Filed 12/5/05 (reposted to correct format anomaly)
IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. VA004848
Following the guilt phase of the trial, a Los Angeles County jury found
defendant Abelino Manriquez guilty of the murders of Miguel Garcia, George
Martinez, Efrem Baldia, and Jose Gutierrez, each murder having been committed
on a separate date. (Pen. Code, § 187, subd. (a).)1 As to each of the crimes, the
jury found that defendant personally used a handgun. (§§ 1203.06, subd. (a)(1),
1192.7, subd. (c)(8).) The jury found true the special circumstance of multiple
murder. (§ 190.2, subd. (a)(3).)
At the conclusion of the penalty phase, the jury returned a verdict of death.
This appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).)
We affirm the judgment in its entirety.
All further statutory references are to the Penal Code unless otherwise
I. GUILT PHASE EVIDENCE
A. The Prosecution’s Case
On January 22, 1989, at approximately 4:40 a.m., defendant was a patron at
the Las Playas restaurant, located in Paramount. An argument ensued between
defendant and Miguel Garcia, ending when defendant shot Garcia several times,
after which defendant departed from the premises.
On February 22, 1989, at approximately 10:00 p.m., defendant was a patron
at Fort Knots, a topless dance bar, located in South Gate. While Daneen Baker,
one of the dancers, performed on stage with her back to the audience, she felt a
customer touch her thighs. Such conduct was prohibited, and believing that
defendant had touched her, she asked the doorman, George Martinez, to evict him.
Martinez did so, after which defendant attempted to reenter the bar on several
occasions that evening, finally returning with a firearm and fatally shooting
Martinez at point-blank range.
On November 29, 1989, at approximately 2:00 p.m., defendant and his
girlfriend, Sylvia Tinoco, were drinking beer and ingesting cocaine at the Rita
Motel, located in Compton. Efrem Baldia (occasionally referred to by witnesses
by his nickname, “Arnulfo”) drove to the motel and defendant, knowing that
Baldia had been romantically linked to Tinoco, left the motel room looking angry,
confronted Baldia (who was unarmed) in the motel parking lot, and fatally shot
On January 21, 1990, shortly after midnight, defendant was drinking beer at
the Mazatlan Bar, located in Compton. Defendant approached the bar to order
another beer and encountered Jose Gutierrez, who, according to one witness, had
been sitting at the bar, asleep, with his head resting on his arm. Defendant
grabbed Gutierrez by the neck and shot him repeatedly.
Approximately one month later, on February 22, 1990, law enforcement
officers arrested defendant at the Charter Suburban Hospital, located in
Paramount, where he was being treated for a fresh gunshot wound in the shoulder.
2. The Murder of Miguel Garcia, January 22, 1989
John Guardado testified that after leaving a nightclub after 2:00 a.m. on
January 22, 1989, he “ran into a couple of friends [Miguel Garcia, whom
Guardado knew only as ‘Kaliman,’ and John Dorame] on the street where we hang
out at.” Garcia and Dorame asked Guardado whether he wanted to go to the Las
Playas restaurant, and Guardado joined his friends in walking there. Having
already consumed beer and a “lot of mixed drinks” at the nightclub, Guardado
described his own condition at the restaurant as “exhausted” and “dazed out,
drunk.” At approximately 4:40 a.m., Guardado observed a “medium-buil[t]” man
wearing a gray “Spanish style” suit walk by him, pull a gun from his waistband,
and cock it. He then heard six or seven shots. Guardado did not see the man’s
face, nor did he see him actually fire the gun. After the shots were fired,
Guardado saw the assailant run out of the restaurant. Guardado ran toward the
door, turned around, returned to the victim, felt him, and then departed. He
explained: “He was dead. I closed his eyes, and I left. Because I was on
Guardado believed the weapon had been a “chrome gun,” and when shown
People’s exhibit No. 7, a darker firearm recovered from defendant that the
prosecution theorized had been the murder weapon, Guardado testified that he did
not recognize it. Guardado denied recognizing the shooter in a pretrial photo
lineup, nor could he identify the shooter at trial.
Angelica Contreras, a waitress at the Las Playas restaurant, testified that in
the early morning of January 22, 1989, the victim and a few other individuals
came into the restaurant. The victim told her to serve his friends and said he
would pay for everything.2 After Contreras served the men, she returned to their
table a few minutes later to find the victim arguing with another patron, a man she
knew only as “El Gatito.” Contreras told the men to stop arguing and to pay her.
The victim did so. Contreras thereafter went to a storage room and then heard
some gunshots; when she emerged immediately thereafter, she saw the victim
lying on the floor. She observed persons running toward the door, including one
man (whom she recognized from his previous visits to the restaurant) holding a
black gun in front of his chest with his arms almost completely extended.
Contreras acknowledged not telling the police everything when they
initially interviewed her, because the restaurant manager told her, “If I did not
want to have any problems not to say anything.” Contreras subsequently
identified defendant in a pretrial photographic lineup as the person she saw
holding the gun, and at the preliminary hearing she again so identified defendant.
Contreras also testified that People’s exhibit No. 7, a .380-caliber Llama
semiautomatic pistol, resembled the gun she had observed in defendant’s
Laura Lozano, a waitress at the Las Playas restaurant, testified she was in
the kitchen when the shooting occurred. She directed the restaurant manager, a
man whom she knew only as “Santos,” “to take a look and see what had
happened,” but Santos “said that he wouldn’t go.” Lozano looked toward the
cashier and saw several persons leaving the restaurant, including one man who
carried a gun; however, she did not observe the person’s face. She acknowledged
untruthfully telling police investigators (“out of fear”) that she had not witnessed
At the time of defendant’s trial, Angelica Contreras could not be located;
the prosecution therefore introduced the relevant portion of her videotaped
testimony given at the preliminary hearing.
the foregoing events, and for a similar reason misled the investigators when they
showed her a photographic lineup, informing them that she did not recognize
anyone when in fact she had recognized one of the individuals depicted ―
defendant ― as someone she saw at the restaurant shortly before the shooting,
exchanging words with the victim and telling him to “leave me alone, I have
nothing to do with you.”
Ronald Riordan, a detective employed by the Los Angles County Sheriff’s
Department, testified that he arrived at the Las Playas restaurant at approximately
6:30 a.m. on January 22. Riordan recalled that the victim’s body bore separate
gunshot wounds to the right eye, right chin area, right neck area, upper left chest,
right lower back, and left groin area. Riordan also testified that he attended the
autopsy of the victim, that all of the victim’s wounds were consistent with having
been inflicted by a .380-caliber firearm, and that there was no evidence indicating
a different weapon had been used. Riordan recalled interviewing witness John
Guardado on the day of the murder; contrary to Guardado’s testimony at trial (in
which he recalled seeing a “chrome gun”), during the interview Guardado
described the murder weapon as “a blue steel automatic pistol.”
Dr. Christopher Rogers, a Los Angeles County Deputy Medical Examiner,
testified regarding the autopsy performed on Miguel Garcia. Rogers explained
that the cause of death was multiple gunshot wounds. The victim’s blood was
determined to have “contained alcohol, cocaine, and a substance related to
Donald Messer, a Long Beach police officer, testified that on March 2,
1989, he responded to a “shots fired” call at the La Ruleta bar, located in Long
Beach. Shortly after he and other officers arrived at the bar, Messer observed one
of his colleagues pull a handgun from defendant’s waistband, which precipitated a
struggle between the officers and defendant. The officers eventually handcuffed
defendant and placed him under arrest. At trial, Messer identified People’s exhibit
No. 7 as the firearm confiscated from defendant, and testified that the weapon was
loaded at the time.
Officer Messer added that, during the booking process, officers discovered
in defendant’s jacket pocket a “dollar bill folded up into a bindle that we booked
. . . as appearing to contain cocaine.” A similar bindle made from a folded dollar
bill was recovered from the Las Playas crime scene; criminalists employed by the
Los Angeles County Sheriff’s Department examined both bindles and confirmed
that each one contained cocaine residue, a fact to which the parties stipulated at
Dwight Van Horn, a deputy sheriff and firearms examiner employed by the
Los Angeles County Sheriff’s Department, testified that, based on the ballistics
testing he conducted in April 1989, the bullets recovered from the victim’s body
during the coroner’s investigation and the shells recovered from the crime scene
were fired from the Llama .380-caliber semiautomatic pistol seized from
defendant at the La Ruleta bar.
John Laurie, a Los Angeles County Deputy Sheriff, testified regarding an
interview with defendant (conducted with the assistance of a Spanish-speaking
detective, Deputy Joe Olmedo, who served as an interpreter), at the Los Angeles
County jail on February 24, 1990. At the time of the interview, Laurie informed
defendant he “had been identified as the suspect in [the Garcia] murder, and . . .
had been arrested on a warrant based on that incident.” After advising defendant
of his constitutional rights, Laurie further informed defendant that he was in jail in
connection with the murder committed at the Las Playas restaurant, and asked
defendant to comment upon that.
Laurie testified defendant replied that he had gone to the Las Playas
restaurant with a friend named Francisco Manzano, that the victim had tried to
pick a fight with defendant, that defendant said he did not want to fight, and that a
short time later, as defendant and Manzano were getting up to leave the restaurant,
the victim attempted to pick a fight with defendant a second time, at which point
Manzano shot the victim with a .380 semiautomatic pistol. Defendant admitted
having been armed with a nine-millimeter semiautomatic handgun that evening
and recalled having used that weapon to hold the other patrons at bay while the
shooting occurred. Laurie added: “Mr. Manriquez told Detective Olmedo that he
would have shot this person but he didn’t have to because his friend had already
On cross-examination, Laurie testified that he doubted defendant’s version
of the events, in part based on information Laurie had obtained from other
witnesses to the Las Playas shooting and in part because the investigation revealed
defendant had used the alias “Francisco Manzano” on the occasion of “at least
four other arrests.”3
Laurie, who did not understand the Spanish language, acknowledged
lacking personal knowledge as to what defendant said during the interview,
instead basing his trial testimony upon the notes he made of his conversation with
Detective Olmedo, who acted as the interpreter. Laurie also confirmed that
defendant denied shooting the victim at the Las Playas restaurant.
Ronald Dechamplain, a California Highway Patrol Officer, testified that on
January 6, 1990, he initiated a traffic stop at approximately 2:05 a.m., believing
the driver of the vehicle may have been driving under the influence of an alcoholic
beverage. The driver gave his name as “Francisco Manzano” but was unable to
produce any identification. After being arrested, the driver signed “Francisco
Manzano” on the booking form. At trial, Dechamplain identified the driver as
3. The Murder of George Martinez, February 22, 1989
Daneen Baker, a waitress and dancer at the Fort Knots bar, a topless dance
establishment located in South Gate, testified that on February 22, 1989, at
approximately 8:00 p.m., she was dancing on stage when a patron “reached up and
touched me on the back of my thigh,” a violation of the establishment’s policy.
Recalling that she was angry, Baker “bent down and I looked in his face, and I
told him, ‘Don’t you ever touch me.’ And at that time I called over George
[Martinez], [who] was the doorman, and I told him to get him out of there, I said
because he’s touching me. . . . and I grabbed my top and I got off stage.” Martinez
approached the patron, told him he had to leave and, with the help of the manager
of the bar, escorted the customer from the premises. Baker remembered the
patron’s face “very well” and identified him in a pretrial lineup and at trial as
Approximately 90 minutes after this incident, Baker again was dancing
when she heard gunshots, causing her to jump from the stage and hide near the
jukebox. Baker did not see who fired the gun, but shortly thereafter saw Martinez
“laying on the floor and he wasn’t moving.”
Mario Medel testified that he was employed as the manager of Fort Knots
on the evening of the shooting. He recalled responding to Baker’s complaint “that
there was a patron reaching over the chain” and touching her. Because the patron
indicated he did not understand English, Medel asked George Martinez to speak
with him in Spanish. When the patron refused Medel’s request to leave, “we
forcibly had to escort him out.” Outside, when Medel and Martinez attempted to
explain to the patron why he was being thrown out, he “took a swing” at Medel,
prompting Medel to hit him in the face.
Medel and Martinez returned to the bar. When the patron reentered the
establishment, Medel and Martinez “pushed him out. We just kept telling him,
‘Go on home. You had too much to drink. We told you, you can’t touch the girls.
Just leave.’ ”
Shortly thereafter, the patron returned again to the bar. Medel was in the
back office, and “[o]ne of the girls came running back and said, ‘George is outside
again with that guy.’ So I locked up the office, went outside, and George was
wrestling with the guy. I broke that up. . . . and instructed George to go back
inside. I was out there arguing with the guy. That’s when . . . he started talking
about coming back with a gun. I just kind of like blew it off, because you hear it
all the time in this business. So then I went back inside, and I stayed there with
Medel did not believe the patron would return, but “he came back again
[and] . . . . I physically threw him out. Literally just threw him out.” Medel
returned to the back office, and “[a]gain, they came back and told me George was
outside in a fight. So I ran out there. If I remember right, he kind of like had
George around the waist. . . . And George hit him with his [plastic] flashlight. . . .
So when I broke it up, he turned around and swung at me again; and I swung at
him and hit him. He went backwards and . . . his head hit the little wall, kind of
knocked him out a little bit.”
An unmarked police car arrived, Medel explained the problem to the
officers, and they told the patron to leave. Observing the patron walk down the
street, Medel reentered the bar.
Medel further testified: “So then something told me to go around back and
get up on top of the roof to see what was going on. I went on top of the roof, and I
was looking down, and I noticed a white Camaro drive up. They opened the back
hatch, and two guys were going through the back looking for something. . . . So
when I saw that, I came down off the roof; and me and George closed the front
door. I was sitting there on the stool . . . , and George was standing against the
mirrors. . . . And the next thing that happened was the guy — the door opened.
George was looking down the hallway. Then he kind of turned to me; and he says,
‘Mario, he is back.’ The guy started walking up the hallway. . . . I saw this in the
mirror. He had a brown coat on. He reached inside his coat, just point blank just
shot George with the first bullet. When I saw the first round go off, me and
another patron just kind of like swung around behind the cigarette machine. Then
I heard a second round go off, and that was it. Waited a few moments, got up,
went to see George. George was staggering at me, and the guy was gone. . . . At
first he [Martinez] was kind of like holding onto himself. He was starting to fall,
so I caught him and laid him down. . . . I went out this side door very cautiously
and went and looked around the side of the building to see if the patron was still
out there. Himself and the car [were] gone. I ran back inside and called 911 to get
help for George.”
Medel testified he saw the patron’s face during each one of the arguments
outside the bar, and that it was reflected in the mirror when the patron returned
with the gun, which Medel saw him remove from underneath his jacket, “probably
in his waistband.” In a pretrial photographic lineup, at the preliminary hearing,
and at trial, Medel identified the patron as defendant.
On the evening of the shooting, Mark Herbert was a patron at Fort Knots.
Herbert’s testimony was substantially similar to that given by Mario Medel,
namely that a dancer complained a patron had touched her; the patron, who was
argumentative, was escorted out, only to return repeatedly and scuffle with the
doorman; and eventually two gunshots were heard and the doorman fell, mortally
wounded. In a pretrial photographic lineup, at the preliminary hearing, and at
trial, Herbert identified the argumentative patron as defendant. Herbert, however,
did not see who fired the weapon.
Barbara Quijada, a waitress and dancer employed at Fort Knots, began her
shift approximately one hour prior to the shooting and was unaware of the
disturbances involving defendant. Quijada testified that immediately prior to the
shooting, she was speaking with George Martinez about his baby. She saw a man
walk toward Martinez, which led Martinez to declare: “Hey Mario, there’s that
guy again.” Quijada saw the man open up his jacket, “reach like for a wallet, . . .
there was a real like rapid fire, pop, pop, pop, and a whole bunch of smoke.”
Quijada saw Martinez “holding his chest and sliding down the . . . wall . . . .”4
Immediately after the shooting, Quijada crawled to a “far bathroom,” where
she “started shaking apart.” Hearing someone yell for a paramedic, Quijada, who
previously had received training as an emergency medical technician, splashed
water on her face “and pushed my way through the girls and all the men around
and told them that I was the closest they were going to get to a paramedic for the
moment. . . . I had to break through a mound of people hovering over him, and for
someone that was shaking apart to an extreme I took charge as fast as I could. . . .
I got him some air. I pushed everybody out of his way, and I elevated his head
and opened his airway and started monitoring his vitals. . . . [I]t was a dead-on
heart shot. . . . The kind of heartbeat I was getting was not close to normal. . . .
My friend was on his way out.”
Quijada further testified: “When his vitals [reached] a severe point I very
calmly told him to hold on, not to get any more scared but I was going to have to
On cross-examination, Quijada testified that a period of “minutes” elapsed
between the moment Martinez saw defendant enter the bar just prior to the
shooting, and the firing of the shots. Defense counsel thereafter impeached this
aspect of her testimony with her preliminary hearing testimony, in which she
described the elapsed time as “not even minutes. . . . It was just all in one
movement, him walking in, this opening up, and the smoke . . . .”
help him breathe for a little while until the ambulance got there. And I closed my
eyes and asked if by chance was there anyone else in this bar that could handle
two-man C.P.R. other than me. And there was a real firm hand on my shoulder,
and I looked up, and I was surrounded by policemen. One officer told me that
they had been there for five to ten minutes. And I asked, ‘Why didn’t you help
me?’ They told me that there was nothing that they could have done any better
than what I had because he left with nice thoughts.”
Because Quijada had been standing near the mirrored entryway when the
shooting occurred, she saw the shooter “from every angle.” She recalled that the
man’s face “looked like he had taken a few punches.” As part of the police
investigation, she assisted in the production of a composite illustration of the
shooter, which she testified was a “very close” likeness of him.
Quijada identified defendant in a pretrial photographic lineup; asked why
she picked that photograph, Quijada testified, “Because that’s the face that’s been
haunting me. That’s the face I’ve tried to forget. . . . There is no doubt in my
mind. I was too close and it was too much of a traumatizing series of actions for
me to ever, ever forget it.” She also identified defendant at the preliminary
hearing and at trial. Asked why she refrained from looking at defendant during
her testimony, Quijada responded: “I can’t. It’s haunted me too long. I tried very
hard to put the face out of my mind, and it’s very painful. . . . Seeing him in
person . . . only confirms a nightmare that I have been living with for a long time.”
Dr. Rogers testified regarding the autopsy performed on George Martinez.
Rogers described the cause of death as “gunshot wounds of the chest.” On cross-
examination, Dr. Rogers testified that the autopsy report indicated the likelihood
that the victim’s four wounds (including two that appeared on the victim’s hands)
likely were the result of only two gunshots.
Renold Verdugo, a Los Angeles County Deputy Sheriff, testified regarding
his participation as one of the investigating officers in the aftermath of the
shooting at the Fort Knots bar. Verdugo testified that the crime scene yielded two
expended shell casings, determined to have been fired from the same nine-
millimeter firearm. One bullet was recovered the following day from the crime
scene; the other was found during the coroner’s autopsy performed on the body of
George Martinez, which Verdugo attended. Verdugo also supervised the
collection of blood evidence (none of which subsequently was determined to have
matched defendant’s blood) and interviewed various witnesses.
On cross-examination, Verdugo testified that Mario Medel described the
person who was thrown out of the bar as having been a “male Hispanic possibly in
his 20’s or 21 years old, five five to five six, I believe it was a hundred and forty
pounds, dark hair and a short trimmed mustache. He also described [the suspect]
as having a roundish face[, and] Americanized, one who possibly was here long
enough to, let’s say, have papers. Those were his impressions. Not a recent
illegal alien or an undocumented alien.”
In the ensuing months, Verdugo and law enforcement officials who were
investigating defendant’s possible involvement in another case, compared
defendant’s photograph with the composite drawing made with the assistance of
Barbara Quijada, noted the resemblance between the two, and recontacted the Fort
Knots witnesses for the purpose of showing them a photographic lineup that
included defendant’s image.
Gerald Jansen, a Los Angeles County Sheriff’s Department Homicide
Inspector, testified that he showed the photographic lineup to certain witnesses to
the Martinez killing. Barbara Quijada selected defendant’s image from the lineup.
On cross-examination, Jansen recalled that Mario Medel did not select anyone
from the lineup, and one other witness was unable to choose between the image of
defendant and that of another individual.
4. The Murder of Efrem Baldia, November 29, 1989
Nicolas Venegas testified he was employed as a caretaker and beer-delivery
person at the La Luciernaga bar, located in Compton, an establishment
occasionally frequented by defendant. Venegas recalled seeing Sylvia Tinoco,
who also worked at La Luciernaga, speaking with defendant on a few occasions,
and that the two appeared to have a boyfriend-girlfriend relationship. Venegas
also recalled that Tinoco appeared to be “going around” with Efrem Baldia, whom
Venegas knew as “Arnulfo.”
On November 29, 1989, Venegas drove Tinoco to see defendant at the Rita
Motel, where he was staying in room 23. That morning, the three drank beer and
ingested cocaine in defendant’s room; on the bed was a bag that Venegas believed
contained kilos of cocaine. Defendant asked Venegas whether he knew anyone
who “wanted to buy the coke.” Venegas did not respond. Beneath the pillow on
the bed was a .45-caliber firearm.
Not feeling well, Venegas walked outside to the parking lot, at which point
Efrem Baldia drove into the lot with another individual, parked his car, and began
conversing with Venegas. Sensing the possibility of trouble in view of Tinoco’s
concurrent relationships with Baldia and defendant, Venegas suggested that Baldia
depart from the premises: “I told him that I knew it was gonna be some problems
up there, so I just tell him to just go ― don’t stay there, just drive in his car and,
‘better get out of here,’ I told him. . . . [B]ecause [Baldia] was going around with
Sylvia. . . . I knew Lino [that is, defendant]. . . . I didn’t know how he was gonna
react. I seen the gun up there in the room. So I just tell him to just split, and he
don’t want to. . . . I just told him to split from right there where he was. I told him
Lino was right there. I just told him to go, and he didn’t want to go. He stayed
there. . . .”
Venegas further testified: “[Within five minutes,] I see Lino was coming
out of that room. And I just told the other guy just to split, and I went to another
room,” next door, where Venegas knew that other friends were staying. Shortly
after entering that room, Venegas heard three or four gunshots. He stayed in the
room for “about eight minutes,” then saw a white car, similar to one he had seen
defendant drive, depart from the premises. Venegas called Tinoco, and the pair
immediately left, because Venegas “didn’t want any problems up there.”
In his testimony at trial, Venegas recalled seeing Baldia and defendant
conversing with each other prior to the shooting, but did not know what they were
saying. He did not see the shooting and could not recall whether he shortly
thereafter saw a body. He never saw defendant or the victim holding a gun. He
acknowledged fearing for his safety and that of his family in connection with his
testifying in court.
Ramiro Salazar (occasionally referred to in the record as “Ramiro Salazar
Gamboa”) had been employed at the La Luciernaga bar, was acquainted with
Sylvia Tinoco, and had seen her in the company of defendant and Baldia. He
believed Tinoco was having simultaneous relationships with each of the men.
Salazar testified that he accompanied Baldia to the Rita Motel on
November 29, 1989, at approximately 2:00 p.m. Shortly after Baldia exited from
the vehicle and spoke with Venegas, defendant emerged from one of the motel
rooms, calling Baldia toward the room. Baldia declined. Defendant and Baldia
Salazar testified initially at trial that he did not hear what Baldia and
defendant were saying and did not see them push each other or fight. The
prosecutor thereafter asked the witness whether he had informed the investigating
law enforcement officers that defendant appeared angry upon emerging from the
motel and had grabbed Baldia, and Salazar acknowledged that he had so informed
the officers. Salazar acknowledged telling the officers that Baldia asked defendant
“Why are you mad at me?,” after which defendant let Baldia go and Baldia backed
up with his hands in the air, asking defendant, “What’s your problem with me?”5
Salazar saw defendant unbutton his shirt, pull a pistol from the area of his
waistband, and fire at least three times at Baldia from a distance variously
described as “maybe some six feet,” “six to seven feet,” “three meters,” 12 to 15
feet (estimate offered by the court in attempting to characterize the witness’s
description), and (on cross-examination) as “somewhat far away.”
On cross-examination, Salazar testified he saw defendant pull out the
firearm, but Salazar explained he looked away at that point and did not actually
see the shooting, although he immediately heard the shots. Salazar later testified
he was looking at defendant when the shots were fired. Neither Salazar nor Baldia
was armed with a weapon, and no weapon was located in the car driven by
Immediately after the shooting, defendant drove away in his vehicle.
Salazar departed to call an ambulance, returning a few minutes later.
Asked on redirect examination when was it that Baldia had declared he
“had no problem with” defendant, Salazar replied, “I don’t remember if he had
said anything. It’s been a long while now.” Asked on recross-examination when
was it that Baldia raised his hands (described by the court as “at just shoulder level
with the palms forward”) Salazar replied, “When the first shot was fired,” which
(Salazar testified on further redirect examination) meant “after the first shot.”
Testifying on cross-examination, Salazar explained that although Baldia
usually carried a gun, he knew Baldia was unarmed on the date of the shooting
because the police recently had confiscated Baldia’s firearm.
Salazar admitted giving investigating police officers and detectives a false
name, “Antonio Sain,” because he was nervous and frightened after having told
them who had committed the killing. Salazar denied telling the officers that
defendant had threatened to kill him; the prosecutor then read into the record
Salazar’s testimony given at the preliminary hearing, in which Salazar stated the
reason he feared defendant was “because he was going to kill me,” and “I
shouldn’t call the police, that if I called the police he was going to kill me.”
Salazar denied fearing coming to court to testify.
Cheryl Lyons, a Los Angeles County Deputy Sheriff, testified that she was
one of the investigating officers who responded to the homicide at the Rita Motel.
Lyons identified expended shell casings that were recovered from the parking lot,
testifying that ballistics tests revealed all the shell casings to have been fired from
the same .45-caliber weapon.
Lyons further testified that during her interview with the witness who
identified himself as “Antonio Sain” (that is, Ramiro Salazar), he told her the
following: “[A]s the victim was parking the car, they saw the suspect, and that the
victim got out of the car, went around to the back of the car and put his hands up
. . . making statements, ‘I don’t want any trouble,’ speaking to the suspect. And
then . . . the suspect grabbed the victim by the shirt; and then the victim started
backing up . . . away from the suspect. . . . And the suspect took a silver ― or a
metallic, he said ― a light-colored gun ― he unbuttoned his shirt, took it from his
waistband, and fired at him several times at close range. . . . [The witness] said he
was told by the suspect . . . ‘Don’t talk to the police,’ or, ‘Don’t tell the police.’
[The witness said he lay] down on the front seat of the car for fear of his life.” On
cross-examination, Lyons testified that, in her report of the interview, the firearm
was identified as a semiautomatic pistol, and that Baldia asked defendant, “What
is your problem with me?”
Beatriz Escamilla testified that she and her husband, Jose Campista, were
residing at the Rita Motel on the day of the shooting, that she believed but was not
certain that Campista was defendant’s uncle, and that she knew defendant, Sylvia
Tinoco, Nicolas Venegas, and the victim. Escamilla was in her room when she
heard gunshots; because her child was outside, she looked out the window, and
she saw defendant drive away in his vehicle, “which was right next to the person
[who] had been shot,” and also saw Tinoco and Venegas depart from the
Dr. Rogers testified regarding the autopsy performed on Efrem Baldia, and
described the cause of death as having been multiple gunshot wounds. None of
the wounds indicated that the gun was fired directly in front of the victim. The
victim’s body bore a small amount of benzoylecgonine, a substance related to
Alan McRoberts, a Los Angeles County Sheriff’s Department Latent Print
Examiner, testified that he matched defendant’s fingerprints to those found on two
of the kilo-sized packages that Nicolas Venegas saw in defendant’s room at the
Rita Motel. McRoberts further testified that the packages had “a distinct odor” —
“a smell of cheese that was deteriorating and becoming quite rank.” Kelley
Archer, a Los Angeles County Deputy Sheriff and one of the first law enforcement
Gerald Burks, a Los Angeles County Sheriff’s Department Homicide
Inspector, testified that shortly before Escamilla took the witness stand at the trial,
he heard a conversation in the district attorney’s office, with the use of an
interpreter, in which Escamilla stated that when she heard the gunshots, “she
looked out the window, [and] saw defendant with a gun in his hand.” Burks also
testified he saw Escamilla “wink with her right eye” to defendant after taking the
oath and prior to giving her testimony. On cross-examination, Burks testified he
was aware that Escamilla and defendant were friends. Escamilla denied winking
at defendant, testifying: “The only thing I did is just ― I smiled with him.”
officers to arrive at the crime scene, initially believed the packages contained kilos
of drugs, and caused them to be examined at the Lynwood sheriff’s station. In the
course of that examination, investigators discovered that the packages contained
“provolone cheese laced with cocaine on the top . . . .”
5. The Murder of Jose Gutierrez, January 21, 1990
Beatriz Escamilla, who testified regarding the shooting at the Rita Motel,
also testified regarding defendant’s involvement in the shooting death of Jose
Gutierrez at the Mazatlan Bar, located in Compton, at approximately 12:40 a.m.
on January 21, 1990. Escamilla, who was employed at the bar as a cashier, was
not working on that occasion, instead having gone there “to drink some beers,”
and had been there for “several hours” prior to the shooting. Defendant was
sitting at a table, drinking beer. Escamilla “chatted with” defendant, who did not
appear to be drunk; on cross-examination, she acknowledged having offered to
“take some beers to him,” to which defendant replied, “No, I will go get them
Shortly after midnight, defendant walked from his table to the cashier
behind the bar, and requested more beer. At approximately the same time, “the
young man who died, he came out of that other corner to ask for beers. This
young guy got close to [defendant], and [the victim] went directly to [defendant]
and started offending him. . . . The man started to ask [defendant] if he had a
pistol, to take it out and use it; and he started insulting him, you know, his mother.
And Lino told him to calm down, that he didn’t want any problems. He said [that]
to him two or three times. And that’s what happened with that young man.”8
The prosecutor and the witness engaged in the following colloquy:
“Q.: Tell us what the young man said to Lino [defendant].
“A.: You want all the words?
“Q.: I want all the words. I want to know what the young man said to
(footnote continued on next page)
Escamilla testified defendant repeatedly shot the man in the back, from a
distance of approximately four feet. She did not see the victim attempt to grab or
stab defendant or to hold a weapon, nor did he see a weapon fall to the ground.
On cross-examination, Escamilla further testified: “I just looked at Lino. I
was not able to see the victim. On seeing the pistol in his hand, what was I going
to do? Again, turn around and look at him, not the victim. He was about to do
something.” Asked if she was looking at defendant when the first shot was fired,
the witness responded affirmatively.
Adela Lopez (occasionally referred to in the record as Adela Lopez
Ontiveros) was employed as a bartender, waitress, and cashier at the Mazatlan Bar
on the night of the shooting. She testified that defendant sat with “two or three
(footnote continued from previous page)
“A.: The young man came over to Lino, and he asked him if he had a
pistol, ‘Take it out and use it you mother fuck. [sic]’
“Q.: Did the young man call Lino, ‘Mother fucker’?
“A.: Yes. And ‘Take it out.’ And Lino told him to calm down. He said
that about two or three times to the young man.
“Q.: Lino said, ‘Calm down’?
“A.: ‘Calm down,’ uh-huh.
“Q.: Did the young man say anything else?
“A.: He kept on saying the same thing.
“Q.: What was that?
“A.: What do you mean like what?
“Q.: Like, what did he say? He kept saying the same thing. What was
“A.: The same words.
“Q.: That being if — if Lino had a pistol, he should take it out and use it?
“Q.: And did Lino take out a pistol and use it?
“Q.: What did he do with it?
“A.: Killed the young man.”
guys . . . in the back of the bar.” Lopez was familiar with defendant from his
previous visits, recalling that “he used to go there all the time,” and that on this
occasion, he had arrived at the bar approximately 20 minutes prior to the shooting.
In response to the prosecutor’s inquiry whether she saw defendant stand up
at his table and appear to have a gun underneath his shirt, Lopez testified: “No.
When I see him ― I look because he was already shooting that person. . . . He
arrived [at the bar] and touched the [victim], and the next thing I know he shot.
He fired.” After the first shot was fired, the victim was “thrown on the floor,” and
defendant “kept right on firing.”
In response to the prosecutor’s inquiry as to what the victim had been doing
at the bar, Lopez replied: “He was asleep . . . . That person was asleep. . . . I
didn’t see the guy who fell down say anything.” Asked whether she saw the
victim holding any weapon at all, Lopez testified: “No. . . . That man had been
leaning against the bar asleep for at least two hours.”
Lopez further testified that immediately after the shooting, “[defendant]
went out through the door. He left. And he left with a pistol in his hand and then
the security went after him with their pistol[s] out.”
Lopez identified defendant as the shooter in a pretrial photographic lineup
and at trial.
On cross-examination, Lopez testified that immediately prior to the
shooting, she saw defendant grab the victim without exchanging any words. She
looked away, heard the first shot, and then “I just looked and saw the guy on the
floor, and I watched [defendant] keep on shooting him.” She acknowledged
leaving the bar just as the police arrived, and without speaking to the investigating
Stoney Jackson, a police officer employed by City of Compton, testified
that he arrived at the crime scene shortly after the shooting and observed the
victim’s body lying on the floor, bearing multiple gunshot wounds. He recovered
four shell casings, described as .38-caliber “super autos,” that likely were fired
from the same firearm. He also identified certain beer containers that had been
collected for fingerprint evidence. Dwight Dobbin, a Compton Police Department
investigator, testified that a left thumbprint lifted from a Budweiser can collected
from the Mazatlan Bar during the investigation matched defendant’s.
Dr. Rogers testified regarding the autopsy performed on the body of Jose
Gutierrez. He described the cause of death as multiple gunshot wounds to the
back. The victim’s body had a blood-alcohol content of .30 percent, as well as a
small amount of a cocaine-related substance, benzoylecgonine.
6. Defendant’s Arrest and Interview, February 22, 1990
Beatriz Escamilla testified that sometime in February 1990, defendant, who
was armed with a pistol and had suffered a gunshot wound, arrived at her
residence and requested that she and her husband take him to the hospital.
Escamilla’s husband did so.
On cross-examination, Escamilla testified defendant had a gun in his
possession, which she recalled was the case “sometimes, not regularly.”
John Laurie, one of the Los Angeles County Deputy Sheriffs who testified
in connection with the investigation of the shooting at the Las Playas restaurant,
testified defendant was arrested at the hospital.
Joe Olmedo, a Los Angeles County Sheriff’s Department Detective (who
also was fluent in Spanish), advised defendant in Spanish of his constitutional
rights and, with another law enforcement officer present, thereafter interviewed
defendant at the hospital emergency room, apparently after defendant’s gunshot
wound had been treated. The interview was conducted in Spanish. Because
Detective Olmedo died (of natural causes) prior to defendant’s trial, his videotaped
testimony given at the preliminary hearing was played for the jury. Detective
Olmedo testified that defendant was placed under arrest for the murder committed
at the Las Playas restaurant.
According to Detective Olmedo, defendant denied committing any
murders; however, after Detective Olmedo informed defendant that witnesses had
identified him as having committed the murder at the Rita Motel, defendant
“indicated that he had killed a person by the name of Arnulfo, that is the only
name he knew the person by, at that location. . . .” According to Olmedo,
defendant also told him the following: “He indicated that he was staying in Room
23 at the Rita Motel and that at about 9:00 a.m. in the morning a person by the
name of Sylvia Tinoco and a person [by the] name of Nicholas Venegas had
arrived at the room to visit him and he said sometime in the afternoon he had
heard a vehicle pull up into the parking lot and he had looked out and seen Arnulfo
and a male Latin who he described as being 22 years of age in the vehicle. He
said at that time he armed himself with a .45 semiautomatic pistol by placing it
underneath his shirt. He said that he had heard that Arnulfo, referring to the
victim, had made some threats against his life and he left the room and confronted
him in the parking lot. He indicated that as he was walking towards the victim,
and the victim was exiting the car, he told the victim that he wanted to talk to him.
And that he basically just wanted to talk to him, didn’t want any problems with
him and if he wanted the girl [Sylvia Tinoco] that he could have her because his
intentions, meaning Mr. Manriquez’s intentions, were to return back to Mexico.
At the same time he indicated that the victim was walking towards him and that
the victim had indicated, ‘I don’t want to talk to you,’ something to the effect,
calling him stupid. And at that point, . . . Mr. Manriquez drew his weapon from
his waistband and placed the barrel of the weapon into the victim’s stomach,
pushing him backwards and at the same time the weapon discharged. He said as
the victim had stepped . . . backwards as the weapon discharged and at the same
time he remembered what the victim had said to him and he fired several more
times as the victim was falling to the ground.”
Detective Olmedo further testified that he asked defendant whether the
killing at the Rita Motel had anything to do with any type of narcotics transaction,
and that in response defendant “said it had nothing to do with the narcotics, that it
was over the young lady, over the woman [Sylvia Tinoco].”
On cross-examination, Detective Olmedo was asked whether defendant had
said he had been afraid of Baldia as Baldia walked toward defendant, to which
Detective Olmedo replied, “No. He ― he never said he was afraid of him. And I
don’t recall him saying that.” Detective Olmedo further testified that he did not
recall asking defendant whether defendant had feared Baldia.
The Defense Case
The defense presented a minimal case during the guilt phase of the trial,
comprised entirely of the testimony of Clara Miller, who was employed by the Los
Angeles County Sheriff’s Department, and whose testimony comprised six pages
of the reporter’s transcript. Miller was one of the law enforcement officers who
responded to the request for help in the immediate aftermath of the shooting of
Efrem Baldia at the Rita Motel. When Miller arrived at the crime scene, she spoke
in Spanish with a witness who identified himself as Antonio Sain. The witness
informed her that he had driven to the motel with the victim, and that the victim
had exited from the vehicle, had proceeded directly toward the motel room in
which defendant was staying, and then had encountered defendant. Miller
testified: “I believe [Sain] said there was an argument [that] ensued between
him ― between the victim and the suspect. The suspect grabbed . . . the victim by
the shirt, and then the victim began to walk back towards his car. As he
approached the car, the suspect called out to the victim; and the . . . victim ignored
the suspect.” The fatal shots ensued immediately thereafter.
II. PENALTY PHASE EVIDENCE
A. The Prosecution’s Case
1. The Three Paramount Murders
The prosecution presented evidence establishing defendant’s involvement
in three additional killings committed on the morning of February 22, 1990, the
same day that defendant arrived at the hospital with a gunshot wound and was
placed under arrest. On that morning, defendant and his half brother, Paciano
Jacques (“Mingo”) Ochoa, armed themselves with a .45-caliber handgun and a
.38-caliber handgun — the latter weapon being the same firearm used by
defendant at the Mazatlan Bar one month earlier — and took four kilos of cheese
wrapped in tape to a residence located in Paramount. According to the
prosecution’s theory of the case, defendant and his half brother intended to effect a
“drug rip-off,” whereby they would obtain the cash from their buyers, who
presumably believed they were purchasing four kilos of cocaine.
The Los Angeles County Sheriff’s Department responded to a “shots fired”
call at approximately 10:45 a.m. Investigating officers discovered the bodies of
three persons — Solticio Martinez, Juan Parra Gomez, and Everado Cervantes —
at the residence, each of the victims having suffered multiple fatal gunshot
wounds. One victim was found with a nine-millimeter firearm in his waistband,
the second was found with a .380-caliber firearm and a single .380-caliber
expended shell beneath him, and the third victim was found unarmed in a separate
Nine shell casings fired from the same .38-caliber firearm that had been
used in the Mazatlan Bar were found at the crime scene, as were six .45-caliber
shell casings. Defendant’s fingerprints and those of his half brother were
recovered from beer cans found inside the entranceway of the room where the
bodies were found. Investigators examined the four kilos of cheese and
determined they contained “some cocaine.”
Later that day, defendant arrived at the Charter Suburban Hospital with a
gunshot wound to the left chest area; Kathleen Estavillo, the emergency room
nurse, asked defendant where he had suffered his injury, and defendant replied,
“Paramount.” She explained to defendant in Spanish: “I am very glad it happened
in Paramount as opposed to Compton. If it happened in the City of Compton, it
could be hours before a police agency would be here to interview you.”
Approximately one-half hour later, Estavillo overheard defendant inform a deputy
sheriff that he had been wounded by a “Black man in the City of Compton.”
Defendant’s hospital armband bore the name, “Norberto Marquez
Nevarez.” His wallet contained identification for “Abelino Martinez.” An
investigating officer at the hospital, who previously had seen defendant’s picture,
recognized him, however, and defendant, for whom a warrant already had issued
in connection with the La Playas restaurant murder, was arrested.
2. The Rape of Patricia M.
Patricia M. testified that in the early morning hours of January 26, 1988,
she was babysitting for a friend who resided in Paramount, when her friend’s
husband arrived with defendant. The husband went to a bedroom, and Patricia,
who had been sleeping on the couch in the living room, thought she heard
defendant depart from the residence.
Patricia began to fall back asleep when “this guy [defendant] came over,
and all I remember was he was on top of me. . . . I felt something cold on my
stomach. And he threatened me by saying that he will shoot me a few times if I
will not give him sex. I tried to move, but he stuck the gun at my head and he
threatened me, you know, not to scream or not to say anything. And he put it back
on my stomach. All I kept thinking was, my children, I have to be there for my
children. . . . He went inside of me. He put the gun on the side of the couch, and
he started having intercourse with me against my will. I tried not to think of
anything but my children and my life, because he threaten[ed] it. I tried to reach
for the gun, and I was thinking I could kill him. But I couldn’t reach the gun. It
was underneath the couch and it kept sliding away. When he was done, he took off
real fast . . . ; and I ran to the bathroom to urinate so I wouldn’t get pregnant. I
took a shower angrily because I feel dirty. I felt I was real[ly] violated. I thought
that I would get even someday, because it was not right what he did to me. . . . I
am still afraid. I am still afraid because he is still alive. He is still there. He can
do something to me still, or my family.”
The Defense Case
The defense evidence in mitigation was introduced through the testimony
of five of defendant’s relatives, each of whom described the deprivation and abuse
defendant suffered as a child in rural Mexico. The witnesses testified that
defendant’s childhood was marred by extreme cruelty, vicious beatings, grinding
poverty, forced labor, and a lack of care, education, affection, or encouragement
by the adults in defendant’s life.
Cecilia Manriquez Solis, defendant’s first cousin, testified that she and
defendant resided as children on a ranch they shared with her grandmother and
defendant’s father, in Mexico. The area in which the ranch was located lacked
electricity, a school, church, store, or regular law enforcement, and none of the
residences on the ranch had windows or doors. The children worked from 3:00
a.m. to approximately 5:00 p.m. — farming, planting, and collecting firewood and
water, every day of the year except Good Friday. During the few years that Solis
and defendant resided together at the ranch, she observed him beaten several
times, “sometimes two to three times per day.” These beatings included one
occasion when defendant was seven years of age: he was tied to a tree and beaten
with a whip, and Solis recalled that “my grandmother got tired of hitting him, so
my uncle, his father continued to hit him.” On other occasions defendant was
beaten with a whip or a belt. Such beatings occurred on a daily basis. Once
defendant was hog-tied and left all night in a storage bin for corn. Solis never saw
defendant receive any sign of love or affection from his grandmother or his father.
Cresencia Tamayo, defendant’s aunt, also resided at the ranch when
defendant was a young child, and testified that defendant’s chores also involved
retrieving the “cattle, beasts, burros . . . .” Defendant was sent on errands, and if
he failed to perform he “would be hit or beaten” by his father, uncles, or
grandmother, several times “all over with the belt” or with a rod or stick.
Defendant and the other children worked each day of the year and never were
allowed to play except “for a little while” on Good Friday. “There were no toys,
[and] [t]here was no Christmas. Rarely was any sort of affection shown to
Joaquina Ward, who described herself as a half sister to defendant’s cousin
Cecilia Manriquez Solis, testified that she also resided at the ranch for a few
months when defendant was a child. She recalled that the children “were treated
poorly” and that “[w]hen they didn’t do what they were told to do, they were hit,”
defendant more often than the other children. On one occasion, Ward encountered
defendant “tied by the legs and the hands,” because “he had been sent up to the
hills to retrieve some firewood; and because he did not bring the kind that his
father had asked for, he was punished.” Ward untied defendant, after which “he
went down and turned into a little ball, and he stayed there crying.” She never saw
anyone act affectionately toward defendant.
Juan Manriquez, defendant’s cousin, testified that he resided with
defendant at the ranch and that the children were prohibited from playing; when
they did, they were beaten with “either a rod or a whip.” Manriquez recalled that
defendant was beaten “for any reason,” two or three times per day, “and we could
hear his screaming when he was being beaten.” On one occasion, defendant was
caught bathing with his cousin, which led to another beating while defendant was
tied up. When the boys’ grandmother caught them eating fruit, she “burned our
feet so we couldn’t run away and so we wouldn’t do it again.” Defendant
attempted to run away numerous times, which in turn led to his being beaten.
Ultimately, defendant was able to run away and find his mother.
Lorenza Sanchez, defendant’s half sister, testified that when defendant was
approximately 12 or 13 years of age, he came to live with her and their mother at
the home where their mother was employed, at which time Sanchez first learned
she had a half brother. They resided together for approximately four or five years,
during which time they moved to a larger ranch ― one that had a school ― but
defendant did not attend the school, because he spent his time assisting other
individuals in harvesting corn. During this period, defendant’s mother cohabitated
with a man who beat Sanchez and her sister, actions that defendant’s mother
witnessed, angering defendant who once threw a brick at the man. Sanchez did
not recall her mother showing any affection toward defendant.
A. Motion for Severance
Prior to the commencement of trial, defendant moved to sever the case filed
against him into “five separate matters,” that is, one proceeding for each of the
charged murders described above (ante, pp. 3-24) and one proceeding for the
Paramount triple murder that the People ultimately introduced as evidence in
aggravation at the penalty phase of defendant’s trial (ante, pp. 25-26). Defendant
contended that the five incidents were factually unrelated and not cross-
admissible, and that a joint trial would engender minimal savings to the judicial
system while being severely prejudicial to defendant. Defendant acknowledged
that pursuant to section 954, “[t]he charges in the instant case are of the same class
of crime and . . . therefore, properly joinable,” but asserted that the court had
discretion to order separate trials in the interest of justice, and urged the court to
At the hearing on defendant’s motion, defendant reiterated the foregoing
points, emphasizing that the court had discretion to sever the proceedings,
notwithstanding the circumstance that “there is no question they are joinable.”10
In response, the prosecution argued that separate trials would be an inefficient use
of judicial resources.11
Section 954 provides in pertinent part: “An accusatory pleading may
charge . . . two or more different offenses of the same class of crimes or offenses,
under separate counts, . . . provided, that the court in which a case is triable, in the
interests of justice and for good cause shown, may in its discretion order that the
different offenses or counts set forth in the accusatory pleading be tried separately
or divided into two or more groups and each of said groups tried separately.”
Defense counsel argued: “The real issue here is [al]though these are cases
that are joinable, . . . [whether] the court will exercise [its] discretion . . . to sever
these [cases] based on the Penal Code, which says that just because cases are
joinable doesn’t mean that they have to be joinable. The court needs to look at the
case[s] on an individual basis and make a determination whether prejudice has
been shown in the case and whether that prejudice rises to that level that
outweighs the public policy that we have to join cases. [¶] I tried to show you
through my moving papers that there is some degree of prejudice to my client. . . .
[¶] . . . [T]hese cases, which are totally separate cases, involve totally separate
facts, have not any common thread except my client. . . . [¶] And it’s going to be
impossible for the jury not to at least have a very strong chance of deciding my
client’s guilt based on the fact that he is a bad dude, basically, and that is
obviously improper. The court knows that, and the court is going to have to
instruct the jury that they can’t do that.”
The prosecutor argued: “If the court were to adopt [the defense] proposal
[to sever], . . . what it would amount to is, in the first trial, if the People [obtained
a conviction for] first degree murder, then we would have to, in the penalty phase,
put on the second, third and fourth murders in addition to the Paramount triple
case as aggravating factors. [¶] . . . [¶] “We would be having five protracted
(footnote continued on next page)
The trial court ordered the three Paramount murders to be severed and tried
separately from the other four charged murders, and denied without prejudice
defendant’s motion for separate trials on each of the four charged murders.12
Approximately 14 months later, defendant appeared before the same judge
to renew his motion to sever the four charged murders into four separate
proceedings, arguing that joinder of the four counts was prejudicial because
“[al]though the court is going to instruct . . . the jury that [it] can’t use unrelated
evidence of this crime to prove another crime, the problem is I think this jury is
going to have much difficulty doing that and they are going to mix these two
things together.” Defendant further argued that when a prior murder is alleged as
a special circumstance, section 190.1, subdivisions (a) and (b), require that the
question of defendant’s guilt of the charged murder be determined prior to the
determination of the truth of the special circumstance alleging a prior murder, in
order to avoid the sort of prejudice that defendant would face in one trial for
separate, factually unrelated murders. Defendant also hypothesized that if he were
tried separately on each of the counts and convicted of first degree murder in the
first trial and second degree murder in all subsequent trials, he never would be
eligible to face the death penalty, whereas if convicted of one count of first degree
murder and three counts of second degree murder in a single trial, he would be
(footnote continued from previous page)
penalty phase trials if we achieve a first degree murder conviction on each of the
four cases, and I think that . . . would just totally obviate the clear purpose [of]
judicial economy. . . .”
With regard to the Paramount murders, the trial court granted the
prosecution’s motion to consolidate those charges filed against defendant with
those filed against Paciano Jacques (“Mingo”) Ochoa, defendant’s half brother.
eligible for the death penalty; he argued that such dissimilar results violated his
right to equal protection of the laws.
The trial court rejected defendant’s arguments and denied his motion to
sever the trial of the charges.13
On appeal, defendant reiterates and expands upon the arguments that were
made and rejected in the court below, contending the trial was “fundamentally
unfair” because defendant “was forced to defend against the combined weight of
the four charged homicides at once.” Defendant further contends “[t]he
inflammatory impact of a joint trial overwhelmed the jurors’ ability to weigh the
evidence on each charge, so that they returned first degree murder verdicts on
charges with extremely weak evidence.” He asserts that he would have fared
better had the charges been tried separately, and that the single trial violated his
In denying defendant’s motion, the trial court found as follows:
“. . . If the court were deciding strictly on the basis of judicial economy, I
think your argument is certainly persuasive that the rights of the defendant should
outweigh any concerns of the court about conserving the court’s time.
“But I think that the answer to the argument is that the Legislature, in
setting forth the bifurcation that you cite in the prior conviction of the murder,
certainly were able to contemplate that there could be people who were accused of
multiple murders and had the [Legislature] wished to refine the death penalty . . .
[that] could have been done and it hasn’t been done.
“So I think the state of the law is that . . . this is the way that things ought to
be tried. And that brings us back, notwithstanding what you said, . . . to the fact
that in multiple count cases . . . that the People have a right to set forth their
accusatory pleading and to try the defendant on all the matters on which he stands
“And I think that it’s a matter that the jury has to be made aware of and that
they have to be examined with care on this subject, so that they can follow the law
and not, as you say, borrow from one fact situation to the other or to be inflamed
against the defendant because of the multiplicity of the alleged crimes.
“But I think that you have to assume that jurors are going to follow the law.
They will be properly instructed.
“So the motion to sever the individual counts is again denied.”
rights to due process of law and a fair and reliable determination as to guilt and
“The law prefers consolidation of charges. (People v. Ochoa (1998) 19
Cal.4th 353, 409 [79 Cal.Rptr.2d 408, 966 P.2d 442.) Where, as here, the offenses
charged are of the same class, joinder is proper under section 954. (People v.
Kraft (2000) 23 Cal.4th 978, 1030 [99 Cal.Rptr.2d 1, 5 P.3d 68] (Kraft); People v.
Bradford (1997) 15 Cal.4th 1229, 1315 [65 Cal.Rptr.2d 145, 939 P.2d 259]
(Bradford).) Defendant can predicate error in the denial of the motion only on a
clear showing of potential prejudice. (Kraft, at p. 1030; Bradford, at p. 1315.) We
review the denial of defendant’s motion for an abuse of discretion, that is, whether
the denial fell ‘ “outside the bounds of reason.” ’ (Ochoa, at p. 408, quoting
People v. DeSantis (1992) 2 Cal.4th 1198, 1226 [9 Cal.Rptr.2d 628, 831 P.2d
1210].)” (People v. Ochoa (2001) 26 Cal.4th 398, 423 (Ochoa II).)
As we further explained in Ochoa II, “We have developed criteria to guide
evaluations of trial court decisions on severance motions. ‘ “ ‘Refusal to sever
may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried
would not be cross-admissible in separate trials; (2) certain of the charges are
unusually likely to inflame the jury against the defendant; (3) a “weak” case has
been joined with a “strong” case, or with another “weak” case, so that the
As we have noted elsewhere: “ ‘With regard both to this claim and to every
other claim raised in his brief, defendant asserts that each alleged error violates not
only state law but multiple provisions of the federal and California Constitutions.
In addressing each claim discussed in this opinion, we have considered
defendant’s contention that the alleged error violates the federal and California
Constitutions, and our rejection of each claim of reversible error includes a
determination that the alleged error does not warrant reversal under the state or
federal Constitution.’ ” (People v. Carter (2005) 36 Cal.4th 1215, 1237-1238,
fn. 14; People v. Slaughter (2002) 27 Cal.4th 1187, 1199, fn. 2.)
“spillover” effect of aggregate evidence on several charges might well alter the
outcome of some or all of the charges; and (4) any one of the charges carries the
death penalty or joinder of them turns the matter into a capital case.’ ” ’ (Kraft,
supra, 23 Cal.4th at p. 1030.) [¶] Cross-admissibility of evidence is sufficient but
not necessary to deny severance. (Bradford, supra, 15 Cal.4th at p. 1316.) As the
four-part test is stated in the conjunctive, joinder may be appropriate even though
the evidence is not cross-admissible and only one of the charges would be capital
absent joinder. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1244-1246 [74
Cal.Rptr.2d 212, 954 P.2d 475] (Musselwhite).) Even where the People present
capital charges, joinder is proper so long as evidence of each charge is so strong
that consolidation is unlikely to affect the verdict. (People v. Arias (1996) 13
Cal.4th 92, 130, fn. 11 [51 Cal.Rptr.2d 770, 913 P.2d 980] (Arias); People v.
Lucky (1988) 45 Cal.3d 259, 277-278 [247 Cal.Rptr. 1, 753 P.2d 1052 (Lucky).)”
(Ochoa II, supra, 26 Cal.4th 398, 423.)
In the present case, the trial court correctly recognized the law’s preference
for joinder and properly exercised its discretion in denying the severance motion.
(See ante, p. 32, fn. 13; Ochoa II, supra, 26 Cal.4th at p. 423.) Although
defendant contends the trial court believed it had no discretion, that position is
belied by the passages from the hearings noted above. Defendant’s position is
further belied by the circumstance that, because the judge who granted defendant’s
motion to sever the Paramount triple murders from the four murders for which
defendant was tried and convicted was the same judge who denied defendant’s
motion to sever the four charged murders into separate proceedings, the judge
clearly understood that he had discretion to sever.
With regard to defendant’s alternate contention that the trial court abused
its discretion, we observe that although the prosecution did not make a showing of
cross-admissibility in support of joinder, the absence of such a showing did not
require severance. (Ochoa II, supra, 26 Cal.4th 398, 423.)
In view of the circumstance that each of the four homicides involved a
charge that defendant, armed with a concealed and loaded firearm, initiated a fatal
attack upon an unarmed individual, no particular killing was “significantly more
egregious” than any other (contrary to defendant’s assertion otherwise), and
therefore none were “unusually likely to inflame the jury against the defendant.”
The suggestion that defendant also was linked to the cocaine recovered from the
Las Playas and Rita Motel crime scenes was hardly inflammatory relative to the
homicides charged against him. Thus, a “weak” case was not joined to a “strong”
Although none of the individual homicides carried a special circumstance
that might have converted the matter into a capital case, and joinder did effect
such conversion (in view of the multiple-murder special circumstance), we
conclude that as a practical matter joinder had a minimal effect, because the
evidence as to each homicide indicated that defendant intentionally killed with
premeditation and deliberation, providing a compelling basis for four convictions
of first degree murder and a true finding as to multiple murder even if defendant
had been tried separately for each homicide. Defendant’s speculative and
unconvincing contentions to the contrary ― that had he been tried individually, he
“probably” would have been acquitted of the murder of George Martinez at the
Fort Knots bar and “probably” would have been convicted of only second degree
murder in the killing of Efrem Baldia at the Rita Motel ― never were presented to
the trial court at the time of his motion to sever. Moreover, separate trials would
have given the prosecution multiple opportunities in which to convince a jury to
impose the death penalty upon defendant. (See People v. Carter (2005) 36 Cal.4th
1114, 1158, fn. 17.) No abuse of discretion or abridgment of defendant’s right to
due process of law appears. (People v. Box (2000) 23 Cal.4th 1153, 1195-1197.)
In sum, defendant fails to establish that he made “a clear showing of
potential prejudice,” and our review of the trial court’s denial of defendant’s
severance motion indicates that it was not “ ‘ “outside the bounds of reason.” ’ ”
(Ochoa II, supra, 26 Cal.4th at p. 423; see also People v. Caitlin (2001) 26 Cal.4th
81, 110-113 [upholding trial court’s denial of the defendant’s motion to sever one
murder count from a second murder count].)
Even if we were to assume for the sake of discussion that the trial court
erred in denying defendant’s motion to sever, the evidence linking defendant to
each homicide was strong, and none was potentially inflammatory vis-à-vis the
other; accordingly, any error would have been harmless, because it is not
reasonably probable that defendant would have received a more favorable result as
to any count even had he been tried separately as to each one. (See People v.
Pinholster (1992) 1 Cal.4th 865, 931-932.) Accordingly, we reject defendant’s
claims of prejudicial error.
Sufficiency of the Evidence
Defendant contends that “there was little or no evidence” that any of the
charged homicides were premeditated or deliberate, and that the evidence
therefore was insufficient to sustain his convictions of the first degree murder of
Miguel Garcia, George Martinez, Efrem Baldia, and Jose Gutierrez. As we
explain below, defendant’s position is completely without merit.
In considering defendant’s claim, “we must ‘review the entire record, and
drawing all reasonable inferences in favor of [the judgment], . . . determine
whether a rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’ ([People v.] Raley [(1992)] 2 Cal.4th 870, 889.)”
(People v. Hughes (2002) 27 Cal.4th 287, 370 (Hughes).)
“ ‘Reversal on this ground is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support [the
conviction].” [Citation.] In People v. Anderson [(1968)] 70 Cal.2d [15,] 26-27
[73 Cal.Rptr. 550, 447 P.2d 942], we identified three categories of evidence
relevant to resolving the issue of premeditation and deliberation: planning activity,
motive, and manner of killing. However, as later explained in People v. Pride
(1992) 3 Cal.4th 195, 247 [10 Cal.Rptr.2d 636, 833 P.2d 643]: “Anderson does
not require that these factors be present in some special combination or that they
be accorded a particular weight, nor is the list exhaustive. Anderson was simply
intended to guide an appellate court’s assessment whether the evidence supports
an inference that the killing occurred as the result of preexisting reflection rather
than unconsidered or rash impulse. [Citation.]” Thus, while premeditation and
deliberation must result from “ ‘careful thought and weighing of considerations’ ”
(70 Cal.2d at p. 27), we continue to apply the principle that “[t]he process of
premeditation and deliberation does not require any extended period of time. ‘The
true test is not the duration of time as much as it is the extent of the reflection.
Thoughts may follow each other with great rapidity and cold, calculated judgment
may be arrived at quickly . . . .’ [Citations.]” ’ (People v. Bolin (1998) 18 Cal.4th
297, 331-332 [75 Cal.Rptr.2d 412, 956 P.2d 374].)” (Hughes, supra, 27 Cal.4th
In the present case, there is ample evidence supporting the inference that
each of the killings “ ‘ “occurred as the result of preexisting reflection rather than
unconsidered or rash impulse.” ’ ” (Hughes, supra, 27 Cal.4th 287, 370.)
With regard to the killing of Miguel Garcia at the Las Playas restaurant, the
evidence at trial revealed that defendant and the victim were engaged in a verbal
altercation; several minutes thereafter elapsed, at which point defendant
approached the victim, pulled a firearm from his waistband, cocked the weapon,
and fired several shots to the victim’s head, neck, and chest areas ― conduct that,
viewed as a whole, supported the jury’s findings of premeditation and
deliberation. (See People v. Koontz (2002) 27 Cal.4th 1041, 1082 (Koontz)
[evidence that the defendant fired a shot at a vital area of the victim’s body
represented “a manner of killing indicative of a deliberate intent to kill”].) By
contrast, defendant’s version of the events as given to law enforcement officers, in
which he claimed to have held the crowd at bay while his friend fired the fatal
shots, was not credible in view of the information obtained from other patrons at
the restaurant, and because the person defendant identified as the shooter,
“Francisco Manzano,” was an alias defendant, himself, had used one month
The evidence related to the killing of George Martinez at the Fort Knots bar
similarly was sufficient to support the jury’s finding that defendant acted with
premeditation and deliberation. After defendant forcibly was removed from the
bar on repeated occasions, defendant threatened to return with a firearm, did so,
and fired two gunshots at close range to the victim’s chest. Each of the ensuing
two wounds was severe enough to have been fatal. This evidence clearly was
sufficient to support a finding of premeditation and deliberation. (See Koontz,
supra, 27 Cal.4th 1041, 1080-1082 [the defendant, having armed himself with two
concealed, loaded handguns, argued with the victim and followed him to a
different apartment, resumed the argument, then fired the fatal shot to the victim’s
abdomen].) Defendant’s contention — that “assuming arguendo that [he] was the
man who was thrown out of the bar, and returned to shoot Martinez,” he
nonetheless did not commit first degree murder, because defendant was drunk and
had been beaten up and briefly knocked unconscious by the victim — in essence
asks this court to reweigh the evidence. The jury was instructed on intoxication
and heat of passion and rejected those alternative theories in favor of finding
defendant guilty of first degree murder. The evidence was sufficient to support the
The killing of Efrem Baldia at the Rita Motel similarly was shown to have
been the result of defendant’s premeditation and deliberation. The evidence
adduced at trial established that defendant, armed with a concealed firearm, left his
room at the motel, angrily confronted the victim, and fired several times, inflicting
multiple wounds to the victim’s chest. The evidence plainly was sufficient. (See
People v. Steele (2002) 27 Cal.4th 1230, 1250 [“As to planning, the jury could
infer that defendant carried the fatal knife into the victim’s home in his pocket,
which makes it ‘reasonable to infer that he considered the possibility of homicide
from the outset.’ ”].) Defendant’s contention, that he armed himself because
Baldia “normally carried a gun” and was romantically involved with defendant’s
girlfriend, Sylvia Tinoco (and therefore defendant “reasonably feared that Baldia
might shoot him”), again invites this court to reweigh the substantial evidence in
support of the jury’s determination that defendant acted with premeditation and
deliberation. We decline to do so. The evidence was sufficient.
Finally, with regard to the killing of Jose Gutierrez, the evidence adduced at
trial revealed that defendant, having armed himself with a loaded firearm,
approached the victim, who was asleep at the bar, grabbed him and shot him
repeatedly in the back from very close range, causing multiple fatal gunshot
wounds. The evidence was sufficient to establish premeditation and deliberation.
(Koontz, supra, 27 Cal.4th 1041, 1082.) In view of this evidence, the jury was
entitled to discredit the alternate version of events provided by defendant’s friend,
Beatriz Escamilla, who testified that defendant shot the victim in response to
provocation by the victim. We shall not substitute the jury’s implied findings with
an alternate version, preferred by defendant, that the jury considered and rejected.
In sum, as to each one of the four charged killings, we believe it is clear
that “ ‘a rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’ ” (Hughes, supra, 27 Cal.4th 287, 370.) We
therefore reject defendant’s contention that substantial evidence did not support
the jury’s findings that defendant acted with premeditation and deliberation in
fatally shooting Miguel Garcia, George Martinez, Efrem Baldia, and Jose
C. Jury Instruction Issues
1. CALJIC No. 17.02 — Several Counts
Defendant contends the trial court erred in refusing to instruct the jury with
a proposed instruction that read as follows: “The defendant is charged in the
Information with four separate counts of murder. There is no evidence that has
been presented on one count that can be considered by you as proof of any of the
other counts. You are instructed to deliberate on each count separately, as though
it were the only count for you to decide. The joining together of the four counts in
this case cannot be considered by you in any way that it is more likely the
defendant is guilty of any of the counts.”
In refusing to give defendant’s proposed instruction, the trial court
observed: “The court feels that [the proposed instruction is] covered by CALJIC
No. 17.02, which in turn has been modified by the court.” The modified pattern
instruction given to the jury read as follows: “Each count charges a distinct crime.
You must decide each count separately as though it were the only count for you to
decide. Your finding as to each count must be stated in a separate verdict. When
one count is decided, you must turn your attention to the next count without regard
for the decision that you have reached in the previous counts.”
Defendant contends that in the absence of the instruction he requested, “the
jurors almost certainly assumed that they could consider the evidence of the
charged offenses jointly, and could find [defendant] guilty of first degree murder
on any or all of the counts based on his supposed propensity to commit murder, as
demonstrated by the combined evidence of all the charges.”
We are unpersuaded. The focus of defendant’s concern — that the jury
improperly might base one or more of its verdicts on his “supposed propensity to
commit murder” and that “the jurors almost certainly assumed that they could
consider the evidence of the charged offenses jointly” —was addressed adequately
in the modified version of CALJIC No. 17.02 with which the court instructed the
jury. The court’s instruction made clear that the jurors were to consider each of
the charged murders as a “distinct” crime that needed to be considered
“separately” and set forth in a “separate verdict.” The instruction further directed
the jury to deal with the charges seriatim, “without regard for the decision that you
have reached in previous counts.” The modified version of CALJIC No. 17.02
adequately directed the jury to consider each crime separately, and the court
properly rejected defendant’s proffered instruction as duplicative. (See People v.
Caitlin, supra, 26 Cal.4th 81, 109 [upholding the trial court’s refusal to give a
special instruction that was duplicative of CALJIC No. 17.02].) No instructional
As we have noted in the text, defendant’s proposed instruction would have
informed the jury that “[t]here is no evidence that has been presented on one count
that can be considered by you as proof of any other counts.” The proposed
instruction would have been potentially confusing for the jury, which for example
was confronted with the testimony of Beatriz Escamilla, who was a witness to the
murder of Efrem Baldia at the Rita Motel, and to the murder of Jose Gutierrez at
the Mazatlan Bar; the jury thus was faced with the need to evaluate her credibility
generally as to multiple counts.
Further, in view of the instruction actually given, there is no reasonable
likelihood that the alternative instruction proffered by defendant, had it been
given, would have altered the result in this case.16
2. CALJIC No. 5.17 — Imperfect Self-Defense (Efrem Baldia,
As to each one of the charged murders, except for that pertaining to the
killing at the Mazatlan Bar (discussed post), the trial court instructed the jury on
the lesser included offense of voluntary manslaughter based upon the alternate
theories of sudden quarrel or heat of passion. Defendant contends that the trial
court erred in refusing his request that the jury also be instructed on imperfect self-
defense with regard to the killing of Efrem Baldia in the Rita Motel parking lot.
(See CALJIC No. 5.17.)17 As we explain, defendant’s contention is without merit.
“ ‘Under the doctrine of imperfect self-defense, when the trier of fact finds
that a defendant killed another person because the defendant actually, but
unreasonably, believed he was in imminent danger of death or great bodily injury,
the defendant is deemed to have acted without malice and thus can be convicted of
no crime greater than voluntary manslaughter.’ (In re Christian S. (1994) 7
Insofar as defendant contends the trial court’s asserted error in refusing his
proffered instruction was exacerbated by the prosecutor’s closing arguments,
which described defendant’s mindset as well as certain general similarities
between the charged crimes, we reject the point; the prosecutor’s remarks fairly
commented upon, and drew reasonable inferences from, the evidence adduced at
CALJIC No. 5.17, as requested by defendant, provided: “A person, who
kills another person in the honest but unreasonable belief in the necessity to
defend against imminent peril to life or great bodily injury, kills unlawfully, but
does not harbor malice aforethought and is not guilty of murder. This would be so
even though a reasonable person in the same situation seeing and knowing the
same facts would not have had the same belief. Such an honest but unreasonable
belief is not a defense to the crime of voluntary or involuntary manslaughter.”
Cal.4th 768, 771 [30 Cal.Rptr.2d 33, 872 P.2d 574].) As we explained in
People v. Barton (1995) 12 Cal.4th 186, 200-201 [47 Cal.Rptr.2d 569, 906 P.2d
531], imperfect self-defense is not an affirmative defense, but a description of one
type of voluntary manslaughter. Thus the trial court must instruct on this doctrine,
whether or not instructions are requested by counsel, whenever there is evidence
substantial enough to merit consideration by the jury that under this doctrine the
defendant is guilty of voluntary manslaughter. (Id. at pp. 194, 201.) If it were a
true affirmative defense, however, an instruction would be required only if it
appears that the defendant was relying on the defense, or that there was substantial
evidence supportive of the defense, and the defense was not inconsistent with the
defendant’s theory of the case. (Id. at p. 195, see People v. Sedeno (1974) 10
Cal.3d 703, 716 [112 Cal.Rptr. 1, 518 P.2d 913].)” (People v. Michaels (2002) 28
Cal.4th 486, 529.)
“[T]he doctrine is narrow. It requires without exception that the defendant
must have had an actual belief in the need for self-defense. We also emphasize
what should be obvious. Fear of future harm — no matter how great the fear and
no matter how great the likelihood of the harm — will not suffice. The
defendant’s fear must be of imminent danger to life or great bodily injury.
‘ “ [T]he peril must appear to the defendant as immediate and present and not
prospective or even in the near future. An imminent peril is one that, from
appearances, must be instantly dealt with.” ’ . . . [¶] . . . [W]e reiterate that, just
as with perfect self-defense or any defense, ‘[a] trial court need give a requested
instruction concerning a defense only if there is substantial evidence to support the
defense.’ (People v. Aris [(1989] 215 Cal.App.3d [1178,] 1192, italics added.)”
(In re Christian S. (1994) 7 Cal.4th 768, 783; see also People v. Wright (2005) 35
Cal.4th 964, 974.)
On appeal, we apply a de novo standard of review. (People v. Waidla
(2000) 22 Cal.4th 690, 733 (Waidla).) In so doing, we examine a record in the
present case that is devoid of evidence suggesting that when defendant left his
room at the Rita Motel to confront Efrem Baldia, he harbored an actual belief in
the need for self-defense against an imminent danger to life or great bodily injury.
To the contrary, defendant’s statements to the investigating officers indicated he
wanted to tell Baldia that Baldia “could have” Sylvia Tinoco because defendant
intended to return to Mexico. Although defendant also informed the officers that
“he had heard some threats” that Baldia wanted to kill him, defendant made no
claim of ever having seen Baldia armed with any weapon, said nothing about
believing Baldia was armed, and never indicated he felt he was under any
imminent threat of death or great bodily injury when he drew the firearm from his
Ramiro Salazar, who accompanied the victim to the Rita Motel
immediately prior to the shooting, testified that defendant appeared angry as he
emerged from the room, that Baldia was unarmed, and that the vehicle in which
Salazar and Baldia arrived did not contain a weapon. Salazar further testified that
Baldia asked defendant, “Why are you mad at me?,” after which defendant let
Baldia go and Baldia backed up, asking defendant, “What’s your problem with
me?” Salazar’s testimony contained nothing to indicate defendant feared the
victim. Although Salazar testified that Baldia usually carried a gun, the record
contains no evidence that defendant possessed a similar knowledge or belief.
In view of the foregoing testimony, which at most revealed that defendant
may have harbored some fear of future harm but provided no indication that
defendant “actually, but unreasonably, believed he was in imminent danger of
death or great bodily injury” (In re Christian S. supra, 7 Cal.4th 768, 771), the
evidence clearly was insufficient to require the giving of defendant’s requested
instruction regarding imperfect self-defense. (See People v. Seaton (2001) 26
Cal.4th 598, 664 [when the defendant’s own testimony showed him to be the
initial aggressor, and the victim’s response to be legally justified, the defendant
could not rely on unreasonable self-defense as a ground for voluntary
manslaughter instructions].) We therefore conclude the trial court correctly
refused to instruct the jury on imperfect self-defense.
The jury’s verdict finding defendant guilty of the first degree murder of
Efrem Baldia implicitly rejected defendant’s version of the events, leaving no
doubt the jury would have returned the same verdict had it been instructed
regarding imperfect self-defense. (See People v. Lewis (2001) 25 Cal.4th 610, 646
[“Error in failing to instruct the jury on a lesser included offense is harmless when
the jury necessarily decides the factual questions posed by the omitted instructions
adversely to defendant under other properly given instructions.”].) Accordingly,
even if we were to assume the failure to instruct on imperfect self-defense violated
defendant’s constitutional rights, we would find the error harmless. (See People v.
Sakarias (2000) 22 Cal.4th 596, 621 [no state or federal constitutional error occurs
requiring reversal for failure to instruct the jury regarding a lesser included
offense, when the evidence in support of that offense “was, at best, extremely
3. Voluntary Manslaughter (Jose Gutierrez, Mazatlan Bar)
As noted above, the trial court instructed the jury on the lesser included
offense of voluntary manslaughter based upon a sudden quarrel or heat of passion,
as to each one of the charged killings except the killing of Jose Gutierrez
committed at the Mazatlan Bar. Defendant contends the trial court’s refusal to
instruct on voluntary manslaughter regarding the Gutierrez killing constituted
reversible error. He is mistaken.
“The Penal Code defines manslaughter as ‘the unlawful killing of a human
being without malice.’ (§ 192.) The offense is voluntary manslaughter when the
killing is ‘upon a sudden quarrel or heat of passion.’ (Id., subd. (a).) As we have
explained in greater detail in People v. Breverman (1998) 19 Cal. 4th 142, 154 [77
Cal.Rptr. 2d 870, 960 P.2d 1094] (Breverman), manslaughter has been considered
a lesser, necessarily included, offense of intentional murder. Generally, an intent
to unlawfully kill reflects malice. (§ 188; Breverman, supra, 19 Cal. 4th at p. 153;
People v. Saille [(1991)] 54 Cal. 3d [1103,] 1113.) An unlawful killing with
malice is murder. (§ 187.) Nonetheless, an intentional killing is reduced to
voluntary manslaughter if other evidence negates malice. Malice is presumptively
absent when the defendant acts upon a sudden quarrel or heat of passion on
sufficient provocation (§ 192, subd. (a)), or kills in the unreasonable, but good
faith, belief that deadly force is necessary in self-defense. (In re Christian S.
(1994) 7 Cal. 4th 768 [30 Cal.Rptr. 2d 33, 872 P.2d 574].) Only these
circumstances negate malice when a defendant intends to kill. (People v. Barton
(1995) 12 Cal. 4th 186, 199 [47 Cal.Rptr.2d 569, 906 P.2d 531].)” (People v.
Lee (1999) 20 Cal.4th 47, 58-59 (Lee).)
As we further explained in Lee: “Although section 192, subdivision (a),
refers to ‘sudden quarrel or heat of passion,’ the factor which distinguishes the
‘heat of passion’ form of voluntary manslaughter from murder is provocation.
The provocation which incites the defendant to homicidal conduct in the heat of
passion must be caused by the victim (see In re Thomas C. (1986) 183 Cal. App.
3d 786, 798 [228 Cal.Rptr. 430]), or be conduct reasonably believed by the
defendant to have been engaged in by the victim. (See People v. Brooks (1986)
185 Cal. App. 3d 687, 694 [230 Cal.Rptr. 86]; see also 1 Witkin & Epstein, Cal.
Criminal Law (2d ed. 1988) Crimes Against the Person, § 512, p. 579.) The
provocative conduct by the victim may be physical or verbal, but the conduct
must be sufficiently provocative that it would cause an ordinary person of average
disposition to act rashly or without due deliberation and reflection. (People v.
Berry (1976) 18 Cal. 3d 509, 515 [134 Cal.Rptr. 415, 556 P.2d 777]; People v.
Valentine (1946) 28 Cal. 2d 121, 138-139 [169 P.2d 1].) ‘Heat of passion arises
when “at the time of the killing, the reason of the accused was obscured or
disturbed by passion to such an extent as would cause the ordinarily reasonable
person of average disposition to act rashly and without deliberation and
reflection, and from such passion rather than from judgment.” ’ (People v.
Barton, supra, 12 Cal. 4th at p. 201.)” (Lee, supra, 20 Cal.4th 47, 59.)
Thus, “[t]he heat of passion requirement for manslaughter has both an
objective and a subjective component. (People v. Wickersham (1982) 32 Cal.3d
307, 326-327 [185 Cal.Rptr. 436, 650 P.2d 311].) The defendant must actually,
subjectively, kill under the heat of passion. (Id. at p. 327.) But the circumstances
giving rise to the heat of passion are also viewed objectively. As we explained
long ago in interpreting the same language of section 192, ‘this heat of passion
must be such a passion as would naturally be aroused in the mind of an ordinarily
reasonable person under the given facts and circumstances,’ because ‘no defendant
may set up his own standard of conduct and justify or excuse himself because in
fact his passions were aroused, unless further the jury believe that the facts and
circumstances were sufficient to arouse the passions of the ordinarily reasonable
man.’ (People v. Logan (1917) 175 Cal. 45, 49 [164 P. 1121.)” (People v. Steele,
supra, 27 Cal.4th 1230, 1252-1253; see also People v. Gutierrez (2002) 28 Cal.4th
1083, 1143-1144 [same].)
“ ‘To satisfy the objective or “reasonable person” element of this form of
voluntary manslaughter, the accused’s heat of passion must be due to “sufficient
provocation.” ’ (People v. Wickersham [(1982)] 32 Cal.3d [307,] 326.)”
(People v. Gutierrez, supra, 28 Cal.4th 1083, 1144.)
A trial court must instruct on a lesser included offense if substantial
evidence exists indicating that the defendant is guilty only of the lesser offense.
(People v. Breverman (1998) 19 Cal.4th 142, 162.) “ ‘Substantial evidence’ in
this context is ‘ “evidence from which a jury composed of reasonable [persons]
could . . . conclude ” ’ that the lesser offense, but not the greater, was committed.
As noted earlier, on appeal we employ a de novo standard of review and
independently determine whether an instruction on the lesser included offense of
involuntary manslaughter should have been given. (See Waidla, supra, 22
Cal.4th 690, 733.)
In the present case, the evidence adduced at trial presented two mutually
exclusive descriptions of the circumstances surrounding the killing of Jose
Gutierrez, as follows. Adela Lopez, who worked at the Mazatlan Bar on the night
of the shooting, testified that immediately prior to the events in question, the
victim was asleep at the bar, and that defendant grabbed him without exchanging
any words and thereafter repeatedly shot him. Immediately after the shooting,
Lopez observed defendant depart from the bar “with a pistol in his hand,”
followed by the bar’s security guards with their weapons drawn. By contrast,
Beatriz Escamilla testified that the victim approached defendant and “started
offending him,” called defendant “a mother fucker,” asking defendant whether he
had a gun and daring him to use it. According to Escamilla, defendant repeatedly
told the victim to calm down and that he did not want any problems. Escamilla
testified that she did not see the victim attempt to grab or stab defendant or hold a
weapon, nor did she see one fall to the ground. She testified that defendant shot
him from a distance of approximately four feet.
“In deciding whether there is substantial evidence of a lesser offense, courts
should not evaluate the credibility of witnesses, a task for the jury.” (People v.
Breverman, supra, 19 Cal.4th 142, 162.) Thus, we need not and do not attempt to
determine whether the testimony given by Adela Lopez or Beatriz Escamilla was
the more credible. Such a determination is not pertinent, because even under the
version of events that was ostensibly more favorable to defendant, Escamilla
testified that defendant repeatedly told the victim to calm down and that defendant
did not want any problems. Escamilla’s testimony contained no indication that
defendant’s actions reflected any sign of heat of passion at the time he commenced
firing his handgun at the victim. There was no showing that defendant exhibited
anger, fury, or rage; thus, there was no evidence that defendant “actually,
subjectively, kill[ed] under the heat of passion.” (People v. Steele, supra, 27
Cal.4th 1230, 1252.) To the contrary, Escamilla’s testimony portrayed defendant
as attempting to exert a calming influence on the victim. The subjective element
of the heat of passion theory clearly was not satisfied, and for that reason the trial
court did not err in refusing to instruct the jury as to heat of passion with regard to
the killing of Jose Gutierrez. (See People v. Johnson (1993) 6 Cal.4th 1, 43-44
[rejecting the defendant’s contention that the trial court erred in failing to instruct
on provocation when the evidence adduced at trial did not indicate whether the
victim’s statements and conduct had any effect on the defendant’s state of mind].)
Even if we were to assume for the sake of discussion that Escamilla’s
testimony satisfied the subjective requirement that defendant actually killed
Gutierrez in the heat of passion, however, the evidence of provocation was
insufficient to satisfy the objective requirement, that is, that defendant’s heat of
passion resulted from sufficient provocation caused by the victim. Although the
provocative conduct may be verbal, as it may have been if Escamilla’s testimony
were to be credited, such provocation “must be such that an average, sober person
would be so inflamed that he or she would lose reason and judgment.” (Lee,
supra, 20 Cal.4th 47, 60.) That standard was not met here. Escamilla testified that
Gutierrez called defendant a “mother fucker” and that he also taunted defendant,
repeatedly asserting that if defendant had a weapon, he should take it out and use
it. Such declarations, as recounted by Escamilla, comprised the only evidence of
provocative conduct attributed to the victim, and plainly were insufficient to cause
an average person to become so inflamed as to lose reason and judgment. (Ibid.)
Accordingly, the evidence of provocation was insufficient to suggest that
defendant’s killing of Gutierrez amounted to involuntary manslaughter rather than
murder. The trial court properly denied defendant’s request for an instruction on
voluntary manslaughter based upon the theory of a sudden quarrel or heat of
Finally, we observe that as to each of the four counts of murder charged
against defendant, the trial court instructed the jury that evidence of provocation
could be considered in determining the degree of the murder. (CALJIC No.
8.73.)18 The court also gave other pattern instructions informing the jurors that if
they harbored a reasonable doubt as to whether defendant committed first degree
or second degree murder, or harbored a reasonable doubt as to whether the killing
was murder or manslaughter, they must give defendant the benefit of the doubt
and return a verdict of guilty of the lesser offense. (CALJIC Nos. 8.71, 8.72.) In
view of these instructions, and considering the factual determinations made by the
jury in reaching a verdict of first degree murder, we conclude the jury would have
returned the same verdict of first degree murder as to the killing of Jose Gutierrez
The trial court instructed the jury as follows: “If the evidence establishes
[that] there was provocation which played a part in inducing an unlawful killing of
a human being, but the provocation was not sufficient to reduce the homicide to
manslaughter, you should consider the provocation for such bearing as it may have
on whether the defendant killed with or without deliberation and premeditation.”
(CALJIC No. 8.73 (1992 Rev.).)
even if the voluntary manslaughter instruction refused by the trial court had been
given. Accordingly, even if we were to assume for the sake of discussion that the
trial court erred in refusing the instruction requested by defendant, any error
clearly would have been harmless. (See People v. Gutierrez, supra, 28 Cal.4th
4. Involuntary Manslaughter (Efrem Baldia, Rita Motel)
Defendant contends the trial court erred when if failed to instruct the jury
on its own motion that involuntary manslaughter was a lesser included offense of
the charged murder of Efrem Baldia at the Rita Motel. We disagree.
“Manslaughter is deemed to be related to murder as a lesser included
offense. (See, e.g., 1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988)
Defenses, § 327, p. 379; compare Pen. Code, § 187, subd. (a) [defining murder as
the ‘unlawful killing of a human being . . . with malice aforethought’] with id.,
§ 192 [defining manslaughter as the ‘unlawful killing of a human being without
malice’].) As relevant here, manslaughter is voluntary, i.e., ‘upon a sudden
quarrel or heat of passion’ (id., § 192, subd. (a)), or involuntary, i.e., ‘in the
commission of an unlawful act, not amounting to felony; or in the commission of a
lawful act which might produce death, in an unlawful manner, or without due
caution and circumspection’ (id., § 192, subd. (b)).” (People v. Berryman (1993)
6 Cal.4th 1048, 1080.)
In the present case, the trial court instructed the jury on murder and, as
noted earlier, it also instructed on voluntary manslaughter as a lesser included
offense as to the killings committed at the Las Playas restaurant, Fort Knots bar,
and the Rita Motel. The court did not instruct on involuntary manslaughter as a
lesser included offense with regard to any of the charged murders, and defendant
did not ask it to do so.
In support of his contention that the trial court should have instructed on
its own motion on involuntary manslaughter as a lesser included offense of the
murder of Efrem Baldia at the Rita Motel, defendant relies upon two items of
evidence adduced at the trial: his own statement to investigating officers that,
upon drawing his firearm from his waistband and placing the barrel against the
victim’s stomach, he pushed Baldia backward as the weapon discharged, and the
testimony of Dr. Rogers that two of Baldia’s five gunshot wounds were fatal, one
to the lower left back and the other to the right side of the chest. Defendant posits
that the latter wound was the only one “that could have been inflicted in the
manner [defendant had] described” to the investigating officers. In light of this
evidence, defendant asserts that “a reasonable juror could have concluded that
[defendant] shot Baldia by mistake, while negligently attempting to defend
against a perceived threat[, a] finding that would have supported a conviction for
involuntary manslaughter, not premeditated murder.”
As also noted earlier, we independently determine whether an instruction
on the lesser included offense of involuntary manslaughter should have been
given. (See Waidla, supra, 22 Cal.4th 690, 733.)
There was no error. “A court is not obligated to instruct sua sponte on
involuntary manslaughter as a lesser included offense unless there is substantial
evidence, i.e., evidence from which a rational trier of fact could find beyond a
reasonable doubt (see People v. Wickersham (1982) 32 Cal.3d 307, 325 [185
Cal.Rptr. 436, 650 P.2d 311]) that the defendant killed his victim ‘in the
commission of an unlawful act, not amounting to felony; or in the commission of
a lawful act which might produce death, in an unlawful manner, or without due
caution and circumspection’ (Pen. Code, § 192, subd. (b)).” (People v.
Berryman, supra, 6 Cal.4th 1048, 1081; see also People v. Breverman, supra, 19
Cal.4th 142, 162 [“ ‘Substantial evidence’ in this context is ‘ “evidence from
which a jury composed of reasonable [persons] could . . . conclude ” ’ that the
lesser offense, but not the greater, was committed.”].)
There was no such evidence here. The killing of Efrem Baldia can only be
characterized as having been intentional. The victim suffered two fatal and three
nonfatal gunshot wounds inflicted at close range. Even if we were to accept
defendant’s statement, made during his hospital interview with Detective
Olmedo, that the first shot simply “discharged” when defendant pushed the
victim, the autopsy evidence introduced in the testimony given by Dr. Rogers
established that defendant thereafter inflicted a second fatal wound when, by
defendant’s own admission to Detective Olmedo, he continued shooting the
victim as the victim was falling to the ground. Thus, even if defendant
unintentionally fired the first shot, the trial court was not required to instruct the
jury on involuntary manslaughter in view of the circumstance that defendant
intentionally kept firing his weapon, inflicting at least one other fatal wound.
The jury’s verdict finding defendant guilty of the first degree murder of
Efrem Baldia implicitly rejected defendant’s version of the events ― whether that
version sought to establish voluntary manslaughter based upon a theory of
imperfect self-defense, or involuntary manslaughter based upon a theory that
defendant accidentally discharged his firearm ― eliminating any doubt that the
jury would have returned the same verdict had it been instructed on involuntary
manslaughter. (See People v. Lewis, supra, 25 Cal.4th 610, 646.) Accordingly,
even if were to assume for the sake of discussion that the trial court’s failure to
instruct on involuntary manslaughter violated defendant’s constitutional rights,
we would find the error harmless. (See People v. Sakarias, supra, 22 Cal.4th
D. Penalty Phase Issues
Defendant contends that several features of California’s sentencing scheme,
alone or in combination, violate the federal Constitution. As defendant
acknowledges, we previously have rejected similar challenges, and because
defendant has not presented a persuasive reason for us to reconsider those rulings,
we decline to do so.
Section 190.3, factor (a), is not overbroad, nor does it allow for the
arbitrary and capricious imposition of the death penalty. (People v. Carter, supra,
36 Cal. 4th 1215, 1278; People v. Maury (2003) 30 Cal.4th 342, 439; People v.
Jenkins (2000) 22 Cal.4th 900,1050-1053.)19
The sentencing guidelines set forth in section 190.3 sufficiently narrow the
class of homicide offenders eligible for the death penalty. (People v. Cox (2003)
30 Cal.4th 916, 971.)
The trial court is not required to instruct the jury that aggravating factors
must be proved beyond a reasonable doubt, that the jury must find beyond a
reasonable doubt that the aggravating factors outweigh the mitigating factors, or
that death must be found to be appropriate beyond a reasonable doubt. (People v.
Carter, supra, 36 Cal. 4th at 1280; People v. Box, supra, 23 Cal.4th 1153, 1216;
People v. Bradford (1997) 14 Cal.4th 1005, 1059; People v. Crittenden (1994) 9
Cal.4th 83, 153.)
Nor is the trial court required to instruct as to standard of proof. (People v.
Box, supra, 23 Cal.4th 1153, 1216; People v. Carpenter (1997) 15 Cal.4th 312,
Section 190.3 provides in relevant part: “In determining the penalty, the
trier of fact shall take into account any of the following factors if relevant: [¶] (a)
The circumstances of the crime of which the defendant was convicted in the
present proceeding and the existence of any special circumstances found to be true
pursuant to Section 190.1.”
417-418.) Here, the jury was instructed 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 it warrants death instead of life
without possibility of parole.” That is sufficient. (Tuilaepa v. California (1984)
512 U.S. 967, 979 [129 L.Ed.2d 750, 114 S.Ct. 2630] [jury “need not be instructed
how to weigh any particular fact in the capital sentencing decision”]; People
v. Davenport (1995) 11 Cal.4th 1171, 1231.) “Unlike the guilt determination, ‘the
sentencing function is inherently moral and normative, not factual’ [citation] and,
hence, not susceptible to a burden-of-proof quantification.” (People v. Hawthorne
(1992) 4 Cal.4th 43, 79.) The United States Supreme Court decisions rendered in
Ring v. Arizona (2002) 536 U.S. 584 [153 L.Ed.2d 556, 122 S.Ct. 2428] and
Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348]
do not compel a different conclusion. (People v. Smith (2003) 30 Cal.4th 581,
642; see also People v. Prieto (2003) 30 Cal.4th 226, 275.)
Similarly, the trial court did not err in failing to instruct the jury that it must
make written findings of the factors it finds in aggravation and mitigation, or in
failing to instruct the jury that it must agree unanimously that a particular
aggravating circumstance exists. (People v. Maury, supra, 30 Cal.4th 342, 440;
People v. Box, supra, 23 Cal.4th 1153, 1216-1217; People v. Crittenden, supra, 9
Cal.4th at p. 153; see also People v. Snow (2003) 30 Cal.4th 43, 125-127 [rejecting
challenges to California’s death penalty law similar to those asserted by defendant
here, including the contention that under Apprendi v. New Jersey, supra, 530 U.S
466, and Ring v. Arizona, supra, 536 U.S. 584, the sentencing jury must find any
aggravating circumstance true beyond a reasonable doubt].)
Contrary to defendant’s assertions, (1) the use of unadjudicated criminal
activity during the penalty phase is permissible (People v. Prieto (2003) 30 Cal.4th
226, 276; People v. Box, supra, 23 Cal.4th 1153, 1217; People v. Hart (1999) 20
Cal.4th 546, 648-649); (2) the inclusion, in the list of potential mitigating factors
read to the jury, of adjectives such as “extreme,” in section 190.3, factors (d) and
(g), and “substantial,” in section 190.3, factor (g), is not error (People v. Smith,
supra, 30 Cal.4th 581, 642); (3) the trial court is not required to instruct the jury as
to which of the listed sentencing factors are aggravating, which are mitigating, and
which could be either, depending upon the evidence (People v. Maury, supra, 30
Cal.4th 342, 443-444); (4) capital and noncapital defendants are not similarly
situated and therefore may be treated differently without violating constitutional
guarantees of equal protection of the laws or due process of law (People v.
Johnson (1992) 3 Cal.4th 1183, 1242-1243); (5) intercase proportionality review is
not required (People v. Cornwell (2005) 37 Cal.4th 50, 118; People v. Cox, supra,
30 Cal.4th 916, 969-970; People v. Prieto, supra, 30 Cal.4th 226, 276; People v.
Snow, supra, 30 Cal.4th 43, 126-127); and (6) neither the Eighth Amendment
(People v. Samayoa (1997) 15 Cal.4th 795, 864-865) nor international law
requires the elimination of capital punishment in California (People v. Snow,
supra, 30 Cal. 4th at p. 127; People v. Ghent (1987) 43 Cal.3d 739, 778-779).
(See also People v. Boyette (2002) 29 Cal.4th 381, 465-467 [rejecting challenges,
based on the United States Constitution, similar to those presented by defendant
In view of the foregoing, we reject defendant’s various challenges to
California’s death penalty procedures.
Defendant contends that the cumulative effect of the asserted errors
committed at his trial led to a miscarriage of justice, requiring reversal of the guilt
and penalty phase judgments. Having determined that none of defendant’s
assignments of error has merit, we conclude there was no cumulative error
The judgment is affirmed in its entirety.
Honorable Patricia D. Benke, Associate Justice of the Court of Appeal,
Fourth Appellate District, Division One, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Manriquez
Original Appeal XXX
Opinion No. S038073
Date Filed: December 5, 2005
County: Los Angeles
Judge: Robert W. Armstrong
Attorneys for Appellant:
Lynne S. Coffin and Michael J. Hersek, State Public Defenders, under appointment by the Supreme Court,
and William Hassler, Deputy State Public Defender, for Defendant and Appellant.
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, John R. Gorey and Sharlene A. Honnaka, Deputy Attorneys
General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Deputy State Public Defender
221 Main Street, Tenth Floor
San Francisco, CA 94105
Sharlene A. Honnaka
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
|1||The People (Respondent)|
Represented by Attorney General - Los Angeles Office
Sharlene A. Honnaka, Deputy Attorney General
300 South Spring St., Suite 500
Los Angeles, CA
|2||Manriquez, Abelino (Appellant)|
San Quentin State Prison
Represented by Nora C. Cregan
Bingham McCutchen LLP
Three Embarcadero Center
San Francisco, CA
|3||Manriquez, Abelino (Appellant)|
San Quentin State Prison
Represented by Office Of The State Public Defender-Sf
William Hassler, Deputy State Public Defender
221 Main St., 10th Floor
San Francisco, CA
|4||Manriquez, Abelino (Appellant)|
San Quentin State Prison
Represented by Lynne S. Coffin
Attorney at Law
244 Miller Avenue
Mill Valley, CA
|Dec 5 2005||Opinion: Affirmed|
|Nov 16 1993||Judgment of death|
|Feb 22 1994||Filed certified copy of Judgment of Death Rendered|
|Oct 29 1998||Order appointing State Public Defender filed|
Upon request of appellant for appointment of counsel, the State Public Defender is hereby appointed to represent appellant Abelino Manriquez for the direct appeal in the above automatic appeal now pending in this court.
|Dec 4 1998||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Dec 11 1998||Extension of Time application Granted|
To 2-8-99 To request Record correction
|Feb 1 1999||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Feb 1 1999||Extension of Time application Granted|
To 4-09-99 To request Record correction
|Apr 12 1999||Application for Extension of Time filed|
By Applt to request Record correction
|Apr 12 1999||Extension of Time application Granted|
To 6-7-99 To request Record correction
|Jun 4 1999||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Jun 14 1999||Extension of Time application Granted|
To 8-6-99 To request Record correction
|Aug 5 1999||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Aug 11 1999||Extension of Time application Granted|
To 10/5/99 To request Record correction. no further Extensions Contemplated.
|Oct 4 1999||Application for Extension of Time filed|
By Applt to request Corr. of the Record.
|Oct 6 1999||Extension of Time application Granted|
To 12/6/99 To Applt To request Corr. of the Record no further Extensions of time will be Granted.
|Dec 8 1999||Received copy of appellant's record correction motion|
Motion to correct, augment and settle the record on appeal (22 pp.)
|Jul 25 2000||Counsel's status report received (confidential)|
from State P.D.
|Sep 25 2000||Counsel's status report received (confidential)|
from State P.D.
|Nov 27 2000||Counsel's status report received (confidential)|
from State P.D.
|Jan 22 2001||Counsel's status report received (confidential)|
from State P.D.
|Mar 22 2001||Counsel's status report received (confidential)|
from State P.D.
|May 22 2001||Counsel's status report received (confidential)|
from State P.D.
|Jul 23 2001||Counsel's status report received (confidential)|
from State P.D.
|Sep 21 2001||Counsel's status report received (confidential)|
from State P.D.
|Nov 26 2001||Counsel's status report received (confidential)|
from State P.D.
|Jan 18 2002||Counsel's status report received (confidential)|
from State P.D.
|Mar 18 2002||Received letter from:|
the State Public Defender regarding the certified record on appeal.
|Mar 20 2002||Counsel's status report received (confidential)|
from State Public Defender.
|Mar 20 2002||Letter sent to:|
State Public Defender in response to letter of 3-18-2002.
|Mar 22 2002||Record on appeal filed|
C-24 (4920 pp.) and R-16 (2455 pp.) including material under seal. Clerk's transcript includes 3269 pp. of juror questionnaires.
|Mar 22 2002||Appellant's opening brief letter sent, due:|
May 1, 2002.
|Apr 29 2002||Request for extension of time filed|
To file AOB. (1st request)
|May 1 2002||Filed:|
Applt.'s amended application for extension time to file AOB.
|May 2 2002||Extension of time granted|
To 7/1/2002 to file AOB.
|May 17 2002||Counsel's status report received (confidential)|
from State P.D.
|Jun 28 2002||Request for extension of time filed|
To file AOB. (2nd request)
|Jul 3 2002||Extension of time granted|
To 8/30/2002 to file AOB.
|Jul 17 2002||Counsel's status report received (confidential)|
from State P.D.
|Aug 30 2002||Request for extension of time filed|
To file appellant's opening brief. (3rd request)
|Sep 3 2002||Extension of time granted|
To 10/29/2002 to file apellant's opening brief.
|Sep 17 2002||Counsel's status report received (confidential)|
from State P.D.
|Oct 29 2002||Request for extension of time filed|
To file appellant's opening brief. (4th request)
|Nov 4 2002||Extension of time granted|
To 12/30/2002 to file appellant's opening brief.
|Nov 15 2002||Counsel's status report received (confidential)|
from State P.D.
|Dec 30 2002||Request for extension of time filed|
to file appellant's opening brief. (5th request)
|Jan 7 2003||Extension of time granted|
To 2/28/2003 to file appellant's opening brief. After that date, only two further extensions totaling about 90 additional days are contemplated. Extension is granted based upon Deputy State Public Defender William Hassler's representation that he anticipates filing that brief by 5/31/2003.
|Jan 14 2003||Counsel's status report received (confidential)|
from State P.D.
|Feb 24 2003||Request for extension of time filed|
to file appellant's opening brief. (6th request)
|Feb 27 2003||Extension of time granted|
to 4/29/2003 to file appellant's opening brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon Deputy State Public Defender William Hassler's representation that he anticipates filing that brief by 5/31/2003.
|Mar 17 2003||Counsel's status report received (confidential)|
from State P.D.
|May 1 2003||Request for extension of time filed|
to file appellant's opening brief. (7th request)
|May 6 2003||Extension of time granted|
to 6/2/2003 to file appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon Deputy State Public Defender William Hassler's representation that he anticipates filing tht brief. by 5/31/2003.
|May 15 2003||Counsel's status report received (confidential)|
from State P.D.
|Jun 2 2003||Appellant's opening brief filed|
|Jun 26 2003||Request for extension of time filed|
to file respondent's brief. (1st request)
|Jul 1 2003||Extension of time granted|
to 9/2/2003 to file respondent's brief.
|Aug 27 2003||Request for extension of time filed|
to file respondent's brief. (2nd. request)
|Sep 2 2003||Extension of time granted|
to 11-3-2003 to file respondent's brief.
|Sep 30 2003||Respondent's brief filed|
|Oct 20 2003||Request for extension of time filed|
to file appellant's reply brief. (1st request)
|Oct 21 2003||Extension of time granted|
to 12/19/2003 to file appellant's reply brief.
|Dec 19 2003||Request for extension of time filed|
to file appellant's reply brief. (2nd request)
|Dec 31 2003||Extension of time granted|
to 2/17/2004 to file appellant's reply brief. Extension is granted based upon Deputy State Public Defender William Hassler's representation that he anticipates filing that brief by 2/17/2004. After that date, no further extension is contemplated.
|Feb 17 2004||Appellant's reply brief filed|
(8067 words - 32 pp.)
|Feb 17 2004||Received:|
Appellant's reply brief received without certificate of word count. Counsel to submit certificate of word count.
|Jan 11 2005||Counsel appointment order filed|
Upon request for appointment of counsel, Nora C. Cregan is hereby appointed to represent appellant for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court.
|Apr 21 2005||Counsel's status report received (confidential)|
from atty Cregan.
|May 16 2005||Counsel's status report received (confidential)|
from atty Cregan.
|Jul 22 2005||Counsel's status report received (confidential)|
from atty Cregan.
|Aug 10 2005||Oral argument letter sent|
advising counsel that case could be scheduled for oral argument as early as the October calendar, to be held the week of Oct. 3, 2005, in Los Angeles. 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.
|Aug 10 2005||Oral argument letter sent|
advising counsel that the court has decided to set case for oral argument on Tuesday, Sept. 13, 2005, rather than in October, as indicated in prior letter sent this date.
|Aug 10 2005||Case ordered on calendar|
9/13/05 @ 1:30pm - San Francisco
|Aug 18 2005||Filed letter from:|
respondent, dated 8/18/2005, re: focus issues oral argument.
|Aug 23 2005||Filed letter from:|
Appellate counsel, dated 8/22/2005, re focus issues for oral argument.
|Aug 24 2005||Filed:|
Supplemental declaration of service of appellant's letter re oral argument.
|Sep 13 2005||Cause argued and submitted|
|Sep 16 2005||Counsel's status report received (confidential)|
from atty Cregan.
|Dec 5 2005||Opinion filed: Judgment affirmed in full|
Opinion by George, C.J. -----joined by Kennard, Baxter, Werdegar, Chin, Moreno, & Benke, (CA 4/1) JJ.
|Jan 5 2006||Remittitur issued (AA)|
|Jan 20 2006||Received:|
receipt for remittitur.
|Feb 17 2006||Related habeas corpus petition filed (post-judgment)|
|Mar 2 2006||Received:|
copy of appellant's application for extension of time to file petition for writ of certiorari in the U.S.S.C.
|Mar 7 2006||Received:|
letter from U.S.S.C., dated February 23, 2006; ext. of time to file cert petn is extended to and including April 4, 2006.
|Mar 29 2006||Order filed (150 day statement)|
|Apr 12 2006||Received:|
letter from U.S.S.C., dated 4-6-2006, advising that the petition for writ of certiorari was filed on 4-4-2006, and placed on the docket 4-6-2006 as No. 05-1278.
|Jun 12 2006||Received:|
Letter from U.S.S.C. dated 06/05/2006 advising petition for writ of certiorari is denied.
|Oct 29 2007||Counsel's status report received (confidential)|
from attorney John Reese of Bingham McCutchen.
|Jan 10 2008||Note:|
first amended petition for habeas corpus filed under no. S141210.
|Jun 2 2003||Appellant's opening brief filed|
|Sep 30 2003||Respondent's brief filed|
|Feb 17 2004||Appellant's reply brief filed|