IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. GA029611-01
A jury convicted defendant Jose Gonzalez of the first degree murders of
Jose Albert Rodriguez and Hector Ricardo Gonzalez Martinez and of being a felon
in possession of a firearm. (Pen. Code, §§ 187, 12021, subd. (a)(1).)1 It found
true the special circumstance of multiple murder and that defendant personally
used a firearm in the commission of the murders. (§§ 190.2, subd. (a)(3), 12022.5,
subd. (a).) That jury was unable to reach a penalty verdict. After a penalty retrial,
a second jury returned a verdict of death. The court denied the automatic motion
to modify the verdict (§ 190.4) and sentenced defendant to death. This appeal is
automatic. (§ 1239, subd. (b).) We affirm defendant’s convictions and the special
circumstance finding but reverse the death sentence.
All further statutory references are to the Penal Code unless otherwise
I. THE FACTS
A. Guilt Phase
1. Prosecution Evidence
During the evening of June 17, 1996, seven men—Jose Gutierrez, Juan
Pablo Rocha, brothers Mario, Juan, and Oracio Jimenez, and victims Jose Albert
Rodriguez and Hector Ricardo Gonzalez Martinez—were working on a car in the
driveway of the Jimenez brothers’ house at 835 North Cordova Avenue, in an area
of East Los Angeles that the Lopez Maravilla street gang claimed as its home
“turf.” At some point, a man, identified as defendant, fired two shots from a rifle
towards the men, hitting Rodriguez and Martinez. Both Rodriguez and Martinez
died of single gunshot wounds to the body. Defendant was a member of a street
gang, the Lott Stoners 13, that was a rival to the Lopez Maravilla gang. He had
“Lott 13” tattooed on his neck and, at least by the time of trial, also on the back of
The prosecution presented two kinds of evidence that defendant was the
gunman: (1) eyewitness identifications that were, with one exception, repudiated
at trial; and (2) evidence, also repudiated at trial, that defendant told a fellow gang
member that he was the shooter.
Juan Rocha identified defendant as the gunman at trial. He had previously
selected defendant’s photograph from a photographic lineup and then defendant
himself from a live lineup.
Oracio Jimenez selected defendant’s photograph from a photographic
lineup and then identified defendant from a live lineup as the gunman. At the live
lineup, he said he was “100 percent sure” of his identification. He did not identify
anyone at the preliminary hearing or at trial. At the preliminary hearing, he said
that he was “terrified” and therefore would not identify anyone in court. At trial,
he said that defendant was not the gunman, but he also said that he did not know
what the gunman looked like. He said he had selected defendant’s photograph
because everyone was saying it was number two (defendant’s photograph), and he
had identified defendant at the live lineup because defendant had a gang tattoo on
the back of his head.
Mario Jimenez selected defendant’s photograph from a photographic lineup
as “look[ing] the most like the guy with the gun.” At trial, he identified no one as
the gunman. He said he had lied when he selected defendant’s photograph as
looking like the gunman, and he had done so only because of what others had told
him. He could not remember who these others were. When he selected the
photograph, he told the police that he had not spoken to anyone about the
Jose Gutierrez selected defendant’s photograph from a photographic lineup
as “look[ing] like the one that had the gun.” Later, he identified defendant from a
live lineup as the gunman. He wrote that he was “100 percent sure” of this
identification. At trial, he said he did not get a good look at the gunman, and he
did not identify anyone. He said that he had selected defendant’s photograph
“based on rumors” from “people in the street,” whose identity he could not
remember. He said he had identified defendant at the live lineup because
defendant had a gang tattoo on the back of his head. He had testified at a pretrial
hearing that defendant was not the gunman. Los Angeles County Sheriff’s
Detective Martin Rodriguez, the investigating officer, testified that after Gutierrez
so testified at the pretrial hearing, Gutierrez looked in defendant’s direction and
winked. Gutierrez denied winking at defendant.
Juan Jimenez never identified anyone as the gunman.
Homero Cardenas, like defendant a member of the Lott Stoners 13 gang,
told the police in a taped statement that defendant had told him that he, defendant,
had committed the murders. On direct examination at trial, Cardenas
acknowledged telling police this, but he said that, in fact, defendant did not tell
him who committed the murders. He also said that it was hard for him to testify
because he “might feel something might happen to me after” his testimony. The
next day, on redirect examination, Cardenas testified that defendant did tell him
that he was the gunman. Then, on recross-examination, he changed his testimony
again. He said that he had just lied on redirect examination, and that his testimony
the day before (that defendant had not admitted being the gunman) was the truth.
The police seized a .223-caliber Armalite rifle from under a house in Los
Angeles. Evidence indicated that the Lott Stoners 13 gang used the house to store
weapons. Ballistics analysis established that two bullet casings that the police
recovered from in front of the Jimenez residence after the shooting came from that
At the time of the shooting, none of the seven men who were at the Jimenez
house were members of a gang. Sometime after he identified defendant at the live
lineup, and before he testified at trial, Gutierrez became a member of the Lopez
Maravilla gang. Gutierrez testified that the Lopez Maravilla gang and the Lott
Stoner 13 gang do not get along.
Sergeant Al Garcia testified as an expert on street gangs in East Los
Angeles. The gangs are concerned about their “turf”—the areas in which they are
located. The Lott Stoners 13 gang and the Lopez Maravilla gang claimed turfs
that were divided by a common street. The two gangs were “bitter enemies” that
often assaulted each other. In gang culture, it was bad to be a “rat” or a “snitch,”
i.e., someone who assisted law enforcement as a witness or an informant.
Sergeant Garcia testified that such persons are often intimidated not to testify. It
does not matter whether a person provides information against a fellow gang
member or a rival gang member. Either way, the person is considered to be
assisting law enforcement and might be intimidated. Sergeant Garcia also testified
that, in his experience, a member of the Lott Stoners 13 gang would not falsely tell
police that a fellow Lott Stoners 13 gang member had committed a crime.
The parties stipulated that defendant had a prior felony conviction.
2. Defense Evidence
Defendant presented evidence that the police first received a call about the
shooting at 8:49 p.m., on June 17, 1996, and that, based on the time of the call, the
incident itself occurred around 8:45 p.m. Edwin Krupp, an astronomer, testified
that in Los Angeles on June 17, 1996, sunset occurred at 8:06 p.m. That night, the
end of “evening civil twilight,” meaning “the time that we generally say it is
dark,” was 8:35 p.m. A person would not notice any difference between the
lighting at 8:35 p.m. and 8:45 p.m. The presence or absence of artificial light
would affect how a person could see at that time.2
Dr. Walter Fierson testified about defendant’s impaired vision. Defendant
has only one functioning eye. His uncorrected vision in that eye was 20/60.
George Little, a defense investigator, testified about an interview he and defense
counsel had with Juan Rocha, the witness who consistently identified defendant as
Diana Alvarado, defendant’s longtime girlfriend, testified that defendant
was with her all day on June 17, 1996. The two arrived at defendant’s home
around 7:30 that evening and were joined by Maria Velasco and another person.
Around 9:00 p.m., the other two left, but Alvarado stayed with defendant until
some time after 10:00 p.m.
Maria Velasco testified that she and a friend were with defendant and
Alvarado the evening of June 17, 1996, until she and the friend left sometime
Oracio Jimenez had testified during the prosecution case-in-chief that a
street light was on that evening “a little bit to the left, right across the street.”
around 9:00 to 9:30. She saw Alvarado often after June 17, 1996, but the first
time Alvarado told her about defendant’s arrest for a crime committed before 9:00
p.m. on that day was in September 1996.
Detective Rodriguez testified that he spoke with defendant on July 9, 1996,
about his activities on June 17, 1996. Defendant said that Alvarado dropped him
off at his home at 8:00 p.m. that day. He never mentioned being with Maria
Velasco that day.
B. Penalty Phase
1. Prosecution Evidence
Because the penalty verdict before us was decided by a different jury than
the one that decided guilt, the prosecution presented evidence of the circumstances
of the crimes of this case. In addition, it presented evidence that on August 22,
1995, while he was a passenger in a vehicle, defendant possessed a loaded assault
pistol. As a result, defendant was convicted of possessing an assault weapon. It
also presented evidence that on two separate occasions while incarcerated awaiting
trial in this matter, defendant assaulted a fellow inmate. A week after the second
assault, defendant was searched after he got off a jail bus and before he was
returned to his jail cell. Hidden in the crotch of his pants was a three-inch piece of
metal wrapped in cloth commonly used as a stabbing instrument and described as
a “jail house shank.”
Maria and Elizabeth Rodriguez, sisters of victim Rodriguez and cousins of
victim Martinez, testified about the victims and the impact their deaths had on the
witnesses and other family members.
2. Defense Evidence
In an attempt to create a lingering doubt about his guilt for the murders,
defendant presented testimony of Oracio Jimenez and Diana Alvarado that was
similar to their guilt phase testimony. Jimenez testified that at the time of the
shooting it was getting dark and he did not get a good look at the gunman.
Blanca Gonzalez, defendant’s mother, testified that defendant is blind in his
left eye and cannot hear in his left ear, as a result of a street beating when he was
16 years old. She believes he does not deserve to be put to death.
A. Guilt Phase
1. Denial of Motion to Suppress Identification Evidence
Before trial, defendant moved to suppress the pretrial identifications on the
basis that the photographic and live lineups were impermissibly suggestive. The
court denied the motion after an evidentiary hearing. Defendant contends the
“ ‘In deciding whether an extrajudicial identification is so unreliable as to
violate a defendant’s right to due process, the court must ascertain (1) “whether
the identification procedure was unduly suggestive and unnecessary,” and, if so,
(2) whether the identification was nevertheless reliable under the totality of the
circumstances.’ ” (People v. Carpenter (1997) 15 Cal.4th 312, 366-367.) “The
defendant bears the burden of demonstrating the existence of an unreliable
identification procedure.” (People v. Cunningham (2001) 25 Cal.4th 926, 989.)
The trial court found neither the photographic nor the live lineup unduly
suggestive. We agree. Accordingly, we need not consider whether the
identifications were nevertheless reliable.
We review deferentially the trial court’s findings of historical fact,
especially those that turn on credibility determinations, but we independently
review the trial court’s ruling regarding whether, under those facts, a pretrial
identification procedure was unduly suggestive. (People v. Kennedy (2005) 36
Cal.4th 595, 608-609.)
The photographic lineup here contained photographs of six different
persons, including defendant. Defendant claimed at trial that this lineup was
impermissibly suggestive because (1) he was the only one wearing “gang-type”
clothing, (2) he “ha[d] a droopy eye in the photo,” and (3) his photograph was
discolored. The trial court disagreed. It found “nothing about any of the
photographs, individually or taken together as a whole, that would suggest that the
defendant’s picture . . . be picked over the others.” After viewing the lineup, we
agree. “Because human beings do not look exactly alike, differences are
inevitable. The question is whether anything caused defendant to ‘stand out’ from
the others in a way that would suggest the witness should select him.” (People v.
Carpenter, supra, 15 Cal.4th at p. 367.) Here, nothing in the lineup suggested that
the witness should select defendant. As the trial court found, nothing about
defendant’s clothing suggested his photograph should be selected. We cannot
discern any significant distinctiveness about defendant’s eye. In any event, none
of the witnesses described the gunman as having a distinctive eye, so any
distinctiveness in the photograph would not suggest the witness should select that
photograph. Moreover, “it would be virtually impossible to find five others who
had” a similar eye “and who also sufficiently resembled defendant in other
respects.” (Ibid.) Finally, any discoloration in defendant’s photograph would not
suggest it should be selected.
Defendant claims the live lineup was suggestive because only he had a Lott
Stoners 13 tattoo on the back of his head. He argues that the lineup officials
should have covered the tattoo so that the witnesses could not see it. Evidence at
the evidentiary hearing indicates that the witnesses could observe the tattoo when
defendant turned to the right and left, and when he walked along the platform. In
claiming this circumstance rendered the live lineup impermissibly suggestive,
defendant relies in part on the testimony of Jose Gutierrez, who testified (as he
would later testify at trial) that he identified defendant because of the tattoo.
However, the trial court expressly found Gutierrez not credible. It noted for the
record that when Gutierrez testified at the hearing that he could not identify
defendant, “he winked with his left eye at [defendant], which the court observed.”
Based on this wink, which it viewed as Gutierrez “saying to the defendant, I’m
following the rules of the jail and the street and I’m not going to become a snitch
on you in the courtroom,” and Gutierrez’s general courtroom demeanor, the court
found that Gutierrez was “not testifying truthfully as to his repudiation of earlier
identifications he made of the defendant from the photographs and lineup.” We
accept this credibility determination. (People v. Barnes (1986) 42 Cal.3d 284,
In any event, defendant’s tattoo did not make the live lineup impermissibly
suggestive. None of the witnesses observed a tattoo on the gunman’s head.
Neither before nor at the live lineup did any witness suggest to any of the
authorities conducting the lineup that a tattoo was or might be relevant to his
identification. It was only after the lineup, when some of the witnesses repudiated
their identifications, that they first said the tattoo was significant. Under the
circumstances, the tattoo did not itself suggest that defendant should be selected,
and the failure to cover it did not render the procedure impermissibly suggestive.
Whether the witnesses were truthful when they identified defendant or when they
later repudiated those identifications presented credibility questions for the jury to
resolve. But presenting the evidence to the jury for its resolution did not violate
2. Admission of Testimony of Gang Expert
Sergeant Al Garcia testified as an expert on street gangs in East Los
Angeles. Defendant objected to some of the testimony on various grounds. The
court sustained some of the objections and maintained control over the nature and
extent of the expert testimony, but it also overruled many of the objections.
Defendant contends the court erred in several regards.
In general, this court and the Courts of Appeal have long permitted a
qualified expert to testify about criminal street gangs when the testimony is
relevant to the case. “Under Evidence Code section 801, expert opinion testimony
is admissible only if the subject matter of the testimony is ‘sufficiently beyond
common experience that the opinion of an expert would assist the trier of fact.’
(Id., subd. (a).) The subject matter of the culture and habits of criminal street
gangs, of particular relevance here, meets this criterion.” (People v. Gardeley
(1996) 14 Cal.4th 605, 617; see also People v. Ochoa (2001) 26 Cal.4th 398, 438;
People v. Valdez (1997) 58 Cal.App.4th 494, 506; People v. Olguin (1994) 31
Cal.App.4th 1355, 1370 [“The use of expert testimony in the area of gang
sociology and psychology is well established.”].) “Trial courts exercise discretion
in determining both the admissibility of evidence under Evidence Code section
352 [citation] and a witness’s expert status [citation].” (People v. Ochoa, supra, at
p. 437.) As we explain, the court acted within its discretion in this case.
At one point, the prosecutor asked the witness, “Assuming a member of
Lopez Maravilla was called to testify against a rival gang member, a Lott Stoner,
do you have an opinion as to whether or not there would be intimidation against
the gang member who was called to testify by his own gang as well as any other
gang?” The court overruled defendant’s objection, and the witness answered,
“Definitely.” The witness further testified that the person’s own gang as well as
the rival gang would be doing the intimidating. The prosecutor then asked,
“Assuming that a member of Lott Stoners was called to testify in a case involving
a Lott Stoner as a defendant, do you have an opinion as to whether or not there
would be intimidation from the Lott Stoners gang to the witness?” The court
overruled defendant’s objection, and the witness said, “That witness’[s] safety
would be in great jeopardy.” Defendant objected again. The court and parties
conferred outside the hearing of the jury, after which the court permitted the
witness to testify that, assuming a member of the Lott Stoner 13 gang was called
to testify against a fellow gang member, there would be intimidation by the gang
members. On further questioning, the witness testified that this opinion was based
on his experience at the “East L.A. station.” He elaborated, “What happens is that
every morning I review all reports. I have six investigators that work for me, and
a lot of times they prep me on any incidents of witness intimidations. Many times
we have had to go to court because of intimidation of witnesses and provide
security. Also, there was one incident where a gang member who assisted in an
investigation was murdered by his own gang for cooperating with law
enforcement.” At this point, defendant objected and moved to strike the testimony
and for a mistrial. After another hearing at the sidebar, the court overruled the
objection and mistrial motion.
Regarding this testimony, defendant argues that the court erred in
permitting Sergeant Garcia “to make unqualified assertions about how all relevant
gang members would behave in a particular set of circumstances.” The Attorney
General argues that to the extent defendant bases this argument on the fact that the
witness used the word “definitely,” the claim is not cognizable because defendant
failed to object to that word and move to strike it. We disagree. Although a party
must object on the specific ground asserted on appeal (Evid. Code, § 353, subd.
(a)), defendant’s many objections, both before the witness testified and during the
actual testimony, made reasonably clear he was objecting on grounds that included
those raised on appeal. On the merits, however, we find no abuse of discretion.
This testimony was quite typical of the kind of expert testimony regarding
gang culture and psychology that a court has discretion to admit. Whether
members of a street gang would intimidate persons who testify against a member
of that or a rival gang is sufficiently beyond common experience that a court could
reasonably believe expert opinion would assist the jury. “It is difficult to imagine
a clearer need for expert explication than that presented by a subculture in which
this type of mindless retaliation promotes ‘respect.’ ” (People v. Olguin, supra, 31
Cal.App.4th at p. 1384; accord, People v. Gonzalez (2005) 126 Cal.App.4th 1539,
1551.) Sergeant Garcia’s testimony was relevant to help the jury decide which
version of the testimony was truthful: the eyewitnesses’ initial identifications of
defendant as the shooter, and Cardenas’s initial statement that defendant admitted
being the shooter, or the later repudiations of those identifications and that
statement. “Evidence that a witness is afraid to testify or fears retaliation for
testifying is relevant to the credibility of that witness and is therefore admissible.
[Citations.] An explanation of the basis for the witness’s fear is likewise relevant
to her credibility and is well within the discretion of the trial court. [Citations.]”
(People v. Burgener (2003) 29 Cal.4th 833, 869; see also People v. Ward (2005)
36 Cal.4th 186, 211) Evidence of possible intimidation would help explain why
the witnesses might repudiate earlier truthful statements. Contrary to defendant’s
argument, the fact that the witness used the word “definitely” in response to a
question whether he had an opinion on this matter does not make the testimony
inadmissible. Opinions that are otherwise admissible are not made inadmissible
merely because they are definite.
Relying primarily on People v. Killebrew (2002) 103 Cal.App.4th 644,
defendant argues that Sergeant Garcia did not merely testify about “gang customs
or habits in general” but improperly testified “that the witnesses were being
intimidated, not just that they may be intimidated by other gang members.” As did
the court in People v. Gonzalez, supra, 126 Cal.App.4th 1539, we read Killebrew
as merely “prohibit[ing] an expert from testifying to his or her opinion of the
knowledge or intent of a defendant on trial.” (People v. Gonzalez, supra, at p.
1551; see also People v. Ward, supra, 36 Cal.4th at pp. 209-210.)3 Even if we
assume, without deciding, that Killebrew is correct in this respect, it has no
relevance here. Sergeant Garcia merely answered hypothetical questions based on
other evidence the prosecution presented, which is a proper way of presenting
expert testimony. “Generally, an expert may render opinion testimony on the
basis of facts given ‘in a hypothetical question that asks the expert to assume their
truth.’ ” (People v. Gardeley, supra, 14 Cal.4th at p. 618; see also People v.
Gonzalez, supra, at p. 1551, fn. 4.) The witness did not express an opinion about
whether the particular witnesses of this case had been intimidated. (See also
People v. Olguin, supra, 31 Cal.App.4th at p. 1371 [permitting expert testimony
that “focused on what gangs and gang members typically expect and not on [one
of the defendant’s] subjective expectation in this instance”].)
People v. Killebrew, supra, 103 Cal.App.4th 644, is somewhat unclear in
this regard. Although its legal discussion states that the expert “informed the jury
of his belief of the suspects’ knowledge and intent on the night in question,” its
factual account states that “[t]hrough the use of hypothetical questions, Darbee
[the expert] testified that each of the individuals in the three cars” had certain
knowledge and intent. (Id. at p. 658.) The opinion never specifically states
whether or how the expert referred to specific persons, rather than hypothetical
persons. Obviously, there is a difference between testifying about specific persons
and about hypothetical persons. It would be incorrect to read Killebrew as barring
the questioning of expert witnesses through the use of hypothetical questions
regarding hypothetical persons. As explained in People v. Gonzalez, supra, 126
Cal.App.4th at page 1551, footnote 4, use of hypothetical questions is proper.
It is true that Sergeant Garcia’s opinion, if found credible, might, together
with other evidence, lead the jury to find the witnesses were being intimidated,
which in turn might cause the jury to credit their original statements rather than
their later repudiations of those statements. But this circumstance makes the
testimony probative, not inadmissible. (People v. Gonzalez, supra, 126
Cal.App.4th at p. 1551 [“This evidence, coupled with the evidence that appellant
was a gang member, may have led the jury to the ineluctable conclusion that
appellant intended to kill Cruz, but that does not render it inadmissible.”].) “The
law does not disfavor the admission of expert testimony that makes
comprehensible and logical that which is otherwise inexplicable and incredible.”
Defendant also argues that the trial court erroneously allowed Sergeant
Garcia “to opine on whether or not the witnesses against [him] were telling the
truth.” He bases this argument partly on the evidence regarding gang intimidation
discussed above and partly on the witness’s testimony that, because aiding law
enforcement would cause one to be labeled a “rat” or “snitch,” a gang member
would not lie to the police when implicating a fellow gang member in a crime. He
particularly challenges the witness’s testimony that, in his experience and training,
he had never known a gang member, including a member of the Lott Stoner 13
gang, “to lie about a fellow gang member making him a rat or a snitch.” He
argues that this testimony was an impermissible opinion on the credibility of a
particular witness. We disagree. Sergeant Garcia was not asked, and did not
testify about, any particular witness in this case. He merely provided expert
testimony regarding the gangs in general. It was up to the jury to determine how
much to credit this testimony and, if it found it credible, to apply it to the rest of
the evidence it heard. Again, it is true that this testimony, if found credible, might,
together with other evidence, lead the jury to find that the witnesses’ original
statements incriminating defendant were truthful. But this circumstance does not
render the testimony inadmissible.
Finally, defendant contends the court erred in denying a trial motion to
strike Sergeant Garcia’s testimony. The issue arose in the following context. On
cross-examination, defense counsel elicited from Sergeant Garcia that his expert
opinion rested in part on information he had “received in the street.” Then came
this colloquy (questions by defense counsel, answers by Sergeant Garcia):
Question: “And you would tell us that the people that you spoke with have
consistently given you truthful and accurate information which you used to form
the basis of your expert opinion?”
Answer: “Not always.”
Question: “You can’t tell when you are getting truthful, accurate
information, can you?”
Question: “You don’t know if someone is lying or perhaps even making a
mistake when you get information from them, let us [sic] alone if it was truthful,
Answer: “That is true, somewhat.”
Question: “So sometimes even errors or mistakes can be the basis of
misinformation as well as lies, because it is a human thing, would you agree?”
Answer: “That is correct.”
Later, outside the presence of the jury, defendant moved to “disqualify
[Sergeant Garcia] as an expert in the area of gangs.” The court denied the motion.
Defendant contends the court erred. He correctly notes that expert
testimony must be based on “material of a type that is reasonably relied upon by
experts in the particular field in forming their opinions.” (People v. Gardeley,
supra, 14 Cal.4th at p. 618.) He argues that because of Sergeant Garcia’s
admissions quoted above, his testimony was based on unreliable material. The
Attorney General argues, first, that defendant has forfeited the issue. We agree in
part. Defendant did not object that Sergeant Garcia’s testimony was based on
unreliable material at any time before he finally moved to disqualify him as an
expert. Indeed, before the witness testified, defense counsel told the court that he
might challenge Sergeant Garcia’s expert qualifications by cross-examination in
front of the jury (as he later did), but he would not “raise it as an issue that the
court will have to deal with as to the qualifications.” Accordingly, although the
record contains some information regarding Sergeant Garcia’s qualifications as an
expert, it is not necessarily complete in this regard. Because defendant did not
challenge Sergeant Garcia’s qualifications at trial, he may not do so on appeal.
(People v. Williams (1997) 16 Cal.4th 153, 194.)4
All that remains of the current claim is whether the cross-examination that
defendant cites, by itself, required the court to disqualify the witness. It did not.
Sergeant Garcia merely admitted the obvious—that people “in the street”
sometimes lie. But he never said that he based his opinion solely on unreliable
information. Indeed, Sergeant Garcia also testified that his opinion was not based
on information from a single person but on “corroborative information from other
The record indicates that Sergeant Garcia had previously qualified as an
expert on East Los Angeles gangs “numerous times in court.” He had been a
deputy sheriff for 21 years, all of which were spent working with gangs. He had
been the “head” of “operation safe street,” a “gang unit” in East Los Angeles, for
five years. He had “extensive” experience dealing with gangs in East Los
Angeles. “I go out in the field and do proactive work. I talk to a lot of gang
members. I lecture to different community organizations regarding gang activity
within the Los Angeles area. I have attended . . . seminars presented by the
California gang investigator’s association.” Even had there been an objection, this
testimony alone would seem to make Sergeant Garcia well qualified as an expert
on East Los Angeles street gangs. (Cf. People v. Williams, supra, 16 Cal.4th at p.
citizen informants, other evidence that we have at hand, reports, people from the
community.” A gang expert’s overall opinion is typically based on information
drawn from many sources and on years of experience, which in sum may be
reliable. (People v. Gardeley, supra, 14 Cal.4th at p. 620.) We see no abuse of
discretion in the court’s refusal to strike the testimony.
3. Admission of a Photograph of the Crime Scene
Over objection, the court admitted a photograph of the crime scene.
Defendant argues the court erred because the photograph was based on
inadmissible hearsay and was misleading.
At a hearing outside the presence of the jury, Detective Rodriguez, the
investigating officer, testified that in the photograph he was standing where Oracio
and Mario Jimenez had told him the gunman was standing. Previously, when
shown that photograph, Oracio had testified the gunman was in a different
location, then he said he was “not sure” where the gunman was in relation to
where a person in the photograph (presumably Detective Rodriguez) was standing.
Mario testified that the gunman was standing in the street, a different position than
in the photograph.
Defendant argues that the previous statements of Oracio and Mario were
hearsay. However, prior inconsistent statements of a witness are admissible as an
exception to the hearsay rule. (Evid. Code, §§ 770, 1235; People v. Sapp (2003)
31 Cal.4th 240, 296.) Defendant claims the previous statements were not
inconsistent because at trial the witnesses merely said they could not remember
where the gunman was standing. The witnesses did claim lack of memory on a
number of occasions, but they also gave clearly inconsistent testimony. Moreover,
to the extent a claimed lack of memory amounts to deliberate evasion, as the court
could readily have found here, inconsistency is implied. (People v. Sapp, supra, at
p. 296.) Defendant’s hearsay objection lacks merit.
Defendant also contends the court should have excluded the photograph as
irrelevant and, if relevant, unduly prejudicial under Evidence Code section 352
because it was misleading in three respects: (1) the location of the photographer
was unknown, (2) Detective Rodriguez was taller than the gunman, and (3) the
photograph was taken with a flash so it did not show the actual lighting conditions.
“The trial court has broad discretion both in determining the relevance of evidence
and in assessing whether its prejudicial effect outweighs its probative value.”
(People v. Horning (2004) 34 Cal.4th 871, 900.) Here, the court carefully
exercised its discretion. Detective Rodriguez testified that the photographer was
standing behind a certain car, although he was not sure exactly where. As the trial
court noted, the photograph was offered to show where the witnesses had said the
gunman was standing. It was clearly probative on this point even if the exact
position of the photographer was not known. It was not offered to show the height
of the gunman or the lighting conditions. The court invited defense counsel to
cross-examine Detective Rodriguez on these points, and he did. The jury learned
of, and could readily understand, the differences between the photograph and the
crime scene. Hence, the court acted within its discretion in admitting the
photograph as illustrating where the witnesses placed the gunman. (People v.
Rodrigues (1994) 8 Cal.4th 1060, 1114-1115 [inaccuracies in a videotape,
including different lighting conditions, did not make it inadmissible].)
4. Refusal to Exclude the Investigating Officer from the Courtroom
Before Homero Cardenas testified, defendant moved to exclude Detective
Rodriguez from the courtroom during that testimony because Detective Rodriguez
had previously interviewed Cardenas. When the district attorney stated that
Detective Rodriguez was his investigating officer, the court denied the motion.
Defendant contends the court erred. It did not. Evidence Code section 777,
subdivision (a), permits the court to exclude witnesses from the courtroom, but
subject to subdivisions (b) and (c) of that section. Subdivision (b) prohibits the
court from excluding a “party to the action.” Subdivision (c) provides, “If a
person other than a natural person is a party to the action, an officer or employee
designated by its attorney is entitled to be present.” The word “person” includes a
“public entity” (Evid. Code, § 175) such as the People of the State of California.
Therefore, the deputy district attorney, the attorney for the People, could designate
an officer or employee who was “entitled to be present.” The deputy district
attorney designated Detective Rodriguez. Accordingly, Detective Rodriguez was
entitled to be present. (People ex rel. Curtis v. Peters (1983) 143 Cal.App.3d 597
[excluding the People’s investigating officer was prejudicial error].)
Defendant claims that not excluding Detective Rodriguez violated various
of his constitutional rights. In effect, he argues that Evidence Code section 777,
subdivision (c), is unconstitutional as applied to him. He cites no authority for this
proposition, and we are aware of none. Just as defendant himself, a party to the
action, was entitled to be present to assist his attorney, so, too, was the prosecutor
entitled to the presence of an investigating officer. The fact that Detective
Rodriguez had interviewed Cardenas does not change this. Investigating officers
often interview witnesses.
5. Alleged Exclusion of a Prior Statement of a Defense Witness
During the redirect examination of the defense alibi witness Maria Velasco,
defense counsel questioned her about a statement dated September 11, 1996, that
she had apparently written. Outside the presence of the jury, the district attorney
objected that he had not been provided discovery of the statement in violation of
discovery rules. Defense counsel claimed he had provided the statement. After
further discussion, the court said that “until the problem is solved . . . I am going
to order that no reference be made to the statement.” A short time later, the court
reiterated, “I am going to order at least for the time being that no reference be
made to that document.” The witness was then excused but ordered to remain on
call. Defendant never again sought to use the statement.
Defendant contends the court erred “when it refused to allow [him] to
present evidence of a prior consistent statement by defense witness Maria
Velasco.” However, the court did not refuse to permit defendant to present the
evidence. It merely ordered use of the statement be postponed pending resolution
of the discovery problem. Doing so was within the court’s discretion. “A trial
court has inherent as well as statutory discretion to control the proceedings to
ensure the efficacious administration of justice.” (People v. Cox (1991) 53 Cal.3d
618, 700; see Pen. Code, § 1044, Evid. Code, § 765.) Nothing prevented defense
counsel from attempting to use the statement later. We do not know why counsel
chose to drop the matter rather than bring it up again, but we see no error of which
defendant can complain. Moreover, the statement was brief and consistent with
Velasco’s trial testimony. The fact that Velasco said the same thing in September
1996, approximately three months after the crime, would not have significantly
added to her credibility. We see no prejudice even if we were to assume that the
court should have allowed defendant to question Velasco about it from the
6. Exclusion of a Videotape of the Crime Scene
Defendant sought to admit a videotape of the crime scene. After viewing
the videotape and hearing evidence, the court excluded it. Defendant contends the
court erred. We disagree.
Defendant offered the videotape solely to show the lighting conditions at
the time of the shooting. In making its ruling, the court reviewed the evidence on
this question. One defense expert witness testified that the minimum amount of
light necessary for a video camera to record is 1.8 lux, but that the human eye can
see with even less than that amount of light. As the court noted, the witness
further testified that the human eye is able to see things in the dark better than a
video camera regardless of the lux lighting. Based on evidence presented at the
evidentiary hearing, the court also noted other differences between the videotape
and the actual lighting conditions at the time of the crime. It said that “[b]ecause
the purpose of the film is to demonstrate to the jury the lighting conditions, I have
come to the conclusion that there are too many differences in this case for a proper
foundation to meet the test.” It found that “because of the number of differences
and dissimilarities in what took place on June 5, 1997 [the day the videotape was
made], I have great fear that the jury is going to be misled.” It concluded, “Based
on the testimony and the perceived differences, as well as the inability of the
camera to recreate accurately the ability of the human eye under the same or
similar circumstances, that this videotape will mislead the jury, and I am going to
find that [the] foundation has not been sufficiently made and order it to be
“To be admissible in evidence, an audio or video recording must be
authenticated. [Citations.] A video recording is authenticated by testimony or
other evidence ‘that it accurately depicts what it purports to show.’ [Citation.]”
(People v. Mayfield (1997) 14 Cal.4th 668, 747.) “In ruling upon the admissibility
of a videotape, a trial court must determine whether: (1) the videotape is a
reasonable representation of that which it is alleged to portray; and (2) the use of
the videotape would assist the jurors in their determination of the facts of the case
or serve to mislead them.” (People v. Rodrigues, supra, 8 Cal.4th at p. 1114.)
Unlike the photograph of the crime scene discussed in part II. A. 3., ante, which
reasonably portrayed that for which it was offered—to illustrate where some of the
witnesses had said the gunman was standing—the videotape did not portray that
for which it was offered—to show the actual lighting conditions at the time of the
crime. “The trial court reasonably concluded that the lighting conditions portrayed
on the film were not sufficiently similar to the lighting conditions on the night of
the crime. We find no abuse of discretion.” (People v. Boyd (1990) 222
Cal.App.3d 541, 566.) In short, the court acted within its discretion when it
excluded a videotape offered to show the lighting conditions at the time of the
shooting because it did not accurately show those lighting conditions.
B. Penalty Phase
Defendant raises several penalty issues. We agree with his contention that
the prosecution’s failure to provide discovery of its rebuttal evidence requires
reversal of the death sentence. Accordingly, we do not discuss the remaining
1. Factual Background
At the first penalty trial, Father Gregory Boyle testified for the defense in
mitigation. In response to a hypothetical question, he testified that a man about 20
years of age, who was a member of the Lott 13 gang, and had been convicted of
murder and sentenced to prison for life, was capable of changing. In rebuttal to
this and other mitigating evidence, the prosecutor sought to present three items of
evidence: defendant’s 1996 conviction for “unlawful driving or taking of a
vehicle,” and the testimony of Detective Rodriguez (the investigating officer) and
Sheriff’s Deputy John Brooks. Detective Rodriguez and Deputy Brooks testified
as an offer of proof outside the presence of the jury. Deputy Brooks testified that
at one point during the guilt phase of trial, defendant told him, “in a low voice,”
that “after his guilty verdict came in he was going to get me.” Detective
Rodriguez testified that on the day of the guilt verdict, defendant commented as he
walked by Rodriguez’s table, “Here comes a killer.” Later that day, after the guilt
verdict, defendant walked past him and “turned his head, looked at me and said,
‘You’re next.’ ” After hearing the offer of proof and the arguments of counsel, the
court excluded Deputy Brooks’s testimony, finding it more prejudicial than
probative. But it admitted Detective Rodriguez’s testimony as well as the 1996
conviction for taking a vehicle.
During the second penalty phase, after the prosecutor presented its case in
aggravation, the parties requested the court to hold a hearing outside the jury’s
presence regarding the admissibility of two witnesses the defense contemplated
presenting in mitigation: Father Boyle and Father George Horan. Defense
counsel stated that he had given the prosecutor in discovery a copy of Father
Horan’s statement, and that the prosecution already knew about Father Boyle’s
testimony from the first trial. Later, defense counsel made an additional offer of
proof as to these witnesses. Later still, Father Horan testified outside the jury’s
presence as an additional offer of proof.
Father Horan testified that he is a Catholic priest with considerable
experience working with jail and prison inmates. He testified about programs in
prison that can rehabilitate inmates. He also testified that he had seen
“tremendous changes” among inmates who face execution or life sentences.
Additionally, he testified about defendant himself. He felt that defendant could
change for the better in prison. Defendant offered Father Horan as “an expert who
is familiar with change and the possibility of change in the prison.” The court
limited the scope of Father Horan’s testimony in certain respects, but it ruled that
Father Horan could testify about defendant personally and also as an expert
regarding inmates under a sentence of death or life without the possibility of
At the hearing, the parties and court also discussed the nature of rebuttal
evidence the court might permit if defendant presented this mitigating evidence.
At one point, the prosecutor stated that under section 190.3, he did not have to
inform defense counsel “what type of rebuttal evidence I intend to put on in the
penalty phase.” Defense counsel disagreed. He argued that it appeared the
prosecutor was saying that the trial was “a crap shoot,” and that “[w]e [the People]
won’t tell you what we have, but you have to tell us what you have and what you
know.” He explained, “I am expected to make decisions that have an effect on my
client’s life or death . . . without knowing or having a clue as to whether the
People have any witnesses or don’t have any witnesses or what it goes to.” He
asked “that the court require of the People to make an offer of proof as to any
rebuttal evidence that they may have so we can make an informed decision as to
what to put on at this phase of the defendant’s case.” As authority, counsel cited
“the fundamental fairness in the criminal justice system” and the defendant’s
“opportunity to have a fair trial.” When the prosecutor continued to argue that
under section 190.3, he did not have to provide discovery of rebuttal evidence,
defense counsel responded that any such interpretation of that section would make
it unconstitutional. Counsel also argued that “a fair reading of [section] 190.3 is
that they don’t have to do it [provide discovery of rebuttal witnesses] prior to trial
because . . . the other material was supposedly disclosed well in advance of trial,
but we’re in trial. We’re in the penalty phase. We’re right up to the point where
the People are going to have to fish or cut bait. Do you have anything or not?
And I think by now they should be required to disclose.”
Citing section 190.3, the court denied defendant’s request to order the
prosecution to provide discovery of its intended rebuttal evidence. After further
discussion, defense counsel requested and was granted a moment to confer with
his cocounsel. After an off-the-record conference with cocounsel, defense counsel
stated that “I have decided to do what I feel best in the case, and that is not to call
Father Horan.” Neither Father Horan nor Father Boyle testified in mitigation.
Defendant contends the court prejudicially erred in not requiring the
prosecutor to provide discovery of what evidence it intended to present in rebuttal
to the proffered testimony of Father Boyle or Father Horan. We agree.
The fourth paragraph of section 190.3, the provision on which the
prosecutor and court relied in refusing to provide or require discovery of intended
rebuttal evidence, requires the prosecution to provide pretrial notice to the
defendant of the evidence it intends to introduce in aggravation at the penalty
phase of a capital trial. That paragraph also states, however, “Evidence may be
introduced without such notice in rebuttal to evidence introduced by the defendant
in mitigation.” Thus, rebuttal evidence is not subject to the advance notice
requirement of section 190.3. (People v. Mitcham (1992) 1 Cal.4th 1027, 1072-
1073.) But this does not mean that the prosecutor never has to provide discovery
of its intended penalty phase rebuttal evidence.
The trial of this case was governed by section 1054 et seq., adopted as part
of Proposition 115 in 1990, which generally provides for reciprocal discovery in
criminal cases. (See Izazaga v. Superior Court (1991) 54 Cal.3d 356 (Izazaga).)
These discovery provisions and section 190.3 concern different matters. Section
190.3 provides for pretrial notice, not discovery. Its fourth paragraph requires
only that “notice of the evidence to be introduced [be] given to the defendant
within a reasonable period of time as determined by the court, prior to trial.” “The
statute does not require production of the evidence, however, but notice of it.”
(People v. Roberts (1992) 2 Cal.4th 271, 330.) Thus, the notice provision permits
the defense to know what incidents will be used against it at trial, but it does not
itself provide for, or preclude, discovery. The discovery provisions coexist with
this notice provision. The fact that the failure to provide pretrial notice of rebuttal
evidence does not preclude its admission (§ 190.3) does not make rebuttal
evidence exempt from ordinary rules of discovery. We must give effect to both
section 190.3 and the discovery provisions.
In Izazaga, supra, 54 Cal.3d 356, we interpreted Proposition 115’s
discovery provisions and upheld them against constitutional challenge. One of the
arguments against its constitutionality that we addressed at length was that,
although the statutory scheme required the defense to provide to the prosecution
discovery regarding persons (other than the defendant) that it “intends to call as
witnesses at trial” (§ 1054.3, subd. (a)), it did not require the prosecution to
provide similar discovery regarding persons it intended to call in rebuttal. We
recognized that the United States Supreme Court had held that “when the
prosecution is allowed discovery of the defense, that discovery must be reciprocal.
[(Citing Wardius v. Oregon (1973) 412 U.S. 470, 474.)] In Wardius the Supreme
Court held that under the due process clause, a criminal defendant cannot be
compelled by discovery procedures to reveal his alibi defense in the absence of
fair notice that he would have the opportunity to discover the prosecution’s
rebuttal witnesses.” (Izazaga, supra, at p. 373.) Accordingly, “[t]he due process
clause requires notice that the defendant will have the opportunity to discover the
prosecutor’s rebuttal witnesses.” (Id. at p. 375.)
We “conclude[d] that the new discovery chapter affords defendants
sufficient rights of reciprocal discovery to meet the requirements of the due
process clause.” (Izazaga, supra, 54 Cal.3d at p. 373.) “Given that the due
process clause mandates reciprocity when the prosecution obtains discovery
materials from the defense [citation], and given that the new discovery chapter
provides for prosecutorial discovery of defense evidence (see Pen. Code,
§ 1054.1 . . . ), it follows that the new discovery chapter should, if possible, be
interpreted as providing such reciprocity.” (Ibid., fn. omitted.) We noted “that the
enumeration of a criminal defendant’s discovery rights under section 1054.1 does
not specify that rebuttal witnesses are included. However, the only reasonable
interpretation of the requirement that the prosecution disclose ‘[t]he names and
addresses of persons the prosecutor intends to call as witnesses at trial’ [(§ 1054.1,
subd. (a))] is that this section includes both witnesses in the prosecution’s case-in-
chief and rebuttal witnesses that the prosecution intends to call.” (Id. at p. 375.)
We went on to explain “that the prosecution’s right to discover defendant’s
witnesses under section 1054.3 is triggered by the intent of the defense to call that
witness. Thus, the disclosure by the defense of its witnesses under section 1054.3
signals to the prosecution that the defense ‘intends’ to call those witnesses at trial.
It follows that the prosecution must necessarily ‘intend’ to call any of its witnesses
who will be used in refutation of the defense witnesses if called. A prosecutor
cannot ‘sandbag’ the defense by compelling disclosure of witnesses the defense
intends to call, and then in effect redefining the meaning of ‘intends’ when it
comes time to disclose rebuttal witnesses. The same definition applies to both the
prosecution and the defense and thereby assures reciprocity. A disclosure of
witnesses under section 1054.3 thus triggers a defendant’s right to discover
rebuttal witnesses under section 1054.1, fulfilling the requirement of reciprocity
under Wardius [v. Oregon], supra, 412 U.S. 470.” (Izazaga, supra, 54 Cal.3d at
pp. 375-376, fn. omitted.)
Izazaga, supra, 54 Cal.3d 356, was not a capital case. But any doubt that
the discovery provisions of section 1054 et seq. apply to the penalty phase of a
capital trial was dispelled in People v. Superior Court (Mitchell) (1993) 5 Cal.4th
1229. In Mitchell, the defendant had persuaded the trial court that he did not have
to give the prosecution discovery regarding the penalty phase. That court had
concluded that “section 190.3, with its specific reference to penalty phase
evidence, constituted the sole discovery provision applicable to such evidence.”
(Id. at p. 1232.) We disagreed and directed the trial court to compel reciprocal
penalty phase discovery between the prosecution and the defendant. We agreed
with the Court of Appeal, which had reached a similar conclusion, that, “[b]ecause
section 190.3 does not by its terms prohibit reciprocal discovery, section 1054,
subdivision (e), should apply.” (Id. at p. 1233.) We “conclude[d] that reciprocal
discovery is available with respect to penalty phase evidence . . . .” (Id. at p.
In light of Izazaga, supra, 54 Cal.3d 356, and People v. Superior Court
(Mitchell), supra, 5 Cal.4th 1229, the prosecution was wrong to refuse to provide
reciprocal discovery, and the trial court erred in not requiring it to do so. After
defendant provided discovery of its intent to call Father Boyle or Father Horan, or
both, in mitigation, the prosecution was obligated to provide reciprocal discovery
of “any of its witnesses who will be used in refutation of the defense witnesses if
called.” (Izazaga, supra, 54 Cal.3d at p. 375.) Here, the defense provided very
specific and focused discovery of its intended witnesses and specifically requested
discovery of any rebuttal evidence. If the prosecutor had any rebuttal he intended
to present in the event defendant actually presented the proffered evidence, he was
obligated to provide discovery of it.
The Attorney General makes two arguments why defendant may not raise
this issue on appeal, neither convincing.5 First, he points out that defense counsel
argued that “fundamental fairness” entitled him to the discovery, that section
190.3 was unconstitutional if interpreted as denying the discovery, and that a “fair
reading” of section 190.3 entitled him to the discovery. However, counsel did not
specifically cite the discovery provisions of section 1054 et seq. “Accordingly,”
the Attorney General argues, “any claim that is not based on these three theories of
discovery has been waived by [defendant’s] failure to make a timely and specific
objection at trial.” Defendant’s discovery request was reasonably specific. We
are unaware of any requirement that a party must cite a specific statute in order to
receive discovery to which it is entitled. Unlike the authority the Attorney General
cites, this is not a matter of objecting to evidence at trial, but a simple discovery
request. Not providing discovery the defense specifically requests merely because
defense counsel did not cite the right statute would be inconsistent with the high
court’s holding “that the due process clause requires ‘notice that [the defendant]
would have an opportunity to discover the State’s rebuttal witnesses.’ ” (Izazaga,
supra, 54 Cal.3d at p. 375, quoting Wardius v. Oregon, supra, 412 U.S. at p. 479.)
In any event, the arguments defense counsel made at trial are sufficient to establish
error. As we explained in Izazaga, due process requires reciprocal discovery, and,
as we held in People v. Superior Court (Mitchell), supra, 5 Cal.4th 1229, a fair
reading of section 190.3 was that it did not preclude reciprocal penalty phase
The district attorney did not argue at trial that the discovery request was
untimely, the trial court did not find the request untimely, and the Attorney
General does not argue on appeal that the request was untimely. Accordingly, we
need not consider whether defendant should have requested the discovery sooner
than he did. (See People v. Superior Court (Mitchell), supra, 5 Cal.4th at pp.
Second, the Attorney General argues that in order to challenge the court’s
denial of discovery on appeal, defendant was required to present its evidence in
mitigation and suffer whatever rebuttal the prosecution might choose to present.
He cites the rule, established in both federal and California courts, that the denial
of a motion in limine to exclude a prior conviction offered to impeach a defendant
or to limit the scope of cross-examination of a defendant is not reviewable on
appeal unless the defendant actually testifies. (Luce v. United States (1984) 469
U.S. 38; People v. Sims (1993) 5 Cal.4th 405, 454-456; People v. Collins (1986)
42 Cal.3d 378, 383-388; see generally People v. Rodrigues, supra, 8 Cal.4th at pp.
1174-1176.) This is sometimes called the “Luce rule.” He claims a similar rule
should apply to this situation. We disagree.
Although there are some similarities between this situation and that giving
rise to the Luce rule, the differences are greater than the similarities. The Luce
forfeiture rule applies to in limine motions regarding the admissibility of evidence
to impeach a testifying defendant. We summarized the reasons for this rule in
Rodrigues: “First, without the precise factual context that such testimony would
have provided, the appellate court cannot review the balance required to be drawn
between the probative value and prejudicial effect of the prior conviction.
[Citation.] Second, the trial court’s in limine ruling is necessarily tentative
because the court retains discretion to make a different ruling as the evidence
unfolds. Also, when the defendant does not testify, there is no way to know
whether the prosecutor ultimately would have used the prior conviction to
impeach: if the prosecutor’s case is strong and the defendant is impeachable by
other means, the prosecutor might elect not to use a questionable prior conviction.
Thus, any possible harm stemming from the in limine ruling is ‘ “wholly
speculative.” ’ [Citation.] Third, ‘when the trial court errs in ruling the conviction
admissible the reviewing court cannot intelligently weigh the prejudicial effect of
that error if the defendant did not testify.’ [Citation.] If such rulings were
reviewable on appeal, ‘ “almost any error would result in the windfall of automatic
reversal; the appellate court could not logically term ‘harmless’ an error that
presumptively kept the defendant from testifying.” ’ [Citation.] Finally, requiring
a defendant to testify before the trier of fact in order to preserve his objections will
also tend to discourage the making of motions in limine solely to ‘plant’ reversible
error in the record in the event of conviction. [Citation.]” (People v. Rodrigues,
supra, 8 Cal.4th at pp. 1174-1175.)
We also explained in Rodrigues that, “[i]n Sims, as in Collins, the trial court
had no occasion to ascertain the precise nature of defendant’s testimony because
he elected not to testify; the court therefore had no basis for determining whether
the probative value of the impeachment evidence would outweigh its prejudicial
effect. [Citation.] Moreover, the alleged harm was wholly speculative and the
defendant’s tactical choice not to testify had thwarted our ability to judge the
prejudicial effect of the asserted error.” (People v. Rodrigues, supra, 8 Cal.4th at
The ruling we are reviewing here was not an in limine evidentiary ruling
but the denial of discovery. Much of the reasoning supporting the forfeiture rule is
irrelevant to this situation. In ruling on, and reviewing, a discovery request,
neither we nor the trial court have to be concerned with the difficulty of balancing
probative value and prejudicial effect when the defendant does not testify. The
record is fully sufficient to conclude the court here erred in denying discovery.
The denial of discovery was not tentative, subject to change when the defendant
testified, but final. Moreover, we are not greatly concerned that defendants will
make discovery motions solely to plant error into the record. Some of the
concerns regarding the difficulty of making a harmless error determination do
apply here. In Sims, we quoted a federal court decision noting that when the
defendant does not testify, “ ‘there is no reliable method for divining the genesis
of defendant’s decision not to testify. (Surely, self-serving statements by defense
counsel are not enough to clear this hurdle.)’ ” (People v. Sims, supra, 5 Cal.4th at
p. 456, quoting U.S. v. Nivica (1st Cir. 1989) 887 F.2d 1110, 1117.) Difficulties
regarding making a harmless error determination do exist, but we do not think
these difficulties alone warrant adopting the Luce rule in this situation.
To the extent defendant’s tactical choice not to present the mitigating
evidence, and thus not to risk unknown potential rebuttal, has thwarted a
reviewing court’s ability to judge the effect of error, this is because the denial of
discovery placed defense counsel into the untenable position of having to make an
uninformed tactical decision. We have repeatedly said that “[t]he possibility of
damaging rebuttal is a necessary consideration in counsel’s decision whether to
present mitigating evidence about the defendant’s character and background.”
(People v. Gonzalez (1990) 51 Cal.3d 1179, 1251; accord, In re Ross (1995) 10
Cal.4th 184, 212.) “Hence, a competent attorney . . . could prudently conclude
that the risk of damaging rebuttal weighed against presentation of character and
background in general.” (People v. Gonzalez, supra, at p. 1251, fn. omitted.)
However, we have also made clear that this decision must be reasonably informed.
“[W]e see no basis in either law or reason to find defense counsel incompetent
when he refrains from presenting mitigating evidence as a result of an informed
tactical decision, so long as such decision is within the range of reasonable
competence.” (People v. Miranda (1987) 44 Cal.3d 57, 121, italics added.) This
requirement presupposes that the information necessary to an informed decision
will be available to defense counsel. As defense counsel argued at trial in this
case, discovery of potential rebuttal evidence is necessary to an informed decision.
We have also repeatedly stated that “a criminal defendant’s right to
discovery is based on the ‘fundamental proposition that [an accused] is entitled to
a fair trial and an intelligent defense in light of all relevant and reasonably
accessible information.’ ” (City of Santa Cruz v. Municipal Court (1989) 49
Cal.3d 74, 84, italics added, quoting Pitchess v. Superior Court (1974) 11 Cal.3d
531, 535; accord, People v. Luttenberger (1990) 50 Cal.3d 1, 17.) Denial of
discovery of potential rebuttal evidence thwarts defense counsel’s ability to
present an intelligent defense and to make an informed tactical decision whether to
present mitigating evidence. The denial forced counsel to make an uniformed,
unintelligent decision. We will not require defense counsel to make an
uninformed decision in any particular fashion—i.e., force counsel to present the
mitigating evidence and risk unknown rebuttal—in order to challenge on appeal
the prosecution’s and trial court’s refusal to provide or order discovery.
Accordingly, the error is cognizable on appeal. We must decide whether it
is prejudicial. Ordinarily, “to prevail on a contention made on appeal from a
judgment of conviction on the grounds of violation of the pretrial discovery right
of a defendant, the defendant must establish that ‘ “there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceedings would have been different.” ’ ” (People v. Bohannon (2000) 82
Cal.App.4th 798, 806-807.) However, here the error affected the penalty
determination. The test for state law error at the penalty phase of a capital trial is
whether there is a reasonable possibility the error affected the verdict. (People v.
Brown (1988) 46 Cal.3d 432, 446-448.) To the extent the denial of discovery
implicated defendant’s federal due process rights (see Wardius v. Oregon, supra,
412 U.S. 470), the applicable test is whether the error is harmless beyond a
reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.) We have
explained that “Brown’s ‘reasonable possibility’ standard and Chapman’s
‘reasonable doubt’ test . . . are the same in substance and effect.” (People v.
Ashmus (1991) 54 Cal.3d 932, 990.)6 Accordingly, we focus on the “reasonable
possibility” test, but our conclusion applies equally to Chapman’s “reasonable
doubt” test. (People v. Ochoa (1998) 19 Cal.4th 353, 479.)
Under the circumstances, to find prejudice, we must find both (1) a
reasonable possibility defense counsel would have presented the mitigating
evidence had he received the discovery he requested (otherwise the error would
not have affected the trial at all), and (2) a reasonable possibility the verdict would
have been different had defendant presented the mitigating evidence.
As the Attorney General notes, three things occurred between the time that
defense counsel first indicated he was considering presenting this mitigating
evidence and his decision not to do so: (1) the court restricted the extent of Father
Horan’s testimony it would allow, (2) the court discussed the scope of rebuttal
evidence it would permit, and (3) the court denied discovery of potential rebuttal
evidence. In different parts of his brief, defendant contends each of these actions
contributed to the decision not to present the mitigating evidence. So the precise
question is to what extent, if at all, did the refusal to provide discovery contribute
to the decision not to present the evidence. This is difficult to quantify, but we
The United States Supreme Court has also recognized the substantial
equivalency of the reasonable possibility and reasonable doubt formulations. In a
pre-Chapman opinion, the high court stated the harmless error test this way: “The
question is whether there is a reasonable possibility that the evidence complained
of might have contributed to the conviction.” (Fahy v. Connecticut (1963) 375
U.S. 85, 86-87.) In Chapman, the high court noted that “[t]here is little, if any,
difference between our statements in Fahy v. Connecticut about ‘whether there is a
reasonable possibility that the evidence complained of might have contributed to
the conviction’ and requiring the beneficiary of a constitutional error to prove
beyond a reasonable doubt that the error complained of did not contribute to the
verdict obtained.” (Chapman v. California, supra, 386 U.S. at p. 24.)
Accordingly, the court said it did “no more than adhere to the meaning of our
Fahy case when we hold, as we now do, that before a federal constitutional error
can be held harmless, the court must be able to declare a belief that it was
harmless beyond a reasonable doubt.” (Ibid.)
think it is reasonably possible defense counsel would have presented the evidence
had he received the discovery he requested.
Defense counsel presented similar mitigating evidence at the first penalty
trial; that the first penalty trial ended in a mistrial supports the inference he wanted
to do so at the second trial. Moreover, he specifically stated he needed the
discovery to make an informed decision whether to present the evidence. Finally,
the record indicates that counsel had good reason to fear the unknown. The
Attorney General argues that defense counsel effectively did know what rebuttal
evidence the prosecutor possessed. At the first trial, held about three months
before the denial of discovery at issue here, the prosecutor did offer rebuttal
evidence. The Attorney General suggests that it was unlikely the prosecutor had
generated additional significant evidence to offer in rebuttal during the three-
month interim. However, when the prosecutor went out of his way to state that he
did not have to provide discovery of his potential rebuttal evidence, and thereafter
steadfastly refused to provide it, he strongly suggested he was withholding
something substantial. It is indeed possible that the prosecutor possessed nothing
new, but even so, defense counsel could reasonably have feared the prosecutor
was refusing to disclose his rebuttal evidence for a reason.
In People v. Pinholster (1992) 1 Cal.4th 865, 941, we found the failure to
provide timely discovery harmless partly because there was “no suggestion that
the defense would have been different had defendant been aware of [the belated
discovery] before trial.” Here, there is a strong suggestion that the defense would
have been different. Under the circumstances, we conclude it is reasonably
possible counsel would have presented the mitigating evidence if he had received
the discovery which he requested and to which he was entitled.
We also find a reasonable possibility the verdict would have been different
had defendant presented the proffered mitigating evidence. Although the crime
here was egregious, a death verdict was not a foregone conclusion. Indeed, the
first penalty trial ended with a hung jury. The aggravating evidence of defendant’s
other crimes (possession of an assault weapon, two assaults on inmates, and
possession of a shank in jail), although serious, was not overwhelming. Father
Horan’s proffered evidence regarding the ability of persons to change was not very
compelling, but defendant presented similar evidence in mitigation at the first
penalty trial and obtained a hung jury. The main difference between the two trials
was that defendant presented mitigating evidence at the first trial that he did not
present at the second trial. Under the circumstances, we find it reasonably
possible the verdict at the second trial would have been different had defendant
presented similar mitigating evidence at the second trial.
We affirm the judgment as to guilt and the special circumstance but reverse
the death sentence.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Gonzalez
Original Appeal XXX
Date Filed: June 12, 2006
County: Los Angeles
Judge: Victor H. Person
Attorneys for Appellant:Michael B. McPartland, under appointment by the Supreme Court; and Carl Gonser for Defendant and
Attorneys for Respondent:Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Sharlene A. Honnaka and J. Michael Lehmann, Deputy Attorneys
General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):Michael B. McPartland
P.O. Box 13442
Palm Desert, CA 92255
9 Upper Fremont Rd.
San Rafael, CA 94901
J. Michael Lehmann
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
|1||The People (Respondent)|
Represented by Attorney General - Los Angeles Office
J. Michael Lehmann, Deputy Attorney General
300 South Spring Street, Suite 500
Los Angeles, CA
|2||Gonzalez, Jose (Appellant)|
San Quentin State Prison
Represented by Michael Barr Mcpartland
Attorney at Law
P.O. Box 13442
Palm Desert, CA
|3||Gonzalez, Jose (Appellant)|
San Quentin State Prison
Represented by Carl A. Gonser
Attorney at Law
9 Upper Fremont Road
San Rafael, CA
|Jun 12 2006||Opinion: Conviction & specials aff., penalty rev.|
|Aug 24 1998||Judgment of death|
|Aug 31 1998||Filed certified copy of Judgment of Death Rendered|
|Aug 31 1998||Penal Code sections 190.6 et seq. apply to this case|
|Apr 29 1999||Record certified for completeness|
|Mar 15 2002||Filed:|
applt's application for appointment of counsel (IFP form).
|Mar 18 2002||Counsel appointment order filed|
appointing Michael McPartland to represent appellant for the direct appeal.
|Mar 21 2002||Date trial court delivered record to appellant's counsel|
11,778 page record
|Mar 25 2002||Received:|
Copy of notice from superior court, dated 3/21/2002, advising record on appeal transmitted to counsel on that date.
|Mar 28 2002||Appellant's opening brief letter sent, due:|
|May 21 2002||Counsel's status report received (confidential)|
from atty McPartland.
|Jul 22 2002||Counsel's status report received (confidential)|
from atty McPartland.
|Aug 29 2002||Compensation awarded counsel|
|Sep 18 2002||Counsel's status report received (confidential)|
from atty McPartland.
|Oct 25 2002||Request for extension of time filed|
To file appellant's opening brief. (1st request)
|Oct 30 2002||Extension of time granted|
To 12/31/2002 to file appellant's opening brief. The court anticipates that after that date, only five further extensions totaling 300 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 schedule, and to take all steps necessary to meet it.
|Nov 13 2002||Compensation awarded counsel|
|Nov 21 2002||Counsel's status report received (confidential)|
from atty McPartland.
|Nov 21 2002||Received copy of appellant's record correction motion|
Applt's Request for Corrections and Additions to the Record on Appeal. (18 pp.)
|Dec 23 2002||Request for extension of time filed|
To file appellant's opening brief. (2nd request)
|Dec 30 2002||Extension of time granted|
To 2/28/2003 to file appellant's opening brief. The court anticiaptes that after that date, only four further extensions totaling 240 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 schedule, and to take all steps necessary to meet it.
|Jan 13 2003||Compensation awarded counsel|
|Jan 23 2003||Counsel's status report received (confidential)|
from atty McPartland.
|Feb 13 2003||Compensation awarded counsel|
|Feb 21 2003||Request for extension of time filed|
to file appellant's opening brief. (3rd request)
|Feb 26 2003||Extension of time granted|
to 4/29/2003 to file appellant's opening brief. The court anticipates that after that date, only three further extensions totaling 180 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 schedule, and to take all steps necessary to meet it.
|Mar 20 2003||Counsel's status report received (confidential)|
from atty McPartland.
|Apr 9 2003||Record certified for accuracy|
|Apr 23 2003||Compensation awarded counsel|
|Apr 25 2003||Request for extension of time filed|
to file appellant's opening brief. (4th request)
|Apr 30 2003||Extension of time granted|
to 6/30/2003 to file appellant's opening brief. The court anticiaptes 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 schedule, and to take all steps necessary to meet it.
|May 14 2003||Compensation awarded counsel|
|May 20 2003||Counsel's status report received (confidential)|
from atty McPartland.
|May 27 2003||Letter sent to:|
counsel advising the record on appeal, certified for accuracy, was filed this date.
|May 27 2003||Record on appeal filed|
Clerk's transcript 31 volumes (7254 pp.) and reporter's transcript 28 volumes (4920 pp.), including material under seal; ASCII disks. Clerk's transcript includes 5552 pp. of juror questionnaires.
|Jun 25 2003||Request for extension of time filed|
to file appellant's opening brief. (5th request)
|Jun 27 2003||Extension of time granted|
to 8/29/2003 to file appellant's opening brief. After that date, only three further extensions totaling 150 additional days will be granted. Extension is granted based upon counsel Michael B. McPartland's representation that he anticipates filing that brief by 2/1/2004.
|Jul 23 2003||Counsel's status report received (confidential)|
from atty McPartland.
|Aug 4 2003||Received:|
ASCII disks and declaration of court reporter Michelle Oken.
|Aug 21 2003||Request for extension of time filed|
to file appellant's opening brief. (6th request)
|Aug 25 2003||Extension of time granted|
to 10/28/2003 to file appellant's opening brief. After that date, only two further extensions totaling 90 additional days will be granted. Extension is granted based upon counsel Michael B. McPartland's representation that he anticipates filing that brief by 2/1/2004.
|Aug 27 2003||Compensation awarded counsel|
|Sep 11 2003||Compensation awarded counsel|
|Sep 22 2003||Counsel's status report received (confidential)|
from atty McPartland.
|Oct 23 2003||Request for extension of time filed|
to file appellant's opening brief. (7th request)
|Oct 24 2003||Extension of time granted|
to 12/29/2003 to file appellant's opening brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon counsel Michael B. McPartland's representation that he anticipates filing that brief by 2/1/2004.
|Nov 20 2003||Counsel's status report received (confidential)|
from atty McPartland.
|Dec 19 2003||Request for extension of time filed|
to file appellant's opening brief. (8th request)
|Dec 31 2003||Extension of time granted|
to 2/2/2004 to file appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon counsel Michael B. McPartland's representation that he anticipates filing that brief by 2/1/2004.
|Jan 5 2004||Compensation awarded counsel|
|Jan 14 2004||Compensation awarded counsel|
|Jan 21 2004||Compensation awarded counsel|
|Jan 26 2004||Counsel's status report received (confidential)|
from atty McPartland.
|Jan 28 2004||Appellant's opening brief filed|
(59,796 words; 204 pp.)
|Feb 11 2004||Respondent's brief letter sent; due:|
June 11, 2004.
|Mar 10 2004||Compensation awarded counsel|
|Mar 24 2004||Compensation awarded counsel|
|Jun 3 2004||Request for extension of time filed|
to file respondent brief. (1st request)
|Jun 8 2004||Extension of time granted|
to 8/10/2004 to file respondent's brief.
|Jul 30 2004||Request for extension of time filed|
to file respondent's brief. (2nd request)
|Aug 6 2004||Extension of time granted|
to 10/12/2004 to file respondent's brief. After that date, no further extension will be granted. Extension is granted based upon Deputy Attorney General J. Michael Lehmann's representation that he anticipates filing that brief by 10/9/2004.
|Sep 15 2004||Compensation awarded counsel|
|Oct 12 2004||Respondent's brief filed|
(80,219 words; 274 pp.)
|Dec 1 2004||Request for extension of time filed|
to file reply brief. (1st request)
|Dec 10 2004||Extension of time granted|
to 2/9/2005 to file apppellant's reply brief. The court anticipates that after that date, only 3 further extensions totaling about 180 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 schedule, and to take all steps necessary to meet it.
|Jan 26 2005||Change of contact information filed for:|
attorney Michael B. McPartland.
|Jan 31 2005||Request for extension of time filed|
to file appellant's reply brief. (2nd request)
|Feb 3 2005||Extension of time granted|
to 4/11/2005 to file appellant's reply brief. After that date, only three further extensions totaling about 170 additional days will be granted. Extension is granted based upon counsel Michael B. McPartland's representation that he anticipates filing that brief by 10/1/2005.
|Mar 9 2005||Compensation awarded counsel|
|Mar 16 2005||Compensation awarded counsel|
|Apr 5 2005||Request for extension of time filed|
to file reply brief. (3rd request)
|Apr 12 2005||Extension of time granted|
to 6/10/2005 to file reply brief. After that date, only two further extensions totaling about 110 additional days will be granted. Extension is granted based upon counsel Michael McPartland's representation that he anticipates filing that brief by 10/1/2005.
|Jun 7 2005||Request for extension of time filed|
to file appellant's reply brief. (4th request)
|Jun 13 2005||Extension of time granted|
to 8-9-2005 to file reply brief. After that date, only one further extension totaling about 50 additional days will be granted. Extension granted based upon counsel Michael McPartland's representation that he anticipates filing the brief by 10-1-2005.
|Aug 1 2005||Request for extension of time filed|
to file appellant's reply brief. (5th request)
|Aug 4 2005||Extension of time granted|
to 10/3/2005 to file appellant's reply brief. After that date, no further extension will be granted. Extension is granted based upon counsel Michael B. McPartland's representation that he anticipates that brief by 10/1/2005.
|Aug 17 2005||Compensation awarded counsel|
|Sep 20 2005||Appellant's reply brief filed|
(32,171 words; 111 pp.)
|Oct 12 2005||Supplemental briefing ordered|
The parties are requested to brief the following issues: (1) Whether the trial court erred in admitting rebuttal evidence at the first penalty trial (see AOB 97-104; cf. RB 188, fn. 44); (2) Whether, assuming the trial court did err in admitting rebuttal evidence at the first penalty trial, the error prejudiced defendant at the second penalty trial (see AOB 104-106); and (3) Whether, conversely, the rulings and proffered rebuttal evidence at the first trial made harmless any error at the second penalty trial in the court's refusal to require the prosecution to disclose its rebuttal evidence, because appellant already knew what rebuttal evidence was available to the prosecution (see AOB 87-96). Because these issues concern arguments appellant has already made, the Attorney General is directed first to file a supplemental respondent's brief limited to these questions on or before November 14, 2005. Appellant may file a supplemental reply brief limited to these questions within 20 days of the filing of the supplemental respondent's brief.
|Nov 4 2005||Exhibit(s) lodged|
People's 5 and 53.
|Nov 14 2005||Supplemental brief filed|
by respondent. (34 pp.)
|Dec 1 2005||Request for extension of time filed|
to file appellant's supplemental reply brief. (1st request)
|Dec 9 2005||Extension of time granted|
to 12/27/2005 to file appellant's supplemental reply brief. After that date, no further extension is contemplated.
|Dec 20 2005||Supplemental reply brief filed (AA)|
by atty Michael B. McPartland. (4,486 words; 17 pp.)
|Jan 5 2006||Compensation awarded counsel|
|Jan 5 2006||Oral argument letter sent|
advising counsel that case could be scheduled for oral argument as early as the February 2006 calendar, to be held the week of February 14, 2006, in Sacramento. 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.
|Feb 1 2006||Order appointing Habeas Corpus Resource Center filed|
Upon request of appellant for appointment of counsel, the Habeas Corpus Resource Center is hereby appointed to represent appellant Jose Gonzalez for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court.
|Mar 8 2006||Case ordered on calendar|
Tuesday, April 4, 2006, at 1:30 p.m., in Los Angeles
|Mar 20 2006||Filed letter from:|
Respondent People re: oral argument issues
|Mar 21 2006||Filed letter from:|
attorney Micheal McPartland, dated March 17, 2006, re focus issues for oral argument and request that two counsel argue for appellant.
|Mar 24 2006||Received:|
letter from Deputy Attorney General J. Michael Lehmann, dated March 24, 2006, re additional authorities for oral argument.
|Mar 27 2006||Order filed|
The request of counsel for appellant in the above-referenced cause to allow two counsel to argue on behalf of appellant at oral argument is hereby granted. The request of appellant to allocate to associated counsel Carl Gonser 15 minutes of appellant's 30-minute allotted time for oral argument is granted.
|Mar 29 2006||Compensation awarded counsel|
|Apr 4 2006||Counsel's status report received (confidential)|
|Apr 4 2006||Cause argued and submitted|
|Apr 5 2006||Exhibit(s) lodged|
court's exhibit no. 4.
|Jun 5 2006||Counsel's status report received (confidential)|
|Jun 9 2006||Compensation awarded counsel|
|Jun 12 2006||Opinion filed: Conviction & specials aff., penalty reversed|
Opinion by Chin, J. -----joined by George, C.J., Kennard, Baxter, Werdegar, Moreno & Corrigan, JJ.
|Jun 21 2006||Compensation awarded counsel|
|Jun 23 2006||Rehearing petition filed|
by appellant. (2084 words; 8 pp.- excluding attachment)
|Jun 26 2006||Time extended to consider modification or rehearing|
to September 1, 2006, or the date upon which rehearing is either granted or denied, whichever occurs first.
|Aug 3 2006||Counsel's status report received (confidential)|
|Aug 23 2006||Rehearing denied|
Corrigan, J., was absent and did not participate.
|Aug 23 2006||Remittitur issued (AA)|
|Sep 5 2006||Received:|
acknowledgment of receipt of remittitur.
|Sep 29 2006||Counsel's status report received (confidential)|
|Oct 11 2006||Compensation awarded counsel|
|Oct 25 2006||Compensation awarded counsel|
|Nov 27 2006||Received:|
letter from U.S.S.C., dated Nov. 20, 2006, advising that petition for writ of certiorari was filed on Nov. 14, 2006 and placed on the docket Nov. 20, 2006 as No. 06-7828.
|Nov 29 2006||Counsel's status report received (confidential)|
|Nov 29 2006||Order filed|
On the court's own motion, the order filed February 1, 2006, appointing the Habeas Corpus Resource Center as habeas corpus/executive clemency counsel of record for inmate Jose Gonzalez in the above automatic appeal now final in this court, is hereby vacated in light of this court's reversal of the sentence of death. (See People v. Gonzalez (2006) 38 Cal.4th 932.)
|May 24 2007||Compensation awarded counsel|
|May 31 2007||Exhibit(s) returned|
|May 31 2007||Filed:|
declaration of Marsha Smith, senior deputy clerk of the Automatic Appeals Unit, re exhibits nos. 5 and 53.
|Jun 13 2007||Compensation awarded counsel|
|Jun 14 2007||Received:|
acknowledgment from superior court of receipt of Court's exhibit 4.
|Jan 28 2004||Appellant's opening brief filed|
|Oct 12 2004||Respondent's brief filed|
|Sep 20 2005||Appellant's reply brief filed|