Supreme Court of California Justia
Citation 43 Cal. 4th 415, 181 P.3d 947, 75 Cal. Rptr. 3d 588

People v. Lewis

Filed 4/28/08



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S031603

v.

JOHN IRVIN LEWIS II,

Los Angeles County

Defendant and Appellant.

Super. Ct. No. BA048904



A jury found defendant John Irvin Lewis II1 guilty of the first degree

murder (Pen. Code, § 187; further undesignated statutory references are to the

Penal Code) and robbery (§ 211) of Jose Avina and Agustine Ramirez and of the

first degree murder, robbery, kidnapping for robbery (§ 209, subd. (b)), and

kidnapping (§ 207, subd. (a)) of Willie Sams, Elizabeth Nisbet, and Shirley

Denogean. As to each of the five murders, the jury found true special

circumstances of murder by means of lying in wait (§ 190.2, former subd. (a)(15)),

and murder during the commission of robbery (§ 190.2, former subd. (a)(17)(i)

[now subd. (a)(17)(A)]). The jury found true special circumstances of murder


1

The charging document, judgment, probation report, and other portions of

the trial record refer to defendant as John Irving Lewis. It has come to our
attention that defendant’s true name, as reflected on his birth certificate, is John
Irvin Lewis II. We refer to defendant by his true name in this opinion. (See Pen.
Code, § 953.)

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during the commission of a kidnapping or kidnapping for robbery (§ 190.2, former

subd. (a)(17)(ii) [now subd. (a)(17)(B)]) for the Sams, Nisbet, and Denogean

murders, and it found true a multiple-murder special circumstance (§ 190.2, subd.

(a)(3)).

The jury also found defendant guilty of the robbery, kidnapping for

robbery, and kidnapping of Eugene Valdez, Juan Rios, and Sonia Aguirre; one

count of receiving stolen property (§ 496, former subd. (1) [now subd. (a)]); and

one count of conspiracy (§ 182, subd. (a)(1)). The jury found that defendant had

personally used a firearm (§ 12022.5, subd. (a)) during each of the murders,

robberies, kidnappings for robbery, and kidnappings.

After a penalty phase, the jury fixed defendant’s penalty at death for each

of the murders. The trial court denied defendant’s automatic motion to modify the

verdicts (§ 190.4, subd. (e)) and imposed death sentences for those counts. The

court imposed prison terms for the other counts and enhancements, stayed pending

imposition of the death penalty.

This case is before us on defendant’s automatic appeal. (§ 1239, subd. (b).)

For the reasons set forth below, we vacate the lying-in-wait special-circumstance

findings related to victims Avina, Sams, Nisbet, and Denogean; reverse

defendant’s six convictions for simple kidnapping (counts 7, 12, 13, 17, 21, and

25); modify the judgment to reflect a single sentence for conspiracy (count 27);

and order stayed the sentences for the conspiracy conviction in count 27 and for

the robbery convictions in counts 5, 8, 9, 15, 19, and 23. Otherwise, we affirm the

judgment, including the sentence of death.

I. FACTUAL BACKGROUND

During July and August 1991, defendant and codefendants Robbin

Monique Machuca, Vincent Gerald Hubbard, and Eileen Marie Huber engaged in

a crime spree in Los Angeles County involving the robberies, kidnappings, and/or

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murders of eight separate victims. Defendant was linked to the crimes by

eyewitness accounts, automated teller machine (ATM) photographs, fingerprints,

ballistics and other forensic evidence, and defendant’s statements to police.

Defendant and his three codefendants were tried together.2

A. Guilt Phase

1. Prosecution’s case-in-chief

Viewed in the light most favorable to the judgment (People v. Posey (2004)

32 Cal.4th 193, 201; People v. Neal (2003) 31 Cal.4th 63, 69), the evidence at trial

established the following.3 In July and August 1991, defendant was living in

apartment E of the Woodside Village Apartments in West Covina with

codefendants Huber (defendant’s girlfriend), Machuca (defendant’s half sister),

and Hubbard (Machuca’s boyfriend).

a. Robbery and murder of Jose Avina (counts 1 & 2)

About 10:00 p.m. on July 5, 1991, in Monrovia, defendant was riding in

codefendant Huber’s car, following Derrick Colbert (defendant’s brother-in-law)

and Timmy Lane, who were in Lane’s car. Lane’s car bumped a red truck driven


2

The jury found Hubbard guilty of the counts and special circumstances

involving victims Valdez, Rios, Aguirre, Sams, and Denogean, and found he
personally used a firearm in all of those counts except the Denogean counts. The
jury found Machuca guilty of the counts and special circumstances involving
victims Valdez, Sams, Nisbet, and Denogean. The jury found Huber guilty of the
counts and special circumstances involving victims Avina, Valdez, Sams, and
Denogean. The jury further found Hubbard, Machuca, and Huber guilty of
receiving stolen property and conspiracy. The jury fixed Hubbard’s, Machuca’s
and Huber’s penalties for the murders at life imprisonment without the possibility
of parole, and the court imposed terms of years for the other counts. In an
unpublished opinion, the Court of Appeal, Second District, Division Five,
affirmed with modifications. We denied review on January 5, 1995.
3

In reviewing the evidence we do not consider codefendant Huber’s

statements, which were not admitted against defendant.

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by Jose Avina, who pulled over and stopped. Defendant approached Avina and

demanded the keys to the truck. Defendant then shot Avina once in the head with

a 12-gauge sawed-off shotgun. The truck rolled onto a lawn in front of an

apartment complex. Defendant pulled Avina’s body from the truck, jumped into

the driver’s seat, and drove to Baldwin Park, where defendant and his companions

removed stereo equipment from the truck. Defendant then drove the truck to

Pomona and abandoned it. Defendant later put an amplifier from the truck into his

own car, a brown 1983 Oldsmobile Cutlass.

Avina died from a shotgun blast to the left side of his face, which

obliterated most of the left temporal and occipital lobes of his brain. Several

copper-coated pellets or fragments were removed from his head.

b. Robbery and murder of Agustine Ramirez (counts 3 & 4)

Agustine Ramirez owned the Magic Mushroom restaurant in West Covina.

His wife, Linda Ramirez, worked with him at the restaurant. Linda was friends

with Sylvia Medina, who lived with her daughter Barbara Espinoza in apartment

A of the Woodside Village Apartments, where defendant and his three

codefendants were occupying apartment E. During July and August of 1991,

Espinoza went on a few dates with defendant. One evening in early or mid-July,

1991, codefendant Machuca accompanied Sylvia Medina to the Magic Mushroom,

where she stayed for over an hour.

On the morning of August 3, 1991, Agustine and Linda Ramirez drove to

the restaurant in separate cars. About midnight, they decided to go home.

Agustine walked Linda to her car in the alley behind the restaurant, then began

walking to his car. Linda started her car and turned on the headlights. When

Agustine was about 15 feet from Linda, a car occupied by defendant and driven by

another person drove up to Agustine and stopped, blocking his way. Agustine

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talked to defendant. Linda noticed that defendant was holding an 18-inch shotgun.

As Linda struggled to get out of her car, defendant shot Agustine once in the

abdomen, then was driven away.

Agustine Ramirez was taken to a hospital, where he died from a single

gunshot wound to his left abdomen. Stippling around the wound and on his left

forearm indicated the shot was fired from a distance of about two feet. Thirteen

copper-coated double-aught shotgun pellets were removed from his body. The

next morning, five of Ramirez’s credit cards were found near a dumpster on the

grounds of the Edgewood Middle School in West Covina.

c. Kidnapping and robbery of Eugene Valdez (counts 5, 6 & 7)

Eugene Valdez worked as a salesman for a car dealership in the City of

Industry. In late July or early August, 1991, Valdez bought a brown 1983

Oldsmobile Cutlass from the dealership. About 9:00 p.m. on August 9, 1991,

Valdez left the dealership driving the Cutlass to return to his home in Victorville,

about 70 miles away. After driving about 30 minutes, Valdez became sleepy and

decided to stop and rest. He pulled into a restaurant parking lot, shut off the

engine, locked the doors, and fell asleep.

About two hours later, Valdez awoke to find defendant and codefendant

Hubbard banging on the car and yelling for him to open the door. They held a

sawed-off shotgun between them. The two men forced Valdez to lie facedown on

the backseat. Hubbard sat on top of Valdez’s legs, holding the shotgun against

Valdez’s neck. Defendant sat in the driver’s seat, chose a music station on the

radio, and began driving.

As they were driving, Hubbard threatened several times to kill Valdez, but

defendant urged him not to, saying, “Don’t do it, we can use the car.” Hubbard

also asked defendant, “Why are you going this way?” Defendant replied, “I can

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get there just as fast.” Hubbard hit Valdez with his fists, spit on him, and

demanded his valuables and credit cards. Valdez surrendered his money, billfold,

and watch.

Some 30 minutes later, Valdez felt the car climbing into the mountains.

The car then pulled into a turnout near the Morris Dam, about 10 miles north of

West Covina. Defendant and Hubbard got out of the car and ordered Valdez to get

out as well. Valdez noticed that a second car occupied by a woman had pulled up

beside his car.

The men ordered Valdez to walk toward the edge of the turnout, where the

land dropped off steeply. Hubbard still held the shotgun. As Valdez walked

toward the edge, he heard one man say to the other, “You shoot the mother

fucker.” Fearing he would be killed, Valdez threw himself over the precipice. As

he did so, he heard a clicking sound as if a shotgun had misfired.

Valdez tumbled about 150 feet down a steep incline. He remained at the

bottom of the slope for several minutes. When he was sure the kidnappers had left

the area, he climbed up the slope and flagged down a passing motorist, who took

him to a phone to call the police.

Defendant removed the front fenders, front grille and bumper, hood, and

left rear taillight assembly from Valdez’s car and installed them on his own brown

1983 Cutlass. He also put the battery, tires, car radio, and speaker covers from

Valdez’s car in or on his car. Defendant then abandoned Valdez’s car in Baldwin

Park, where it was found about six days after the kidnapping. Defendant’s car still

had the installed parts from Valdez’s car when a Los Angeles County Sheriff’s

detective examined it on September 3, 1991, at an auto body shop in Rosemead to

which it had recently been towed.

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d. Thefts from Gary Huber (count 26)

Codefendant Huber’s father, Gary Huber, lived in Baldwin Park. On the

morning of August 13, 1991, Gary left home with codefendant Huber and her

brother to drive to Pismo Beach. When he returned the next day, the house had

been broken into and ransacked. Several firearms were missing, including five

rifles of various types, a Ruger .357 Magnum handgun, and a .38-caliber Smith &

Wesson handgun. Also missing were two boxes of ammunition, a gun case, two

holsters, a bayonet, and a survival knife.

e. Kidnapping and robbery of Juan Rios and Sonia Aguirre

(counts 8, 9, 10, 11, 12 & 13)



About 10:00 p.m. on August 14, 1991, Juan Rios, accompanied by his

fiancée Sonia Aguirre, pulled Aguirre’s car up to the drive-through ATM at a

Security Pacific Bank in West Covina. As Rios was inserting his bank card into

the ATM, a man ran up to the driver’s side of the car, pointed a gun at him, and

ordered him to take as much money as possible out of the ATM or be shot. At the

same time, another man approached the passenger side window and pointed a gun

at Aguirre, demanding that she hand over her diamond engagement ring. She did

so. Rios tried several times to withdraw money, but the ATM was not

functioning. One of the men, whom Rios and Aguirre later identified as

defendant, got in the backseat behind Rios. The other man, whom Rios and

Aguirre identified as codefendant Hubbard, got in next to defendant, behind

Aguirre. Rios drove to the front of the bank while defendant held a gun to the

back of his head. Defendant ordered Rios to go to the walk-up ATM and

withdraw $200, threatening to shoot Aguirre or Rios if Rios “tried anything.”

Rios complied. When Rios returned to the car, defendant was in the driver’s seat.

Rios got in and gave the men the $200. Rios also surrendered his watch, gold

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chain, and ring. When Hubbard asked defendant what they were going to do,

defendant said, “I have a plan.”

Defendant began to drive. Defendant and Hubbard assured Rios and

Aguirre that they would not be harmed because they were cooperating. About

three miles from the Security Pacific Bank, defendant pulled over and let Rios and

Aguirre out of the car, telling them not to “try anything” or they would be killed.

Rios and Aguirre walked to a nearby store and called the police.

Police located Aguirre’s car early the next morning in a shopping center

parking lot across the street from the bank where Rios and Aguirre had first been

accosted. Fingerprints lifted from the outside of the car on the driver’s side

matched defendant’s prints.

f. Kidnapping, robbery, and murder of Willie Sams (counts 14,

15, 16 & 17)

About 9:30 p.m. on August 18, 1991, Willie Sams drove his car to the same

Security Pacific Bank from which Rios and Aguirre had been abducted on August

14. From a gas station across the street, defendant saw Sams drive up to the drive-

through ATM machine. Defendant and codefendant Hubbard approached Sams’s

car and got in. Pointing the Ruger handgun at Sams, defendant forced him to

withdraw $200 from that ATM machine and then to drive to another Security

Pacific Bank and withdraw another $600.

Defendant drove Sams to Edgewood Middle School, the same school where

Agustine Ramirez’s credit cards had been found in early August. Defendant and

Hubbard forced Sams to get into the dumpster near the baseball field. Defendant

and Hubbard each fired several shots at Sams, killing him. Defendant later

removed the radio from Sams’s car, attempted to wipe his fingerprints off the car,

and abandoned the car in a shopping center parking lot.

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Shortly after 11:00 p.m., West Covina police officers found Sams’s body.

Several copper-jacketed bullets or bullet fragments were recovered from the

dumpster.

A couple of hours later, at 1:07 a.m., $60 was withdrawn from Sams’s bank

account using an ATM machine.

On August 19, 1991, codefendants Hubbard and Machuca attempted to use

Sams’s credit card to purchase about $700 worth of clothing from a store in El

Monte. When the attempted purchase was denied, Hubbard and Machuca

hurriedly left the store.

Sams’s car, minus its radio, was recovered two days later in the shopping

center parking lot. Fingerprints on the car and on papers found in the car matched

defendant’s prints. Machuca’s prints were found on papers in the car.

Sams died of gunshot wounds to his head, trunk, and legs. One wound

perforated his heart; several others were potentially fatal. Four shots entered the

right side of the body and traveled to the left, while three shots entered the left side

and traveled to the right, indicating the shots were fired from two sources. Three

bullets were removed from Sams’s body.

A criminalist compared the bullets and bullet fragments recovered from

Sams’s body and from the dumpster in which he was found with bullets test-fired

from the Ruger and Smith & Wesson handguns stolen from Gary Huber,

codefendant Huber’s father. He concluded that the bullets removed from Sams’s

body and one bullet fragment from the dumpster could have been fired from the

Smith & Wesson, and that three bullet fragments found in the dumpster were fired

from the Ruger.

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g. Kidnapping, robbery, and murder of Elizabeth Nisbet (counts

18, 19, 20 & 21)

Around 11:30 a.m. on August 24, 1991, Neil Nisbet and his wife Elizabeth

drove their car to the Puente Hills Mall. Elizabeth was wearing or carrying several

items of jewelry, including a gold ring with 17 diamonds, a gold bangle bracelet,

and a gold rope chain bracelet. Elizabeth waited in the car while Neil entered the

mall to run an errand. When Neil returned about 10 minutes later, the car and

Elizabeth were gone. Neil searched for Elizabeth for several hours and then called

the police.

Meanwhile, defendant, codefendant Machuca, and possibly one or more

other codefendants arrived at the Puente Hills Mall in codefendant Huber’s car,

parked, and saw Elizabeth Nisbet in her car. Defendant forced his way into the car

and pointed his gun at Nisbet. One or more of the codefendants bound Nisbet’s

hands and feet with duct tape. Defendant drove the Nisbets’ car to the Covina

branch of First Interstate Bank, where he and codefendant Machuca used Nisbet’s

ATM card to withdraw $400. Defendant then drove to a convenience store in

Covina, where an additional $100 was withdrawn from Nisbet’s account through

an ATM machine. Defendant then drove north on the 605 freeway, followed by

codefendant Huber’s car. After stopping along the side of the freeway, defendant

shot and killed Nisbet. Defendant or one of his codefendants removed Nisbet’s

jewelry, and they departed in Huber’s car.

About 3:10 p.m. that same day, California Highway Patrol officers found

the Nisbets’ car on the northbound 605 freeway. Elizabeth Nisbet’s body was

under a blanket on the rear floorboards. The body was not yet cold.

Elizabeth Nisbet had a gunshot wound to her left temple, which caused her

death, and there were several gunshot wounds to her left arm and hand. She had a

large blunt force trauma injury between her eyes, lacerations on her cheeks and

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lips, blackened eyes, and bruises on her wrists and hands. Holes in the blanket

covering her indicated shots were fired through the blanket. Fragments of duct

tape were attached to her socks and to her right forearm, and a twisted ring of duct

tape was found underneath her body at approximately waist level. Three bullets

were recovered from various locations inside the car.

Several fingerprints lifted from the Nisbets’ car and from an ATM receipt

found in the car matched defendant’s fingerprints. A forensic scientist from the

Los Angeles County Sheriff’s Department determined that the duct tape used to

bind Elizabeth Nisbet’s feet came from a roll of tape that was recovered from a

nightstand in the bedroom of apartment E in West Covina after defendant’s arrest.

Two bullet fragments were removed from Nisbet’s brain and two from her

forearm. A criminalist concluded that the Smith & Wesson revolver stolen from

Gary Huber could have fired the bullets removed from Nisbet’s body as well as

three bullets recovered from the Nisbets’ car.

h. Kidnapping, robbery, and murder of Shirley Denogean (counts

22, 23, 24 & 25)

Between 12:15 p.m. and 1:00 p.m. on August 27, 1991, Shirley Denogean

drove her Mercedes Benz car to the Puente Hills Mall. Meanwhile, defendant,

codefendant Huber, and at least one other codefendant drove to the mall.

Defendant brought along the Ruger handgun and some plastic ties. Defendant saw

Denogean arrive, enter the mall, and return about 20 minutes later. As she was

getting into her car, defendant forced his way at gunpoint into the car. One or

more of the codefendants tied Denogean’s hands in front of her with the plastic

ties. Defendant drove Denogean to the First Interstate Bank’s City of Industry

branch, where $400 was withdrawn from Denogean’s account. Defendant then

drove Denogean to another branch of the same bank, where Huber withdrew

another $100 from Denogean’s account. Several unsuccessful attempts to

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withdraw more money from Denogean’s account were made at various ATM

machines.

Defendant drove Denogean’s car west on the Pomona Freeway, stopping

between the Rosemead and San Gabriel Boulevard exits. Codefendant Huber

followed in her car. Defendant forced Denogean at gunpoint to walk down an

embankment, to an area surrounded by bushes. Once there, defendant fired three

shots at Denogean, killing her. Defendant and his codefendants then drove away.

About 12:04 a.m. the next day, $220 was withdrawn from Denogean’s bank

account through an ATM at a convenience store. Denogean’s car was found in El

Monte that same day. Fingerprints on the car and on papers found in the car

matched defendant’s and codefendant Machuca’s prints.

Denogean died from two gunshot wounds to her head. Both bullets entered

the right side of her head and exited the left side. Gunshot residue around one of

the wounds indicated the shot was fired at close range. Denogean also had

gunshot wounds to her left hand and to both legs. A criminalist concluded that the

bullets removed from Denogean’s body and bullets recovered from the scene of

her murder were fired from the Ruger handgun stolen from Gary Huber.

i. Arrests and defendant’s confessions

Codefendant Huber was arrested about 2:30 a.m. on August 30, 1991. At

3:15 a.m., defendant and codefendants Machuca and Hubbard were arrested at

apartment E in West Covina. Gary Huber’s Ruger handgun, loaded with bullets

bearing defendant’s fingerprints, was on the living room floor a few feet from

defendant. Gary Huber’s loaded Smith & Wesson revolver was found under a

child’s bed in the bedroom.

Gary Huber’s five rifles, rifle case, ammunition clips, and two gun belts

were found in various locations in the apartment. His two metal ammunition

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boxes and his bayonet, as well as a firearm cleaning rod and loose ammunition,

were found in the apartment’s dishwasher. Several plastic ties of the kind used to

bind murder victim Shirley Denogean’s wrists were found in the dishwasher and

in the hall closet. The roll of duct tape that had been used to bind murder victim

Elizabeth Nisbet was found inside the nightstand in the bedroom. An unexploded

triple-aught shotgun shell was found in a patch of ivy outside the front door. Gary

Huber’s black survival knife was found in codefendant Eileen Huber’s car.

The search also revealed several items of the victims’ property, including

Denogean’s white purse, credit card, camera, and diamond engagement and

wedding ring set, and the radio from murder victim Willie Sams’s car. At the time

of her arrest, codefendant Machuca was wearing several pieces of murder victim

Elizabeth Nisbet’s jewelry.

After his arrest, defendant made four statements to law enforcement

officers in which he admitted killing Avina, Sams, Nisbet, and Denogean.

Defendant denied kidnapping Valdez. Regarding the Avina killing, defendant

claimed that he was headed to a party with Lane and Colbert when Lane’s car

accidentally bumped Avina’s truck after Avina stopped suddenly; that Avina then

argued with Lane and Colbert, saying, “I should blow your Black ass away,

fucking nigger”; and that when defendant approached the truck, Avina reached

down to grab a gun, at which point defendant shot him in the face. Defendant said

he used double-aught buck ammunition because when he was growing up his

stepfather told him, “If you ever buy a shotgun and you want some shit that will

blow a mother fucker’s head off, this is what you buy.”

Regarding the Sams murder, in addition to recounting the basic facts,

defendant said that after getting into the dumpster Sams cried and begged for his

life, but defendant shot him five times until he “couldn’t shoot no more.”

13

Defendant admitted he shot Sams because Sams could identify him, but he also

claimed he shot Sams because Sams looked like defendant’s abusive stepfather.

Regarding the Nisbet murder, defendant said he originally went to the mall

intending to rob a jewelry store, but when he saw Elizabeth Nisbet he decided it

would be easier to rob her instead. Defendant said that he stopped at the side of

the freeway intending to leave Nisbet there isolated from communication, and that

he fired one round near her head to scare her into being quiet. When Nisbet began

screaming “Don’t kill me” and breaking free from her restraints, defendant shot

and killed her.

Regarding the Denogean killing, defendant said that he went to the mall

intending to “look at” a jewelry store, but he decided to kidnap Denogean after

seeing her. He said that while they were driving on the freeway Denogean said,

“Go ahead and kill me now,” and attempted to strike defendant and grab his gun.

After defendant parked and ordered Denogean to walk down the embankment, she

said, “I know you are going to kill me so I might as well start screaming now.”

Defendant shot Denogean only after she screamed and tried to run away.

Defendant admitted he shot Denogean because she could identify him. Defendant

said he knew that everything he had done was wrong and that he had to suffer the

consequences. He said: “I’m not afraid to die. I don’t have nothing to live for.”

j. Additional

evidence

Laroy Johnson testified that in August 1991 defendant tried to recruit him

to commit robberies. Woodside Village Apartments resident Laura Pouncy

testified that one day in August 1991 defendant came into her apartment and asked

to watch the television news. During a broadcast showing helicopters and a body

being brought up, defendant jumped up and ran out of the apartment. He appeared

happy, as if “he had just hit a homerun.” Defendant once told Pouncy, “When you

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put a gun in a person’s face and they think they are going to die their eyes get real

big.”

2. Defense

case

Edwin Bonilla testified that he was standing in front of the Magic

Mushroom restaurant in West Covina on the night its owner Agustine Ramirez

was killed. When he heard a shotgun blast, Bonilla looked into the alley and saw a

brown station wagon parked with the passenger door open. A Hispanic or light-

skinned Black man was walking toward the passenger door. The man appeared to

be reloading a shotgun with a pumping action. The shotgun depicted in a photo

found in apartment E in West Covina was a break-open shotgun, not a slide or

pump-action shotgun.4 About three weeks before the killing, Ramirez had broken

up a fight at the Magic Mushroom restaurant. The participants in the fight had

threatened to kill the bartender after she refused to serve them.

Defendant also presented evidence that he was in custody from 11:15 p.m.

on July 4, 1991, until some time before 6:20 p.m. on July 5, 1991, the day Jose

Avina was killed.

Codefendant Huber presented evidence that defendant had been seen

chasing her with a gun and shooting at her. A Los Angeles County Sheriff’s

Department detective testified that Huber said she was afraid of guns, but she

continued to “hang[] around guns and people that had guns” because “ ‘[i]t is also

scary that you are told that if you leave they are going to kill you anyway.’ ”

Codefendants Hubbard and Machuca both presented evidence intended to distance

themselves from defendant and the crimes.


4

Police never recovered the shotgun used in the Avina, Ramirez, and Valdez

crimes.

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3. Prosecution’s rebuttal

In response to Edwin Bonilla’s testimony, a prosecution witness testified

that no shotgun shell was recovered at the scene of Agustine Ramirez’s murder.

B. Penalty

Phase

1. Prosecution’s case in aggravation

In January 1987, defendant tried to force 16-year-old Marlene L. to have

sex with him.

The prosecution also presented evidence that in November 1989 defendant

and several other men and women were involved in five armed robberies or

attempted armed robberies: a robbery of a convenience store in El Monte, during

which the clerk was shot in the leg; an attempted robbery at a trailer park in

Baldwin Park, during which two people were shot; a robbery of a customer at a

gas station in El Monte; an attempted robbery of several customers at a gas station

in Baldwin Park, during which two customers were shot; and a robbery at a

shopping center in Alta Loma.

On November 24, 1989, when defendant was 19 years old, he was arrested.

He was convicted of possessing a sawed-off shotgun and was returned to the

California Youth Authority for violating his parole for crimes he had committed as

a juvenile. Defendant was confined in the California Youth Authority from

November 24, 1989, until June 29, 1991, six days before the murder of Jose

Avina.

In June 1992, while defendant was in the county jail awaiting trial, a

homemade stabbing instrument known as a “shank” was found in his cell. One

day in November 1992, during the trial, a deputy sheriff found an 11-inch-

diameter hole in the wall of the courthouse lockup where defendant was placed

when not attending proceedings in the courtroom.

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Friends and relatives of the five murder victims testified about the impact

of the murders on them. A correctional officer testified about prison conditions

for persons sentenced to life in prison without possibility of parole.

2. Defense case in mitigation

Defendant’s older sister Carmen, social worker Linda Witt, and a family

friend testified that defendant’s stepfather, Donald Deary, abused the children

physically and sexually. Defendant was removed from his mother’s home at a

young age, and thereafter, when not incarcerated, he lived with Carmen, his older

sister Bridgette, or his older brother Darryl. Defendant’s mother died in 1983.

Bridgette was found dead on the street from a drug overdose a few months before

defendant’s trial.

Family acquaintance Oma Colbert described defendant as a happy child on

the outside but sad on the inside. Defendant missed his parents and seemed to

want love and attention. A high school teacher testified defendant was an average

student.

Francis Crinella, a psychologist specializing in neuropsychology, testified

that defendant’s violent behavior, as well as his inability to control himself or his

impulses, to organize his behavior, or to consider alternatives, were related to

organic brain damage and his chaotic childhood. Dr. Crinella based this opinion

on defendant’s behavior, his inability to profit from experience, his poor

achievement in school, his history of seizures, and neuropsychological test results

that were consistent with mild diffuse brain damage.

Defendant had “one of the most extraordinarily chaotic childhoods”

Dr. Crinella had ever seen. Defendant was abused sadistically by his stepfather

from an early age. He began breaking the law when he was 10 years old. Other

members of his family abused drugs. His mother died from an apparent drug

17

overdose when he was 13 years old. His stepfather sexually abused defendant and

his sisters. Defendant said he used marijuana soaked in phencyclidine (PCP) and

often committed crimes when he was high.

In Dr. Crinella’s opinion, defendant was a very fearful person with a

“predatory world view[]” and a “limited” “emotional repertoire.” He “put[] on a

show of bravado and toughness” to hide his fear. Defendant believed everyone

was “out to get him.” He also was very manipulative.

On cross-examination, Dr. Crinella acknowledged that California Youth

Authority mental health professionals said defendant did not have brain damage

but rather had an antisocial personality disorder. Dr. Crinella also acknowledged

that during interviews defendant had said he would kill a guard or other inmates in

prison.

II. DISCUSSION

A. Prearraignment Delay

Defendant was arrested around 3:15 a.m. on Friday, August 30, 1991, the

beginning of the Labor Day weekend. There was no warrant for defendant’s

arrest. Defendant was arraigned four days later, on Tuesday, September 3, 1991.

During the intervening period, while confined in the West Covina Police

Department jail, defendant made several statements. At 9:00 a.m. on August 30,

defendant waived his rights under Miranda v. Arizona (1966) 384 U.S. 436

(Miranda) and made an initial statement. At 10:15 a.m., defendant made a second

statement. At 12:36 p.m., defendant invoked his right to an attorney under

Miranda, and questioning ceased. About 4:00 p.m. on Sunday, September 1, more

than two days after his arrest, defendant initiated contact with police and made a

third statement. At 9:58 p.m., defendant made a fourth and final statement.

18

Defendant moved to suppress evidence of the statements he made on

September 1, 1991, as a violation of his rights under Miranda, supra, 384 U.S.

436. At the hearing, defense counsel argued that the statements should be

suppressed because defendant was questioned after he expressly asked for an

attorney but no attorney was appointed. Counsel pointed out that defendant made

the statements only after he “sat in jail for two days after asking for an attorney.”

Counsel argued that this procedure violated the rule of Edwards v. Arizona (1981)
451 U.S. 477, that the police may not question a suspect who invokes his Miranda

rights unless the suspect initiates the questioning. The trial court denied the

motion, observing that the police had no obligation to contact the public

defender’s office, that normally an attorney is not provided until arraignment, and

that defendant simply “didn’t wait long enough.”

Defendant now contends that the four-day delay between his warrantless

arrest and his arraignment before a neutral magistrate violated his right under the

Fourth Amendment to the federal Constitution to be free from unreasonable

seizures as defined in Gerstein v. Pugh (1975) 420 U.S. 103 (Gerstein), and in

County of Riverside v. McLaughlin (1991) 500 U.S. 44 (McLaughlin), and that his

two September 1, 1991, statements to the police should have been suppressed

because they were made during an unconstitutional detention.5

In Gerstein, the United States Supreme Court held that the Fourth

Amendment requires a prompt judicial determination of probable cause as a


5

Defendant also mentions his right to a prompt arraignment under section

849 and under article I, section 14 of the California Constitution. Because
defendant did not raise this issue at trial, and because in any event a violation of
these provisions would not warrant suppression of defendant’s statements unless
required by the federal Constitution (see Cal. Const., art. I, § 28, subd. (d); In re
Lance W.
(1985) 37 Cal.3d 873), we confine our discussion to the federal claim.

19

prerequisite to an extended pretrial detention after a warrantless arrest. (Gerstein,

supra, 420 U.S. at pp. 114, 125-126.) In McLaughlin, the high court held that a

jurisdiction may choose to combine the probable cause determination with other

pretrial procedures such as arraignment. A jurisdiction that does so generally will

comply with the promptness requirement of Gerstein if it provides the probable

cause determination within 48 hours of a warrantless arrest. (McLaughlin, supra,

500 U.S. at p. 56.) If the delay exceeds 48 hours, the government must show that

“a bona fide emergency or other extraordinary circumstance” justified the delay.

(Id. at p. 57.) Neither the need to consolidate pretrial proceedings nor intervening

weekends constitutes extraordinary circumstances justifying delay of a probable

cause hearing beyond 48 hours. (Ibid.; see also Hallstrom v. City of Garden City

(9th Cir. 1993) 991 F.2d 1473, 1480 [construing language in McLaughlin

regarding “weekends” as meaning weekends or holidays].)

Defendant did not raise a McLaughlin claim at trial. At trial, he raised a

very different claim that suppression was warranted because the police had

violated his Fifth Amendment right to be left alone after his invocation of Miranda

rights until an attorney was appointed. (See Edwards v. Arizona, supra, 451 U.S.

at pp. 484-487.) The trial court properly rejected that claim because defendant had

initiated the contact with police on September 1, 1991. Although defendant

argued that the delay in supplying him with an attorney was unreasonable, he did

not assert that the failure to provide a judicial determination of probable cause

within 48 hours of his arrest violated his Fourth Amendment rights under

McLaughlin, supra, 500 U.S. 44. Accordingly, the prosecution never had a chance

to justify the delay. Defendant therefore forfeited his McLaughlin claim on

appeal. (People v. Sapp (2003) 31 Cal.4th 240, 270; People v. Hughes (2002) 27

Cal.4th 287, 325-326; People v. Turner (1994) 8 Cal.4th 137, 177.)

20

Defendant asserts that we may reach the McLaughlin claim because it

“ ‘merely restates, under alternative legal principles, a claim otherwise identical to

one that was properly preserved by a timely motion that called upon the trial court

to consider the same facts and to apply a legal standard similar to that which

would also determine the claim raised on appeal.’ ” (People v. Partida (2005) 37

Cal.4th 428, 436, quoting People v. Yeoman (2003) 31 Cal.4th 93, 117; see also

People v. Hines (1997) 15 Cal.4th 997, 1061.) We disagree. The focus of the

Edwards claim that defendant raised is whether defendant initiated any

questioning that occurred after he invoked his Miranda rights. (Edwards v.

Arizona, supra, 451 U.S. at pp. 484-487.) The focus of defendant’s McLaughlin

claim is the very different inquiry into whether there was an emergency or other

extraordinary circumstance justifying the delayed probable cause hearing.

(McLaughlin, supra, 500 U.S. at p. 57.) As defendant himself points out, there is

no evidence in the record on the latter issue. That is because defendant did not

object on Fourth Amendment grounds at trial and thus did not give the prosecution

an opportunity to make a record justifying the delay. (See People v. Hughes,

supra, 27 Cal.4th at p. 326.)

Defendant argues that his McLaughlin claim should be heard on appeal

despite his failure to raise it at trial because the United States Supreme Court has

held that McLaughlin is retroactive to cases that were pending on direct review

when the decision was announced. (Powell v. Nevada (1994) 511 U.S. 79, 85; see

also Anderson v. Calderon (9th Cir. 2000) 232 F.3d 1053, 1069-1070.) We

disagree. The high court in Powell expressly left open for determination on

remand “the consequences of Powell’s failure to raise the federal question.”

(Powell v. Nevada, supra, 511 U.S. at p. 84.) Moreover, retroactivity analysis is

beside the point. The high court decided McLaughlin in May 1991, months before

the crimes in this case occurred and over a year before defendant moved to

21

suppress his statements. Under these circumstances, defendant is charged with

knowledge of the decision in McLaughlin, supra, 500 U.S. 44, and his failure to

raise the claim at trial forfeits it.

B. Change

of

Venue

Defendant asserts that the trial court’s denial of his motion for a change of

venue violated state law (§ 1033, subd. (a)) and his rights to due process, a fair

trial and an impartial jury under the Sixth and Fourteenth Amendments to the

United States Constitution and under article I, section 16 of the California

Constitution.6

Before trial, defendant moved for a change of venue, or in the alternative

for countywide jury selection, on the ground that otherwise a fair trial could not be

had because of prejudicial pretrial publicity. In support of the motion, the defense


6

With respect to this and many other claims raised on appeal, defendant

urges that the error or misconduct he is asserting infringed on various federal
constitutional rights to a fair and reliable trial. In most instances, insofar as
defendant raised the issue at all in the trial court, he failed explicitly to make some
or all of the constitutional arguments he now advances. In each instance, unless
otherwise indicated, it appears that either (1) the appellate claim is of a kind (for
example, failure to declare a doubt concerning defendant’s competence, failure to
instruct sua sponte, or erroneous instruction affecting defendant’s substantial
rights) that required no trial court action by the defendant to preserve it, or (2) the
new arguments do not invoke facts or legal standards different from those the trial
court itself was asked to apply, but merely assert that the trial court’s act or
omission, insofar as erroneous for the reasons actually presented to that court, had
the additional legal consequence of violating the Constitution. To that extent,
defendant’s new constitutional arguments are not forfeited on appeal. (See
People v. Partida, supra, 37 Cal.4th at pp. 433-439; see also People v. Cole (2004)
33 Cal.4th 1158, 1195, fn. 6; People v. Yeoman, supra, 31 Cal.4th at p. 117.)


“On the merits, no separate constitutional discussion is required, or

provided, where rejection of a claim that the trial court erred on the issue
presented to that court necessarily leads to rejection of any constitutional theory or
‘gloss’ raised for the first time here.” (People v. DePriest (2007) 42 Cal.4th 1, 19,
fn. 6.)

22

submitted copies of local newspaper articles about the crimes and court

proceedings, and videotapes of televised news coverage. On September 14, 1992,

the court held a lengthy hearing, during which it viewed the videotapes.

After entertaining argument, the trial court denied the motion. It concluded

that the news coverage was largely factual rather than inflammatory and that the

bulk of it had occurred a year before the hearing on the motion; that the juror

questionnaires revealed that although the prospective jurors had general

knowledge about the crimes, they were not prejudiced against the defendants; that

there was no requirement that the jurors be completely ignorant of the facts of the

crimes; and that voir dire would reveal if any particular juror was biased and

unable to serve.

Defendant renewed his motion for change of venue several times during the

trial. Each time, the trial court denied it for essentially the same reasons it had

denied the original motion, except the trial court noted additionally that there was

no indication the chosen jurors had prejudged the case.

A trial court must grant a change of venue if “there is a reasonable

likelihood that a fair and impartial trial cannot be had in the county” in which the

charges were brought. (§ 1033, subd. (a); see Sheppard v. Maxwell (1966) 384

U.S. 333, 362; People v. Bonin (1988) 46 Cal.3d 659, 672, overruled on other

grounds in People v. Hill (1998) 17 Cal.4th 800, 823; Maine v. Superior Court

(1968) 68 Cal.2d 375.) Among the factors the trial court considers in ruling on a

motion for change of venue are “ ‘ “the nature and gravity of the offense, the size

of the community, the status of the defendant, the popularity and prominence of

the victim, and of course the nature and extent of the publicity.” ’ ” (People v.

Massie (1998) 19 Cal.4th 550, 578; see also People v. Ramirez (2006) 39 Cal.4th

398, 434.) The ultimate question for the trial court is “whether on the peculiar

facts of the individual case [citation] there is a reasonable likelihood that the jurors

23

who will be, or have been, chosen for the defendant’s trial have formed such fixed

opinions as a result of pretrial publicity that they cannot make the determinations

required of them with impartiality.” (People v. Bonin, supra, at pp. 672-673.)

Defendant, as the moving party, bears the burden of proof. (Id. at p. 673.) “A

denial of a motion for change of venue will be upheld on appeal unless the record

shows both that it was ‘ “reasonably likely [that] a fair trial could not be had at the

time the motion was made,” ’ and that it was ‘ “reasonably likely a fair trial was

not in fact had.” ’ ” (People v. Massie, supra, at p. 578.) “Reasonably likely” in

this context means something less than “ ‘ “more probable than not,” ’ ” but

something more than “merely possible.” (People v. Williams (1989) 48 Cal.3d

1112, 1126; see People v. Bonin, supra, at p. 673.)

Here, the charges included five counts of first degree murder with special

circumstances as well as numerous kidnapping, robbery, and other charges. As in

People v. Ramirez, a case involving 12 murders, “[t]he ‘nature and gravity’ of the

present offenses could not have been more serious, but this factor alone does not

require a change of venue.” (People v. Ramirez, supra, 39 Cal.4th at p. 434.)

Further, “[n]either defendant nor the victims were known to the public prior to the

crimes and defendant’s arrest,” so two additional factors — the status of the

defendant and the popularity and prominence of the victim — do not support a

change of venue. (Ibid.; see People v. Coffman and Marlow (2004) 34 Cal.4th 1,

46.) Defendant notes that he is Black and that two of his victims — Nisbet and

Denogean — were middle-class White women. Defendant’s other victims,

however, were themselves minorities: Sams was Black, while Avina, Ramirez,

Valdez, Rios, and Aguirre apparently were Hispanic. Although some prejudice

may have arisen from the racial difference between defendant and seven of the

victims, “this element of possible prejudice presumably would follow the case to

24

any other venue.” (People v. Prince (2007) 40 Cal.4th 1179, 1214; see also

People v. Dennis (1998) 17 Cal.4th 468, 523.)

We focus our attention, therefore, on the two remaining factors: the size of

the community and the nature and extent of the media coverage. First, the crimes

occurred in Los Angeles County, “the largest and most populous in California”

(People v. Williams (1997) 16 Cal.4th 635, 655), a factor that normally would

weigh heavily against a change of venue (see ibid.). Without citation to the

record, however, defendant contends that the jury selection occurred in the San

Gabriel Valley, a “discrete segment” of Los Angeles County, while the Attorney

General responds, also without citation to the record, that “the selection of the jury

from the area surrounding the Pomona courthouse . . . represents a population

exceeding that of most counties.” Assuming the San Gabriel Valley was the

primary source for jurors, that area encompasses several cities, including Covina,

West Covina, Baldwin Park, Walnut, and Glendora. Juror questionnaires reveal

that potential jurors came from all of these cities and from Pomona, Claremont, La

Puente, Duarte, Hacienda Heights, Rowland Heights, La Verne, Diamond Bar,

Valinda, and San Dimas. These cities all are part of the greater Los Angeles area,

a “ ‘populous metropolitan area’ ” in which we assume “the ‘adversities of

publicity [were] considerably offset.’ ” (People v. Harris (1981) 28 Cal.3d 935,

949 (plur. opn. of Clark, J.).) Under these circumstances, we conclude that

defendant failed to meet his burden (see People v. Bonin, supra, 46 Cal.3d at

p. 673) of establishing that the small size of the relevant community weighed in

favor of a venue change.

Further, this case did not involve the type of political controversy that has

justified changes of venue from Los Angeles County in past cases. (See, e.g.,

Powell v. Superior Court (1991) 232 Cal.App.3d 785, 798-802 [White police

officers charged with videotaped beating of Black motorist Rodney King]; Smith

25

v. Superior Court (1969) 276 Cal.App.2d 145, 148-149 [bribery and perjury

charges against city commissioner].)

The final factor we consider is the extent and nature of the media coverage.

The defense presented 39 articles from four newspapers, spanning a period of 13

months from August 1991 through September 1992. The defense also presented

approximately 95 minutes of videotaped television coverage.7 Certainly, the

evidence of media coverage was considerably less extensive than in other cases in

which we have affirmed denials of motions to change venue. (See, e.g., People v.

Prince, supra, 40 Cal.4th at pp. 1210-1214 [270 newspaper articles and extensive

television coverage]; People v. Ramirez, supra, 39 Cal.4th at p. 434 [trial court

described media coverage as “ ‘saturation, as much as they possibly can give’ ”];

People v. Sully (1991) 53 Cal.3d 1195, 1237 [193 newspaper articles, 300 pages of

television transcripts, and eight videotapes].)

The nature of the media coverage weighs a bit more in defendant’s favor.

We agree with the trial court that much of the coverage was “largely factual, and

noninflammatory.” (See Murphy v. Florida (1975) 421 U.S. 794, 800-801, fn. 4

[distinguishing “largely factual publicity from that which is invidious or

inflammatory”]; see also id. at p. 802.) Nonetheless, many articles and broadcasts

used inflammatory terms such as “execution-style,” “rampage,” “cold-blooded,”

“spree of terror,” and “execution bandits” to describe the crimes and the

defendants. The articles and broadcasts emphasized how the crimes had gotten

“under the skin” of San Gabriel Valley residents and “reached into the mainstream

of suburban life” due to the random selection of victims who were engaged in


7

Two videotapes that could not be played at the hearing because they were

in an unusable format, and that this court similarly was unable to view, are not
included in the 95-minute total.

26

everyday activities. One article quoted a detective as stating the victims were “all

of us.”

Additionally, some of the articles and broadcasts revealed facts about the

crimes and defendant that were inadmissible against defendant at trial, including

defendant’s prior incarceration, his gang affiliations, and the content of

codefendant Huber’s confessions. The articles and broadcasts also revealed

potentially prejudicial information, such as defendant’s status as a suspect in

several other unsolved offenses, and that he had confessed in detail to several of

the murders.

On balance, however, we find this factor did not compel a change of venue.

Most of the coverage — and nearly all of the potentially inflammatory coverage

— occurred in September and November 1991, nearly a year before jury selection

occurred. Although a brief flurry of articles appeared in September 1992,

immediately before jury selection, those articles focused on codefendant

Hubbard’s competency hearing and recounted the facts of the crimes only in

summary form. As we have noted, the passage of time diminishes the potential

prejudice from pretrial publicity. (People v. Bonin, supra, 46 Cal.3d at p. 677; see

also People v. Ramirez, supra, 39 Cal.4th at pp. 434-436; People v. Williams,

supra, 16 Cal.4th at p. 655.) Moreover, some of the potentially prejudicial

information revealed in the articles and broadcasts, such as the content of

defendant’s confessions, was admitted against him at trial, so no prejudice

resulted. (People v. Ramirez, supra, at p. 436.)

Further, although a large portion — 72 percent, according to defense

counsel — of potential jurors who responded to questionnaires had heard

something about the case, the trial court concluded that most of those jurors

remembered the case only in general terms, seemed to have no independent

recollection of the facts, and had not prejudged defendant’s guilt. Defendant does

27

not dispute that assessment. As we have explained, the vagueness of jurors’

recollections of past news coverage may “suggest[] the absence of prejudice.”

(People v. Prince, supra, 40 Cal.4th at p. 1215.) Moreover, there is no

requirement that jurors be totally ignorant of the facts of a case, as long as they

can lay aside their impressions and render an impartial verdict. (People v.

Williams, supra, 16 Cal.4th at p. 655.) In sum, we conclude defendant did not

meet his burden of establishing a reasonable likelihood that a fair and impartial

trial could not be had in Los Angeles County.

We further conclude that on appeal defendant has not shown a reasonable

likelihood that he did not receive a fair trial before an impartial jury. The jury voir

dire bore out the trial court’s conclusion that a fair jury could be chosen. Each

juror assured the trial court that he or she could be unbiased notwithstanding

exposure to media reports about the case. Although the jurors’ assurances of

impartiality are not dispositive (see People v. Jennings (1991) 53 Cal.3d 334, 361;

Murphy v. Florida, supra, 421 U.S. at p. 800), neither are we free to ignore them

(see Smith v. Phillips (1982) 455 U.S. 209, 217, fn. 7; DeLisle v. Rivers (6th Cir.

1998) 161 F.3d 370, 384). We have in the past relied on jurors’ assurances that

they could be impartial. (People v. Panah (2005) 35 Cal.4th 395, 448; People v.

Coffman and Marlow, supra, 34 Cal.4th at p. 46.) Absent a showing that the

pretrial publicity was so pervasive and damaging that we must presume prejudice

(see Patton v. Yount (1984) 467 U.S. 1025, 1031; Murphy v. Florida, supra, at

pp. 798-799), we do the same here. Considering all the circumstances, defendant

has not established a reasonable likelihood, as opposed to a mere possibility, that

he did not in fact receive a fair trial before impartial jurors. (See People v. Bonin,

supra, 46 Cal.3d at pp. 673-679.)

Finally, defendant asserts that the trial court abused its discretion by

considering only one of the five factors relevant to the weighing process — the

28

nature and extent of media coverage. We disagree. Although the court did not

discuss all of the five factors in considering defendant’s motion for a change of

venue, it focused on the salient inquiry — whether it was reasonably likely that

pretrial publicity had caused potential jurors to form such fixed opinions of

defendant’s guilt that they could not render an impartial verdict. (See People v.

Bonin, supra, 46 Cal.3d at pp. 672-673.) No abuse of discretion occurred.

C. Joint Trial Issues

In this part, we consider defendant’s closely related claims that the trial

court erred in denying his pretrial motion for severance and in admitting in

evidence at the guilt phase the redacted statements of codefendant Huber.

1. Denial of severance

Defendant contends that the trial court’s denial of his motion for severance

or for separate juries was erroneous and violated his rights under the Fifth, Sixth,

Eighth, and Fourteenth Amendments to the federal Constitution and corresponding

provisions of California law, requiring reversal of the guilt and penalty judgments.

For the reasons outlined below, we conclude defendant is not entitled to relief.

a. Facts

After his arrest, defendant made several statements to law enforcement

officers implicating himself and his codefendants in the Avina, Sams, Nisbet, and

Denogean crimes. After her arrest, codefendant Huber made several statements to

law enforcement officers implicating defendant, herself, and her other

codefendants in the Avina, Valdez, Sams, Nisbet, and Denogean crimes.

Codefendants Hubbard and Machuca made no postarrest statements to law

enforcement officers, although some of Hubbard’s prearrest statements were

introduced into evidence at trial.

29

Before trial, defendant and his codefendants each moved to sever his or her

trial or, in the alternative, for a separate jury. Each argued that a joint trial would

be unfair because, among other reasons, the prosecution intended to introduce into

evidence the statements defendant and codefendant Huber had made to police that

implicated other defendants, in violation of People v. Aranda (1965) 63 Cal.2d

518 (Aranda) and Bruton v. United States (1968) 391 U.S. 123 (Bruton). The

prosecutor opposed the motion, arguing the statements could be redacted to

remove references to the other codefendants. The prosecutor submitted proposed

redacted statements to the court. At the hearing on the motion, defendant argued

that a joint trial would be unfair because codefendant Huber’s statements

implicated him in the charged crimes and because the proposed redaction of his

own statements inaccurately portrayed him as the sole perpetrator of several of the

crimes. The trial court denied the motions, concluding that the proposed

redactions sufficiently protected each defendant’s rights. Later, during trial, the

court ordered further redactions. The redacted statements of defendant and

codefendant Huber were read to the jury during trial. The jury was instructed to

consider these statements against the speaker only and not against any other

defendant.

b. Legal

framework

Our Legislature has expressed a preference for joint trials. (People v.

Boyde (1988) 46 Cal.3d 212, 231.) Section 1098 provides in pertinent part:

“When two or more defendants are jointly charged with any public offense,

whether felony or misdemeanor, they must be tried jointly, unless the court

order[s] separate trials.” The court may, in its discretion, order separate trials if,

among other reasons, there is an incriminating confession by one defendant that

implicates a codefendant, or if the defendants will present conflicting defenses.

30

(People v. Avila (2006) 38 Cal.4th 491, 574-575; People v. Massie (1967) 66

Cal.2d 899, 917.) Additionally, severance may be called for when “there is a

serious risk that a joint trial would compromise a specific trial right of one of the

defendants, or prevent the jury from making a reliable judgment about guilt or

innocence.” (Zafiro v. United States (1993) 506 U.S. 534, 539 [addressing

severance under Fed. Rules Crim. Proc., rule 14, 18 U.S.C.]; People v. Coffman

and Marlow, supra, 34 Cal.4th at p. 40.)

We review a trial court’s denial of a severance motion for abuse of

discretion based on the facts as they appeared when the court ruled on the motion.

(People v. Hardy (1992) 2 Cal.4th 86, 167.) If we conclude the trial court abused

its discretion, reversal is required only if it is reasonably probable that the

defendant would have obtained a more favorable result at a separate trial. (People

v. Coffman and Marlow, supra, 34 Cal.4th at p. 41; People v. Keenan (1988) 46

Cal.3d 478, 503.) If the court’s joinder ruling was proper when it was made,

however, we may reverse a judgment only on a showing that joinder “ ‘resulted in

“gross unfairness” amounting to a denial of due process.’ ” (People v. Mendoza

(2000) 24 Cal.4th 130, 162.)

Here, defendant was charged along with at least one of his codefendants in

each count with having committed “common crimes involving common events

and victims.” (People v. Keenan, supra, 46 Cal.3d at p. 500.) The court

accordingly was presented with a “ ‘classic case’ ” for a joint trial. (People v.

Coffman and Marlow, supra, 34 Cal.4th at p. 40, quoting People v. Keenan, supra,

at pp. 499-500; see also People v. Avila, supra, 38 Cal.4th at p. 575.) Defendant

contends, nonetheless, that severance was warranted because (1) the admission of

the statements of his codefendants Huber and Hubbard prejudiced him; (2) the

redaction of his own statements denied him crucial exculpatory and mitigating

31

evidence; and (3) the defenses presented by his three codefendants were

antagonistic to his defense. We address each contention below.

c. Statements of codefendants Huber and Hubbard

Defendant first argues that severance was required because the joint trial

resulted in the introduction into evidence of out-of-court statements by

codefendants Huber and Hubbard that implicated defendant, in violation of

defendant’s rights under Aranda and Bruton. Consideration of defendant’s claim

requires that we review the governing law in some detail.

A criminal defendant has a right, guaranteed by the confrontation clause of

the Sixth Amendment to the United States Constitution, to confront adverse

witnesses. The right to confrontation includes the right to cross-examination.

(Pointer v. Texas (1965) 380 U.S. 400.) A problem arises when a codefendant’s

confession implicating the defendant is introduced into evidence at their joint trial.

If the declarant codefendant invokes the Fifth Amendment right against self-

incrimination and declines to testify, the implicated defendant is unable to cross-

examine the declarant codefendant regarding the content of the confession.

In Bruton, the United States Supreme Court held that the admission into

evidence at a joint trial of a nontestifying codefendant’s confession implicating the

defendant violates the defendant’s right to cross-examination guaranteed by the

confrontation clause, even if the jury is instructed to disregard the confession in

determining the guilt or innocence of the defendant. (Bruton, supra, 391 U.S. at

pp. 127-128, 135-137.) The high court reasoned that although juries ordinarily

can and will follow a judge’s instructions to disregard inadmissible evidence,

“there are some contexts in which the risk that the jury will not, or cannot, follow

instructions is so great, and the consequences of failure so vital to the defendant,

that the practical and human limitations of the jury system cannot be ignored.”

32

(Id. at p. 135.) Such a context is presented when “the powerfully incriminating

extrajudicial statements of a codefendant, who stands accused side-by-side with

the defendant, are deliberately spread before the jury in a joint trial.” (Id. at

pp. 135-136.)

Three years before Bruton, we had come to a similar conclusion on state

law grounds, but we also concluded that the codefendant’s confession may be

introduced at the joint trial if it can be edited to eliminate references to the

defendant without prejudice to the confessing codefendant. (Aranda, supra, 63

Cal.2d at pp. 530-531.) If not, and the prosecution insists on introducing the

confession, the trial court must sever the trials. (Ibid.)

The high court limited the scope of the Bruton rule in Richardson v. Marsh

(1987) 481 U.S. 200 (Richardson). There, defendant Marsh was jointly tried with

one Williams for murder. Williams’s confession was introduced into evidence,

but it was edited to remove any reference to Marsh. The high court held that

admission of Williams’s confession with a limiting instruction did not violate

Marsh’s confrontation rights. The court explained that Bruton recognized a

narrow exception to the general rule that juries are presumed to follow limiting

instructions, and this narrow exception should not apply to confessions that are not

incriminating on their face, but become so only when linked with other evidence

introduced at trial. (Richardson, supra, at pp. 206-207.) That is because, “[w]here

the necessity of such linkage is involved, it is a less valid generalization that the

jury will not likely obey the instruction to disregard the evidence.” (Id. at p. 208.)

Accordingly, the high court held, “the Confrontation Clause is not violated by the

admission of a nontestifying codefendant’s confession with a proper limiting

instruction when . . . the confession is redacted to eliminate not only the

defendant’s name, but any reference to his or her existence.” (Id. at p. 211, italics

added.)

33

In People v. Fletcher (1996) 13 Cal.4th 451, we addressed a question

expressly left open in Richardson: whether the admission into evidence of a

codefendant’s confession in which the defendant’s name has been replaced with a

blank space, the word “delete,” a symbol, or a neutral pronoun violates the

confrontation clause. (See Richardson, supra, 481 U.S. at p. 211, fn. 5.) We

reasoned that “editing a nontestifying codefendant’s extrajudicial statement to

substitute pronouns or similar neutral terms for the defendant’s name will not

invariably be sufficient to avoid violation of the defendant’s Sixth Amendment

confrontation rights.” (People v. Fletcher, supra, 13 Cal.4th at p. 468.) We

explained that “the sufficiency of this form of editing must be determined on a

case-by-case basis in light of the statement as a whole and the other evidence

presented at trial.” (Ibid.) We acknowledged that because the issue we faced was

one of federal constitutional law, our holding “may not be the last word.” (Id. at

p. 469, fn. 6.)

The high court reached a similar conclusion in Gray v. Maryland (1998)
523 U.S. 185 (Gray). There, the defendant and his codefendant were jointly tried

for murder. Admitted into evidence was the codefendant’s edited confession in

which a blank space or the word “deleted” was substituted for the defendant’s

name wherever it appeared in the confession. The high court concluded that the

admission of the edited statement violated Bruton, supra, 391 U.S. 123, because

“[r]edactions that simply replace a name with an obvious blank space or a word

such as ‘deleted’ or a symbol or other similarly obvious indications of alteration

. . . leave statements that, considered as a class, so closely resemble Bruton’s

unredacted statements that . . . the law must require the same result.” (Gray,

supra, at p. 192, italics added; see id. at p. 197.) That was because in context such

statements operate just like a confession that names the defendant — they point an

accusatory finger at the person “sitting at counsel table,” i.e., the defendant on

34

trial. (Id. at p. 193.) The court acknowledged that a jury had to use inference to

connect the blanks in the redacted statement to the defendant, and that

Richardson placed outside the scope of Bruton’s rule those statements that

incriminate inferentially.” (Id. at p. 195.) The court concluded, however, that

Richardson’s application depended “in significant part upon the kind of, not the

simple fact of, inference.” (Id. at p. 196.) When, despite redaction, the statement

“obviously refer[s] directly to someone, often obviously the defendant, and . . .

involve[s] inferences that a jury ordinarily could make immediately, even were the

confession the very first item introduced at trial” (id. at p. 196, italics added) the

Bruton rule applied and introduction of the statement at a joint trial violated the

defendant’s rights under the confrontation clause. (Gray, supra, at pp. 196-197.)

i. Codefendant Huber’s statements

The trial court denied defendant’s motion to sever after the prosecution

proposed to introduce codefendant Huber’s statements in a redacted form that

eliminated direct references to defendant but did not eliminate all references to the

existence of one or more accomplices. Judging the circumstances as they

appeared at the time of the ruling on the motion (see People v. Cleveland (2004)

32 Cal.4th 704, 726), the trial court did not abuse its discretion. Although we

assume below that the admission of codefendant Huber’s redacted statements

violated defendant’s rights under Aranda and Bruton, our assumption is based on

Gray, supra, 523 U.S. 185, decided in 1998, six years after defendant’s 1992 trial.

Before Gray, the law regarding the admissibility of redacted codefendant

confessions was unsettled. (See, e.g., People v. Fletcher, supra, 13 Cal.4th 451.)

Although Gray is retroactive to this case and we apply it here, we cannot fault the

trial court for failing to anticipate Gray’s holding. Moreover the trial court could

35

have excluded Huber’s statements altogether. Therefore, no abuse of discretion

appears in the denial of severance.

Nor did the joint trial itself result in gross unfairness depriving defendant of

a fair trial. Any assumed error occurred not when the trial court denied severance,

but when the court made the related but separate ruling admitting codefendant

Huber’s redacted statements. Moreover, as we shall explain, any assumed error

was harmless.

ii. Codefendant

Hubbard’s statements

Defendant also contends that the trial court erred in denying severance

because of two statements admitted at the joint trial for use against codefendant

Hubbard only. Evidence was introduced that codefendant Machuca’s teenage son,

Donald, said that Hubbard told him that Hubbard and defendant together shot

Sams. The trial court immediately instructed the jury to ignore this statement

when considering defendant’s guilt. Evidence also was introduced of a letter

Hubbard wrote to Donald from jail stating that defendant had gotten Hubbard and

Machuca “in here with his bullshit.” Because the trial court was not made aware

of this testimony at the time of the severance motion, no claim of abuse of

discretion may be predicated on it. (See People v. Hardy, supra, 2 Cal.4th at

p. 167.) Further, although introduction of the first statement violated Aranda,

supra, 63 Cal.2d 518, and Bruton, supra, 391 U.S. 123, because it expressly

incriminated defendant, any error was harmless beyond a reasonable doubt

(Chapman v. California (1967) 386 U.S. 18, 24) in light of the voluminous

evidence linking defendant to the Sams murder, including defendant’s own

statements acknowledging that he shot Sams. (See People v. Cummings (1993) 4

Cal.4th 1233, 1288, fn. 27.) The meaning of the second statement is so unclear

that it cannot even be said to incriminate, much less to powerfully incriminate,

36

defendant. Accordingly, the admission at the joint trial of these two statements

did not result in gross unfairness to defendant.

d. Editing

of

defendant’s statements

Defendant next argues that the trial court abused its discretion in denying

severance because the denial resulted in the introduction of his own statements,

edited under Bruton, supra, 391 U.S. 123, and Aranda, supra, 63 Cal.2d 518, to

remove references to his codefendants. Defendant asserts that the redacted

statements inaccurately portrayed him as the sole perpetrator of the crimes to

which he confessed, violating his rights to due process and a fair trial. He further

contends that the trial court’s ruling—because it prevented him from bringing out

the omitted portions of the statements on cross-examination unless he testified—

violated his state statutory and federal constitutional rights.

Severance may be necessary when a defendant’s confession cannot be

redacted to protect a codefendant’s rights without prejudicing the defendant.

(Aranda, supra, 63 Cal.2d at p. 530.) A defendant is prejudiced in this context

when the editing of his statement distorts his role or makes an exculpatory

statement inculpatory. (People v. Douglas (1991) 234 Cal.App.3d 273, 285-287.)

Ordinarily, in ruling on a severance motion, a trial court should review both

the unredacted and the redacted statements to determine whether the redactions so

distort the original statement as to result in prejudice to the defendant. (People v.

Douglas, supra, 234 Cal.App.3d at p. 286; People v. Matola (1968) 259

Cal.App.2d 686, 693.) Here, the trial court declined to read the unredacted

statements before ruling on the severance motion because, during the hearing,

codefendant Hubbard’s counsel orally pointed out the differences between the two

versions. Although the better practice might have been for the trial court itself to

read the unredacted statements, any error was harmless because, as we will

37

explain, the redacted statements did not distort the meaning of defendant’s

statements or make an exculpatory statement inculpatory.

We first note that although defendant’s edited statements excluded

references to his codefendants, it is evident the jury did not believe defendant had

acted alone, for it found at least one of his codefendants guilty along with him in

each set of crimes to which he confessed. Further, the participation of others was

clear from the redacted statements’ use of the passive voice. For example,

Detective Graves testified that defendant stated “the victim’s [Nisbet’s] hands and

feet were bound with duct tape,” implying that someone other than defendant

bound Nisbet’s hands and feet.

Moreover, the redactions did not distort defendant’s role in the crimes or

alter any of his explicit admissions as to his own actions in any material way. To

be sure, some of the changes — such as changing “we went to the mall” to “I went

to the mall” — did change the meaning of defendant’s statements and impliedly

overstated defendant’s role. (See People v. Tealer (1975) 48 Cal.App.3d 598,

603-604 & fn. 10 [changing “we” to “I” in defendant’s confession was error

because “the effect of the modification was to throw the entire onus of the planned

robbery on defendant”]; cf. People v. Duarte (2000) 24 Cal.4th 603, 622 (conc. &

dis. opn. of Baxter, J.) [statement of accomplice that was redacted to remove

references to defendant impliedly overstated accomplice’s role].) Further, some of

the redactions made it appear that defendant acknowledged participating in

conduct that he actually had attributed to codefendant Hubbard.8 Such instances


8

For example, in his unedited statement about the Nisbet homicide,

defendant said: “Then me and Vincent [Hubbard] got out of the car, told Robbin
[Machuca] to follow us. He [Hubbard] walked over first, took the gun out, got in
behind her the lady [sic] and told her ‘Don’t scream and don’t move.’ ” The
redacted statement read to the jury stated: “Then got out of the car, walked over


(footnote continued on next page)

38

were immaterial, however, in light of defendant’s consistent admissions in both

the unredacted and the redacted versions as to acts he himself performed that

constituted the elements of the charged offenses. Finally, nothing that was omitted

was exculpatory. In each of the unredacted statements regarding the Sams, Nisbet

and Denogean crimes, defendant admitted planning and participating in the

robberies with one or more of his codefendants, as well as kidnapping and

personally shooting the victims. In his unredacted statement about the Avina

crime, defendant admitted personally shooting Avina and taking his truck. That

his codefendants also participated in some way could not relieve defendant of

liability for his own criminal acts.

Defendant contends that the trial court’s ruling preventing him from cross-

examining witnesses as to the omitted portions of his statements violated section

356 of the Evidence Code, which provides in pertinent part: “Where part of an

act, declaration, conversation, or writing is given in evidence by one party, the

whole on the same subject may be inquired into by an adverse party.” This

provision permits the introduction of statements that are necessary for the

understanding of, or to give context to, statements already introduced. (People v.

Harrison (2005) 35 Cal.4th 208, 239; People v. Zapien (1993) 4 Cal.4th 929, 959.)

But limits on the scope of evidence permitted under Evidence Code section 356

may be proper when, as here, inquiring into the “whole on the same subject”

would violate a codefendant’s rights under Aranda or Bruton. (See People v.



(footnote continued from previous page)

first, took the gun out, got in behind her, the lady, and told her ‘don’t scream and
don’t move.’ ” In context the jury might have believed that defendant had
admitted that he “walked over first” and told Nisbet “don’t scream and don’t
move,” when in actuality defendant said Hubbard did those things.

39

Ervin (2000) 22 Cal.4th 48, 87.) Here, the trial court did not prevent defendant

from cross-examining the witnesses to bring out his own hearsay statements that

exculpated him or lessened his own role in the crimes. Nor, as in Ervin, did the

trial court prevent defendant from presenting nonhearsay testimony or evidence

that implicated his codefendants. (See ibid.) Rather, the trial court precluded

defendant only from bringing out his own hearsay statements that expressly

inculpated his codefendants. These limits were permissible notwithstanding

Evidence Code section 356.

Defendant also relies on cases interpreting Federal Rules of Evidence, rule

106 (28 U.S.C.), the federal counterpart to Evidence Code section 356. Even were

this rule binding on the states (but see People v. Chatman (2006) 38 Cal.4th 344,

381, fn. 15), it would not aid defendant. Also called the “rule of completeness,”

rule 106 is violated only if redaction of the defendant’s statement “ ‘distorts the

meaning of the statement or excludes information substantially exculpatory of the

declarant,’ United States v. Kaminski, 692 F.2d 505, 522 (8th Cir. 1982).” (United

States v. Dorrell (9th Cir. 1985) 758 F.2d 427, 434 -435; see also United States v.

Washington (D.C. Cir. 1991) 952 F.2d 1402, 1404.) Here, as we have explained,

the redactions did not distort the meaning of defendant’s statements or exclude

substantially exculpatory matter.

Finally, defendant claims that the trial court’s ruling restricting him from

cross-examining as to the redacted parts of his statement unless he testified

violated his Sixth Amendment right to confront and cross-examine witnesses and

his Fifth Amendment right against self-incrimination. (See United States v.

Walker (7th Cir. 1981) 652 F.2d 708, 713, quoting 1 Weinstein, Evidence (1st ed.

1979) § 1106[01], pp. 106-109 [“ ‘Forcing the defendant to take the stand in order

to introduce the omitted exculpatory portions of [a] confession is a denial of his

right against self-incrimination’ ”].) We disagree. Restricting cross-examination

40

to protect the rights of a codefendant does not violate the Fifth or Sixth

Amendments to the federal Constitution when the restriction does not materially

affect the defense or when the probative value of the excluded evidence is slight.

(See United States v. Washington, supra, 952 F.2d at p. 1404.) As we have seen,

that was the case here.

Further, even assuming it was error to admit the statements in redacted

form and to restrict cross-examination as to the redacted portions at this joint trial,

the error was harmless under any standard. Pointing to evidence that codefendant

Hubbard was known to carry the Smith & Wesson revolver and that the bullets

removed from the bodies of Sams and Nisbet could have been fired from that gun,

defendant argues that if the jury had heard his unredacted statements naming

Hubbard as his partner in those crimes, the jury might have concluded that it was

Hubbard who actually fired the bullets that killed both Sams and Nisbet. This

argument is unpersuasive in light of defendant’s consistent admissions in his

unredacted statements that he personally shot Sams and Nisbet after switching

guns with Hubbard. Further, the unredacted versions of defendant’s statements

contain all the evidence necessary to render defendant guilty at a minimum as an

accomplice to murder and thus eligible for the death penalty, regardless of

Hubbard’s participation. (See Tison v. Arizona (1987) 481 U.S. 137, 157-158 [a

capital sentence does not violate the Eighth Amendment where a defendant both

possesses a mental state of “reckless indifference to the value of human life” and

is a major participant in a felony that resulted in murder].)

Defendant further contends that the redacted portions of his statements

regarding the Sams, Nisbet, and Denogean crimes included material that was

relevant to several penalty phase factors, particularly section 190.3, factor (j),

which allows the jury to consider “[w]hether or not the defendant was an

accomplice to the offense and his participation in the commission of the offense

41

was relatively minor.” Nothing in defendant’s unredacted statements would have

shown his participation in these crimes was “relatively minor.” Defendant argues

that his edited statements regarding the Avina and Sams crimes omitted crucial

mitigating evidence, such as defendant’s statements that his stepfather, Donald

Deary, had killed his mother, and that defendant’s deceased mother had visited

defendant as a spirit. He asserts that this editing violated his Eighth Amendment

rights to counter aggravating evidence and to present mitigating evidence.

Nothing prevented defendant from bringing out this information at the penalty

phase, however. Moreover, the jury heard ample evidence at the penalty phase

regarding Deary, including that defendant believed Deary killed defendant’s

mother.

Finally, defendant argues that the jurors were falsely informed that the

statements were his “own words,” and that the trial court did not correct the

misimpression. We disagree with defendant’s premise. We do not think the jury

would have assigned much weight to the interrogating police officer’s introductory

statement, which was read to the jury, that defendant had been asked to tell the

officers in “his own words” what had occurred. Moreover, defendant did not

request a curative instruction, so he may not complain now of the trial court’s

failure to give one.

In sum, the introduction of defendant’s redacted statements and the

restriction on cross-examination regarding the unredacted statements, even if

erroneous, were harmless under any standard. Therefore, the trial court did not

abuse its discretion in denying severance on this ground. (People v. Hardy, supra,

2 Cal.4th at p. 167.) Nor did the denial of severance result in “gross unfairness”

justifying a new trial. (People v. Mendoza, supra, 24 Cal.4th at p. 162.)

42

e. Antagonistic

defenses

Defendant next argues that severance was warranted because the defenses

presented by his three codefendants were antagonistic to his defense. For

example, he asserts that codefendant Huber’s defense that she committed the

crimes because she was afraid of defendant was inconsistent with defendant’s

defense that in his confessions he exaggerated his own role to protect his

codefendants. Defendant did not raise the antagonistic defenses issue at trial,

however, so the trial court’s failure to grant severance on this ground was not an

abuse of discretion. (See People v. Mitcham (1992) 1 Cal.4th 1027, 1043-1048.)

In any event, antagonistic defenses do not warrant severance unless the acceptance

of one party’s defense would preclude acquittal of the other. (People v. Hardy,

supra, 2 Cal.4th at p. 168.) Here, defendant’s defense and those of his

codefendants were not so irreconcilable that only one could be guilty. The

prosecution presented independent evidence supporting each defendant’s

participation in the group’s mutual criminal endeavors. No gross unfairness

resulted from the joint trial. (See People v. Avila, supra, 38 Cal.4th at pp. 574-

576; People v. Coffman and Marlow, supra, 34 Cal.4th at p. 41; People v. Box

(2000) 23 Cal.4th 1153, 1195-1197.)

Defendant further contends that the joint trial prejudiced him at the penalty

phase because both the prosecutor and his codefendants’ counsel urged the jury to

compare defendant with his codefendants, whose penalty phase presentations were

“more compelling” than defendant’s. Defendant asserts that the joint penalty trial

thus violated his right under the Eighth Amendment to the United States

Constitution to an individualized determination of his sentence based on his own

character and background. (See Lockett v. Ohio (1978) 438 U.S. 586, 605;

Woodson v. North Carolina (1976) 428 U.S. 280, 304.) We disagree. The trial

court instructed the jury: “In this case you must decide separately the question of

43

the penalty as to each of the defendants.” The trial court also told the jury at the

guilt phase not to consider against one defendant evidence that had been admitted

only against another defendant. We have held that such instructions are adequate

to ensure individualized sentencing in joint penalty trials. (People v. Taylor

(2001) 26 Cal.4th 1155, 1173-1174.) Here, as in Taylor, nothing in the record

indicates the jury was unable to assess the penalty separately for each defendant.

No gross unfairness to defendant resulted from the joint penalty trial.

2. Aranda/Bruton

Defendant contends that the admission into evidence at his joint trial of

codefendant Huber’s out-of-court statements violated state law and deprived him

of his rights to confront and cross-examine witnesses under the Sixth Amendment

to the United States Constitution. (Bruton, supra, 391 U.S. 123; Aranda, supra,

63 Cal.2d 518.) As we will explain, we need not decide whether the admission of

codefendant Huber’s statement about the Avina crimes deprived defendant of his

Sixth Amendment right of confrontation because, even if there was error, it was

harmless beyond a reasonable doubt (Chapman v. California, supra, 386 U.S. at

p. 24) in relation to defendant’s convictions for the first degree murder and

robbery of Avina and the robbery-murder special circumstance, and we will vacate

the lying-in-wait special circumstance attendant to that murder on other grounds.

With respect to codefendant Huber’s statements about the Valdez, Nisbet, Sams

and Denogean crimes, we need not decide whether their admission deprived

defendant of his confrontation rights because, even if there was error, it was

harmless beyond a reasonable doubt (ibid.) for the reasons explained below.

a. Codefendant Huber’s statements — adequacy of limiting

instruction

At the outset, defendant asserts that the limiting instruction given to the

jury was inadequate to protect his Sixth Amendment rights because it was phrased

44

solely in terms of the male pronoun. The jury was instructed under CALJIC

No. 2.08: “Evidence has been received of a statement made by a defendant after

his arrest. Do not consider the evidence of such statements against other

defendants.” Because other instructions included both male and female pronouns,

defendant asserts that the jury would not have understood CALJIC No. 2.08 to

apply to statements by Huber, who was his girlfriend and codefendant. We

disagree. In addition to the quoted instruction, the jury was instructed: “Evidence

has been admitted against one or more of the defendants and not admitted as

against the others. Do not consider such evidence against the other defendants.”

The jury also was instructed: “The word ‘defendant’ applies equally to each

defendant unless you are expressly instructed otherwise.” Considering all the

instructions together, we conclude the jury would have understood CALJIC No.

2.08 in a commonsense manner to refer to the statements of both male and female

defendants.

b. Codefendant Huber’s statement regarding the Avina crimes

Codefendant Huber’s redacted statement about the Avina crimes, as

recounted by Deputy Gentzvein at trial, can be summarized as follows: On the

evening Jose Avina was killed, Huber was driving her car and following another

car owned and driven by Timmy Lane. Derrick Colbert was a passenger in Lane’s

car. Huber was aware of a plan to find a nice car, bump it so the driver would pull

over, and then forcibly take the car and any valuables in it. Huber stated: “Then if

they cooperated they would be all right and if they didn’t, then they were going to

shoot him.” Colbert and Lane spotted a red truck and began to follow it, with

Huber behind them. Lane’s car bumped the red truck. A few blocks later, the red

truck stopped. The driver was approached and told to get out of his truck. As he

was trying to drive away, the driver was shot once in the head with a 12-gauge

45

sawed-off shotgun. The truck rolled onto a lawn in front of a house. The driver’s

body was pulled out of the truck and dumped on the lawn. The truck started and

sped down the street; Huber and Colbert followed. They drove to Colbert’s house

in Baldwin Park. Stereo equipment and some CD’s were removed from the truck

and placed in Lane’s car. The truck then was driven to Pomona and abandoned.

Codefendant Huber’s statement does not fall neatly within either the Gray

or the Richardson rule. Unlike in Gray, the names of Huber’s accomplices were

not replaced with a blank or a symbol. On the other hand, the statement does not

completely eliminate any reference to the “existence” of accomplices (cf.

Richardson, supra, 481 U.S. at p. 211), for it uses the passive voice to describe the

actions of others. For example, the jurors heard that Huber told Detective

Gentzvein “she observed the victim [Avina] try to drive away, at which time he

was shot one time in the head.” Thus, the statement “obviously refer[s] directly to

someone.” (Gray, supra, 523 U.S. at p. 196, italics added.) Because only

defendant and Huber were on trial for the Avina crimes, the jurors might have

concluded that the “someone” implicated in Huber’s statement was defendant.

(See id. at p. 193 [“[a] juror who . . . wonder[ed] to whom the blank might refer

need only lift his eyes to [defendant], sitting at counsel table, to find what will

seem the obvious answer”].) But because the statement also mentioned Colbert

and Lane, the jurors might have concluded that the “someone” implicated was one

or both of them.

In People v. Archer (2000) 82 Cal.App.4th 1380, the Court of Appeal held

that the admission of a codefendant’s statement edited in a similar manner —

replacing subjects and active verbs with passive voice phrasing — violated the

defendant’s confrontation rights in the joint murder trial of the defendant and his

codefendant. The Court of Appeal in Archer reasoned that given the manner of

editing, the existence of a participant other than the codefendant was obvious from

46

the statement itself. Further, other evidence admitted at trial revealed that the

murder occurred at the defendant’s house, and there was no evidence that anyone

other than the defendant and his codefendant participated. Because the average

juror under those circumstances could not have avoided drawing the inference that

the defendant was the other participant, the statement was “ ‘ “powerfully

incriminating” ’ ” and its admission violated the defendant’s Sixth Amendment

right of confrontation. (Id. at p. 1390.)

We need not decide whether the reasoning of Archer is correct or whether

similar reasoning would compel a similar conclusion in this factually distinct case.

Even if it was error to admit Huber’s redacted statement about the Avina crimes,

any assumed error was harmless beyond a reasonable doubt in relation to the

jury’s consideration of the robbery count, the robbery-felony-murder theory, and

the robbery-murder special circumstance. This conclusion permits us to affirm

defendant’s convictions for the robbery and first degree murder of Avina and the

jury’s true finding on the robbery-murder special circumstance. Further, we need

not decide if any assumed error affected the lying-in-wait special circumstance,

because we will vacate the jury’s true finding on that special circumstance on

other grounds.

We turn first to the murder conviction. The prosecution advanced, and the

jury was instructed on, three theories of first degree murder in relation to the

Avina homicide: felony murder based on robbery, deliberate and premeditated

murder, and murder by means of lying in wait. The jury returned a general verdict

finding defendant guilty of the first degree murder of Avina. If any of these three

theories was legally insufficient because it was infected with prejudicial

Aranda/Bruton error, we must reverse the murder conviction “absent a basis in the

record to find that the verdict was actually based on a valid ground.” (People v.

47

Guiton (1993) 4 Cal.4th 1116, 1129, italics added; see also People v. Green (1980)

27 Cal.3d 1, 69.)

Here, there is a basis in the record for finding that the first degree murder

verdict rested on the robbery theory of felony murder: the jury’s true finding on

the robbery-murder special-circumstance allegation. “ ‘Because a jury must

unanimously agree that a special circumstance finding is true (§ 190.4), and the

jury in this case was so instructed, the jury’s finding that defendant killed [the

victim] in the course of committing [a robbery] indicates that the jury unanimously

found defendant guilty of first degree murder on the valid theory that the killing

occurred during the . . . commission of a [robbery].’ ” (People v. Hughes, supra,

27 Cal.4th at p. 368, quoting People v. Marshall (1997) 15 Cal.4th 1, 38, brackets

added in Hughes.) Thus, assuming the robbery-felony-murder theory is valid —

that is, not infected by any assumed Aranda/Bruton error — we may affirm the

first degree murder conviction.

Robbery is the taking of “personal property in the possession of another

against the will and from the person or immediate presence of that person

accomplished by means of force or fear and with the specific intent permanently to

deprive such person of such property.” (CALJIC No. 9.40.) Both robbery and

felony murder based on robbery require that the intent to rob arise before force or

fear is applied. Thus, “[i]f the defendant does not harbor the intent to take

property from the possessor at the time he applies force or fear, the taking is only a

theft, not a robbery.” (People v. Davis (2005) 36 Cal.4th 510, 562.) Similarly,

“an intent to steal that arises after the infliction of the fatal wounds cannot support

a felony-murder conviction.” (Id. at pp. 564-565.) Finally, the special

circumstance of murder during the commission of a robbery requires that the

murder be committed “in order to advance [the] independent felonious purpose” of

robbery. (People v. Green, supra, 27 Cal.3d at p. 61; see People v. Davis, supra,

48

at p. 568.) A robbery that is merely incidental to a murder does not suffice.

(People v. Green, supra, at p. 61.)

Here, there was strong evidence that defendant committed the crime of

robbery — that is, that he took Avina’s truck from Avina’s immediate presence

against Avina’s will by means of force or fear with the specific intent permanently

to deprive Avina of the truck. There also was strong evidence that defendant

killed Avina during the commission of that robbery, and that he killed Avina to

advance the commission of the robbery. (See People v. Green, supra, 27 Cal.3d at

p. 61.). Defendant told police that he was in a car headed to a party when his

friend’s car accidentally collided with Avina’s truck, and that he approached

Avina, demanded the keys to his truck, and shot him when he refused. Defendant

stated: “I put the gun to his face and told him I want the keys to his car. He tried

to be smart. Told him, he smile at me, didn’t get it right, reached down and I shot

him in the face.” Defendant also told police that he then drove off in the truck,

and later removed the truck’s cassette player, speakers, and other items. Avina’s

CD player, speakers, amplifier, and CD case were found in cars and apartments

linked to defendant and his friends. This evidence supports an inference that after

Avina refused to hand over the keys to the truck, defendant killed him to take the

truck and some of its contents. It also supports a strong inference that defendant

formed the intent to take the truck before shooting Avina. (See People v. Combs

(2004) 34 Cal.4th 821, 852.)

Although defendant claimed that he shot Avina in self-defense after Avina

reached for a gun, the physical evidence suggests otherwise. Avina suffered a

large wound to the left side of his face and head. The shot penetrated the side

panel of the truck to the rear of the driver’s door, at the level at which Avina’s

head would have been if he had been sitting upright in the driver’s seat. Shotgun

pellets were recovered from the interior of the truck’s passenger door and from the

49

floor between the passenger door and the seat. All of this evidence reasonably

suggested that defendant shot Avina while Avina was sitting up and facing

forward, and not, as defendant claimed, while Avina was reaching down to grab a

gun.

The strong evidence of guilt — including defendant’s own statements in

which he admitted all of the elements supporting the robbery-related counts and

the robbery-murder special circumstance — weighs heavily in favor of a

conclusion that any assumed error in the admission of Huber’s redacted statement

was harmless. We acknowledge that the prosecutor in closing argument relied

heavily on Huber’s statement in his description of the Avina murder. Nonetheless,

he did not explicitly urge the jury to rely on Huber’s statement when discussing

the robbery-related counts and the special circumstance, and he pointed out

defendant’s own statement that he demanded Avina’s keys before shooting Avina.

In light of the powerful evidence supporting the jury’s verdicts and findings and

the prosecutor’s minimal use of Huber’s statement in the relevant portions of his

closing argument, we conclude that any assumed error in the admission of Huber’s

redacted statement at the joint trial was harmless beyond a reasonable doubt

(Chapman v. California, supra, 386 U.S. at p. 24) in relation to the jury’s

consideration of the Avina robbery count, the robbery-felony-murder theory of

first degree murder, and the special circumstance of murder during the

commission of a robbery.

Because any assumed error was harmless beyond a reasonable doubt in

relation to the robbery theory of felony murder, and because there is a basis in the

record for determining that the jury’s first degree murder verdict in fact rested at

least in part on the robbery-felony-murder theory, we may affirm defendant’s

conviction for the first degree murder of Avina without addressing whether any

assumed error in the admission of Huber’s redacted statement affected the jury’s

50

consideration of the other two theories of first degree murder presented to it. (Cf.

People v. Boyd (1985) 38 Cal.3d 762, 770, cited with approval in People v.

Guiton, supra, 4 Cal.4th at p. 1130.) We also affirm defendant’s conviction for

the robbery of Avina and the jury’s true finding on the robbery-murder special

circumstance. We need not address whether the admission of Huber’s redacted

statement about the Avina crimes affected the jury’s true finding on the lying-in-

wait special circumstance because, as we will explain below, we vacate that

special circumstance on other grounds.

c. Codefendant Huber’s statements concerning the Valdez, Sams,

Nisbet, and Denogean crimes

Codefendant Huber gave the police detailed narrative statements about the

Valdez and Denogean incidents. The statements were redacted and read to the

jury in that form. Like her statement about the Avina crimes, each of those

redacted statements recounted, in the passive voice, the actions of one or more

other persons and therefore implicated someone. For example, the jury heard that

Huber said she “observed [Valdez] to be forcibly abducted,” she observed Valdez

exit the car in Azusa Canyon, and “a gun misfired” as Valdez jumped off a cliff.9

Similarly, the jury heard that Huber stated her car “was driven” around the mall

parking lot until Denogean was spotted, Denogean “was overcome and her hands

were bound,” money and an ATM card “was [sic] removed” from Denogean’s


9

Codefendant Huber’s full statement regarding the Valdez crimes, as

recounted by Detective Roderick Kusch of the Los Angeles County Sheriff’s
Department, can be summarized as follows: On the night Valdez was kidnapped,
Huber went in her car to a mini mall. A man was sleeping in a car in the parking
lot. Huber observed the man being abducted. She followed in her car as his car
was driven to Azusa Canyon. Both cars stopped by the side of the road. The man
got out of the car, a gun misfired, and the man jumped over the edge of the
mountain. Both cars then drove away.

51

purse, and Huber saw Denogean walk down an embankment and then heard shots

fired.10 Each of these statements implies the existence of one or more

accomplices. In that sense, they are similar to the statements in Gray which

“obviously refer directly to someone.” (Gray, supra, 523 U.S. at p. 196, italics

added.)

On the other hand, it is impossible to determine from the redacted

statements how many accomplices were involved in the Valdez and Denogean

crimes. Because three people in addition to Huber were on trial for those crimes,

reasonable jurors could have concluded that the statements referred not to

defendant, but to codefendants Hubbard or Machuca. Some courts have held that

when a redacted confession, as here, avoids a “one-on-one correspondence”

between the confession and an easily identifiable defendant, the confrontation

clause is not violated. (United States v. Hoover (7th Cir. 2001) 246 F.3d 1054,

1059; see also United States v. Sutton (7th Cir. 2003) 337 F.3d 792, 800 [where

only two people were involved in the crime together, any reference to “another”

person would necessarily refer to the defendant; but where there were many

individuals involved, “another individual” could refer to many people besides the

defendant]; accord, People v. Fletcher, supra, 13 Cal.4th at p. 466 [redaction to

substitute neutral, nonidentifying terms for the name of a codefendant will be


10

Codefendant Huber’s full statement about the Denogean murder, as

recounted by Detective Kusch, can be summarized as follows: On the day
Denogean was killed, Huber drove her car to the Puente Hills Mall. Denogean
was accosted and tied up. Huber followed Denogean’s Mercedes car to various
ATM machines where cash was withdrawn, then followed it onto the 60 freeway.
She pulled over to the shoulder and watched as Denogean was walked down the
embankment. She heard several shots. She followed the Mercedes to a welfare
office, where the car was wiped down to remove fingerprints. The Mercedes was
abandoned. After midnight, at a convenience store ATM, Huber withdrew $200
from Denogean’s account.

52

sufficient if the codefendant “was just one of a large group of individuals any one

of whom could equally well have been the coparticipant mentioned in the

confession”].)

The jury also heard that codefendant Huber told the police she was not

present when Sams was murdered, but she later came into possession of his ATM

card and used it to withdraw $60 from his bank account. This statement again

implicates someone because Huber implied she was aware that a murder had

occurred. It is not clear from the statement itself, however, who or how many

persons committed the murder, and both Hubbard and Machuca were charged

along with defendant for the crimes committed against Sams. Thus, the statement

is similar to Huber’s statements regarding the Valdez and Denogean crimes.

Regarding the Nisbet crimes, the jury heard that Huber said “someone” gave her

Nisbet’s ring “as an engagement ring.” Although the jury could have figured out

the “someone” was defendant because of other evidence that Huber and defendant

were dating, the statement does not directly accuse “someone” of Nisbet’s murder.

In any event, we need not decide whether the admission of codefendant

Huber’s statements about the Valdez, Sams, Nisbet, and Denogean crimes violated

defendant’s rights under Bruton, supra, 391 U.S. 123, or Aranda, supra, 63 Cal.2d

518, because any assumed error was harmless beyond a reasonable doubt.

(Chapman v. California, supra, 386 U.S. at p. 24.) Voluminous independent

evidence — including fingerprints, ATM security camera photos, ballistics

evidence, and most importantly defendant’s own statements — connected

defendant to the robbery, kidnapping, and murder of Sams, Nisbet, and Denogean.

Indeed, defendant’s own statements supplied all of the elements of the charged

offenses and special circumstances related to those victims. Although defendant

denied involvement in the Valdez robbery and kidnapping, Valdez identified

defendant at trial as one of his kidnappers, and the evidence suggested that parts of

53

Valdez’s car had been removed and placed on defendant’s car. Valdez’s

testimony supplied all of the elements of the charged offenses related to his

kidnapping and robbery. Codefendant Huber’s statements added little to support

defendant’s convictions for the Valdez, Sams, Nisbet, and Denogean offenses. In

argument, the prosecutor did not urge the jury to rely on Huber’s statements to

convict defendant of the charges involving Valdez, Sams, Nisbet, or Denogean.

Therefore, even assuming the jury considered Huber’s statements against

defendant as to those crimes and special circumstances, such consideration could

not have affected the verdicts. (People v. Ervin, supra, 22 Cal.4th at p. 88 [no

prejudice from admission of codefendants’ redacted statements in light of other

incriminating evidence].)

D. Jury Selection Issues

1. Prosecution’s peremptory challenges

During jury selection, defendant’s counsel made four separate motions for a

mistrial based on People v. Wheeler (1978) 22 Cal.3d 258, challenging the

prosecutor’s use of peremptory challenges to remove five Black prospective jurors

and prospective alternate jurors from the panel. The trial court denied each motion

after listening to the prosecutor’s reasons for the strikes. The trial court also

rejected defendant’s Wheeler motion challenging the prosecutor’s use of

peremptory challenges to remove young people from the jury. The jury that tried

defendant included two Black jurors, one of whom served as the foreman at the

guilt phase. The jury also included one Hispanic juror, who served as the foreman

at the penalty phase.

Defendant now contends that the prosecutor’s use of peremptory challenges

to remove Black, Hispanic, and young persons from the jury violated his rights

under the Fourteenth Amendment to the United States Constitution and article I,

54

section 16 of the California Constitution. (See Batson v. Kentucky (1986) 476

U.S. 79; People v. Wheeler, supra, 22 Cal.3d 258.)

It is well settled that “[a] prosecutor’s use of peremptory challenges to

strike prospective jurors on the basis of group bias — that is, bias against

‘members of an identifiable group distinguished on racial, religious, ethnic, or

similar grounds’ — violates the right of a criminal defendant to trial by a jury

drawn from a representative cross-section of the community under article I,

section 16 of the California Constitution.” (People v. Avila, supra, 38 Cal.4th at

p. 541, quoting People v. Wheeler, supra, 22 Cal.3d at pp. 276-277.) “Such a

practice also violates the defendant’s right to equal protection under the

Fourteenth Amendment to the United States Constitution.” (People v. Avila,

supra, 38 Cal.4th at p. 541, citing Batson v. Kentucky, supra, 476 U.S. at p. 88.)

When a defendant moves at trial to challenge the prosecution’s use of

peremptory strikes, the following procedures and standards apply. “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.’ [Citation.]

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.]” (Johnson v.

California (2005) 545 U.S. 162, 168, fn. omitted; see also Snyder v. Louisiana

(2008) ___ U.S. ___, ___ [128 S.Ct. 1203, 1207]; Miller-El v. Dretke (2005) 545

U.S. 231, 239.)

“[T]he critical question in determining whether [a party] has proved

purposeful discrimination at step three is the persuasiveness of the prosecutor’s

justification for his peremptory strike.” (Miller-El v. Cockrell (2003) 537 U.S.

55

322, 338-339.) The credibility of a prosecutor’s stated reasons for exercising a

peremptory challenge “can be measured by, among other factors . . . how

reasonable, or how improbable, the explanations are; and by whether the proffered

rationale has some basis in accepted trial strategy.” (Id. at p. 339.)

The existence or nonexistence of purposeful racial discrimination is a

question of fact. (See Miller-El v. Cockrell, supra, 537 U.S. at pp. 339-340.)

When the trial court has made a “ ‘sincere and reasoned attempt’ ” to evaluate the

prosecutor’s race neutral explanations for his exercise of peremptory strikes, we

review the trial court’s ruling on the question of purposeful discrimination under

the deferential substantial evidence standard. (People v. McDermott (2002) 28

Cal.4th 946, 971, quoting People v. Silva (2001) 25 Cal.4th 345, 385-386; see also

People v. Huggins (2006) 38 Cal.4th 175, 227.)

Because different considerations apply to each group that defendant

contends was improperly excluded, we examine each group separately below.

a. Black prospective jurors

i. Prospective Jurors C.S. and P.B.

Defendant made his first Wheeler motion11 after the prosecutor

peremptorily challenged Prospective Jurors C.S., a Black man, and P.B., a Black

woman. Without stating whether it had found a prima facie case, the trial court

asked “Mr. Urgo [prosecutor]?” The prosecutor explained that his reasons for

dismissing C.S. and P.B. were “based entirely on their views on the death


11

As noted, defendant’s counsel moved for a mistrial, citing People v.

Wheeler, supra, 22 Cal.3d 258. We conclude that the Wheeler issue and the
parallel Batson issue were properly raised. (People v. Yeoman, supra, 31 Cal.4th
at pp. 117-118.)

56

penalty.” After hearing argument from defense counsel, the trial court denied the

motion.

Before addressing whether substantial evidence supports the trial court’s

ruling, we address a preliminary matter. After defendant made his Wheeler

motions as to Prospective Jurors C.S. and P.B. (as well as S.F. and G.W.,

discussed below) and explained the basis for each motion, the trial court solicited

an explanation of reasons from the prosecutor without stating whether or not it had

found a prima facie case. As to Prospective Juror R.W., the prosecutor

volunteered his reasons without waiting for the trial court to ask. Here, “[b]y

requesting the prosecutor to explain his reasons for these challenges, the trial court

impliedly found that defendant had established a prima facie case.” (People v.

Hayes (1990) 52 Cal.3d 577, 605; see also People v. Arias (1996) 13 Cal.4th 92,

135; People v. Fuentes (1991) 54 Cal.3d 707, 716-717.) Contrary to the Attorney

General’s contention, this is not a case like People v. Bittaker (1989) 48 Cal.3d

1046, where we concluded that the trial court had not impliedly found a prima

facie case. In Bittaker, after soliciting the prosecutor’s response, the trial court

expressly found that a prima facie case had not been established. (Id. at pp. 1091-

1092.) Here, by contrast, “nothing in the record suggests” that the trial court had

not found a prima facie case. (People v. Hayes, supra, at p. 605, fn. 2.)

Moreover, by proffering his reasons for excusing R.W., the prosecutor

rendered moot the question whether a prima facie case existed. (See Hernandez v.

New York (1991) 500 U.S. 352, 359 [“Once a prosecutor has offered a race-neutral

explanation for the peremptory challenges and the trial court has ruled on the

ultimate question of intentional discrimination, the preliminary issue of whether

the defendant had made a prima facie showing becomes moot”].) We proceed to

the second and third steps of the Batson/Wheeler inquiry.

57

Defendant does not dispute that the prosecutor met his burden at the second

step of articulating a race-neutral explanation for each of the peremptory strikes

defendant challenged. (See Johnson v. California, supra, 545 U.S. at p. 168;

Purkett v. Elem (1995) 514 U.S. 765, 767-768.) Defendant argues, however, that

the trial court erred at the third step by finding that the prosecutor’s reasons for

excusing these prospective jurors were genuine and not pretextual. In this regard,

defendant asserts that we should not defer to the trial court’s findings because that

court did not make a “sincere and reasoned attempt” to evaluate the credibility of

the prosecutor’s proffered reasons, but rather denied each motion without any

comment or discussion. (See People v. Silva, supra, 25 Cal.4th at pp. 385-386;

People v. Hall (1983) 35 Cal.3d 161, 167-168.)

We disagree. The trial court denied the motions only after observing the

relevant voir dire and listening to the prosecutor’s reasons supporting each strike

and to any defense argument supporting the motions. Nothing in the record

suggests that the trial court either was unaware of its duty to evaluate the

credibility of the prosecutor’s reasons or that it failed to fulfill that duty. (People

v. McDermott, supra, 28 Cal.4th at p. 980; People v. Williams (1997) 16 Cal.4th

153, 189-190.) Moreover, the trial court was not required to question the

prosecutor or explain its findings on the record because, as we will explain, the

prosecutor’s reasons were neither inherently implausible nor unsupported by the

record. (People v. Silva, supra, 25 Cal.4th at p. 386.) Under these circumstances,

we apply the usual substantial evidence standard. (People v. McDermott, supra, at

p. 980; People v. Williams, supra, at pp. 189-190.)

The prosecutor explained that he struck Prospective Juror C.S. because C.S.

“preferred the reform approach rather than vote for death.” Substantial evidence

supports the conclusion that this reason was credible. On his questionnaire, C.S.

wrote that he was not a strong supporter of the death penalty. In response to a

58

question about how he felt about the death penalty, C.S. wrote: “I don’t agree or

disagree with the death penalty[.] [T]ry to reform that person reather [sic] than the

death penalty.” His answers to several other questions emphasized the possibility

of reform. When the prosecutor asked about those responses during voir dire, C.S.

stated: “I think that you could be reformed, yes.” Although C.S. also stated that

he felt he could make the decision between life imprisonment without parole and

the death penalty if asked to do so, on balance the record provides substantial

support for the trial court’s finding that the prosecutor reasonably was concerned

that C.S. might be reluctant to impose the death penalty. A prospective juror’s

feelings about the death penalty are reasonably related to trial strategy (see Miller-

El v. Cockrell, supra, 537 U.S. at p. 339) and are a legitimate race-neutral reason

for exercising a peremptory challenge (see People v. Ledesma (2006) 39 Cal.4th

641, 678; People v. Montiel (1993) 5 Cal.4th 877, 910, fn. 9).

Defendant asserts that a comparison of C.S.’s responses with the responses

of non-Black jurors whom the prosecutor did not excuse demonstrates that the

prosecutor’s reasons were pretextual. The United States Supreme Court has

instructed that such a comparative analysis may be a useful tool in proving

purposeful discrimination: “If a prosecutor’s proffered reason for striking a black

panelist applies just as well to an otherwise-similar nonblack who is permitted to

serve, that is evidence tending to prove purposeful discrimination to be considered

at Batson’s third step.” (Miller-El v. Dretke, supra, 545 U.S. at p. 241; see also

Snyder v. Louisiana, supra, ___ U.S. at p. ___ [128 S.Ct. at pp. 1211-1212.)

In recent cases, we have assumed without deciding that comparative juror

analysis is appropriate for the first time on appeal at the third step of the

59

Batson/Wheeler analysis. (People v. Stevens (2007) 41 Cal.4th 182, 196; People

v. Lewis and Oliver (2006) 39 Cal.4th 970, 1017-1024; People v. Ledesma, supra,

39 Cal.4th at pp. 679-680; People v. Avila, supra, 38 Cal.4th at p. 546; People v.

Huggins, supra, 38 Cal.4th at pp. 232-235; People v. Guerra (2006) 37 Cal.4th

1067, 1106.) We do the same here. In doing so, we bear in mind that “the

question is not whether we as a reviewing court find the challenged prospective

jurors similarly situated, or not, to those who were accepted, but whether the

record shows that the party making the peremptory challenges honestly believed

them not to be similarly situated in legitimate respects.” (People v. Huggins,

supra, at p. 233.)

Defendant points to two non-Black jurors whom the prosecutor did not

challenge who, like C.S., wrote on their questionnaires that they were not strong

supporters of the death penalty and who mentioned the role of rehabilitation.

Unlike C.S., however, neither of those jurors stressed the importance of

rehabilitation. J.A. stated in response to a question about the costs of

imprisonment that “[t]here may be a possibility of rehabilitation to help others in

prison.” And in response to a question about what government can do to solve the

crime problem, M.K. suggested “programs to rehabilitate.”12 In contrast, in

response to questions about whether the death penalty would be warranted in

particular situations, C.S. repeatedly stated that he “strongly disagreed” with the

statement because of the possibility of reform. In light of these responses, the

prosecutor reasonably could have believed that J.A.’s and M.K.’s views on


12

Before the start of trial, counsel stipulated that M.K. be excused for

personal medical reasons and be replaced by Alternate Juror M.H.

60

rehabilitation and reform were not similar to C.S.’s. Thus, the prosecutor’s failure

to challenge them does not undermine the credibility of his stated reason for

exercising a peremptory challenge against C.S.

The prosecutor struck Prospective Juror P.B. because she initially indicated

she felt unable to sit on a death penalty case and because in her questionnaire she

wrote she was unsure how she felt about the death penalty. The record supports

the trial court’s implied finding that these reasons were credible. On her

questionnaire, P.B. wrote she was not a strong supporter of the death penalty and

answered “not sure” in response to questions regarding whether the death penalty

would always be warranted in certain circumstances and to the question, “Tell us

how you feel about the death penalty.” On voir dire, when the prosecutor asked

the panel, “Is there anyone here now who feels that they just could not sit on a

death penalty case, they do not want to make that decision,” P.B. volunteered, “I

have to admit I’m not sure?” When questioned a few minutes later, she said: “I

could probably do it, but you know, it is just — right now I wouldn’t be sure, but

if I had to, I would.” These facts support the trial court’s assessment that the

prosecutor’s stated race-neutral reasons for peremptorily challenging P.B. were

genuine.

A comparative analysis again does not aid defendant. Defendant does not

claim that any of the non-Black sitting jurors, alternates or prospective jurors

whom the prosecutor did not strike volunteered, in response to a question to the

panel, that they felt they might not be able to sit on a death penalty jury.

Accordingly, the prosecutor reasonably could have believed that his proffered

reason for striking P.B. did not apply just as well to any other juror.

61

ii. Prospective Juror R.W.

Defendant made another Wheeler motion after the prosecutor used a

peremptory challenge to strike Prospective Juror R.W., a Black woman. Without

prompting by the trial court, the prosecutor volunteered his reasons for excusing

R.W.: “She seemed to have been educated, as most of the jurors, as to the exact

answers that will keep her on the jury, and I think the best as to what she said

originally, she said that she is not a strong supporter of death on [questionnaire

question No. 3]. She said that everyone is entitled to live, the death question

[No. 6], and death [question No. 11], she indicates that it is not always the answer.

[¶] I think when the time comes to it, she could not impose the death penalty,

regardless as to what she said in open court and that is why I kicked her.” The

trial court denied defendant’s Wheeler motion.

R.W.’s questionnaire responses support the prosecutor’s assessment that

she had scruples about the death penalty. R.W. wrote she was not a strong

supporter of the death penalty. Asked to explain her feelings on the death penalty,

she wrote: “It depends on the circumstances. I would have to know the crimes

involved.” In answer to a question about whether the death penalty helps society,

she wrote: “In a way yes and no. Yes because others may see what can happen to

them if they commit such a crime. And no because everyone is entitled to life.

R.W. “agreed somewhat” that the death penalty should always be imposed for

intentional murder and when the defendant intentionally killed more than one

person in separate incidents, but in the former situation she “would need to know

the circumstances involved.” Asked whether the death penalty was always

warranted in the case of a murder during the course of a burglary and sexual

attack, she wrote she “agreed somewhat” because the “death penalty is not always

62

the answer.” She strongly disagreed that “convicted murderers should be swiftly

executed.” On balance, these answers reflect some hesitation about the death

penalty, and the prosecutor reasonably could have believed they reflected R.W.’s

true feelings and undermined her assurance on voir dire that she would not

automatically vote for life imprisonment without possibility of parole.

Nothing in the record causes us to doubt the sincerity of the prosecutor’s

assessment. Defendant points to R.W.’s questionnaire responses that he asserts

reflect a stance favorable to the prosecution. For example, R.W. believed that

criminal sentences should be harsher. Both her fiancé and her uncle were in law

enforcement, and she had been a victim of crime and was fearful of being

victimized again. She described crimes that “deserve” the death penalty as

intentional murder, killing children, and “killing someone to where they are

unrecognizable.” None of these expressed feelings was inherently in conflict with

the prosecutor’s assessment that R.W. might be hesitant to impose the death

penalty in this case, which did not involve child victims or mutilation. R.W. also

wrote in her questionnaire that she would expect the defendant to testify. Her

written explanation, however, reflected a defense orientation; she stated, “I feel

they should be able to tell their own side.” And on voir dire, she assured defense

counsel that she would not hold it against a defendant if he or she did not testify.

In sum, R.W. did not express leanings so favorable to the prosecution that the

prosecutor could not honestly believe that she was hesitant about the death

penalty.

Defendant further argues that a comparative analysis shows that the

prosecutor’s reasons for striking Prospective Juror R.W. were pretextual. He

63

points to 14 non-Black jurors and prospective jurors whom the prosecutor did not

strike who, like R.W., wrote on their questionnaires they were not strong

supporters of the death penalty. But the prosecutor reasonably could have felt that

eight of these 14 panelists would be more willing than R.W. to impose the death

penalty, given their views about its social value. Thus, unlike R.W. (who, in

response to the question about whether the death penalty helps society, answered

“yes and no” because “everyone is entitled to life”), seven of these panelists (K.F.,

C.H., D.S., M.H., R.S., M.S., and H.D.) stated unequivocally in their

questionnaires that they believed the death penalty helps society in one or more

ways, such as by deterring crime, incapacitating the offender, saving the taxpayers

money, or maintaining social order. The other panelist (G.P.) did not believe the

death penalty helped society, but only because it was not used frequently enough

to have any deterrent value. The prosecutor’s failure to excuse these eight

panelists thus provides no evidence that his peremptory challenge against R.W.

was based on her race.

Regarding the other six non-Black jurors and prospective jurors defendant

identifies whom the prosecutor did not strike and who were not strong death

penalty supporters, their overall responses reflected more pro-death-penalty views

than R.W.’s. D.N. wrote that “there is a place for the death penalty”; that there

was “no other option” but the death penalty for some “horrendous” crimes; that

someone who kills more than one person in separate incidents should get the death

penalty because that person “has no respect for human life”; and that convicted

murderers should be swiftly executed. R.P. previously had served as a juror on a

death penalty case in which a verdict was reached, and stated on voir dire that he

had no problem with how the judicial system worked in that case. P.M. wrote on

64

her questionnaire that her support of the death penalty was 7 on a scale of 1 to 10,

in part because “I see no need for us to pay to house someone in prison for life”;

she believed that convicted murderers should be swiftly executed; and she strongly

agreed that a person who kills more than one person on separate occasions should

always receive the death penalty (although she retreated somewhat from that view

on voir dire). J.A. stated on her questionnaire that she strongly agreed that a

person who kills more than one person in separate incidents should always get the

death penalty and that convicted murderers should be swiftly executed because “if

a person has been given the death penalty I see no reason to wait.” M.K. stated

that she would lean in favor of the death penalty for a person who kills more than

one person on separate occasions. J.G. stated on her questionnaire that she was in

favor of the death penalty but would have to “be sure the circumstances of the

crime warranted it,” and that she believed serial killers should get the death

penalty. On the whole, the prosecutor reasonably could have believed that these

six prospective and selected jurors would be more favorably disposed toward the

death penalty than R.W., so his failure to excuse them does not support an

inference that his excusal of R.W. was based on her race.13

Finally, defendant contends that the prosecutor’s failure to ask R.W. any

questions on voir dire and his exercise of a peremptory challenge against her

immediately after passing her for cause reflect a “predetermined intention to

challenge her based on her race.” The United States Supreme Court has noted that

13

Defendant argues that on voir dire K.F., J.G., C.H., D.S., G.P., H.D., and

R.S. “repudiated their more strident positions” on the death penalty that had been
expressed in their questionnaires. Although some of these panelists clarified their
questionnaire answers after being educated on voir dire about death penalty law
and the trial process, we find nothing in their voir dire responses that reasonably
would have caused the prosecutor to believe that their views on the death penalty
were as unfavorable to the prosecution as R.W.’s.

65

a party’s failure to engage in meaningful voir dire on a topic the party says is

important can suggest the stated reason is pretextual. (Miller-El v. Dretke, supra,

545 U.S. at pp. 246, 250, fn. 8.) Here, the prosecutor’s failure to explore R.W.’s

views on voir dire is somewhat troubling. The prosecutor, however, had the

opportunity to observe R.W.’s demeanor during questioning by the trial court and

defense counsel, and, as explained above, no other of the 14 identified non-Black,

nonstricken jurors or prospective jurors expressed quite the level of hesitation

about the death penalty on his or her questionnaire that R.W. did. Therefore, the

prosecutor’s failure to question her on voir dire does not undermine the trial

court’s conclusion that the prosecutor’s stated reasons for striking her were not

pretextual.

iii. Prospective Juror S.F.

Defendant made another Wheeler motion after the prosecutor used a

peremptory challenge to strike Prospective Juror S.F., a Black woman. Counsel

for codefendant Machuca joined and noted that the prosecutor several times had

accepted a jury that included S.F. Turning to the prosecutor, the trial court asked:

“All right. Any comment?” The prosecutor explained that although he had been

willing to accept a jury that he was “not totally pleased with” on a number of

occasions, since he now had many more peremptory challenges available than the

defense did he had decided to use those challenges to dismiss jurors that he was

“not totally comfortable with.” He explained that he struck S.F. because she had a

degree in psychology, had taken many classes in psychology and sociology, and

had been a correctional counselor who evaluated committed felons. The

prosecutor expressed concern that S.F. would rely on her educational and

occupational background when evaluating anticipated psychiatric testimony at the

66

penalty phase and would not be inclined to vote for the death penalty. The trial

court denied defendant’s Wheeler motion.

The record supports the trial court’s conclusion that the prosecutor’s stated

reasons were credible. S.F. was a Parole Agent III for the State of California who

in her questionnaire described her previous occupation as “Correctional counselor

— Diagnostic evaluations from a sociological standpoint on committed felons” in

a men’s prison. In response to a question about whether she had taken courses in

the behavioral sciences, she wrote: “Many, many, many, B.S. Psychology, minor

Sociology. You name it, I probably took it to get the degree.” In light of this

educational and occupational background, the prosecutor reasonably could have

been concerned that S.F. would rely on her background and would be disinclined

to vote for the death penalty.

Defendant contends that the prosecutor’s failure to peremptorily challenge

several White jurors and prospective jurors with backgrounds similar to S.F.’s

undermines the credibility of the prosecutor’s stated reason for peremptorily

challenging S.F. But none of the jurors or prospective jurors whom the prosecutor

did not challenge had the extensive educational background in psychology and

sociology, nor the occupational background evaluating prisoners, that S.F. had.14


14

J.A. was a registered nurse and nursing coordinator at the Lanterman

Developmental Center who had taken courses in psychiatric nursing, grief
counseling, “dealing with death and dying,” and bioethics. C.H. was a
“psychiatric technician/recorder” at Lanterman who had taken “psychology 1A”
and child development courses. D.N. was a groundskeeper for a school district,
had previously worked as a security guard and a delivery driver, and had taken
courses in psychology and sociology but majored in electronics and general
education. M.S. was a teacher who had taken courses in beginning psychology,
sociology for teachers, and human relations. H.D. was a retired registered nurse
who had worked as an education director for a hospital and as a real estate agent,
and had taken psychology and sociology courses in college. P.M. was a


(footnote continued on next page)

67

Accordingly, the prosecutor’s failure to peremptorily challenge these panelists

does not support an inference that the prosecutor’s challenge to S.F. was

pretextual.

Defendant points out that the prosecutor asked no questions of S.F. on voir

dire before peremptorily challenging her. But the prosecutor reasonably could

have believed that voir dire would do nothing to clarify S.F.’s questionnaire

responses, which were unambiguous and themselves sufficient to support the

exercise of a peremptory challenge. (See People v. Lewis and Oliver, supra, 39

Cal.4th at p. 1018, fn. 14.) Moreover, the prosecutor exercised a peremptory

challenge against C.G., a White prospective juror with an occupational

background similar to S.F.’s. C.G. was an intake counselor at the California

Institute for Men, responsible for preparing social evaluations of incoming

prisoners. Assuming comparative analysis is appropriate for the first time on

appeal, the prosecutor’s peremptory challenge of C.G. supports an inference that

his challenge to S.F. was not pretextual. (See People v. Wheeler, supra, 22 Cal.3d

at p. 282 [prosecutor may sustain burden of justification by, among other things,

demonstrating “that in the course of this same voir dire he also challenged

similarly situated members of the majority group on identical or comparable

grounds”].) The totality of the circumstances thus supports the trial court’s



(footnote continued from previous page)

management analyst for the Internal Revenue Service and the Treasury
Department who had majored in social sciences and accounting and had taken
some sociology and psychology courses in college.

68

conclusion that the prosecutor’s stated reasons for striking S.F. were not

pretextual.15


15

At oral argument, defendant’s counsel argued that the record contradicts the

prosecutor’s statement that S.F. was a correctional counselor. Counsel pointed out
that at the time of defendant’s Wheeler motion S.F. had been a parole officer for
20 years. We disagree. The prosecutor stated he struck S.F. because “under
occupation
she lists correctional counselor and she describes that as a
diagnostician, which to me she evaluates, from a sociological standpoint,
committed felons.” (Italics added.) The prosecutor explained that he was
concerned that in light of S.F.’s “background, not only educational, but
occupational,” she would be disinclined to vote for death. (Italics added.) The
record supports the prosecutor’s credibility. In the occupation section of her
questionnaire, S.F. listed “correctional counselor” in response to the question
“where did you previously work and what did you do?” Although the prosecutor
misspoke when he stated that S.F. “evaluates” rather than “evaluated” committed
felons, nothing in the record suggests that the prosecutor was attempting to
mislead the court as to S.F.’s occupation or was otherwise being dishonest.
Indeed, the court was aware from defense counsel’s argument that S.F. was
currently a parole officer. Further, the prosecutor made clear that it was S.F.’s
total occupational “background” that concerned him, not merely her current job.


Counsel also argued that the prosecutor’s failure to question S.F. about her

occupation on voir dire, in contrast to his questioning of C.G. about his
occupation, is evidence that he struck S.F. because of her race. Again, we are not
persuaded. On her questionnaire S.F. fully explained her prior occupation, stating
she had been a “Correctional counselor — Diagnostic evaluations from a
sociological standpoint on committed felons” in a men’s prison. In light of that
detailed explanation, the prosecutor reasonably could have believed no
questioning of S.F. was necessary. In contrast, on his questionnaire C.G. wrote
only that he was a “counselor” at the “California Institute for Men.” The cryptic
nature of this response fully justified the prosecutor in questioning C.G. on voir
dire about what precisely his job entailed. Further, the prosecutor questioned C.G.
just enough to elicit the response that his job was to “prepare a social evaluation”
on each incoming prisoner. The record thus provides a reasonable explanation for
the differential questioning and negates any inference that the questioning
evidences discriminatory animus.


Finally, counsel contended that if the prosecutor was truly concerned that

S.F.’s educational and occupational background would make her sympathetic to
the defendants at the penalty phase, then he “should have” been equally concerned
about J.A. and C.H., both of whom he allowed to serve on the jury and both of


(footnote continued on next page)

69

iv. Prospective Alternate Juror G.W.

Defendant made a final Wheeler motion after the prosecutor used a

peremptory challenge to strike Prospective Alternate Juror G.W., a Black woman.

Again without stating whether it had found a prima facie case, the trial court

stated: “All right. Mr. Urgo [prosecutor]?” The prosecutor responded: “She was

dismissed for her views on the death penalty, your Honor. She stated so clearly in

the questionnaire that she could never vote for the death penalty, yet she stated

here that just because she heard the charges read that she could do it and she also

indicated she could give up her religious beliefs to do it. [¶] I frankly don’t

believe that someone who is as adamant as she was in saying that she could never

vote for the death penalty can change like that.” The trial court denied defendant’s

Wheeler motion.

The record supports the credibility of the prosecutor’s assertions. Although

G.W. did not state in her questionnaire that she could never vote for the death



(footnote continued from previous page)

whom were employed at the Lanterman Developmental Center, had worked with
people with mental retardation, and had taken courses in the behavioral sciences.
Counsel pointed out that Hubbard’s competency trial had involved evidence of
mental retardation. But there is no evidence in the record that J.A.’s or C.H.’s
occupations involved them in the sociological evaluation of prisoners, which is
what the prosecutor said concerned him about S.F., and is what apparently
concerned him about C.G. It was reasonable for the prosecutor to believe that
persons with only general experience in the mental health field might not be as
sympathetic to the defendants as persons whose occupations exposed them to the
social and psychological problems of convicted criminals. On this record, we
cannot say that the trial court erred when it found the prosecutor’s stated reasons
for striking S.F. were genuine.

70

penalty,16 her answers to several questions revealed strong religious and other

scruples about the death penalty. She wrote she was not a strong supporter of the

death penalty. In response to the question “tell us how you feel about the death

penalty,” she wrote: “I feel that you are just as bad as the person that did the

crime. This person may repent if he get life in prison. David in the Bible did. He

killed someone.” She answered “no” to a question about whether the death

penalty helps society. In response to a question about whether there are any

murders that do not deserve the death penalty, G.W. wrote: “I do not think anyone

deserve the death penalty. Person may repent if he get life in prison.” When

asked whether certain crimes always warrant the death penalty, she answered

“Person will be punish more if he stay in prison for life,” and “[t]his person may

have a chance to repent while he is in prison.” And she stated that life

imprisonment without the possibility of parole was a more severe punishment than

the death penalty.

During voir dire questioning by the trial court, Prospective Juror G.W.

asserted that she could be fair and impartial and could consider both sentencing

alternatives, death or life imprisonment without the possibility of parole, if the

case reached the penalty phase. When defendant’s counsel asked G.W. about her

questionnaire answers, G.W. explained: “Well, at the time I was answering those

questions I didn’t have my glasses and I did the best I could. If I had taken it —

been able to take it home, it would have been different.” She then assured counsel

that she could impose the death penalty if she felt it was appropriate after hearing

the evidence. During questioning by the prosecutor, G.W. said that she recalled


16

G.W. answered “no” to a question asking whether she would always vote

for life imprisonment without the possibility of parole if the case reached the
penalty phase.

71

her questionnaire responses, but that being in court and listening to the judge read

the charges had caused her to change her mind about whether she could impose

the death penalty. She said she did not think she would “hold by those same

[religious] beliefs” that caused her to write the answers she did in the

questionnaire. In light of G.W.’s strongly expressed opposition to the death

penalty in her questionnaire and her dubious explanation on voir dire of her

purported change of mind, the record supports the trial court’s conclusion that the

prosecutor’s skepticism about G.W.’s ability to impose the death penalty was

genuine.

A comparative analysis again does not aid defendant. He points to no

sitting or prospective juror whom the prosecutor did not challenge who expressed

religious scruples against the death penalty as strong as those G.W. expressed.

Accordingly, the prosecutor honestly could have believed that no panelist was

similar to G.W.

Finally, we note that at the end of selection of the jurors, and before

selection of the alternate jurors, three Black jurors — R.D., A.R., and J.Y. — were

seated in the jury box.17 The presence of these jurors on the panel is “ ‘an

indication of the prosecutor’s good faith in exercising his peremptories.’ ”

(People v. Huggins, supra, 38 Cal.4th at p. 236, quoting People v. Snow (1987) 44

Cal.3d 216, 225.) For all of these reasons, the trial court did not err in finding that

defendant did not establish purposeful discrimination in the prosecutor’s exercise

of peremptory challenges.


17

R.D. and A.R. served on the jury. Under a stipulation of counsel, J.Y. was

excused for personal medical reasons and replaced by Alternate Juror M.S. before
the start of trial.

72

b. Hispanic prospective jurors

After defendant’s counsel made his Wheeler motion with respect to

Prospective Juror R.W., but before the trial court had ruled, the following

exchange took place:

“Mr. Tyre [Machuca’s counsel]: Your Honor, I would join in that. The

other reason also is I think his other peremptories, besides the Blacks, I believe

that there is [sic] three to four Hispanics that he has also kicked off, so it appears

to be a systematic excusal of minorities.

“Mr. Coleman [defendant’s counsel]: [J.L.] was one, the last Spanish that

he kicked out.

“Mr. Gornik [Hubbard’s counsel]: I join in the motion and if it hasn’t been

explicitly stated, [R.W.], who was just released, is Black and three of the four

defendants are Black.”

The prosecutor responded by making a Wheeler motion of his own

contesting defense counsel’s use of peremptory challenges against Hispanics. He

then explained his reasons for challenging R.W. The trial court intervened,

saying, “Well, let’s handle one thing at a time.” After ascertaining that there

would be no further argument regarding R.W., the trial court denied that motion.

Defendant’s counsel then joined the prosecutor’s Wheeler motion regarding

Hispanics. When codefendant Machuca’s counsel stated, “We have no reasons,

your Honor,” the prosecutor withdrew his Wheeler motion. The court then took a

recess. After the recess, voir dire continued without further discussion of the

Wheeler motions.

Defendant now contends that the trial court erred in denying his Wheeler

motion as to Hispanic Prospective Jurors C.P. and J.L. We disagree. The failure

to articulate clearly a Wheeler/Batson objection forfeits the issue for appeal.

(People v. Gallego (1990) 52 Cal.3d 115, 166.) Here, it is not clear that defendant

73

made a Wheeler motion regarding the prosecutor’s excusal of Hispanics.

Machuca’s counsel’s comment that the prosecutor had “kicked” Hispanics appears

to have been intended to bolster the argument that the prosecutor’s excusal of

R.W. violated Wheeler because there was “systematic excusal of minorities.”

Defendant’s counsel’s comment — “[J.L.] was one, the last Spanish that he kicked

out” — hardly clarified the matter, and it was followed immediately by Hubbard’s

counsel’s comment that three of the four defendants were Black. In context, these

comments seem intended to support the defense motion regarding Blacks, not as a

separate motion regarding Hispanics.

Even assuming defendant properly made a Wheeler/Batson motion

regarding the prosecutor’s excusal of Hispanics, we conclude the issue is not

preserved for appeal. Failure to press for a ruling on a motion to exclude evidence

forfeits appellate review of the claim because such failure deprives the trial court

of the opportunity to correct potential error in the first instance. (People v. Ramos

(1997) 15 Cal.4th 1133, 1171.) The situation here is analogous. When defense

counsel mentioned the prosecutor’s excusal of Hispanic prospective jurors, the

trial court was confronted with simultaneous argument on two other Wheeler

motions: the defense motion regarding R.W., and the prosecutor’s motion

regarding defense excusals of Hispanics. Under the circumstances, defense

counsel at least had an obligation to remind the court that it had not yet addressed

the prosecutor’s excusal of Hispanics, so that the court would have the opportunity

to correct the alleged error. Here, the record does not reflect whether the trial

court ignored counsel’s comments about Hispanics, or simply forgot about them.

Either way, it was incumbent on counsel, if they wished to pursue the matter, to

secure a ruling from the trial court. The failure to do so forfeits the claim.

74

c. Young

prospective

jurors

Defendant argues that the trial court erroneously denied his motion

challenging the prosecutor’s use of peremptory challenges to exclude young

persons from the jury. As defendant acknowledges, neither this court nor the

United States Supreme Court has ever held that young persons are a cognizable

group under Batson or Wheeler. Indeed, existing authority holds, to the contrary,

that young persons are not a cognizable group. (E.g., People v. McGhee (1987)

193 Cal.App.3d 1333, 1351-1352 [young persons not a cognizable class under

Wheeler]; United States v. Pichay (9th Cir. 1993) 986 F.2d 1259, 1960 [young

persons not a cognizable group for purposes of equal protection challenge to petit

jury under Batson]; see also People v. Ayala (2000) 23 Cal.4th 225, 257

[“ ‘California courts have not been receptive to the argument that age alone

identifies a distinctive or cognizable group within the meaning of [the

representative cross-section] rule’ ”].) We decline to extend Batson and Wheeler

beyond their current parameters.

2. Excusals for cause

Defendant asserts that the trial court erroneously excused for cause two

prospective jurors who were equivocal about whether their attitude toward the

death penalty would affect their deliberations at the penalty phase, violating his

right to an impartial jury under the Sixth and Fourteenth Amendments to the

United States Constitution and article I, section 16 of the California Constitution.

(See Morgan v. Illinois (1992) 504 U.S. 719, 726-728; People v. Williams, supra,

16 Cal.4th at pp. 666-667; People v. Johnson (1992) 3 Cal.4th 1183, 1210.) “To

achieve the constitutional imperative of impartiality, the law permits a prospective

juror to be challenged for cause only if his or her views in favor of or against

capital punishment ‘would “prevent or substantially impair the performance of his

75

[or her] duties as a juror” ’ in accordance with the court’s instructions and the

juror’s oath. [Citations.]” (People v. Blair (2005) 36 Cal.4th 686, 741.)

“ ‘ “A prospective juror is properly excluded if he or she is unable to

conscientiously consider all of the sentencing alternatives, including the death

penalty where appropriate.” [Citation.]’ [Citation.] In addition, ‘ “[o]n appeal,

we will uphold the trial court’s ruling if it is fairly supported by the record,

accepting as binding the trial court’s determination as to the prospective juror’s

true state of mind when the prospective juror has made statements that are

conflicting or ambiguous.” [Citations.]’ ” (People v. Jenkins (2000) 22 Cal.4th

900, 987.)

At the outset, defendant asserts that “the current rule which this Court is

applying — holding that a trial court may rely on a prospective juror’s equivocal

responses to discharge that juror in a capital case,” is inconsistent with United

States Supreme Court precedent, including Adams v. Texas (1980) 448 U.S. 38

and Gray v. Mississippi (1987) 481 U.S. 648. We have rejected the contention

that our rule is inconsistent with Gray v. Mississippi. (People v. Moon (2005) 37

Cal.4th 1, 14-15.) The high court’s most recent ruling on this subject reaffirms

that deference to the trial court is appropriate when the prospective juror’s remarks

are ambiguous or equivocal. The high court explained that “deference to the trial

court is appropriate because it is in a position to assess the demeanor of the venire,

and of the individuals who compose it, a factor of critical importance in assessing

the attitude and qualifications of potential jurors.” (Uttecht v. Brown (2007) ___

U.S. ___, ___ [127 S.Ct. 2218, 2224]; accord, Wainwright v. Witt (1985) 469 U.S.

412, 426 [“deference must be paid to the trial judge who sees and hears the

juror”].) Moreover, “when there is ambiguity in a prospective juror’s statements,

‘the trial court, aided as it undoubtedly [is] by its assessment of [the venireman’s]

demeanor, [is] entitled to resolve it in favor of the State.’ ” (Uttecht v. Brown,

76

supra, at p. ___ [127 S.Ct. at p. 2223], quoting Wainwright v. Witt, supra, at

p. 434.) These statements foreclose defendant’s claim that our rule is inconsistent

with federal law. Accordingly, we pay our usual deference to the trial court’s

resolution of the factual question of the prospective jurors’ true state of mind

based on that court’s unique ability to “ ‘observe and listen to the prospective

jurors.’ ” (People v. Griffin (2004) 33 Cal.4th 536, 559, quoting People v. Cain

(1995) 10 Cal.4th 1, 60.)

Turning to the merits, we conclude that substantial evidence supports the

trial court’s conclusion that Prospective Jurors H.G. and L.H. held views about

capital punishment that would prevent or substantially impair their ability to

perform their duties as jurors.

On her questionnaire, Prospective Juror H.G. expressed general opposition

to the death penalty, stating several times that no murder deserves the death

penalty and that she did not “believe in the death penalty.” On voir dire, the trial

court asked her: “Is there anything that you would like to bring to the court’s

attention that might in any way affect your ability to be a fair and impartial juror in

this particular case?” She answered: “No, other than that I at this point do not

believe in the death sentence.” When the court and counsel attempted to clarify

her views, she said she would not automatically vote for death or life

imprisonment without possibility of parole if the case reached the penalty phase,

and also that she would follow the court’s instructions, would consider both

sentencing options, and would fairly consider all the evidence before deciding on

the penalty of death or life imprisonment without possibility of parole. During

questioning by the prosecutor, H.G. reiterated that she believed there were

alternatives to the death penalty, that she did not “like” the death penalty, and that

she did not “believe you should take a life.” The prosecutor then asked H.G.

whether she could “put aside” her personal beliefs and vote for death “if the

77

aggravating circumstances outweighed the mitigating.” H.G. answered, “I don’t

think with my frame of mind now that I could vote for death.” (Italics added.) The

exchange continued:

“Mr. Urgo: You don’t think you could?

“Prospective Juror H.G.: No.

“Mr. Urgo: Is there anything anybody can say to change your mind about

that? That is, do you think — do you think if some of these attorneys got back up

here and they started to talk to you, do you think could you change your mind and

say, well, yeah, I could do it?

“Prospective Juror H.G.: Well, with my entire self right now, I don’t think I

would change. It is just — I just don’t believe in the death penalty. [¶] . . . [¶]

“Mr. Urgo: This is — the death penalty, though, is something that you

yourself could not impose; is that correct?

“Prospective Juror H.G.: I don’t think that I could impose the death

penalty. [¶] . . . [¶]

“Mr. Urgo: You, however, believe that you at least don’t think you could

impose the death penalty?

“Prospective Juror H.G.: I don’t think and I say it loudly, I don’t think I

could impose the death penalty. I think that — I think there could be other

options. I just — it is my belief. I just don’t believe in the death penalty.

“Mr. Urgo: Well, what would you do at the end of the trial if after all the

— after all the penalty phase evidence came out, if you believe that the

aggravating circumstances outweigh the mitigating circumstances, would you

nonetheless vote — vote for death, or would you say, no, I can’t do that, I’m going

to look at other options?

“Prospective Juror H.G.: I would not — unless some big change comes to

my mind, I would not vote for the death penalty.” (Italics added.)

78

This exchange amply supports the trial court’s conclusion that Prospective

Juror H.G.’s views on capital punishment would prevent or substantially impair

her ability to perform her duties as a juror in this capital case. H.G. stated, no less

than four times, both “loudly” and “with my frame of mind now,” that she did not

think she could impose the death penalty or vote for the death penalty if the case

came to the penalty phase. She also said “with my entire self” that she did not

think there was anything that would change her mind. With these statements,

H.G. emphatically expressed her belief that she could not consider the death

penalty as an option in this case. The trial court did not err in excluding H.G. for

cause.

Defendant argues that Prospective Juror H.G. was not excludable for cause

because her responses show only that she did not “think” she could impose the

death penalty and because she left open the possibility of a change of mind. We

disagree. In Wainwright itself, the United States Supreme Court held a

prospective juror was properly excluded where, in response to a question whether

her view on the death penalty would interfere with her judging the guilt or

innocence of the defendant, the juror responded, “I think it would.” (Wainwright

v. Witt, supra, 469 U.S. at pp. 415-416.) Moreover, the trial court was entitled to

resolve any ambiguity created by the statement “unless some big change comes to

my mind” in favor of the prosecution, based on its assessment of H.G.’s

demeanor. (See Wainwright v. Witt, supra, at p. 434.) As the high court has

explained, “many veniremen simply cannot be asked enough questions to reach

the point where their bias has been made ‘unmistakably clear.’ ” (Id. at pp. 424-

425; accord, Uttecht v. Brown, supra, ___ U.S. at p. ___ [127 S.Ct. at p. 2223].)

Here, H.G.’s responses to the questions posed to her enabled the trial court to

determine that she would not consider the death penalty as an option and that it

was unrealistic to expect her to change her mind. No more was required.

79

Like H.G., Prospective Alternate Juror L.H. expressed general opposition to

the death penalty in her questionnaire. She stated that if the case reached the

penalty phase she would always vote for life imprisonment without possibility of

parole, that she was not a strong supporter of the death penalty because “in almost

all circumstances it is inappropriate for the government to kill,” that the death

penalty does not deter criminals, that murderers who torture their victims deserve

the death penalty but most others do not, and that it was not right for the

government to kill someone.

On voir dire, the trial court and counsel attempted to clarify L.H.’s views.

When the court asked L.H. whether there was “anything that you would like to

bring to our attention that might affect your ability in any way to be a fair and

impartial juror,” L.H. answered, “Well, I think I would be [sic] a problem

inflicting capital punishment.” L.H. then answered “no” to a question whether she

would always vote for the death penalty if the case reached the penalty phase, but

“yes” to a question whether she would always vote for life imprisonment without

possibility of parole if the case reached that phase. When asked whether there

were any circumstances under which she could vote for the death penalty, L.H.

responded, “I really don’t think so.

Codefendant Hubbard’s counsel then questioned L.H. Qualifying her

previous statements, L.H. admitted she could conceive of a type of case that would

cause her to vote for the death penalty, so she was not “totally precluding” that

possibility. Under questioning by the prosecutor, however, L.H. clarified that

there were only a “very few circumstances” under which she could vote for the

death penalty, giving as an example the Jeffrey Dahmer case.

The following colloquy between the trial court and L.H. then ensued:

“The Court: And so there are circumstances under which you might vote

for the death penalty? You are not totally opposed to it?

80

“Prospective Alternate Juror L.H.: That’s correct.

“The Court: And depending upon what you find out as a result of having

heard this case, in the event that you find them guilty and find a special

circumstance to be true, conceivably you could vote for the death penalty?

“Prospective Alternate Juror L.H.: Conceivably, but I think it unlikely. [¶]

. . . [¶]

“The Court: Does that mean you’ve made up your mind?

“Prospective Alternate Juror L.H.: I think actually it does mean I’ve made

up my mind.

“The Court [to counsel for defendants]: Well, now do you want to pursue

that any more?

“Mr. Gornik: Well, your Honor, I think she has indicated there is the

possibility. I think that is enough.

“The Court: Well, the last expression was she has made up her mind and

the answer is no.” (Italics added.) The trial court then excused L.H. for cause.

This record provides ample support for the trial court’s finding that,

because L.H. had “made up her mind,” her views on the death penalty would

impair her ability to fulfill her duties as a juror in this case. We bear in mind that

in assessing challenges for cause, the crucial inquiry is “whether the juror’s views

about capital punishment would prevent or impair the juror’s ability to return a

verdict of death in the case before the juror.” (People v. Visciotti (1992) 2 Cal.4th

1, 45, fn. 16, italics added; accord, People v. Heard (2003) 31 Cal.4th 946, 958.)

Here, L.H.’s questionnaire and voir dire responses demonstrate that she was

familiar with the facts of this case from media coverage, and the charges had been

read to her. With those facts and charges in mind, L.H. said she “conceivably”

could vote for the death penalty in this case, but she thought it unlikely. When

pressed, she acknowledged that she had made up her mind. Although L.H. stated

81

that she might be willing to consider the death penalty in certain very narrow

circumstances, she gave as an example the Jeffrey Dahmer case, a case with facts

far removed from those here.18

Defendant contends that L.H.’s final answer, that she had “made up [her]

mind,” was ambiguous and therefore the trial court was obligated to question her

further. In People v. Heard, we stated: “If the trial court remained uncertain as to

whether [Prospective Juror] H.’s views concerning the death penalty would impair

his ability to follow the law or to otherwise perform his duties as a juror, the court

was free, of course, to follow up with additional questions.” (People v. Heard,

supra, 31 Cal.4th at p. 965.) Here, however, the trial court was not uncertain.

Rather, after observing L.H.’s demeanor, the court interpreted her response as an

unambiguous statement that she had made up her mind not to vote for the death

penalty in this case. The court therefore was not obliged to question L.H. further.

Moreover, defense counsel’s decision not to conduct further questioning suggests

they believed L.H. could not be rehabilitated. (Cf. Wainwright v. Witt, supra, 469

U.S. at pp. 434-435.)


18

Jeffrey L. Dahmer confessed to killing 17 men and boys between 1978 and

1991 in Ohio and Wisconsin. He was convicted in Milwaukee of 15 of those
murders and was sentenced to 15 consecutive life terms in prison. He did not
appeal. The murders, which involved acts of necrophilia, dismemberment, and
cannibalism, drew national attention. Dahmer died in a Wisconsin prison in 1994
after being bludgeoned by another inmate. (Terry, Jeffrey Dahmer, Multiple
Killer, Is Bludgeoned to Death in Prison
, N.Y. Times (Nov. 29, 1994); 15 Life
Terms and No Parole for Dahmer
, N.Y. Times (Feb. 18, 1992); Barron & Tabor,
17 Killed, and a Life Is Searched for Clues, N.Y. Times (Aug. 4, 1991); Celis,
Slayings Point Up Lapses by Milwaukee’s Agencies
, N.Y. Times (July 30, 1991);
see also Kwan, Intersections of Race, Ethnicity, Class, Gender & Sexual
Orientation: Jeffrey Dahmer and the Cosynthesis of Categories
(1997) 48
Hastings L.J. 1257.)

82

3. Denial of defendant’s challenge for cause

Defendant contends that the trial court’s denial of his challenge for cause to

Prospective Juror S.H. violated his rights to due process and an impartial jury

under the Sixth and Fourteenth Amendments to the United States Constitution. As

we have explained, a prospective juror may be removed for cause only if that

juror’s views in favor of or against capital punishment “would ‘prevent or

substantially impair the performance of his [or her] duties as a juror’ ” in

accordance with the trial court’s instructions and the juror’s oath. (Wainwright v.

Witt, supra, 469 U.S. at p. 424, quoting Adams v. Texas, supra, 448 U.S. at p. 45.)

“[T]he qualification standard operates in the same manner whether a prospective

juror’s views are for or against the death penalty.” (People v. Cash (2002) 28

Cal.4th 703, 720, citing Morgan v. Illinois, supra, 504 U.S. at pp. 726-728.) Here,

the trial court properly declined to excuse S.H. under this standard.

Prospective Juror S.H. expressed strong pro-death-penalty views on his

questionnaire. For example, he stated that he strongly supported the death penalty

because “if someone kills a human being wrongfully then that person may be

capable of killing more,” that there were no murders that did not deserve the death

penalty, that multiple murderers and murderers who kill during a burglary and

sexual attack should always receive the death penalty, and that intentional

murderers should get the death penalty except when a person kills so that the

victim “would not have to suffer a slow death.” In his view, the death penalty

helps society by reducing overcrowding in prisons and by providing “relief” for

the people involved. On the other hand, he affirmed he would follow the trial

court’s instructions even if they conflicted with his beliefs or opinions, and he

stated he would want information about a defendant’s background and family

before deciding which penalty to impose.

83

On voir dire, S.H. made conflicting statements. For example, he said that

he would not automatically impose either the death penalty or life imprisonment

without possibility of parole if the case reached the penalty phase, and that he

would not vote for the death penalty “almost every time.” On the other hand, he

said he stood by his questionnaire responses that there were no murders that did

not deserve the death penalty and that the death penalty should always be imposed

in cases of multiple murder. Defendant’s counsel asked: “Now, if we get to the

penalty phase in this trial and the defendants in this case are convicted of more

than one killing, according to what you said, and you have answered affirmative,

that you are going to impose the death penalty; isn’t that correct?” S.H. answered,

“Yes.” The voir dire continued for some time in this ping-pong manner, with S.H.

stating in response to questioning from defense counsel that he would always vote

for the death penalty if he found a defendant guilty of multiple murders with use

of a weapon, but reaffirming in response to questioning from the prosecutor and

the court that he would consider life imprisonment without parole as an option

even in cases of multiple murder. These exchanges culminated with the

following:

“Mr. Gornik [codefendant Hubbard’s counsel]: . . . It may come down to

you believing beyond a reasonable doubt that a particular defendant is guilty of

five separate murders and special circumstances and gun use, all right? [¶] What I

want to know is if you conclude that beyond a reasonable doubt to where you’ve

convicted that person, is there any other penalty that you could give that person

but death?

“Prospective Juror S.H.: Life without parole.

“Mr. Gornik: Okay. [¶] So you are saying that you would be open to

hearing evidence that would be set forth in the penalty phase?

“Prospective Juror S.H.: Yes.

84

“Mr. Gornik: Do you honestly believe that there may be some

circumstances or evidence that we could bring out during the penalty phase that

might cause you to vote for something other than death?

“Prospective Juror S.H.: It could be.” (Italics added.)

The trial court denied defendant’s challenge for cause, and defendant

exercised a peremptory challenge against S.H.

Substantial evidence supports the trial court’s conclusion that Prospective

Juror S.H. did not hold views regarding capital punishment that would prevent or

substantially impair the performance of his duties as a juror in this case. (People

v. Williams, supra, 16 Cal.4th at p. 668.) In response to questioning by the

prosecutor, the court, and defense counsel, S.H. said that he would “weigh out the

evidence, in addition to the murders” before deciding on the penalty; that he would

listen to the penalty phase evidence from both sides; that after hearing the penalty

phase evidence he might change his mind about the death penalty, even if he

concluded the defendant had killed three or four people; that he would not always

vote for the death penalty; and that there could be evidence that might convince

him to vote for life without possibility of parole. Although he also gave responses

that conflicted with those views, the trial court was entitled to resolve the conflicts

in favor of the prosecution based on its observations of S.H.’s demeanor

(Wainwright v. Witt, supra, 469 U.S. at p. 434), and its determination is binding on

us (People v. Jenkins, supra, 22 Cal.4th at p. 987).

Defendant asserts that People v. Boyette (2002) 29 Cal.4th 381 compels the

conclusion that the trial court erred by declining to excuse Prospective Juror S.H.

for cause. There, we held the trial court should have sustained the defendant’s

challenge for cause to a prospective juror who expressed strong pro-death-penalty

views similar to S.H.’s in this case. Unlike S.H., however, the prospective juror in

Boyette admitted on voir dire that he would not follow the trial court’s instruction

85

to assume that life imprisonment without parole would mean the prisoner would

never be released. (Id. at p. 418.) Here, S.H. said that he would follow the trial

court’s instructions and the law even if they conflicted with his beliefs or opinions.

Boyette therefore does not support defendant’s argument here.19

4. Denial of 20 individual peremptory challenges

During voir dire, defendant exercised 20 peremptory challenges jointly with

his three codefendants and five additional peremptory challenges individually.

The trial court denied his request for 20 individual peremptory challenges.

Defendant now contends that Code of Civil Procedure section 231, subdivision

(a), entitled him to 20 individual peremptory challenges, that the trial court

therefore erred in denying his request for 20 individual peremptory challenges, and

that this error denied him a state statutory entitlement in violation of his


19

Defendant also asserts that the trial court’s refusal to excuse Prospective

Juror S.H. for cause violated his rights under article I, section 16 of the California
Constitution and section 225 of the Code of Civil Procedure. The Attorney
General counters that these claims are forfeited because defendant failed to raise
them at trial. Defendant’s state constitutional claim is based on the same facts
underlying the federal claim and requires a legal analysis similar to that required
by the federal claim. (See People v. Williams, supra, 16 Cal.4th at pp. 666-667;
People v. Johnson, supra, 3 Cal.4th at p. 1210.) Therefore, that claim is not
forfeited. (People v. Yeoman, supra, 31 Cal.4th at p. 117.) Nonetheless, we reject
it for the same reasons we reject the federal claim.


Section 225 of the Code of Civil Procedure permits the exclusion for cause

of a prospective juror who exhibits a state of mind “which will prevent the juror
from acting with entire impartiality, and without prejudice to the substantial rights
of any party.” (Id., subd. (b)(1)(C).) We have said in relation to a predecessor to
this statute that it permits the defendant in a capital case “to challenge for cause
jurors who have a bias in favor of the death penalty even though they state that
they are able to render an impartial verdict of guilt.” (People v. Gilbert (1965) 63
Cal.2d 690, 712, reversed on another ground sub nom. Gilbert v. California (1967)
388 U.S. 263.) To the extent section 225 would require exclusion of a prospective
juror for cause on any broader basis than the federal Constitution permits,
defendant here forfeited the claim by failing to raise it below.

86

Fourteenth Amendment right to due process of law under Hicks v. Oklahoma

(1980) 447 U.S. 343.

Code of Civil Procedure section 231, subdivision (a), provides, as it did at

the time of defendant’s trial: “In criminal cases, if the offense charged is

punishable with death, or with imprisonment in the state prison for life, the

defendant is entitled to 20 and the people to 20 peremptory challenges. Except as

provided in subdivision (b), in a trial for any other offense, the defendant is

entitled to 10 and the state to 10 peremptory challenges. When two or more

defendants are jointly tried, their challenges shall be exercised jointly, but each

defendant shall also be entitled to five additional challenges which may be

exercised separately, and the people shall also be entitled to additional challenges

equal to the number of all the additional separate challenges allowed the

defendants.”

Defendant asserts that the third sentence, which states what occurs when

“two or more defendants are jointly tried,” does not refer back to the first sentence

governing capital cases, but only to the sentence immediately preceding it,

governing noncapital cases. Thus, under defendant’s interpretation, defendants in

multidefendant noncapital cases must jointly exercise their peremptory challenges,

while defendants in multidefendant capital cases are each entitled to a full

complement of 20 individual challenges.

“As in any case involving statutory interpretation, our fundamental task

here is to determine the Legislature’s intent so as to effectuate the law’s purpose.

[Citation.] We begin by examining the statute’s words, giving them a plain and

commonsense meaning. [Citation.]” (People v. Murphy (2001) 25 Cal.4th 136,

142.)

Here, the first sentence of Code of Civil Procedure section 231, subdivision

(a), provides the defendant and the state in a capital case with 20 peremptory

87

challenges each, the second sentence provides the defendant and the state in a

noncapital case with 10 peremptory challenges each (with certain exceptions), and

the third sentence provides that when defendants are jointly tried, they are to

exercise their challenges jointly, with each defendant receiving five additional

challenges to exercise individually. The same word, “defendant,” is used in all

three sentences. The plain and commonsense meaning of this provision is that the

third, qualifying sentence applies whether or not the defendant’s case is a capital

case. Nothing in the third sentence itself signifies that it is limited to defendants in

noncapital cases.

The history of the statute supports this interpretation. The number of

peremptory challenges in criminal cases formerly was codified in sections 1070

and 1070.5. In a long line of cases, we held that those provisions required the

joint exercise of peremptory challenges in multidefendant capital cases. (See, e.g.,

People v. Webster (1991) 54 Cal.3d 411, 439; People v. Ainsworth (1988) 45

Cal.3d 984, 1004; People v. Miranda (1987) 44 Cal.3d 57, 79-80.)

In 1988, the Legislature consolidated sections 1070 and 1070.5 in Code of

Civil Procedure section 231, subdivision (a). As originally enacted, that provision

read: “In criminal cases, if the offense charged is punishable with death, or with

imprisonment in the state prison for life, the defendant is entitled to 20 and the

people to 20 peremptory challenges. Except as provided in subdivision (b), in a

trial for any other offense, the defendant is entitled to 10 and the state to 10

peremptory challenges; except when two or more defendants are jointly tried,

their challenges shall be exercised jointly, but each defendant shall also be entitled

to five additional challenges which may be exercised separately, and the people

shall also be entitled to additional challenges equal to the number of all the

additional separate challenges allowed the defendants.” (Stats. 1988, ch. 1245,

88

§ 2, p. 4152, italics added.) In the following year, 1989, the Legislature revised

Code of Civil Procedure section 231 to read as it currently does.

Although the significance of this sequence of events is not entirely free

from doubt, it is reasonable to infer that the 1989 change was meant to clarify the

ambiguity in the 1988 version that resulted from the semicolon separating the two

clauses of the second sentence. Because of the semicolon, the 1988 version could

have been read as eliminating the joint exercise of peremptory challenges in

capital cases while retaining the joint exercise for noncapital cases. By separating

the clauses of the second sentence into two separate sentences, the 1989 version

clarified that the third sentence was equally applicable to both the first and second

sentences, thus retaining the law as it existed before 1988, requiring the joint

exercise of peremptory challenges in both capital and noncapital cases.

Notwithstanding the plain meaning of the statute and the implications of the

legislative history, defendant argues that the “last antecedent rule” of statutory

construction supports his interpretation. Under that rule, “ ‘qualifying words,

phrases and clauses are to be applied to the words or phrases immediately

preceding and are not to be construed as extending to or including others more

remote.’ ” (White v. County of Sacramento (1982) 31 Cal.3d 676, 680; see also

Renee J. v. Superior Court (2001) 26 Cal.4th 735, 743-744.) The cases using this

rule, however, involve the application of modifying words or phrases within a

single sentence of a statute. (E.g., Renee J. v. Superior Court, supra, at p. 739;

White v. County of Sacramento, supra, at p. 680; People v. Corey (1978) 21 Cal.3d

738, 742; Board of Port Commrs. v. Williams (1937) 9 Cal.2d 381, 389, and cases

cited.) Defendant cites no case in which the rule was used to determine whether

an entire sentence modified preceding sentences. Moreover, “[e]vidence that a

qualifying phrase is supposed to apply to all antecedents instead of only to the

immediately preceding one may be found in the fact that it is separated from the

89

antecedents by a comma.” (White v. County of Sacramento, supra, at p. 680.) If a

comma is enough to make the last antecedent rule inapplicable, then surely a

period, which signifies a complete sentence break, is enough also.

In sum, Code of Civil Procedure section 231, subdivision (a), does not

entitle each defendant in a multidefendant capital case to 20 individual peremptory

challenges. Defendant’s due process claim thus fails.

5. Failure to conduct individual sequestered voir dire

Defendant asserts that the trial court abused its discretion when it denied his

request for individual sequestered voir dire of prospective jurors. As we explained

in People v. Jurado (2006) 38 Cal.4th 72, 100: “In Hovey v. Superior Court

(1980) 28 Cal.3d 1, 80, this court decided that in capital prosecutions the death-

qualification portion of each prospective juror’s voir dire should be sequestered,

meaning that it should be conducted out of the presence of other prospective

jurors. This court did not hold that sequestered voir dire was constitutionally

required; instead, we mandated this practice as a rule of procedure. (See People v.

Vieira (2005) 35 Cal.4th 264, 287-288; People v. Cudjo (1993) 6 Cal.4th 585,

628.) In 1990, however, the voters abrogated this aspect of Hovey by enacting

Proposition 115, which added section 223 to the Code of Civil Procedure. That

statute provides, in part, that ‘where practicable’ the trial court must conduct voir

dire ‘in the presence of the other jurors in all criminal cases, including death

penalty cases.’ (Code Civ. Proc., § 223.)”

Here, counsel for codefendant Huber moved for individual sequestered voir

dire for death qualification of the prospective jurors. The trial court responded:

“That at one time was required. They’ve changed that. . . . [¶] I think that has a

tendency to kind of slow things up. There are advantages and disadvantages. I

think the disadvantages outweigh the advantages [sic] of the new system with

90

everybody here. I seriously doubt that any individual is persuaded by anything

that anybody else says. [¶] In any event, if they are, hopefully they will tell us

and we can either keep them or not keep them, depending upon your pleasure.”

The trial court then conducted nonsequestered voir dire. After using all of his

allotted peremptory challenges, defendant moved for a mistrial or, in the

alternative, for 10 additional peremptory challenges, arguing that the lack of

sequestered voir dire had allowed prospective jurors to “hear[] the other — the

responses of other jurors and then tailor[] their response to what they felt [] was

appropriate, rather than what they had placed on the questionnaire.” Counsel

argued that he had to use his peremptories to “weed the death-prones out” because

they, unlike the life-prone prospective jurors, did not admit openly that they were

death prone.

Defendant first contends that any restriction on individual sequestered voir

dire on death qualifying issues, including that imposed by Code of Civil Procedure

section 223, would violate his rights to an impartial jury, to a reliable death

sentence, and to the effective assistance of counsel under the Sixth, Eighth, and

Fourteenth Amendments to the United States Constitution. We repeatedly have

rejected these and similar contentions. (People v. Jurado, supra, 38 Cal.4th at

p. 101; People v. Stitely (2005) 35 Cal.4th 514, 536-537; People v. Vieira, supra,

35 Cal.4th at pp. 287-288; People v. Box, supra, 23 Cal.4th at pp. 1180-1181.)

Defendant next asserts that even assuming individual sequestered voir dire

is not constitutionally compelled in every case, the trial court still violated his

federal constitutional rights to due process, an impartial jury, and equal protection

because the court did not exercise its discretion to determine whether group voir

dire was practicable and, to the extent it did, it did not do so on a sound basis.

We review the trial court’s denial of defendant’s motion for individual

sequestered voir dire under the abuse of discretion standard. (People v. Navarette

91

(2003) 30 Cal.4th 458, 490; People v. Waidla (2000) 22 Cal.4th 690, 713-714.) A

trial court abuses its discretion only when its ruling falls outside the bounds of

reason. (People v. Waidla, supra, at p. 714.) Here, the trial court understood it

had discretion to conduct individual voir dire. It declined to do so because it felt

that group voir dire had advantages over individual voir dire, and because it

thought the prospective jurors would be forthright regardless of their exposure to

the views of others. This decision was not outside the bounds of reason. (See

People v. Jurado, supra, 38 Cal.4th at p. 102.)

Defendant suggests that group voir dire was not “practicable” within the

meaning of Code of Civil Procedure section 223. “Our cases have suggested that

group voir dire may be determined to be impracticable when, in a given case, it is

shown to result in actual, rather than merely potential, bias.” (People v. Vieira,

supra, 35 Cal.4th at p. 288.) Defendant argues that prospective jurors were

influenced by the responses of others and, in support, identifies 16 prospective

jurors who changed their answers after being “educated” during the voir dire

process. But “[t]he possibility that prospective jurors may have been answering

questions in a manner they believed the trial court wanted to hear identifies at

most potential, rather than actual, bias and is not a basis for reversing a judgment.”

(People v. Vieira, supra, at p. 289.)

Moreover, that defendant had to use peremptory challenges to remove 15 of

those prospective jurors does not establish that his jury was not impartial. The

erroneous deprivation of peremptory challenges does not violate the right to an

impartial jury unless the defendant shows either that a biased juror actually sat on

the jury that imposed the death sentence, or that the defendant was deprived of a

peremptory challenge that would have been used to excuse a juror who in the end

participated in deciding the case. (Ross v. Oklahoma (1988) 487 U.S. 81, 85-86;

92

People v. Williams, supra, 16 Cal.4th at p. 667; People v. Crittenden (1994) 9

Cal.4th 83, 121.) Defendant makes neither showing.

Finally, defendant asserts that the group voir dire procedure denied him the

opportunity to identify prospective jurors whose views on the death penalty

rendered them unqualified to serve, thus making it impossible for this court to

determine whether any of the jurors who sat on his case held disqualifying views.

Defendant, however, does not “describe any specific example of how questioning

prospective jurors in the presence of other jurors prevented him from uncovering

juror bias.” (People v. Navarette, supra, 30 Cal.4th at p. 490.) No abuse of

discretion, constitutional error, or prejudice appears.

6. Denial of additional peremptory challenges

Defendant asserts that the trial court’s denial of his request for 10 additional

peremptory challenges violated his rights to due process, a fair trial and an

impartial jury. We disagree. To establish an entitlement under the federal

Constitution to additional peremptories, a defendant “must show at the very least

that in the absence of such additional challenges he is reasonably likely to receive

an unfair trial before a partial jury.” (People v. Bonin, supra, 46 Cal.3d at p. 679.)

The same standard applies to any assumed right under state law to additional

peremptory challenges. (People v. Pride (1992) 3 Cal.4th 195, 230-231.) Here, in

support of his assertion that the jury in his case likely was partial, defendant points

to his claims that the trial court improperly declined to grant a change of venue, to

exclude for cause Prospective Juror S.H., or to conduct individual sequestered voir

dire. Because we have concluded those claims lack merit, this claim necessarily

fails as well.

93

E. Other Guilt Phase Issues

1.

Admission of evidence

Defendant asserts that the trial court’s rulings on the admission of evidence

were erroneous in several respects. We examine each alleged error in turn.

a. Drawings

During a pretrial hearing under Evidence Code section 402, and at several

points during the trial, defendant objected to the admission into evidence of

exhibits 128, 129, and 139, consisting of three drawings on cardboard that were

found in apartment E after defendant’s arrest. The drawings depicted a cartoon

caricature of a cat along with money bags, a sawed-off shotgun, the name Bopete,

the initials WSF, the number 211, and other items. Codefendant Machuca’s

counsel explained to the court that the initials WSF referred to a specific Los

Angeles gang. Defendant argued that the evidence was irrelevant and that its

prejudicial effect outweighed any probative value because “the only thing it serves

is to demonstrate to the jury that my client might at one time or another [have]

been associated with some gang.” Defendant also argued there was no evidence

that he possessed the drawings or that he was a lessee of the apartment where the

drawings were found. In response, the prosecutor argued that the drawings were

relevant to show that defendant, whose nickname was Bopete, was committing

robberies with a sawed-off shotgun. The prosecutor also argued that the drawings

were admissible as an admission by defendant because they were found in the

apartment where he was living and because defendant’s name on the drawings was

“an indication of ownership.” The court overruled the defense objections and

admitted the drawings into evidence, but it barred the prosecutor from eliciting

any testimony that the initials WSF referred to a gang.

Detective Richard Graves testified that he was experienced in the

“interpretation of graffiti or placards.” He then testified that exhibit 128 was a

94

drawing of a cat caricature along with a money bag, dollar signs, the alias Bopete,

a sawed-off or shortened shotgun, a keyhole with cell bars in it, and the words

“hard times.” The letters WSF and the number 211 were written on various parts

of the cat’s body. Over defendant’s objection, Detective Graves testified that the

drawing signified that a person named Bopete was “identifying with the 211,” the

Penal Code section for robbery, and that the shotgun indicated a weapon

preference.

Detective Graves testified that exhibit 139 depicted a “wanted” poster

containing the words “menace to society,” a caricature of a cat wearing a hat and

gun, a money bag, and the name Bopete. Elsewhere on the page were the phrases

“smile now” and “cry later,” the initials WSF, a wall with bars, a “mask which is

associated with trauma,” and a ball and chain. Over defendant’s objection,

Detective Graves testified that the drawing meant that the person Bopete identified

with the caricature on the “wanted” poster and was “kind of making a statement

concerning everything you see here,” including “that he is a menace to society.”

Detective Graves then testified that defendant had the word Bopete and the initials

WSF tattooed on his arms.20

Defendant contends that the trial court erred by admitting the three

drawings into evidence along with Detective Graves’s testimony interpreting those

drawings. Defendant asserts that the evidence was irrelevant, was more

prejudicial than probative under Evidence Code section 352, and was inadmissible


20

Exhibit 129 was introduced during the cross-examination of Detective

Gentzvein. It depicts a cartoon caricature of a cat. The words “To Bopete” and
“From Shorty” appear, as well as the phrase “I love you homie.” Detective
Gentzvein testified that codefendant Machuca’s nickname was Pee-wee and that
he had never known her to use the nickname Shorty.

95

hearsay. We need not address his first two arguments, for we find that the third

has merit.21

The relevant principles are well established. “Hearsay is ‘evidence of a

statement that was made other than by a witness while testifying at the hearing and

that is offered to prove the truth of the matter stated.’ (Evid. Code, § 1200, subd.

(a).) Hearsay is not admissible unless it qualifies under some exception to the

hearsay rule. Two hearsay exceptions are relevant here. A defendant’s own

hearsay statements are admissible. (See id., § 1220; People v. Horning (2004) 34

Cal.4th 871, 898, fn. 5; People v. Carpenter (1999) 21 Cal.4th 1016, 1049.) A

statement by someone other than the defendant is admissible as an adoptive

admission if the defendant ‘with knowledge of the content thereof, has by words

or other conduct manifested his adoption [of] or his belief in its truth.’ (Evid.

Code, § 1221; see People v. Preston (1973) 9 Cal.3d 308, 314 & fn. 3.)” (People

v. Davis, supra, 36 Cal.4th at p. 535.) For purposes of the hearsay rule, a

“statement” is defined as “oral or written verbal expression” or “nonverbal

conduct . . . intended . . . as a substitute for oral or written verbal expression.”

(Evid. Code, § 225.)


21

As a preliminary matter, we conclude the hearsay issue was preserved for

review. Although the word “hearsay” was not mentioned during the hearings on
this evidence, the prosecutor alerted the trial court to the hearsay nature of the
evidence when he argued that the drawings were admissible as defendant’s
“admissions.” Further, defense counsel raised the relevant considerations
regarding admissibility. Codefendant Machuca’s counsel argued the drawings
were inadmissible because there was no foundational showing as to who made
them or whether defendants were aware of their existence. And defendant’s
counsel argued there was no showing that defendant possessed the drawings or
was a lessee of the apartment in which they were found. The court’s ruling that
the drawings were admissible in part because they had been in the apartment
during a time when defendant was living there indicates it was aware of the
hearsay issue. Thus, we may reach the merits.

96

Here, the drawings were hearsay because the jury was asked to conclude

that they were intended as a substitute for verbal expression and conveyed the

truth of the assertion that defendant committed robberies with a sawed-off

shotgun. Accordingly, the drawings were inadmissible unless they fell within an

exception to the hearsay rule. The prosecutor argued that the drawings were an

“admission” by defendant. As we have explained, evidence of a defendant’s own

hearsay statement is admissible. (See People v. Davis, supra, 36 Cal.4th at

p. 535.) Here, however, there was no evidence that defendant made the drawings.

Indeed, the prosecutor’s theory was that codefendant Machuca had drawn them.

Social worker Linda Witt testified that Machuca was a “pretty good artist,” and

during closing, the prosecutor argued, “it appears that Robbin Machuca is the

author of those placards, because she, too, knew what was going on and she, too,

was participating in those offenses.” On behalf of codefendant Machuca, Irving

Bonilla testified that he made the drawings. The drawings thus were not

admissible as a statement of defendant. (People v. Champion (1995) 9 Cal.4th

879, 924, fn. 14, disapproved on another point in People v. Ray (1996) 13 Cal.4th

313, 369, fn. 2 (conc. opn. of George, C.J., joined by a majority of the court).)

Nor were the drawings admissible as adoptive admissions. To prove

adoption of a hearsay statement sufficient to make it admissible under Evidence

Code section 1221, it must be shown that the party against whom a declarant’s

hearsay statement is offered both “ ‘(1) had knowledge of the contents of

declarant’s statement, and (2) having such knowledge, has, by words or other

conduct, manifested his adoption or his belief in its truth.’ (1 Jefferson, Cal.

Evidence Benchbook (2d ed. 1982) § 1.1, pp. 19-20, italics in original.)” (People

v. Maki (1985) 39 Cal.3d 707, 712; see also People v. Davis, supra, 36 Cal.4th at

p. 535.)

97

The prosecution’s sole evidence supporting admissibility was evidence that

defendant spent time in apartment E during the summer of 1991, and that an

employee of the Woodside Village Apartments found the drawings during a

routine cleaning of apartment E in October 1991, after defendant’s arrest. As

noted, Irving Bonilla testified on codefendant Machuca’s behalf that he made the

drawings and gave them to defendant.

We need not decide if this evidence was sufficient to support a finding that

defendant had knowledge of the content of the drawings, for even were we to so

conclude, we are compelled to find there was no evidence that defendant, by

words or conduct, manifested or adopted a belief in their truth. That is because

there was no evidence that defendant agreed with the message Detective Graves

said the drawings were meant to convey. Moreover, defendant’s mere possession

of the drawings bearing his nickname, Bopete, was not sufficient to support

admissibility under Evidence Code section 1221. (People v. Maki, supra, 39

Cal.3d at pp. 711-714.) Without such evidence of words or conduct, there was no

way for the jury to determine whether the drawings simply represented the artist’s

fantasy, or whether they were an assertion of fact. As such, the drawings were

hearsay and were inadmissible against defendant.

Nonetheless, the erroneous admission of the drawings did not prejudice

defendant. The drawings added next to nothing to the evidence of defendant’s

guilt of the crimes committed without a shotgun, and very little to the evidence

supporting defendant’s guilt of the crimes committed with a shotgun — that is, the

Avina, Ramirez, and Valdez crimes. Defendant admitted killing Avina with a

shotgun and taking his truck. Linda Ramirez identified defendant as her

husband’s killer and testified that he used a shotgun. And Valdez identified

defendant and testified he used a shotgun.

98

Defendant argues that the evidence was particularly prejudicial because it

associated him with gangs. As we have explained, trial courts must exercise

caution in admitting evidence that a defendant is a member of a gang because such

evidence may be highly inflammatory and may cause the jury to “jump to the

conclusion” that the defendant deserves the death penalty. (People v. Gurule

(2002) 28 Cal.4th 557, 653-654; People v. Williams, supra, 16 Cal.4th at p. 193;

see also Dawson v. Delaware (1992) 503 U.S. 159.) Here, however, we agree

with the trial court that the jurors would not necessarily have known that the

drawings indicated defendant was a gang member. The initials WSF did not

necessarily signify a gang. The prosecutor scrupulously avoided the subject of

gangs in his examination of Detective Graves. Although Detective Graves

testified as “an expert in the interpretation of graffiti or placards,” he described

only what the drawings signified to him. There was no inevitable association with

gangs.

Moreover, even assuming the jury concluded that the drawings indicated

defendant was a gang member, such an association did not prejudice defendant at

the guilt phase. The evidence that defendant committed each of the charged

crimes was strong. Defendant was linked to the Ramirez, Valdez, Rios, and

Aguirre crimes through the eyewitness testimony of the victims or others, and

defendant confessed to the Avina, Sams, Nisbet, and Denogean murders. In

addition, ballistics, fingerprints, and other physical evidence linked defendant to

the Avina, Sams, Nisbet, and Denogean murders and to the robberies and

kidnappings of Valdez, Rios, and Aguirre. Under the circumstances, “[a]ny

bearing the [drawings] had on [defendant’s] guilt of the crimes of which the jury

eventually convicted him . . . was tangential, and not likely to affect the outcome

of the case.” (People v. Champion, supra, 9 Cal.4th at p. 924.)

99

Defendant asserts that the alleged gang evidence prejudiced him at the

penalty phase, pointing out that his codefendants, as to whom no gang evidence

was admitted, received sentences of life imprisonment without possibility of

parole. But the jury reasonably could have found that defendant was relatively

more culpable than his codefendants because, unlike them, he was guilty of all of

the charged crimes, appeared to be the instigator, and personally shot each of the

murder victims. The jury also reasonably could have concluded that defendant’s

case in mitigation was relatively weak compared to those of his codefendants.22

For all of these reasons, we find no reasonable probability (People v.

Watson (1956) 46 Cal.2d 818, 836) that the guilt phase outcome would have been

more favorable to defendant absent the error. We likewise find no reasonable

likelihood (People v. Brown (1988) 46 Cal.3d 432, 447-448) that the error affected

the penalty phase verdict.23


22

Codefendant Hubbard presented evidence that he received monthly

Supplemental Security Income payments due to a mental disability; that he
suffered from schizophrenia, depression, paranoia, hallucinations, and substance
abuse; that he had been diagnosed with organic brain syndrome; and that he had
borderline to dull normal intelligence. Codefendant Machuca presented evidence
that her mother physically abused her; that her stepfather Donald Deary began
raping her regularly when she was eight years old; that by age 12 she was pregnant
by Deary; that she dropped out of school, abused and sold drugs, and twice
attempted suicide; that she was psychologically damaged; and that she had
expressed genuine remorse. Codefendant Huber presented evidence that she was
devastated at age 11 when her mother abandoned the family; that she suffered
from borderline personality disorder and alcohol and drug dependency; and that
she had expressed genuine remorse.
23

Defendant asserts the erroneous admission of the drawings violated his

rights under the Sixth Amendment to the United States Constitution to confront
the witnesses against him and to a fair trial. Assuming these claims are preserved
for review (see People v. Partida, supra, 37 Cal.4th at pp. 433-439; People v.
Yeoman, supra,
31 Cal.4th at p. 117), and assuming the confrontation clause
would even apply to this nontestimonial evidence (see Crawford v. Washington


(footnote continued on next page)

100

b. Prior

incarceration

Los Angeles County Deputy Sheriff Steven McLean testified about the

service of the search warrant on apartment E in the early morning hours of August

30, 1991. He testified that five officers made a “dynamic entry” through the front

door while three other officers breached a window in the front bedroom. He went

on to explain: “The way it works is sometimes it takes a few seconds for the five

guys to get in through the front door and so what we did is we had specific

information that there were suspects in that particular bedroom, that they were

probably armed with semiautomatic or fully automatic weapons. [¶] We had

information that they were ex-cons and there was a possibility that they would try

to shoot it out with the cops.” (Italics added.)

Defendant moved for a mistrial based on the deputy’s testimony that he had

information there were “ex-cons” in the apartment. The trial court denied the

motion, but read to the jurors a cautionary instruction drafted by codefendant

Machuca’s counsel:

“The Court: . . . All right. Ladies and gentlemen of the jury, I’m going to

give you what we call a cautionary instruction. And so that you don’t get thrown

off track it reads as follows: ‘Officer McLean indicated that he believed there

were ex-cons in the apartment. You have been given no evidence that any of the

defendants are ex-cons and are not to take the assumptions of Deputy McLean as a

statement of truth as to any of the defendants’ prior records.’ ”



(footnote continued from previous page)

(2004) 541 U.S. 36, 51-53, 59), we conclude, for the reasons stated above, that any
federal constitutional error was harmless beyond a reasonable doubt. (Chapman v.
California, supra,
386 U.S. at p. 24.)

101

Defendant contends that the trial court erred in denying his mistrial motion.

We disagree. We review a ruling on a mistrial motion for an abuse of discretion.

(People v. Davis, supra, 36 Cal.4th at p. 553; People v. Ayala, supra, 23 Cal.4th at

p. 283.) A trial court should declare a mistrial only “ ‘if the court is apprised of

prejudice that it judges incurable by admonition or instruction.’ ” (People v.

Jenkins, supra, 22 Cal.4th at pp. 985-986, quoting People v. Haskett (1982) 30

Cal.3d 841, 854.) “In making this assessment of incurable prejudice, a trial court

has considerable discretion.” (People v. Davis, supra, at p. 554.)

Deputy McLean’s testimony did not result in prejudice that was incurable

by admonition. His testimony that he had information there were “ex-cons” in

apartment E was given in the context of explaining the extraordinary methods the

police used to execute the search warrant at the apartment. The testimony was not

elicited by the prosecutor, was not followed by any additional testimony regarding

defendant’s prior record, and did not identify which of the apartment’s occupants

were believed to be “ex-cons.” For these reasons, Deputy McLean’s testimony

likely was inconsequential in the minds of the jurors when compared to the strong

evidence supporting defendant’s guilt of the multiple murders and other crimes

with which he was charged in this case. Moreover, even assuming the testimony

should not have been before the jury (see Evid. Code, § 1101, subd. (b) [evidence

of prior crimes admissible only if relevant to a material fact]), the trial court acted

in a timely manner to cure any error by admonishing the jury that Deputy

McLean’s testimony about his “belief” that “ex-cons” were in the apartment did

not establish any fact regarding the defendants’ prior records. Under these

circumstances, “the court could reasonably conclude that any potential for

prejudice was so minimal that it was cured by the admonition and a mistrial should

not be granted.” (People v. Hayes (1999) 21 Cal.4th 1211, 1264.)

102

c. Amplifiers



Two amplifiers were introduced into evidence at trial. Murder victim Jose

Avina’s brother, Antonio Avina, testified that exhibit No. 19 was one of two

matching amplifiers that had been installed in Jose Avina’s truck, that Jose Avina

had removed it because it was broken, and that he (Antonio) had given it to a

district attorney’s investigator after Jose Avina’s death. Antonio Avina testified

that exhibit No. 16, an amplifier that police had found in the trunk of defendant’s

car, looked like the amplifier that had remained in Jose Avina’s truck. Defendant

objected to the evidence on relevance grounds. The trial court overruled the

objection.

Applying the abuse of discretion standard of review (see People v. Waidla,

supra, 22 Cal.4th at p. 723), we find no abuse of discretion here. Relevant

evidence is evidence “having any tendency in reason to prove or disprove any

disputed fact that is of consequence to the determination of the action.” (Evid.

Code, § 210.) When Avina’s truck was recovered after his murder, there was a

hole where the stereo system should have been. Accordingly, it was reasonable to

infer that Avina’s killer or someone involved in the killing had taken the stereo.

That the amplifier found in the trunk of defendant’s car matched the broken one

that Avina had removed from his truck tended to establish defendant’s identity as

Avina’s killer.

Defendant argues that exhibit No. 16, the amplifier found in his car, should

not have been admitted because Antonio Avina testified only that it “looked like”

the amplifier that had been in Jose Avina’s truck; because “[m]illions of other

amplifiers could also have looked like the amplifier[] in question, since it was a

commercially mass-produced amplifier”; and because the prosecution “failed to

conduct a comparison of . . . similarities such as brand name, wattage, serial

numbers or other characteristics that would have actually linked” the two

103

amplifiers. These factors, however, affected only the weight of the evidence, not

its admissibility. (See People v. Jones (2003) 29 Cal.4th 1229, 1266; People v.

Martinez (2000) 22 Cal.4th 106, 132.) Defendant’s counsel was free to, and did,

argue that the amplifiers had little, if any, probative value. Moreover, the jurors

had access to the trial exhibits and were free to compare the amplifiers on their

own. No abuse of discretion by the trial court appears.

d. Shotgun

shell

West Covina Police Detective Michael Ferrari testified that, during the

search of apartment E on August 30, 1991, in a patch of ivy a few feet outside the

front door of the apartment, he found an unexploded “triple aught buck” shotgun

shell with what appeared to be hammer strike marks on the primer of the shell,

indicating a failed attempt to fire the shell from a shotgun. The prosecution’s

ballistics expert, Edward Robinson, did not testify about the shotgun shell.

Defendant objected to the admission into evidence of this shell, arguing that

any inference to be drawn from it was speculative, in part because the

prosecution’s ballistics expert had not testified that the shell had misfired. The

trial court overruled the objection, concluding that the evidence raised at least two

permissible inferences: that the shell was the one that had misfired when kidnap

victim Eugene Valdez jumped, or that it was an additional shell that had misfired

near the apartment.

Defendant now contends that the shell was inadmissible because the

prosecution failed to present a qualified expert to testify that the shell exhibited

strike marks resulting from a misfire. Detective Ferrari was not offered as a

ballistics expert and did not testify regarding his qualifications in ballistics.

Without testimony properly establishing that the shell exhibited strike marks,

104

defendant’s argument implies, the shell was inadmissible because it was irrelevant

to any issue in the case.

Defendant did not preserve this claim for appeal. During Detective

Ferrari’s testimony, defendant did not object to his qualifications to testify about

whether the shell exhibited strike marks. Accordingly, the prosecution did not

have the opportunity to establish that Detective Ferrari was so qualified. (See

People v. Gutierrez (2002) 28 Cal.4th 1083, 1139-1140.) Although defendant

later objected to the admission of the shell into evidence on the ground that it was

irrelevant — in part because there was no expert testimony as to the strike marks

— that objection came too late, after Detective Ferrari had left the witness stand.

Because defendant did not interpose a proper and timely objection on the same

ground he now raises on appeal, he has forfeited the claim. (People v. Waidla,

supra, 22 Cal.4th at p. 717.)

Even had defendant preserved the claim, however, it would lack merit.

Detective Ferrari properly testified as a lay witness about the significance of the

marks on the shotgun shell. (See People v. Gutierrez, supra, 28 Cal.4th at

p. 1140.) His opinion was rationally based on his perception and helpful to an

understanding of his testimony (see Evid. Code, § 800), and the subject of his

opinion — the significance of marks on the shell primer — was not so far “beyond

the common experience” that expert testimony was required (id., § 801).

Finally, even without any testimony about the strike marks, the shell would

have been admissible because its presence in a patch of ivy a few feet from the

front door of the apartment where defendant was living was relevant to show the

presence of a shotgun in or around that apartment. Accordingly, the trial court did

not abuse its discretion by admitting the shell into evidence.

105

e. License

plate

Both defendant and kidnapping victim Eugene Valdez owned brown 1983

Oldsmobile Cutlasses. Valdez was driving his Cutlass, bearing license plate

No. 1HBH117, when he was kidnapped. A few days after the kidnapping, when

police located that car in Baldwin Park, several parts — including the hood, grille,

front bumper, and left rear taillight assembly — had been removed. After

defendant’s arrest, when police recovered defendant’s Cutlass from an auto body

shop, several parts on the car — including the hood, front grille, and the left rear

taillight assembly — appeared to have come from a different vehicle. Although

there was no license plate in the front housing bracket on defendant’s car, the

outlines of several alphanumeric characters were discernable in the dust and debris

on the license plate backing.

A Los Angeles County Sheriff’s Department forensic scientist who

analyzed the dust impressions on the front license plate backing on defendant’s car

testified that the first character was either “1” or “T” or “I,” the next three were

“HBH,” and the next two were either “1” or “I.” The last character was not

legible. An auditor from the district attorney’s office concluded that there were

432 possible seven-character combinations of those letters and numbers, and

documents explaining the basis for that conclusion were offered as exhibits. A

data processing manager for the Department of Motor Vehicles testified that a

standard California license plate would contain seven characters, of which the

second, third, and fourth would be letters and the rest would be numbers. Thus,

there were ten possible valid configurations of standard license plates beginning

with 1HBH11. Of those possible configurations, only seven were ever issued, and

only one — 1HBH117 — was issued to an Oldsmobile. The last registered owner

of that Oldsmobile was Eugene Valdez.

106

Defendant objected on relevance grounds to the exhibits explaining the

auditor’s conclusion regarding the 432 possible license plate configurations and to

the Department of Motor Vehicles records relating to license plates actually

issued. The trial court overruled the objection.

The trial court did not abuse its discretion. The exhibits and Department of

Motor Vehicles records were relevant to prove that the license plate backing, and

by extension the other nonoriginal parts on defendant’s car, had come from

Valdez’s car, and therefore that defendant had kidnapped Valdez. Valdez’s

testimony that his car bore license plate number 1HBH117 established only that

the dust imprint on the license plate backing — which bore the second, third, and

fourth characters “HBH” and first, fifth, and sixth characters that possibly were

“1” — could have been made by Valdez’s license plate. By showing that standard

license plates would have to begin with 1HBH11, and that no other standard plate

with those numbers had been issued to an Oldsmobile, the Department of Motor

Vehicles records helped eliminate other cars’ license plates as sources of the

imprint found on defendant’s car. Accordingly, the evidence was relevant and

probative of defendant’s guilt.

Defendant asserts that the evidence was inadmissible because the

Department of Motor Vehicles data processing manager did not determine whether

there was a personalized plate that began with 1HBHII. Defendant is wrong. The

manager testified that he ran a computer search to determine whether any of the

“some 400 some [sic] odd combinations” were requested as a personalized plate,

and found none. That search would have included seven-character plates

beginning with 1HBHII. Even assuming the manager did not run a search to

determine whether there was a personalized plate bearing only 1HBHII, that flaw

in his analysis would affect only the weight of the evidence, not its admissibility.

(See People v. Jones, supra, 29 Cal.4th at p. 1266; People v. Martinez, supra, 22

107

Cal.4th at p. 132.) Defendant’s counsel was free to, and did, challenge the

significance of the license plate evidence in closing argument.

f. Federal constitutional error

Defendant asserts that the admission of inadmissible evidence rendered his

trial fundamentally unfair and violated his rights to confront witnesses, to a fair

trial, to due process of law, and to a reliable judgment of death under the Fifth,

Sixth, Eighth, and Fourteenth Amendments to the United States Constitution,

warranting reversal of the guilt and penalty judgments. Assuming these claims are

preserved for review (see People v. Partida, supra, 37 Cal.4th at pp. 433-439;

People v. Yeoman, supra, 31 Cal.4th at p. 117), they lack merit. As we have

explained, admission of the drawings found in apartment E was harmless beyond a

reasonable doubt, and the trial court properly denied defendant’s motion for a

mistrial because there was no incurable prejudice. Thus, the cumulative effect of

any improperly admitted evidence neither rendered defendant’s trial

fundamentally unfair nor resulted in an unreliable judgment of death. (See People

v. Davis, supra, 36 Cal.4th at pp. 572-573; People v. Catlin (2001) 26 Cal.4th 81,

180.)

2. Crawford

Defendant asserts that the admission of codefendant Huber’s statements at

the joint trial violated his Sixth Amendment confrontation rights under Crawford

v. Washington, supra, 541 U.S. 36 (Crawford). There, the United States Supreme

Court held that the confrontation clause prohibits the admission into evidence of

“testimonial” hearsay statements against a defendant in a criminal trial unless:

(1) the declarant is unavailable as a witness and the defendant has had a prior

opportunity to cross-examine him or her, or (2) the declarant appears for cross-

examination at trial. (Id. at p. 59 & fn. 9.) Although the high court declined to

108

delineate the outer limits of “testimonial” hearsay, the court concluded that such

hearsay includes, at a minimum, “[s]tatements taken by police officers in the

course of interrogations.” (Id. at p. 52.)

Here, codefendant Huber’s statements were no doubt testimonial because

they were taken during police interrogations. Nonetheless, their admission at the

joint trial violated defendant’s confrontation rights only to the extent they were

admitted “against” defendant. (See Crawford, supra, 541 U.S. at p. 51 [“the

Confrontation Clause . . . applies to ‘witnesses’ against the accused — in other

words, those who ‘bear testimony’ ”].) As the high court has explained,

“[o]rdinarily, a witness whose testimony is introduced at a joint trial is not

considered to be a witness ‘against’ a defendant if the jury is instructed to consider

that testimony only against a codefendant.” (Richardson, supra, 481 U.S. at

p. 206.) The only exception to this rule is the narrow class of statements falling

within the holdings of Bruton and Gray — that is, statements that powerfully

incriminate the defendant on their face because they directly implicate the

defendant by name or do so in a manner the jury could not reasonably be expected

to ignore. (Gray, supra, 523 U.S. at pp. 194-196; Richardson, supra, 481 U.S. at

pp. 206-211.) Accordingly, redacted codefendant statements that satisfy Bruton’s

requirements are not admitted “against” the defendant for Crawford purposes.

(People v. Stevens, supra, 41 Cal.4th at p. 199.)

Here, as we have explained, the jury was instructed to consider Huber’s

statements against her alone. We have declined to decide whether Huber’s

statements about the Valdez, Sams, Nisbet, and Denogean crimes violated

defendant’s Sixth Amendment confrontation rights under Bruton and Gray,

concluding instead that any assumed error was harmless beyond a reasonable

doubt. For the same reasons, any Crawford error would be harmless beyond a

reasonable doubt as well. We further have concluded that even if the admission of

109

Huber’s statements about the Avina crime violated defendant’s confrontation

rights under Bruton, any assumed error was harmless in relation to defendant’s

convictions for the murder and robbery of Avina or the true finding on the

robbery-murder special circumstances. Further, as explained below, we vacate the

true finding on the Avina lying-in-wait special circumstance on other grounds.

Thus, even assuming the admission of these testimonial statements violated

defendant’s confrontation rights under Crawford, the addition of any Crawford

error does not affect the result.

3.

Sufficiency of the evidence of the Avina crimes

Defendant contends the evidence admissible against him was insufficient to

sustain his convictions for the first degree murder and robbery of Jose Avina and

the special circumstances of lying in wait and robbery murder. Under our state

law, “ ‘[t]o determine the sufficiency of the evidence to support a conviction, an

appellate court reviews the entire record in the light most favorable to the

prosecution to determine whether it contains evidence that is reasonable, credible,

and of solid value, from which a rational trier of fact could find the defendant

guilty beyond a reasonable doubt.’ [Citation.]” (People v. Jurado, supra, 38

Cal.4th at p. 118.) The standard under the due process clause of the Fourteenth

Amendment is functionally identical. “[T]he relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 319.) The same

standard applies to special circumstance allegations. (People v. Ochoa (2001) 26

Cal.4th 398, 453-454.) In reviewing this claim, we bear in mind that Huber’s

statements to the police were not admitted against defendant, and we do not

consider them.

110

For the reasons explained above (pp. 48-50), the evidence admissible

against defendant was sufficient to support the jury’s verdicts finding defendant

guilty of the robbery of Avina and the first degree felony murder of Avina based

on robbery. It also was sufficient to support the jury’s true finding on the robbery-

murder special circumstance. Because there is a basis in the record for

determining that the first degree murder verdict as to victim Avina rested on the

theory of felony murder based on robbery, and because we have concluded that

theory is valid, we may affirm the murder conviction without addressing the

factual sufficiency of the other two murder theories submitted to the jury:

premeditated and deliberate murder and murder by means of lying in wait. (See

People v. Hughes, supra, 27 Cal.4th at p. 368; People v. Marshall, supra, 15

Cal.4th at p. 38; see also People v. Guiton, supra, 4 Cal.4th at pp. 1129-1130.)

There remains the lying-in-wait special circumstance, which requires

“proof of ‘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. Jurado, supra, 38

Cal.4th at p. 119, quoting People v. Morales (1989) 48 Cal.3d 527, 557.)

Here, there was no admissible evidence of a substantial period of watching

and waiting to support the lying-in-wait special circumstance. Indeed, setting

aside defendant’s statement, which contradicted a lying-in-wait theory, there was

no direct evidence admissible against defendant regarding what happened before

the collision with Avina’s truck.

For the Avina incident, the evidence admissible against defendant consisted

of eyewitness accounts, defendant’s statements, evidence that Avina’s stereo and

other belongings were found in the possession of defendant and his companions,

and physical evidence of the manner of the killing. The eyewitness accounts were

111

not helpful in establishing lying in wait because they recounted only the aftermath

of the shooting. Thus, Denise and Omar Bennett described hearing a gunshot,

seeing a red truck roll through an intersection, and seeing someone pull a body out

of the truck. A police officer and Maria Vega, Avina’s girlfriend, described

coming upon the crime scene and discovering Avina’s body after the perpetrators

had left. Although defendant in his statement admitted demanding Avina’s keys

before shooting Avina and then taking property from the truck after Avina was

killed, his statements supplied no evidence that Avina was followed for that

purpose. Avina’s stereo equipment was found in cars and apartments linked to

defendant and his friends, but there was no admissible evidence that the taking of

the property was any more than an afterthought that arose after the accidental

bumping of Avina’s truck and the confrontation with Avina. Finally, the physical

evidence of the manner of the killing did not supply the missing “watching and

waiting” evidence. Although it suggested that defendant shot Avina while Avina

was sitting up and facing forward, the physical evidence shed no light on what

occurred before the confrontation with and the killing of Avina.

Thus, the admissible evidence showed at most that Lane’s car collided with

Avina’s truck, that defendant decided to take the truck, and that defendant

approached Avina and shot him in order to take the truck. In the alternative, the

evidence showed a collision, an altercation, a decision to kill, and the taking of the

truck. Although the prosecutor argued that defendant and his companions

followed Avina for a substantial period of time before intentionally bumping his

truck, the only evidence supporting that argument — codefendant Huber’s

statement — was inadmissible against defendant.24 Codefendant Huber’s


24

Insofar as it urged the jury to rely on Huber’s statement in considering

defendant’s guilt under the lying-in-wait murder theory and the truth of the lying-


(footnote continued on next page)

112

statement supplied the only evidence of a plan and agreement to find someone

driving a nice car, bump the car so the driver would stop, steal the car and any

valuables therein, and shoot the driver if he or she did not cooperate. It also

supplied the only evidence that Avina was purposefully trailed for any period of

time before Lane’s car collided with his truck.

The Attorney General contends the jury could have inferred that defendant

targeted Avina for robbery from the evidence that Avina took great pride in his

truck and had worked on it to make it look good, that defendant and his

companions rode in two cars that night, and that defendant had committed other

crimes that involved targeting and robbing a victim. (See Evid. Code, § 1101.)

The Attorney General also points out that the incident occurred around 10:00 p.m.,

when defendant and his companions could avoid being seen. But no inference of

watchful waiting arises from these facts without codefendant Huber’s statement to

supply meaning to them. Moreover, there is sufficient variation among

defendant’s other crimes, none of which involved bumping or otherwise stopping

a moving vehicle, that it is speculative to infer from the other crimes that the

Avina murder involved watchful waiting.

For the reasons stated above, we vacate the jury’s true finding on the lying-

in-wait special circumstance on the ground of insufficient evidence. Because

sufficient evidence does not support the lying-in-wait special-circumstance



(footnote continued from previous page)

in-wait special-circumstance allegation, the prosecutor’s argument appears to have
been improper. (Cf. Richardson, supra, 481 U.S. at p. 211; see also id. at p. 205,
fn. 2; People v. Love (1961) 56 Cal.2d 720, 730, disapproved on other grounds in
People v. Morse (1964 ) 60 Cal.2d 631, 637, fn. 2.) Defendant did not object to
the argument at trial, however, and he has not raised the issue on appeal.

113

allegation, retrial of that allegation is barred. (Burks v. United States (1978) 437

U.S. 1, 18; People v. Hatch (2000) 22 Cal.4th 260, 271-272.)

4. Sufficiency of the evidence of lying in wait as to murder victims

Ramirez, Sams, Nisbet, and Denogean

Defendant contends that the evidence admissible against him was

insufficient to support the lying-in-wait special circumstances as to murder victims

Ramirez, Sams, Nisbet, and Denogean. He argues that basing a special

circumstance finding on insufficient evidence violates his rights to due process of

law under article I, section 13 of the California Constitution and the Fourteenth

Amendment to the federal Constitution.

a. Watchful

waiting

Defendant argues that the evidence admissible against him was insufficient

to support the lying-in-wait special circumstances as to victims Ramirez and

Nisbet because there was no evidence of a “ ‘substantial period of watching and

waiting for an opportune time to act.’ ” (People v. Jurado, supra, 38 Cal.4th at

p. 119.)

With respect to the killing of Agustine Ramirez, the evidence showed that

he and his wife Linda owned the Magic Mushroom restaurant, that defendant had

dated the daughter of Linda’s friend Sylvia Medina, and that codefendant

Machuca had visited the restaurant a few weeks before the murder. Linda

Ramirez testified that around midnight on the night of the murder she and her

husband decided to leave the restaurant to go home in their separate cars, which

were parked in an alley behind the restaurant. Agustine went outside first; Linda

followed a few moments later. Agustine walked Linda to her car and started

walking toward his car. When Agustine was about 15 feet from Linda, another car

quickly drove up the alleyway and stopped, blocking his path. Agustine conversed

114

with that car’s passenger for about three seconds before the passenger shot him

with a shotgun. Linda later identified defendant as the shooter.

From that evidence, the jury reasonably could have concluded that

defendant targeted Agustine Ramirez because he was aware that Ramirez, a

restaurant owner, had money. The jury further could have concluded that on the

night of the crime defendant waited near the restaurant until Ramirez emerged into

the alley, then surprised him by quickly riding up in a car and confronting him.

Defendant argues there was no evidence of a substantial period of watchful

waiting for an opportune time to act because, had defendant been watching and

waiting, he would have accosted Agustine Ramirez when the latter first left the

restaurant, while he was alone in the alley. We disagree. Lying in wait does not

require that a defendant launch a surprise attack at the first available opportune

time. (People v. Hillhouse (2002) 27 Cal.4th 469, 501.) Rather, the defendant

“ ‘may wait to maximize his position of advantage before taking his victim by

surprise.’ ” (Ibid., quoting People v. Ceja (1994) 4 Cal.4th 1134, 1145.) Here, the

jury reasonably could have concluded from the evidence — including Linda’s

testimony and photographs of the crime scene — that defendant waited until such

time as Agustine Ramirez was in an open part of the alley where he was

vulnerable to attack.

With respect to the killing of Elizabeth Nisbet, her husband Neil Nisbet

testified that around 11:30 on the morning of the killing the two of them stopped at

the Puente Hills Mall to run an errand. Neil went into the mall while Elizabeth

stayed with the car to tidy up the backseat. Defendant admitted to the police that

he went to the mall that day intending to rob a jewelry store, but after parking and

observing Elizabeth Nisbet, he decided it would be easier to rob her. Defendant

explained: “I went to the mall and drove around for a little while and parked and

just sat there and I saw a lady. She came walking down. She got by her trunk,

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opened the back door of the truck [sic] and she went to the passenger side, opened

the driver’s side — I mean the passenger side of the door. She went in and she

was doing something in there. . . . [¶] In the backseat.” At that point defendant

forced his way into the Nisbets’ car and drove it away.

From that evidence, the jury reasonably could have concluded that

defendant watched Elizabeth Nisbet for at least the time it took her to open the

passenger door of her car and begin “doing something in . . . the backseat.” Only

at this point did defendant approach Nisbet and take her by surprise. Although the

question is close, substantial evidence supports the jury’s conclusion that

defendant waited and watched Nisbet for a “period not insubstantial” (People v.

Edwards (1991) 54 Cal.3d 787, 823) before choosing an opportune time to accost

her.

b. Murder “while” lying in wait

Defendant further contends that there was insufficient admissible evidence

to support the lying-in-wait special-circumstance findings as to victims Sams,

Nisbet, and Denogean because there was a cognizable interruption between the

period of watchful waiting and the time the victims were killed. Defendant points

out that, before being murdered, each victim was kidnapped and driven around for

a substantial period of time while defendant and his accomplices withdrew money

from the victims’ ATM accounts. Defendant contends that under these facts, the

special circumstance requirement that the murder occur “while” the defendant is

lying in wait (§ 190.2, former subd. (a)(15)) is not satisfied.

When the murders at issue here took place, the requirements of the lying-

in-wait special circumstance were slightly different from, and more stringent than,

the requirements for lying-in-wait first degree murder. (See, e.g., People v.

Gutierrez, supra, 28 Cal.4th at pp. 1148-1149.) Whereas lying-in-wait first degree

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murder required only that the murder be perpetrated “by means of” lying in wait

(§ 189), the lying-in-wait special circumstance applied to murder committed

while lying in wait” (§ 190.2, former subd. (a)(15), italics added).25 We

interpreted the special circumstance as requiring “ ‘that the killing take place

during the period of concealment and watchful waiting.’ ” (People v. Gutierrez,

supra, 28 Cal.4th at p. 1149, quoting People v. Sims (1993) 5 Cal.4th 405, 434.)

We stated that this factor, among others, sufficiently distinguished murder

committed “while” lying in wait from other murders to satisfy the Eighth

Amendment requirement that a death eligibility circumstance “ ‘justify the

classification of that type of case as one warranting imposition of the death

penalty.’ ” (People v. Gutierrez, supra, at p. 1149, quoting People v. Sims, supra,

at p. 434.)

Although we have not defined the parameters of a murder committed

“during the period of concealment and watchful waiting,” the language of the

CALJIC instruction given in this case supplies meaning to that phrase. That

instruction stated: “Thus, for a killing to be perpetrated while lying in wait, both

the concealment and watchful waiting as well as the killing must occur during the

same time period, or in an uninterrupted attack commencing no later than the

moment concealment ends. [¶] If there is a clear interruption separating the

period of lying in wait from the period during which the killing takes place, so that

there is neither an immediate killing nor a continuous flow of the uninterrupted


25

Proposition 18, an initiative approved by the voters in the March 7, 2000,

Primary Election, and effective March 8, 2000, changed the language of the lying-
in-wait special circumstance to delete the word “while” and substitute in its place
“by means of.” (Stats. 1998, ch. 629, § 2; People v. Michaels (2002) 28 Cal.4th
486, 516.) The murders here took place before this change in the law, and the
change therefore does not affect this case.

117

lethal events, the special circumstance is not proved.” (CALJIC No. 8.81.15

(1989 rev.).)26

The language of the instruction was drawn from Domino v. Superior Court

(1982) 129 Cal.App.3d 1000 (Domino), a Court of Appeal decision on which

defendant relies. (See Com. to CALJIC No. 8.81.15.) In that case, the victim was

captured during the period the defendants were lying in wait, but was not killed

until some one to five hours later. It is not clear what happened to the victim

during the interim. The Court of Appeal granted a writ of prohibition restraining

further proceedings on the special circumstance. Focusing on the difference in

statutory language between first degree murder “by means of” lying in wait

(§ 189) and the special circumstance of murder “while” lying in wait (former

§ 190.2, subd. (a)(15)), the Court of Appeal in Domino concluded: “[T]o ignore or

minimize the importance of the word ‘while’ would violate the policy of

construing penal statutes in favor of the accused and would invade the legislative

province. To give proper impact to the term ‘while’ we read it as creating a

requirement that . . . the death penalty or life without possibility of parole may be

imposed only if the appropriate temporal relationship exists between the killing

and the lying in wait. . . . Thus, the killing must take place during the period of

concealment and watchful waiting or the lethal acts must begin at and flow

continuously from the moment the concealment and watchful waiting ends. If a


26

Judicial Council of California, Criminal Jury Instructions (2007)

CALCRIM No. 727 is similar. It states in pertinent part: “In order for a murder to
be committed while lying in wait, the attack must immediately follow the period
of watching and waiting. The lethal acts must begin at and flow continuously
from the moment the concealment and watchful waiting ends. If there is a
detectable interval between the period of watching and waiting and the period
during which the killing takes place, then the murder is not committed while lying
in wait.”

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cognizable interruption separates the period of lying in wait from the period during

which the killing takes place, the circumstances calling for the ultimate penalty do

not exist.” (Domino, supra, at p. 1011.)

In several cases, we have declined to decide whether Domino’s “restrictive”

reading of the lying-in-wait special circumstance is correct, choosing instead to

conclude that, on the facts of the case before us, the Domino standard was

satisfied. (E.g., People v. Morales, supra, 48 Cal.3d at p. 558; accord, People v.

Combs, supra, 34 Cal.4th at pp. 853-854 & fn. 7; People v. Edelbacher (1989) 47

Cal.3d 983, 1022; see also People v. Michaels, supra, 28 Cal.4th at p. 517; People

v. Carpenter, supra, 15 Cal.4th at p. 389; People v. Edwards, supra, 54 Cal.3d at

p. 826.)

In other cases, however, we seem to have assumed the viability of the

Domino formulation. (E.g., People v. Sims, supra, 5 Cal.4th at p. 434 [stating that

CALJIC No. 8.81.15 “accurately sets forth the necessary elements” of the lying-

in-wait special circumstance]; People v. Ceja, supra, 4 Cal.4th at p. 1140, fn. 2

[citing Domino in noting the difference between first degree murder by means of

lying in wait and the special circumstance of murder “while” lying in wait];

People v. Webster (1991) 54 Cal.3d 411, 449 [citing Domino with apparent

approval].) In People v. Gutierrez, we stated that the lying-in-wait special-

circumstance requirement that the murder occur “ ‘during the period of

concealment and watchful waiting’ ” constituted a “ ‘clear and specific

requirement[]’ ” that “ ‘justif[ied] the classification of that type of case as one

warranting imposition of the death penalty’ ” within the meaning of the Eighth

Amendment to the federal Constitution. (People v. Gutierrez, supra, 28 Cal.4th at

p. 1149, quoting People v. Sims, supra, 5 Cal.4th at p. 434.) Sims cited this court’s

decision in People v. Edelbacher for the proposition that the murder must occur

“during” the period of concealment and watchful waiting (Sims, supra, at p. 434);

119

People v. Edelbacher in turn cited and quoted from the Court of Appeal’s decision

in Domino (People v. Edelbacher, supra, 47 Cal.3d at p. 1022).

Additional consideration of Domino’s rationale may be warranted. But

whatever “during” means in this context, this case falls outside the limits of that

term. “During” means “at some point in the course of.” (Webster’s 3d New

Internat. Dict. (2002) p. 703.) The facts here show that these killings did not occur

in the course of lying in wait. The defendants accomplished the forcible

kidnapping of each victim while lying in wait, but then drove the still living

victims around in their cars for periods of one to three hours, while withdrawing

money from the victims’ bank accounts, before killing them. By the time of the

killings, the concealment, the watchful waiting, and the surprise attack all had

taken place at least one and up to three hours earlier.

The Attorney General argues that the lying-in-wait special circumstance is

satisfied here because “there was no evidence of lapses in contact with the

victims” between the period of watchful waiting and the time when they were

killed. But we have never held that merely maintaining “contact” with the victim

satisfies the requirements of the lying-in-wait special circumstance. (Cf. People v.

Morales, supra, 48 Cal.3d at p. 558 [Domino standard is satisfied where the lying

in wait is followed immediately by a “murderous and continuous assault” that

leads to the victim’s death].) We have held that there is no cognizable interruption

between the lying in wait and the killing where there is “no lapse in the culpable

mental state of the defendant.” (People v. Carpenter, supra, 15 Cal.4th at p. 389,

italics added.) Thus, “if a person lies in wait intending first to rape and second to

kill, then immediately proceeds to carry out that intent (or attempts to rape, then

kills), the elements of the lying-in-wait special circumstance are met.” (Ibid.)

Here, although the jury could have concluded that defendant and his accomplices

lay in wait intending to rob and to kill thereafter, and that they began carrying out

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the intent to rob immediately after the lying in wait ended, there was no evidence

that the defendants carried out their intent to kill immediately. On the contrary,

completing the robberies took an extended period of time. Contrast this with the

situation in Carpenter, where the end of the lying in wait, the attempted rape, and

the killing all occurred within a few minutes.

The prosecutor argued that lying in wait was shown because defendant

concealed his purpose to kill from each of the victims until the moment they were

killed. Pointing to the testimony of Rios and Aguirre that defendant told the

couple they would not be harmed because they were cooperating, and to

defendant’s statement that he gave murder victim Denogean similar assurances,

the prosecutor urged the jury to infer that defendant also must have lulled murder

victims Sams and Nisbet into believing they would not be harmed. But as we have

explained, “mere” concealment of purpose is not enough to support the lying-in-

wait special circumstance. (People v. Morales, supra, 48 Cal.3d at p. 557.)

Rather, such concealment must be contemporaneous with a substantial period of

watching and waiting for an opportune time to act, and followed by a surprise

attack on an unsuspecting victim from a position of advantage. (See ibid.) Here,

there was no evidence that, while concealing his purpose to kill, defendant

watched and waited for an opportune time to kill the victims. Rather, the evidence

suggests each was killed when, and only when, his or her ATM withdrawal limit

had been reached and the victim had been driven to a suitable location for killing.

Moreover, there was no evidence that the victims were surprised. Indeed, the

evidence suggests each victim must have been aware of being in grave danger

long before getting killed. Sams was forced into a dumpster and, according to

defendant, pleaded for his life before being shot. According to defendant, Nisbet

tried to escape, an indication that she feared for her life. And according to

defendant, Denogean said, “I know you are going to kill me” and challenged

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defendant to “go ahead and kill me now.” Denogean’s comments suggest she was

not fooled.

In sum, in each of the cases at issue here, there was a period of watchful

waiting culminating in surprise kidnapping, a series of nonlethal events, and then a

cold, calculated, inevitable, and unsurprising dispatch of each victim. We have

never held the lying-in-wait special circumstance to have been established on

similar facts. Were we to hold that sufficient evidence supports the lying-in-wait

special-circumstance allegations the jury found true here, it would be difficult to

say that there is any distinction between a murder committed “by means of” lying

in wait and a murder committed “while” lying in wait. Such a construction of the

lying-in-wait special circumstance would read the word “while” out of the statute.

Although we do not “minimize the heinousness of defendant’s deeds” (People v.

Hillhouse, supra, 27 Cal.4th at p. 499), we are compelled to conclude that on these

facts “the circumstances calling for the ultimate penalty [on the basis of lying in

wait] do not exist.” (Domino, supra, 129 Cal.App.3d at p. 1011.) Accordingly,

we will vacate the lying-in-wait special-circumstance findings as to murder

victims Sams, Nisbet, and Denogean. Retrial of these special circumstance

allegations is barred. (Burks v. United States, supra, 437 U.S. at p. 18; People v.

Hatch, supra, 22 Cal.4th at pp. 271-272.)

5. Constitutionality of the lying-in-wait special circumstance

Defendant contends that the lying-in-wait special circumstance, on its face,

violates the cruel and unusual punishments clause of the Eighth Amendment to the

United States Constitution because it fails to narrow the class of persons eligible

for the death penalty and fails to provide a meaningful basis for distinguishing

cases in which the death penalty is imposed from those in which it is not. We

repeatedly have rejected these precise contentions. (E.g., People v. Jurado, supra,

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38 Cal.4th at pp. 145-147 (conc. opn. of Kennard, J.); People v. Nakahara (2003)

30 Cal.4th 705, 721; People v. Gutierrez, supra, 28 Cal.4th at pp. 1148-1149;

People v. Morales, supra, 48 Cal.3d at pp. 557-558; People v. Edelbacher, supra,

47 Cal.3d at p. 1023; see also Morales v. Woodford (9th Cir. 2004) 388 F.3d 1159,

1174-1178, cert. den. sub nom. Morales v. Brown (2005) 546 U.S. 935.) We do

the same here.

Citing Maynard v. Cartwright (1988) 486 U.S. 356, defendant asserts that

the “ambiguous definition of what activity constitutes lying in wait provides a

confusing and incoherent standard of death eligibility and permits arbitrary and

capricious imposition of death, rendering the [lying-in-wait special] circumstance

unconstitutionally vague.” To the extent our previous cases have not addressed

this precise aspect of defendant’s Eighth Amendment attack on the lying-in-wait

special circumstance, we address it now.

In Maynard, a unanimous United States Supreme Court explained:

“Claims of vagueness directed at aggravating circumstances defined in capital

punishment statutes are analyzed under the Eighth Amendment and

characteristically assert that the challenged provision fails adequately to inform

juries what they must find to impose the death penalty and as a result leaves them

and appellate courts with the kind of open-ended discretion which was held invalid

in Furman v. Georgia, 408 U.S. 238 (1972).” (Maynard v. Cartwright, supra, 486

U.S. at pp. 361-362.) The Maynard court held that Oklahoma’s “ ‘especially

heinous, atrocious, or cruel’ ” aggravating circumstance statute was

unconstitutionally vague because it failed to guide and channel jury discretion —

in that an ordinary person honestly could believe that every unjustified, intentional

taking of life fell within it — and because the appellate court had failed to apply a

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limiting construction that would have eliminated the constitutional problem. (Id.

at pp. 363-364.)27

We reject defendant’s claim that the lying-in-wait special circumstance is

unconstitutionally vague. We have limited the special circumstance to cases in

which the killer intentionally takes life under circumstances that include a

concealment of purpose, a substantial period of watching and waiting for an

opportune time to act, and immediately thereafter a surprise attack on an

unsuspecting victim from a position of advantage. (People v. Jurado, supra, 38

Cal.4th at p. 119; People v. Gutierrez, supra, 28 Cal.4th at p. 1149; People v.

Morales, supra, 48 Cal.3d at p. 557.) Because “[t]he narrowing construction

absent in Maynard is present here” (People v. Mincey (1992) 2 Cal.4th 408, 454),

the lying-in-wait special circumstance is not unconstitutionally vague. (Cf. People

v. Chatman, supra, 38 Cal.4th at pp. 394-395 [rejecting vagueness challenge to

torture-murder special circumstance]; People v. Mincey, supra, at p. 454 [same].)

Finally, defendant contends that if this court concludes the evidence is

sufficient to support the lying-in-wait special-circumstance findings here, then the

special circumstance is unconstitutional as applied to this case. Because we will

vacate the lying-in-wait special-circumstance findings as to murder victims Avina,

Sams, Nisbet, and Denogean, we need not reach this argument as it pertains to

those findings. As to the Ramirez murder, defendant in essence is arguing that the

lying-in-wait special circumstance is too broad if the facts of his case fall within it.


27

In Oklahoma, the aggravating circumstances are the factors that render a

defendant convicted of first degree murder eligible for the death penalty. (See
Okla.Stat.Ann. tit. 21, §§ 701.9, 701.10, 701.11, 701.12.) They thus are analogous
to special circumstances under California law. (See People v. Bacigalupo (1993)
6 Cal.4th 457, 467-468.)

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That is simply another way to state his facial attack on the statute, which we have

rejected above. (See People v. Moon, supra, 37 Cal.4th at p. 44.)

6. Felony-murder special circumstances

For the Sams, Nisbet, and Denogean murders, the jury found true two

felony-murder special-circumstance allegations: (1) the murder was committed

during the commission of a robbery; and (2) the murder was committed during the

commission of a kidnapping or kidnapping for robbery. Defendant asserts that

only one felony-murder special-circumstance finding per homicide is permitted

under the plain language of section 190.2, subdivision (a)(17). We have in the

past rejected this contention. (People v. Monterroso (2004) 34 Cal.4th 743, 767-

768; People v. Holt (1997) 15 Cal.4th 619, 682.) Defendant supplies no

persuasive reason to revisit the issue.

Defendant contends that the jury’s multiple felony-murder special-

circumstance findings per homicide were contrary to the jury instructions, which

told the jurors they could find true a “robbery or kidnapping” special

circumstance. (Italics added.)28 We disagree. The introductory special

circumstance instruction stated: “[I]f you find that a defendant in this case is

guilty of murder in the first degree, you must then determine if one or more of the

following special circumstances are true or not true: murder in the commission of

robbery, murder in the commission of kidnapping, lying in wait, multiple murder

convictions.” (Italics added.) The introductory instruction thus informed the jury

that it could find true both the robbery-murder and the kidnapping-murder special-


28

The instruction read in pertinent part: “To find that the special

circumstance referred to in these instructions as murder in the commission of
robbery or kidnapping true, it must be proved the murder was committed while the
defendant was engaged in the commission of a robbery or kidnapping.” (See
CALJIC No. 8.81.17 (1991 rev.).)

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circumstance allegations for each murder for which it found a particular defendant

guilty. The verdict therefore was not contrary to the jury instructions as a whole.

(See People v. Harrison, supra, 35 Cal.4th at p. 252.)

Defendant further argues that submitting multiple felony-murder special-

circumstance allegations per homicide to the jury constituted a “failure of the state

to adhere to the procedures prescribed by [state] law” in violation of his right

under the federal Constitution to due process of law. (See Hicks v. Oklahoma,

supra, 447 U.S. at p. 346.) As explained above, state procedures permitted the

jury to find true more than one felony-murder special-circumstance allegation per

homicide. Therefore, this claim fails.

7. Lesser included offenses

Defendant was convicted of the robbery (§ 211), simple kidnapping (§ 207,

subd. (a)), and kidnapping to commit robbery (§ 209, subd. (b)) of victims Valdez,

Rios, Aguirre, Sams, Nisbet, and Denogean. Defendant contends that his

convictions for the simple kidnapping (counts 7, 12, 13, 17, 21, and 25) and

robbery (counts 5, 8, 9, 15, 19, and 23) of each of these victims must be reversed

because those crimes are lesser included offenses of kidnapping for robbery.

In this state, multiple convictions may not be based on necessarily included

offenses arising out of a single act or course of conduct. (People v. Montoya

(2004) 33 Cal.4th 1031, 1034; People v. Ortega (1998) 19 Cal.4th 686, 692;

People v. Pearson (1986) 42 Cal.3d 351, 355.) An offense is necessarily included

within another if “the statutory elements of the greater offense . . . include all the

elements of the lesser offense.” (People v. Birks (1998) 19 Cal.4th 108, 117;

accord, People v. Montoya, supra, at p. 1034.) “In other words, ‘if a crime cannot

be committed without also necessarily committing a lesser offense, the latter is a

126

lesser included offense within the former.’ ” (People v. Montoya, supra, at

p. 1034, quoting People v. Lopez (1998) 19 Cal.4th 282, 288.)

As the Attorney General concedes, simple kidnapping is a necessarily

included offense of kidnapping to commit robbery, the latter having an additional

element of intent to rob that arises before the kidnapping commences. (People v.

Bailey (1974) 38 Cal.App.3d 693, 699.) We therefore reverse defendant’s six

convictions for simple kidnapping (counts 7, 12, 13, 17, 21, and 25).

We conclude, however, that robbery is not a lesser included offense of

kidnapping for robbery. A defendant may be convicted of kidnapping for robbery

even if the robbery is not completed. (People v. Davis, supra, 36 Cal.4th at

p. 565; People v. Beaumaster (1971) 17 Cal.App.3d 996, 1007.) The defendant

need only have the specific intent to commit a robbery when the kidnapping

begins. (People v. Davis, supra, at pp. 565-566.) Robbery, on the other hand,

requires that the defendant actually gain possession of the victim’s property and

take it away. (People v. Hill, supra, 17 Cal.4th at p. 852.) Because one can

commit a kidnapping for robbery without also committing a robbery, robbery is

not a lesser included offense of kidnapping for robbery.

Defendant claims in the alternative that section 654 bars multiple

punishment for both the kidnappings for robbery and the robberies of each of the

victims. We agree. At the time of trial, section 654 provided in pertinent part:

“An act or omission which is made punishable in different ways by different

provisions of this code may be punished under either of such provisions, but in no

case can it be punished under more than one.” (Former § 654, as amended by

Stats. 1977, ch. 165, § 11, p. 644.) Section 654 bars multiple punishment for

separate offenses arising out of a single occurrence where all of the offenses were

incident to one objective. (Neal v. State of California (1960) 55 Cal.2d 11, 19.)

Here, the kidnappings for robbery and the robberies of each victim were

127

committed “pursuant to a single intent or objective,” that is, to rob the victims of

their cars and/or cash from their bank accounts. (People v. Beamon (1973) 8

Cal.3d 625, 639.) Accordingly, the sentences for the robbery convictions in

counts 5, 8, 9, 15, 19, and 23 must be stayed.29 (See People v. Norell (1996) 13

Cal.4th 1, 9; People v. Beamon, supra, at p. 640.)

8. Effect of reversals on penalty

We are reversing defendant’s six convictions for simple kidnapping, and

we are vacating the lying-in-wait special circumstances as to murder victims

Avina, Sams, Nisbet, and Denogean. Defendant contends that under these

circumstances we must remand for a new penalty determination. We are not

persuaded.

Defendant first asserts that the jury’s consideration of the reversed

convictions and vacated special circumstances under section 190.3, factor (a) —

which allows the jury to weigh in its penalty calculus “the circumstances of the

crime of which the defendant was convicted in the present proceeding and the


29

Defendant argues that his convictions for both robbery and kidnapping for

robbery were improper because defendant achieved his larcenous purpose. He
relies on the following statement from a 40-year-old case: “The offense of
robbery, of course, is necessarily included within the offense of kidnapping for the
purpose of robbery where the kidnaper achieves his purpose.” (People v. Ford
(1966) 65 Cal.2d 41, 49, overruled on other grounds in People v. Satchell (1971) 6
Cal.3d 28, 35-41, overruled, in turn, on other grounds in People v. Flood (1998)
18 Cal.4th 470.) Ford does not govern the outcome here because the statement on
which defendant relies was dictum made in the context of a multiple punishment
claim, not a multiple conviction claim. Other cases have similarly stated, in the
context of section 654 multiple punishment claims, that robbery is a lesser
included offense of kidnapping for robbery. (E.g., People v. Gomez (1992) 2
Cal.App.4th 819, 826-827 [§ 654 bars punishment for both kidnapping for robbery
and robbery].) We disapprove such cases to the extent they can be read to hold or
suggest that robbery is a lesser included offense of kidnapping for robbery for
purposes of the rule barring conviction on necessarily included offenses.

128

existence of any special circumstances found to be true” — rendered the penalty

verdict unreliable in violation of the Eighth Amendment to the United States

Constitution. We disagree. Ten valid special circumstances remain rendering

defendant eligible for the death penalty: five robbery-murder special

circumstances, three kidnapping-murder special circumstances, one lying-in-wait

special circumstance, and one multiple-murder special circumstance. The jury’s

consideration of the invalid lying-in-wait special circumstances as to murder

victims Avina, Sams, Nisbet, and Denogean and the six reversed kidnapping

convictions did not so skew the penalty determination process as to result in

constitutional error, because “all of the facts and circumstances admissible to

establish [these special circumstances and convictions] were also properly

adduced as aggravating facts bearing on the ‘circumstances of the crime’

sentencing factor” under section 190.3, factor (a). (Brown v. Sanders (2006) 546

U.S. 212, 224.)

Defendant next contends that the federal Constitution’s Sixth Amendment,

as construed by the high court in Apprendi v. New Jersey (2000) 530 U.S. 466,

Ring v. Arizona (2002) 536 U.S. 584, and the cases that followed (Cunningham v.

California (2007) 549 U.S. ___ [127 S.Ct. 856]; United States v. Booker (2005)
543 U.S. 220; Blakely v. Washington (2004) 542 U.S. 296), requires a jury

redetermination of the penalty whenever the jury has considered improper matter

under section 190.3, factor (a) — such as, in this case, the invalid lying-in-wait

special circumstances. That is so, defendant asserts, because “[t]his court cannot

conduct harmless error analysis” of the effect of the invalid special circumstances

on the penalty “without making findings that go beyond” the facts reflected in the

jury’s verdict. We disagree.

In Apprendi, the United States Supreme Court explained that under the

Sixth Amendment’s jury trial guarantee, “[e]xcept for a prior conviction, ‘any fact

129

that increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt.’ ”

(Cunningham v. California, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 868],

quoting Apprendi v. New Jersey, supra, 530 U.S. at p. 490.) The statutory

maximum is “ ‘the maximum sentence a judge may impose solely on the basis of

the facts reflected in the jury verdict or admitted by the defendant.’ ”

(Cunningham v. California, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 865],

quoting Blakely v. Washington, supra, 542 U.S. at p. 303.) Thus, statutory factors

that operate as the “ ‘functional equivalent of an element of a greater offense’ ” by

exposing a defendant to the death penalty where the jury’s guilt verdict alone

would not must be found by the jury beyond a reasonable doubt. (Ring v. Arizona,

supra, 536 U.S. at p. 609, quoting Apprendi v. New Jersey, supra, at p. 494, fn. 19;

see Ring v. Arizona, supra, at pp. 604-609.)

In California, the statutory factor that renders a defendant found guilty of

first degree murder eligible for the death penalty is the special circumstance.

(People v. Bacigalupo, supra, 6 Cal.4th at pp. 467-468.) The special circumstance

thus operates as the functional equivalent of an element of the greater offense of

capital murder. (See People v. Prieto (2003) 30 Cal.4th 226, 263.) The jury’s

finding beyond a reasonable doubt of the truth of a special circumstance allegation

satisfies the requirements of the Sixth Amendment as articulated in Apprendi and

Ring. (People v. Prieto, supra, at p. 263.) There is no federal constitutional

requirement that a jury then conduct the weighing of aggravating and mitigating

circumstances and determine the appropriate sentence. (See People v. Griffin

(2004) 33 Cal.4th 536, 595 [weighing process is not factfinding].) Indeed, the

high court in Apprendi and Ring did not purport to overrule its holding in Spaziano

v. Florida (1984) 468 U.S. 447, 465, that “there is no constitutional imperative

that a jury have the responsibility of deciding whether the death penalty should be

130

imposed” once it has found the facts rendering the defendant eligible for that

penalty. (See Ring v. Arizona, supra, 536 U.S. at p. 612 (conc. opn. of Scalia, J.)

[“What today’s decision says is that the jury must find the existence of the fact

that an aggravating factor existed. Those States that leave the ultimate life-or-

death decision to the judge may continue to do so”]; accord, Brice v. State (Del.

2003) 815 A.2d 314, 322; Ritchie v. State (Ind. 2004) 809 N.E.2d 258, 266; State

v. Gales (Neb. 2003) 658 N.W.2d 604, 626-627; Fry v. New Mexico (N.M. 2005)

126 P.3d 516, 533; but see Johnson v. State (Nev. 2002) 59 P.3d 450, 460

[Nevada’s requirement that the sentencer determine there are “no mitigating

circumstances sufficient to outweigh the aggravating circumstance[s]” is in part

factual and therefore a jury must make the finding].)

If a jury determination of penalty is not constitutionally required in the first

instance, then it surely cannot violate the right to trial by jury for a reviewing court

to determine whether a trial error adversely affected the penalty verdict in a

particular case. Accordingly, we reject defendant’s contention that the federal

Constitution’s Sixth Amendment requires a jury redetermination of penalty and

prevents us from conducting harmless error review. (Accord, Cauthern v. State

(Tenn.Crim.App. 2004) 145 S.W.3d 571, 623-624.)

Here, to the extent the jury’s consideration of the invalid lying-in-wait

special circumstances and kidnapping convictions as aggravating facts under

section 190.3, factor (a) constituted error, such error was harmless under any

standard. There is no likelihood that the jury’s consideration of the mere existence

of the lying-in-wait special-circumstance findings, as opposed to the facts

underlying them, tipped the balance toward death. (Cf. Brown v. Sanders, supra,

546 U.S. at pp. 224-225 [effect of placing statutory label of “aggravating

circumstance” on evidence the jury otherwise could have considered was

“inconsequential”].) The prosecutor’s penalty phase argument did not mention

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any special circumstances as such, but rather focused on the brutality of the crimes

and the aggravating and mitigating evidence presented at the penalty phase,

including defendant’s background, his statements to a psychologist and others, his

criminal history, his lack of remorse, and his behavior while incarcerated. The

argument by defendant’s counsel likewise emphasized defendant’s deprived and

abusive upbringing and his alleged brain damage, without mentioning the special

circumstances. Given the horrific facts before the jury demonstrating defendant’s

proclivity for repeated violent criminal activity, and the lack of any indication in

the record that the jury’s true findings regarding the invalid lying-in-wait special

circumstances played any role in its penalty determination, we are satisfied the

jury’s consideration of those special circumstances under section 190.3, factor (a)

did not affect the penalty verdict.

For similar reasons, the jury’s consideration of the six invalid convictions

for simple kidnapping was harmless under any standard. All of the facts

underlying those convictions were properly before the jury in relation to the

convictions for kidnapping for robbery and thus were properly considered as

aggravating under section 190.3, factor (a). Neither the prosecutor’s nor

defendant’s counsel’s arguments mentioned the kidnapping convictions. We are

satisfied that the jury’s consideration of the kidnapping convictions did not affect

the penalty verdict.

Finally, for the reasons expressed above, we conclude that the jury’s

consideration of all of the reversed counts and invalid special circumstances in the

aggregate did not affect the penalty verdict.

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F. Penalty Phase Issues

1. Failure to hold a competency hearing

Defendant asserts that the trial court’s failure to suspend proceedings and

conduct a competency hearing at the beginning of the penalty phase, despite

substantial evidence that defendant was incompetent to stand trial, violated his

state statutory rights under sections 1367 and 1368 and his federal constitutional

right to due process of law.

The issue arose after defendant made statements, both in front of the jury

and outside the jury’s presence, suggesting that he had been involved in an

uncharged murder. During the testimony of prosecution witness Raychel Sarabia

— who testified that defendant had admitted his involvement in several of the

November 1989 robbery offenses presented as prior crimes aggravating evidence

— defendant interjected: “Bitch, you was at a murder too, fuck that. I got to go,

bitch, you coming with me.” A few moments later, defendant exclaimed: “This

bitch guilty of murder. She is just as guilty of murder just like me, so it ain’t no

big deal.” After the jurors had left the courtroom, defendant stated: “She is just as

guilty as everybody else sitting right here right now. [¶] Fuck that right now.”

When the court suggested a recess so counsel could speak with defendant,

defendant interrupted: “We don’t need no recess. You can bring them in now.

One more murder don’t make no difference. You all can arrest this bitch right

now.” When the court again suggested that counsel talk to his client and “tell

[him] at length that [his] outbursts may have an adverse effect on the jury,”

defendant commented: “Charge me to another crime. One more don’t make no

difference.”

Based on these outbursts, defendant’s counsel expressed his belief that

defendant was not competent to understand the gravity of the proceedings, to

control himself, or to assist counsel. The trial court responded that a defendant’s

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ability to assist his counsel was a “vitally different matter” from his willingness to

cooperate with counsel or counsel’s ability to control his client. Nonetheless, the

court entertained defendant’s motion to have himself transported to a private

medical facility for a neurological workup and a BEAM scan (explained as a

“glorified CAT scan”) of his brain. In support of the motion, defendant submitted

a letter from Dr. Francis Crinella, a psychologist, stating there was considerable

evidence that defendant had suffered brain damage, that defendant’s brain

functioning continued to be abnormal, and that the requested BEAM testing would

reveal whether there was structural damage or abnormal electrochemical activity

in defendant’s brain, causing defendant to have “less conscious control of his

actions.”

Ultimately, the trial court denied counsel’s request for neurological testing

and declined to conduct a hearing into defendant’s competency. To the extent the

testing was intended to provide evidence in mitigation, the court found defendant’s

request untimely. To the extent the testing was intended to supply evidence of

incompetence to stand trial, the court stated: “Well, my observations during the

course of a rather lengthy trial, that [defendant] was very perceptive and did in fact

cooperate with his counsel and I have seen nothing in the penalty stage, at least as

to this point in time, that he isn’t attempting to do the same thing. . . . [¶] So there

is nothing that apparent to me, in any event, other than [defense counsel’s]

statement. [¶] And I am of the firm opinion . . . so there is no question as to why I

made the decision, that this is just one more attempt or ruse to delay the

proceedings and to avoid what the ultimate judgment of the jury may or may not

be.”

The trial court did not err. “Both the due process clause of the Fourteenth

Amendment to the United States Constitution and state law prohibit the state from

trying or convicting a criminal defendant while he or she is mentally incompetent.

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(§ 1367; Drope v. Missouri (1975) 420 U.S. 162, 181; Pate v. Robinson (1966)
383 U.S. 375, 384-386; People v. Ramos (2004) 34 Cal.4th 494, 507.) A

defendant is incompetent to stand trial if he or she lacks a ‘ “sufficient present

ability to consult with his lawyer with a reasonable degree of rational

understanding — and . . . a rational as well as a factual understanding of the

proceedings against him.” ’ (Dusky v. United States (1964) 362 U.S. 402, 402;

see also Godinez v. Moran (1993) 509 U.S. 389, 399-400; § 1367; People v.

Stewart (2004) 33 Cal.4th 425, 513.)” (People v. Rogers (2006) 39 Cal.4th 826,

846-847.)

“Both federal due process and state law require a trial judge to suspend trial

proceedings and conduct a competency hearing whenever the court is presented

with substantial evidence of incompetence, that is, evidence that raises a

reasonable or bona fide doubt concerning the defendant’s competence to stand

trial. [Citations.] . . . Evidence of incompetence may emanate from several

sources, including the defendant’s demeanor, irrational behavior, and prior mental

evaluations. [Citations.]” (People v. Rogers, supra, 39 Cal.4th at p. 847.) But to

be entitled to a competency hearing, “a defendant must exhibit more than bizarre

. . . behavior, strange words, or a preexisting psychiatric condition that has little

bearing on the question of whether the defendant can assist his defense counsel.

[Citations.]” (People v. Ramos, supra, 34 Cal.4th at p. 508.)

“A trial court’s decision whether or not to hold a competence hearing is

entitled to deference, because the court has the opportunity to observe the

defendant during trial. [Citations.] The failure to declare a doubt and conduct a

hearing when there is substantial evidence of incompetence, however, requires

reversal of the judgment of conviction. [Citations.]” (People v. Rogers, supra, 39

Cal.4th at p. 847.)

135

Defendant contends there was substantial evidence before the trial court of

his incompetence to stand trial, consisting of trial counsel’s declaration of a doubt

that defendant was able to rationally assist in his defense; the opinion of defense

psychologist Dr. Crinella that defendant’s brain functioning was abnormal; and

defendant’s irrational and counterproductive behavior at trial. We disagree that

this amounted to substantial evidence of defendant’s incompetence. First,

although a defense counsel’s opinion that his client is incompetent is entitled to

some weight, such an opinion alone does not compel the trial court to hold a

competency hearing unless the court itself has expressed a doubt as to the

defendant’s competence. (§ 1368; People v. Rodrigues (1994) 8 Cal.4th 1060,

1111-1112; People v. Howard (1992) 1 Cal.4th 1132, 1163-1164.) Here, the trial

court entertained no such doubt.

Second, we have said that if a qualified mental health expert who has

examined the defendant “ ‘states under oath with particularity that in his

professional opinion the accused is, because of mental illness, incapable of

understanding the purpose or nature of the criminal proceedings being taken

against him or is incapable of assisting in his defense or cooperating with

counsel,’ ” that is substantial evidence of incompetence. (People v. Stankewitz

(1982) 32 Cal.3d 80, 92, quoting People v. Pennington (1967) 66 Cal.2d

508, 519.) But Dr. Crinella’s declaration said nothing about defendant’s

competence to stand trial. Rather, Dr. Crinella stated that the evidence indicated

that defendant might suffer from brain damage that might cause defendant to have

“less conscious control of his actions.” The object of the recommended testing

was to confirm the existence of the alleged brain damage and to learn more about

“the origins of [defendant’s] violent behavior” so as to serve “the interests of

justice” and determine if defendant’s behavior could be controlled with

medication. Crinella did not render any opinion on defendant’s ability to

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understand the trial proceedings or to assist or cooperate with counsel.

Accordingly, nothing in Crinella’s letter raised a doubt about defendant’s

competence. (Cf. People v. Rodrigues, supra, 8 Cal.4th at p. 1111.)

Third, defendant’s outbursts at trial did not demonstrate incompetence. To

the contrary, his statements indicated the depth of his understanding of the

proceedings and his ability to assist counsel. (See People v. Marks (2003) 31

Cal.4th 197, 220-221.) For example, during a discussion of whether prosecution

witness Raychel Sarabia should be released, defendant suggested, “Put her on

recall or something. We want her back in here.” Defendant’s counsel took up the

suggestion and reserved the right to recall Sarabia. And defendant’s comments

during Sarabia’s testimony could be understood as an effort to impeach her

credibility because she was an accomplice in prior offenses.

Defendant argues that his outbursts were so counterproductive as to be

“suicidal.” Defendant points to his statement during the testimony of an expert

witness: “I’m not scared to go. I’m ready to go. Please give me the death. I’m

not afraid to go. No, man, I ain’t.” But a defendant’s preference for the death

penalty does not invariably demonstrate incompetence. (People v. Ramos, supra,

34 Cal.4th at p. 509.) Notably, there is no evidence in the record that defendant

actually attempted suicide or made preparations to do so. (Cf. Drope v. Missouri,

supra, 420 U.S. at pp. 179-180; People v. Rogers, supra, 39 Cal.4th at p. 848

[“[a]ctual suicide attempts or suicidal ideation, in combination with other factors,

may constitute substantial evidence raising a bona fide doubt regarding a

defendant's competence to stand trial”].)

Defendant further faults the trial court for concluding defendant’s

unwillingness to cooperate with his counsel did not equate with an inability to

assist counsel. But we have recognized a similar distinction. (See, e.g., People v.

Davis (1995) 10 Cal.4th 463, 527-528; People v. Laudermilk (1967) 67 Cal.2d

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272, 287.) If there is testimony from a qualified expert that, because of a mental

disorder, a defendant truly lacks the ability to cooperate with counsel, a

competence hearing is required. (See, e.g., People v. Stankewitz, supra, 32 Cal.3d

at p. 93, fn. 7.) Here, however, there was no substantial evidence that defendant’s

lack of cooperation stemmed from inability rather than unwillingness, and the trial

court’s comments suggest that it found defendant’s problem to be of the latter type

rather than the former. In these circumstances, no competency hearing was

required.

The trial court had the opportunity to observe defendant’s behavior and

demeanor at trial. The court observed that defendant was “perceptive” and able to

cooperate with counsel. Nothing in this record causes us to doubt the accuracy of

the trial court’s assessment. There was no substantial evidence of incompetence

before the trial court, and the court thus did not err in not declaring a doubt or in

not conducting a competence hearing.

2. Admission

of

aggravating evidence

Defendant contends that the trial court erred by admitting aggravating

evidence that fell within none of the factors set forth in section 190.3. He further

argues that the jury instructions on aggravating evidence were flawed, and that

these errors violated his federal constitutional rights, warranting reversal of the

penalty judgment. We find no basis for reversal.

a. Damage to holding cell wall

During the prosecution’s penalty phase case-in-chief, Los Angeles County

Sheriff’s Deputy Robert Fowler testified that one day during the trial he found a

hole in the wall of the courthouse lockup where defendant was housed when he

was not in the courtroom. The hole was about 11 inches in diameter and

penetrated the plaster of the wall, but not the wire mesh underneath. The leg brace

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defendant had been wearing that day was bent and scuffed. Admission of this

evidence was error, defendant asserts, because it was not evidence of “criminal

activity by the defendant which involved the use or attempted use of force or

violence or which involved the express or implied threat to use force or violence”

under section 190.3, factor (b).

Defendant did not object to Deputy Fowler’s testimony about the damage

to the holding cell wall. Later, at the close of the prosecution’s case-in-chief,

defendant objected to the admission into evidence of photographs showing

damage to the wall. Defendant did not, however, move to strike the testimony of

Deputy Fowler. Under these circumstances, defendant has forfeited his claim

insofar as it challenges the admission of Deputy Fowler’s testimony about the

damage to the cell wall. (People v. Frank (1990) 51 Cal.3d 718, 732-733; see also

People v. Lewis (2001) 26 Cal.4th 334, 392.)

Even were the claim fully preserved for review, defendant would not be

entitled to relief. We assume for the sake of argument that the evidence about the

damage to the cell wall was inadmissible under section 190.3, factor (b), because it

involved actual or threatened violent injury only to property, not to any person.

(See People v. Boyd, supra, 38 Cal.3d at p. 776.) Nonetheless, error in the

admission of evidence under section 190.3, factor (b) is reversible only if “there is

a reasonable possibility it affected the verdict,” a standard that is “essentially the

same as the harmless beyond a reasonable doubt standard of Chapman v.

California (1967) 386 U.S. 18, 24.” (People v. Lancaster (2007) 41 Cal.4th 50,

94.)

Here, there is no reasonable possibility that any improperly admitted

evidence affected the penalty verdict. The cell wall damage evidence played a

very small role in the prosecutor’s closing argument. (See People v. Lancaster,

supra, 41 Cal.4th at p. 95; People v. Jackson (1996) 13 Cal.4th 1164, 1233.) The

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primary focus of the prosecutor’s argument, as it pertained to defendant, was the

brutality of the crimes, defendant’s callous attitude toward the victims and to

killing in general, and the impact of the crimes on the victims’ families. The

prosecutor mentioned defendant’s attempted escape only in a perfunctory manner.

Notably, the prosecutor did not attempt to depict defendant as a significant escape

risk; nor did he express the notion that the death penalty was the only means of

protecting society from defendant. (Cf. People v. Jackson, supra, at pp. 1232-

1233.)

Further, the cell wall damage evidence was not a major part of the

prosecution’s case in aggravation. Here, as in People v. Lancaster, “[m]uch more

direct and graphic evidence of defendant’s violent conduct was before the jury.”

(People v. Lancaster, supra, 41 Cal.4th at p. 95.) Not only did the jury have

before it evidence of five brutal murders of innocent victims and the kidnappings

and robberies of three additional victims that, but for chance, could themselves

have ended in murder, it also had before it evidence that in 1989 defendant had

participated in five additional robberies, and that defendant had possessed a

weapon in jail. “In light of the circumstances of the charged crimes and the

volume of evidence of prior criminal activity that was properly admitted, there can

be no reasonable possibility that any improperly admitted evidence was

prejudicial.” (People v. Pinholster (1992) 1 Cal.4th 865, 963, fn. omitted.)

b. Defendant’s

outbursts

As noted above, defendant interrupted prosecution witness Raychel

Sarabia’s testimony before the jury with outbursts suggesting, among other things,

that he and Sarabia were involved in an uncharged murder. Defendant’s outbursts

continued outside the jury’s presence. Over defendant’s objection, the trial court

permitted Detective Lee, who had been present in the courtroom when the

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outbursts occurred, to read to the jury a transcript of defendant’s statements made

outside the jury’s presence. The transcript included the comments of the court and

counsel interspersed with defendant’s comments.

Defendant insists the evidence of his conduct outside the jury’s presence

was inadmissible under section 190.3, factor (b). Defendant first contends that his

statements did not constitute an admission to any of the crimes about which

Sarabia testified, but rather implied his guilt in an unspecified murder. As such,

he asserts, the statements were not relevant under section 190.3, factor (b). We

disagree. A defendant’s own hearsay statements are admissible against him (Evid.

Code, § 1220; People v. Davis, supra, 36 Cal.4th at p. 535), as long as they satisfy

the test of relevance. Relevant evidence is evidence “having any tendency in

reason to prove or disprove any disputed fact that is of consequence to the

determination of the action.” (Evid. Code, § 210.) Here, the jury reasonably

could have construed defendant’s out-of-court statements — “She is just as guilty

as everyone else sitting here right now” and “Charge me to another crime. One

more don’t make no difference” — as oblique admissions to the crimes about

which Sarabia testified, to an unspecified crime, or to the crimes for which

defendant had already been convicted. As such, they were admissible as

statements of the defendant, and relevant under section 190.3, factors (a)

(circumstances of the capital crimes) and (b) (prior violent crimes).

Defendant further argues that the comments of the trial court and counsel

that were read to the jury — including the prosecutor’s comment that Sarabia

might be reluctant to return to the court to testify again — were not relevant to any

section 190.3 factor. The trial court permitted the comments in question to be read

to the jury to supply context for defendant’s comments. That ruling was

reasonable. Further, no prejudice is conceivable. Most of the court’s and

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counsel’s comments were innocuous, and the jury itself easily could have inferred

that Sarabia was afraid of defendant.

c. Shank

The prosecution presented evidence that in June 1992, while defendant was

housed in the county jail awaiting trial, a homemade stabbing instrument known as

a shank was found concealed inside the mattress in defendant’s single-person cell.

Defendant asserts that this evidence was inadmissible under section 190.3, factor

(b).

Defendant did not object to this evidence at trial and therefore has forfeited

his claim of error. (People v. Tuilaepa (1992) 4 Cal.4th 569, 588.) Were we to

reach the merits of the claim, we would reject it. “It is settled that a defendant’s

knowing possession of a potentially dangerous weapon in custody is admissible

under factor (b).” (Id. at p. 589.) Defendant argues there was no evidence the

shank was found on his person or that he carried it in situations involving contact

with other persons. But we have never required actual use or carrying of a weapon

for section 190.3, factor (b), to apply. “[M]ere possession of a potentially

dangerous weapon in custody involves an implied threat of violence.” (People v.

Martinez (2003) 31 Cal.4th 673, 697.) Here, a sheriff’s deputy testified that

during the early morning hours of June 13, 1992, when most inmates were asleep,

he heard scraping noises coming from defendant’s cell; on approaching the cell he

saw that defendant had placed a sheet over the bars so observers could not see in;

and, after defendant was removed from the cell, the deputy searched it and found

the shank. This evidence was sufficient for the jury to conclude that defendant’s

possession of the shank was “knowing.”

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d. CALJIC No. 8.87

The trial court instructed the jury in the language of the 1989 version of

CALJIC No. 8.87 regarding the consideration of evidence of prior criminal

activity under section 190.3, factor (b). Defendant asserts that this instruction

creates an impermissible mandatory presumption that any prior criminal activity

involved force or violence or the express or implied threat to use force or violence.

He further argues that the instruction improperly escalated the seriousness of prior

crimes evidence by erroneously telling the jury that the evidence established either

an “actual threat” or an “implied use” of force or violence rather than, as section

190.3, factor (b) requires, the “implied threat” to use force or violence. We

recently rejected identical contentions (People v. Nakahara, supra, 30 Cal.4th at

pp. 719-720), and we decline to revisit the issue.

e. California Youth Authority incarceration

Over defendant’s objection, the prosecutor introduced, under section 190.3,

factor (c), a document showing that defendant had been confined in the California

Youth Authority from November 24, 1989, until June 29, 1991, only a few days

before the murder of Jose Avina. Defendant contends that this evidence of his

California Youth Authority confinement was inadmissible under section 190.3,

factor (c), which permits the jury to consider in aggravation “[t]he presence or

absence of any prior felony conviction.”

We have long held that juvenile adjudications are not prior felony

convictions within the meaning of factor (c) and therefore are inadmissible in the

prosecution’s aggravation case-in-chief. (People v. Lewis, supra, 26 Cal.4th at

p. 378; People v. Burton (1989) 48 Cal.3d 843, 861-862.) As respondent

concedes, the document in question was evidence of a juvenile adjudication and

therefore the trial court erred in allowing the prosecution to introduce it in its case-

in-chief.

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There is no reasonable possibility, however, that the evidence affected the

penalty verdict. The admissible evidence of defendant’s pattern of repeated

criminal activity, from the 1989 robbery offenses until the offenses for which he

received the death penalty, was strong. (People v. Burton, supra, 48 Cal.3d at

pp. 863-864.) The evidence of defendant’s juvenile adjudication added little to the

prosecution’s case that defendant was an incorrigible repeat offender.

Moreover, the prosecutor did not exploit the evidence in closing argument.

He did not mention the evidence except to argue that defendant “went through a

crime spree back in ’89 and from ’89 to ’91 the only thing he learned was to

murder, was to get rid of those victims, the people who could identify him and put

him back in jail.” The prosecutor did not highlight the fact that defendant’s

confinement was related to a juvenile adjudication; indeed, he did not even utter

the word “juvenile.” That defendant commenced his murder spree a mere five

days after release from 19 months of confinement surely was relevant as a

“circumstance[] of the crime” under section 190.3, factor (a). Accordingly, any

improper prejudice was minimal and provides no basis for reversal.

f. Federal constitutional error

Defendant contends that the admission of nonstatutory aggravating

evidence violated his right to due process of law under the Fourteenth Amendment

to the federal Constitution (see Hicks v. Oklahoma, supra, 447 U.S. at p. 346) and

rendered the penalty verdict unreliable in violation of the Eighth Amendment to

the federal Constitution (see Zant v. Stephens (1983) 462 U.S. 862, 885). He

asserts that the violations in combination cannot be considered harmless beyond a

reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.) We

disagree. We have found no reasonable possibility (People v. Brown, supra, 46

Cal.3d at pp. 446-448) that any error or potential error alone affected the verdict.

144

We likewise conclude that there is no reasonable possibility that any errors or

potential errors in the admission of evidence at the penalty phase, considered in

the aggregate, affected the verdict, in light of the weight of the admissible

aggravating evidence. The latter included the circumstances of the capital crimes,

defendant’s prior criminal activity, and defendant’s possession of a weapon in jail.

The reasonable possibility standard is functionally equivalent to the harmless-

beyond-a-reasonable-doubt standard of Chapman v. California, supra, 386 U.S. at

page 24. (People v. Lancaster, supra, 41 Cal.4th at p. 94.) Accordingly, any

federal constitutional error was harmless beyond a reasonable doubt.

3.

CALJIC No. 8.85

Defendant launches several attacks on the constitutionality of CALJIC No.

8.85, a standard jury instruction given in this case that identifies the aggravating

and mitigating circumstances the jury is to consider in selecting between the

penalties of death and life imprisonment without possibility of parole. As

defendant acknowledges, we have in the past repeatedly rejected these

contentions. Thus, we have held the trial court is not obligated to identify which

factors are mitigating and which are aggravating (People v. Rogers, supra, 39

Cal.4th at p. 897; People v. Farnam (2002) 28 Cal.4th 107, 191), or to instruct that

the absence of evidence supporting a particular mitigating factor is not aggravating

(People v. Rogers, supra, at p. 897; People v. Pollock (2004) 32 Cal.4th 1153,

1193-1194). “Further, the instructions ‘need not explicitly label a factor such as

extreme mental or emotional disturbance as mitigating, provided there is no

reasonable likelihood jurors misunderstood the instruction in a way that violated

the defendant’s rights.’ [Citations.]” (People v. Rogers, supra, at p. 897; see also

People v. Blair, supra, 36 Cal.4th at p. 754.) Here, as defendant acknowledges,

the prosecutor never argued that the absence of mitigating evidence under a

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particular factor was aggravating, or that defendant’s mitigating evidence was

actually aggravating. There is no reasonable likelihood the jury understood the

instruction in an impermissible way.

The trial court is not obligated to delete inapplicable factors from the list of

factors in CALJIC No. 8.85. (People v. Farnam, supra, 28 Cal.4th at pp. 191-192;

People v. Earp (1999) 20 Cal.4th 826, 899.) Further, “[t]he trial court is not

required to instruct on its own motion that the only aggravating factors the jury

may consider are those specified in section 190.3.” (People v. Rogers, supra, 39

Cal.4th at pp. 897-898; People v. Taylor, supra, 26 Cal.4th at p. 1180; see also

People v. Earp, supra, at p. 899.) Defendant makes no showing that he requested

such an instruction. Finally, the “[u]se in the sentencing factors of the phrases

extreme mental or emotional disturbance’ (§ 190.3, factor (d), italics added) and

extreme duress or . . . substantial domination of another’ (id., factor (g), italics

added) does not inhibit the consideration of mitigating evidence or make the

factors impermissibly vague. [Citations.]” (People v. Anderson (2001) 25 Cal.4th

543, 601; see also People v. Blair, supra, 36 Cal.4th at p. 754 [not unduly

restrictive]; People v. Arias, supra, 13 Cal.4th at pp. 188-189 [not vague].)

Defendant acknowledges that we have rejected his arguments in the past,

but he insists we have not “adequately addressed the underlying reasoning” he

presents. He provides no persuasive reason to revisit these issues.

4. CALJIC No. 8.88

Defendant launches several attacks on the constitutionality of the 1989

revision of CALJIC No. 8.88, a standard jury instruction given in this case that

informs the jury how it is to weigh the aggravating and mitigating evidence. As

defendant acknowledges, we have in the past rejected each of these contentions.

Thus, we have held that the trial court “was not obligated to instruct that the jury

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had to choose life imprisonment without possibility of parole if it found the

mitigating circumstances outweighed the aggravating circumstances.” (People v.

Rogers, supra, 39 Cal.4th at p. 900 [discussing former CALJIC No. 8.84.2]; see

People v. Hughes, supra, 27 Cal.4th at p. 405; People v. Duncan (1991) 53 Cal.3d

955, 978-979.) Further, “[t]he trial court was not required to tell the jury it had

discretion to impose the punishment of life imprisonment without possibility of

parole even in the absence of any mitigating factors.” (People v. Rogers, supra, at

p. 899; see People v. Taylor, supra, 26 Cal.4th at p. 1181.)

The trial court instructed the jurors under CALJIC No. 8.88 that “[t]o return

a judgment of death, each of you must be persuaded that the aggravating

circumstances are so substantial in comparison with the mitigating circumstances

that [they] warrant[] death instead of life without parole.” We have held, contrary

to defendant’s argument, that the phrase “so substantial” is not unconstitutionally

vague in violation of the federal Constitution’s Eighth Amendment. (People v.

Rogers, supra, 39 Cal.4th at p. 900; People v. Boyette, supra, 29 Cal.4th at

p. 465.) Also, the instruction is not unconstitutional for not stating that the central

determination is whether the death penalty is “appropriate.” (People v. Rogers,

supra, at p. 900; People v. Breaux (1991) 1 Cal.4th 281, 315-316; see also People

v. Boyette, supra, at p. 465.)

Further, there is no constitutional requirement that the trial court instruct

the jury that it must find beyond a reasonable doubt that aggravating

circumstances exist, that the aggravating circumstances outweigh the mitigating

circumstances, or that death is the appropriate penalty. (People v. Boyette, supra,

29 Cal.4th at p. 465; People v. Farnam, supra, 28 Cal.4th at p. 192.) “Indeed, the

trial court need not and should not instruct the jury as to any burden of proof or

persuasion at the penalty phase.” (People v. Blair, supra, 36 Cal.4th at p. 753; see

also People v. Boyette, supra, at p. 465.) “The Eighth and Fourteenth

147

Amendments do not require that a jury unanimously find the existence of

aggravating factors or that it make written findings regarding aggravating factors.”

(People v. Blair, supra, at p. 753; see People v. Davis, supra, 36 Cal.4th at p. 571.)

Nor is the jury required to provide a written statement of reasons for its penalty

decision. (People v. Boyette, supra, at p. 465.) The recent decisions of the United

States Supreme Court interpreting the Sixth Amendment’s jury trial guarantee

(Cunningham v. California, supra, 549 U.S. ___ [127 S.Ct. 856]; United States v.

Booker, supra, 543 U.S. 220; Blakely v. Washington, supra, 542 U.S. 296; Ring v.

Arizona, supra, 536 U.S. 584; Apprendi v. New Jersey, supra, 530 U.S. 466) do

not compel a different result. (See People v. Prince, supra, 40 Cal.4th at

pp. 1297-1298; People v. Davis, supra, at p. 572.)

We also have concluded, contrary to defendant’s argument, that “[t]he trial

court need not instruct that the beyond-a-reasonable-doubt standard and the

requirement of jury unanimity do not apply to mitigating factors.” (People v.

Rogers, supra, 39 Cal.4th at p. 897; People v. Breaux, supra, 1 Cal.4th at pp. 314-

315.) Finally, the trial court need not instruct the jury that life imprisonment

without possibility of parole is presumed to be the appropriate penalty unless the

prosecution proves to the contrary. (See People v. Arias, supra, 13 Cal.4th at

p. 190.) We decline defendant’s invitation to revisit these holdings.

5. Absence of instructions on evaluation of evidence

At the conclusion of the penalty phase, the trial court instructed the jury

using the 1989 version of CALJIC No. 8.84.01 in pertinent part as follows: “You

will now be instructed as to all of the law that applies to the penalty phase of this

trial. [¶] You must determine what the facts are from the evidence received

during the entire trial unless you are instructed otherwise. You must accept and

follow the law that I shall state to you. Disregard all other instructions given to

148

you in other phases of this trial.” (Italics added.) The trial court also instructed

the jury, as pertinent here, in the language of CALJIC No. 8.84, the introductory

penalty phase instruction, No. 8.85, the list of aggravating and mitigating factors

for the jury’s consideration, No. 8.87, requiring proof of other criminal activity

beyond a reasonable doubt, and No. 8.88, the penalty phase concluding

instruction. Contrary to the recommendation in the Use Note to CALJIC No.

8.84.1, however, the trial court did not reinstruct the jury with applicable

instructions regarding the evaluation of evidence. The omitted instructions

included several that we have previously held to be required in all criminal cases,

including CALJIC Nos. 2.20 (credibility of witnesses), 2.22 (conflicting

testimony), 2.80 (expert testimony), 2.90 (presumption of innocence and

reasonable doubt), and 3.11 and 3.12 (accomplice corroboration). (See People v.

Carter (2003) 30 Cal.4th 1166, 1219.) Defendant asserts that the failure to

reinstruct the jury on these general principles violated state law and his rights

under the Eighth and Fourteenth Amendments to the United States Constitution

and article I, sections 7, 15, and 17 of the California Constitution.

The trial court erred. Normally, a trial court must instruct the jury on

general principles of law that are closely and openly connected with the facts and

necessary for the jury’s understanding of the case, even absent a request from the

defendant. (People v. Carter, supra, 30 Cal.4th at p. 1219.) Thus, if a trial court

instructs the jury at the penalty phase not to refer to instructions given at the guilt

phase, it later must provide the jury with those instructions applicable to the

evaluation of evidence at the penalty phase. (People v. Moon, supra, 37 Cal.4th at

p. 37.) Here, however, the trial court’s failure to do so was harmless under either

the state “reasonable possibility” standard for penalty phase error (People v.

Brown, supra, 46 Cal.3d at pp. 446-448), or the “harmless beyond a reasonable

doubt” standard for federal constitutional error (Chapman v. California, supra,

149

386 U.S. at p. 24). (People v. Carter, supra, 30 Cal.4th at pp. 1221-1222; see also

People v. Moon, supra, 37 Cal.4th at pp. 37-39.)

Defendant speculates that in the absence of the omitted instructions, and in

light of the trial court’s instruction to disregard the guilt phase instructions, the

jurors logically could have felt that they could consider the trial evidence “in

whatever fashion” and “for whatever purpose” they desired, and that they were

“free to make a standardless assessment” of the evidence in determining

defendant’s penalty. Unlike defendant, “we see no reason to assume” (People v.

Carter, supra, 30 Cal.4th at p. 1221) that the jurors would have felt free to

evaluate the penalty phase evidence in a vacuum, rather than carefully and

deliberately, as they apparently had evaluated the guilt phase evidence. Nothing in

the closing arguments of the parties suggested that the jurors were free to make a

standardless assessment of the evidence. Nor did the jurors ask any questions or

request clarification as to how to assess any of the penalty phase evidence. (Ibid.)

In the absence of some specific indication of prejudice arising from the record,

defendant “does no more than speculate” (ibid.) that the absence of the

instructions prejudiced him.

Defendant complains that the jurors were given no standards to judge the

credibility of prosecution witness Raychel Sarabia, whose testimony was the only

evidence linking defendant to three of the 1989 robbery offenses offered as facts

in aggravation. Defendant contends that we must presume the jurors did not

determine whether Sarabia was an accomplice to the crimes about which she

testified and did not determine whether her testimony was corroborated. Even

assuming the jurors acted as defendant speculates, he was not prejudiced.

Whether defendant had participated in the three 1989 robbery offenses was not in

dispute. Sarabia’s testimony was uncontradicted, and in closing argument

defendant’s counsel did not dispute defendant’s involvement in those robbery

150

offenses or even mention the prior crimes evidence at all. Because defendant’s

involvement was not disputed, the lack of jury instructions regarding evaluation of

Sarabia’s testimony was inconsequential.

Further, although the trial court omitted the instruction defining reasonable

doubt, CALJIC No. 2.90, the jury was instructed that before it could consider

defendant’s alleged prior criminal activity as aggravating, it had to find beyond a

reasonable doubt that defendant had in fact engaged in that activity. There is no

reasonable possibility the jury would have believed the reasonable doubt standard

it was required to apply at the penalty phase was any different than the standard it

had just applied at the guilt phase, under which it had found several codefendants

not guilty on certain charges. (People v. Chatman, supra, 38 Cal.4th at p. 408; see

also People v. Rogers, supra, 39 Cal.4th at p. 905.) In light of the voluminous

aggravating evidence, including the circumstances of the offenses, defendant’s

callous attitude as displayed in statements to defense expert witness Dr. Crinella

and others, and defendant’s possession of a weapon in jail, we conclude there is no

reasonable possibility that the trial court’s failure to reinstruct the jury on general

principles relating to the evaluation of the evidence affected the penalty verdict,

and the error was harmless beyond a reasonable doubt.30


30

For the first time in the reply brief, defendant asserts his claim encompasses

the trial court’s failure to reinstruct the jury on its own motion under CALJIC Nos.
17.30 through 17.50, on jurors’ duties and concluding principles. Generally, a
contention may not be raised for the first time in the reply brief. (People v. Peevy
(1998) 17 Cal.4th 1184, 1206.) In any event, the contention lacks merit. The
identified instructions are not among those required by the Use Note to CALJIC
No. 8.84.1, and defendant points to no case holding that such instructions are
required on the trial court’s own motion at the penalty phase. Even assuming
error, no prejudice is conceivable.

151

6. Failure to define life imprisonment without possibility of parole

The trial court instructed the jury in the language of CALJIC No. 8.84 in

pertinent part as follows: “It is the law of this state that the penalty for a defendant

found guilty of murder of the first degree shall be death or confinement in the state

prison for life without possibility of parole in any case in which the special

circumstances alleged in this case have been specially found to be true. [¶] Under

the law of this state, you must now determine which of said penalties shall be

imposed on each defendant.” Defendant asserts that the instruction was deficient

because it failed to describe or define the term “confinement in the state prison for

life without possibility of parole.” Although defendant acknowledges that we

have rejected such claims in the past (e.g., People v. Gordon (1990) 50 Cal.3d

1223, 1277; People v. Thompson (1988) 45 Cal.3d 86, 130-131), he argues that a

fairly recent trio of decisions from the United States Supreme Court (Kelly v.

South Carolina (2002) 534 U.S. 246; Shafer v. South Carolina (2001) 532 U.S.

36; Simmons v. South Carolina (1994) 512 U.S. 154, 168-169) undermine our past

holdings. We have concluded otherwise. (People v. Prieto, supra, 30 Cal.4th at

pp. 269-271; see also People v. Snow (2003) 30 Cal.4th 43, 123-124; People v.

Smithey (1999) 20 Cal.4th 936, 1009.) We see no reason to revisit this issue.

7. Cumulative

error

Defendant contends that cumulative guilt and penalty phase errors rendered

his trial fundamentally unfair in violation of his Fourteenth Amendment right to

due process of law, requiring reversal of the guilt and penalty judgments. (See

People v. Davis, supra, 36 Cal.4th at pp. 572-573.) As to the guilt phase, we have

held that even if the admission of codefendant Huber’s redacted statements at the

joint trial was erroneous, any assumed error does not require reversal of any of

defendant’s convictions or any special circumstance not otherwise vacated. We

reverse defendant’s six convictions for simple kidnapping. The only other guilt

152

phase errors pertain to the erroneous admission of the alleged gang drawings and

Deputy McLean’s testimony that there were “ex-cons” in apartment E. We

concluded earlier that these two evidentiary errors were harmless singly and in

combination. Considering all of the guilt phase errors and assumed errors

together, we conclude their cumulative effect does not warrant reversal of any

other part of the judgment of guilt.

For the reasons given earlier, we are vacating the lying-in-wait special

circumstances attendant to the Avina, Sams, Nisbet, and Denogean murders. We

have concluded, however, that the reversals of the various counts and the vacation

of the special circumstances, even in combination, do not require reversal of the

penalty judgment. We further have concluded it was error to admit the

photographs of damage to the holding cell wall and the records of defendant’s

California Youth Authority confinement, but that these evidentiary errors in

combination were harmless. Finally, we have concluded it was error, though

harmless, to fail to reinstruct the jury on general evidentiary principles at the

penalty phase.

We find no reasonable possibility that any of these errors affected the

ultimate penalty judgment, and we conclude that the errors in combination were

harmless beyond a reasonable doubt. The evidence at trial showed defendant to be

a merciless repeat robber, kidnapper, and murderer whose crime spree ended only

because he was caught. The jury could have considered all of the facts and

circumstances admissible to establish defendant’s guilt of the kidnappings and the

truth of the vacated lying-in-wait special circumstances as aggravating at the

penalty phase. The aggravating evidence included defendant’s possession of a

potentially deadly weapon in jail and his statements to a defense psychologist that

he would kill again. Defendant did not dispute his participation in the five 1989

robbery offenses. The effects of the penalty phase instructional error and the

153

erroneous admission of aggravating evidence pale against the weight of proper,

admissible aggravating evidence. Under these circumstances, the errors, both

singly and in combination, were harmless under any applicable standard and did

not render defendant’s guilt or penalty trial fundamentally unfair. (See People v.

Davis, supra, 36 Cal.4th at pp. 572-573.)

G. Other Issues

1. Constitutionality of 1978 death penalty statute

Defendant asserts that the failure of the 1978 death penalty statute to

provide for intercase proportionality review violates his rights to equal protection

and to be free from cruel and unusual punishments under the Eighth and

Fourteenth Amendments to the United States Constitution. As defendant

recognizes, we have in the past repeatedly rejected these contentions. (E.g.,

People v. Rogers, supra, 39 Cal.4th at p. 894; People v. Cook (2006) 39 Cal.4th

566, 619; see Pulley v. Harris (1984) 465 U.S. 37, 51.) We see no reason to

revisit these holdings.

Defendant further contends that the use of the death penalty “as a regular

form of punishment for substantial numbers of crimes — as opposed to

extraordinary punishment for extraordinary crimes” such as treason — is contrary

to international norms of human decency as reflected in the laws of the nations of

Western Europe and therefore violates the cruel and unusual punishments clause

of the Eighth Amendment to the United States Constitution. We have rejected this

claim as well. (People v. Cook, supra, 39 Cal.4th at p. 619; People v. Blair, supra,

36 Cal.4th at pp. 754-755.)

2. Sentencing on noncapital offenses

Count 27 of the indictment charged defendant with conspiracy “to commit

the crimes of MURDER, ROBBERY, KIDNAPPING FOR ROBBERY,

154

KIDNAPPING and RECEIVING STOLEN PROPERTY.” The jury found

defendant guilty of conspiracy as charged in count 27. Despite defendant’s having

been charged with and convicted of only a single conspiracy count, the trial court

sentenced defendant for five separate conspiracies to commit the five separate

crimes listed in the indictment.

Respondent concedes that this was error and that only a single conspiracy

sentence is proper. Respondent also concedes that, under section 654, defendant

may not be punished for both the underlying crimes and the conspiracy, because

there was no showing that the object of the conspiracy was any broader than

commission of the underlying crimes. (In re Romano (1966) 64 Cal.2d 826, 828-

829; In re Cruz (1966) 64 Cal.2d 178, 180-181; People v. Ramirez (1987) 189

Cal.App.3d 603, 615-617.) Accordingly, we will modify the judgment to reflect a

single sentence for conspiracy and order that sentence stayed.

3. International

law

Defendant asserts that we must vacate his death sentence because capital

punishment procedures in this state violate international treaties and fundamental

precepts of human rights. Specifically, defendant argues that his death sentence

violates provisions of the International Covenant on Civil and Political Rights that

prohibit cruel and degrading punishment and the arbitrary deprivation of life. As

we have recently explained, defendant’s “contention overlooks the fact that ‘when

the United States ratified the treaty, it specially reserved the right to impose the

death penalty on any person, except a pregnant woman, duly convicted under laws

permitting the imposition of capital punishment.’ [Citations.]” (People v. Cook,

supra, 39 Cal.4th at p. 619.)

Moreover, “international law does not bar imposing a death sentence that

was rendered in accord with state and federal constitutional and statutory

155

requirements. [Citations.]” (People v. Cook, supra, 39 Cal.4th at p. 620; see also

People v. Blair, supra, 36 Cal.4th at p. 755.) Here, where we have found

prejudicial error under state or federal constitutional or statutory law, we have

reversed or modified the judgment accordingly. Defendant’s international law

claim therefore warrants no further discussion.

III. DISPOSITION

For the foregoing reasons, we (1) vacate the lying-in-wait special

circumstances as to murder victims Avina, Sams, Nisbet, and Denogean; (2)

reverse defendant’s six convictions for simple kidnapping (counts 7, 12, 13, 17,

21, and 25); (3) modify the judgment to reflect a single sentence for conspiracy

(count 27); and (4) order the sentences for the conspiracy conviction in count 27

and for the robbery convictions in counts 5, 8, 9, 15, 19, and 23 stayed. In all

other respects, we affirm the judgment, including the sentence of death.

KENNARD,

J.

WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

156



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Lewis
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S031603
Date Filed: April 28, 2008
__________________________________________________________________________________

Court:
Superior
County: Los Angeles
Judge: Clarence A. Stromwall

__________________________________________________________________________________

Attorneys for Appellant:

Lynne S. Coffin and Michael J. Hersek, State Public Defenders, under appointment by the Supreme Court,
and Kathleen M. Scheidel, Assistant State Public Defender, for Defendant and Appellant.




__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette,
Chief Assistant Attorneys General, Pamela C. Hamanka, Assistant Attorney General, Keith H. Borjon, John
R. Gorey, Sharlene A. Honnaka and Deborah J. Chuang, Deputy Attorneys General, for Plaintiff and
Respondent.











Counsel who argued in Supreme Court (not intended for publication with opinion):

Kathleen M. Scheidel
Assistant State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
(415) 904-5600

Deborah J. Chuang
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2392


Automatic appeal from a judgment of death.

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Mon, 04/28/200843 Cal. 4th 415, 181 P.3d 947, 75 Cal. Rptr. 3d 588S031603Automatic Appealclosed; remittitur issued

LEWIS (JOHN) ON H.C. (S139017)


Parties
1The People (Respondent)
Represented by Attorney General - Los Angeles Office
Deborah J. Chuang, Deputy Attorney General
300 S. Spring Street, 5th Floor
Los Angeles, CA

2Lewis, John Irving (Appellant)
San Quentin State Prison
Represented by Habeas Corpus Resource Center
Jean R. Sternberg
303 Second Street, Suite 400 South
San Francisco, CA

3Lewis, John Irving (Appellant)
San Quentin State Prison
Represented by Office Of The State Public Defender-Sf
Kathleen M. Scheidel, Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA


Disposition
Apr 28 2008Opinion: Conviction aff., special circs reversed

Dockets
Mar 3 1993Judgment of death
 
Mar 11 1993Filed certified copy of Judgment of Death Rendered
  3-3-93.
Apr 27 1998Order appointing State Public Defender filed
  Upon request of appellant for appointment of counsel, the State Public Defender is hereby appointed to represent appellant on his automatic appeal now pending in this court.
May 14 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
May 19 1998Extension of Time application Granted
  To 7-20-98 To request Record correction
Jul 15 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
Jul 17 1998Extension of Time application Granted
  To Applt To 9-18-98 To request Corr. of Record.
Sep 15 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
Sep 22 1998Extension of Time application Granted
  To 11-17-98 To request Record correction
Nov 12 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
Nov 16 1998Extension of Time application Granted
  To Applt To 1-19-99 To request Corr. of Record.
Jan 13 1999Application for Extension of Time filed
  By Applt to request correction of the Record.
Jan 14 1999Extension of Time application Granted
  To 3-22-99 To request Record correction
Mar 17 1999Application for Extension of Time filed
  By Applt to request correction of the Record.
Mar 18 1999Order filed appointing H.C. Resource Center
  Upon request of appellant for appointment of counsel, the Habeas Corpus Resource Center is hereby appointed to represent appellant John Irving Lewis for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court.
Mar 23 1999Extension of Time application Granted
  To 5-21-99 To request Record correction
May 17 1999Application for Extension of Time filed
  To request Record correction
May 20 1999Extension of Time application Granted
  To 7-20-99 To request Record correction
Jul 19 1999Application for Extension of Time filed
  By Applt to request correction of the Record.
Jul 21 1999Extension of Time application Granted
  To 9-20-99 To request Record correction
Sep 20 1999Application for Extension of Time filed
  By Applt to request correction of the Record.
Sep 22 1999Extension of Time application Granted
  To 11/19/99 To Applt To request Corr. of the Record.
Nov 18 1999Application for Extension of Time filed
  By Applt to request Corr. of the Record.
Nov 30 1999Extension of Time application Granted
  To 1/18/2000 To Applt To request Corr. of the Record. no further Extensions of time Are Contemplated.
Jan 11 2000Application for Extension of Time filed
  By Applt to request Corr. of the Record.
Jan 13 2000Extension of Time application Granted
  To 3/20/2000 To Applt To request Corr. of the Record. no further Extensions of time will be Granted.
Mar 17 2000Received copy of appellant's record correction motion
  Applt's motion to correct, augment and settle the record on appeal (90 pp.)
Jul 10 2000Counsel's status report received (confidential)
  from HCRC.
Jul 12 2000Counsel's status report received (confidential)
  from State P.D.
Sep 8 2000Counsel's status report received (confidential)
  from HCRC.
Sep 14 2000Counsel's status report received (confidential)
  from State P.D.
Nov 3 2000Counsel's status report received (confidential)
  from HCRC.
Nov 14 2000Counsel's status report received (confidential)
  from State P.D.
Nov 20 2000Received:
  Applt's amended mtn to correct, augment and settle the record on appeal (30 pages)
Jan 5 2001Counsel's status report received (confidential)
  from HCRC.
Jan 16 2001Counsel's status report received (confidential)
  from State P.D.
Mar 6 2001Counsel's status report received (confidential)
  from HCRC.
Mar 13 2001Counsel's status report received (confidential)
  from State P.D.
May 7 2001Counsel's status report received (confidential)
  from HCRC.
May 10 2001Received: from A.G.
  Response to Appellant's amemded Motion to Correct, Augment, & Settle the record, filed in Superior Court
May 11 2001Counsel's status report received (confidential)
  from SPD.
Jul 6 2001Counsel's status report received (confidential)
  from HCRC.
Jul 11 2001Counsel's status report received (confidential)
  from State P.D.
Jul 11 2001Counsel's status report received (confidential)
  from HCRC.
Aug 7 2001Motion filed
  Respondent's Motion to Vacate Superior Court's Orders for Proposed Settled Statement, Hearing, & Augmentation of the Record.
Aug 15 2001Filed:
  Supplemental declaration of service of motion to vacate superior court's orders for proposed settled statement, hearing and augmentation of the record.
Sep 6 2001Counsel's status report received (confidential)
  from HCRC.
Sep 12 2001Order filed:
  The Attorney General's "motion to vacate superior court's orders for proposed settled statement, hearing, and augmentation of the record," filed August 7, 2001, is granted to the extent that the superior court is directed to vacate its order for a proposed settled statement and hearing as to nonverbal gestures and communications. The motion is otherwise denied.
Sep 14 2001Counsel's status report received (confidential)
  from State P.D.
Nov 6 2001Counsel's status report received (confidential)
  from HCRC.
Nov 15 2001Counsel's status report received (confidential)
  from State P.D.
Dec 12 2001Counsel's status report received (confidential)
  (supplemental) from HCRC.
Jan 7 2002Counsel's status report received (confidential)
  from HCRC.
Jan 11 2002Counsel's status report received (confidential)
  from State P.D.
Mar 1 2002Counsel's status report received (confidential)
  from HCRC.
Mar 12 2002Counsel's status report received (confidential)
  from State P.D.
May 1 2002Counsel's status report received (confidential)
  from HCRC.
May 10 2002Counsel's status report received (confidential)
  from State P.D.
May 29 2002Record on appeal filed
  C-55 (13475 pp.) and R-65 (8560 pp.) including material under seal. Clerk's transcript contains 10118 pp. of juror questionnaires.
May 29 2002Appellant's opening brief letter sent, due:
  July 8, 2002.
Jul 1 2002Counsel's status report received (confidential)
  from HCRC.
Jul 5 2002Counsel's status report received (confidential)
  from State P.D.
Jul 5 2002Request for extension of time filed
  To file AOB. (1st request)
Jul 12 2002Extension of time granted
  To 9/3/2002 to file AOB. The court anticipates that after that date, four extensions totaling 240 additonal days will be granted. Counsel is orderd to inform her assisting assisting attorney or entity, if any, and any assisting attorney or entity of any seprate counsel of record of this schedule, and to take all steps necessary to meet it.
Aug 30 2002Request for extension of time filed
  To file appellant's opening brief. (2nd request)
Aug 30 2002Counsel's status report received (confidential)
  from State P.D.
Sep 3 2002Counsel's status report received (confidential)
  from HCRC.
Sep 6 2002Extension of time granted
  To 11/4/2002 to file appellant's opening brief. The court anticipates that after that date, only three further extensions totaling 180 additional days will be gratned. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate cousnel of record, of this schedule, and to take all steps necessary to meet it.
Oct 28 2002Counsel's status report received (confidential)
  from HCRC.
Oct 31 2002Counsel's status report received (confidential)
  from State P.D.
Oct 31 2002Request for extension of time filed
  To file appellant's opening brief. (3rd rerquest)
Nov 4 2002Extension of time granted
  To 1/3/2003 to file appellant's opening brief. Tlhe 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 schedule, and to take all steps necessary to meet it.
Dec 26 2002Counsel's status report received (confidential)
  from State P.D.
Dec 27 2002Request for extension of time filed
  to file appellant's opening brief. (4th request)
Dec 30 2002Counsel's status report received (confidential)
  from HCRC.
Jan 6 2003Extension of time granted
  To 3/4/2003 to file appellant's opening brief. The court anticipates that after that date, only one further extension totaling 60 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 sched ule, and to take all steps necessary to meet it.
Feb 25 2003Counsel's status report received (confidential)
  from State P.D.
Feb 25 2003Request for extension of time filed
  to file appellant's opening brief. (5th request)
Feb 26 2003Counsel's status report received (confidential)
  from HCRC.
Feb 28 2003Extension of time granted
  to 5/5/2003 to file appellant's opening 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 schedule, and to take all steps necessary to meet it.
Apr 28 2003Counsel's status report received (confidential)
  from HCRC.
Apr 28 2003Counsel's status report received (confidential)
  from State P.D.
Apr 28 2003Request for extension of time filed
  to file appellant's opening brief. (6th request)
Apr 30 2003Extension of time granted
  to 7/1/2003 to file appellant's opening 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 schedule, and to take all steps necessary to meet it.
Jun 24 2003Counsel's status report received (confidential)
  from HCRC.
Jun 26 2003Request for extension of time filed
  to file appellant's opening brief. (7th request)
Jun 27 2003Counsel's status report received (confidential)
  from State P.D.
Jul 2 2003Extension of time granted
  to 9/2/2003 to file appellant's opening brief. After that date, only one further extension will be granted. Extension is granted based upon Assistant State Public Defender Kathleen M. Scheidel's representation that she anticipates filing that brief by 10/29/2003.
Aug 26 2003Request for extension of time filed
  to file AOB. (8th request)
Aug 26 2003Counsel's status report received (confidential)
  from State P.D.
Sep 2 2003Extension of time granted
  to 11-3-2003 to file AOB. After that date, no further extension will be granted. Extension granted based upon Asst. SPD Kathleen Scheidel's representation that she anticipates filing the brief by 11-3-2003.
Oct 23 2003Counsel's status report received (confidential)
  from HCRC.
Nov 3 2003Application to file over-length brief filed
  by appellant to file opening brief. (401 pp. brief submitted under separate cover)
Nov 6 2003Order filed
  Appellant's motion to file over-length opening brief is granted.
Nov 6 2003Appellant's opening brief filed
  (401 pp)
Nov 7 2003Received:
  "Notification of Personal Service," of appellant's opening brief on appellant on 11/5/2003.
Nov 25 2003Request for extension of time filed
  to file respondent's brief. [1st request]
Dec 4 2003Extension of time granted
  to 2/4/2004 to file respondent's brief.
Dec 24 2003Counsel's status report received (confidential)
  from HCRC.
Jan 27 2004Request for extension of time filed
  to file respondent's brief. (2nd request)
Jan 30 2004Extension of time granted
  to 4-5-2004 to file respondent's brief.
Feb 20 2004Counsel's status report received (confidential)
  from HCRC.
Feb 24 2004Respondent's brief filed
  (77,568 words - 276 pp.)
Mar 8 2004Request for extension of time filed
  to file appellant's reply brief. (1st request)
Mar 12 2004Extension of time granted
  to 5/14/2004 to file appellant's reply brief. After that date, only four further extensions totaling about 195 additional days are contemplated. Extension is granted based upon Assistant State Public Defender Kathleen M. Scheidel's representation that she anticipates filing that brief by 12/2004.
Apr 23 2004Counsel's status report received (confidential)
  from HCRC.
May 11 2004Request for extension of time filed
  to file appellant's reply brief. (2nd request)
May 18 2004Extension of time granted
  to 7-13-2004 to file reply brief. After that date, only three further extensions totaling about 135 additional days will be granted. Extension granted based upon Deputy SPD Kathleen Scheidel's representation that she anticipates filing the brief by December 2004.
Jun 23 2004Counsel's status report received (confidential)
  from HCRC.
Jul 6 2004Request for extension of time filed
  to file appellant's reply brief. (3rd request)
Jul 9 2004Extension of time granted
  to 9-13-2004 to file reply brief. After that date, only two further extensions totaling about 75 additional days will be granted. Extension granted based upon Asst. State P.D. Kathleen M. Scheidel's prior representation that she anticipates filing the brief by 12-2004.
Aug 18 2004Counsel's status report received (confidential)
  from HCRC.
Sep 8 2004Request for extension of time filed
  to file appellant's reply brief. (4th request)
Sep 13 2004Extension of time granted
  to 11/12/2004 to file appellant's reply brief. The court anticipates that after that date, only one further extension totaling about 60 additional days will be granted. Counsel is ordered to inform his or her supervising attorney, if any, of this schedule, and to take all steps necessary to meet it.
Oct 18 2004Counsel's status report received (confidential)
  from HCRC.
Nov 4 2004Request for extension of time filed
  to file appellant's reply brief. (5th request)
Nov 10 2004Extension of time granted
  to 1/11/2005 to file appellant's repy brief. After that date, only two further extensions totaling about 105 additional days will be granted. Extension is granted based upon Assistant State Public Defender Kathleen M. Scheidel's representation that she anticipates filing that brief by 4/26/2005.
Dec 20 2004Counsel's status report received (confidential)
  from HCRC.
Jan 4 2005Request for extension of time filed
  to file reply brief. (6th request)
Jan 6 2005Filed:
  Supplemental declaration in support of application for extension of time to file reply brief.
Jan 11 2005Extension of time granted
  to 3/14/2005 to file appellant's reply brief. After that date, only one further extension totaling about 45 additional days will be granted. Extension is granted based upon Assistant State Public Defender Kathleen M. Scheidel's representation that she anticipates filing that brif by 4/26/2005.
Feb 15 2005Counsel's status report received (confidential)
  from HCRC.
Mar 8 2005Request for extension of time filed
  to file appellant's reply brief. (7th request)
Mar 14 2005Extension of time granted
  to 5/13/2005 to file appellant's reply brief. Extension is granted based upon Assistant State Public Defender Kathleen M. Scheidel's representation that she anticipates filing that brief by 5/13/2005. After that date, no further extension will be granted.
Mar 30 2005Motion filed (AA)
  appellant's motion for permission to file supplemental opening brief. (11 pp. - 2613 word brief submitted under separate cover)
Apr 11 2005Order filed
  Petitioner's motion for permission to file supplemental opening brief is granted. Any supplemental respondent's brief is to be served and filed on or before 5/11/2005.
Apr 11 2005Supplemental brief filed
  appellant's opening brief. (2613 words; 11 pp.)
Apr 20 2005Counsel's status report received (confidential)
  from HCRC.
May 2 2005Request for extension of time filed
  to file appellant's reply brief. (8th request)
May 2 2005Supplemental brief filed
  respondent's. (3597 words; 14 pp.)
May 5 2005Extension of time granted
  to 5/27/2005 to file appellant's reply brief. Extension is granted based upon Assistant State Public Defender Kathleen M. Scheidel's representation that she anticipates filing that brief by 5/27/2005. After that date, no further extension will be granted.
May 24 2005Appellant's reply brief filed
  (18,153 words; 68 pp.)
Jun 15 2005Counsel's status report received (confidential)
  from HCRC.
Aug 12 2005Counsel's status report received (confidential)
  from HCRC.
Oct 13 2005Counsel's status report received (confidential)
  from HCRC.
Nov 21 2005Related habeas corpus petition filed (concurrent)
  No. S139017
Nov 15 2006Exhibit(s) filed (AA)
  Peo. 17 - Large Map on Board Peo. 24 - (24A-24D) Color six packs on one board Peo. 128, 129, and 139- drawings on cardboard Deft. B (motion to sever) - statement of Eileen Huber
Dec 12 2006Exhibit(s) lodged
  Defendant's exhibits C- I
Dec 21 2006Filed:
  Motion for leave to file appellant's supplemental opening brief "under seperate cover" was received, 2,607 words; 11 pp.)
Dec 29 2006Order filed
  Appellant's "Motion for Leave to File Supplemental Opening Brief" is granted. Any supplemental respondent's brief is to be served and filed on or before January 29, 2007.
Dec 29 2006Supplemental brief filed
  by appellant. (2,607 words; 11 pp.)
Jan 18 2007Request for extension of time filed
  to file supplemental Respondent's Brief (1st request)
Jan 19 2007Letter sent to:
  counsel regarding missing exhibits (People's 128, 129 and 139 from trial; Defense Exhibit B to the motion to sever trials). Within the next 10 days counsel are to (1) determine if they have copies of any of these exhibits in their files, or are able to obtain copies from trial counsel; (2) consult with opposing appellate counsel regarding what they have been able to locate; (3) jointly forward one copy of each exhibit located to this court; and (4) jointly inform the court if they collectively are unable to locate a copy of one or more of these exhibits.
Jan 25 2007Extension of time granted
  to April 2, 2007 to file the supplemental respondent's brief. After that date, no further extension is contemplated. Extension is granted based upon Deputy Attorney General Deborah J. Chuang's representation that she anticipates filing that brief by April 2, 2007.
Jan 26 2007Received:
  letter from Asst. State P.D. Kathleen Scheidel, dated January 26, 2007, in response to court's letter of January 19, 2007, requesting assistance in reconstructing missing exhibits. Attached to this letter are copies of the exhibits. The parties estimate that the original size of each of People's exhibits 128, 129 and 139 was 8.5" by 11".
Feb 8 2007Exhibits requested
  from superior court: Peoples, nos. 1, 7, 15, 52, 248 and 249.
Feb 9 2007Exhibit(s) lodged
  People's: 1 (A-J), 7 (A-I), 15 (A-D), 52 (A-D), 248 and 249.
Feb 15 2007Supplemental brief filed
  respondent's brief. (4328 words; 17 pp.)
Mar 16 2007Filed:
  certificate of word count and supplemental declaration in support of appellant's supplemental reply brief.
Mar 16 2007Supplemental brief filed
  Appellant's reply brief. (1,417 words; 7 pp.)
Apr 26 2007Exhibit(s) lodged
  Peo. 27 - Chart w/ photos A thru H -and- Peo 28 - Chart w/ photos A thru D.
Aug 27 2007Change of contact information filed for:
  applt counsel HCRC.
Nov 7 2007Oral argument letter sent
  advising counsel that the the court could schedule this case for argument as early as the January 2008 calendar, to be held the week of January 7, 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.
Jan 3 2008Case ordered on calendar
  to be argued on Wednesday, February 6, 2008, at 1:30 p.m., in Sacramento
Jan 11 2008Received:
  appearance sheet from Deputy Attorney General Deborah J. Chuang, indicating 30 minutes for oral argument for respondent.
Jan 11 2008Filed:
  appellant's focus issues letter dated January 10, 2008.
Jan 15 2008Filed:
  respondent's focus issues letter dated January 11, 2008.
Jan 25 2008Received:
  Appellant's list of additional authorities for oral argument.
Jan 25 2008Filed:
  Respondent's letter of additional authoirites for oral argument.
Feb 6 2008Cause argued and submitted
 
Apr 28 2008Opinion filed: Conviction affirmed, special circs reversed
  we (1) vacate the lying-in-wait special circumstances as to the four murder victims; (2) reverse defendant's six convictions for simple kidnapping (counts 7, 12, 13, 17, 21, and 25); (3) modify the judgment to reflect a single sentence for conspiracy (count 27); and (4) order the sentences for conspiracy conviction in count 27 and for the robbery convictions in counts 5, 8, 9, 15, 19, and 23 stayed. In all other respects, we affirm the judgment, including the sentence of death. opinion by Kennard, J. ----- joined by George, C.J., Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
May 13 2008Rehearing petition filed
  by appellant (986 words; 5 pp.)
May 16 2008Time extended to consider modification or rehearing
  The time for granting or denying rehearing in the above-entitled case is hereby extended to and including July 25, 2008, or the date upon which rehearing is either granted or denied, whichever occurs first.
May 21 2008Letter sent to:
  respondent requesting an answer to appellant's petition for rehearing; answer to be served and filed on or before Thursday, May 29, 2008.
May 23 2008Exhibit(s) lodged
  one large chart
May 27 2008Answer to rehearing petition filed
  by respondent. (1,355 words; 7 pp.)
Jun 2 2008Filed:
  by appellant "reply to answer to petition for rehearing". (904 words; 5 pp.)
Jul 9 2008Rehearing denied
  The petition for rehearing is denied.
Jul 9 2008Remittitur issued (AA)
 
Jul 17 2008Received:
  acknowlegment of receipt of remittitur from trial court.
Aug 8 2008Note:
  Exhibit Deft. B...Diagram returned to Superior Court this date.
Oct 3 2008Received:
  copy of petition for writ of certiorari sent to U.S.S.C. dated, October 2, 2008.
Oct 14 2008Received:
  Letter from U.S.S.C. dated October 7, 2008, advising appellant's petition for writ of certiorari filed October 2, 2008, no. 08-6635.
Dec 29 2008Note:
  record shipped to U.S. Supreme Court, pursuant to telephonic request from its Clerk's Office.
Jan 2 2009Received:
  receipt from U.S. Supreme Court for the record on appeal.
Jan 26 2009Certiorari denied by U.S. Supreme Court
 
Feb 27 2009Note:
  record returned from U.S. Supreme Court.

Briefs
Nov 6 2003Appellant's opening brief filed
 
Feb 24 2004Respondent's brief filed
 
May 24 2005Appellant's reply brief filed
 
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