Stanford Law School - Robert Crown Law Library

Filed 7/24/08 (this opn. should follow S148029, also filed 7/24/08)




IN THE SUPREME COURT OF CALIFORNIA




THE PEOPLE,

Plaintiff and Respondent,

S042224

v.

Sonoma County

TOMAS VERANO CRUZ,

) Super.

Ct.

No.

21687

Defendant and Appellant.

Following a stipulated change of venue from Shasta County to Sonoma

County, a jury convicted defendant Tomas Verano Cruz of the first degree murder

of Shasta County Deputy Sheriff Kenneth Perrigo (Pen. Code, § 187),1 and

forcible escape (§ 4532, subd. (a)). Each offense was found to have been

committed with personal firearm use (§ 12022.5). Three special circumstances

were found true: murder for the purpose of perfecting or attempting to perfect

escape from lawful custody (§ 190.2, subd. (a)(5)); intentional murder of a peace

officer while engaged in the performance of his or her duties (id., subd. (a)(7));

and lying in wait (id., subd. (a)(15)). After a penalty trial, the jury returned a

verdict of death. The trial court denied the automatic motion to modify the

penalty verdict (§ 190.4, subd. (e)) and imposed the death sentence. This appeal is


1

All further statutory references are to the Penal Code unless otherwise

indicated.

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automatic. (§ 1239, subd. (b).) All of defendant’s claims having been found to be

without merit, we affirm the judgment in its entirety.

I. FACTS

A. Guilt Phase

Early in the morning hours of October 21, 1991, Shasta County Deputy

Sheriff Kenneth Perrigo was fatally shot with his own handgun by defendant,

Tomas Cruz, then 23 years old, as he was transporting defendant and codefendant

Carlos Estrada, both of whom had been arrested for being drunk in public, from

the sheriff’s substation in Burney to the main county jail in Redding. The

defendant, while handcuffed, managed to reach under the front seat of the patrol

car in which he was being transported and retrieve the deputy’s fanny pack, in

which was stored a backup nine-millimeter service handgun. The People alleged,

and the jury so found, that defendant then lay in wait until an opportune time to

shoot the officer, for the purpose of making good his escape from the patrol car

along with codefendant Estrada, and that Deputy Perrigo was intentionally

murdered while engaged in the performance of his duties as a peace officer.

1. Prosecution Evidence

The Shasta County Sheriff’s Department maintains a small substation in

Burney housing a small office, justice courtroom and holding cell to serve the

surrounding rural communities. Burney is 50 miles from the county seat in

Redding, where the main jail facility is located. The substation holding cell was

only used while a detainee’s paperwork was being prepared. Detainees who

would be kept in custody overnight were always transported to the main jail in

Redding.

Deputy Perrigo was assigned to the Burney substation and was on duty

working the 7:00 p.m. to 3:00 a.m. shift on the night of October 20. Deputy Kevin

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Pitts, whose shift started at 11:00 p.m., was also on duty, as was Deputy Buck

Dikes, whose shift would end at 11:00 p.m. Sometime around midnight, Deputy

Perrigo was dispatched to the nearby town of McArthur on a theft-related call.

Deputy Pitts offered to provide backup, which Deputy Perrigo declined.

Charlene Fry had made the call to 911 shortly before midnight. She gave

the following account of the events that ensued. Fry was at the home of her friend

Sherry Wadsworth in McArthur when defendant and Estrada knocked on the front

door. Estrada had been romantically involved with Wadsworth and had been

asked to move out of her house sometime prior to the incident. Both men

appeared to have been drinking and were slurring their words. Defendant was

carrying an open beer in one hand and a partial 12-pack in the other. Estrada got

into a verbal altercation with Wadsworth over possession of his Social Security

card. Defendant “stuck his foot in the front door,” became angry and cursed at

Fry. Defendant and Estrada refused to leave the area until Wadsworth threatened

to call the sheriff. Eventually the two turned their attention to a car belonging to

Wadsworth’s roommate, “Miguel,” parked in front of the house. They attempted

in vain to start the vehicle, after which defendant opened the hood and removed

the battery from the vehicle. The two then walked away with the battery,

prompting Fry to call the sheriff.

Deputy Perrigo arrived on the scene, spoke with Fry and Wadsworth, left to

look for defendant and Estrada, and eventually returned with the two men in the

back of his patrol unit. Fry testified defendant was angry and screaming

obscenities, yelling, “I’m not going to jail. I’m going to kill you,” while Estrada

sat crying in the patrol car. Miguel, from whose car the battery had been taken,

was awakened, and Fry, Wadsworth, and Miguel followed Deputy Perrigo in Fry’s

car to the home of Edna Sanchez, where defendant and Estrada had been located

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by the deputy. Defendant’s brother Joaquin Cruz lived with Sanchez, and

defendant was living in a station wagon parked in front of the Sanchez house.

Miguel looked under the hood of the station wagon and identified the

battery as the one taken from his car. Deputy Perrigo removed it and placed it

near his patrol unit, at which point defendant became even more upset. He began

hitting the window of the patrol car with his handcuffs, “flipping the bird,” and

screaming, “I’m going to kill you, you son of a bitch,” “I’m not going to jail.”

Defendant started kicking at the door of the patrol car, threatening, in both English

and Spanish, to kill Fry, Wadsworth, Miguel and Deputy Perrigo.

Deputy Perrigo retrieved a “rope restraint” from the patrol car’s glove

compartment. Deputy Pitts testified such a restraint is normally used when a

suspect is physically abusive and refusing to cooperate with officers. When a

suspect is handcuffed with his hands behind his back, the restraint is looped

around the suspect’s feet and connected to the handcuff chain to limit movement

of the legs or prevent the suspect from kicking or banging his head against the

inside of a patrol car.

Fry observed Deputy Perrigo remove defendant from the rear seat of the

vehicle and place his knee in the struggling defendant’s back to get him to lie

prone on the ground, belly down, so that he could re-handcuff defendant behind

his back and affix the restraint. While the officer was doing this, Fry heard

defendant continuing to scream at him, calling him a “son of a bitch” and

repeatedly threatening to kill him. After adding the restraint, Deputy Perrigo

placed defendant back in the rear seat of the patrol unit. Fry testified Deputy

Perrigo used very little force in restraining defendant and putting him back into the

patrol car. She did not see any injuries on defendant, nor did defendant complain

of any injuries. Fry did recall hearing Deputy Perrigo saying something to the

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effect of, “I wonder how it feels to be a 50 pound sack of dogfood” as defendant

was yelling while being placed back into the patrol car.

Sherry Wadsworth’s account of the events that transpired corroborated

Fry’s testimony. Both defendant and Estrada appeared drunk upon arriving at her

front door. Estrada argued with her about the return of his Social Security card,

while defendant became belligerent, asked her if she “wanted problems,” and

stuck his foot in her door to prevent her from closing it. The men only left after

she threatened to call the sheriff, with defendant removing and walking off with

the battery from her roommate Miguel’s car.

Wadsworth testified that after Deputy Perrigo returned with the men, he

asked her, Fry, and Miguel to follow him back to Edna Sanchez’s house to identify

the battery. They did so, and once in front of the Sanchez house, identified the

battery as the one taken from Miguel’s car parked in front of Wadsworth’s house.

Deputy Perrigo then asked Wadsworth to tell defendant and Estrada they were

being detained for being “drunk in public,” and that “they’d be released in the

morning.” Wadsworth told this to defendant and Estrada in Spanish, then repeated

it in English to Deputy Perrigo. Estrada was crying, whereas defendant was angry,

screaming “over and over” in a “pretty loud” voice, “I’m going to kill you, fucking

cop.” Wadsworth testified defendant began “pound[ing]” his handcuffed hands

against the patrol car window, and refused to stop doing so when Deputy Perrigo

asked him to “be good, to be quiet.” She then observed the deputy remove

defendant from the patrol car while he continued to scream, “I’m going to kill

you”; re-handcuff him, this time with his hands behind his back; and use his knee

to bring defendant to the ground when defendant refused to comply so that the

rope restraint could be applied. Deputy Perrigo then placed defendant back in the

rear seat of the patrol unit before driving off with the two men. Wadsworth saw

no injuries on defendant, did not hear him complain of any injuries, and, contrary

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to Fry’s recollection, did not hear the deputy make any remarks to defendant as he

was being placed back into the patrol car.

Edna Sanchez also testified for the prosecution. Defendant’s brother,

Joaquin Cruz, was her boyfriend and lived with her at her home. Defendant slept

in a station wagon parked in front of her house. Sanchez testified that defendant

and Estrada were sitting outside her house drinking beer starting at about 5:00

p.m. They did not seem drunk at the time, and eventually left. Later, around

midnight, she heard the engine of the station wagon being raced loudly. Not

wanting trouble with her neighbors, she went outside, saw Estrada in the driver’s

seat and defendant in the passenger seat, and “hollered” at them to “knock it off.”2

When the two continued to rev the engine again, Sanchez went back outside to tell

them to stop. Estrada grabbed Sanchez’s wrist when she tried to reach for the

station wagon keys, while defendant was “smiling” and “kicking back” in the

passenger seat. Sanchez testified that shortly thereafter, Joaquin went outside and

yelled at the two to stop revving the engine. Sanchez did not thereafter hear

Deputy Perrigo arrive with the other witnesses to identify the battery that had been

taken from Miguel’s car and placed in the station wagon.

The dispatcher’s log reflected that at 12:57 a.m. Deputy Perrigo radioed in

that he had two suspects in custody for “§ 647(f)” (§ 647, subd. (f) [hereafter

section 647(f)]), which meant public intoxication. The dispatcher testified he

recalled receiving Deputy Perrigo’s transmission, and that the deputy sounded out

of breath. At 1:28 a.m. Deputy Perrigo radioed his dispatcher that he was

returning to the substation with the arrestees. Shortly after 2:00 a.m., Deputy Pitts

arrived back at the substation just as Deputy Perrigo was helping defendant get out


2

At a pretrial hearing, Sanchez had testified that defendant was “pretty

drunk” and slurring his words when she went out to tell him and Estrada to be
quiet.

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of the rear driver’s side door of his patrol car. Deputy Pitts walked over to assist

Deputy Perrigo. He could see that defendant’s hands were handcuffed in front of

him, with a rope restraint hanging down from the handcuffs, and one palm “facing

out” while the other was “facing in,” which Deputy Pitts knew meant that

defendant had “slipped his cuffs” by stretching his arms down behind him,

bringing his knees to his chest, and drawing his legs up through his handcuffed

arms.

Deputy Pitts assisted Deputy Perrigo in bringing defendant into the

substation. Defendant stated, “What are you guys going to do now, shoot me?”

Deputy Perrigo replied, “I’m not going to shoot you.” Defendant began dancing,

singing, laughing, and acting “cocky.” He commented to Deputy Perrigo, “[A]ll it

would take is one bullet in your head.” Defendant saw a birthday cake in the room

and asked for a piece. After being placed in the holding cell, he continued singing,

asked for a piece of cake, and began tapping on the fingerprint table in the cell,

making comments in Spanish and English as he got “louder and louder.” At one

point Deputy Perrigo entered the cell, placed his hands on defendant’s shoulders

and “backed him into a bench” and “sat him down.” As soon as the deputy exited

the cell, defendant got up and started singing, dancing, and pounding on the table

again.

Defendant’s mood soon changed. He told the deputies to “stay away from

his woman” and “not mess with her” or he would kill them. Deputy Pitts testified

defendant resumed banging on the table, “making so much racket that you could

barely hear yourself think.” Deputy Pitts estimated that defendant threatened to

kill Deputy Perrigo between five to seven times. Defendant, who is a Mexican

national, kept repeating that he hated America, that “Americans treated him like

shit,” and that he would “just as soon kill all Americans.”

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Deputy Pitts testified defendant was again handcuffed with his hands

behind his back so he would “be quiet and quit pounding on the table.” Defendant

then stated he would “be good” if allowed to use the bathroom. Deputy Perrigo

went back into the holding cell, removed defendant’s handcuffs, escorted him to

the bathroom, then returned him to the holding cell. After completing necessary

paperwork, Deputy Perrigo again handcuffed defendant’s hands behind his back

and placed him and Estrada in the rear of his patrol car. Deputy Pitts offered to

handle the transport so that Deputy Perrigo would not have to put in overtime.

Deputy Perrigo declined the offer.

After Deputy Perrigo secured defendant and Estrada in the rear seat of his

patrol car, he went back into the substation for approximately 15 minutes, leaving

the two men alone in the vehicle. Deputy Perrigo arranged through his dispatcher

to have a sheriff’s unit from the main jail in Redding meet him halfway between

Redding and Burney to take custody of the arrestees. Deputy Pitts testified

Deputy Perrigo left the substation with defendant and Estrada just before 3:00 a.m.

Deputy Perrigo’s last radio transmission was that he was en route to rendezvous

with the patrol unit from Redding. Immediately thereafter, Deputy Pitts heard the

Redding dispatcher confirm that a Redding patrol unit was heading toward the

substation to make the arrestee exchange at the halfway point.

Within minutes, the Burney dispatcher attempted to contact Deputy Perrigo

to advise him the Redding unit was on its way. He got no response. After trying

several more times, on several radio frequencies, to contact Deputy Perrigo,

Deputy Pitts attempted to contact him on his hand-held radio. There were no

responses.

Lorinda McCulley lived on Highway 299 on the outskirts of Burney.

Shortly after 3:00 a.m. on the morning in question, she heard a car crashing near

her home, followed by a series of loud noises and then a gunshot. She walked up

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onto the highway and saw a marked patrol unit with its lights flashing and the

driver’s side rear door open. She called the Burney substation to report that one of

their officers had been in an accident. Diane Strickland, who also lived close to

the scene, likewise heard a loud crash at approximately 3:00 a.m., then a gunshot

from the direction of the noise. Deputy Pitts received McCulley’s phone call on

the substation’s normal business line and raced to the scene, which was 1.9 miles

from the substation, or a two to two and a half minute drive away.

Upon arriving, Deputy Pitts observed Deputy Perrigo’s patrol car “sitting

kind of crossways” on the highway,” “look[ing] as if it had rolled over,” with the

light bar “hanging off and to the front” and a visible dent in the vehicle’s roof.

The driver’s side rear door was open, and neither defendant nor Estrada was in the

vehicle or vicinity. Deputy Perrigo was “sitting still in the driver’s seat slumped

over to the side with his head on the window and his shoulder against the door

post.” There was blood on his face and clothing and his neck appeared to be

broken. Deputy Pitts then noticed a hole in the Plexiglas partition and a “hole in

the back of [Deputy Perrigo’s] head.” Additional officers and medical personnel

were summoned to the scene.

Evidence technicians who later processed the crime scene observed the hole

in the Plexiglas security screen between the front-seat and backseat of the patrol

unit. Among other items found scattered on the front floorboard of Deputy

Perrigo’s vehicle were a part of a metal toilet-paper-roll holder and the officer’s

empty fanny pack, in which he was known to have kept a backup nine-millimeter

service handgun. Expended nine-millimeter shell casings were found under the

front and rear seats of the patrol unit, and unexpended nine-millimeter bullets were

also found both inside and outside of the vehicle. The shell casing found under the

rear seat was later determined to have been fired from the gun used to kill Deputy

Perrigo. All of the windows in the patrol car were intact except for the rear

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driver’s side door window, which was “shattered out.” There was a bullet hole in

the driver’s side rear door latch area; gunpowder residue on the inside of the door

was consistent with the door latch having been shot at from inside the vehicle.

Defendant’s palm prints were found on the handle of the open door.

The design of the Plexiglas security screen left an 11-inch gap between the

bottom of the floor of the patrol car and the edge of the metal shield at the base of

the screen. Testimony established that the officer’s fanny pack with the nine-

millimeter handgun stored in it could be pulled through this opening near the

automatic transmission “hump.” A toilet-paper-roll holder was soon discovered

missing from the holding cell bathroom in the substation.

The medical examiner’s testimony established that Deputy Perrigo died of

multiple gunshot wounds. He was shot once in the back of the head and once in

the neck, with both gunshots having been inflicted while he was still alive. The

gunshot wound to the back of his head was consistent with his having been shot

through the Plexiglas security barrier. Bruising on the officer’s face indicated he

was alive when the patrol unit’s air bag deployed. The medical testimony further

established the gathered evidence and findings were most consistent with Deputy

Perrigo having been shot in the back of the head, and then slumping forward;

having the airbag deploy into his face, causing him to fall backwards and fracture

his neck; and then being shot a second time through the neck. Gunshot residue

found on the front seat of the patrol car further suggested the second shot to the

deputy’s neck was fired by someone “standing in the doorway opening” of the

vehicle. Deputy Perrigo’s on-duty sidearm revolver was secured in its holster,

which was still snapped closed, when he was transported to the hospital from the

crime scene.

After a massive manhunt lasting nearly a week, defendant and Estrada

surrendered and were taken into custody at the rice mill where defendant and his

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brother were employed. Recovered from the hayloft in which the two men were

hiding was the murder weapon, a hacksaw, and portions of broken handcuffs.

Bernardo Sanchez, an employee at the rice mill, testified defendant and

Estrada walked into the packing building where he was working sometime prior to

their subsequent surrender to police at the mill. Defendant still had on his

handcuffs, with his wrists cuffed in front of him, twisted wrist over wrist. Sanchez

overheard another worker, Guadelupe Duran, ask Estrada if they still had the

murder weapon. Estrada replied the gun was hidden in the alfalfa. Duran asked

“which one of them had done that wicked thing,” a reference to the murder of

Deputy Perrigo. Estrada motioned with his head toward defendant, who made no

response. Defendant then stated that nothing would have happened if the lady had

not called the police on them. Defendant asked the workers for money to buy

clothes so that he and Estrada could flee to Oregon.

Detective Richard Newsome interviewed defendant and Estrada after their

surrender, at which time defendant gave statements in which he confessed to

killing Deputy Perrigo. Defendant told the detective that after he was restrained

with the rope restraint and being transported to the Burney substation, he was able

to “get loose” and slip his handcuffs to the front while still in the patrol car. He

claimed that once inside the substation, he asked to use the bathroom but the

officers would not permit him to do so. After being returned to the patrol car for

transport to Redding, his hands were handcuffed behind him. Defendant stated he

began kicking the front seat of the vehicle and a fanny pack with a weapon fell

out. He retrieved the handgun, “worked the action” and saw that it was loaded and

functional, then hid the gun behind him near where the seatbelt attaches to the

seat. According to defendant, the two considered shooting Deputy Perrigo in the

parking lot of the substation and escaping, but decided not to because “there were

other deputies present.” They also discussed “kicking out the back window of the

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patrol car” to make their escape. Ultimately they decided to “wait until they were

on the road where there were no houses and shoot Deputy Perrigo,” then escape.

Defendant claimed that once the three were a short distance outside of Burney, in

an area where defendant thought there were no houses, Estrada gave him “hand

signals” and told defendant to “shoot him.” Defendant told Detective Newsome

he put the gun up against the Plexiglas, aimed at the back of Deputy Perrigo’s

head, closed his eyes and pulled the trigger. When asked why he shot Deputy

Perrigo, defendant stated “so they could escape,” although he claimed Estrada had

told him to shoot the officer. Sometime thereafter, defendant claimed he shot

Deputy Perrigo because he (the deputy) was “making fun” of defendant.

Defendant also described how the patrol car then “got in a wreck.”

Defendant kicked out the back window and got out of the vehicle. He claimed he

put the gun down on the seat, and that Estrada picked it up and shot Deputy

Perrigo a second time. The two men then “ran to the woods.”

The prosecution also introduced evidence that defendant had been arrested

for being drunk in public a little over three months prior to this incident. On that

occasion in July 1991, he began spitting and kicking at the doors of the patrol car

in which he was being transported to the substation, “slipped his cuffs” from back

to front, and threatened to kill arresting officer Dikes “when he got out of custody”

by shooting the officer “in the back of the head.” Defendant was charged with

threatening an officer in addition to the public intoxication charge on that

occasion.

2. Defense Evidence

No defense to speak of was presented at the guilt phase. Defendant’s

brother, Joaquin Cruz, lived with Edna Sanchez and was the supervisor at the rice

mill where defendant had worked for several weeks, and from which location

defendant and Estrada were taken back into custody after the murder of Deputy

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Perrigo. Cruz confirmed that defendant was living in the station wagon in front of

Sanchez’s house. On the night of the murder, defendant was supposed to go to

work, but Cruz told him not to do so because he had been drinking and Cruz felt

he might get hurt. Cruz testified that defendant, Estrada, and a third man who

were drinking together appeared happy at the time. After the murder, when

workers from the mill told Cruz that defendant and Estrada had showed up at the

mill, Cruz notified the mill’s owner, and arrangements were made to have the two

surrender to police.

B. Penalty Phase

1. Prosecution Evidence

The parties stipulated that defendant had been arrested on three prior

occasions: On August 5, 1988, for being drunk in public (§ 647(f)); on September

3, 1989, again for being drunk in public; and on January 7, 1990, for drunk driving

(Veh. Code, § 23152, subd. (a)).

The People presented testimony regarding defendant’s fourth arrest, on July

7, 1991, once again for being drunk in public, during which incident defendant

also told arresting Deputy Dikes that when he (defendant) got out of custody he

would get a gun and shoot the deputy “in the back of the head.” On this occasion

defendant, who appeared drunk, began prowling around a mobilehome in

McArthur at which two teenage girls were babysitting a nine-month-old infant.

Defendant’s questions frightened the girls, who retreated into the home.

Defendant then pressed his face against the kitchen window, further scaring the

girls who began crying. One girl called her father who was nearby; upon his

arrival he saw defendant attempting to open a window to gain access to the home.

He chased defendant half a block before subduing him, and was kicked by

defendant before police arrived and made the arrest.

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The People also presented victim impact evidence at the penalty phase.

Deputy Perrigo left behind a wife and three children. The oldest, an adopted child,

Katie, age 14, was particularly devastated by the loss of her father; the middle

child was nine years old, and the youngest four years old. Deputy Perrigo’s wife

testified about the victim’s good character as a devoted father and citizen. He was

a scoutmaster, was involved with the young men’s program at a local church, and

had served during his law enforcement career as an evidence technician, a hostage

negotiator, and a SWAT team member. Deputy Perrigo’s father had been a

California Highway Patrol officer for over 22 years. He testified about his son’s

career in law enforcement, and broke down on the witness stand when describing

the devastating impact his son’s death had on the fallen officer’s mother.

Finally, it was stipulated that registered nurse Claire Busby reviewed the

jail medical records from all four incidents in which defendant was taken into

custody, and that she found no evidence that defendant had suffered any physical

injuries during or as a result of any of the arrests.

2. Defense Evidence

The defense presented the testimony of Claire Kantlehner, who was

employed as the dispatcher at the Burney substation on July 7, 1991, the date on

which defendant was arrested and taken into custody for being drunk in public

during the prowling incident. Ms. Kantlehner had been a licensed vocational

nurse prior to her employment as a dispatcher. She testified that upon being

brought into the substation, defendant was “obnoxious,” struggling to break free of

his restraints, spitting, blowing mucous out of his nose, kicking, and “just

intoxicated.” Defendant was handcuffed, with his feet secured with a rope

restraint, and Deputy Dikes wrapped some Curlex gauze around defendant’s

mouth to prevent him from spitting. At one point Ms. Kantlehner noticed

defendant “was getting a little dusky like someone holding their breath.” She

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suggested the deputies remove the gauze because she felt there was a possibility

defendant was not getting enough air, and they did so.

Carol Shaw was a bookkeeper for the Fall River Wild Rice company in

1991. She knew defendant’s brother, Joaquin Cruz, who had worked for the

company for about five years. Defendant came to the rice plant in the fall of 1991

and worked there for seven or eight weeks. Shaw testified she spent much time

with defendant because he was Cruz’s brother and so they wanted him to be

comfortable. She felt defendant was more pleasant and congenial than most of the

laborers, and knew of no problems with his work. Shaw never saw defendant

drinking, and never felt concern about her safety around him, even after the

murder of Deputy Perrigo, when she knew he would probably be heading toward

the rice plant.

Defendant, age 23 at the time of this offense, had a wife, Alma Hernandez,

who came from Mexico to testify in his behalf, and brought their son, Edgar, who

was seven years old at the time. Hernandez gave birth to Edgar when she was 15

years of age. The family was from Antiguo Taumin, Mexico. Hernandez testified

defendant stayed with her until Edgar was six months old, then left for the United

States to work. Defendant sent her money every month. He returned twice to

Mexico, and loved his son very much. Hernandez testified that when defendant

returned in 1988, he took her to register for “something about income tax,” that

she did not know she had actually married defendant, and that he laughed when

she realized he had fooled her. Hernandez also recalled that once she and

defendant were robbed by a “truckload of policemen” after attending a dance in

Guadalajara.

Defendant’s mother also testified in his behalf. She recalled that when

defendant was 14 years old, he was taken away in handcuffs by the Mexican

police and held for several days. When he was returned home, his head was

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shaved and he had been badly beaten. Defendant’s mother testified further that the

people of Antiguo Taumin are generally afraid of their local police.

Defendant’s sister, Laticia, age 17, also traveled from Mexico to testify in

his behalf. She testified defendant got along very well with everyone in Mexico,

that she loved him very much, and that she wrote to him and relied on him for

advice. She believed defendant to be a good father and husband, who wrote to his

mother, his wife, and to her.

Defendant’s brother Joaquin Cruz testified in his behalf. He related that

two of their siblings had died–one in infancy, the other when hit by a car at age

eight. Defendant had been in the United States for 3 years prior to this incident,

had lived in the Fall River–McArthur area for most of that time, and lived with his

brother at the Sanchez residence for most of the year prior to the murder. Cruz

testified that by 1991, defendant had obtained his working papers and was a legal

resident. Cruz knew defendant was in jail during the summer of 1991, but did not

think he drank much until the day of the murder.

Dr. Jose J. LaCalle, who testified he was a “cross-cultural psychologist”

working with the Hispanic and “Anglo-Saxon” cultures with specialties in clinical

and forensic psychology, testified in defendant’s behalf. He visited with

defendant for a total of 10 and one-half hours in preparation for his testimony, and

also traveled to defendant’s hometown in Mexico to interview family members.

He administered several standard tests, finding no evidence that defendant

suffered from any neurological infirmities. He found defendant to have an IQ

score of 81 on the American test. Dr. LaCalle administered the Minnesota

Multiphasic Personality Inventory (MMPI) test and found no evidence of gross

psychopathology. He administered the Sacks Sentence Completion test which

reflected that defendant was very candid and spontaneous. He also noted no major

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personality disorders in defendant, but detected “avoidant personality traits” that

indicated he “does not socialize well.”

Dr. LaCalle further described defendant as passive-aggressive and “not a

person [who] usually involves himself in acting aggression. He is more likely to

engage in reactive aggression.” Overall, Dr. LaCalle found defendant’s

personality traits to be self-defeating. He further opined that defendant suffered

from “chronic alcohol dependency.”

Trial counsel asked Dr. LaCalle to furnish his professional opinion on the

following hypothetical scenario: “Assuming the hypothetical question of a

twenty-three year-old man of Mexican origin, who has been brutalized by the

police in Mexico at an early age, and who was intoxicated at the time of his arrest

and handled roughly by the arresting officer and finds a gun and uses it. What is

your professional opinion about why he reacted as he did in shooting the officer?”

Dr. LaCalle opined that defendant made a “primal response,” a reaction exhibiting

anger and hostility, not to the arresting officer specifically, but to the

circumstances of police brutality having been suffered over the years.

On cross-examination, Dr. LaCalle conceded that only “some” of his

conclusions were reflected in the report he prepared for trial. He did not formulate

an opinion as to whether defendant knew right from wrong when he killed Deputy

Perrigo. Dr. LaCalle further acknowledged that the profile results of the MMPI

test administered to defendant reflected he “has little respect for authority and

believes that a person should get away with everything he can.” Dr. LaCalle felt

such was a valid conclusion and consistent with his observations regarding

defendant’s antisocial personality traits.

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II. DISCUSSION

A. Pretrial/Jury Selection Issues

1. Batson/Wheeler Error

During jury selection defendant claimed the prosecution twice exercised its

peremptory challenges to improperly excuse Hispanic prospective jurors (Nos.

1226 and 1419) on the sole basis of group bias, in violation of the federal and state

Constitutions. (See Batson v. Kentucky (1986) 476 U.S. 79, 84-89 (Batson);

People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler).) Hearings were

conducted and the motions denied, and the claims are here renewed on appeal.

We find no cognizable error.

“Both the state and federal Constitutions prohibit the use of peremptory

challenges to remove prospective jurors based solely on group bias. (Batson,

supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277.) Recently,

‘the United States Supreme Court reaffirmed that Batson states the procedure and

standard to be employed by trial courts when challenges such as defendant’s are

made. “First, the defendant must make out a prima facie case by ‘showing that the

totality of the relevant facts gives rise to an inference of discriminatory purpose.’

[Citations.] Second, once the defendant has made out a prima facie case, the

‘burden shifts to the State to explain adequately the racial exclusion’ by offering

permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a

race-neutral explanation is tendered, the trial court must then decide . . . whether

the opponent of the strike has proved purposeful racial discrimination.’

[Citation.]” ’ (People v. Cornwell (2005) 37 Cal.4th 50, 66-67, quoting Johnson v.

California (2005) 545 U.S. 162, 168, fn. omitted.)” (People v. Guerra (2006) 37

Cal.4th 1067, 1100 (Guerra).)

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“In determining whether the defendant ultimately has carried his burden of

proving purposeful racial discrimination, ‘the trial court “must make ‘a sincere and

reasoned attempt to evaluate the prosecutor’s explanation in light of the

circumstances of the case as then known, his knowledge of trial techniques, and

his observations of the manner in which the prosecutor has examined members of

the venire and has exercised challenges for cause or peremptorily . . . .’

[Citation.]” ’ (People v. Reynoso (2003) 31 Cal.4th 903, 919.) . . . ‘All that

matters is that the prosecutor’s reason for exercising the peremptory challenge is

sincere and legitimate, legitimate in the sense of being nondiscriminatory.’ (Id. at

p. 924.) A reason that makes no sense is nonetheless ‘sincere and legitimate’ as

long as it does not deny equal protection. (Ibid.)” (Guerra, supra, 37 Cal.4th at

pp. 1100-1101.)

a. Prospective Juror No. 1226

With regard to Prospective Juror No. 1226, the trial court reviewed her

responses to voir dire questioning and determined defendant did not make out a

prima facie showing that her peremptory excusal was improperly based on group

bias.3 We need not, however, consider the propriety of the trial court’s ruling that

3

The trial court made the following findings on the record: “With regard to

juror 1226, her questioning [from her voir dire transcript] indicated . . . that her
son had been in trouble previously with the criminal justice system. A feeling that
she had that sometimes that system is not fair and a sense that the police were
from time to time opinionated about situations, were not willing to consider other
possibilities and listen to explanations. Her feeling about the criminal justice
system causes me to make a finding that a prima facie case as to her was not
established and that the challenge of that particular juror was based on a personal
bias rather than a group bias, and since no prima facie showing was made no
justification for her excus[al] is required.”


The trial court’s observations are borne out by Prospective Juror No. 1226’s

voir dire transcript. When asked if the criminal justice system was “fair,” she
responded, “In some instances. There’s time it’s not.” She then complained about
how the police had treated her son, stating, “they have their opinion, and they
don’t want to hear what you have to say.” These responses constituted ample,

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no prima facie case had been made out with regard to Prospective Juror No. 1226,

as the record reflects she was not of Hispanic origin in the first instance, but rather

was White, and for that reason she was not a member of the cognizable group

identified by defendant within the meaning of Batson, supra, 476 U.S. 79, or

Wheeler, supra, 22 Cal.3d 258. Defense counsel acknowledged as much on the

record, arguing “[she] is obviously a Caucasian, but she was married to a Spanish

Mexican-American.” Counsel then made clear why he believed her peremptory

excusal was nonetheless subject to a Batson-Wheeler challenge, “Hispanic

surnamed [as] well constitutes a cognizable group under Wheeler.”

Defense counsel’s argument overlooked an important subtlety regarding

this point of law. As we explained in Gutierrez, supra, 28 Cal.4th 1083, with

regard to the peremptory excusal of a similarly-situated prospective juror,

“April P. is not of Hispanic origin; she apparently acquired her Hispanic surname

through marriage. Defendant argued below that this ‘counts,’ and he reasserts that

position here. He is wrong. True, in People v. Trevino (1985) 39 Cal.3d 667, 684


nondiscriminatory bases on which to peremptorily excuse her. (See People v.
Gutierrez (2002) 28 Cal.4th 1083, 1123 (Gutierrez) [prospective juror’s father’s
incarceration “a valid race-neutral reason to excuse him”]; People v. Garceau
(1993) 6 Cal.4th 140, 172 [prospective juror whose family members “had run
afoul of the law” properly excused]; People v. Cummings (1993) 4 Cal.4th 1233,
1282 [prospective juror whose brother was convicted of a crime properly
excused].)


We note the record does not affirmatively reflect whether the trial court

applied the proper standard — an evidentiary showing sufficient to permit the trial
judge to draw an inference of discrimination (see People v. Johnson (2006) 38
Cal.4th 1096, 1098-1099 (Johnson) — in determining that defendant did not make
out a prima facie showing that the excusal of Prospective Juror No. 1226 was
improperly based on discriminatory group bias. We are not, however, relying on
the prosecutor’s stated reasons for excusing Prospective Juror No. 1226 as a basis
for rejecting defendant’s challenge to her peremptory excusal. Instead, as
explained below, we rely on the fact that the record reflects she was not a member
of the relevant cognizable class (Hispanic) to begin with.

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(disapproved on other grounds in [People v.] Johnson [(1989)] 47 Cal.3d [1194,]

1219-1221) we held that ‘Spanish surnamed’ sufficiently describes the cognizable

class Hispanic under Wheeler — but only where no one knows at the time of the

challenge whether the Spanish-surnamed prospective juror is Hispanic. (People v.

Trevino, supra, 39 Cal.3d at p. 686.) Here, April P. twice indicated on her juror

questionnaire that she was White, and when the trial court asked her for the record

whether she was Hispanic, she replied ‘No.’ Although the record reflects ample

race-neutral reasons for the challenge to April P., we need not discuss them here,

as her excusal was not based on race within the meaning of defendant’s Wheeler

challenge.” (Gutierrez, supra, 28 Cal.4th at p. 1123.)

Although the record here is less than clear as to whether the trial court

perceived that Prospective Juror No. 1226 was not herself of Hispanic origin

when, several days after the motion was taken under submission, the court

proceeded to reach, address and reject the merits of defendant’s Batson-Wheeler

claim with regard to her excusal, we find that circumstance dispositive of the

claim on appeal.

b. Prospective Juror No. 1419

Prospective Juror No. 1419 was Hispanic. The trial court found that

defendant made out a prima facie case of improper excusal of this prospective

juror, noting on the record, “I have reviewed the transcript, in fact, several times.

There is not a basis apparent to me from the face of the transcript for the excuse of

that juror as was the case with [prospective juror] 1226. [¶] I’ll make the

following findings. First, that that juror [1419] is a member of a cognizable class;

and second, that there is a strong likelihood that that exclusion [was] based on

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group association rather than personal bias. At this point, the prosecution will

have an opportunity of justifying the excuse.”4

Although the trial court made a goodfaith determination that a prima facie

case of improper excusal for group bias had been shown with regard to

Prospective Juror No. 1419, the prosecutor thereafter furnished ample reasons

explaining why the peremptory excusal of the prospective juror was not motivated

by discriminatory intent.

Among the many reasons given by the prosecutor for the excusal of

prospective juror 1419 was that he was “only 20 years old” and perhaps “one of

the youngest, or the youngest” prospective jurors under consideration, and “may

not be in the mainstream and that experienced in life”; that he had “long hair,” “Fu

Manchu type” facial hair, had come to court in a long, unbuttoned flannel shirt,

thereafter arrived at the peremptory challenge hearing in a plain white T-shirt, and

appeared to be one of the “most poorly dressed” individuals in the courtroom; that

his stated goal in life, to open up a small “comic book store,” arguably showed a

lack of life experiences; that his repeated belief that the evidence would have to be

“strong” for him to impose death, his stated feeling that “at times the death penalty

was used too much,” and the fact that he “indicated some hesitation” about

imposing the death penalty for a “cop killer,” all created concerns for the

prosecution; that he failed to answer questions Nos. 95 and 96 on the written jury

questionnaire pertaining to his feelings about criminal defense attorneys,

prosecutors, and police; that in responding to question No. 99, which asked, “Do

4

With regard to Prospective Juror No. 1419, it appears the trial court may

have applied an overly stringent “strong likelihood” standard in determining that
defendant made a prima facie showing of discriminatory intent with regard to the
excusal of this juror. (See Johnson, supra, 38 Cal.4th at pp. 1098-1099.) It
matters not, of course, since the court found a prima facie showing had been made,
and thus defendant suffered no prejudice if the court indeed utilized a higher
standard.

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you feel that a police officer’s testimony is more truthful/accurate that that of a

civilian?,” he wrote, “police officers are human, and they can lie too”; that he gave

the impression he “had some sympathy toward those individuals who became

intoxicated”; and that the prosecutor felt he did not establish a very good “rapport”

with the young prospective juror.

Defendant nevertheless argues we should undertake a point-by-point

comparative analysis of Prospective Juror No. 1419’s responses to the jury

questionnaire and voir dire inquiries with those of the prospective jurors who were

ultimately seated on his jury. He argues, for the first time on appeal, that such a

“comparative juror analysis” serves to impeach the credibility of the prosecutor’s

stated reasons for excusing this prospective juror and establishes the prosecutor’s

discriminatory intent behind the excusal of the juror.

Recently, in People v. Lenix (July 24, 2008, S148029) __Cal.4th __

(Lenix)), this court held that “evidence of comparative juror analysis must be

considered in the trial court and even for the first time on appeal if relied upon by

defendant and the record is adequate to permit the urged comparisons.” (Id. at

p. __ [p. 22].) We reviewed two recent United States Supreme Court decisions in

which the high court conducted comparative juror analysis for the first time on

appeal — Snyder v. Louisiana (2008) __ U.S. __, 128 S.Ct. 1203 (Snyder), and

Miller-El v. Dretke (2005) 545 U.S. 231 (Miller-El) — concluding those decisions

“stand for the unremarkable principle that reviewing courts must consider all

evidence bearing on the trial court’s factual finding regarding discriminatory

intent.” (Lenix, supra, __ Cal.4th at p. __ [p. 1].)

We went on to observe in Lenix, supra, __Cal.4th __, that both Snyder and

Miller-L “demonstrate that comparative juror analysis is but one form of

circumstantial evidence that is relevant, but not necessarily dispositive, on the

issue of intentional discrimination.” (Id. at p. __ [p. 21].) We explained that

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although a written transcript may reflect that two or more prospective jurors gave

the same answers to a question on voir dire, “it cannot convey the different ways

in which those answers were given. Yet those differences may legitimately impact

the prosecutor’s decision to strike or retain the prospective juror. When a

comparative juror analysis is undertaken for the first time on appeal, the

prosecutor is never given the opportunity to explain the differences he perceived in

jurors who seemingly gave similar answers.” (Lenix, at p. __ [p. 23].) Observing

that “[v]oir dire is a process of risk assessment” (id. at p. __ [p. 24]), we further

explained that, “[t]wo panelists [i.e., prospective jurors] might give a similar

answer on a given point. Yet the risk posed by one panelist might be offset by

other answers, behavior, attitudes or experiences that make one juror, on balance,

more or less desirable. These realities, and the complexity of human nature, make

a formulaic comparison of isolated responses an exceptionally poor medium to

overturn a trial court’s factual finding.” (Lenix, at p. __ [p. 24].)

Both high court decisions in Snyder and Miller-L ultimately “reiterate[] that

reviewing courts must accord significant deference to the factual findings on the

question of discriminatory intent. (Snyder, supra, 128 S.Ct. at pp. 1207-1208;

Miller-El[], supra, 545 U.S. at p. 240 . . . .)” (Lenix, supra, __ Cal.4th at p. __

[p. 27].)

Consistent with our holding in Lenix, supra, __ Cal.4th at p. __, we have

undertaken a comparative juror analysis of the jury questionnaire and voir dire

responses of other prospective jurors identified by defendant5 as supportive of his

claim that Prospective Juror No. 1419 was excused with discriminatory intent.


5

“The reviewing court need not consider responses by stricken panelists or

seated jurors other than those identified by the defendant in the claim of disparate
treatment.” (Lenix, supra, __ Cal.4th at p. __ [p. 24].)

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Viewing such comparative evidence in light of the totality of evidence relevant on

the claim, we conclude it does not demonstrate purposeful discrimination.

Question No. 66 of the jury questionnaire asked, “What are your opinions

and feelings about how the criminal justice system works?” Prospective Juror No.

1419 answered, “I think it has gotten better over the years [and] I would have to

say I like it so far.” The prosecutor argued Prospective Juror No. 1419 was

“probably one of maybe two or three individuals out of the entire couple hundred

we have seen for both juries that felt the criminal justice system was good or

getting better.” The prosecutor further suggested the juror’s response was “ not in

the mainstream of thinking.” He attributed this to the prospective juror’s being

“an individual who does not have a tremendous amount of experience and contact

in society and with this criminal justice system,” and added, “This is probably

most attributable to the fact that he is only 20 years old. He’s the youngest or one

of the youngest members that we saw. And his goals in life as a career kind of

indicates his youthfulness. . . . [H]e indicates that his goals in the future are to

own a business of — my own business of comic book store, which again indicates

somebody who may not be in the mainstream and that experienced in life. And

that created a tremendous amount of concern in determining whether or not we

should keep this individual.”

Defendant counters that the record reflects that a number of seated jurors

“essentially agreed with juror 1419’s assessment of the criminal justice system.”

Seated Juror No. 1091 thought the system “works well but with some faults.”

Seated Juror No. 1107 felt that in most cases the system was “fair.” In response to

the questionnaire, Seated Juror No. 1444 opined that the system “works.” Seated

Juror No. 1475 responded, “the basic premise is great.” Seated Juror No. 1663

responded, “All in all I feel it works well.” Seated Juror No. 2428 responded, “the

best system I have seen yet.” Seated Alternate Juror No. 2501 believed the system

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“works fairly well.” And Seated Alternate Juror No. 1619 felt “they’re doing a

good job.” With regard to this inquiry of the prospective jurors, the record does

indeed tend to reflect that Prospective Juror No. 1419’s view that the criminal

justice system “has gotten better over the years,” if viewed in isolation,” was not

out of the “mainstream of thinking.” But clearly the prosecutor was not viewing

the juror’s response in isolation; rather, he was viewing it while mindful of the

prospective juror’s very young age in relation to all the other prospective jurors on

the panel. The critical determination here is not whether the prosecutor’s

reasoning was entirely accurate, but rather whether his given reasons were credible

and sincere, as opposed to a sham intended to mask his true intent to discriminate

by striking a Hispanic prospective juror from defendant’s jury.

Question No. 95 asked for the prospective jurors’ “opinion” of criminal

defense lawyers and prosecutors; question No. 96 asked, “What are your views of

the police in general?” Prospective Juror No. 1419 failed to respond to either

question, which the prosecutor indicated as another of his concerns with the

prospective juror. Defendant points out that two seated jurors indicated “no

opinion” to question No. 95, another wrote “Don’t no [sic],” and another

responded “N/A.” Of course the failure to respond to a question altogether is

arguably of greater concern than a forthright response of “no opinion” or “Don’t

know.”

Question No. 99 asked the prospective jurors, “Do you feel that a police

officer’s testimony is more truthful/accurate than that of a civilian?” Prospective

Juror No. 1419 responded “sometimes,” adding, “police officers are human they

can lie to [sic].” The prosecutor argued that “the fact that [Prospective Juror No.

1419] pointed out that [police officers] can lie, too, did create some concern given

his failure to answer question 96” [“What are your views of the police in

general?”]. Defendant points out that eight of the seated jurors answered question

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No. 99 with either “no” or “not necessarily.” But expressing the opinion that a

police officer’s testimony is not “more truthful/accurate than that of a civilian” is

qualitatively different than the affirmative response, “they can lie too.”

Question No. 121 asked that if the prospective juror had strong feelings

concerning the death penalty, then “are those feelings so strong that they would

interfere with your ability to be objective during the guilt phase of the trial?”

Prospective Juror No. 1419 had answered a preceding question by indicating he

did not believe he had “strong feelings concerning the death penalty.” He left the

answer to question No. 121 blank. But then, in response to question No. 122 —

“if you are strongly opposed to the death penalty, would you be more inclined to

find the defendants not guilty?” — he answered “no.” This too concerned the

prosecutor, who explained, “the Court I believe had noted this at one point on the

record, that the answer to 121 would not need to be given if you had strong

feelings basically in favor of the death penalty, but you would need to answer

question 122 if you had strong feelings against. He failed to answer 121 and did

in fact answer 122, again suggesting some feelings about the death penalty [that]

were not acceptable to the People.” Defendant in turn points out that “[t]he record

shows that seated juror 1390 did not answer either question 121 or 122,” but this

circumstance sheds little light on Prospective Juror No. 1419’s different and

ambiguous responses to the series of questions.

Our review of the record taken as a whole demonstrates that substantial

evidence supports the trial court’s finding that the prosecutor’s peremptory excusal

of Prospective Jurors Nos. 1226 and 1419 were not motivated by discriminatory

intent. (People v. Bonilla (2007) 41 Cal.4th 313, 341-342.) Defendant’s reliance

on comparative juror analysis does not undermine this conclusion. We find that

defendant’s Batson-Wheeler motion was properly rejected below.

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2. Death Qualification of Jurors

Defendant contends he was denied his constitutional right to an impartial

jury because prospective jurors who were “death prone,” and should have been

excused for cause, were erroneously permitted to remain on the jury, and because

prospective jurors who were “life prone,” and should have been permitted to

remain on the jury, were erroneously excluded for cause. Both contentions are

without merit.

A trial court may discharge a juror whose views on the death penalty

“would ‘prevent or substantially impair the performance of his duties as a juror in

accordance with his instructions and his oath.’ ” (Wainwright v. Witt (1985) 469

U.S. 412, 424; People v. Rodrigues (1994) 8 Cal.4th 1060, 1140 (Rodrigues).)

The high court has explained that if a juror gives ambiguous or conflicting

answers to inquiries about his or her views on the death penalty, the trial court is

in the best position to evaluate those responses, and its determination as to the

juror’s actual state of mind is binding on appeal. (Wainwright v. Witt, supra, 469

U.S. at pp. 428-429; see People v. Phillips (2000) 22 Cal.4th 226, 234; Rodrigues,

supra, 8 Cal.4th at p. 1147.) Any ambiguities in the record are to be resolved in

favor of the trial court’s determinations, and the reviewing court determines only

whether the trial court’s findings are fairly supported by the record. (People v.

Crittenden (1994) 9 Cal.4th 83, 122; People v. Howard (1988) 44 Cal.3d 375,

417-428.)

a. “Death Prone” Prospective Jurors

Defendant contends 11 prospective jurors were “death prone,” should have

been excused for cause, and were “wrongly retained in the jury pool.” He

acknowledges, however, that he removed seven of these 11 jurors with his own

peremptory challenges, and therefore complains of only four of them (Prospective

Jurors Nos. 1349, 1323, 1622, and 1626) who “remained on the panel” after he

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exercised his final peremptory challenge. However, although these four

prospective jurors may have “remained on the panel” for some time, none of them

actually wound up selected to serve on defendant’s petit jury. Because these

prospective jurors “did not sit on defendant’s jury, ‘[d]efendant could not possibly

have suffered prejudice as a result of the court’s refusal to excuse them at his

request.’ ” (People v. Hillhouse (2002) 27 Cal.4th 469, 487-488, quoting People

v. Millwee (1998) 18 Cal.4th 96, 146; People v. Weaver (2001) 26 Cal.4th 876,

913; see also Ross v. Oklahoma (1988) 487 U.S. 81, 86.) Accordingly, “we need

not resolve the substance of defendant’s argument because the record reflects no

possibility of prejudice.” (People v. Cox (1991) 53 Cal.3d 618, 648.)

b. “Life Prone” Prospective Jurors

Defendant contends Prospective Jurors Nos. 13936 and 1158 were

wrongfully excused from jury service by the trial court after expressing anti-death-

penalty sentiments. We do not agree.

A prospective juror can be properly excused for cause if he or she is unable

to conscientiously consider all of the sentencing alternatives, including the death

penalty where appropriate. (People v. Barnett (1998) 17 Cal.4th 1044, 1114;

Rodrigues, supra, 8 Cal.4th at p. 1146.) There is no requirement that the

prospective juror’s bias against the death penalty be proved with unmistakable

clarity. (Wainwright v. Witt, supra, 469 U.S. at p. 424.) Rather, the trial judge

need only determine that the prospective juror would be unable to faithfully and

impartially apply the law in the case before him or her. (Rodrigues, supra, 8

Cal.4th at p. 1147; People v. Hill (1993) 3 Cal.4th 959, 1003.)


6

Prospective Juror No. 1393 is the prospective juror who was questioned and

challenged for cause by the prosecution at the page in the record cited by
defendant. Although defendant refers to Prospective Juror No. 1476 in his
argument, we presume that numerical reference to be in error, as that prospective
juror was passed for cause by both the prosecution and the defense.

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Prospective Juror No. 1393 told the court he would have difficulty “coming

up with the death penalty, especially for the death penalty.” He expressed

uncertainty as to whether he could make the decision between a life and a death

sentence. When defense counsel asked him, “And are you telling us that if — if

the aggravating factors, the factors that make this a more heinous crime, outweigh

the — significantly outweigh any kind of mitigating factors that there’s — in all

circumstances you could not impose the death penalty or vote for the death

penalty?” He replied, “Yeah. I think that’s right.” At that point the prosecutor

challenged Prospective Juror No. 1393 for cause, and the court excused him.

Prospective Juror No. 1158 repeatedly stated she could not vote to impose

the death penalty. She indicated she was “not comfortable making the judgment

on someone’s life.” She said it would “bother” her to vote for death because she

did not “feel that I have a place to judge on someone’s life.” When asked if she

could vote for death if the jury determined the aggravating factors substantially

outweighed the mitigating factors, she replied, “No.” She was then excused for

cause.

Manifestly, neither of these two prospective jurors was improperly excused

for cause.

B. Guilt Phase Issues

1. Refusal to Instruct on Voluntary Manslaughter

Defendant contends the trial court erred in refusing his request for

voluntary manslaughter instructions based on provocation/heat of passion, and

further, that the court had a sua sponte duty to instruct on imperfect self-defense as

another theory of voluntary manslaughter. We find no such instructional error on

this factual record.

Manslaughter, a lesser included offense of murder, is an unlawful killing

without malice. (§ 192; People v. Ochoa (1998) 19 Cal.4th 353, 422.) Malice is

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presumptively absent when a defendant kills “upon a sudden quarrel or heat of

passion” (§ 192, subd. (a)), provided that the provocation is sufficient to cause an

ordinarily reasonable person to act rashly and without deliberation, and from

passion rather than judgment. (People v. Berry (1976) 18 Cal.3d 509, 515.)

Similarly, when a defendant kills in the actual but unreasonable belief that he or

she is in imminent danger of death or great bodily injury, the doctrine of

“imperfect self-defense” applies to reduce the killing from murder to voluntary

manslaughter. (People v. Michaels (2002) 28 Cal.4th 486, 529; In re Christian S.

(1994) 7 Cal.4th 768, 771, 773.)

In a criminal case, a trial court must instruct on general principles of law

relevant to the issues raised by the evidence, even absent a request for such

instruction from the parties. (People v. Breverman (1998) 19 Cal.4th 142, 154.)

The obligation extends to instruction on lesser included offenses when the

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

were present, but not when there is no evidence that the offense committed was

less than that charged. (Ibid.)

As explained in People v. Barton (1995) 12 Cal.4th 186, a trial court must

instruct on provocation/heat of passion as a theory of manslaughter, if supported

by substantial evidence, even when the defendant objects on the basis that the

instructions would conflict with his theory of the defense. (Id. at pp. 194, 196,

201.) The same sua sponte instructional obligation applies to unreasonable/

imperfect self defense, for such is not an affirmative defense, but rather a

description of one type or theory of voluntary manslaughter. (Id. at pp. 194, 201.)

However, the “substantial” evidence required to trigger the duty to instruct on

such lesser offenses is not merely “any evidence . . . no matter how weak” (People

v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12), but rather “ ‘evidence from which a

jury composed of reasonable [persons] could . . . conclude[]’ ” that the lesser

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offense, but not the greater, was committed. (Id. at p. 684, quoting People v. Carr

(1972) 8 Cal.3d 287, 294; Barton, supra, 12 Cal.4th at p. 201, fn. 8; People v.

Breverman, supra, 19 Cal.4th. at pp. 162-163.)

In discussing the viability of a voluntary manslaughter instruction, the trial

court commented on the fact that several hours had passed between the time

defendant was arrested by Deputy Perrigo in front of the Sanchez house in

McArthur shortly after midnight, and the time he murdered Deputy Perrigo at

approximately 3:00 a.m. The testimony of various witnesses in this case belies

defendant’s claims that his nose was broken upon his arrest, or that he was

otherwise physically injured in the course of the events that led up to his murder of

Deputy Perrigo. Although, as he was being brought into the Burney substation,

defendant commented, “What are you guys going to do now, shoot me?,” he

immediately thereafter began dancing, singing, laughing, and acting “cocky.”

Indeed, shortly after Deputy Perrigo responded to defendant, “I’m not going to

shoot you,” defendant turned his attention to the deputy and stated, prophetically,

“[A]ll it would take is one bullet in your head.”

Defendant urges us to infer that from the time of his arrest for public

intoxication four months earlier, in July 1991 (in connection with the prowling

incident, during which he tried to gain entry into a mobilehome occupied by

minors, kicked the father who managed to subdue him, and threatened to kill

arresting Deputy Dikes with a bullet “in the back of the head”), until his arrest in

this case, the Shasta County sheriff’s deputies had harassed, mishandled, and

humiliated him to the point where he acted out of the heat of passion and

unreasonable self-defense in shooting Deputy Perrigo on the morning of October

21, 1991. The law, however, does not support defendant’s claim. There is no

evidence that defendant was physically injured, much less in imminent danger of

great bodily injury or death at the hands of Deputy Perrigo or the other deputies

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with whom he came into contact from the time of his arrest sometime around

midnight until he murdered Deputy Perrigo three hours later. Indeed, the exact

opposite was true.

Moreover, the jury found beyond a reasonable doubt that defendant

intentionally murdered Deputy Perrigo for the purpose of perfecting his escape

from the deputy’s lawful custody, and further, that defendant was lying in wait for

a period of up to 15 or more minutes before selecting the most opportune time to

retrieve the weapon he had concealed and shoot the defenseless deputy from

behind in the back of the head. These special circumstance findings themselves

negate any possibility that defendant was prejudiced from the failure to instruct on

provocation/heat of passion or unreasonable self-defense theories of manslaughter.

2. Admission of Defendant’s Confessions

Defendant renews his claim that his several statements given to police

immediately following his surrender at the rice plant where he had been hiding, in

which he confessed to killing Deputy Perrigo, should not have been introduced

against him at trial because his waiver of his constitutional trial rights was not

voluntary, knowing and intelligent. (Miranda v. Arizona (1966) 384 U.S. 436

(Miranda).) He further seeks to argue the statements he gave were themselves

involuntary, a claim that was never raised or developed below, and hence is not

preserved for appeal. (People v. Maury (2003) 30 Cal.4th 342, 387-388 (Maury);

People v. Mayfield (1993) 5 Cal.4th 142, 172.)

On October 2, 1992, defendant made an in limine motion to exclude his

statements on the basis that the prosecution could not prove that he made a

voluntary, knowing, and intelligent waiver of his Miranda rights. The People

opposed the motion, and on November 3, 1992, a hearing was conducted on the

motion. Detective Richard Newsome, the lead detective who questioned

defendant shortly after his surrender, testified at the hearing.

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It was established at the hearing that defendant had surrendered to

authorities on the morning of October 26, 1991, five days after he fatally shot

Deputy Perrigo and escaped from custody. Within an hour after being taken back

into custody, defendant was transported back to the Burney substation. He was

placed in the sergeant’s office, a small room with a desk and a telephone. He was

neither handcuffed nor restrained. There were no firearms or weapons in the

room. Sergeant Bradd McDannold was seated behind the desk; Detective

Newsome and an interpreter, Ms. Rubenstein, sat next to defendant. A recorded

interrogation of defendant commenced at 1:05 p.m.

Although appearing tired and scared at first, both defendant and Estrada

were alert and responsive throughout their interviews. Detective Newsome, who

asked most of the questions, made no threats or promises to defendant or to his

family. Defendant and Estrada were given food and water during the interrogation

session, which they accepted.

After the group was introduced to defendant, Detective Newsome read him

his Miranda rights, which were translated for him by the interpreter. Neither

defendant nor the interpreter made any complaints at any point during the

interrogation to suggest there were any difficulties, problems, or

misunderstandings with the translations from English to Spanish and back.

Detective Newsome explained to defendant, “You have a right to talk to a

lawyer and have him present with you while you are being questioned.” When

defendant was asked if he understood his right, he responded, “mas o menos,”

which means “more or less.” Before asking any further questions, Detective

Newsome read defendant his Miranda rights a second time. Defendant indicated

after each one that he understood.

The first interview lasted a little over two hours, until 3:15 p.m. Estrada

was then questioned while defendant waited in the holding cell, and at 5: 15 p.m.,

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defendant was again questioned for another 15 minutes, without being given new

Miranda warnings.

Defendant was then transported to Red Bluff, and the following day he was

again questioned by Detective Newsome, this time in the Tehama County Sheriff’s

office, after the autopsy of Deputy Perrigo had been completed. The detective

once again read defendant each of his Miranda rights, at the conclusion of which

defendant affirmed through his interpreter that he understood them and wished to

talk to the detective. This interrogation session lasted less than an hour.

Defendant was then questioned together with codefendant Estrada for another

period of one hour and 45 minutes. Defendant was thereafter returned to Shasta

County for arraignment the following day.

On November 3, 1992, the trial court denied defendant’s motion to

suppress his statements on Miranda grounds, stating on the record that, “the

totality of circumstances I believe support a proper advisement, and suggests

clearly a waiver was voluntary, knowing and intelligent. Certainly by

circumstances, and at the very least by inference if not outright.”

In reviewing defendant’s claim that his Miranda rights were violated, we

must accept the trial court’s resolution of disputed facts and inferences, as well as

its evaluation of the credibility of witnesses where supported by substantial

evidence. (People v. Whitson (1998) 17 Cal.4th 229, 248 (Whitson); People v.

Wash (1993) 6 Cal.4th 215, 235-236.) Miranda makes clear that in order for

defendant’s statements to be admissible against him, he must have knowingly and

intelligently waived his rights to remain silent, and to the presence and assistance

of counsel. (Miranda, supra, 384 U.S. at p. 475.)

It is further settled, however, that a suspect who desires to waive his

Miranda rights and submit to interrogation by law enforcement authorities need

not do so with any particular words or phrases. A valid waiver need not be of

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predetermined form, but instead must reflect that the suspect in fact knowingly

and voluntarily waived the rights delineated in the Miranda decision. (See North

Carolina v. Butler (1979) 441 U.S. 369, 373.) We have recognized that a valid

waiver of Miranda rights may be express or implied. (Whitson, supra, 17 Cal.4th

at p. 246; see also People v. Cortes (1999) 71 Cal.App.4th 62, 69.) A suspect’s

expressed willingness to answer questions after acknowledging an understanding

of his or her Miranda rights has itself been held sufficient to constitute an implied

waiver of such rights. (People v. Medina (1995) 11 Cal.4th 694, 752; People v.

Sully (1991) 53 Cal.3d 1195, 1233.) In contrast, an unambiguous request for

counsel or refusal to talk bars further questioning. (Davis v. U.S. (1994) 512 U.S.

452, 458-460.)

Although there is a threshold presumption against finding a waiver of

Miranda rights (North Carolina v. Butler, supra, 441 U.S. at p. 373), ultimately

the question becomes whether the Miranda waiver was knowing and intelligent

under the totality of the circumstances surrounding the interrogation. (See Oregon

v. Bradshaw (1983) 462 U.S. 1039, 1044-1046 (plur. opn. of Rehnquist, J.);

People v. Clark (1993) 5 Cal.4th 950, 986.)

Turning to the facts before us, defendant suggests his response, “mas o

menos,” or “more or less,” when asked if he understood his Miranda rights read to

him before the initial interrogation session, was “an expression of confusion, not

understanding.” We cannot agree. Nor do we find that single response, in

isolation, controlling on the question whether defendant made a knowing and

voluntary waiver of his Miranda rights under the totality of the circumstances

surrounding his interrogation. (Oregon v. Bradshaw, supra, 462 U.S. at pp. 1044-

1046.)

After defendant replied “more or less,” and before any questioning

commenced, Detective Newsome purposefully repeated each Miranda

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admonishment a second time, describing them in less “formal” terms so as to

ensure that defendant could “better . . . understand” the rights he was waiving.

The detective specifically told defendant he had the right to remain silent, and that

this meant “you don’t have to talk to us if you don’t want to,” to which defendant

replied, “Yes,” when asked if he understood that right. The detective then told

defendant, “when you’re talking to us uh anything you say can be used in court in

a trial,” to which defendant replied, “Yes I understand it.” Defendant was then

told, “when you are talking to us you have a right to have a lawyer with you,” and

defendant stated, “Yes, I understand it,” when asked if he understood that right.

Finally, defendant was told that if he did not have enough money to hire an

attorney, “We’ll get you one before we ask you any questions,” to which

defendant replied, “Yes, yes I understand you,” when asked if he understood that

right. It was not until after this second, full recitation of Miranda rights, and

affirmations of understanding by defendant with regard to the nature of each such

right, that the questioning of defendant commenced.

In consideration of the totality of circumstances surrounding the

interrogation, we find that defendant’s responses to Detective Newsome’s

inquiries reciting his Miranda rights reflect a knowing and intelligent

understanding of those rights, and that defendant’s willingness to answer questions

after expressly affirming on the record his understanding of each of those rights

constituted a valid implied waiver of them. (People v. Medina, supra, 11 Cal.4th

at p. 752; People v. Sully, supra, 53 Cal.3d at p. 1233.) As was the case in People

v. Wash, supra, 6 Cal.4th 215, “the record is devoid of any suggestion that the

police resorted to physical or psychological pressure to elicit statements from

defendant. To the contrary, defendant’s willingness to speak with the officers is

readily apparent from his responses. He was not worn down by improper

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interrogation tactics, lengthy questioning, or trickery or deceit.” (Whitson, supra,

17 Cal.4th at pp. 248-249.)

Defendant further seeks to argue that the statements he gave were

themselves involuntary. The motion challenging the statements below, however,

was based solely on an asserted Miranda violation. As a consequence of the issue

not having been raised below, “the parties had no incentive to fully litigate this

theory . . . and the trial court had no opportunity to resolve material factual

disputes and make necessary factual findings.” (People v. Ray (1996) 13 Cal.4th

313, 339.) Accordingly, the claim of involuntariness of defendant’s statements

and confession is not preserved for appeal. (Maury, supra, 30 Cal.4th at pp. 387-

388; People v. Mayfield, supra, 5 Cal.4th at p. 172.)

Assuming for purposes of argument that the claim of involuntariness of the

statements and confession is properly before us, we reject it. The test for

determining whether a confession is voluntary is whether the questioned suspect’s

“will was overborne at the time he confessed.” (Lynumn v. Illinois (1963) 372

U.S. 528, 534.) “A finding of coercive police activity is a prerequisite to a finding

that a confession was involuntary under the federal and state Constitutions.”

(Maury, supra, 30 Cal.4th at p. 404.) No coercive police activity is shown on this

record. Defendant was not handcuffed or restrained while in the interview room,

no guns or weapons were present, he was offered food and drinks which he

accepted, and his older brother, Joaquin Cruz, was permitted to see him.

Defendant does not allege that any improper promises or threats were made, and

we see no evidence of any other form of coercive police activity that would

support a finding of involuntariness.





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3. Examination of Peace Officer Personnel Files

Defendant next claims the trial court erred in denying him discovery of the

confidential peace officer personnel files of Shasta County Deputies Buck Dikes

and John Carelli. The declaration in support of the motion, which also sought

discovery of Deputy Perrigo’s confidential personnel files, alleged, on information

and belief, that complaints of “aggressive behavior, acts of violence and/or

attempted violence, acts of excessive force and/or attempted excessive force” had

been lodged against the officers.

A hearing was conducted on the motion. County counsel appeared and

opposed it, arguing the moving papers and declarations in support of the motion

were inadequate, and that Deputies Dikes and Carelli were not even present when

defendant was arrested for this offense. She further represented to the court that

she had reviewed the files of all three officers and that “there is nothing in these

files that even pertain to anything that [defendant and codefendant Estrada] appear

to be looking for.”

The trial court denied discovery of the confidential personnel files of

Deputies Dikes and Carelli, observing that “the moving papers do not establish a

basis on which the records of either Dikes or Carelli would be appropriately

discoverable under the circumstances of this case. There is no basis in the moving

papers on which a conclusion can be reached that their past conduct would in any

way have anything to do with matters or material that might in any way be helpful

to the defense in the case.”

The trial court agreed to conduct an in camera review of Deputy Perrigo’s

confidential personnel file, going back five years. (See City of Los Angeles v.

Superior Court (2002) 29 Cal.4th 1, 12 [five-year limitation on such discovery not

violative of due process].) Following its review, the court announced that Deputy

Perrigo’s files likewise contained no evidence of any complaints.

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“ ‘A motion for discovery of peace officer personnel records is “addressed

solely to the sound discretion of the trial court.” (Pitchess v. Superior Court

[(1974)] 11 Cal.3d [531,] 535.) A review of the lower court ruling is subject to the

abuse of discretion standard.’ ” (City of San Jose v. Superior Court (1998) 67

Cal.App.4th 1135, 1145.)

We find no abuse of discretion on this record. “ ‘In criminal cases, the

court retains wide discretion to protect against the disclosure of information which

might unduly hamper the prosecution or violate some other legitimate

governmental interest.’ ” (Pitchess v. Superior Court, supra, 11 Cal.3d at p. 538,

quoting Joe Z. v. Superior Court (1970) 3 Cal.3d 797, 804.) Nor could defendant

demonstrate prejudice on a finding of error, as county counsel’s representations at

the hearing on the motion below, and the trial court’s statements upon completion

of its review of Deputy Perrigo’s confidential personnel files, together make clear

that no information of the nature being sought through the discovery motion was

to be found in any of the three officers’ personnel files. (People v. Memro (1985)

38 Cal.3d 658, 684 [prejudice required for relief on appeal].)

4. Admission of Photograph of Victim

Defendant contends the trial court erred by admitting exhibit 62, a

photograph depicting visible injuries to the face of Deputy Perrigo, including

blood. The prosecutor offered the photograph to demonstrate that the deputy was

still alive after he was shot in the back of the head and his patrol car crashed, and

then shot a second time in the neck. The defense objected to the admission of the

photograph as inflammatory and irrelevant. It was not irrelevant. A crime scene

photograph is relevant and may be admitted where it corroborates or clarifies “the

coroner’s testimony regarding the cause of death and condition of the body.”

(People v. Mendoza (2000) 24 Cal.4th 130, 171.) Here, the trial court questioned

Dr. Joseph Tripoli, the Shasta County Medical Examiner, who conducted the

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autopsy of the victim, before ruling the photograph admissible. Dr. Tripoli

indicated that the particular photograph in question best depicted the “bluing of a

subcutaneous contusion,” and would thereby support his conclusions and serve to

demonstrate to the jury that Deputy Perrigo was still alive when shot a second

time. Nor was the presentation of the photograph unduly inflammatory. The trial

court took steps to address defendant’s concerns in that regard, ordering that the

photograph only be made available for viewing by the jury during the brief time

that Dr. Tripoli was testifying and actually referring to it. Neither error nor

prejudice has been shown.

5. Admission of Threat to Kill Deputy Dikes

Defendant next asserts the trial court erred in admitting evidence of his

prior threat to kill Deputy Dikes by shooting the deputy “in the back of the head.”

There was no error in the admission of such evidence. As defendant concedes,

this court’s decision in People v. Rodriguez (1986) 42 Cal.3d 730, specifically

holds that a defendant’s prior threats to kill a police officer may be admitted on the

issue of intent when that defendant subsequently does kill a police officer. (Id. at

p. 757; see Evid. Code, § 1101.) The prior threat to kill a deputy by shooting him

in the back of the head was “manifestly admissible to show defendant’s state of

mind” at the time he fatally shot Deputy Perrigo in the back of the head.

(Gutierrez, supra, 28 Cal.4th at p. 1138.) Evidence of the prior express threat to

use force or violence was also properly admissible at the penalty phase as an

aggravating circumstance under section 190.3, factor (b).

6. Admission of Testimony of Bernard Sanchez

Defendant next contends the trial court erred in permitting witness Bernard

Sanchez to testify regarding an adoptive admission by defendant that supported

the finding that he had shot Deputy Perrigo.

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Sanchez, an employee at the rice mill, testified defendant and Estrada

walked into the packing building where he was working sometime prior to their

surrender to police. Defendant still had on his handcuffs. Sanchez overheard

another worker, Guadelupe Duran, ask Estrada if they still had the murder

weapon. Estrada replied the gun was hidden in the alfalfa. Duran asked “which

one of them had done that wicked thing,” a reference to the murder of Deputy

Perrigo. Estrada motioned with his head toward defendant, who made no

response. Defendant then stated that nothing would have happened if the lady had

not called the police on them. Defendant asked the workers for money to buy

clothes so that he and Estrada could flee to Oregon.

Defendant’s claim that Sanchez’s testimony was untrustworthy and violated

his rights under the confrontation clause of the federal Constitution must be

rejected. Evidence Code section 1221 provides, “Evidence of a statement offered

against a party is not made inadmissible by the hearsay rule if the statement is one

of which the party, with knowledge of the content thereof, has by words or other

conduct manifested his adoption or his belief in its truth.” As was explained in

People v. Preston (1973) 9 Cal.3d 308, “[i]f a person is accused of having

committed a crime, under circumstances which fairly afford him an opportunity to

hear, understand, and to reply, and which do not lend themselves to an inference

that he was relying on the right of silence guaranteed by the Fifth Amendment to

the United States Constitution, and he fails to speak, or he makes an evasive or

equivocal reply, both the accusatory statement and the fact of silence or

equivocation may be offered as an implied or adoptive admission of guilt.” (Id. at

pp. 313-314.)

Defendant is wrong in suggesting the statement was admitted under the

statement against penal interest exception to the hearsay rule—it was clearly

proffered and admitted as an adoptive admission under Evidence Code section

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1221. Moreover, it is well settled that an adoptive admission can be admitted into

evidence without violating the Sixth Amendment right to confrontation “on the

ground that ‘once the defendant has expressly or impliedly adopted the statements

of another, the statements become his own admissions, and are admissible on that

basis as a well-recognized exception to the hearsay rule.’ ” (People v. Turner

(1994) 8 Cal.4th 137, 190, quoting People v. Silva (1988) 45 Cal.3d 604, 624.)

Defendant’s claim that Sanchez’s testimony regarding the adoptive admission

violated his rights under the confrontation clause is therefore unavailing.

We have further considered and must reject defendant’s claim that he

received “no notice at all” of Sanchez’s proposed testimony. The record reflects

that defendant did receive discovery detailing Sanchez’s presence at the scene of

the conversation in question and the inculpatory statements made at that time, and

further reflects that Sanchez’s name was on the prosecution’s witness list. Indeed,

defense investigators had sought to contact Sanchez to discuss his testimony. In

any event, even were we to find that Sanchez’s testimony regarding defendant’s

adoptive admission that he killed Deputy Perrigo was erroneously admitted, there

could be no prejudice since defendant admitted as much in his own confession

shortly after his surrender to authorities.

C. Special Circumstance Issues

1. Murder of Peace Officer Special Circumstance

Section 190.2, subdivision (a)(7), defines the special circumstance of

intentional murder of a peace officer while engaged in the performance of his or

her duties as follows: “The victim was a peace officer . . . who, while engaged in

the course of the performance of his or her duties, was intentionally killed, and the

defendant knew, or reasonably should have known, that the victim was a peace

officer engaged in the course of the performance of his or her duties; or the victim

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was a peace officer . . . and was intentionally killed in retaliation for the

performance of his or her official duties.”

Deputy Perrigo was, of course, a peace officer, within the meaning of the

special circumstance statute, working his shift at the Burney substation, and in full

uniform in his patrol car when killed by defendant while transporting defendant

and Estrada toward the main jail at Redding. Defendant cannot, and does not,

contend that these essential elements of this special circumstance finding were not

established on these facts.

However, it is also a “well-established rule that when a statute makes it a

crime to commit any act against a peace officer engaged in the performance of his

or her duties, part of the corpus delicti of the offense is that the officer was acting

lawfully at the time the offense was committed.” (People v. Jenkins (2000) 22

Cal.4th 900, 1020 (Jenkins), citing In re Manuel G. (1997) 16 Cal.4th 805, 815;

see People v. Gonzalez (1990) 51 Cal.3d 1179, 1217 [applying the rule to § 190.2,

subd. (a)(7)].)

Defendant contends that his arrest by Deputy Perrigo for a violation of

section 647(f) (public intoxication) was unlawful because (1) he was not

intoxicated at the time of his arrest, but was instead found asleep (along with

Estrada) in the station wagon where he was staying in front of the Sanchez

residence when first located by the deputy, and (2) the station wagon itself was on

private property and not in a “public place.” Claiming his arrest for a violation of

section 647(f) was therefore unlawful, he argues the murder of a peace officer

special circumstance must be reversed. We disagree.

Section 647(f), provides, in pertinent part, “Every person who commits any

of the following offenses is guilty of disorderly conduct, a misdemeanor: [¶] . . .

[¶] (f) Who is found in any public place under the influence of intoxicating liquor

. . . in a condition that he or she is unable to exercise care for his or her own safety

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or the safety of others, or by reason of his or her being under the influence of

intoxicating liquor . . . interferes with or obstructs or prevents the free use of any

street, sidewalk, or other public way.”

Contrary to defendant’s assertions, at the pretrial hearing held to determine

the validity of his arrest, it was established, through both testimony and

photographic evidence, that the station wagon in which Deputy Perrigo found

defendant and Estrada sleeping sometime between midnight and 1:00 a.m. was

parked in a public place, on the dirt shoulder adjoining Highway 299, and well

outside the fence separating Edna Sanchez’s property from the highway.

“[W]hether a particular location is a ‘public place’ depends upon the facts of the

individual case.” (People v. White (1991) 227 Cal.App.3d 886, 892.) A public

place includes the area outside a home in which a stranger is able to walk without

challenge. (People v. Olson (1971) 18 Cal.App.3d 592, 598.)

Moreover, sitting in an automobile while intoxicated does not, as a matter

of law, prevent one from being arrested for intoxication in a public place. (People

v. Belanger (1966) 243 Cal.App.2d 654, 658.) Nor does being found asleep in a

vehicle prevent an arrest for public intoxication under section 647(f). (People v.

Belanger, at p. 656; see Mardis v. Superior Court (1963) 218 Cal.App.2d 70, 72

[arrest under § 647(f) valid where defendant found asleep in car 30 feet from

paved roadway].)

At the pretrial hearing, Edna Sanchez testified that when she went outside

of her residence about midnight to tell defendant and Estrada to stop making noise

by racing the station wagon engine, defendant was “pretty drunk” and “slurred”

his words. Defendant was arrested within an hour of Sanchez’s observations. “An

inebriated person behind the wheel of a car . . . poses a greater danger to himself

or herself and others than the same person lying on a park bench.” (People v.

Lively (1992) 10 Cal.App.4th 1364, 1373.) Moreover, although defendant would

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have us draw an inference that the station wagon in which he slept was not

drivable, such fact was not conclusively established either at the pretrial hearing or

at trial, and indeed the record facts instead support an inference that once a good

battery was installed the vehicle’s engine ran loud and strong.

We conclude the validity of defendant’s arrest for public intoxication, a

violation of section 647(f), was properly established at the pretrial hearing

conducted for that purpose.

Alternatively, defendant contends that even if the legality of his arrest was

properly established at the pretrial hearing, the evidence thereafter presented at

trial was insufficient to support the jury’s implicit finding that his arrest for a

violation of section 647(f) was lawful, as an element of the murder of a peace

officer special circumstance required to be proved beyond a reasonable doubt.

Once again, we disagree.

Fry testified at trial that she observed defendant holding an open beer in

one hand and a partial 12-pack of beer in his other hand just before midnight when

he and Estrada appeared at the front door of Wadsworths’s house. Both Fry and

Wadsworth testified at trial that defendant was intoxicated; Wadsworth opining

that defendant was “pretty drunk,” Fry adding that both men were slurring their

words. Defendant and Estrada left with the battery taken from Miguel’s car and

were located and detained by Deputy Perrigo less than an hour later in front of the

Sanchez residence. Indeed, all of defendant’s inebriated and belligerent conduct,

from the time he and Estrada were brought to Wadworth’s house by Deputy

Perrigo, to the time he was returned to the front of Sanchez’s house along with

Fry, Wadsworth, and Miguel to identify the battery that had been taken from

Miguel’s car, lends additional support to the jury’s implicit finding that defendant

was intoxicated a short time earlier, at around midnight, when he was located in

the station wagon by Deputy Perrigo and placed under arrest.

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We conclude that defendant’s arrest for a violation of section 647(f) was

lawful, and that the evidence is sufficient to support all the requisite elements of

the murder of a peace officer special-circumstance finding.

2. Escape From Custody Special Circumstance

Defendant contends the special circumstance of murder for the purpose of

perfecting or attempting to perfect escape from lawful custody (§ 190.2,

subd. (a)(5)) must be set aside because he was not in “lawful custody” when he

killed Deputy Perrigo, and further, that the evidence was insufficient to establish

that he “violated the law regarding escape” when he fatally shot the deputy. We

find this claim too devoid of merit.

At the time of his arrest in 1991, section 4532, subdivision (a), provided

that, “Every prisoner arrested and booked for, charged with, or convicted of a

misdemeanor . . . who thereafter escapes or attempts to escape from [the] county

or city jail, prison, industrial farm, or industrial road camp or from the custody of

the officer or person in charge of him” is guilty of a felony. (former § 4532,

subd. (a), as amended by Stats. 1984, ch. 1432, § 7, p. 5025, italics added.) When

a suspect flees from custody before being charged, convicted, or booked for the

offense for which he was arrested, he is not subject to prosecution for violating

section 4532. (Wood v. Superior Court (1975) 46 Cal.App.3d 564, 566 (Wood).)

Initially, we note defendant made a pretrial motion to dismiss the escape

charge and the special circumstance allegation of murder to perfect an escape on

the ground that the evidence was insufficient to establish that his arrest was lawful.

The motion was denied. After the prosecution rested its case-in-chief at the guilt

phase, defendant moved pursuant to section 1118.1 for a directed verdict in his

favor on both the escape charge (§ 4532) and the special circumstance allegation

of murder to perfect escape from lawful custody (§ 190.2, subd. (a)(5)). He

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contended, citing Wood, supra, 46 Cal.App.3d 564, that the crime of escape

required that he be booked, charged, or convicted before he could attempt to

escape or escape, and that he was not “booked” for the offense for which he was

arrested prior to being transported from the Burney substation to the main jail in

Redding. The trial court treated this legal basis for the motion for a directed

verdict as a uniform challenge to both the escape charge and the special

circumstance allegation.

There is, however, an important distinction to be drawn here. In his

argument before this court challenging the murder to perfect escape from lawful

custody special-circumstance finding, defendant acknowledges he was “arrested,

albeit unlawfully.” We have, however, already concluded defendant’s arrest for

public intoxication pursuant to section 647(f) was lawful, in connection with our

rejection of his challenge to the murder of a peace officer special circumstance.

(Ante, at p. 42.) That legal basis having now been removed as a challenge to this

murder to perfect escape from lawful custody special circumstance (§ 190.2,

subd. (a)(5)), we believe this special circumstance finding is rendered legally

valid, regardless whether defendant was thereafter validly “booked” for the public

intoxication offense, a requirement going to the validity of the section 4532

conviction. Put differently, a formal charge and conviction of escape under

section 4532 is not required to establish the murder to perfect an escape from

lawful custody special circumstance, although one happens to be present in this

case. Given the lawfulness of defendant’s arrest, his escape from the lawful

custody of Deputy Perrigo, for purposes of establishing the murder to perfect an

escape special circumstance, cannot be found to turn on the validity of his

conviction of the crime of escape pursuant to section 4532 alone, regardless

whether he was properly “booked” for that offense, as is required to establish the

validity of that conviction. (Wood, supra, 46 Cal.App.3d 566.) If that were the

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case, then had defendant killed Deputy Perrigo for the purpose of escaping from

the deputy’s custody after defendant’s lawful arrest for a violation of section

647(f) but before they reached the Burney substation and defendant could be

“booked” on the public intoxication charge, defendant would be immunized from

prosecution for murder for the purpose of perfecting escape from lawful custody.

Turning to defendant’s claim that the special circumstance of murder to

perfect escape from lawful custody must be set aside because he was not properly

“booked” on the public intoxication charge for which he was arrested within the

meaning of the escape statute (§ 4532), we find the claim unavailing.

Defendant places principal reliance on Deputy Pitts’s trial testimony that he

(defendant) was not fingerprinted or “booked” upon arrival at the Burney

substation because “that usually happened at Redding.” Deputy Pitts’ testimony,

however, is not controlling on this point of law.

Rather, the term “to book” is defined in section 7, subdivision 21, as “the

recordation of an arrest in official police records, and the taking by the police of

fingerprints and photographs of the person arrested, or any of these acts following

an arrest.” (Italics added.) Defendant’s arrest clearly was recorded in official

police records prior to his being transported from the Burney substation toward

Redding; hence that fact itself establishes that he was technically “booked” on the

section 647(f) charge within the meaning of section 7, subdivision (21), and the

escape statute (§ 4532).

Shasta County Sheriff’s Sergeant Bradd McDannold testified, in connection

with the section 1118.1 motion for a directed verdict on this special circumstance

allegation, that a “probable cause declaration” is normally filled out and placed in

the arrestee’s “permanent jacket” for inclusion in the sheriff’s records, and that

Deputy Perrigo followed that procedure in defendant’s case. Additionally, the

Burney substation maintains an official “daily log” recording the activities of all of

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its officers, which is kept by the records supervisor and is an official record of the

Shasta County Sheriff’s Department. The daily log for the date and time of

defendant’s arrest recorded all pertinent information surrounding his arrest. We

therefore find that the “probable cause declaration” and the “daily log”

memorializing the details of defendant’s arrest constituted “recordation of [his]

arrest in official police records” within the meaning of the definition of “book[ed]”

found in section 7, subdivision (21).

Additionally, Sergeant McDannold testified that the reason defendant was

not fingerprinted or photographed upon being brought into the substation on the

morning of October 21 was that his fingerprints and photograph were already on

file with the department as a result of his earlier arrest in July of that same year by

the same agency in connection with the prowling/public intoxication incident. In

such instances, all that was required to complete the official booking process at

the Burney substation and to authorize transport of defendant to the main jail in

Redding was the completion of the “probable cause declaration.” Sergeant

McDannold testified further that public intoxication is not a “retainable” offense

requiring fingerprinting in the first instance.

We conclude the record establishes that following defendant’s valid arrest

for a violation of section 647(f), and his transport to the Burney substation,

defendant was “booked” on the charge within the statutory definition of that term,

and hence the evidence is sufficient to support all the requisite elements of the

murder to perfect escape from lawful custody special-circumstance finding.

3. Lying in Wait Special Circumstance

a.

Constitutionality

Defendant contends the special circumstance of lying in wait is

unconstitutional because it fails to meaningfully narrow death eligibility. We have

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repeatedly rejected the same contention with respect to analogous facts and

circumstances. (See, e.g., Gutierrez, supra, 28 Cal.4th at p. 1089; People v.

Crittenden, supra, 9 Cal.4th 83, 155; People v. Sims (1993) 5 Cal.4th 405, 434

(Sims); People v. Roberts (1992) 2 Cal.4th 271, 322-323; People v. Wader (1993)

5 Cal.4th 610, 669; People v. Edwards (1991) 54 Cal.3d 787, 824; People v.

Edelbacher (1989) 47 Cal.3d 983, 1023; People v. Morales (1989) 48 Cal.3d 527,

557-558 (Morales).)

“The distinguishing factors identified in Morales [, supra, 48 Cal.3d 527]

and Sims [, supra, 5 Cal.4th 405] that characterize the lying-in-wait special

circumstance constitute ‘clear and specific requirements that sufficiently

distinguish from other murders a murder committed while the perpetrator is lying

in wait, so as to justify the classification of that type of case as one warranting

imposition of the death penalty.’ (People v. Sims, supra, 5 Cal.4th at p. 434.)”

(Gutierrez, supra, 28 Cal.4th at p. 1149.)

Defendant additionally contends the standard lying-in-wait special

circumstance instruction given below, CALJIC No. 8.81.15, “is impossible to

understand and apply.” This specific claim too has been repeatedly rejected.

(Sims, supra, 5 Cal.4th at p. 434; People v. Michaels (2002) 28 Cal.4th 486, 516-

517.)

b. Sufficiency of Evidence of Lying in Wait

Defendant contends there was “no evidence of any of the elements of lying-

in-wait other than concealment of purpose, and ‘mere concealment of purpose’ is

not enough to establish that a murder was committed while lying in wait.” He

urges that, “Here, [defendant] did nothing to ‘place himself in a position of

advantage.’ The crime was committed from the back seat of a police car in which

he had been ordered to sit. It was sheer misfortune, and not planning, that led to

his discovery of Deputy Perrigo’s fanny pack, and the weapon inside, at a time

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when he was handcuffed in the back seat of a patrol car, when he [was] drunk,

hurt, angry, confused, and frightened.”

Defendant’s argument belies the facts, even as related in his own

confession to police, which we have found was free from constitutional infirmity

and properly introduced into evidence below. (Ante, at pp. 29-35.)

“[T]he lying-in-wait special circumstance requires ‘an intentional murder,

committed under circumstances which include (1) a concealment of purpose, (2) a

substantial period of watching and waiting for an opportune time to act, and (3)

immediately thereafter, a surprise attack on an unsuspecting victim from a position

of advantage . . . .’ (People v. Morales, supra, 48 Cal.3d at p. 557; People v.

Carpenter (1997) 15 Cal.4th 312, 388; People v. Sims, supra, 5 Cal.4th at p. 432.)

Furthermore, the lying-in-wait special circumstance requires “that the killing take

place during the period of concealment and watchful waiting[.]” (Gutierrez,

supra, 28 Cal.4th at p. 1149.) All of those elements are established on this record.

In his statement to police, defendant related that after being returned to the

patrol car for transport to Redding, and while his hands were handcuffed behind

him, he began kicking the front seat of the vehicle and a fanny pack with a weapon

fell out. He retrieved the handgun, “worked the action” and saw that it was loaded

and functional, then hid the gun behind him near where the seatbelt attaches to the

seat. According to defendant, he and Estrada considered shooting Deputy Perrigo

in the parking lot of the substation and escaping, but decided not to because “there

were other deputies present.” Ultimately they decided to “wait until they were on

the road where there were no houses and shoot Deputy Perrigo,” then escape.

Defendant claimed that once the three were a short distance outside of Burney, in

an area where defendant thought there were no houses, Estrada gave him “hand

signals” and told defendant to “shoot him.” Defendant stated he put the gun up

against the Plexiglas, aimed at the back of Deputy Perrigo’s head, closed his eyes

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and pulled the trigger. When asked why he shot Deputy Perrigo, defendant

initially candidly stated, “so that they could escape.”

Together, the physical and circumstantial evidence, the testimony of

Deputy Pitts, and defendant’s own confession established that defendant obtained

Deputy Perrigo’s backup handgun by kicking the front seat until his fanny pack

fell to the floor of the patrol car, then pulling the fanny pack through the opening

between the floor of the vehicle and the bottom of the Plexiglas safety barrier and

retrieving the gun from within, all while still handcuffed. Defendant then secreted

the gun on the seat behind him, waited until Deputy Perrigo got back into the

patrol unit, waited until they had driven two miles from the substation and were on

a relatively secluded section of the highway with no houses insight, then removed

the weapon from its hidden location and intentionally shot Deputy Perrigo in the

back of the head “by surprise, with no opportunity [for the officer] to resist or

defend himself” (People v. Hillhouse, supra, 27 Cal.4th at p. 501) for the admitted

purpose of escaping, which purpose was accomplished.

Several decisions of this court have recognized that waiting for an

opportune time to launch a surprise attack from the backseat of a vehicle against

the driver or front seat passenger can constitute lying in wait. (See, e.g., People v.

Jurado (2006) 38 Cal.4th 72, 119-120; People v. Combs (2004) 34 Cal.4th 821,

853; Morales, supra, 48 Cal.3d at p. 554.) We conclude the evidence in this

record is sufficient to support all of the requisite elements of the lying-in-wait

special-circumstance finding.

D. Penalty Phase Issues

1. Challenges to Constitutionality of Death Penalty Statute

Defendant asserts various grounds in support of his claim that the

California death penalty statute is unconstitutional. He acknowledges this court

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has previously rejected each of them, but raises them here in order to preserve the

claims in federal court.

The claim that section 190.3, factor (a), which allows the jury to consider

“[t]he circumstances of the crime of which the defendant was convicted in the

present proceeding and the existence of any special circumstances found to be true

pursuant to Section 190.1,” is unconstitutionally vague and overbroad has been

rejected by the high court in Tuilaepa v. California (1994) 512 U.S. 967, 975-976,

and repeatedly rejected by this court. (See, e.g., People v. Harris (2005) 37

Cal.4th 310, 365; People v. Stitely (2005) 35 Cal.4th 514, 574; Maury, supra, 30

Cal.4th at p. 439; People v. Lewis (2001) 26 Cal.4th 334, 394; Jenkins, supra, 22

Cal.4th at pp. 1050-1053.)

Furthermore, “[t]he [death penalty] statute is not invalid for failing to

require (1) written findings or unanimity as to aggravating factors, (2) proof of all

aggravating factors beyond a reasonable doubt, (3) findings that aggravation

outweighs mitigation beyond a reasonable doubt, or (4) findings that death is the

appropriate penalty beyond a reasonable doubt.” (People v. Snow (2003) 30

Cal.4th 43, 126.) And except for prior violent crimes evidence and prior felony

convictions under section 190.3, factors (b) and (c), the court need not instruct

regarding a burden of proof, or instruct the jury that there is no burden of proof at

the penalty phase. (People v. Box (2000) 23 Cal.4th 1153, 1216; People v.

Carpenter, supra, 15 Cal.4th at pp. 417-418.)

Moreover, there is no requirement that California’s death penalty

sentencing scheme provide for intercase proportionality review. (People v. Sapp

(2003) 31 Cal.4th 240, 317.) And since capital defendants are not similarly

situated to noncapital defendants, the death penalty law does not violate equal

protection by denying capital defendants certain procedural rights given to

noncapital defendants. (People v. Johnson (1992) 3 Cal.4th 1183, 1242-1243;

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People v. Allen (1986) 42 Cal.3d 1222, 1286-1287.) Hence, the jury may consider

unadjudicated offenses under section 190.3, factor (b) as aggravating factors

without violating the defendant’s rights to trial, confrontation, an impartial and

unanimous jury, due process, or a reliable penalty determination. (People v. Sapp,

supra, 31 Cal.4th at p. 316; People v. Bolden (2002) 29 Cal.4th 515, 566.)

Nor does the use of adjectives such as “extreme” in section 190.3,

factors (d) and (g), or “substantial” in section 190.3, factor (g), serve as an

improper barrier to the consideration of mitigating evidence. (People v. Visciotti

(1992) 2 Cal.4th 1, 73-75 [“extreme” as used in § 190.3, factor (g)]; People v.

Adcox (1988) 47 Cal.3d 207, 270 [“substantial” as used in § 190.3, factor (g)].)

In a supplemental brief, defendant claims the penalty phase instructions

unconstitutionally failed to identify which circumstances were aggravating and

which were mitigating. The claim is unmeritorious, having been repeatedly

rejected by this court. (See, e.g., People v. Manriquez (2006) 37 Cal.4th 547,

590.) Indeed, defendant concedes the point and even quotes from a decision to

that effect (People v. Morrison (2004) 34 Cal.4th 698, 730). He nonetheless urges

us to part company with those decisions in his case because here, according to

defendant, a portion of one juror’s notes, made part of the augmented clerk’s

transcript on appeal, reflects that the juror did “aggravate[] his sentence upon the

basis of what were, as a matter of state law, mitigating factors, and did so

believing that the State — as represented by the trial court [through the giving of

CALJIC No. 8.85] — had identified them as potentially aggravating factors

supporting a sentence of death.” Fundamentally, however, the incomplete and

inconclusive portions of a juror’s notes on which defendant would have us rely

cannot serve to impeach the jury’s verdict. (Evid. Code, § 1150, subd. (a); People

v. Carter (2003) 30 Cal.4th 1166, 1218 [§ 1150, subd. (a) “renders inadmissible

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any evidence concerning the mental processes by which a verdict is

determined.”].)

Finally, defendant’s claims that the high court’s decisions in Ring v.

Arizona (2002) 536 U.S. 584, and Apprendi v. New Jersey (2000) 530 U.S. 466,

apply to California’s death penalty sentencing scheme have been rejected by this

court. (People v. Smith (2003) 30 Cal.4th 581, 642.) Nor is the statutory scheme

so flawed that any imposition of the death penalty in this state would violate

“ ‘international norms of humanity and decency.’ ” (People v. Harris, supra, 37

Cal.4th at p. 366; People v. Ghent (1987) 43 Cal.3d 739, 778-779.)

2. Admission of Victim Impact Evidence

Defendant contends the trial court erred by permitting the prosecution to

present victim impact evidence at the penalty phase. There was no error in that

regard. The introduction of victim impact evidence has been upheld in many

cases. “Unless it invites a purely irrational response from the jury, the devastating

effect of a capital crime on loved ones and the community is relevant and

admissible as a circumstance of the crime under section 190.3, factor (a).”

(People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1056-1057.) “The federal

Constitution bars victim impact evidence only if it is ‘so unduly prejudicial’ as to

render the trial ‘fundamentally unfair.” (Id. at p. 1056, quoting Payne v.

Tennessee (1991) 501 U.S. 808, 825.)

The victim impact evidence introduced in this case came well within

permissible limits, and was typical of the victim impact evidence this court

routinely permits. (See, e.g., People v. Boyette (2002) 29 Cal.4th 381, 444 [family

members speaking of their love of the victims, how they missed the victims in

their lives, photographs of victims while still alive].)

Defendant also claims he did not receive adequate notice of the victim

impact evidence that would be introduced at the penalty phase. The claim is

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specious. The Perrigo family witnesses were placed on the prosecution witness

lists, the defense was free to interview them, and trial counsel expressly

acknowledged for the record that the defense received “very reasonable” notice of

their planned testimony. Nor does the record substantiate defendant’s claim that

the testimony of Deputy Perrigo’s widow constituted “essentially an unbroken

narrative.” Her testimony proceeded through questioning and answers, and trial

counsel readily conceded he had opportunities to object but did not do so for

obvious tactical reasons. Contrary to defendant’s assertions, we find nothing

improper in Ms. Perrigo’s testimony, and nothing that would have served to

unduly inflame the jury.

3. Admission of Drunken Prowling Incident

Defendant claims his penalty verdict was prejudiced by the admission of

evidence of the July 7, 1991 incident that led to his arrest for public intoxication

on that same date. On this occasion defendant, who appeared drunk, began

prowling around a mobilehome in McArthur at which two teenage girls were

babysitting a nine-month-old infant. Defendant’s questions frightened the girls,

who retreated into the home. Defendant then pressed his face against the kitchen

window, further scaring the girls, who began crying. One girl called her father

who was nearby; upon his arrival he saw defendant attempting to open a window

to gain access to the home. He chased defendant half a block before subduing

him, and was kicked by defendant before police arrived and made the arrest.

Defendant first contends Deputy Dikes should not have been permitted to

testify that at the time of this incident, he (defendant) threatened the deputy by

stating that when he got out of jail he would obtain a gun and shoot the deputy in

the back of the head. As already noted (ante, p. 38), Deputy Dikes’s testimony

constituted evidence of a prior express threat to use force or violence, and was

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therefore properly admitted at the penalty phase as a factor in aggravation under

section 190.3, factor (b).

Defendant further contends there was nothing about the prowling incident

itself that rendered testimony regarding it admissible in the People’s case in

aggravation at the penalty phase, and hence such testimony was erroneously

admitted. We disagree.

“[W]hether a particular instance of criminal activity ‘involved . . . the

express or implied threat to use force or violence’ (§ 190.3, factor (b)) can only be

determined by looking to the facts of the particular case.” (People v. Mason

(1991) 52 Cal.3d 909, 955 (Mason).)

The facts established were that defendant tried to enter a mobilehome,

knowing it was occupied by two minor girls. He peered in the window, and did

not leave even when one of the girls “screamed” in fear. Instead, he tried to gain

access into the residence by attempting to open a window. He fled only when

confronted by the girl’s returning father, who chased him one-half block before

subduing him, and whom defendant was “fighting” with and kicked before police

arrived and arrested defendant.

The prosecutor argued that defendant’s conduct, separate and apart from his

subsequent threat to shoot Deputy Dikes upon being arrested, contained an implied

threat of violence, given that defendant knew he was attempting to enter an

occupied residence in which the young occupants had seen him, become

frightened, and started screaming. The trial court agreed in ruling the evidence

admissible: “And I think that the Mason case basically discusses the — that a

burglary per se, just a straight burglary which involves no requirement of the

presence of any other human being, that that by itself would not be sufficient to

raise this issue. And I don’t dispute that at all. [¶] But because of the fact that not

only the two girls, but more importantly the father who is an adult who

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presumably . . . [after being called home by the girls] was looking to confront the

individual who was prowling or was around the house, the likelihood of there

being that confrontation and the likelihood of that implied threat of violence to me

is sufficiently established.”

We agree with the trial court’s ruling. The facts surrounding the July 1991

prowling incident support the finding of an implied threat of violence within the

meaning of section 190.3, factor (b). (See People v. Farnam (2002) 28 Cal.4th

107, 176.) The evidence was therefore properly admitted in the People’s case in

aggravation of penalty.

4. Refusal to Admit Evidence of Police Brutality

Defendant argues the trial court erred by excluding from his case in

mitigation of penalty evidence he sought to develop through the testimony of his

mother and his defense expert, Dr. Jose LaCalle, to the effect that, as a boy, he had

been mistreated by local police in his hometown of Antiguo Taumin in Mexico,

and that the “reputation” of the police among the people of that town was bad. We

do not read the record as reflecting that the trial court imposed severe restrictions

or limitations on such testimony, as defendant would have us conclude. Instead,

we find the court was simply and properly sustaining prosecution objections to

specific defects in the evidence offered by the defense.

With regard to the first complained-of evidentiary ruling, defendant’s

mother testified that when defendant was 14 years old he was taken away in

handcuffs by the Mexican police and held for several days. When he was returned

home, his head was shaved and he had been badly beaten. Although she claimed

defendant had been beaten with a rifle and a bat, she also revealed she had no

personal knowledge of such facts. Accordingly, the court granted the

prosecution’s motion to strike the references in her testimony to defendant having

been beaten with a rifle and a bat, and the jury was instructed to disregard them.

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The trial court did not, however, as defendant here argues, exclude all evidence in

connection with the testimony about this incident through which he sought to

show that he had been “brutalized” by the Mexican police. The court expressly

denied the prosecutor’s motion to the extent it sought to strike the witness’s

“testimony about [defendant’s] being beaten by the Mexican police.”

With regard to the second complained-of ruling, the trial court let stand

defendant’s mother’s testimony that the “people” in defendant’s hometown of

Antiguo Taumin in Mexico are “generally” afraid of the police. However, when

she was further asked on direct examination why the people of Antiguo Taumin

are afraid of the police, the trial court sustained the prosecution’s objection,

explaining, “We [would] get into too many collateral matters with that subject.”

This ruling too was not in error, as the question sought to elicit an opinion from

the witness on matters well beyond her personal knowledge.

Finally, defendant argues the trial court erroneously prevented him from

questioning his expert witness, Dr, LaCalle, on the impact of police brutality on

his upbringing as a youth in Antiguo Taumin. Here too, there was no such blanket

restriction on the formulation of the defense.

The defense was permitted to ask Dr. LaCalle the following hypothetical

question, without objection or restriction: “Assuming the hypothetical question of

a twenty-three year-old man of Mexican origin, who has been brutalized by the

police in Mexico at an early age, and who was intoxicated at the time of his arrest

and handled roughly by the arresting officer and finds a gun and uses it. What is

your professional opinion about why he reacted as he did in shooting the officer?”

Dr. LaCalle gave his opinion that defendant made a “primal response,” a reaction

exhibiting anger and hostility, not to the arresting officer specifically, but to the

circumstances of police brutality having been suffered over the years.

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Defendant argues he should have been permitted to incorporate the details

from his mother’s testimony noted above — specifically, that he had been beaten

with a rifle and bat — into the hypothetical question directed to his expert witness.

But as already noted, there was no competent evidence introduced to establish

those details. Defendant was, however, permitted to characterize his treatment as

a youth at the hands of the Mexican police in Antiguo Taumin as that of having

been “brutalized.” Similarly, he was not permitted to include in the hypothetical

question a reference that he grew up “in an environment where the police are

feared because of their frequent violent methods,” again, because defendant’s

mother could not testify to such facts from her personal knowledge, and hence

there was no foundational support for allowing the question to be so worded. This

ruling was not in error. Nor did the trial court err in rejecting defendant’s further

argument that his mother’s testimony about the feelings of the people of Antiguo

Taumin toward the Mexican police, or the incorporation of that matter into the

hypothetical question to Dr. LaCalle, should have been permitted under the

reputation exception to the hearsay rule. (See Evid. Code, §§ 786, 1100, 1101.)

The hearsay exception established in those Evidence Code sections fundamentally

pertains to proof of the character of a person through external evidence, not the

character of an entire police force.

5. Refusal to Grant Penalty Phase Continuance

Defendant contends he was prejudiced by the trial court’s denial of his

motion for a continuance during the penalty phase under somewhat unusual

circumstances. His expert, Dr. LaCalle, was arrested during the trial on an

unrelated matter; cruelty to animals arising from certain practices he utilized

(electrocution) to kill chinchillas that he raised on his ranch for their pelts, an

endeavor presumably unconnected to his occupation as a psychologist. Defendant

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argues that the arrest and publicity surrounding his expert witness’s practice of

killing chinchillas by electrocution diminished the effectiveness of his expert

witness, and hence the requested continuance should have been granted to afford

him an opportunity to obtain a new untainted expert.

When a newspaper article about Dr. LaCalle’s troubles surfaced, defense

counsel became concerned that it would destroy his credibility as an expert

witness and prejudice the jury. Defense counsel therefore proposed three potential

actions in response to the situation: (1) declare a mistrial, or give the defense a

continuance to substitute a different psychologist, (2) grant a continuance until the

effect of the article “dissipates,” or (3) “bring the jurors in one at a time” and

determine “how many people have read it,” and if so, do they “say that it’s

prejudicial, [that] they can’t be fair.”

The trial court and parties opted for the third approach. All 12 jurors and

two alternates were individually questioned about whether they had seen the

article or any other press reports about the chinchilla affair, and whether they were

aware of the name or identity of the person to whom the article referred. Eight of

the 14 jurors had not seen the article or heard any media reports about the

chinchilla story. Of the six who indicated some exposure to the story, only one,

Juror No. 1633, reported that she had seen the article and had been exposed to

radio and television reports about the incident. She indicated, however, that she

had formed no opinion about the chinchilla rancher, and stated, upon further

questioning, that “[she] would take him as any other witness that’s been on the

stand, at face value and interpret what they have to say. I don’t think what he does

for – what [he] does for a living would apparently has caused this ruckus would –

make me believe or disbelieve anything he said.”

Following the initial voir dire of the jurors on the chinchilla story, the trial

court made the following ruling: “Okay. All right. The Court concludes based on

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the responses from the jurors that first, there were very few even aware of it. [¶]

And second, the one who really seemed to have acquired the most in the way of

information who was Number 1663 seemed to me very frankly and honestly to say

that it’s a subject matter in – which would not concern her one way or the other.

And that she would be quite capable of properly evaluating the evidence given by

that person, same as anyone else. [¶] So the Court then makes the finding that

there is not a basis on which either a mistrial should be declared, a new jury

impaneled or other remedy taken concerning our chinchilla growing witness.”

Each of the jurors was then admonished not to have any conversations

about the chinchilla case, and not to read any newspaper articles, watch television

stories, or listen to radio reports concerning that matter.

The day following the trial court’s ruling, defense counsel renewed the

defense request for a continuance based upon “escalating publicity or media

coverage of Dr. LaCalle’s current criminal problems.” The court forthrightly

acknowledged that “the publicity on this thing being a local issue is somewhat

profound, but if that publicity is not something that is affecting our jury, if they are

simply not aware of it, or to the extent they’re aware of it as one indicated

yesterday that she or others can nevertheless proceed in an objective fashion, it’s a

– it’s a problem that really isn’t a problem.”

Thereafter, each juror was once again brought into the courtroom and

individually voir dired as to whether he or she had seen any additional news or

media stories about the chinchilla affair since the day before. Each juror reported

that he or she had not come in contact with any further media stories about the

matter. The trial court then denied the renewed motion for a continuance.

The determination whether to grant a motion for a continuance rests within

the sound discretion of the trial court. (People v. Sakarias (2000) 22 Cal.4th 596,

646.) We find no abuse of such discretion here, as it was demonstrated that there

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was “no substantial likelihood” that any of the jurors “who became aware that

publicity existed, were actually biased, that is, ‘unable to put aside [their]

impressions or opinions based upon the extrajudicial information [they] received

and render a verdict based solely upon the evidence received at trial.’ ” (Jenkins,

supra, 22 Cal.4th at p. 1049, quoting People v. Nesler (1997) 16 Cal.4th 561, 583.)

6. Factor (a) and Racial Bias

Defendant argues that because factor (a) permits the jury at the penalty

phase to consider the “circumstances of the crime,” but fails to provide “guidance”

as to the scope of the factor, the jurors were impermissibly permitted to consider

their own racial biases in deciding whether to return a death judgment against him.

Specifically, defendant “does not maintain that the vagueness of factor (a) renders

the jury’s decision unconstitutional. Instead, [his] argument is that because

factor (a) is open-ended, when a jury bases its decision on racial grounds, as was

very likely the case here, the resulting sentence is unconstitutional.” In support of

his supposition that it was “very likely” the jury in his case “base[d] its decision

on racial grounds,” he points to the fact that Deputy Perrigo was White, whereas

he is a member of a minority race (Hispanic).

Defendant proposed no instructions in the trial court along the lines he now

suggests should have been given to combat what he perceives was a likelihood of

racial prejudice in the proceedings below. Nor does he specify on appeal exactly

what, in the way of further “guidance,” should have been delivered to the jury

through supplemental instructions directly concerning factor (a).

Factor (a), which allows the jury to consider “[t]he circumstances of the

crime of which the defendant was convicted in the present proceeding and the

existence of any special circumstances found to be true pursuant to Section 190.1,”

has been found by the high court not to violate the Fifth, Sixth, Eighth, or

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Fourteenth Amendments to the United States Constitution by allowing arbitrary

imposition of the death penalty. (Tuilaepa v. California, supra, 512 U.S. at

pp. 975-976.) This court likewise has repeatedly found that factor (a) is neither

impermissibly vague nor overbroad, and does not result in an arbitrary and

capricious penalty determination. (People v. Harris, supra, 37 Cal.4th at p. 365;

People v. Stitely, supra, 35 Cal.4th at p. 574; Maury, supra, 30 Cal.4th at p. 439;

People v. Lewis, supra, 26 Cal.4th at p. 394; Jenkins, supra, 22 Cal.4th at

pp. 1050-1053 [factor (a) provides adequate guidance to a jury in capital

sentencing].)

We perceive no basis on which to reverse the judgment based on

defendant’s largely speculative claim that further guidance in the way of

supplemental instructions should have been provided to the jury with specific

regard to factor (a).

7. Violations of International Law

Contrary to defendant’s contention, a sentence of death that complies with

state and federal constitutional and statutory requirements has been held by this

court not to violate international law. (People v. Tafoya (2007) 42 Cal.4th 147,

199; People v. Hillhouse, supra, 27 Cal.4th at p. 511.)

8. Cumulative Prejudice

Defendant observes that, “[t]his court has recognized that, at a capital

penalty trial, lingering doubts about guilt constitute a proper factor in mitigation of

the penalty. (People v. Hawkins (1995) 10 Cal.4th 920, 966-968.)” He then urges

that, “By definition, it takes less to raise a lingering doubt than it takes to raise a

reasonable doubt. Guilt phase errors which might be found harmless under

traditional guilt phase tests of prejudice might nonetheless have the effect of

negating a lingering doubt as to intent, intoxication, etc. Such errors may

prejudicially impact the penalty determination even though they may be harmless

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as to the guilt verdict. [¶] Accordingly, this Court must make a separate

assessment of the impact of each guilt phase error, and of the cumulative impact of

all guilt phase errors, on the penalty determination.”

We have, however, found no appreciable error at the guilt or penalty phases

of defendant’s trial. Accordingly, we have no occasion here to make “a separate

assessment of the impact of each guilt phase error,” nor of “the cumulative impact

of all guilt phase errors” on the penalty determination reached in this case.

Defendant argues further that, “Where the evidence, though sufficient to

sustain the verdict, is extremely close, any substantial error tending to discredit the

defense, or to corroborate the prosecution, must be considered as prejudicial.”

(Italics added.) Once again, we have found no appreciable error at the guilt or

penalty phases of defendant’s trial, much less “substantial error,” nor do we share

defendant’s view that the evidence in this case within reason can be characterized

as “extremely close.”7


7

In 2004, the International Court of Justice ruled that the United States had

violated the Vienna Convention in numerous cases by failing to provide arrested
foreign nationals access to consular officials. (Case Concerning Avena and Other
Mexican Nationals (Mex. v. U.S.) 2004 I.C.J. 12.) Defendant, a Mexican national,
is one such individual named in that case. Defendant has raised a claim pertaining
to the matter in a habeas corpus petition presently pending in this court. (In re
Cruz, S129510.) The claim, involving matters outside this appellate record, is
properly raised on habeas corpus and will be addressed and resolved in that
proceeding.

66

---

III. CONCLUSION

The judgment is affirmed.


BAXTER, J.

WE CONCUR:

GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.


67

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Cruz
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S042224
Date Filed: July 24, 2008
__________________________________________________________________________________

Court: Superior
County: Sonoma
Judge: James E. Kleaver

__________________________________________________________________________________

Attorneys for Appellant:

Michael R. Snedeker and Lisa R. Short, under appointments by the Supreme Court, for Defendant and
Appellant.




__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Gerald A. Engler, Assistant Attorney General, Bruce Ortega, Ross C. Moody and Alice B. Lustre,
Deputy Attorney General, for Plaintiff and Respondent.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Michael R. Snedeker
Snedeker, Smith & Short
4110 SE Hawthorne Blvd.
Portland, OR 97214-5246
(503) 232-6547

Alice B. Lustre
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-1376

---

Automatic appeal from a judgment of death.

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:	Cross Referenced Cases:
Thu, 07/24/2008	44 Cal. 4th 636, 187 P.3d 970, 80 Cal. Rptr. 3d 126	S042224	Automatic Appeal	closed; remittitur issued	CRUZ (TOMAS VERANO) ON H.C. (S129510)

Disposition
Jul 24 2008	Opinion: Affirmed

Dockets
Sep 9 1994	Judgment of death
Sep 19 1994	Filed certified copy of Judgment of Death Rendered   9-9-94.
Oct 28 1998	Counsel appointment order filed   Michael R. Snedeker Is appointed as Lead Counsel, & Lisa R. Short Is appointed as Associate Counsel, to represent Applt for Both the direct Appeal & Related State Habeas Corpus/Executive Clemency Proceedings.
Oct 28 1998	Compensation awarded counsel
Oct 28 1998	Filed:   Request by Inmate for Dual representation.
Oct 28 1998	Filed:   Request by Counsel (Snedeker) for Dual representation appointment.
Oct 28 1998	Filed:   Request for Counsel (Short) for Dual representation appointment.
Jan 4 1999	Application for Extension of Time filed   By Applt to request correction of the Record.
Jan 6 1999	Extension of Time application Granted   To 3-3-99 To request Record correction
Mar 5 1999	Application for Extension of Time filed   By Applt to request correction of the Record.
Mar 8 1999	Extension of Time application Granted   To 5-3-99 To request Record correction
Mar 24 1999	Compensation awarded counsel
Apr 30 1999	Application for Extension of Time filed   By Applt to request correction of the Record.
May 5 1999	Extension of Time application Granted   To 7-2-99 To request Record correction
Jul 1 1999	Application for Extension of Time filed   By Applt to request correction of the Record.
Jul 2 1999	Extension of Time application Granted   To 8-31-99 To request Record correction
Jul 13 1999	Change of Address filed for:   For Atty General's S.F. Office.
Sep 1 1999	Application for Extension of Time filed   By Applt to file Record Completion motion in the Trial Court.
Sep 9 1999	Extension of Time application Granted   To 11/1/99 To Applt To request Corr. of the Record. no further Extensions of time Are Contemplated.
Oct 29 1999	Application for Extension of Time filed   By Applt to request Corr. of the Record.
Nov 4 1999	Extension of Time application Granted   To 11/15/99 To Applt To request Corr. of the Record. no further Extensions of Times will be Granted.
Nov 15 1999	Received:   Copy of Applt's request to Complete and correct the Record (32 Pp.)
Dec 2 1999	Compensation awarded counsel   Atty Snedeker
Mar 29 2000	Compensation awarded counsel   Atty Snedeker
Jun 15 2000	Compensation awarded counsel   Atty Snedeker
Aug 10 2000	Counsel's status report received (confidential)
Aug 18 2000	Motion filed   Applt's motion for order to compel Sonoma county Superior Court to augment and settle the record on appeal.
Sep 12 2000	Opposition filed   by resp to applt's motion to compel Sonoma County Superior Court to augment and settle the record.
Sep 20 2000	Request Denied   Appellant's motion to compel the Sonoma County Superior Court to augment and settle the record on appeal and provide copies of sealed documents is denied. Upon certification of the record appellant may, if appropriate and relevant, seek judicial notice in this court of the records of other courts and proceedings that were not matters before the court in the prosecution of appellant. Upon certification of the record, appellant may seek from this court access to the sealed exhibit and reporter's transcript, and/or request that the reporter's transcript be unsealed. Appellant may seek leave from the trial court to prepare a master index or key to trial jurors pursuant to Code of Civil Procedure section 237, subdivision (b).
Oct 6 2000	Counsel's status report received (confidential)
Feb 9 2001	Counsel's status report received (confidential)
Apr 24 2001	Counsel's status report received (confidential)   from atty Snedeker.
Jun 5 2001	Counsel's status report received (confidential)   from atty Snedeker.
Jul 16 2001	Record on appeal filed   C-90 (Pp. 15449) and R-36 (Pp. 9872); including material under seal and 11866 Pp. of juror questionnaires.
Jul 16 2001	Appellant's Opening Brief Letter sent, due: 8/27/2001.
Jul 30 2001	Compensation awarded counsel   Atty Snedeker
Aug 27 2001	Counsel's status report received (confidential)   from atty Snedeker.
Aug 27 2001	Application for Extension of Time filed   To file A0B. (1st request)
Aug 28 2001	Extension of Time application Granted   To 10/26/2001 to file AOB.
Oct 24 2001	Application for Extension of Time filed   To file AOB. (2nd request)
Oct 26 2001	Extension of Time application Granted   To 12/26/2001 to file AOB.
Dec 10 2001	Counsel's status report received (confidential)   from atty Snedeker (on appeal and habeas corpus petition).
Dec 24 2001	Counsel's status report received (confidential)   from atty Snedeker.
Dec 24 2001	Request for extension of time filed   to file AOB. (3rd request)
Dec 27 2001	Extension of time granted   To 2/25/2002 to file AOB.
Feb 26 2002	Request for extension of time filed   To file AOB. (4th request)
Feb 26 2002	Counsel's status report received (confidential)   from atty Snedeker.
Mar 4 2002	Extension of time granted   To 4/26/2002 to file AOB.
May 1 2002	Request for extension of time filed   To file AOB. (5th request)
May 2 2002	Extension of time granted   To 6/25/2002 to file AOB. Counsel anticipates filing the brief by 10/15/2002. Two further extensions totaling 112 additional days are contemplated.
Jun 13 2002	Counsel's status report received (confidential)
Jun 20 2002	Request for extension of time filed   To file AOB. (6th request)
Jun 26 2002	Extension of time granted   To 8/26/2002 to file AOB. Counsel anticipates filing the brief by 10/15/2002. One further extension totaling 50 additonal days is contemplated.
Aug 13 2002	Counsel's status report received (confidential)   from atty Short.
Aug 27 2002	Request for extension of time filed   To file appellant's opening brief. (7th request)
Aug 27 2002	Motion to withdraw as counsel filed   by lead counsel, Michael R. Snedeker.
Aug 27 2002	Motion for appointment of counsel filed   by associate counsel, Lisa R. Short, for appointment as lead counsel for the automatic appeal and habeas corpus proceedings.
Aug 29 2002	Extension of time granted   to 10-15-2002 to file AOB. After that date, no further extension is contemplated. Extension granted based upon counsel Short's representation that she anticipates filing the brief by 10-15-2002.
Oct 1 2002	Filed:   Amended motion for designation as lead counsel for both direct appeal and habeas corpus/executive clemency proceedings and declaration of Lisa R. Short in support thereof.
Oct 16 2002	Counsel's status report received (confidential)   from attorney Short.
Oct 16 2002	Request for extension of time filed   To file appellant's opening brief. (8th request)
Oct 16 2002	Order filed   Good cause appearing, the application of appointed lead counsel for permission to withdraw as attorney of record for appellant Tomas Verano Cruz, filed August 27, 2002, is granted. The order appointing Michael R. Snedeker as lead counsel of record for appellant Tomas Verano Cruz, filed October 28, 1998, is hereby vacated. Pending further order of this court, appointed associate counsel Lisa R. Short is hereby designated as counsel of record for appellant Tomas Verano Cruz for the direct appeal and related state habeas corpus/executive clemency proceedings, in the above automatic appeal now pending in this court.
Oct 18 2002	Extension of time granted   To 10/25/2002 to file appellant's opening brief. Extension is granted based upon counsel Lisa R. Short's representation that she anticipates filing that brief by 10/25/2002. After that date, no further extension will be granted.
Oct 28 2002	Application to file over-length brief filed   to file opening brief. (361 pp. opening brief submitted under separate cover - Rule 40(k))
Oct 29 2002	Order filed   Appellant's application for permission to file opening brief in excess of 280 pages is granted.
Oct 29 2002	Appellant's opening brief filed   (361 pp.)
Nov 21 2002	Compensation awarded counsel   Atty Short
Nov 25 2002	Request for extension of time filed   To file respondent's brief. (1st request)
Nov 26 2002	Extension of time granted   To 1/31/2003 to file respondent's brief.
Dec 27 2002	Counsel's status report received (confidential)
Dec 30 2002	Filed:   Declaration of attorney Lisa R. Short (confidential).
Jan 31 2003	Request for extension of time filed   to file resp's brief. (2nd request)
Feb 6 2003	Extension of time granted   to 4/1/2003 to file respondent's brief. After that date, only two further extensions totaling about 90 additional days are contemplated. Extension is granted based upon Deputy Attorney General Ross C. Moody's representation that he anticipates filing that brief by 6/29/2003.
Mar 10 2003	Counsel's status report received (confidential)   from atty Short.
Mar 27 2003	Request for extension of time filed   to file respondent's brief. (3rd request)
Apr 1 2003	Extension of time granted   to 6/2/2003 to file respondent's brief. After that date, only one further extension totaling about 30 additional days is contemplated. Extenson is granted based upon Deputy Attorney General Ross C. Moody's representation that he anticipates filing that brief by 6/29/2003.
May 29 2003	Request for extension of time filed   to file respondent's brief. (4th request)
Jun 4 2003	Extension of time granted   to 8/1/2003 to file respondent's brief. Extension is granted based upon Deputy Attorney General Ross C. Moody's representation that he anticipates filing that brief by 8/1/2003. After that date, no further extension will be granted.
Jul 18 2003	Counsel's status report received (confidential)
Jul 30 2003	Request for extension of time filed   to file respondent's brief. (5th request)
Aug 5 2003	Extension of time granted   to 8/15/2003 to file respondent's brief. Extension is granted based upon Deputy Attorney General Ross Moody's representation that he anticipates filing that brief by 8/15/2003. After that date, no further extension will be granted.
Aug 14 2003	Respondent's brief filed   (133 pp.)
Sep 3 2003	Request for extension of time filed   to file appellant's reply brief. (1st request)
Sep 11 2003	Extension of time granted   to 11/3/2003 to file appellant's reply brief.
Oct 10 2003	Counsel's status report received (confidential)
Nov 4 2003	Request for extension of time filed   to file appellant's reply brief. (2nd request)
Nov 12 2003	Extension of time granted   to 1/2/2004 to file appellant's reply brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this scheduel, and to take all steps necessary to meet it.
Jan 15 2004	Request for extension of time filed   to file appellant's reply brief. (3rd request)
Jan 20 2004	Extension of time granted   to 3/2/2004 to file appellant's reply brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon counsel Lisa R. Short's representation that she anticipates filing that brief by 5/3/2004.
Feb 4 2004	Counsel's status report received (confidential)
Mar 5 2004	Request for extension of time filed   to file appellant's reply brief. (4th request)
Mar 12 2004	Extension of time granted   to 5/3/2004 to file appellant's reply brief. Extension is granted based upon counsel Lisa Short's representation that she anticipates filing that brief by 5/3/2004. After that date, no further extension will be granted.
May 6 2004	Request for extension of time filed   to file appellant's reply brief. (5th request)
May 12 2004	Extension of time granted   to 5/26/2004 to file appellant's reply brief. Extension is granted based upon counsel Lisa Short's representation that she anticipates filing that brief by 5/26/2004. After that date, no further extension will be granted.
May 28 2004	Request for extension of time filed   to file appellant's reply brief. (6th request)
May 28 2004	Extension of time granted   to 6-1-2004 to file reply brief. After that date, no further extension will be granted. Extension granted based upon counsel Lisa Short's representation that she anticipates filing the brief by 6-1-2004.
Jun 3 2004	Note:   Received 72 pp. appellant's reply brief this date, awaiting certificate of word-count.
Jun 8 2004	Appellant's reply brief filed   (15736 words - 72 pp.; perm)
Aug 23 2004	Filed:   Declaration of atty Lisa Short in support of fifth progress payment (confidential).
Sep 7 2004	Counsel's status report received (confidential)   from atty Short.
Sep 8 2004	Compensation awarded counsel   Atty Short
Oct 20 2004	Compensation awarded counsel   Atty Short
Nov 12 2004	Counsel's status report received (confidential)   from atty Short.
Nov 29 2004	Related habeas corpus petition filed (concurrent)   case no. S129510.
Feb 28 2005	Filed:   appellant's application for permission to file supplemental brief. (8 pp. supplemental brief submitted under separate cover)
Mar 2 2005	Order filed   appellant's application for permission to file supplemental brief is granted. Any supplemental respondent's brief is to be served and filed on or before 3/21/2005.
Mar 2 2005	Supplemental brief filed   appellant's brief. (8 pp.)
Mar 21 2005	Supplemental brief filed   respondent's brief. (9 pp. - 2414 words)
Apr 4 2005	Supplemental reply brief filed (AA)   by appellant. (6 pp.)
Apr 26 2006	Compensation awarded counsel   Atty Short
Nov 14 2006	Habeas funds request filed (confidential)
Dec 13 2006	Order filed re habeas funds request (confidential)
Jan 17 2007	Compensation awarded counsel   Atty Short
Feb 14 2007	Filed:   request by inmate for dual representation.
Feb 14 2007	Filed:   request by counsel for dual representation appointment.
Feb 26 2007	Motion for appointment of counsel filed   "Motion for Appointment of Associate Counsel on Both Direct Appeal and Related Habeas Corpus/Executive Clemency Proceedings."
Mar 14 2007	Counsel appointment order filed   Good cause appearing, the application of appointed counsel Lisa R. Short for the appointment of associate counsel, filed February 26, 2007, is granted. Michael R. Snedeker is hereby appointed as associate counsel of record to represent appellant Tomas Verano Cruz for both the direct appeal and related state habeas corpus/executive clemency proceedings in the above automatic appeal now pending in this court.
Mar 17 2008	Oral argument letter sent   advising counsel that the court could schedule this case for argument as early as the May 2008 calendars, to be held the weeks of May 5 and May 26, 2008, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
Apr 1 2008	Received:   letter from Deputy Attorney General Alice B. Lustre, dated March 28, 2008, advising that she will be representing respondent for oral argument.
Apr 9 2008	Case ordered on calendar   to be argued on Monday, May 5, 2008, at 1:30 p.m. in San Francisco
Apr 16 2008	Received:   appearance sheet from Deputy Attorney General Alice B. Lustre, indicating 30 minutes for oral argument for respondent.
Apr 21 2008	Received:   appearance sheet from Attorney Michael Snedeker, indicating 45 minutes for oral argument for appellant.
Apr 25 2008	Filed:   appellant's focus issues letter dated, April 24, 2008.
Apr 28 2008	Application to file over-length brief filed   by appellant. (appellant's second supplemental brief)
Apr 30 2008	Order filed   Appellant's "Application for Permission to File Oversize Supplemental Brief" is granted.
Apr 30 2008	Supplemental brief filed   by appellant, "Appellant's Second Supplemental Brief" (3,081 words; 14 pp.)
Apr 30 2008	Received:   appellant's additional authorities letter, dated April 30, 2008.
May 5 2008	Cause argued and submitted
May 14 2008	Compensation awarded counsel   Atty Short
Jul 23 2008	Notice of forthcoming opinion posted
Jul 24 2008	Opinion filed: Judgment affirmed in full   opinion by Baxter, J. -----joined by George C.J., Kennard, Werdegar, Chin, Moreno and Corrigan, JJ.
Aug 11 2008	Rehearing petition filed   by appellant (14 pp.); lacks required certificate of word count. Filed per rule 8.25(b)(3)(A). Counsel notified to submit certificate of word count.
Aug 12 2008	Time extended to consider modification or rehearing   The time for granting or denying rehearing in the above-entitled case is hereby extended to and including October 22, 2008, or the date upon which rehearing is either granted or denied, whichever occurs first.
Aug 12 2008	Filed:   by appellant "Appellant's Certificate of of Compliance" word limit for petition for rehearing. (2,984 words.)
Sep 24 2008	Rehearing denied   The petition for rehearing is denied. Corrigan, J., was absent and did not participate.
Sep 24 2008	Remittitur issued (AA)
Sep 30 2008	Received:   acknowledgment for receipt of remittitur.
Dec 26 2008	Received:   from appellant, copy of motion for leave to proceed in forma pauperis on petition for writ of certiorari. (19 pp. excluding appendices)
Jan 15 2009	Received:   Letter from U.S.S.C. dated January 6, 2009, advising the petition for writ of certiorari was placed on the docket January 6, 2009, No. 08-8044.
Mar 2 2009	Certiorari denied by U.S. Supreme Court

Briefs
Oct 29 2002	Appellant's opening brief filed
Aug 14 2003	Respondent's brief filed
Jun 8 2004	Appellant's reply brief filed

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website

Jan 9, 2009 Annotated by diana teasland

Written by Daniel Pozdol Background and Procedural History Early in the morning hours of October 21, 1991, Shasta County Deputy Sheriff Kenneth Perrigo was fatally shot with his own handgun. At the time, he was transporting defendant Tomas Cruz, then 23 years old, and codefendant Carlos Estrada, both of whom had been arrested for public drunkenness. According to the People, the defendant, while handcuffed, managed to reach under the front seat of the patrol car in which he was being transported and retrieve the deputy’s fanny pack, in which was stored a backup nine-millimeter service handgun. The defendant then lay in wait until an opportune time to shoot the officer, for the purpose of escaping from the patrol car along with Estrada. Following a stipulated change of venue from Shasta County to Sonoma County, a jury convicted defendant Tomas Verano Cruz of the first degree murder of Shasta County Deputy Sheriff Kenneth Perrigo. Three special circumstances were found true: murder for the purpose of perfecting or attempting to perfect escape from lawful custody; intentional murder of a peace officer while engaged in the performance of his or her duties; and lying in wait. After a penalty trial, the jury returned a verdict of death. The trial court denied the automatic motion to modify the penalty verdict and imposed the death sentence. An automatic appeal to the California Supreme Court followed. The California Supreme Court found all of defendant’s claims to be without merit as detailed below, and affirmed the trial court’s judgment in its entirety. A. Pretrial/Jury Selection Issues 1. Batson/Wheeler Error The Court held that Batson did not apply to a juror who was Caucasian but had a Hispanic last name by marriage. Additionally, the Court upheld the trial court’s ruling that the prosecutor did not exercise discriminatory intent in excusing another juror who was Hispanic because the prosecutor offered ample explanation for the excusal. Cited cases and statutes: Batson v. Kentucky (1986) 476 U.S. 79 Available at www.law.cornell.edu/supct/html/historics/USSC_CR_0476_0079_ZS.html People v. Wheeler (1978) 22 Cal.3d 258 Attach [cite_22_Cal__3d_258_.doc] from http://www.courtinfo.ca.gov/opinions People v. Cornwell (2005) 37 Cal.4th 50 Johnson v.California (2005) 545 U.S. 162 People v. Guerra (2006) 37 Cal.4th 1067 People v. Reynoso (2003) 31 Cal.4th 903 People v. Trevino (1985) 39 Cal.3d 667 People v. Gutierrez (2002) 28 Cal.4th 1083 Attach [cite_28_Cal__4th_1083_.doc] from http://www.courtinfo.ca.gov/opinions People v. Garceau (1993) 6 Cal.4th 140 People v. Cummings (1993) 4 Cal.4th 1233 People v. Johnson (2006) 38 Cal.4th 1096 People v. Lenix (2008), 44 Cal.4th 602 Attach [cite_44_Cal__4th_602_.doc] from http://www.courtinfo.ca.gov/opinions Snyder v. Louisiana (2008) __ U.S. __, 128 S.Ct. 1203 Available at http://www.law.cornell.edu/supct/html/6-10119.ZS.html Miller-El v. Dretke (2005) 545 U.S. 231 Available at http://www.law.cornell.edu/supct/html/03-9659.ZS.html People v. Bonilla (2007) 41 Cal.4th 313 2. Death Qualification of Jurors The Court rejected defendant’s argument that certain “death prone” prospective jurors were not excused for cause because none of these jurors actually ended up on the jury and thus the defendant was not prejudiced. The Court also rejected defendant’s argument that certain “life prone” prospective jurors were wrongfully excused for cause because a prospective juror can properly be excused from service if he or she is unable to conscientiously consider all of the sentencing alternatives, including the death penalty. Cited cases and statutes: Wainwright v. Witt (1985) 469 U.S. 412 Available at http://supreme.justia.com/us/469/412/case.html People v. Rodrigues (1994) 8 Cal.4th 1060 Attach [cite_8_Cal__4th_1060_.doc] from http://www.courtinfo.ca.gov/opinions People v. Phillips (2000) 22 Cal.4th 226 People v. Crittenden (1994) 9 Cal.4th 83 People v. Howard (1988) 44 Cal.3d 375 People v. Hillhouse (2002) 27 Cal.4th 469 People v. Millwee (1998) 18 Cal.4th 96 People v. Weaver (2001) 26 Cal.4th 876 Ross v. Oklahoma (1988) 487 U.S. 81 People v. Cox (1991) 53 Cal.3d 618 People v. Barnett (1998) 17 Cal.4th 1044 People v. Hill (1993) 3 Cal.4th 959 B. Guilt Phase Issues 1. Refusal to Instruct on Voluntary Manslaughter The Court rejected defendant’s argument that the trial court erred in refusing his request for voluntary manslaughter instructions based on provocation/heat of passion. The Court found that the evidence supporting the heat of passion argument was not substantial enough to require the manslaughter instructions, given that several hours passed between the time of arrest and the shooting. Additionally, the defendant was not biased by any failure to instruct given that the jury found both that the defendant had intentionally murdered the officer and was lying in wait for a period of fifteen or more minutes before the murder. Cited cases and statutes: California Penal Code, § 192 People v. Ochoa (1998) 19 Cal.4th 353 People v. Berry (1976) 18 Cal.3d 509 People v. Michaels (2002) 28 Cal.4th 486 In re Christian S. (1994) 7 Cal.4th 768 People v. Breverman (1998) 19 Cal.4th 142 People v. Barton (1995) 12 Cal.4th 186 Attach [cite_12_Cal__4th_186_.doc] from http://www.courtinfo.ca.gov/opinions People v. Flannel (1979) 25 Cal.3d 668 People v. Carr (1972) 8 Cal.3d 287 2. Admission of Defendant’s Confessions The Court rejected defendant’s argument that his statements given to police following his surrender in which he confessed to killing the officer should not have been admitted against him at trial because his waiver of his constitutional rights was not voluntary, knowing, and intelligent. According to the Court, the totality of the circumstances indicated that a finding that the defendant waived his Miranda rights was justified. The Court also rejected defendant’s argument that the statements he gave were involuntary because the argument was not raised in the lower courts. Cited cases and statutes: Miranda v. Arizona (1966) 384 U.S. 436 Available at www.law.cornell.edu/supct/html/historics/USSC_CR_0384_0436_ZS.html People v. Maury (2003) 30 Cal.4th 342 Attach [cite_30_Cal__4th_342_.doc] from http://www.courtinfo.ca.gov/opinions People v. Mayfield (1993) 5 Cal.4th 142 People v. Whitson (1998) 17 Cal.4th 229 People v. Wash (1993) 6 Cal.4th 215 North Carolina v. Butler (1979) 441 U.S. 369 People v. Cortes (1999) 71 Cal.App.4th 62 People v. Medina (1995) 11 Cal.4th 694 People v. Sully (1991) 53 Cal.3d 1195 Davis v. U.S. (1994) 512 U.S. 452 Oregon v. Bradshaw (1983) 462 U.S. 1039 People v. Clark (1993) 5 Cal.4th 950 People v. Ray (1996) 13 Cal.4th 313 Lynumn v. Illinois (1963) 372 U.S. 528 3. Examination of Peace Officer Personnel Files The Court rejected defendant’s argument that he should have been entitled to discovery of confidential personnel files of three police officers in search of evidence of past acts of excessive force. The Court held that the trial court did not abuse its discretion in concluding that the government’s interest in maintaining confidentiality outweighed defendant’s interest in the confidential files when there was no other evidence of previous acts of excessive force. Cited cases and statutes: City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1 Pitchess v. Superior Court (1974) 11 Cal.3d 531 Attach [cite_11_Cal__3d_531_.doc] from http://www.courtinfo.ca.gov/opinions City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135 Joe Z. v. Superior Court (1970) 3 Cal.3d 797 People v. Memro (1985) 38 Cal.3d 658 4. Admission of Photograph of Victim The Court rejected defendant’s argument that a photograph depicting injuries to the victim which was shown to the jury at trial was unduly prejudicial. According to the Court, the photograph was relevant for showing the cause of death and the condition of the body. Cited cases and statutes: People v. Mendoza (2000) 24 Cal.4th 130 Attach [cite_24_Cal__4th_130_.doc] from http://www.courtinfo.ca.gov/opinions 5. Admission of Threat to Kill Deputy Dikes The Court rejected defendant’s argument that evidence of defendant’s prior threat to kill the victim by shooting him “in the back of the head” should not have been admitted. The Court held that this evidence was admissible to show the defendant’s state of mind at the time of the shooting. Cited cases and statutes: People v. Rodriguez (1986) 42 Cal.3d 730 Attach [cite_42_Cal__3d_730_.doc] from http://www.courtinfo.ca.gov/opinions California Evidence Code, § 1101 People v. Gutierrez (2002) 28 Cal.4th 1083 Attach [cite_28_Cal__4th_1083_.doc] from http://www.courtinfo.ca.gov/opinions 6. Admission of Testimony of Bernard Sanchez The Court rejected defendant’s argument that the trial court’s admission of witness testimony regarding defendant’s adoptive admission that he shot the victim violated the confrontation clause of the federal Constitution. According to the Court, an exception to the hearsay rule applied: a statement is not inadmissible hearsay if the defendant manifested his adoption or his belief in its truth by his actions. Cited cases and statutes: California Evidence Code, § 1221 People v. Preston (1973) 9 Cal.3d 308 Attach [cite_9_Cal__3d_308_.doc] from http://www.courtinfo.ca.gov/opinions People v. Turner (1994) 8 Cal.4th 137 People v. Silva (1988) 45 Cal.3d 604 C. Special Circumstance Issues 1. Murder of Peace Officer Special Circumstance The Court rejected defendant’s argument that the special circumstance of intentional murder of a peace officer performing his duties did not apply because the peace officer was not acting lawfully. The Court concluded that the officer was acting lawfully in arresting the defendant for public intoxication. Cited cases and statutes: California Penal Code, § 190.2, subd. (a)(7) People v. Jenkins (2000) 22 Cal.4th 900 Attach [cite_22_Cal__4th_900_.doc] from http://www.courtinfo.ca.gov/opinions In re Manuel G. (1997) 16 Cal.4th 805 People v. Gonzalez (1990) 51 Cal.3d 1179 People v. White (1991) 227 Cal.App.3d 886 People v. Olson (1971) 18 Cal.App.3d 592 People v. Belanger (1966) 243 Cal.App.2d 654 Mardis v. Superior Court (1963) 218 Cal.App.2d 70 People v. Lively (1992) 10 Cal.App.4th 1364 2. Escape From Custody Special Circumstance The Court rejected defendant’s argument that the special circumstance of murder for the purpose of attempting to escape was invalid because the defendant’s arrest was unlawful. According to the Court, although the defendant had not been formally booked, his arrest had been recorded in official public records and thus all the elements of the special circumstance were met. Cited cases and statutes: California Penal Code, § 190.2, subd. (a)(5) Wood v. Superior Court (1975) 46 Cal.App.3d 564 3. Lying in Wait Special Circumstance The Court rejected both defendant’s argument that the lying in wait special circumstance is unconstitutional because it fails to meaningfully narrow death eligibility as well as defendant’s argument that the evidence of lying in wait was insufficient in this case. The Court found the lying in wait circumstance applied because the defendant waited until they had driven two miles after recovering the officer’s gun before using it to shoot the officer. Cited cases and statutes: People v. Gutierrez (2002) 28 Cal.4th 1083 Attach [cite_28_Cal__4th_1083_.doc] from http://www.courtinfo.ca.gov/opinions People v. Crittenden (1994) 9 Cal.4th 83 People v. Sims (1993) 5 Cal.4th 405 People v. Roberts (1992) 2 Cal.4th 271 People v. Wader (1993) 5 Cal.4th 610 People v. Edwards (1991) 54 Cal.3d 787 People v. Edelbacher (1989) 47 Cal.3d 983 People v. Morales (1989) 48 Cal.3d 527 People v. Michaels (2002) 28 Cal.4th 486 People v. Carpenter (1997) 15 Cal.4th 312 People v. Hillhouse (2002) 27 Cal.4th 469 People v. Jurado (2006) 38 Cal.4th 72 People v. Combs (2004) 34 Cal.4th 821 D. Penalty Phase Issues 1. Challenges to Constitutionality of Death Penalty Statute The Court rejected defendant’s argument that death penalty is unconstitutional. The defendant recognized that the California Supreme Court already addressed this issue, but wanted to preserve it for appeal to the United States Supreme Court. Cited cases and statutes: Tuilaepa v. California (1994) 512 U.S. 967 People v. Harris (2005) 37 Cal.4th 310 People v. Stitely (2005) 35 Cal.4th 514 People v. Maury (2003) 30 Cal.4th 342 Attach [cite_30_Cal__4th_342_.doc] from http://www.courtinfo.ca.gov/opinions People v. Lewis (2001) 26 Cal.4th 334 People v. Jenkins (2000) 22 Cal.4th 900 Attach [cite_22_Cal__4th_900_.doc] from http://www.courtinfo.ca.gov/opinions People v. Snow (2003) 30 Cal.4th 43 People v. Box (2000) 23 Cal.4th 1153 People v. Carpenter (1997) 15 Cal.4th 312 People v. Sapp (2003) 31 Cal.4th 240 People v. Johnson (1992) 3 Cal.4th 1183 People v. Allen (1986) 42 Cal.3d 1222 People v. Bolden (2002) 29 Cal.4th 515 People v. Visciotti (1992) 2 Cal.4th 1 People v. Adcox (1988) 47 Cal.3d 207 People v. Manriquez (2006) 37 Cal.4th 547 People v. Morrison (2004) 34 Cal.4th 698 California Evidence Code, § 1150, subd. (a) People v. Carter (2003) 30 Cal.4th 1166 Ring v. Arizona (2002) 536 U.S. 584¬ Apprendi v. New Jersey (2000) 530 U.S. 466 People v. Smith (2003) 30 Cal.4th 581 People v. Ghent (1987) 43 Cal.3d 739 2. Admission of Victim Impact Evidence The Court rejected defendant’s argument that the trial court erred in allowing victim impact evidence in the penalty phase. According to the Court, the introduction of victim impact evidence has been upheld in many cases. Cited cases and statutes: People v. Lewis and Oliver (2006) 39 Cal.4th 970 Payne v. Tennessee (1991) 501 U.S. 808 People v. Boyette (2002) 29 Cal.4th 381 3. Admission of Drunken Prowling Incident The Court rejected defendant’s argument that evidence of a previous arrest should have been excluded. The Court agreed with the trial court that the incident constituted an implied threat of violence and thus was properly admitted in aggravation of penalty. Cited cases and statutes: People v. Mason (1991) 52 Cal.3d 909 People v. Farnam (2002) 28 Cal.4th 107 4. Refusal to Admit Evidence of Police Brutality The Court held that the trial court properly excluded irrelevant and extraneous evidence related to past evidence of police brutality toward the defendant. Cited cases and statutes: California Evidence Code, §§ 786, 1100, 1101 5. Refusal to Grant Penalty Phase Continuance The Court upheld the trial court’s decision not to grant a continuance as a matter solely within the sound discretion of the trial court. Cited cases and statutes: People v. Sakarias (2000) 22 Cal.4th 596 People v. Jenkins (2000) 22 Cal.4th 900 Attach [cite_22_Cal__4th_900_.doc] from http://www.courtinfo.ca.gov/opinions People v. Nesler (1997) 16 Cal.4th 561 6. Factor (a) and Racial Bias The Court rejected defendant’s argument that the vagueness of factor (a) allowed the jury to base its decision on racial grounds. The Court pointed out that the constitutionality of factor (a) has been repeatedly upheld in prior decisions. Cited cases and statutes: Tuilaepa v. California (1994) 512 U.S. 967 People v. Harris (2005) 37 Cal.4th 310 People v. Stitely (2005) 35 Cal.4th 514 People v. Maury (2003) 30 Cal.4th 342 Attach [cite_30_Cal__4th_342_.doc] from http://www.courtinfo.ca.gov/opinions People v. Lewis (2001) 26 Cal.4th 334 People v. Jenkins (2000) 22 Cal.4th 900 Attach [cite_22_Cal__4th_900_.doc] from http://www.courtinfo.ca.gov/opinions 7. Violations of International Law The Court held that a death sentence does not violate international law. Cited cases and statutes: People v. Tafoya (2007) 42 Cal.4th 147 People v. Hillhouse (2002) 27 Cal.4th 469 8. Cumulative Prejudice The Court did not find any substantial error in any phase of the trial that would amount to enough to overturn the death sentence. Cited cases and statutes: People v. Hawkins (1995) 10 Cal.4th 920 Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.) 2004 I.C.J. 12 In re Cruz, S129510