia became concerned when she learned defendant had

taken their son Marco from the family home while she was gone. Arcadia and five

other people drove in the Thunderbird to defendant‟s residence. Arcadia and

defendant argued outside while Maria and Elisabeth placed Marco in the car.

Gunshots were fired, the victims drove away, and the police were called.

Forensic evidence corroborated witness testimony about a shooting in front

of defendant‟s home. Arriving shortly after the crime apparently occurred, Officer

Rapozo found shell casings in the road nearby. The casings came from a pistol,

which one of the witnesses, Ramon, reported seeing in defendant‟s hand as he

aimed at the occupied car. Also, bullet holes, one of which was not far from the

ground, were found in a neighboring building. This evidence supported Maria‟s

testimony that defendant pointed the gun downwards toward the car.


All witnesses also agreed on the key point that defendant shot at the

Thunderbird after everyone, including Marco, was inside. Before hearing gunfire,

Maria and Ramon both saw defendant point a gun at the car. Elisabeth did not see

the gun or where it was aimed, but she knew defendant was the shooter because no

other culprit was nearby. Maria, Elisabeth, and Ramon each heard multiple shots.

Defendant suggests, however, that any variation in testimony necessarily

means that the witnesses falsely implicated him in the shooting, and that they

struggled to follow a concocted storyline at trial. To the contrary, there was

nothing artificially consistent about their accounts. For instance, Maria testified

that defendant took Marco from Elisabeth, and that Elisabeth got Marco a second

time before carrying him to the car. Elisabeth disputed this point. Also, Maria

and Ramon both saw a gun, but described it differently. Elisabeth never saw a gun

and could provide no such description. Only Ramon reported seeing defendant

seven or eight feet from the car when the shooting occurred. These

inconsistencies and discrepancies are fairly minor, and seem to be the kind

commonly found among eyewitnesses to an unforeseen and startling event.

Finally, it bears emphasis that the relevant instructional error concerned

credibility determinations — a task lay jurors would be expected to understand

and perform in their daily lives. As the case law makes clear, it seems far-fetched

to assume that the jury, in assessing factor (b) evidence: (1) placed great weight

on “a general direction to disregard the guilt phase instructions,” (2) “acted

contrary to common sense” in evaluating credibility, and (3) abandoned

“commonly held precept[s]” regarding witnesses‟ motivation to lie or any other

bias in performing that function. (Brasure, supra, 42 Cal.4th 1037, 1073 [finding

no prejudice under circumstances similar to the present case].)


Thus, under any applicable standard, the lack of proper instruction on

witness credibility was harmless as to both the factor (b) determination and the

resulting penalty verdict. We will not reverse the judgment on this ground.

B. Request to Modify and Supplement Standard Instructions

Defendant claims the trial court erroneously denied his request to modify

one standard instruction, CALJIC No. 8.88, and to give several special instructions

concerning the death penalty. In doing so, the court purportedly violated his

federal and state constitutional rights to due process, a fair jury trial, and a reliable

capital determination. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art.

I, §§ 7, 15.) Under settled law, defendant is wrong.29

1. CALJIC No. 8.88

This standard instruction, which is virtually unchanged since the time of

trial, concerns the weighing of aggravation and mitigation and selection of the

appropriate penalty. At issue here is the last sentence, which states: “To return a

judgment of death, each of you must be persuaded that the aggravating

circumstances are so substantial in comparison with the mitigating circumstances

that it warrants death instead of life without parole.” (CALJIC No. 8.88, italics

added.) Defendant‟s proposed modification would have qualified the italicized

terms by advising jurors that aggravation must “outweigh” mitigation, and that

death must be “appropriate.” Otherwise, he contends, the instruction invited the

jury to exercise its sentencing discretion in a skewed and arbitrary manner.


As agreed by the parties, the trial court granted defendant‟s request for a

special instruction concerning his constitutional right not to testify at the penalty
trial. This instruction told jurors to avoid drawing any inference from defendant‟s
failure to testify, and to prevent this matter from affecting their deliberations.


However, the standard version of CALJIC No. 8.88, read as a whole,

accurately describes the individualized, normative nature of the sentencing

determination, and properly guides the jury‟s discretion in this regard. Language

preceding the challenged sentence states, among other things, that “[i]n weighing

the various circumstances you determine under the relevant evidence which

penalty is justified and appropriate by considering the totality of the aggravating

circumstances with the totality of the mitigating circumstances.” (Ibid., italics

added.) Thus, as in other cases, we reject defendant‟s claim that CALJIC

No. 8.88, including the “so-substantial” phrase, is vague and uncertain. The

instruction also makes clear that a death sentence is “warranted” only if it is

appropriate in light of the aggravating and mitigating evidence at trial. (McKinzie,

supra, 54 Cal.4th 1302, 1361; Famalaro, supra, 52 Cal.4th 1, 43; People v. Butler

(2009) 46 Cal.4th 847, 874 (Butler); People v. Page (2008) 44 Cal.4th 1, 56.)

2. Death as the Most Severe Penalty

Defendant requested a special instruction stating that death is the most

severe penalty under the law. On its face, the instruction sought to dispel any

impression expressed during jury selection that a sentence of life without the

possibility of parole was “actually worse” than a death sentence.30 However, the

trial court was not required to give this instruction and did not err in refusing to do


The proposed instruction read as follows: “Some of you expressed the

view during jury selection that the punishment of life in prison without possibility
of parole was actually worse than the death penalty. [¶] You are instructed that
death is qualitatively different from all other punishment and is the ultimate
penalty in the sense of the most severe penalty the law can impose. Society‟s next
most serious punishment is life in prison without possibility of parole. [¶] It
would be a violation of your duty, as jurors, if you were to fix the penalty at death
with a view that you were thereby imposing the less severe of the two available


so. Though it is a correct statement of law to describe death as the ultimate

penalty, “ „the penalty trial itself and the jury instructions given, particularly

CALJIC No. 8.88, make clear that the state views death as the most extreme

penalty.‟ ” (People v. Jones (2012) 54 Cal.4th 1, 81; accord, People v. Tate

(2010) 49 Cal.4th 635, 707.) The court properly avoided such redundancy here.

(People v. Cook (2007) 40 Cal.4th 1334, 1363.)

3. Deterrent Effect of Death Penalty

Contrary to what defendant now claims, the trial court did not err in

refusing to instruct the jury not to consider the deterrent effect of the death

penalty. Defendant speculates that because certain jurors mentioned deterrence on

their written questionnaires, such a cautionary instruction was necessary.31 He

does not contend, however, that either party raised the issue at trial. Nor does he

address the inherent risk that such an instruction would have called the jury‟s

attention to irrelevant matters it otherwise would have ignored. Indeed, under the

court‟s instructions, the jury was told to consider only the statutory aggravating

and mitigating factors in deciding penalty. (CALJIC No. 8.85.) “The trial court

was not required to furnish an instruction exhorting the jury to refrain from

considering factors which, under a reasonable understanding of the jury

instructions, it should have known were improper to consider.” (People v. Welch

(1999) 20 Cal.4th 701, 766; accord, People v. Brown (2003) 31 Cal.4th 518, 566;

Carter, supra, 30 Cal.4th 1166, 1223-1224.)


The proposed instruction read as follows: “In deciding whether death or

life imprisonment without the possibility of parole is the appropriate sentence, you
may not consider for any reason whatsoever the deterrent or non-deterrent effect
of the death penalty or the monetary cost to the state of execution or of
maintaining a prisoner for life.”


4. Instructions Highlighting Mitigating Factors

As set forth below, the trial court declined to give several one-sentence

instructions that defendant requested concerning factors he viewed as particularly

mitigating at the penalty phase. However, a capital defendant‟s right to present

relevant mitigating evidence, and to urge its consideration by the jury, does not

encompass “a concomitant right to instruction on particularized mitigation.”

(People v. Cox (1991) 53 Cal.3d 618, 676.) In other words, the court need not

present a partial list of potential mitigating factors or otherwise identify certain

evidentiary matters as extenuating. (People v. Howard (1988) 44 Cal.3d 375, 442

[reasoning that such instructions do not illuminate “the legal standards at issue”].)

Also, to the extent proposed instructions would have directed the jury to

consider “all evidence in mitigation from whatever source,” they merely duplicate

standard instructions given at the penalty phase. (People v. Jones, supra, 54

Cal.4th 1, 83; accord, People v. Gonzales (2012) 54 Cal.4th 1234, 1297; People v.

Lenart (2004) 32 Cal.4th 1107, 1135.) Specifically, CALJIC No. 8.85, given here,

allows the jury to consider any extenuating circumstance of the crime, even if not

a legal excuse for the crime, and any sympathetic or other aspect of defendant‟s

character or record he offered as a basis for a sentence less than death. (See

§ 190.3, factor (k); People v. Easley (1983) 34 Cal.3d 858, 878, fn. 10.)

Thus, the court in this case did not err by declining to instruct the jury on

the following points: (1) “the effect of defendant‟s execution on his family and

friends” (see, e.g., People v. Lee (2011) 51 Cal.4th 620, 656-657 & fn. 21), (2)

“defendant‟s potential for rehabilitation and leading a useful and meaningful life

while incarcerated” (see, e.g., People v. Catlin (2001) 26 Cal.4th 81, 173), (3) the

“exercise [of] mercy on behalf of the defendant” (see, e.g., Butler, supra, 46

Cal.4th 847, 875), (4) “any lingering doubts” about defendant‟s guilt (see, e.g.,

Boyer, supra, 38 Cal.4th 412, 487, and (5) the lack of evidence that “defendant has


been convicted of any prior felony” (see, e.g., People v. Jones (2003) 30 Cal.4th

1084, 1124).

C. Constitutionality of Death Penalty Law

Defendant raises various challenges under the Fifth, Sixth, Eighth, and

Fourteenth Amendments to the validity of the statutory scheme under which he

was sentenced to death. He does so to preserve the same issues for federal review.

(See People v. Schmeck (2005) 37 Cal.4th 240, 303-304 & fn. 22.) Defendant

acknowledges that we have rejected these claims before. We do so again here.

The homicide and death penalty statutes adequately narrow the class of first

degree murderers eligible for the death penalty. The statutory scheme is not

overbroad or arbitrary in this regard. (Boyer, supra, 38 Cal.4th 412, 483.)

Section 190.3, factor (a) (the circumstances of the capital crime) is not so

broad as to be applied in a wanton or freakish manner. (People v. Garcia (2011)

52 Cal.4th 706, 763.) Nor is factor (b) of the same statute (the defendant‟s other

violent criminal activity) irrational or invalid insofar as it permits consideration of

unadjudicated crimes. (People v. Beames (2007) 40 Cal.4th 907, 934.)

The death penalty law does not lack adequate safeguards insofar as it does

not require written findings either beyond a reasonable doubt or by any other

standard or burden of proof that an aggravating circumstance has been proved

(other than factor (b)), that the aggravating factors outweigh the mitigating factors,

or that death is the appropriate penalty. (People v. Avila (2009) 46 Cal.4th 680,

724.) Likewise, the jury need not be told that there is no burden of proof at the

penalty phase. (People v. McKinnon (2011) 52 Cal.4th 610, 697-698.)

Nor are the statute and related standard instructions flawed in not

demanding juror unanimity on any aggravating factor, including factor (b), and in


not authorizing a presumption favoring the imposition of a life sentence.

(DePriest, supra, 42 Cal.4th 1, 60.)

For reasons we have explained above, and which need not be repeated here,

we reject defendant‟s broad attack on standard instructional language in CALJIC

No. 8.88 concerning the weighing of aggravating and mitigating factors and the

appropriateness of a death sentence. (McKinzie, supra, 54 Cal.4th 1302, 1361.)

Use in the sentencing factors of such adjectives as “extreme” (§ 190.3,

factors (d), (g)) and “substantial” (id., factor (g)) does not create an improper

barrier to the consideration of mitigating evidence. (People v. Morrison (2004) 34

Cal.4th 698, 730.) An instruction was not required as to which sentencing factors

are aggravating, which are mitigating, and which could be either mitigating or

aggravating. Also, language in CALJIC No. 8.85 to consider “[w]hether or not”

certain mitigating factors were present did not impermissibly suggest that the

absence of such factors was aggravating. (People v. Jones, supra, 54 Cal.4th 1,

87.) Nor must the trial court delete any inapplicable mitigating factors from

CALJIC No. 8.85. (People v. Cook (2006) 39 Cal.4th 566, 618.)

The death penalty law need not provide comparative or intercase

proportionality review. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1067.)

Neither does a judgment of death under the statutory scheme violate international

law. (Id. at p. 1066.) There is no equal protection violation insofar as the

statutory scheme fails to provide capital defendants certain procedural guarantees

afforded to noncapital defendants. (Fuiava, supra, 53 Cal.4th 622, 732.)

D. Cumulative Error and Prejudice

Defendant contends that the combined effect of the guilt and penalty errors

asserted on appeal requires reversal of the entire judgment even if no error is

prejudicial on its own. For reasons we have explained, any errors we have found


or assumed at either phase of trial were harmless under any applicable standard.

Any conceivable cumulative prejudicial effect does not establish that defendant

was denied due process of law or a fair trial. Therefore, the claim lacks merit.


The judgment is affirmed in its entirety.





See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Contreras

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: December 12, 2013

County: Tulare
Judge: Patrick J. O‟Hara



Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Denise Anton,
Deputy State Public Defender, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, Ward A. Campbell and Christina Hitomi
Simpson, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Denise Anton
221 Main Street, 10th Floor
San Francisco, CA 94105
(415) 904-5600

Christina Hitomi Simpson
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 323-1213

Opinion Information
Date:Docket Number:
Thu, 12/12/2013S058019