IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
TUPOUTOE MATAELE,
Defendant and Appellant.
S138052
Orange County Superior Court
00NF1347
July 21, 2022
Chief Justice Cantil-Sakauye authored the opinion of the Court,
in which Justices Corrigan, Groban, Jenkins, and Guerrero
concurred.
Justice Groban filed a concurring opinion.
Justice Liu filed a concurring and dissenting opinion, in which
Justice Kruger concurred.
PEOPLE v. MATAELE
S138052
Opinion of the Court by Cantil-Sakauye, C. J.
A jury convicted defendant Tupoutoe Mataele of the
murder of Danell Johnson, the attempted murder of John
Masubayashi, and conspiracy to commit the murders of Johnson
and Masubayashi. (Pen. Code, §§ 187, subd. (a), 664, subd. (a),
182, subd. (a).)1 The jury found true a special circumstance
allegation that defendant committed the murder while lying in
wait. (§ 190.2, former subd. (a)(15).) The jury also found true
an allegation that defendant was armed with and personally
used a firearm in the commission of each offense. (§§ 12022,
subd. (a)(1), 12022.5, subd. (a).) Allegations that defendant
suffered a prior strike conviction and a prior serious felony
conviction were found true. (§§ 667, subd. (a), 1170.12, subds.
(a)–(d).
Following a penalty trial, the jury returned a verdict of
death. The trial court denied defendant’s motions to set aside
the death verdict and for a new trial, and sentenced defendant
to death. It also sentenced him to a life term plus nine years for
the attempted murder count, the firearm enhancements, and
the prior serious felony conviction. The court stayed the
sentence on the conspiracy count pursuant to section 654. This
appeal is automatic. (§ 1239, subd. (b).
1
All further statutory references are to the Penal Code
unless otherwise indicated.
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Opinion of the Court by Cantil-Sakauye, C. J.
We affirm the judgment in its entirety. We also remand
the matter for the limited purpose of allowing the trial court to
consider whether to exercise its newly conferred discretion
under Senate Bill No. 620 (2017–2018 Reg. Sess.) and Senate
Bill No. 1393 (2017–2018 Reg. Sess.) to strike the firearm and
prior serious felony enhancements, respectively.
I. BACKGROUND
A. Guilt Phase Evidence
1. Prosecution evidence
Defendant participated in a criminal enterprise with
numerous individuals. Although the initial enterprise was an
ongoing identity theft and bank fraud scheme, later the venture
included the purchase and sale of methamphetamine. Peter
Song managed the group, which also included Johnson,
Masubayashi, Minh Nghia Lee, James Chung, Ryan Carrillo,
David Song, and Tweeney Mataele (defendant’s brother,
nicknamed “Baby”). At one point, nearly the entire group lived
together in an apartment in Los Angeles referred to as the
“Penthouse.”
Several members of the group also belonged to criminal
street gangs. Masubayashi and Johnson were members of the
Tiny Rascals gang. Chung, Carrillo, and Baby were members of
the Pinoy Real gang. Defendant was a member of the Sons of
Samoa gang, but socialized mostly with Pinoy Real gang
members. Lee was a member of the Asian Mob Assassins gang.
The shooting of Johnson and Masubayashi stemmed from
various disputes within the group. Chung was angry with
Johnson because Johnson had received a speeding ticket when
he was driving Chung’s Jeep Cherokee and had provided the
police officer with false identification. The police went to
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Opinion of the Court by Cantil-Sakauye, C. J.
Chung’s house and questioned him. Chung worried that he
would be in violation of his parole because of the car incident.
Chung was also upset with Masubayashi after Chung was
nearly caught committing bank fraud. Chung threatened
Masubayashi with a butcher knife over the incident and told
him to watch his back. Chung called Johnson and Masubayashi
“snitches” based on the incidents. Chung also wanted to replace
Masubayashi as Peter Song’s second-in-command in the
criminal enterprise. Masubayashi and Johnson eventually
moved out of the Penthouse and lived in an apartment in
Anaheim owned by Takahisa Suzuki.
On the evening of November 11, 1997, defendant, Chung,
Carrillo, and Lee were at the Penthouse when Chung began
complaining about Masubayashi and Johnson. Defendant
volunteered to kill Masubayashi, stating, “We’re going to handle
them, take care of them” and “Let’s go smoke those
motherfuckers.” Chung, Lee, and Carrillo responded, “Let’s do
it.” Carrillo noticed that defendant possessed a .357 magnum
handgun, which Carrillo had previously seen defendant carry on
numerous occasions.
Lee drove defendant, Chung, and Carrillo in Chung’s Jeep
Cherokee to the home of Allan Quiambao, another Pinoy Real
gang member. During the drive, defendant repeated that he
would kill Johnson and Masubayashi. The group met Quiambao
outside and told him that they were headed to Anaheim to “do”
Johnson and Masubayashi. Quiambao understood this to mean
the group would kill them.
The group returned to the Jeep and continued driving
toward Anaheim. A police officer stopped the Jeep after Carrillo
threw a cigarette butt out the window. Carrillo saw defendant
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hide his gun inside the crack of the seats prior to the stop and
then tuck it in his waistband after the police officer left.
Lee parked the Jeep in a parking lot near Suzuki’s
apartment complex. The group agreed that only defendant and
Carrillo would go to the apartment because there was no
animosity between them and Masubayashi and Johnson. Lee
and Chung would wait in the Jeep. As they were walking to the
apartment, defendant told Carrillo that he was going to “do,”
meaning kill, everyone in the apartment. Defendant telephoned
Johnson, who had been grocery shopping with his girlfriend, Sia
Her. Johnson and Her met defendant and Carrillo outside the
apartment complex. The four continued to Suzuki’s apartment,
where Masubayashi and his girlfriend, Alexis Huliganga, were
asleep inside. Masubayashi awoke and the men decided to go
out to a strip club or to shoot pool. Defendant, who weighed
more than 300 pounds, was wearing dark jeans and a green-and-
black plaid flannel; Carrillo, who had a thinner build, wore a
white jersey with black letters and a beanie on his head.
As the group walked toward Masubayashi’s car, they
noticed a police patrol car driving by. Masubayashi and Carrillo
saw defendant remove his gun from his waistband and hide it
beneath the tire of a parked car. Defendant and Carrillo
returned to Suzuki’s apartment, where defendant explained to
Her that they had come back because the police were outside
and he was “strapped,” meaning he had a gun. After the patrol
car left, Johnson returned to the apartment to collect defendant
and Carrillo, while Masubayashi continued walking to his
vehicle. Defendant retrieved the gun once outside and
Masubayashi picked the men up in his car, a two-door Nissan.
Carrillo sat behind Masubayashi and defendant sat behind
Johnson.
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Defendant and Carrillo told Masubayashi that they also
wanted to drive and directed him to Chung’s Jeep.
Unbeknownst to Masubayashi and Johnson, Lee and Chung
were hiding inside the Jeep. Masubayashi parked his car next
to the Jeep and Johnson got out of the front seat to let defendant
and Carrillo exit the car. Masubayashi saw Carrillo walk
toward the back of the Nissan while defendant stayed beside the
passenger door. Masubayashi recalled that he had left compact
discs in Chung’s Jeep and opened his car door to retrieve them.
Defendant suddenly drew his gun and shot Johnson in the head.
Masubayashi turned and saw Johnson’s head bobbing.
Defendant next bent inside the Nissan and shot Masubayashi.
Just before he was shot, Masubayashi remembered seeing
defendant’s dark forearm and his green-and-black flannel shirt
inside the car and defendant’s gun pointed at him.
Masubayashi dashed out of the car and ran through the
parking lot toward a Jack in the Box restaurant. Defendant shot
at Masubayashi several more times. Masubayashi ran across
the street as defendant and Carrillo climbed into the backseat
of the Jeep. Lee started the car and drove toward Masubayashi,
saying, “I’m going to run his ass over.” Masubayashi hid behind
a telephone pole, and Lee stopped the Jeep just in front of it.
Masubayashi ran away from the Jeep and collapsed in the
middle of the street. Carrillo became aware of people watching
in front of a nearby restaurant and saw a uniformed security
guard nearby. Defendant told Lee to let him out of the Jeep so
he could “finish John off.” Defendant got out of the Jeep and
walked toward Masubayashi. Lee, Chung, and Carrillo drove
off.
A restaurant patron and private security guard noticed
Masubayashi lying in the street and stopped to help him. Police
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officers arrived at the scene shortly thereafter and found
Masubayashi lying on his back in the middle of the street with
a gunshot wound to his chest. Masubayashi was taken to the
hospital, where he told police officers that defendant had shot
him and Johnson. A forensic pathologist who performed an
autopsy on Johnson testified that Johnson died from a close
range gunshot wound to his neck and brain. An analysis of
bullets and fragments indicated the shots were fired from either
a .38 special or .357 magnum handgun.
Two eyewitnesses — Jose Rodriguez and John Fowler —
testified regarding their observations. In the early morning
hours of November 12, 1997, Rodriguez, Fowler, and Matthew
Towne2 were seated on a bench outside the Gateway Urgent
Care Clinic in Anaheim when they heard what sounded like a
car backfiring. Rodriguez took a few steps forward and peered
around the side of a brick wall. He saw the profile of a man
approximately 50 feet away in a dark parking lot firing a gun in
the direction of the Jack in the Box. Rodriguez described the
shooter as a Black male, approximately 25 years old, about six
feet tall, heavyset, and wearing dark clothing. Fowler looked
around the side of the brick wall and noticed a black car parked
with the engine running. He also saw the silhouette of a man
walking across the parking lot toward the Jack in the Box and
firing a gun. He described the shooter as possibly African-
American, approximately five feet and ten inches tall, thin to
medium build, and possibly wearing a beanie. However, Fowler
also emphasized at trial that it was dark and difficult to
2
As discussed post, Towne was unavailable at the guilt
phase of trial. His statements to police officers, made shortly
after the shooting, were not admitted at trial.
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determine how big the shooter was, and that he simply saw a
“basic shadow” walking across the parking lot. The men ran into
the clinic to call 911.
Carrillo returned to Quiambao’s house after the shooting
and changed clothes. Carrillo seemed scared, paranoid, and
frantic. He appeared to be praying and repeatedly stated, “They
shot him.” When Quiambao asked Carrillo who shot them,
Carrillo replied, “T-Strong.”3
Defendant arrived at Quiambao’s home an hour or two
later. Defendant told Carrillo that he had discarded the gun and
ran from Anaheim to Quiambao’s house. Quiambao repeatedly
asked defendant why he had shot Johnson and Masubayashi,
but defendant did not respond. Quiambao asked defendant
what he did with the gun, and defendant replied that he threw
it away. Defendant left Quiambao’s house; Carrillo stayed there
and fell asleep.
Later that morning, defendant and Carrillo purchased
fake identification cards and used them to travel with Baby to
Utah. They lived with defendant’s relatives in Salt Lake City
for five or six months. In 1998, Carrillo and Baby returned to
Los Angeles and defendant remained in Utah.
In late 1999 or early 2000, Masubayashi began dating
Glenda Perdon (Glenda Bloemhof at trial). Unbeknownst to
Masubayashi, Perdon had previously associated with members
of the Pinoy Real gang, and she had seen defendant at
Quiambao’s house on a few occasions.
In April 2000, Masubayashi spotted defendant in the
parking lot of the Ramona Hotel in Cerritos. Masubayashi had
3
“T-Strong” was defendant’s given name at birth.
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not seen defendant since the shooting. He told Perdon that he
had observed defendant and wanted to notify the police. Perdon
mentioned that she had overheard defendant brag about killing
Johnson when she was at defendant’s house for a barbeque.
According to Perdon, defendant said, “I came in my pants when
I saw that nigger flop after I shot him.” Perdon also relayed that
defendant had mentioned the name “John” when he described
the shooting, which Masubayashi understood to refer to him.
Perdon recalled that this conversation took place around the
time of the shooting and that defendant had then fled to Utah.
Shortly thereafter, Masubayashi and Perdon went to the
Anaheim police station to provide additional information.
Masubayashi informed a police detective that he had seen
defendant. He also told the detective that, based on his
conversation with Perdon, it was possible Clarito Mina had been
driving the Jeep on the night in question. At trial, however,
Masubayashi testified that he was sure Lee had been driving
the Jeep.
In mid-May 2000, defendant was arrested on an
outstanding warrant for unrelated charges. Carrillo, Chung,
and Lee were also eventually arrested. In October 2001, a felony
complaint was filed charging defendant with murder, attempted
murder, and conspiracy to commit murder.
Defendant was jointly tried before a single jury with
codefendant Lee at the guilt phase trial. A death verdict was
not sought against Lee. Chung also was charged with first
degree murder, conspiracy to commit murder, and premeditated
attempted murder, but he was tried separately. Carrillo
testified for the prosecution as part of a plea bargain under
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which he pleaded guilty to voluntary manslaughter and
attempted murder, for which he received a six-year sentence.
2. Defense evidence
Defendant presented evidence suggesting that it was
Carrillo who shot Johnson and Masubayashi. The defense also
sought to portray Carrillo as a liar and an unreliable witness.
Testifying on his own behalf, defendant maintained that
he was on good terms with Johnson and Masubayashi, and
denied shooting them. He said that on the night in question, he
and Carrillo went to Suzuki’s apartment and spoke with
Johnson and Masubayashi about going out. Defendant
acknowledged that he hid a gun, a .357 magnum, under the tire
well of a parked vehicle when a police car approached the group,
but testified that it was Carrillo who subsequently retrieved the
weapon.
According to defendant, the foursome got into
Masubayashi’s car and drove to pick up Chung at his Jeep.
Defendant testified that Masubayashi parked his car next to
Chung’s Jeep and Johnson let defendant out of the car. As
defendant was walking toward the Jeep, he heard two gunshots,
turned around, and saw Carrillo’s arm in Masubayashi’s car.
Defendant related that he pushed Carrillo up against the car
and yelled, “What the fuck are you doing?” Carrillo replied, “It’s
a setup, man. It’s a setup.”
Defendant testified that he saw Masubayashi run from the
car as Carrillo followed and shot at him. Defendant maintained
that Carrillo returned to the Jeep and yelled, “Let’s go, let’s go,
let’s go.” Defendant conceded that he instructed the driver to
“go get” Masubayashi, but maintained that he intended to help
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Masubayashi, not run him over.4 Carrillo began screaming,
“Yeah, we’ve got to get him. We’ve got to get him. He seen us.
He knows where we live. We’ve got to do this. We got to finish
him.” Defendant told the group to stop the Jeep because he
“wasn’t going to be a part of it,” and he got out of the car and
started running.
Defendant testified that he made his way to Quiambao’s
house, where he met Carrillo outside. Defendant asked Carrillo
why he shot Johnson and Masubayashi. Carrillo replied that “it
was a setup” and claimed that Masubayashi had a gun. Once
inside, Quiambao asked defendant why he had shot Johnson.
Defendant did not respond and looked at Carrillo and
Quiambao. He then asked Quiambao to get him something to
drink. When Quiambao left the room, defendant asked Carrillo
what he had told Quiambao. According to defendant, Carrillo
responded that he thought defendant was in jail and he did not
know what to do, so he told Quiambao that defendant shot
Johnson. When Quiambao returned with a drink, he again
asked defendant why he shot Johnson and Masubayashi,
adding, “They are our friends.” Defendant responded, “Why?
Why don’t you shut the hell up?”
Later that morning, defendant testified, he and Baby went
to see someone about getting fake identification. The following
day, defendant, Baby, and Carrillo flew to Salt Lake City. The
group lived in a hotel for several weeks and eventually moved to
a family member’s house. Defendant said that he left
periodically, traveling to San Francisco, Portland, Seattle, and
4
Defendant initially refused to identify who was driving the
Jeep after the shooting, but later testified that Clarito Mina was
the driver, not Lee.
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Los Angeles, until he returned to Los Angeles in late 1999.
Defendant claimed that he went into hiding in Salt Lake City
because he refused to go to jail for a crime he did not commit.
Defendant admitted that he “ran” with the Sons of Samoa
gang, but denied being an actual gang member. He
acknowledged that he had been at Quiambao’s house with
Perdon and discussed Johnson’s murder and the shooting of
Masubayashi, but denied ever making the statement to Perdon
that he shot Johnson.
Carrillo’s sister-in-law, Alana Swift Eagle, testified that
Carrillo drank heavily and used methamphetamine daily. She
also related that Carrillo was a dishonest person and a very
manipulative liar.
The defense presented evidence that, despite Carrillo’s
recollection that one of the rounds fired by defendant hit a metal
pole, there was no ballistic evidence recovered from that
vicinity. Additional evidence was introduced suggesting that
the bullet recovered from Johnson’s body would not have been
fired by a Smith & Wesson-manufactured .357 handgun,
although Carrillo maintained that defendant’s gun was made by
Smith & Wesson. However, the criminologist’s earlier
testimony that either a .38 special or a .357 magnum handgun
fired the bullet that killed Johnson was not called into question.
She also testified that many gun parts are interchangeable and
a person could attach a pair of Smith & Wesson grips onto
another brand of gun.
Correctional nurse Jean Huang treated Carrillo for chest
pain when he was incarcerated at the Orange County Jail.
Huang testified that Carrillo had told her that he had been a
frequent methamphetamine user and heavy alcohol drinker.
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Forensic toxicologist Darrell Clardy testified that a person who
consumed as much alcohol and drugs as Carrillo reported would
likely be disoriented, confused, and susceptible to
misinterpreting what was happening.
Shawn Monroe testified that defendant and Carrillo came
to his home in November 1997, at which time Carrillo inquired
about procuring false identification cards. When Monroe asked
Carrillo why the fake identifications were needed, Carrillo
responded that he “just shot some fools in Orange County and
he “need[ed] to leave town.” Defendant instructed Carrillo to
“shut up.” Based on their interaction, Monroe thought that
Carrillo was the shooter.
Quiambao also testified that in 2001 Carrillo admitted
that he was the shooter. However, Quiambao was impeached on
cross-examination by a taped interview with detectives, in
which he stated that defendant was the shooter.
B. Penalty Phase Evidence
1. Prosecution evidence
The prosecution’s case in aggravation included evidence
regarding defendant’s criminal history and victim impact
testimony.
In March 1988, when defendant was in seventh grade, he
exposed himself to two female students and touched their
breasts and buttocks. In June 1991, defendant and three other
individuals robbed Thomas Kinsey. In December 1993,
defendant robbed another person, John Hagen, at gunpoint.
Two of Johnson’s cousins described their close relationship
with him and explained how his death impacted their families’
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lives. Johnson’s girlfriend described the grief and emotional
struggle she felt after Johnson died.
2. Defense evidence
In mitigation, the defense focused on defendant’s family
history, background and character, brain activity, and
adjustment to prison. Concerning these matters, defendant
presented the testimony of several family members as well as
various experts. He also took the stand on his own behalf once
again.
Professor Inoke Funaki testified as an expert witness on
Tongan culture. He described Tongan parenting style as
authoritarian and strict, adding that it is common for Tongan
husbands to physically abuse their wives and children.
Defendant and several of his family members described
the emotional and physical abuse that occurred in defendant’s
home. Defendant’s parents argued constantly, and defendant’s
father often beat his mother. Defendant’s parents also hit
defendant and beat him with a broom handle. Defendant was
described as a loving brother, protective family member, caring,
courteous, and respectful.
Defendant was the target of ridicule in elementary school
because he was bigger than the other children and did not have
nice clothes. He was respectful to his teachers and
administrators in elementary and middle school. Defendant’s
high school football coach described him as kind, polite, and a
good kid. Defendant quit high school in tenth grade and started
working in construction to help his family financially.
In
1992,
defendant
provided
mouth-to-mouth
resuscitation to Monroe when he was shot by a rival gang
member. Defendant befriended a young woman who had felt
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unsafe when she was walking to school and he became a father
figure to her.
Defendant denied robbing Kinsey. He admitted to robbing
Hagen, but testified that he accepted responsibility when
contacted by the police and expressed remorse.
In July 1997, defendant witnessed the murder of his
cousin, Loma Mataele. Defendant was very close to Loma and
was heartbroken by her death. He testified that Loma’s death
“really messed [him] up in the head.”
Following the shooting of Johnson and Masubayashi,
defendant set up weekly family meetings to encourage family
members to better themselves and help each other. Defendant
recognized that he had made mistakes in his own life.
Several experts testified regarding defendant’s brain
function and ability to benefit from life in prison. Dr. Kenneth
Nudleman testified that defendant’s neurological test results
were generally in the normal range, and there were no
structural changes to the brain associated with violent behavior.
Clinical psychologist and neuropsychologist Dr. Timothy
Collister testified that defendant performed well in the
neurological tests he administered, was very intelligent, and
gave straightforward and honest answers. Collister opined that
defendant could benefit from education and rehabilitation.
Dr. Nancy Kaser-Boyd opined that defendant suffered
from attention deficit hyperactivity disorder and posttraumatic
stress disorder, but his above average intelligence, normal brain
function, and relationships would mitigate some of the risk
factors in defendant’s life, including child abuse, domestic
violence, racism, and poverty. Psychopharmacologist
Dr. Ronald Siegel testified regarding the effects of
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methamphetamine, including paranoia, irritability, impulsivity,
psychosis, and delusions resulting from sustained use.
James Esten, a retired employee from the Department of
Corrections and Rehabilitation, testified as a correctional
consultant. Based on his review of defendant’s custodial history
and an interview with defendant, Esten opined that defendant
was suitable for and adaptable to prison life, and was a good
candidate to lead a productive and nonviolent life in prison.
II. DISCUSSION
A. Guilt Phase Issues
1. Excusal of two prospective jurors for cause
Defendant contends the trial court erroneously excluded
two prospective jurors based on their death penalty views in
violation of the constitutional standards set forth in
Witherspoon v. Illinois (1968) 391 U.S. 510 and Wainwright v.
Witt (1985) 469 U.S. 412 (Witt). We conclude that the record
fairly supports the excusals and therefore uphold the trial
court’s rulings.
a. Legal principles
“Under state and federal constitutional principles, a
criminal defendant has the right to be tried by an impartial jury.
(Cal. Const., art. I, § 16; U.S. Const., 6th & 14th Amends.) With
regard to jury selection in a capital case, decisions by this court
and the United States Supreme Court have made clear that
prospective jurors’ personal opposition to the death penalty is
not a sufficient basis on which to remove them from jury service
in a capital case, ‘ “so long as they clearly state that they are
willing to temporarily set aside their own beliefs in deference to
the rule of law.” ’ ” (People v. Schultz (2020) 10 Cal.5th 623, 646
(Schultz).
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“Excusal for cause is permissible, however, when the
prospective juror’s beliefs regarding the death penalty ‘would
“prevent or substantially impair the performance of his [or her]
duties as a juror in accordance with [the court’s] instructions
and [the juror’s] oath.” ’ ” (Schultz, supra, 10 Cal.5th at p. 647,
quoting Witt, supra, 469 U.S. at p. 424.) Although “a prospective
juror may not be excused for cause based on ‘general objections’
or ‘conscientious or religious scruples’ against the death penalty
[citation], excusal is proper when a prospective juror cannot
‘consider and decide the facts impartially and conscientiously
apply the law as charged by the court’ [citation].” (Schultz, at
p. 649.) This rule balances the interest of a criminal defendant,
who “has a right to an impartial jury drawn from a venire that
has not been tilted in favor of capital punishment by selective
prosecutorial challenges for cause,” and the state’s “strong
interest in having jurors who are able to apply capital
punishment within the framework state law prescribes.”
(Uttecht v. Brown (2007) 551 U.S. 1, 9 (Uttecht).
We review a trial court’s determination regarding juror
bias for abuse of discretion. (People v. Jones (2012) 54 Cal.4th
1, 41 (Jones).) “ ‘[A]ppellate courts recognize that a trial judge
who observes and speaks with a prospective juror and hears that
person’s responses (noting, among other things, the person’s
tone of voice, apparent level of confidence, and demeanor),
gleans valuable information that simply does not appear on the
record.’ [Citation.] As such, ‘the reviewing court generally must
defer to the judge who sees and hears the prospective juror, and
who has the “definite impression” that he is biased, despite a
failure to express clear views.’ ” (Ibid.; see also Uttecht, supra,
551 U.S. at p. 9 [“Deference to the trial court is appropriate
because it is in a position to assess the demeanor of the venire,
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and of the individuals who compose it, a factor of critical
importance in assessing the attitude and qualifications of
potential jurors”].
“During voir dire, jurors commonly supply conflicting or
equivocal responses to questions directed at their potential bias
or incapacity to serve. When such conflicting or equivocal
answers are given, the trial court, through its observation of the
juror’s demeanor as well as through its evaluation of the juror’s
verbal responses, is best suited to reach a conclusion regarding
the juror’s actual state of mind. [Citation.] ‘ “ ‘There is no
requirement that a prospective juror’s bias against the death
penalty be proven with unmistakable clarity. [Citations.]
Rather, it is sufficient that the trial judge is left with the definite
impression that a prospective juror would be unable to faithfully
and impartially apply the law in the case before the juror.’ ” ’
[Citation.] ‘[T]he [trial court’s] finding may be upheld even in
the absence of clear statements from the juror that he or she is
impaired because “many veniremen simply cannot be asked
enough questions to reach the point where their bias has been
made ‘unmistakably clear’; these veniremen may not know how
they will react when faced with imposing the death sentence, or
may be unable to articulate, or may wish to hide their true
feelings.” [Citation.] Thus, when there is ambiguity in the
prospective juror’s statements, “the trial court, aided as it
undoubtedly [is] by its assessment of [the venireman’s]
demeanor, [is] entitled to resolve it in favor of the State.” ’ ”
(Jones, supra, 54 Cal.4th at p. 41, quoting Uttecht, supra,
551 U.S. at p. 7; see also People v. Duenas (2012) 55 Cal.4th 1,
10 [“When the prospective juror’s answers on voir dire are
conflicting or equivocal, the trial court’s findings as to the
prospective juror’s state of mind are binding on appellate courts
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if supported by substantial evidence”].) “Even when ‘ “[t]he
precise wording of the question asked of [the venireman], and
the answer he gave, do not by themselves compel the conclusion
that he could not under any circumstance recommend the death
penalty,” the need to defer to the trial court remains because so
much may turn on a potential juror’s demeanor.’ ” (Jones, at
p. 42, quoting Uttecht, at p. 8.
With this standard in mind, we turn to whether the trial
court properly excluded the two prospective jurors in question.
b. Analysis
i. Prospective Juror No. 259
In her questionnaire, Prospective Juror No. 259 signaled
a degree of uncertainty and discomfort regarding the death
penalty. Asked whether there was anything that she wanted to
bring to the court’s attention that might affect her ability to be
a fair and impartial juror in this case, Prospective Juror No. 259
wrote: “Little uncomfortable seeing how young the [two] men
were, and finding out the crime was done [eight] years ago. Just
questioning myself if I can be impartial, without being
sympathetic.” She also stated that she did not believe the death
penalty was a deterrent and that it was for “evil people in the
world, who cannot be reformed” and who “will continue to
murder, with no remorse.” She noted that she used to believe
that the death penalty was “for no one,” but “too many crimes
are [by] repeat murderers.” She also stated that she “d[id]n’t
care for” having the responsibility of deciding whether someone
lives or dies and she “would rather give that responsibility to
someone else.” She added that in deciding whether a person
should receive the penalty, she “would have to be sure that it
serves a purpose — life is too precious for a chosen few to take
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Opinion of the Court by Cantil-Sakauye, C. J.
it away.” She also indicated in her questionnaire, however, that
she would not have a problem voting for the death penalty if she
believed the individual committed the crime willfully and
without remorse and has no chance of being rehabilitated, that
she could set aside her personal feelings and follow the law, and
that she would look at all the criteria before deciding whether to
vote for death or life imprisonment.
During voir dire for the selection of seated jurors,
defendant’s counsel asked Prospective Juror No. 259 how she
felt about sitting in judgment in a case of this nature.
Prospective Juror No. 259 answered, “I’m hoping the
prosecution doesn’t have enough evidence to get to the second
phase.” She added, “I don’t want to see the second phase. I see
two innocent men, and I’m hoping that he doesn’t have enough.”
Defendant’s counsel clarified that Prospective Juror No. 259
should assume a defendant’s innocence before the
commencement of trial, and asked whether, assuming that they
did get to the second phase, she could engage in the weighing
process and consider the appropriate factors. Prospective Juror
No. 259 responded that she could do so and would keep an open
mind.
Counsel for codefendant Lee asked Prospective Juror
No. 259 whether she had concerns about her ability to give her
individual opinion at the end of the case. Prospective Juror
No. 259 stated that she did not, but defense counsel observed
that she had “hesitated a little bit.” Prospective Juror No. 259
responded, “The only thing I have is I just see these men.
They’re just so young.” She added, “I’ve got sons about that age.
Maybe that might taint my view a little bit.” Counsel explained
that it was okay to feel sympathy for the victims and the
defendant, but that it was not okay to have it affect a juror’s
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Opinion of the Court by Cantil-Sakauye, C. J.
decision in the guilt phase. Prospective Juror No. 259 replied,
“I could do that, but it’s going — going to — it’s going to be very
hard.” She reiterated: “It’s something I don’t want to do. I can
do it. I’ve been in trials before where I had to take the facts, but
it’s going to be very hard.”
The prosecutor then questioned Prospective Juror No. 259
about her prior comment that she hoped there would be
insufficient evidence at the guilt phase. Prospective Juror
No. 259 acknowledged that she had said that. She reiterated
that she did not want to get to the penalty phase and hoped the
prosecutor did not have enough evidence. She added: “If you
have enough to convince me, I don’t mind getting to the second
phase. But, you know, if you’re asking me how do I feel about
the second phase, I don’t want to get to the second phase if at all
possible.” She stated that she understood the prosecutor’s cause
for concern, but explained, “I actually think you have the bigger
burden than the other two lawyers. Because I actually see them
as innocent and I actually think you have a bigger burden to tell
me what you believe to make them guilty. And that’s why I say,
yeah, yeah, well, you’re right. I am pulling for them.” She
added: “I’ll tell you right now. Because I don’t want to get to
the second phase. I don’t.” The prosecutor asked, “Because of
the way you feel, do you think that would substantially impair
your ability to render — I use this term that — everybody says
‘I don’t want to say I’m unfair,’ but do you think it would
substantially impair your ability to render a fair verdict, either
at the guilt or the penalty phase?” Prospective Juror No. 259
responded, “Yes.”
The trial court granted the prosecutor’s request to excuse
Prospective Juror No. 259 for cause. The court noted that she
had equivocated in her questionnaire when she stated that she
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“would have to be sure that the death penalty serves a purpose”
and “life is too precious for a chosen few to take it away.” The
court also pointed to her statement in court that she would be
pulling for the defense and subsequent admission that this
would substantially impair her ability to return a death verdict.
Viewed as a whole, Prospective Juror No. 259’s written
and oral responses to questions regarding her ability to impose
the death penalty in this case demonstrated a potential bias.
She acknowledged several times that she was uncomfortable
after seeing how young the defendants were in this case, and
that their age might taint her view and render her biased
toward the defense. She repeatedly and candidly admitted that
she was “pulling for” defendants, and at least six times stated
that she hoped the prosecutor did not have enough evidence to
get to the penalty phase. Above all else, she ultimately admitted
that her views would substantially impair her ability to render
a fair verdict, either at the guilt or penalty phase. We conclude
the trial court acted well within its discretion in excusing
Prospective Juror No. 259.
ii. Prospective Juror No. 190
Prospective Juror No. 190’s questionnaire responses
reflected doubt about her ability to vote for the death penalty.
She wrote that she has “much ambivalence about the death
penalty” and she “[h]ate[s] the death penalty.” When asked
whether she would make any changes to the criminal justice
system, Prospective Juror No. 190 wrote that she would
“eliminate death penalty — speed up system.” In response to a
question regarding whether she would like to bring anything to
the court’s attention that might affect her ability to be a fair and
impartial juror in this case, Prospective Juror No. 190 wrote:
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“Though I am not morally opposed to the death penalty, I would
not vote for it because if a mistake it couldn’t be undone.” She
added that she “formerly considered the death penalty immoral,
but now just am concerned because human error might cause a
wrong decision.” She also wrote that she was “not sure it is our
right” to decide whether defendant should receive the death
penalty. However, she answered in the negative when asked
whether she held an opinion concerning the death penalty that
would make her automatically refuse to vote for the death
penalty in any case. She also checked “Agree Somewhat” in
response to the questionnaire statement “Any person who kills
another should get the death penalty,” adding that although she
was “scared to make a mistake, sometimes it is the only answer.”
She further indicated that she could set aside her personal
feelings regarding what the law ought to be and follow the law
as the court explains it to her.
During voir dire, Prospective Juror No. 190 offered that
she had been “reflecting” since completing the jury
questionnaire and her views had changed. She stated: “And
I found that I — when I filled it out, I thought I was more anti
death penalty than I actually am. I’m coming down more in the
middle.” She added: “Initially when I filled it out, I thought
that I would favor life without parole . . . at all times or in most
circumstances. But in looking at myself, I also think that death
can be a moral decision after examining what I do believe.” She
explained that she “didn’t realize that we would have set factors
to consider. And I’m grateful and relieved that we will, should
we get there.”
Prospective Juror No. 190 also indicated that she “ha[d]
concerns looking at our system as a whole. Whereas 12 people
might find one way, the same exact case, 12 people tomorrow
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Opinion of the Court by Cantil-Sakauye, C. J.
might find another way. So it’s the whole system that concerns
me. In this case, I think I can focus just on this case.” When
asked to clarify, Prospective Juror No. 190 reiterated, “I just
think it’s a flaw in the system.” She later stated, “And I do have
concerns about — for the same reason, because the system is
flawed, that a mistake might be made; but I also think that it
could be certain beyond a reasonable doubt. And I could vote for
the death penalty.”
Later in voir dire, the prosecutor questioned Prospective
Juror No. 190 about her change in attitude regarding the death
penalty. The following colloquy occurred:
“[Prosecutor]: [W]hen I see a juror who says, ‘I could not
vote for [the death penalty],’ and then they completely change
and say, ‘It’s moral, and I could vote for it’ —
“[Prospective Juror No. 190]: Right.
“[Prosecutor]: — Can you understand that I’d be
concerned about that?
“[Prospective Juror No. 190]: Absolutely. I can definitely
understand.
“[Prosecutor]: What is it that you heard that hasn’t just
educated you but it’s made you completely change your mind
about whether you could fairly evaluate evidence and vote for a
death verdict?
“[Prospective Juror No. 190]: When I wrote that, I’m
thinking when — especially when you’re a child. But, as you’re
growing up, even though I wake up in the morning and the news
is that somebody has been put to death for a crime, I just get
sick. I mean I really hate that. And the thought that one person
could have been put to death for a crime they didn’t commit
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Opinion of the Court by Cantil-Sakauye, C. J.
makes me sick. So that was what I was thinking when I wrote
that. However, in my right and wrong, moral and not moral
world, I believe that the death penalty is a valid punishment, a
moral and right punishment. Okay. But I do have those
concerns, maybe I wouldn’t be fair to you or to — you know, if
we got to the penalty phase.
“[Prosecutor]: Okay.
“[Prospective Juror No. 190]: It’s possible.
“[Prosecutor]: Well, that’s — that’s the crux of where I’m
going.
“[Prospective Juror No. 190]: Okay.
“[Prosecutor]: And any time I pick specific questions it’s
all going to the same place ultimately.
“[Prospective Juror No. 190]: Okay.
“[Prosecutor]: So let me ask you: You say maybe you could
be fair. I’ll use one of [defense counsel]’s phrases. . . . Dig deep
and tell me. Could you be fair to both sides or not? Could you —
would your beliefs substantially impair your ability to be a fair
juror in this case?
“[Prospective Juror No. 190]: No.”
In response to further questioning from the prosecutor
regarding her written response questioning whether it was a
juror’s right to impose the death penalty, Prospective Juror
No. 190 stated: “Exactly. Exactly. I’m not sure.” When the
prosecutor pointed out the inconsistency between her written
and voir dire responses, Prospective Juror No. 190 stated, “I’m
not sure it’s our right to take a life, the state’s right to take a
life,” but added, “I am sure it’s right for the state to — that it is
okay for the state to do that. I am sure. I have an emotional
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Opinion of the Court by Cantil-Sakauye, C. J.
reaction, but I’m sure that’s okay.” When the prosecutor asked
her what caused her to change her mind, she responded: “I’m
saying in — where I’m saying there is truth and there is right
and there is morality, that it is moral if — if it’s, you know — if
the truth is found, then it is moral to take a life. However, in
my emotional reaction in my everyday world and knowing that
people are flawed, it would be — it would be — my emotional
reaction is that it’s difficult. It’s — it’s — if a mistake could be
made it would be hard.”
The prosecutor agreed that the job of a capital juror would
be very difficult, but pointed out that Prospective Juror No. 190
wrote on her questionnaire that she hates the death penalty.
She agreed, “I do. I hate that we have to have it.” The
prosecutor responded, “But that’s not what you wrote.” When
Prospective Juror No. 190 was asked whether she believed that
she could be fair and neutral, she responded that she did not
want to be here but she believed she could be fair and neutral.
When asked to confirm that she was neutral now, she
responded: “I hate the death penalty. I hate the death penalty.
I hate that we have to have the death penalty. . . . But I do think
I could vote on it.”
Outside the presence of the jury, defense counsel
expressed concern that the questioning was too extensive and
was becoming adversarial in an effort to establish cause. The
trial court noted that it had granted a challenge for cause raised
by defense counsel the previous day due to an “extreme
inconsistency” between what a prospective juror said in court
and in the questionnaire, and allowed the prosecutor to continue
because Prospective Juror No. 190 was “hugely inconsistent” in
her questionnaire responses compared with her statements
during voir dire.
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Opinion of the Court by Cantil-Sakauye, C. J.
In response to further questioning, Prospective Juror
No. 190 explained that she changed her mind regarding her
ability vote for a death penalty after learning that she could
consider aggravating and mitigating factors. She reiterated
that she would rather not have to impose the death penalty, but
it was her position “right now” that she would be neutral. When
asked whether she would be pulling for one side or the other at
the beginning of the penalty phase, she responded: “I . . . would
rather not have to — I think I probably would rather not have
to impose the death penalty.” The prosecutor asked whether
that meant she would be “pulling for the defendant,
Mr. Mataele, hoping that there would be insufficient evidence.”
She conceded, “I probably would. I would probably hope that
I would be able to weigh the factors honestly in favor of the
defendant.”
The trial court granted the prosecutor’s request to excuse
Prospective Juror No. 190 for cause. The court explained:
“I have already commented that she’s equivocal on this and
hugely inconsistent, and her credibility with me in open court is
shattered. I do not believe her when she says that she could be
a fair and impartial juror. She’s all over the map. Her
statements and her [jury] questionnaire are straightforward
and dramatic in terms of her opposition to the death penalty and
when she said she would not vote for the death penalty. So, for
all those reasons, the challenge for cause on [Prospective Juror
No.] 190 is granted.”
We conclude that substantial evidence supports the trial
court’s conclusion that Prospective Juror No. 190’s views
regarding capital punishment would prevent or substantially
impair the performance of her duties as a juror. She indicated
in her questionnaire response that she would not vote for death
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Opinion of the Court by Cantil-Sakauye, C. J.
because if it were a mistake it could not be undone, and
expressed concern that human error could result in the wrong
decision. Several times during voir dire, she repeated her
concerns regarding the possibility of a mistake being made and
acknowledged that she might not be fair to the prosecutor at the
penalty phase and that she probably would be pulling for the
defendant. Although she also stated during voir dire that she
thought she could vote for the death penalty and that her views
had evolved since completing the jury questionnaire, the trial
court found her to be “hugely inconsistent” and equivocal, and
stated that it did not believe her when she said that she could
be a fair and impartial juror.
As the high court has observed, “[t]he judgment as to
‘whether a venireman is biased . . . is based upon
determinations of demeanor and credibility that are peculiarly
within a trial judge’s province. Such determinations [are]
entitled to deference . . . on direct review[.]’ ” (Uttecht, supra,
551 U.S. at p. 7.) In Witt, the Supreme Court reaffirmed that
“ ‘[t]he manner of the juror while testifying is oftentimes more
indicative of the real character of his opinion than his words.
That is seen below, but cannot always be spread upon the record.
Care should, therefore, be taken in the reviewing court not to
reverse the ruling below upon a such a question of fact, except
in a clear case.’ ” (Witt, supra, 469 U.S. at p. 428, fn. 9.) Given
Prospective Juror No. 190’s conflicting responses and the court’s
determination that she was equivocal and not credible when she
said she could impose the death penalty, we must defer to the
trial court, which “was in the best position to determine which
of these two conflicting versions represented [the prospective
juror’s] true state of mind.” (People v. Cowan (2010) 50 Cal.4th
401, 441 (Cowan); see Jones, supra, 54 Cal.4th at p. 43 [holding
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Opinion of the Court by Cantil-Sakauye, C. J.
that the prospective juror’s “equivocation in response to
questioning requires that we defer to the trial court’s
assessment of her initial and ultimate state of mind”]; People v.
Martinez (2009) 47 Cal.4th 399, 431–432 [when prospective
juror has made statements that support exclusion for cause, the
fact that the juror also made statements that might have
warranted retaining her on the jury does not change the
conclusion that substantial evidence supports the trial court’s
ruling]; People v. Merriman (2014) 60 Cal.4th 1, 55–56
(Merriman) [“Having assessed [the prospective juror’s]
demeanor firsthand during questioning, the trial court could
properly find the questionnaire responses the better reflection
of [the juror’s] true state of mind”].) Accordingly, we conclude
the court acted within its discretion in excusing Prospective
Juror No. 190.
2. Constitutionality of substantial impairment
standard for determining juror bias in capital
cases
Relatedly, defendant contends that the “substantial
impairment” standard used for determining jury bias in capital
cases violates his right to an impartial jury, thereby requiring
reversal of his death judgment. We disagree.
The Sixth Amendment of the United States Constitution
guarantees the right of a defendant in all criminal prosecutions
to a trial by an “impartial jury.” (U.S. Const., 6th Amend.) The
California Constitution independently guarantees the right to
trial by an impartial jury. (Cal. Const., art. I, § 16; see People v.
Thomas (2011) 51 Cal.4th 449, 462 (Thomas).) “The Sixth
Amendment right to an impartial jury and the due process right
to a fundamentally fair trial guarantee to criminal defendants a
trial in which jurors set aside preconceptions, disregard
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extrajudicial influences, and decide guilt or innocence ‘based on
the evidence presented in court.’ ” (Skilling v. United States
(2010) 561 U.S. 358, 438.) “[P]art of the guarantee of a
defendant’s right to an impartial jury is an adequate voir dire to
identify unqualified jurors. [Citations.] ‘Voir dire plays a
critical function in assuring the criminal defendant that his
[constitutional] right to an impartial jury will be honored.
Without an adequate voir dire the trial judge’s responsibility to
remove prospective jurors who will not be able impartially to
follow the court’s instructions and evaluate the evidence cannot
be fulfilled.’ ” (Morgan v. Illinois (1992) 504 U.S. 719, 729–730,
italics omitted.
“In Witherspoon v. Illinois [ ], the United States Supreme
Court held that a prospective juror cannot be excused for cause
based on his or her views on capital punishment without
violating a defendant’s right to an impartial jury under the
Sixth Amendment, unless, as is pertinent here, the prospective
juror made it ‘unmistakably clear’ that he or she would
‘automatically vote against the imposition of capital punishment
without regard to any evidence that might be developed at the
trial of the case . . . .’ [Citation.] In Wainwright v. Witt [ ],
however, the court revisited Witherspoon and declared that the
proper standard was ‘whether the [prospective] juror’s views
would “prevent or substantially impair the performance of his
duties as a juror in accordance with his instructions and his
oath.” ’ ” (People v. Griffin (2004) 33 Cal.4th 536, 558 (Griffin),
overruled on another ground by People v. Riccardi (2012
54 Cal.4th 758, 824, fn. 32.
The high court has on numerous occasions reaffirmed
Witt’s substantial impairment standard in determining jury
bias in capital cases. (E.g., Uttecht, supra, 551 U.S. at p. 9;
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Morgan v. Illinois, supra, 504 U.S. at p. 728; Gray v. Mississippi
(1987) 481 U.S. 648, 658.) In Uttecht, the court reviewed its
jurisprudence in this area, concluding: “These precedents
establish at least four principles of relevance here. First, a
criminal defendant has the right to an impartial jury drawn
from a venire that has not been tilted in favor of capital
punishment by selective prosecutorial challenges for cause.
[Citation.] Second, the State has a strong interest in having
jurors who are able to apply capital punishment within the
framework state law prescribes. [Citation.] Third, to balance
these interests, a juror who is substantially impaired in his or
her ability to impose the death penalty under the state-law
framework can be excused for cause; but if the juror is not
substantially impaired, removal for cause is impermissible.
[Citation.] Fourth, in determining whether the removal of a
potential juror would vindicate the State’s interest without
violating the defendant’s right, the trial court makes a judgment
based in part on the demeanor of the juror, a judgment owed
deference by reviewing courts.” (Uttecht, at p. 9.
Defendant argues that the substantial impairment
standard is improperly premised on balancing the competing
interests of the State and the defendant, rather than the
intentions of the framers of the United States Constitution. In
making this argument, defendant relies upon several recent
United States Supreme Court decisions addressing the Sixth
Amendment, in which that court emphasized the need to
interpret that provision in light of its historical context. (Alleyne
v. United States (2013) 570 U.S. 99; Blakely v. Washington
(2004) 542 U.S. 296; Crawford v. Washington (2004) 541 U.S.
36; Ring v. Arizona (2002) 536 U.S. 584; Apprendi v. New Jersey
(1999) 530 U.S. 466; Jones v. United States (1999) 526 U.S. 227.
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Opinion of the Court by Cantil-Sakauye, C. J.
As a threshold matter, we are mindful that the high
court’s interpretation of the appropriate standard for
determining jury bias in capital cases under the Sixth
Amendment is binding on this court. (People v. Taylor (2009
47 Cal.4th 850, 865, fn. 7 [“Because, as defendant recognizes,
this court cannot overrule a decision of the United States
Supreme Court, we do not address his attack on Faretta [v.
California (1975) 422 U.S. 806]”]; Stock v. Plunkett (1919
181 Cal. 193, 194–195 [decisions of the United States Supreme
Court involving a federal question are binding on this court].
This is so even if we were to agree with defendant that
subsequent decisions by that court have called into question
whether the substantial impairment standard is consistent with
the Sixth Amendment right to an impartial jury. (See Hohn v.
United States (1998) 524 U.S. 236, 253 [United States Supreme
Court decisions remain binding precedent until high court
“see[s] fit to reconsider them, regardless of whether subsequent
cases have raised doubts about their continued vitality”].
Moreover, the Supreme Court has reaffirmed the substantial
impairment standard even after issuing the Sixth Amendment
decisions cited by defendant. (White v. Wheeler (2015) 577 U.S.
73, 77 [“ ‘a juror who is substantially impaired in his or her
ability to impose the death penalty under the state-law
framework can be excused for cause’ ”]; Uttecht, supra, 551 U.S.
at p. 9.) Accordingly, Witt’s substantial impairment standard
remains binding on this court, and we are not at liberty to
consider defendant’s federal claim any further.
Nor do we find convincing defendant’s corresponding
contention that the substantial impairment standard violates
his right to trial by an impartial jury under the state
Constitution. “In People v. Ghent (1987) 43 Cal.3d 739, 767, we
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adopted the Witt standard as the test for determining whether
a defendant’s right to an impartial jury under article I, section
16 of the state Constitution was violated by an excusal for cause
based on a prospective juror’s views on capital punishment.”
(Griffin, supra, 33 Cal.4th at p. 558; Thomas, supra, 51 Cal.4th
at p. 462 [same]; People v. Lancaster (2007) 41 Cal.4th 50, 78
[“Under the applicable state and federal constitutional
provisions, prospective jurors may be excused for cause if their
views would prevent or substantially impair the performance of
their duties”].) Defendant offers no persuasive reason for us to
reconsider whether this standard is consistent with the state
Constitution’s impartial jury guarantee.
For the reasons mentioned above, we conclude that the
substantial impairment standard violates neither the federal
nor state Constitutions.
3. Denial of defendant’s motion to dismiss charges
Defendant contends the nearly four-year interval between
the shootings and the filing of an amended felony complaint was
unjustified and prejudiced his ability to defend against the
charges, thereby violating his due process rights under the state
and federal Constitutions. We find no constitutional violation.
a. Background
Johnson and Masubayashi were shot just after midnight
on November 12, 1997, but defendant was not criminally
charged with the resulting offenses until October 2001. Before
trial, defendant moved to dismiss the charges against him,
arguing the passage of time between the shootings and the filing
of charges violated his right to due process because it resulted
in the unavailability of exculpatory witnesses and the loss of
evidence material to his defense. Specifically, defendant
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claimed the asserted delay prejudiced his ability to locate
witnesses and present other evidence to challenge the credibility
of Carrillo and Quiambao. Defendant argued that the
prosecution possessed evidence that he was the shooter based
on Masubayashi’s statements to police shortly after the shooting
occurred, and could have pursued charges at that time.
The trial court reserved ruling on the motion until the
conclusion of the penalty phase. Following trial, the court
denied the motion, determining that the asserted prefiling delay
had not prejudiced defendant. It also found that any “delay” was
caused by defendant’s flight from the crime scene and
subsequent escape to Utah with Carrillo; his procurement of
false identification documents and threatening witnesses who
were involved in the case to get them to say nothing to the police;
Lee and Chung giving false cross-alibis to the police the day
after the shooting; the initial equivocation of Masubayashi
regarding the driver of the Jeep; and legitimate police
investigation in an effort to gather sufficient evidence to prove
the case in court beyond a reasonable doubt, which was made
more difficult because many of the material witnesses were
admitted gang members.
b. Discussion
“The due process clauses of the Fifth and Fourteenth
Amendments to the United States Constitution and article I,
section 15 of the California Constitution protect a defendant
from the prejudicial effects of lengthy, unjustified delay between
the commission of a crime and the defendant’s arrest and
charging.” (Cowan, supra, 50 Cal.4th at p. 430.) A defendant
seeking to dismiss a charge on this ground must first
demonstrate prejudice arising from the delay, “such as by
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showing the loss of a material witness or other missing evidence,
or fading memory caused by the lapse of time.” (People v. Abel
(2012) 53 Cal.4th 891, 908, (Abel).) “ ‘The prosecution may offer
justification for the delay, and the court considering a motion to
dismiss balances the harm to the defendant against the
justification for the delay.’ ” (People v. Nelson (2008) 43 Cal.4th
1242, 1250 (Nelson), quoting People v. Catlin (2001) 26 Cal.4th
81, 107.) However, “[i]f the defendant fails to meet his or her
burden of showing prejudice, there is no need to determine
whether the delay was justified.” (Abel, at p. 909; see id., at
pp. 908–909 [“Prejudice to a defendant from precharging delay
is not presumed”].
The state and federal constitutional standards regarding
what justifies “delay” differ. (Nelson, supra, 43 Cal.4th at
p. 1251.) However, because the law under the California
Constitution is at least as favorable to defendant as federal law
in this regard, we apply California law to defendant’s claim.
(Ibid.; Abel, supra, 53 Cal.4th at p. 909, fn. 1.
“[U]nder California law, negligent, as well as purposeful,
delay in bringing charges may, when accompanied by a showing
of prejudice, violate due process.” (Nelson, supra, 43 Cal.4th at
p. 1255.) “[W]hether the delay was negligent or purposeful is
relevant to the balancing process. Purposeful delay to gain an
advantage is totally unjustified, and a relatively weak showing
of prejudice would suffice to tip the scales towards finding a due
process violation. If the delay was merely negligent, a greater
showing of prejudice would be required to establish a due
process violation.” (Id., at p. 1256.) “The justification for the
delay is strong when there is ‘investigative delay, [and] nothing
else.’ ” (Cowan, supra, 50 Cal.4th at p. 431.) “A court should not
second-guess the prosecution’s decision regarding whether
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PEOPLE v. MATAELE
Opinion of the Court by Cantil-Sakauye, C. J.
sufficient evidence exists to warrant bringing charges. ‘The due
process clause does not permit courts to abort criminal
prosecutions simply because they disagree with a prosecutor’s
judgment as to when to seek an indictment. . . . Prosecutors are
under no duty to file charges as soon as probable cause exists
but before they are satisfied they will be able to establish the
suspect’s guilt beyond a reasonable doubt.’ ” (Nelson, at
p. 1256.
“We review for abuse of discretion a trial court’s ruling on
a motion to dismiss for prejudicial prearrest delay [citation], and
defer to any underlying factual findings if substantial evidence
supports them [citation].” (Cowan, supra, 50 Cal.4th at p. 431.
Because the trial court deferred ruling on defendant’s motion to
dismiss until after the trial had concluded, we will consider all
evidence that was before the court up to that time. (Ibid.) Thus,
evidence presented at trial may be used to support or reject
defendant’s assertion of unjustified prejudice.
Defendant first claims prejudice from Detective Guy
Reneau’s unavailability at trial due to health problems,
meaning the defense could not examine him about statements
Masubayashi had made. Detective Reneau was the original lead
investigator on the case. He had interviewed Masubayashi at
the hospital on November 12, 1997, and again at Masubayashi’s
home on November 18, 1997. At the hospital, when Reneau first
asked Masubayashi who shot him, Masubayashi said, “I don’t,
I don’t know.” When asked again, Masubayashi said it was
defendant. One week later, Masubayashi told Reneau that he
recalled seeing an arm with defendant’s flannel shirt inside
Masubayashi’s car when he was shot. These interviews were
recorded and made available to the defense. Reneau was
subsequently placed on medical leave and was not among the
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Opinion of the Court by Cantil-Sakauye, C. J.
officers who interviewed Masubayashi when he went to the
police in April 2000. Notwithstanding Reneau’s absence from
trial, the defense questioned Masubayashi at the guilt phase
regarding his prior statements to the detective.
We find that defendant has not demonstrated that the
passage of time between the offenses and filing charges
prejudiced him in this respect. Defendant had access to the
taped interviews and transcripts of Reneau’s interviews of
Masubayashi, and he questioned Masubayashi extensively at
trial regarding his prior statements. To the extent
Masubayashi’s interview with Reneau conflicted with
Masubayashi’s testimony, defendant was able to point out the
inconsistencies to the jury without Reneau testifying. To the
extent defendant claims that Reneau could have shed additional
light on Masubayashi’s statements in the taped interviews, his
claim is speculative and unsupported by proof of actual
prejudice. (People v. Alexander (2010) 49 Cal.4th 846, 875
(Alexander).
Defendant further complains that the passage of time
before charges were brought prevented him from acquiring
evidence to impeach Carrillo’s and Quiambao’s credibility. In
the trial court, defense counsel alleged that Carrillo was
“engaged in various nefarious activities including bank fraud,
money laundering, drug manufacturing and drug sales,” but the
asserted prefiling delay prevented the defense from “locating
and interviewing witnesses who could offer evidence attacking
his credibility by showing his character for dishonesty, the
existence of his bias interest, and motive against
defendant . . . .” Defense counsel alleged that in light of “the
substantial delay in prosecution, the defense is unable to locate
and interview Quiambao because he has changed his life around
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PEOPLE v. MATAELE
Opinion of the Court by Cantil-Sakauye, C. J.
and joined the United States Navy and is geographically
unavailable to the defense.” These speculative claims do not
amount to a showing of actual prejudice. (People v. Jones (2013
57 Cal.4th 899, 923.) Moreover, Carrillo and Quiambao testified
at trial and defense counsel was able to challenge their
credibility through their prior inconsistent statements, habitual
drug use, and gang involvement.
Defendant argues that the asserted prefiling delay caused
eyewitness Matthew Towne to become unavailable to testify at
the guilt phase of trial. As noted previously, Towne was one of
three bystanders positioned outside of the Gateway Urgent Care
Clinic who saw the shooter. According to defense counsel’s offers
of proof made at the guilt and penalty phases (the circumstances
surrounding which will be described in more detail post), Towne
would have testified that he saw a shooter with a thin build in
the parking lot across the street. At the time of the shooting,
defendant weighed more than 300 pounds; Carrillo was closer to
160 pounds.
We conclude that Towne’s unavailability at the guilt phase
of trial was not caused by any delay in bringing the charges.
Rather, the defense temporarily lost communication with Towne
sometime after charges were filed, for reasons having no
apparent connection to any pretrial delay. A private
investigator for the defense first contacted Towne in February
2004, more than two years after defendant had been charged, at
which time Towne agreed to testify whenever necessary. In
November 2004, Towne moved from Indiana to Nevada, and he
provided the investigator with a current address and telephone
number. The investigator conducted a second recorded
interview with Towne by telephone on January 15, 2005.
However, in April 2005, the investigator was unable to reach
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Opinion of the Court by Cantil-Sakauye, C. J.
Towne using the number provided, and he did not regain contact
with Towne until August 2005. At a hearing on the motion to
dismiss, the investigator stated that he chose not to compel
Towne’s attendance at trial through interstate compact because
Towne had always been a cooperative witness and the
investigator thought compulsion was unnecessary and would
only alienate Towne. Thus, even assuming Towne’s testimony
could have served any evidentiary purpose, no connection exists
between Towne’s unavailability and the passage of time before
bringing the charges. (Alexander, supra, 49 Cal.4th at p. 877.
Defendant next contends the asserted prefiling delay
impaired the defense effort to call witness Perdon to testify that
defendant never made a comment to her in which he bragged
about shooting Johnson. As will be described post, defendant’s
alleged statement to Perdon, which Perdon then relayed to
Masubayashi, was admitted notwithstanding the hearsay rule
as an admission by a party opponent (Evid. Code, § 1220) within
a prior inconsistent statement (id., § 1235). Contemporaneous
police reports documented Perdon’s interview from April 2000,
and Perdon testified that she told police what she knew to be
true at that time and that the incident was fresher in her mind
in 2000 than 2005.
As we have held, prejudice from fading witness memories
due to passage of time is diminished where contemporaneous
police reports exist that may be introduced into evidence or used
to refresh the witness’s recollection. (Scherling v. Superior
Court (1978) 22 Cal.3d 493, 506.) Thus, Perdon’s ability at trial
to independently recall a conversation that took place between
her and defendant was not critical to the prosecution’s case.
Moreover, as will also be described post, the trial court found
that Perdon’s inability to recall whether defendant admitted to
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Opinion of the Court by Cantil-Sakauye, C. J.
killing Johnson was evasive and untruthful. Therefore, the trial
court’s ruling suggests that Perdon’s professed inability to recall
defendant’s inflammatory statement was not based on the
passage of time. Furthermore, Perdon’s testimony was “not of
crucial significance” to the prosecution’s case, which rested
primarily on the testimony of Masubayashi, Carrillo, and
Quiambao. (Ibid.
In sum, defendant’s claims of prejudice are speculative
and inadequately supported. Accordingly, we conclude the trial
court acted within its discretion when it denied defendant’s
motion to dismiss for lack of prejudice. Because we conclude the
trial court properly found defendant was not prejudiced by the
passage of time, there is no need to address defendant’s further
argument challenging the prosecutor’s justifications for any
asserted delay.
4. Exclusion of Towne’s hearsay statements
As noted, eyewitness Towne could not be located at the
time of the guilt phase trial. Defendant contends the trial court
abused its discretion when it excluded Towne’s out-of-court
statements describing the shooter in a manner that was
inconsistent with defendant’s build on the night in question.
Defendant asserts the statements should have been admitted
under the spontaneous statement exception to the hearsay rule.
(Evid. Code, § 1240.) We conclude there was no error.
Officer Terrance Bowers interviewed Towne shortly after
the shooting occurred. Towne told Bowers that he saw a thin
male, approximately five feet and eight inches to six feet tall,
walking through the parking lot away from the driver’s door of
Masubayashi’s car and firing three to four gunshots in an
eastbound direction. Defendant sought to introduce Towne’s
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PEOPLE v. MATAELE
Opinion of the Court by Cantil-Sakauye, C. J.
statements to Bowers as spontaneous statements. After the
prosecution objected on hearsay grounds, the trial court
conducted a hearing to determine the admissibility of the
statements.
At this hearing, Officer Bowers testified that he arrived at
the scene of the shooting approximately five to 10 minutes after
it occurred. There were groups of people standing around,
including Fowler and Towne, who had told other police officers
they had seen something and had been directed to wait at the
scene until officers could speak with them. Upon arrival,
Bowers spent a few minutes assisting Officer Heinzel with the
homicide scene. The officers agreed that Bowers would speak
with Fowler and Towne while Heinzel would speak with other
individuals. Bowers addressed Fowler, and then Towne.
Bowers asked Towne what he had heard and seen. Bowers
recalled that Towne appeared to be “nervous” and “a little
visibly shaken” during the interview, but he could not recall
anything specific that made him think Towne was nervous or
anything else about Towne’s demeanor. In response to further
questioning, Bowers stated that he would not describe Towne as
appearing upset.
The trial court sustained the prosecution’s hearsay
objection to the admission of Towne’s statements. The court
explained, “I don’t think the fact that a witness is nervous
qualifies as a spontaneous declaration . . . where the Code
requires that the statement . . . ‘was made spontaneously while
the declarant was under the stress of excitement caused by such
perception.’ ” The court added, “This seems to be common
nervousness and nothing more. It is almost like any other
witness interview in the sense that just the mere presence of a
40
PEOPLE v. MATAELE
Opinion of the Court by Cantil-Sakauye, C. J.
police officer could cause somebody to become nervous. It
doesn’t qualify.”
Evidence Code section 1240 provides: “Evidence of a
statement is not made inadmissible by the hearsay rule if the
statement: [¶] (a) Purports to narrate, describe, or explain an
act, condition, or event perceived by the declarant; and [¶]
(b) Was made spontaneously while the declarant was under the
stress of excitement caused by such perception.” For an out-of-
court statement to fall within the spontaneous statement
exception to the hearsay rule, “ ‘(1) there must be some
occurrence startling enough to produce this nervous excitement
and render the utterance spontaneous and unreflecting; (2) the
utterance must have been before there has been time to contrive
and misrepresent, i.e., while the nervous excitement may be
supposed still to dominate and the reflective powers to be yet in
abeyance; and (3) the utterance must relate to the circumstance
of the occurrence preceding it.’ ” (People v. Poggi (1988
45 Cal.3d 306, 318 (Poggi).
“The crucial element in determining whether a declaration
is sufficiently reliable to be admissible under this exception to
the hearsay rule is . . . the mental state of the speaker.” (People
v. Farmer (1989) 47 Cal.3d 888, 903 (Farmer), abrogated on
other grounds by People v. Waidla (2000) 22 Cal.4th 690.
“A number of factors may inform the court’s inquiry as to
whether the statement in question was made while the
declarant was still under the stress and excitement of the
startling event and before there was ‘time to contrive and
misrepresent[,]’ ” such as “the passage of time between the
startling event and the statement, whether the declarant
blurted out the statement or made it in response to questioning,
the declarant’s emotional state and physical condition at the
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Opinion of the Court by Cantil-Sakauye, C. J.
time of making the statement, and whether the content of the
statement suggested an opportunity for reflection and
fabrication.” (Merriman, supra, 60 Cal.4th at p. 64.
“Whether the requirements of the spontaneous statement
exception are satisfied in any given case is, in general, largely a
question of fact.” (Poggi, supra, 45 Cal.3d at p. 318.) We review
the trial court’s ruling concerning whether a hearsay statement
falls within the spontaneous statement exception for abuse of
discretion. (People v. Lynch (2010) 50 Cal.4th 693, 752 (Lynch),
abrogated on other grounds by People v. McKinnon (2011
52 Cal.4th 610.) “ ‘[T]he discretion of the trial court is at its
broadest’ when it determines whether an utterance was made
while the declarant was still in a state of nervous excitement.”
(Thomas, supra, 51 Cal.4th at p. 496.
We have “rarely held” that answers to extensive
questioning by police officers constitute spontaneous
statements. (Farmer, supra, 47 Cal.3d at p. 904.) In such cases,
we have emphasized that the declarant was the victim of the
crime and made the identifying remarks while under the stress
of excitement caused by experiencing the crime. (Ibid.; see also
People v. Morrison (2004) 34 Cal.4th 698, 719 (Morrison).
Indeed, we held that the trial court abused its discretion when
it admitted as a spontaneous utterance the statements made by
the victim of an attack when her description of the crime was
comprehensive, made in response to questioning, and there was
no evidence that the victim “was excited or frightened when she
spoke, or that her physical condition at the time of her
statements precluded deliberation.” (Lynch, supra, 50 Cal.4th
at p. 754.) We also have cautioned against finding a
spontaneous statement when the declarant was “merely an
uninjured witness whose excitement might wane — and would
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Opinion of the Court by Cantil-Sakauye, C. J.
thus be in a position to fabricate answers — through the
sobering interrogation of an investigator.” (Farmer, at p. 904.
We conclude that the trial court did not abuse its
discretion when it ruled that Towne’s statements to Officer
Bowers did not meet the requirements of the spontaneous
statement exception because the statements were not made
while Towne was under the stress of excitement caused by the
shooting. As noted earlier, Bowers arrived at the scene
approximately five to 10 minutes after the shooting. At that
time, Towne, Fowler, and other individuals were standing
around in groups waiting to be interviewed by police officers.
Although the extent of Towne’s prior communication with other
police officers is unclear, it is uncontroverted that he and Fowler
had told other officers that they had seen something and were
instructed to wait for further questioning. After Bowers spent a
few minutes assisting Officer Heinzel with the murder scene, he
spoke with Fowler separately, and then with Towne. Towne
made the statements in response to Bower’s questions regarding
what he had seen and heard. Bowers testified that Towne
appeared nervous and a little visibly shaken, but not necessarily
upset, and he could not recall anything specific that made him
describe Towne as nervous. Given that the discretion of the trial
court “ ‘is at its broadest’ ” when it determines the declarant’s
mental state (Thomas, supra, 51 Cal.4th at p. 496), on this
record we cannot conclude that the trial court abused its
discretion when it excluded Towne’s statements as inadmissible
hearsay.5
5
The cases cited by defendant do not suggest a different
result, as they either involve statements made by a victim
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PEOPLE v. MATAELE
Opinion of the Court by Cantil-Sakauye, C. J.
5. Exclusion of Carrillo’s hearsay statements
Defendant asserts the trial court abused its discretion
when it excluded as inadmissible hearsay an out-of-court
statement purportedly made by Carrillo to his sister-in-law,
Alana Swift Eagle. We find no error.
Eagle was called as a defense witness. Defense counsel
sought to introduce statements that Carrillo made to Eagle in
2001 when Eagle saw Carrillo on a jail bus. Specifically, Eagle
asked Carrillo if he had killed Johnson, and Carrillo responded
that “everything points to T-Strong” and Carrillo was “going to
run with that.” The prosecution objected on hearsay grounds.
(Morrison, supra, 34 Cal.4th at p. 719 [victim identified
defendants minutes after she was shot multiple times]; Thomas,
supra, 51 Cal.4th at p. 496 [victim “identified defendant minutes
after he was attacked when he still was bleeding and ‘obviously
distressed’ ”]) or an uninjured eyewitness whose demeanor left
no doubt that the person was still reacting to the event (People
v. Blacksher (2011) 52 Cal.4th 769, 810 [declarant was
“hysterical” when she spoke with police officer]; People v. Brown
(2003) 31 Cal.4th 518, 541 [trial court’s finding that the
declarant was still reacting to the events when he made his
statement to his sister-in-law was supported by evidence that
“he could not stop his body from shaking nor stem the flow of
tears”]). Furthermore, in each of these cases we upheld the trial
court’s ruling on the statements in question under an abuse of
discretion standard. Even if the circumstances in which the
statements were made bear certain similarities to the
circumstances in which Towne made his statements, it is not
incongruous to determine that the trial court here also acted
within its discretion when it excluded Towne’s statements. (See
People v. Liggins (2020) 53 Cal.App.5th 55, 63–64 [“Faced with
two competing interpretations of the record, the standard of
review decides the issue. On appeal, we cannot second-guess
the trial court’s assessment of the evidence in determining [the
declarant’s] state of mind”].
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PEOPLE v. MATAELE
Opinion of the Court by Cantil-Sakauye, C. J.
Defense counsel argued that Carrillo’s statement was
admissible as a prior inconsistent statement because he had
testified during the prosecution’s case-in-chief that defendant
shot Johnson. The trial court excluded the statement for a
variety of reasons, ruling that it constituted inadmissible
hearsay, it was too ambiguous to be relevant, and its prejudicial
effect outweighed its probative value.
“A hearsay objection to an out-of-court statement may not
be overruled simply by identifying a nonhearsay purpose for
admitting the statement. The trial court must also find that the
nonhearsay purpose is relevant to an issue in dispute.” (People
v. Armendariz (1984) 37 Cal.3d 573, 585.) “Relevant evidence is
evidence ‘having any tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the
action.’ ” (People v. Jablonski (2006) 37 Cal.4th 774, 821.
“Under Evidence Code section 352, a trial court may exclude
otherwise relevant evidence when its probative value is
substantially outweighed by concerns of undue prejudice,
confusion, or consumption of time. ‘Evidence is substantially
more prejudicial than probative [citation] if, broadly stated, it
poses an intolerable “risk to the fairness of the proceedings or
the reliability of the outcome [citation].” ’ ” (People v. Riggs
(2008) 44 Cal.4th 248, 290 (Riggs).
“The proponent of proffered testimony has the burden of
establishing its relevance, and if the testimony is comprised of
hearsay, the foundational requirements for its admissibility
under an exception to the hearsay rule. [Citations.] Evidence
is properly excluded when the proponent fails to make an
adequate offer of proof regarding the relevance or admissibility
of the evidence.” (Morrison, supra, 34 Cal.4th at p. 724.
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Opinion of the Court by Cantil-Sakauye, C. J.
Notwithstanding the general rule that hearsay is
inadmissible for its truth, “[a] statement by a witness that is
inconsistent with his or her trial testimony is admissible to
establish the truth of the matter asserted in the statement
under the conditions set forth in Evidence Code sections 1235
and 770. The ‘fundamental requirement’ of section 1235 is that
the statement in fact be inconsistent with the witness’s trial
testimony.” (People v. Johnson (1992) 3 Cal.4th 1183, 1219,
fn. omitted (Johnson).
We review the trial court’s rulings regarding the
admissibility of the evidence for an abuse of discretion. (Riggs,
supra, 44 Cal.4th at p. 290.) A trial court’s decision to admit or
exclude evidence “ ‘ “will not be disturbed unless there is a
showing that the trial court acted in an arbitrary, capricious, or
absurd manner resulting in a miscarriage of justice.” ’ ” (People
v. Nieves (2021) 11 Cal.5th 404, 445; People v. Rodriguez (1999
20 Cal.4th 1, 9–10.) “This standard of review affords
considerable deference to the trial court provided that the court
acted in accordance with the governing rules of law. We
presume that the court properly applied the law and acted
within its discretion unless the appellant affirmatively shows
otherwise.” (Mejia v. City of Los Angeles (2007) 156 Cal.App.4th
151, 158.
Under this deferential standard of review, we conclude
that the trial court acted within its discretion when it excluded
Carrillo’s statement. At trial, Carrillo testified that defendant
shot Johnson. He also gave detailed testimony regarding his
involvement in the events leading to the shooting. Defendant
asserts that Carrillo’s alleged statement to Eagle that
“everything pointed to T-Strong” being the shooter and he was
“going to run with that” allowed for an inference that Carrillo
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Opinion of the Court by Cantil-Sakauye, C. J.
himself shot Johnson, conflicting with his testimony. But the
statement’s ambiguity accommodates a more plausible
interpretation, and one consistent with Carrillo’s testimony, as
another identification of defendant as Johnson’s assailant.
(People v. Najera (2006) 138 Cal.App.4th 212, 218–219; see also
People v. Guillen (2014) 227 Cal.App.4th 934, 1024 [trial court
properly excluded ambiguous statements as having little
probative value, contrary to defendant’s claim that the
statements implied a third party authorized the attack]; People
v. Frye (1985) 166 Cal.App.3d 941, 951.) “Facing ‘two competing
interpretations of the record, the standard of review decides the
issue.’ [Citation.] Since the evidence can reasonably be
interpreted either way, we cannot say the trial court abused its
discretion to rule as it did.” (People v. Roberts (2021
65 Cal.App.5th 469, 477.
Moreover, “[t]he statement’s ambiguity, and the weakness
of the inference favorable to [defendant], not only diminished
the statement’s relevance, but enhanced the risk its admission
would have misled the jury.” (Najera, supra, 138 Cal.App.4th at
pp. 218–219.) As such, we conclude that “[i]n excluding the
statement, the trial court did not exercise its discretion ‘ “in an
arbitrary, capricious or patently absurd manner that resulted in
a manifest miscarriage of justice.” ’ ” (Id., at p. 219.
6. Admission of defendant’s statement to Perdon
Defendant contends the trial court abused its discretion
when it permitted Masubayashi to testify regarding Perdon’s
statement to him that defendant had bragged about killing
Johnson, notwithstanding the hearsay character of this
testimony. Again, we find no error.
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Opinion of the Court by Cantil-Sakauye, C. J.
Shortly before trial, District Attorney Investigator Gary
Hendricks interviewed Masubayashi. During the interview,
Masubayashi told Hendricks that in 2000, just before
Masubayashi went to the Anaheim Police Department, Perdon
advised him that defendant had told her, “I came in my pants
when I saw that nigger flop.” Defendant was referring to
Johnson when he purportedly made this statement. Neither
Masubayashi nor Perdon had disclosed this statement in any
prior interview.
The trial court allowed the prosecution to ask Perdon
about defendant’s alleged statement to her. (See Evid. Code,
§ 1220 [hearsay exception for statements made by a party-
opponent].) On direct examination, the prosecution asked
Perdon if defendant ever spoke with her about a shooting that
took place in 1997, or any shooting, or if he ever made the
statement described above. Each time, Perdon responded,
“I can’t remember.” Perdon testified that she may have seen
defendant at Quiambao’s house on a few occasions, but could not
remember telling Masubayashi about her conversations with
defendant.
The trial court found there was a reasonable basis in the
record to conclude that Perdon’s testimony regarding
defendant’s alleged statement to her was evasive and untruthful
such that her prior statements would be considered
inconsistent. It noted that Perdon said she did not recall
whether defendant made this statement, but on other occasions
she seemed to say that certain things were true. The court
explained that Perdon’s inability to recall whether such an
inflammatory statement was made, considered in light of her
ability to remember certain other things from that time period,
was indicative of her being evasive and untruthful.
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Opinion of the Court by Cantil-Sakauye, C. J.
Masubayashi subsequently testified to Perdon’s recounting of
defendant’s statement.
As noted, the “ ‘fundamental requirement’ ” of Evidence
Code section 1235 is that a witness’s prior statement must
actually be inconsistent with his or her trial testimony.
(Johnson, supra, 3 Cal.4th at p. 1219.) “ ‘ “Inconsistency in
effect, rather than contradiction in express terms, is the test for
admitting a witness’[s] prior statement . . . .” ’ ” (Cowan, supra,
50 Cal.4th at p. 462.) “Thus, for example, ‘ “[w]hen a witness’s
claim of lack of memory amounts to deliberate evasion,
inconsistency is implied. [Citation.] As long as there is a
reasonable basis in the record for concluding that the witness’s
‘I don’t remember’ statements are evasive and untruthful,
admission of his or her prior statements is proper.” ’ ” (People v.
Homick (2012) 55 Cal.4th 816, 859; see also Johnson, at
pp. 1219–1220.
In People v. Ledesma (2006) 39 Cal.4th 641, 712, for
example, we held that the trial court properly admitted the
witness’s prior statements to a police officer under the hearsay
exception for prior inconsistent statements because the record
provided a reasonable basis to conclude her subsequent “I don’t
remember” testimony was evasive and untruthful. We noted
that the witness had been the defendant’s friend, admitted she
was reluctant to testify, had failed to appear at a previous
hearing, and claimed that even reading her prior testimony and
listening to a taped recording of her police interview did not
refresh her recollection. (Ibid.; see also People v. Bryant, Smith
and Wheeler (2014) 60 Cal.4th 335, 415 [upholding trial court’s
ruling that witness’s claimed failure of recollection was actually
deliberate evasion tantamount to denial when record showed
that witness was able to recall defendant’s statements during a
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Opinion of the Court by Cantil-Sakauye, C. J.
police interview conducted 10 years after the murder, but
claimed memory loss when he testified two and a half years
later].
We conclude there was a sufficient basis for the trial court
to have concluded that Perdon’s forgetfulness at trial was
deliberately evasive, such that the court did not abuse its
discretion in finding the challenged statement admissible
notwithstanding the general hearsay bar. As observed earlier,
Perdon and defendant’s brother were friends, and she associated
with other Pinoy Real gang members. She recalled spending
time at Quiambao’s house in 1999 and testified that she may
have seen defendant there a few times and had conversations
with him, but she could not remember if defendant had made
the statement in question in which he bragged about shooting
Johnson. The trial court, which had the benefit of observing
Perdon’s demeanor, could find that Perdon was deliberately
evasive when she claimed not to recall whether defendant made
such an inflammatory statement, while at the same time she
could recollect other details associated with that time period.
Accordingly, we find no error in the admission of Perdon’s
statement relaying defendant’s confession. (See People v.
Anderson (2018) 5 Cal.5th 372, 403 [multiple hearsay consisting
of prior inconsistent statement and admission of defendant is
admissible].
7. Failure to instruct concerning confessions
Defendant contends the trial court erred by not
instructing the jury with CALJIC No. 2.70, the cautionary
instruction defining confessions and admissions. He claims the
court’s failure to instruct the jury to view with caution
defendant’s purported statement to Perdon in which he bragged
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Opinion of the Court by Cantil-Sakauye, C. J.
about shooting Johnson was prejudicial because there was
evidence the statement was fabricated. We find that any error
was harmless.
At the time defendant was tried, the trial court had a duty
to instruct the jury with CALJIC No. 2.70 on its own motion if
evidence of a defendant’s oral confession or admission was
presented.6 (People v. Stankewitz (1990) 51 Cal.3d 72, 94; see
People v. Diaz (2015) 60 Cal.4th 1176, 1190 (Diaz) [as of 2015,
CALJIC No. 2.70 no longer required to be given sua sponte].
The trial court did not do so. However, the trial court did
instruct the jury with CALJIC No. 2.71, the cautionary
instruction defining admissions, which directed the jury to view
with caution any statement of a defendant not made in court
which tends to prove his guilt.7
6
CALJIC No. 2.70 then read: “A confession is a statement
made by a defendant in which [he] [she] has acknowledged [his]
[her] guilt of the crime[s] for which [he] [she] is on trial. In order
to constitute a confession, the statement must acknowledge
participation in the crime[s] as well as the required [criminal
intent] [state of mind]. [¶] An admission is a statement made
by [a] [the] defendant which does not by itself acknowledge [his]
[her] guilt of the crime[s] for which the defendant is on trial, but
which statement tends to prove [his] [her] guilt when considered
with the rest of the evidence. [¶] You are the exclusive judges
as to whether the defendant made a confession [or an
admission], and if so, whether that statement is true in whole or
in part. [¶] [Evidence of [an oral confession] [or] [an oral
admission] of the defendant not made in court should be viewed
with caution.]”
7
The trial court instructed the jury as follows: “An
admission is a statement made by a defendant which does not
by itself acknowledge his guilt of the crimes for which the
defendant is on trial, but which statement tends to prove his
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“We have long recognized that th[e] cautionary instruction
[defining admissions] is sufficiently broad to cover all of a
defendant’s out-of-court statements.” (People v. Clark (2011
52 Cal.4th 856, 957.) Indeed, as the Attorney General points
out, the only difference between the instructions was that a
confession would have been defined as a statement
acknowledging guilt, whereas an admission is a statement
tending to establish guilt when considered with other evidence.
As such, a jury would reasonably interpret “confessions” to also
be admissions and apply the cautionary instruction provided.
Moreover, it bears repeating that the purpose of CALJIC
No. 2.70, like CALJIC No. 2.71, is “to aid the jury in evaluating
whether the defendant actually made the statement.” (Diaz,
supra, 60 Cal.4th at p. 1184.) That purpose is served when the
instruction advises the jurors, as it did here, that “[t]he jurors
are the exclusive judges as to whether the defendant made an
admission, and if so, whether that statement is true in whole or
in part,” and that “[e]vidence of an oral admission of the
defendant not made in court should be viewed with caution.”
Furthermore, the court also instructed the jury with CALJIC
Nos. 2.20 (believability of a witness), 2.21.1 (discrepancies in
testimony), and 2.22 (weighing conflicting testimony). These
additional instructions also functioned to inform the jury how to
evaluate the credibility of Masubayashi’s testimony regarding
defendant’s statement. Accordingly, defendant fails to show
guilt when considered with the rest of the evidence. You are the
exclusive judges as to whether the defendant made an
admission, and if so, whether that statement is true in whole or
in part. [¶] Evidence of an oral admission of a defendant not
made in court should be viewed with caution.”
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prejudice resulting from the trial court’s failure to give CALJIC
No. 2.70.
8. Use of 1996 version of CALJIC No. 8.71
Defendant asserts the trial court’s use of the 1996 version
of CALJIC No. 8.71, the instruction regarding reasonable doubt
concerning the degree of murder, impermissibly skewed the
jury’s deliberations toward first degree murder and lowered the
prosecution’s burden of proof. We conclude there was no error.
The jury was instructed concerning first degree murder
(on theories of premeditation and lying in wait) and second
degree murder (with malice aforethought but without
premeditation). The jurors also were instructed that if they
found defendant guilty of murder, they must determine the
degree. Using the then-current version of CALJIC No. 8.71 (6th
ed. 1996), the trial court further instructed the jury: “If you are
convinced beyond a reasonable doubt and unanimously agree
that the crime of murder has been committed by a defendant,
but you unanimously agree that you have a reasonable doubt
whether the murder was of the first or of the second degree, you
must give the defendant the benefit of that doubt and return a
verdict fixing the murder as of the second degree as well as a
verdict of not guilty of murder in the first degree.” (Italics
added.
The jury was additionally instructed with CALJIC
No. 17.10, which provided: “If you are not satisfied beyond a
reasonable doubt that a defendant is guilty of the crime of first
degree murder as charged in count I, and you unanimously so
find, you may convict him of any lesser crime provided you are
satisfied beyond a reasonable doubt that he is guilty of the lesser
crime.” The trial court also instructed the jury with CALJIC
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No. 17.40: “The People and the defendant are entitled to the
individual opinion of each juror. Each of you must consider the
evidence for the purpose of reaching a verdict if you can do so.
Each of you must decide the case for yourself, but should do so
only after discussing the evidence and instructions with the
other jurors. Do not hesitate to change an opinion if you are
convinced it is wrong, however, do not decide any question in a
particular way because a majority of the jurors, or any of them,
favor that decision. Do not decide any issue in this case by the
flip of a coin, or by any other chance determination.” The jury
was further given CALJIC No. 8.74: “Before you may return a
verdict in this case, you must agree unanimously not only as to
whether the defendant is guilty or not guilty; but also if you
should find him guilty of an unlawful killing, you must agree
unanimously as to whether he is guilty of murder of the first
degree or murder of the second degree.” Additionally, the court
directed the jury to read the instructions as a whole and in light
of all the others, and the jury was generally instructed on
reasonable doubt.
We review a claim of instructional error de novo. (People
v. Cole (2004) 33 Cal.4th 1158, 1210.) “When considering a
claim of instructional error, we view the challenged instruction
in the context of the instructions as a whole and the trial record
to determine whether there is a reasonable likelihood the jury
applied the instruction in an impermissible manner.” (People v.
Houston (2012) 54 Cal.4th 1186, 1229.
In People v. Moore (2011) 51 Cal.4th 386, 411, we advised
that “the better practice is not to use the 1996 revised versions
of CALJIC Nos. 8.71 and 8.72 [relating to manslaughter], as the
instructions carry at least some potential for confusing jurors
about the role of their individual judgments in deciding between
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first and second degree murder, and between murder and
manslaughter.” We declined to decide whether the giving of
CALJIC No. 17.40, addressing the jurors’ duty to render an
individual decision, adequately dispelled the possibility of
confusion, ruling instead that any error in giving the 1996
revised versions of CALJIC Nos. 8.71 and 8.72 was harmless
beyond a reasonable doubt. (Moore, at p. 412.
In People v. Salazar (2016) 63 Cal.4th 214, 246 (Salazar),
we clarified that Moore did not stand for the proposition that the
1996 revised versions of CALJIC Nos. 8.71 and 8.72 were
erroneous; rather, we simply observed in Moore that “the
instructions created ‘at least some potential for confusing jurors
about the role of their individual judgments in deciding between’
the greater and lesser offenses.” (Salazar, at p. 247.) Salazar
confirmed the “familiar proposition that ‘ “[t]he correctness of
jury instructions is to be determined from the entire charge of
the court, not from a consideration of parts of an instruction or
from a particular instruction.” ’ ” (Salazar, at p. 248.) We
subsequently concluded that the 1996 revised versions of
CALJIC Nos. 8.71 and 8.72 were not erroneous when considered
with the rest of the charge to the jury. (Salazar, at p. 248; People
v. Rivera (2019) 7 Cal.5th 306, 326 (Rivera) [same].
In Salazar, the jury was instructed with CALJIC Nos. 8.74
(unanimous agreement as to offense — first or second degree
murder or manslaughter), 17.10 (conviction of lesser included or
lesser related offense — implied acquittal), and 17.40
(individual opinion required — duty to deliberate), in addition
to CALJIC Nos. 8.71 and 8.72. (Salazar, supra, 63 Cal.4th at
p. 247.) We held that a reasonable juror, considering the
instructions as a whole, would have understood the phrase
“ ‘unanimously agree that you have a reasonable doubt’ ” to
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“reflect the principle stated in CALJIC No. 17.10: ‘the court
cannot accept a guilty verdict on a lesser crime unless you have
unanimously found the defendant not guilty of the charged
crime.’ ” (Salazar, at pp. 247–248.) We also rejected the very
interpretation advanced by defendant here — that the 1996
revised version of CALJIC No. 8.71 lowered the prosecution’s
burden of proof by making first degree murder the default
verdict. (Salazar, at p. 247.) We pointed out that the 1996
versions of CALJIC Nos. 8.71 and 8.72, “[i]f anything, [ ] skewed
the deliberations in [a defendant’s] favor. They could reasonably
be understood to tell the jurors that if they all agreed there was
reasonable doubt as to the degree of the crime, because some
jurors were not convinced, then [a] defendant was entitled to the
benefit of the doubt and a verdict of the lesser offense. No logical
reading of the instructions leads to a compelled verdict of first
degree murder.” (Salazar, at p. 247.) We also emphasized that
the defendant’s interpretation “assumes the jury would
disregard not only CALJIC Nos. 8.74 and 17.10, but also the
explicit directions of CALJIC No. 17.40 emphasizing each juror’s
duty to decide the case as an individual.” (Salazar, at p. 248.
More recently, we held that the use of CALJIC No. 8.71 was not
erroneous, when considered in the context of the instructions as
a whole, where the jury was also instructed with CALJIC
Nos. 8.74 and 17.40. (Rivera, supra, 7 Cal.5th at p. 326.
As in Salazar, the jury here was also instructed with
CALJIC Nos. 8.74, 17.10, and 17.40. And, like in Rivera, there
is no evidence that the jury was confused by the instruction.
(Rivera, supra, 7 Cal.5th at p. 327.) Consistent with our
precedent, we conclude that the trial court’s use of the 1996
revised version of CALJIC No. 8.71 was not erroneous when
considered with the rest of the charge to the jury and “given the
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lack of any indication that the jury was confused or misled into
returning the greater verdict of first degree murder despite a
juror having a reasonable doubt of such a finding.” (Rivera, at
p. 327.) We therefore reject defendant’s argument for reversal
on this basis.
9. Sufficiency of evidence for lying-in-wait special
circumstance
Defendant argues there was insufficient evidence to
support the jury’s special circumstance finding that he killed
Johnson while lying in wait. We disagree.
We analyze a sufficiency-of-the-evidence challenge to a
special circumstance finding under the same standard applied
to a conviction: “Reviewed in the light most favorable to the
judgment, the record must contain reasonable and credible
evidence of solid value, ‘such that a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt.’ ” (People
v. Stevens (2007) 41 Cal.4th 182, 201 (Stevens).
At the time of defendant’s capital crime, the special
circumstance required that the murder be committed “while
lying in wait.” (§ 190.2, former subd. (a)(15), italics added; see
People v. Streeter (2012) 54 Cal.4th 205, 246 (Streeter).) Also at
that time, “ ‘ “the elements of the lying-in-wait special
circumstance required an intentional killing, committed under
circumstances that included a physical concealment or
concealment of purpose; a substantial period of watching and
waiting for an opportune time to act; and, immediately
thereafter, a surprise attack on an unsuspecting victim from a
position of advantage.” ’ ” (People v. Suarez (2020) 10 Cal.5th
116, 171.) “ ‘ “ ‘The element of concealment is satisfied by a
showing “ ‘that a defendant’s true intent and purpose were
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concealed by his actions or conduct. It is not required that he be
literally concealed from view before he attacks the victim.’ ” ’ ”
(People v. Combs (2004) 34 Cal.4th 821, 853 (Combs).) The
period of watchful waiting “ ‘ “need not continue for any
particular length ‘ “of time provided that its duration is such as
to show a state of mind equivalent to premeditation and
deliberation.” ’ ” (Suarez, at p. 171; see also Stevens, supra,
41 Cal.4th at p. 202 [“The purpose of the watching and waiting
element is to distinguish those cases in which a defendant acts
insidiously from those in which he acts out of rash impulse”].
We conclude that the evidence amply supports the lying-
in-wait special circumstance finding. To carry out their plan to
murder Johnson and Masubayashi, defendant, Lee, Chung, and
Carrillo devised a scheme in which defendant and Carrillo
would lure Johnson and Masubayashi from their apartment
under the pretext of going out to a strip club or to shoot pool. As
defendant sat in the backseat of Masubayashi’s car, he was
armed with a gun, waiting for an opportune time to kill
Masubayashi and Johnson. Continuing the ruse of going out,
defendant directed Masubayashi to stop at Chung’s Jeep
Cherokee, where Lee and Chung were hiding and waiting,
claiming that he wanted to drive as well. After Johnson exited
Masubayashi’s car to let defendant out of the back seat,
defendant surprised Johnson by shooting him in the head.
Thus, the evidence is sufficient to establish an intentional
killing, committed from a position of advantage immediately
after a period of concealment and watchful waiting. (See, e.g.,
Combs, supra, 34 Cal.4th at p. 853 [sufficient evidence of lying
in wait when the defendant devised a ruse about needing a ride
to a campsite, sat behind the victim in the car, waited until the
car was in a more deserted location, and then strangled her].
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10. Constitutionality of lying-in-wait special-
circumstance instruction
Defendant asserts the lying-in-wait special-circumstance
instruction violated his constitutional rights to due process, to a
fundamentally fair trial, and to a reliable verdict and penalty
determination. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal.
Const., art. I, §§ 7, 15.) Specifically, defendant argues that
CALJIC No. 8.81.15 is unconstitutional because it does not
distinguish lying-in-wait murder from premeditated and
deliberate murder, and because the instruction does not require
a substantial period of watchful waiting or require that the
concealed purpose must be a deadly one. We have previously
rejected these challenges. (People v. Cage (2015) 62 Cal.4th 256,
281 (Cage) [“As we have held before, the special circumstance of
lying in wait instruction is constitutional”]; Streeter, supra,
54 Cal.4th at pp. 251–252 [same]; People v. Bonilla (2007
41 Cal.4th 313, 332–333 [same].) We find no persuasive reason
to deviate from our prior decisions in the present case.
11. Constitutionality of lying-in-wait special
circumstance
Defendant further contends the lying-in-wait special
circumstance itself is unconstitutional because it fails to
adequately narrow the class of persons eligible for the death
penalty. We have repeatedly rejected these claims (see, e.g.,
People v. Delgado (2017) 2 Cal.5th 544, 576 (Delgado) [lying-in-
wait special circumstance does not apply to all murders and is
not constitutionally infirm]; Cage, supra, 62 Cal.4th at p. 281
[same]; Streeter, supra, 54 Cal.4th at pp. 252–253 [same], and
we continue to do so here for the same reasons.
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12. Cumulative effect of asserted guilt phase errors
Defendant contends his convictions should be reversed
because the cumulative prejudice of the alleged errors during
the guilt phase violated his due process right to a fundamentally
fair and reliable trial under the California and federal
Constitutions. We have identified only one error occurring in
the guilt phase of defendant’s trial — the trial court’s failure to
provide the jury with the cautionary instruction defining
confessions — and have found it harmless. There is no other
error to accumulate.
B. Penalty Phase and Sentencing Issues
1. Refusal to allow Towne to testify at the penalty
phase
Defendant contends the trial court erred when it
prohibited the defense from calling Towne as a witness during
the penalty phase, resulting in a violation of his federal and
state constitutional rights to due process, to a penalty
determination based on all available mitigating evidence, and to
a fair and reliable determination of penalty. We agree that the
exclusion of Towne’s testimony at the penalty phase was state
law error, but find the error harmless beyond a reasonable doubt
because there was no reasonable possibility that it affected the
penalty verdict.
As noted in connection with defendant’s argument
concerning pretrial delay, the defense intended to call Towne to
testify at the guilt phase of defendant’s trial, but their efforts to
locate him were unsuccessful.8 Following the guilt phase
8
We are not asked to decide whether defendant was
prejudiced by defense counsel’s failure to secure Towne’s
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verdicts, however, the defense successfully contacted Towne.
The defense sought to have Towne testify at the penalty phase
regarding his observations of the shooter, under the theory that
this evidence could go to lingering doubt. When the court asked
what Towne would be testifying to, recalling that perhaps he
would say the shooter was short, defense counsel answered:
“Well, not so much short but he was medium build. His
testimony is pretty consistent with Fowler’s testimony so it
would be duplicating pretty much what Fowler said. And then
I have Officer [Bowers] . . . available to testify in case there
might be a discrepancy. I don’t have the police report with me
right now, but I’m certain that he would be in a position to say
the shooter was not a 300-pound Samoan.”
The prosecution argued that Towne’s testimony was
inadmissible at the penalty phase because it was merely an
attempt to relitigate the issue of defendant’s guilt. The trial
court ruled that Towne’s testimony constituted new evidence
regarding the issue of guilt and excluded it on that basis.
Defendant raised the issue again in his motion for new trial,
which the court denied.9
appearance at the guilt phase trial, and we offer no opinion on
that question.
9
Defendant’s motion for new trial included an affidavit
from Towne averring, for the first time, that the shooter
“definitely had a thin build” and was wearing a cap on his head.
However, these added specifics were not before the trial court
when it ruled on the admissibility of Towne’s testimony at the
penalty phase, and we therefore do not consider them in our
determination of whether the court erred. (See People v. Avila
(2004) 117 Cal.App.4th 771, 780, fn. 4 [“We review the
correctness of the trial court’s ruling at the time it was made
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“[A] capital defendant has no federal constitutional right
to have the jury consider lingering doubt in choosing the
appropriate penalty . . . .” (People v. Hamilton (2009) 45 Cal.4th
863, 911; accord, People v. Gay (2008) 42 Cal.4th 1195, 1220
(Gay).) Admissibility of lingering doubt evidence is instead
authorized by statute. (Gay, at p. 1220.) Pursuant to section
190.3, “[i]n the proceedings on the question of penalty, evidence
may be presented by both the people and the defendant as to
any matter relevant to aggravation, mitigation, and sentence
including, but not limited to, the nature and circumstances of
the present offense . . . .” In determining the penalty, the trier
of fact shall consider “[t]he circumstances of the crime of which
the defendant was convicted in the present proceeding and the
existence of any special circumstances found to be true pursuant
to Section 190.1.” (§ 190.3, factor (a).
In People v. Terry (1964) 61 Cal.2d 137, 146 (Terry), we
held that evidence that may create a lingering doubt regarding
the defendant’s guilt is admissible as evidence in mitigation at
and not by reference to evidence produced at a later date.
[Citation.] Since the [evidence was] proffered in support of
defendant’s new trial motion, [it is] not relevant to an
assessment of the propriety of rulings that were made during
trial”]; People v. Allen (2008) 44 Cal.4th 843, 872, fn. 19 [“To
preserve a contention that evidence should have been admitted,
a party’s offer of proof must make clear the substance of the
proffered testimony”]; In re Zeth S. (2003) 31 Cal.4th 396, 405
[“It has long been the general rule and understanding that ‘an
appeal reviews the correctness of a judgment as of the time of
its rendition, upon a record of matters which were before the
trial court for its consideration’ ”].) Defendant does not
challenge the court’s denial of his motion for new trial, to which
Towne’s affidavit was attached.
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a penalty phase retrial in a capital case.10 We explained:
“Indeed, the nature of the jury’s function in fixing punishment
underscores the importance of permitting to the defendant the
opportunity of presenting his claim of innocence. The jury’s
task, like the historian’s, must be to discover and evaluate
events that have faded into the past, and no human mind can
perform that function with certainty. Judges and juries must
time and again reach decisions that are not free from doubt; only
the most fatuous would claim the adjudication of guilt to be
infallible. The lingering doubts of jurors in the guilt phase may
well cast their shadows into the penalty phase and in some
measure affect the nature of the punishment. Even were it
desirable to insulate the psychological reactions of the jurors as
to each trial, no legal dictum could compel such division, and, in
any event, no statute designs it.” (Ibid.
We reaffirmed Terry’s holding in Gay, supra, 42 Cal.4th
1195. There, we held that the trial court erred when it excluded
as irrelevant evidence proffered at a penalty phase retrial of a
codefendant’s out-of-court admissions that he was the sole
shooter, and the corroborating testimony of four eyewitnesses.
(Id., at pp. 1216, 1223.) We reiterated that although
“incompetent or irrelevant [evidence] is not admissible at the
penalty phase,” this does not “call[] into question what ‘ “is
certainly the rule that if the evidence would have been
admissible on the trial of the guilt issue, it is admissible on the
trial aimed at fixing the penalty.” ’ ” (Id., at pp. 1220–1221.) We
10
Terry involved an examination of section 190.1, a
predecessor statute to section 190.3, factor (a), which also
permitted “the presentation of evidence as to ‘the circumstances
surrounding the crime . . . and of any facts in . . . mitigation of
the penalty.’ ” (Terry, supra, 61 Cal.2d at p. 146.
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emphasized: “ ‘[T]hat the defendant cannot relitigate the issue
of guilt or innocence . . . does not preclude the admission of
evidence relating to the circumstances of the crime or the
aggravating or mitigating circumstances, including evidence
which may mitigate a defendant’s culpability by showing that
he actually did not kill the victim. The test for admissibility is
not whether the evidence tends to prove the defendant did not
commit the crime, but, whether it relates to the circumstances
of the crime or the aggravating or mitigating circumstances.’ ”
(Id., at p. 1223, quoting State v. Teague (Tenn. 1995) 897 S.W.2d
248, 252.
The Attorney General tries to distinguish Gay and Terry
on the ground that those cases involved penalty retrials. He
maintains that “evidence is not admissible at the penalty phase
for the purpose of creating reasonable doubt,” with the exception
of a retrial of the penalty phase. The Attorney General
misunderstands the nature of Towne’s proffered testimony as
well as the significance of a penalty retrial in this context.
First, Towne’s proffered statement regarding the build of
the shooter constituted not reasonable doubt evidence, but
lingering doubt evidence, which is admissible under section
190.3, factor (a). Allowing the jury to consider lingering doubt
evidence does not amount to an improper attempt to “relitigate
the . . . conviction.” (Terry, supra, 61 Cal.2d at p. 145.) Because
of differing standards of proof at the two trial phases, a jury
determination that the defendant is guilty beyond a reasonable
doubt does not preclude a jury from entertaining lingering or
residual doubt as to the nature or extent of the defendant’s
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guilt.11 (Gay, supra, 42 Cal.4th at p. 1229, fn. 1 (conc. opn. of
Werdegar, J.).
Second, although both Gay and Terry involved penalty
retrials, it is clear that lingering doubt evidence is relevant
under section 190.3, “[w]hether in the penalty phase of a unitary
trial or in a penalty retrial.” (Gay, supra, 42 Cal.4th at p. 1229
(conc. opn. of Werdegar, J.); see ibid. [“Our holding today,
although made in the context of a penalty retrial, logically
applies as well to an ordinary penalty phase. What is relevant
in one is equally relevant in the other”].) People v. Blair (2005
36 Cal.4th 686 is illustrative. There, the prosecution offered the
testimony of the defendant’s former chemistry teacher at the
penalty phase of a unitary trial to prove that the defendant was
familiar with the dangerous properties of cyanide, which was
used to kill the victim. (Id., at p. 749.) We held the evidence
was relevant to show “that defendant could have been the
individual who placed the cyanide in the gin bottle given to [the
victim and her friend], and that defendant was aware that
inserting cyanide into the gin bottle could cause their deaths.”
(Ibid.) We found the evidence properly admitted under section
190.3, factor (a) as a circumstance of the crime for which the
defendant was convicted or of the special circumstance which
the jury found true. In so concluding, we rejected the
defendant’s argument “that we have placed limitations on
defendants who seek to introduce, at the penalty phase,
evidence relevant to issues of guilt or innocence, and that
parallel limitations should be imposed on prosecution evidence.”
(Blair, at p. 749.) We observed that a defendant is not precluded
11
To the extent language in In re Gay (1998) 19 Cal.4th 771,
814, suggests otherwise, it is disapproved.
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from introducing “any and all evidence relevant to guilt or
innocence at the penalty phase. Indeed, in many circumstances
evidence related to guilt or innocence, and properly designed to
raise a lingering doubt, will be relevant and admissible.” (Id.,
at p. 750, citing cases.
It is true that “in an ordinary penalty phase, tried before
the same jury that recently heard and decided guilt, the defense
is far less likely to offer lingering doubt evidence, and the court
might legitimately exclude some offered evidence as cumulative
and wasteful of court time.” (Gay, supra, 42 Cal.4th at p. 1229
(conc. opn. of Werdegar, J.); Terry, supra, 61 Cal.2d at p. 146 [“If
the same jury determines both guilt and penalty, the
introduction of evidence as to defendant’s asserted innocence is
unnecessary on the penalty phase because the jury will have
heard that evidence in the guilt phase”].) But “this difference in
the two procedural circumstances does not affect the relevance
of lingering doubt evidence.” (Gay, at p. 1229 (conc. opn. of
Werdegar, J.).
Towne’s testimony would have been relevant and
admissible at the guilt phase, but he could not be located. And
because he did not testify at the guilt phase, his testimony at
the penalty phase cannot be deemed cumulative or a waste of
judicial resources.12 In short, Towne’s testimony that the
12
The record in this case does not suggest that the delay in
presenting Towne’s testimony was a result of deliberate
gamesmanship or sandbagging by the defense. We therefore
have no cause to comment on that issue, except to note that the
trial court retains discretion to sanction either party for
discovery violations, including by imposing the sanction of
precluding witness testimony. (See People v. Hajek and Vo
(2014) 58 Cal.4th 1144, 1233.
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shooter had a thin or medium build, which was inconsistent
with defendant’s build but similar to Carrillo’s build, was
admissible at the penalty trial under section 190.3 as a
circumstance of the offense. The trial court abused its discretion
when it excluded this evidence at the penalty trial.
Nevertheless, we conclude the trial court’s error was
harmless under the circumstances. “Error in admitting or
excluding evidence at the penalty phase of a capital trial is
reversible if there is a reasonable possibility it affected the
verdict.” (Gay, supra, 42 Cal.4th at p. 1223.) In other words, to
determine whether an error is harmless under this standard, we
must decide whether it is “ ‘unimportant in relation to
everything else the jury considered on the issue in question, as
revealed in the record.’ ” (People v. Neal (2003) 31 Cal.4th 63,
86.
The dissenting opinion speculates that Towne’s testimony
may well have played an important role in the penalty phase by
providing a description of the shooter consistent with Fowler’s
testimony that more closely matched the build of Carrillo than
that of defendant. (Dis. opn. of Liu, J., post, at pp. 1, 3, 5.) But
based on our review of the trial record and even taking into
account defendant’s posttrial filings relating to Towne’s
proffered testimony, we can assume that Towne would have
testified that for a few seconds, and from across a dark parking
lot in the middle of the night, he saw a shooter of a thin or
medium build with black skin wearing a cap. And given defense
counsel’s proffer that Towne’s testimony would be “pretty
consistent with Fowler’s testimony so it would be duplicating
pretty much what Fowler said,” we can also take note that
Fowler’s testimony was replete with references to the poorly lit
conditions and difficulty in discerning any of the shooter’s
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distinguishing features, including how big he was. As Fowler
put it, he saw a “basic shadow.” We do not find this to be the
sort of eyewitness testimony that would have “appreciably
weakened the case in aggravation.” (Dis. opn. of Liu, J., post, at
p. 7.
It also bears noting that the dissent places heavy reliance
only on certain details extracted from defendant’s motion for
new trial. (Dis. opn. of Liu, J., post, at pp. 1, 3, 5.) The dissent
discounts, for example, the defense investigator’s affidavit
attached to that motion declaring that Towne described the color
of the shooter’s skin as black, a description inconsistent with
Carrillo’s skin color and more closely matching that of
defendant. Thus, although Towne’s and Fowler’s testimony
regarding the shooter’s build may have stood in contrast to that
of Rodriguez, the third eyewitness at the Gateway Clinic, who
testified that the shooter was heavyset, Towne’s statement that
the skin color of the shooter was black, which lined up with
Rodriguez’s initial statement to police officers and Fowler’s
subsequent interview with defense investigators, would have
pointed away from Carrillo and toward defendant.
In any event, this evidence pales in comparison to the
evidence at the guilt phase, properly considered at the penalty
phase as circumstances of the case, establishing defendant’s
guilt. To recap: Masubayashi and Carrillo, both of whom knew
defendant and were with him when the shooting took place,
identified defendant as the shooter. Masubayashi testified that
he had observed defendant carrying a gun on the night in
question, saw defendant exit Masubayashi’s car, shoot and kill
Johnson, and then reach into the car and shoot Masubayashi.
Carrillo testified that he was with defendant when defendant
communicated his plan to kill Johnson and Masubayashi, he
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accompanied defendant to Johnson and Masubayashi’s
apartment with the intent to lure them out and kill them, he
saw defendant tuck a gun in his waistband before they set out
for the evening, and he watched defendant shoot Johnson and
Masubayashi. Sia Her also testified that defendant told her he
was “strapped” that night. Masubayashi, Carrillo, and
defendant testified that defendant was carrying a .357 magnum
handgun, which was one of two possible guns identified as firing
the bullet that killed Johnson. Quiambao testified that, after
the shooting took place, Carrillo returned to his apartment and
told him that defendant shot Johnson. And when defendant
arrived at Quiambao’s house, he did not respond to Quiambao’s
question asking why he shot Johnson and Masubayashi.
Instead, when pressed, defendant told Quiambao to “shut the
hell up.” Defendant also admitted to Quiambao that he threw
the gun away. The dissenting opinion ignores the weight of the
testimony from Carrillo and Masubayashi, both of whom the
jury found credible, and downplays the inculpatory testimony of
Quiambao and Her.
Moreover, beyond the circumstances of the crime, which
involved the murder of Johnson by means of lying in wait and
the attempted murder of Masubayashi, the prosecution
presented penalty phase evidence of defendant’s sexual
misconduct and two prior robberies and the testimony from
several of Johnson’s family members and friends regarding the
pain and suffering caused by Johnson’s death.
Significantly, defendant’s penalty phase evidence focused
not on lingering doubt, but on defendant’s family history,
background and character, brain activity, and adjustment to
prison as factors in mitigation. Defense counsel’s closing
argument referenced lingering doubt only briefly, conjecturing
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that perhaps Carrillo would admit on his death bed that he was
the shooter, but he did not mention Fowler’s testimony or any
other details suggesting that defendant was not the shooter.
Thus, to the extent that Towne’s testimony, if admitted, might
have gone to the issue of lingering doubt, defense counsel’s
failure to raise the issue even given Fowler’s admitted
testimony — which was essentially the same as Towne’s
excluded testimony — serves to further underscore the
inconsequential nature of the error. Moreover, the trial court
properly instructed the jury on lingering doubt, and the jury
reached a verdict only a few hours after beginning their
deliberations.
In light of these circumstances, we conclude there is no
reasonable possibility that the additional testimony defendant
could have elicited from Towne would have affected the jury’s
verdict at the penalty phase.
2. Instruction on deliberations with alternate juror
substituted at penalty phase
Following the guilt phase verdicts, the trial court excused
one of the seated jurors, who was replaced with an alternate
juror for the penalty phase. Defendant claims the trial court’s
special instruction requiring the penalty phase jury to accept
the guilt phase verdicts and findings violated his state and
federal constitutional rights to a fair trial, due process, and a
reliable determination of penalty.
The trial court instructed the penalty phase jury that “[f]or
the purposes of this penalty phase of the trial, the alternate
juror must accept as having been proved beyond a reasonable
doubt those guilty verdicts and true findings rendered by the
jury in the guilt phase of this trial.” The court also instructed
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the jury that “if any individual juror has a lingering or residual
doubt about whether the defendant killed the victim, he or she
must consider it as a mitigating factor and assign to it the
weight you deem appropriate.”
We have on numerous occasions considered and rejected
the argument that this special instruction is constitutionally
defective. (See, e.g., People v. Cain (1995) 10 Cal.4th 1, 64–66
(Cain); id., at p. 67 [“An instruction that allows the jurors to vote
against the death penalty phase if they have residual doubt as
to guilt or truth of the special circumstances is sufficient even
though it requires the [alternate] jurors to accept the guilt phase
verdicts”].) Most recently, in People v. Miles (2020) 9 Cal.5th
513, 604, we stated: “We have made clear that ‘[a]s a matter of
law, the penalty phase jury must conclusively accept [the guilt
phase jury’s] findings’ as to the defendant’s guilt and the truth
of the special circumstance allegations beyond a reasonable
doubt. [Citation.] We have also rejected the suggestion ‘that
anytime a juror is replaced at the penalty phase, the jury should
engage in guilt phase deliberations anew.’ [Citation.] And, most
notably, in People v. Cain[ ], we found no constitutional defect in
the trial court instructing the jury, including a new juror who
replaced an excused juror, that it must accept the guilt phase
verdicts and findings at the penalty phase.” We also reiterated
in Miles that an instruction regarding lingering doubt as a
mitigating factor sufficiently apprises alternate jurors that they
may vote against the death penalty if they doubt the defendant’s
guilt. (Miles, at p. 604, citing People v. Kaurish (1990) 52 Cal.3d
648, 708; see also Cain, at p. 67; People v. Nguyen (2015
61 Cal.4th 1015, 1089 [“There is no reason to think that the
jurors would have interpreted the instructions to permit only
the original jurors, and not the former alternate jurors, to
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consider lingering doubt”].) Defendant offers no reasoned basis
for us to reconsider our previously expressed view.
3. Admission of juvenile criminal history
Defendant asserts the jury’s consideration of his juvenile
criminal history violated his federal constitutional rights under
the Eighth and Fourteenth Amendments. He contends that
recent United States Supreme Court decisions applying the
Eighth Amendment to juveniles undercuts the use of juvenile
criminal activity as an aggravating factor in determining
whether to impose a death sentence. We conclude otherwise.
During the penalty phase, the prosecution presented
evidence that when defendant was 13 years old, he exposed
himself to two female students and touched their buttocks and
breasts. The prosecution also presented evidence that
defendant robbed and assaulted Thomas Kinsey when
defendant was age 16.
Juvenile criminal activity involving the use or attempted
use of force or violence is admissible as aggravating evidence
under section 190.3, factor (b). (People v. Taylor (2010
48 Cal.4th 574, 652.) We have repeatedly held that the
admission of such evidence is constitutional. (E.g., People v. Lee
(2011) 51 Cal.4th 620, 649; People v. Raley (1992) 2 Cal.4th 870,
909.
In People v. Bramit (2009) 46 Cal.4th 1221, 1239 (Bramit),
we examined and rejected the defendant’s claim that, in light of
the United States Supreme Court’s decision in Roper v.
Simmons (2005) 543 U.S. 551, the admission of juvenile criminal
activity violates the Eighth and Fourteenth Amendments. We
concluded the defendant’s reliance on Roper was “badly
misplaced,” explaining that Roper “holds that the execution of
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individuals who were under 18 years of age at the time of their
capital crimes is prohibited by the Eighth and Fourteenth
Amendments. It says nothing about the propriety of permitting
a capital jury, trying an adult, to consider evidence of violent
offenses committed when the defendant was a juvenile. An
Eighth Amendment analysis hinges upon whether there is a
national consensus in this country against a particular
punishment. [Citations.] Defendant’s challenge here is to the
admissibility of evidence, not the imposition of punishment.”
(Bramit, at p. 1239; see also Taylor, supra, 48 Cal.4th at
pp. 653–654 [same].
We have further held that three additional high court
decisions — Hall v. Florida (2014) 572 U.S. 701, Miller v.
Alabama (2012) 567 U.S. 460, and Graham v. Florida (2010) 560
U.S. 48 — do not alter our conclusion that evidence of juvenile
misconduct may be considered on the question of what
punishment a defendant may receive for crimes committed as
an adult. (Rivera, supra, 7 Cal.5th at pp. 342–343; People v.
Rices (2017) 4 Cal.5th 49, 87.) In Rices, we observed that “[t]he
high court has never suggested that evidence of juvenile
misconduct may not be admitted in deciding the proper
punishment for crimes an adult commits” and, furthermore,
“[n]o legal principle prohibits admitting evidence of [an adult’s]
violent juvenile conduct on the question of what the punishment
for those crimes should be.” (Rices, at p. 87.) Consistent with
our prior precedent, we conclude the jury’s consideration of
defendant’s juvenile criminal activity as an aggravating factor
under section 190.3, factor (b), was permissible.
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4. Admission of evidence of unadjudicated robbery
Defendant maintains that the trial court committed
prejudicial error when it failed to instruct the jury on aiding and
abetting liability after the prosecution presented evidence that
defendant robbed Kinsey as an aider and abettor. We conclude
that any error was harmless.
At the penalty phase, the prosecution sought to introduce
evidence under section 190.3, factor (b) that defendant and three
other individuals robbed Kinsey in 1991. Section 190.3,
factor (b) allows the jury to consider “[t]he presence or absence
of criminal activity by the defendant which involved the use or
attempted use of force or violence or the express or implied
threat to use force or violence.” The trial court held a Phillips
hearing (People v. Phillips (1985) 41 Cal.3d 29) to make a
preliminary determination concerning whether there was
substantial evidence to prove that defendant robbed Kinsey.
The court subsequently ruled that the evidence fit within section
190.3, factor (b) as criminal activity involving the use or
attempted use of force or violence and would be admissible
under that provision. Defendant did not object to the trial
court’s ruling.
The prosecution subsequently presented the following
evidence regarding defendant’s participation in the robbery of
Kinsey: Defendant and three other individuals approached
Kinsey when he was walking in Hollywood. Defendant moved
toward Kinsey, commenting on Kinsey’s briefcase. One of the
other individuals grabbed Kinsey’s briefcase and fled.
Defendant then pushed Kinsey and demanded money from him.
As defendant approached Kinsey, he said, “I’m going to fuck you
up.” Defendant also pulled his fist back as if to punch Kinsey.
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A patrolling officer saw three men, including defendant,
cornering and pushing Kinsey. The officer approached the
group, ordered everyone on the ground, and interviewed the
individuals to determine what had occurred. Kinsey told the
officer that defendant had asked Kinsey for more money, pushed
Kinsey, and pulled his arm back as if to punch Kinsey.
The trial court instructed the jury that in determining
which penalty to impose, if applicable, it shall consider “the
presence or absence of criminal activity by the defendant, other
than the crimes for which the defendant has been tried in the
present proceedings, which involved the use or attempted use of
force or violence or the express or implied threat to use force or
violence.” The court further instructed the jury that evidence
was introduced for the purpose of showing that defendant
committed a second degree robbery against Kinsey, and that in
order for a juror to consider the robbery of Kinsey as an
aggravating circumstance, the juror must find beyond a
reasonable doubt that defendant did in fact commit the criminal
activity. The court also instructed the jury on the elements of
robbery. It further instructed: “For the purpose of determining
whether a person is guilty as an aider or abettor to robbery, the
commission of the crime of robbery is not confined to a fixed
place or a limited period of time, and may continue[] so long as
the stolen property is being carried away to a place of temporary
safety.”
Defendant contends the evidence supported a finding of
his involvement in Kinsey’s robbery as an aider and abettor
only, and therefore the trial court should have provided CALJIC
Nos. 3.00 and 3.01, which describe the essential elements of
aider and abettor liability. Defendant maintains that without
such an instruction, the prosecution could proceed only on a
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direct perpetrator theory of liability for the robbery of Kinsey,
and the evidence was insufficient as a matter of law to show that
defendant robbed Kinsey as a direct perpetrator.
We conclude that defendant has forfeited his claim on
appeal by failing to object at trial to admission of other crimes
evidence on the ground it did not meet section 190.3, factor (b)’s
criteria. (See, e.g., Delgado, supra, 2 Cal.5th at p. 580; People v.
Livingston (2012) 53 Cal.4th 1145, 1175 (Livingston); People v.
Lewis and Oliver (2006) 39 Cal.4th 970, 1052; People v.
Carpenter (1999) 21 Cal.4th 1016, 1059–1060.) In Livingston,
the defendant contended that certain evidence in aggravation
should not have been admitted under section 190.3, factor (b
because the evidence was insufficient for a jury to conclude that
he was guilty of a crime involving violence. We held that this
argument was not cognizable on appeal because defendant did
not object to the evidence on this basis at trial. (Livingston, at
p. 1175.) This was so, we explained, because the evidence was
admitted at the penalty phase of a capital trial as aggravating
evidence, not to support a conviction for that crime. (Ibid.
“ ‘Even if defendant need do nothing at trial to preserve an
appellate claim that evidence supporting his conviction is legally
insufficient, a different rule is appropriate for evidence
presented at the penalty phase of a capital trial. There the
ultimate issue is the appropriate punishment for the capital
crime, and evidence on that issue may include one or more other
discrete criminal incidents. [Citation.] If the accused thinks
evidence on any such discrete crime is too insubstantial for jury
consideration, he should be obliged in general terms to object, or
to move to exclude or strike the evidence, on that ground.’ ”
(Ibid.
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We recently reaffirmed this principle in Delgado,
explaining that “because the penalty decision is normative and
the prosecution need not prove that any given aggravating
circumstance exists in order to obtain a death judgment
[citation], [a] defendant may not challenge the verdict on the
ground that the prosecutor failed to prove each of the elements
of an uncharged offense beyond a reasonable doubt. His claim
of error lies in the erroneous admission of such evidence; that
claim must be preserved by a timely objection in the trial court.”
(Delgado, supra, 2 Cal.5th at p. 581.
Here, as in Livingston and Delgado, defendant’s challenge
on appeal is directed to the sufficiency of evidence admitted at
the penalty phase of a capital trial as aggravating evidence.
(Livingston, supra, 53 Cal.4th at p. 1175; Delgado, supra,
2 Cal.5th at p. 581.) Defendant “ ‘should be obliged in general
terms to object, or to move to exclude or strike the evidence, on
that ground.’ ” (Livingston, at p. 1175.) Defendant’s failure to
raise such an objection at trial constitutes a forfeiture.
Although defendant has forfeited his claim, we also reject
it on the merits. “Although specific instruction on the elements
of other crimes introduced in aggravation under section 190.3,
factor (b) is generally not required” (People v. Gutierrez (2002
28 Cal.4th 1083, 1154 (Gutierrez)), “ ‘when such instructions are
given, they should be accurate and complete’ ” (People v. Prieto
(2003) 30 Cal.4th 226, 268 (Prieto)). We find the trial court’s
failure to instruct the jury on aider and abettor liability as it
related to the robbery of Kinsey was harmless beyond a
reasonable doubt because, despite any misinstruction, the
evidence overwhelmingly showed that defendant committed an
act involving the use or threat of use of force or violence under
section 190.3, factor (b).
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Gutierrez and Prieto are instructive in this respect. In
Gutierrez, the prosecution sought to introduce as a crime in
aggravation under section 190.3, factor (b), that defendant
resisted, by the use of force or violence, an executive officer in
the performance of that officer’s duty in violation of section 69.
(Gutierrez, supra, 28 Cal.4th at pp. 1153–1154.) Although a
violation of section 69 requires a specific intent to interfere with
the executive officer’s performance of duty, the trial court
provided an instruction on general criminal intent. (Gutierrez,
at p. 1154.) Nevertheless, we found the error was “clearly
harmless beyond a reasonable doubt” because “[t]here was
evidence that defendant harbored the requisite specific intent.”
(Ibid.) Similarly, in Prieto, the prosecution alleged in
aggravation that the defendant possessed deadly weapons while
in jail in violation of section 4574. (Prieto, supra, 30 Cal.4th at
p. 269.) The defendant asserted the trial court’s instruction on
section 4574 was deficient because it did not require the jury to
find that he knew of the weapon’s presence and its nature as a
deadly weapon. (Ibid.) The defendant admitted he possessed
the weapons — two half-foot-long shanks with sharpened ends
hidden under the defendant’s bunk — for protection, and offered
no evidence suggesting that he did not know of the weapons’
presence in his cell and their nature as deadly weapons. (Ibid.
We held that any instructional error was harmless beyond a
reasonable doubt. (Ibid.
In the present case, even assuming a deficiency in the
instructions, the evidence pointed unerringly toward
defendant’s culpability in the commission of the robbery of
Kinsey as an aider and abettor. Defendant approached Kinsey
with three other individuals, one of whom grabbed Kinsey’s
briefcase and fled. Defendant pushed Kinsey, threatened to
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“fuck [Kinsey] up,” pulled back his fist as if he was going to
punch Kinsey, and demanded more money from him. Given the
overwhelming evidence, there is no reasonable possibility that
the trial court’s failure to instruct on aider and abettor liability
would have affected the jury’s penalty deliberations. Defendant
does not contend that the evidence would be insufficient to
support a finding that he committed the robbery of Kinsey as an
aider and abettor, nor does he claim that the criminal activity
did not involve the use of force or violence or the express threat
to use violence. (See Cain, supra, 10 Cal.4th at p. 73 [proper
focus for consideration of prior violent crimes in aggravation is
on the facts of the defendant’s past actions as they reflect on his
character, not the labels assigned to the past crimes;
accordingly, the instructions were not essential to the jury’s
consideration of crimes in aggravation under section 190.3,
factor (b)].) And that evidence notwithstanding, we see no
reasonable possibility that defendant would have obtained a
more favorable outcome if the aider and abettor instruction had
been given, in light of the great weight of the aggravating
evidence against him.
5. Challenges to California’s death penalty law
Defendant challenges the constitutionality of numerous
features of California’s capital sentencing scheme. We have
repeatedly considered and rejected such challenges, and
defendant offers no persuasive reason for us to reconsider the
following conclusions:
“Section 190.3, factor (a), under which the jury may
consider the ‘circumstances of the crime’ as a factor in
aggravation or mitigation of penalty, is not so broad as to make
imposition of a death sentence arbitrary and capricious.”
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(People v. Souza (2012) 54 Cal.4th 90, 141–142; People v. Brown
(2004) 33 Cal.4th 382, 401.
“The death penalty scheme is not unconstitutional for
failing to require . . . findings beyond a reasonable doubt as to
the existence of aggravating factors other than section 190.3,
factors (b) and (c), that aggravating factors outweigh mitigating
factors, or that death is the appropriate penalty.” (People v.
Leon (2020) 8 Cal.5th 831, 853.) The United States Supreme
Court’s decisions in Cunningham v. California (2007) 549 U.S.
270, Blakely v. Washington, supra, 542 U.S. 296, Ring v.
Arizona, supra, 536 U.S. 584, and Apprendi v. New Jersey,
supra, 530 U.S. 466 do not alter these conclusions. (Bramit,
supra, 46 Cal.4th at p. 1250 & fn. 22.
“Because the decision whether to sentence a defendant to
death is essentially a normative one, we have held the
prosecution bears no burden of persuasion in the penalty phase.”
(People v. Virgil (2011) 51 Cal.4th 1210, 1289.) “Nor does the
federal or state Constitution require an instruction explaining
that there is no burden of proof in the penalty phase.” (Ibid.
“The death penalty law is not unconstitutional because it
does not require unanimous jury findings, beyond a reasonable
doubt, that particular aggravating factors (other than prior
criminality) exist.” (People v. Amezcua and Flores (2019
6 Cal.5th 886, 928; People v. McDaniel (2021) 12 Cal.5th 97,
142–148.
“CALJIC No. 8.88 is not constitutionally flawed or
impermissibly vague because (1) it uses the phrase ‘so
substantial’ to compare aggravating factors with the mitigating
factors [citations]; (2) it uses the term ‘warrants’ instead of
appropriate’ [citations]; (3) it fails to instruct the jury that a life
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sentence is mandatory if the aggravating factors do not
outweigh the mitigating factors [citations]; [and] (4) it fails to
instruct that a verdict of life in prison could be returned even if
the circumstances in aggravation outweighed those in
mitigation.” (People v. Rogers (2009) 46 Cal.4th 1136, 1179.
“[T]he death penalty law is constitutional though it . . .
does not require that the jury be instructed on the presumption
of life.” (People v. Jones (2003) 29 Cal.4th 1229, 1267, italics
omitted.
“The trial court has no obligation to delete from CALJIC
No. 8.85 inapplicable mitigating [or aggravating] factors.”
(People v. Cook (2006) 39 Cal.4th 566, 618.
“[T]here is no Eighth Amendment requirement that our
death penalty procedures provide for intercase proportionality
review.” (People v. Navarro (2021) 12 Cal.5th 285, 346; People
v. Snow (2003) 30 Cal.4th 43, 126.
“The capital sentencing scheme does not violate equal
protection by denying certain procedural protections to capital
defendants that are available to noncapital defendants.” (People
v. Scully (2021) 11 Cal.5th 542, 612; People v. Molano (2019
7 Cal.5th 620, 678.
“California’s death penalty does not violate international
law or international norms of decency.” (People v. Frederickson
(2020) 8 Cal.5th 963, 1027; People v. Powell (2018) 5 Cal.5th 921,
965.
Because defendant has not demonstrated any basis for
this court to find error in California’s death penalty laws, there
is no reason to conclude that the cumulative impact of the
alleged deficiencies in California’s death penalty scheme
renders it constitutionally infirm. (People v. Williams (2013
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58 Cal.4th 197, 296; People v. Garcia (2011) 52 Cal.4th 706,
756.
6. Cumulative effect of asserted guilt and penalty
phase errors
Defendant contends that the penalty judgment must be
reversed due to the cumulative prejudice of the alleged errors
committed during the guilt and penalty phases in violation of
his due process right to a fundamentally fair and reliable trial
under the California and federal Constitutions. We have found
one harmless error in the guilt phase: the trial court’s failure to
instruct the jury on confessions in addition to admissions. We
have found or assumed two errors, but no prejudice, in the
penalty phase: the trial court’s exclusion of Towne’s testimony
as evidence of lingering doubt under section 190.3, and the
court’s failure to instruct on aider and abettor liability after the
prosecution presented evidence pursuant to section 190.3,
factor (b) that defendant committed second degree robbery as an
aider and abettor. We conclude that the cumulative effect of
these errors does not warrant reversal of the penalty judgment.
(People v. Johnson (2019) 8 Cal.5th 475, 525; People v. Panah
(2005) 35 Cal.4th 395, 479–480.
C. Newly Conferred Discretion Concerning the
Firearm and Serious Felony Enhancements
Defendant contends that certain ameliorative legislation,
enacted after he was sentenced, applies retroactively to his case
and that a limited remand is appropriate to allow the trial court
to consider its newly conferred sentencing discretion. We agree.
On January 1, 2018, Senate Bill No. 620 (2017–2018 Reg.
Sess.) became effective. (Stats. 2017, ch. 682, §§ 1, 2.) The bill
vested courts with authority to exercise their discretion to strike
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or dismiss firearm enhancements imposed under section
12022.5 (see § 12022.5, subd. (c)). Prior to the enactment of
Senate Bill No. 620, these enhancements were mandatory.
(§ 12022.5, former subd. (c).
On January 1, 2019, Senate Bill No. 1393 (2017–2018 Reg.
Sess.) became effective. (See Stats. 2018, ch. 1013, §§ 1, 2.) This
legislation amended sections 667, subdivision (a) and 1385,
subdivision (b) to permit a trial court to exercise discretion to
strike or dismiss prior serious felony enhancements “in the
furtherance of justice.” (See Stats. 2018, ch. 1013, §§ 1, 2.) At
the time defendant was sentenced, the trial court was required
under section 667, subdivision (a), to enhance the sentence
imposed for conviction of a serious felony by five years for each
qualifying prior serious felony conviction.
The Attorney General agrees that Senate Bill No. 620
(2017–2018 Reg. Sess.) and Senate Bill No. 1393 (2017–2018
Reg. Sess.) apply retroactively to defendant’s case, but
maintains that a remand is unnecessary because the trial court
indicated an intent not to strike the enhancements. The
Attorney General argues that remand for resentencing is
unwarranted because the trial court’s statements and
sentencing choices suggest that it would not have exercised its
discretion to dismiss the enhancements.
Based on our review of the record, we do not glean a clear
indication that the trial court, when it originally sentenced
defendant, would not have stricken the enhancements. (See,
e.g., People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) Thus,
we agree that a limited remand is appropriate under the
circumstances for the sole purpose of allowing the trial court to
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consider whether to exercise its newly conferred discretion and
strike the enhancements.
III. DISPOSITION
The judgment is affirmed in its entirety. The matter is
remanded for the trial court to consider whether to strike the
prior serious felony enhancement under section 667,
subdivision (a) and the firearm enhancements under section
12022.5, subdivision (a), and thereafter to amend the abstract of
judgment accordingly.
CANTIL-SAKAUYE, C. J.
We Concur:
CORRIGAN, J.
GROBAN, J.
JENKINS, J.
GUERRERO, J.
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S138052
Concurring Opinion by Justice Groban
I concur fully with the majority, but write separately to
expand on the majority’s observation that “[w]e are not asked to
decide whether defendant was prejudiced by defense counsel’s
failure to secure [eyewitness Matthew] Towne’s appearance at
the guilt phase trial[.]” (Maj. opn., ante, at pp. 60–61, fn. 8.) As
described more fully below, I believe a habeas corpus proceeding
would be the appropriate forum to explore such a claim.
Defendant Tupoutoe Mataele contends that Towne’s
testimony would have been valuable to his defense. “According
to defense counsel’s offers of proof made at the guilt and penalty
phases . . . , Towne would have testified that he saw a shooter
with a thin build in the parking lot across the street. At the time
of the shooting, defendant weighed more than 300 pounds;
[Ryan] Carrillo was closer to 160 pounds.” (Maj. opn., ante, at
p. 37.) This testimony would have been consistent with
eyewitness John Fowler’s trial testimony; Fowler described the
shooter as having a thin-to-medium build and being about 5 feet
10 inches. Like Fowler, Towne was a disinterested third-party
eyewitness. As the majority recognizes, “Towne’s testimony
would have been relevant and admissible at the guilt phase, but
he could not be located.” (Maj. opn., ante, at p. 66.
But defense counsel made a decision that did not work out
well for his client. Counsel decided not to legally compel Towne’s
appearance at trial, and instead relied on Towne’s voluntary
1
PEOPLE v. MATAELE
Groban, J., concurring
appearance.1 When trial commenced and counsel could not
locate Towne, the trial court afforded defense counsel some time
to secure Towne’s appearance at trial, but ultimately declined
“to delay the trial anymore to try to get a witness in here who
may never appear before the court.” As such, Towne’s testimony
was not presented to the jury during the guilt phase of Mataele’s
trial. While the defense located Towne before the penalty phase,
the trial court precluded Towne from testifying on the basis that
his testimony constituted new evidence on the issue of guilt.
(Maj. opn., ante, at p. 61.
“As we have observed in the past, certain practical
constraints make it more difficult to address ineffective
1
In seeking a mid-trial continuance, defense counsel
presented testimony from Defense Investigator David
Carpenter, who described for the trial court his efforts to locate
Towne. In so doing, Carpenter explained in part, “[w]e didn’t
subpoena Mr. Towne because Mr. Towne was at all times
friendly. California subpoena in Nevada is worthless. It was
the suggestion to [defense counsel] that we not go through the
interstate compact that would serve to alienate him. I didn’t
feel it was appropriate and a waste of time.” The “interstate
compact” referred to by Carpenter is more formally known as
the Uniform Act to Secure the Attendance of Witnesses from
without the State in Criminal Cases (“the Act”). (See Pen. Code,
§ 1334.) The California Legislature adopted the Act in 1937,
with slight modifications, as sections 1334 to 1334.6 of the Penal
Code. (See People v. Cavanaugh (1968) 69 Cal.2d 262, 266.) The
Act has now been adopted in all fifty states, plus the District of
Columbia, Puerto Rico, and the Virgin Islands. (Studnicki &
Apol, Witness Detention and Intimidation: The History and
Future of Material Witness Law (2002) 76 St. John’s L.Rev. 483,
532.) It permits a court to order that a material witness in a
criminal prosecution be taken into custody in another state and
delivered to the court to ensure the witness’s attendance at trial.
(Pen. Code, §§ 1334–1334.6.
2
PEOPLE v. MATAELE
Groban, J., concurring
assistance claims on direct appeal rather than in the context
of a habeas corpus proceeding. [Citations.] The record on
appeal may not explain why counsel chose to act as he or she
did.” (People v. Mickel (2016) 2 Cal.5th 181, 198 (Mickel).)
Perhaps for this reason, Mataele’s appellate counsel does not
ask us here to consider whether trial counsel was ineffective.
In order to make a showing of ineffective assistance of
counsel, a defendant must satisfy the two-prong standard
under Strickland v. Washington (1984) 466 U.S. 668. First,
“the defendant must show that counsel’s representation fell
below an objective standard of reasonableness.” (Id. at p. 688.
Second, the court asks whether “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” (Id. at
p. 694; see also People v. Johnson (2016) 62 Cal.4th 600, 653.
As to the question of deficient performance, we do not
have the benefit of a declaration from defense counsel, but
notably, in moving for a new trial, counsel argued that “a new
trial should be granted in the guilt phase based on Matt
Towne’s expected testimony.” He tried to characterize Towne’s
expected testimony as “newly discovered evidence” and
asserted in part, “[a]ssuming arguendo a lack of due diligence
in discovering the evidence presented at the motion for a new
trial, this lack of due diligence cannot justify a denial of the
new trial motion where the newly discovered evidence would
probably lead to a different result at trial. If a trial court
determines that a defendant did not have a fair trial on the
merits and that by reason of the newly discovered evidence the
result could reasonably and probably be different on retrial, it
should not seek to sustain an erroneous judgment imposing
3
PEOPLE v. MATAELE
Groban, J., concurring
criminal penalties on the defendant as a way of punishing
defense counsel’s lack of diligence.”
I take no view on the reasonableness of trial counsel’s
actions. (Cf. People v. Sanders (1995) 11 Cal.4th 475, 523
[considering the phrase “reasonable diligence” within the
meaning of Evidence Code, section 240, subdivision (a)(5) and
explaining, “ ‘[w]hat constitutes due diligence to secure the
presence of a witness depends upon the facts of the individual
case. [Citation.] The term is incapable of a mechanical
definition’ ”].
Similarly, I take no position on whether Mataele was
prejudiced by any potential ineffectiveness by trial counsel.
Again, “[w]e are not asked to decide whether defendant was
prejudiced by defense counsel’s failure to secure Towne’s
appearance at the guilt phase trial[.]” (Maj. opn., ante, at
pp. 60–61, fn. 8.) The question of counsel’s ineffectiveness at
the guilt phase, and any prejudice therefrom, poses a distinct
question from the question debated by the majority and the
dissent, i.e., whether Mataele was prejudiced by the trial
court’s erroneous exclusion of Towne’s testimony at the
penalty phase.
On habeas corpus, a petitioner provides a court with
“reasonably available documentary evidence supporting the
claim, including pertinent portions of trial transcripts and
affidavits or declarations.” (People v. Duvall (1995) 9 Cal.4th
464, 474.) Mataele can provide sworn declarations as to why
defense counsel did not use legal process to secure Towne’s
testimony at the guilt phase. Similarly, additional evidence,
including declarations, might further illuminate exactly what
4
PEOPLE v. MATAELE
Groban, J., concurring
Towne would have testified to and if it would have been helpful
to the defense at guilt. Moreover, if an order to show cause
issues, the court may conduct an evidentiary hearing and hear
directly from relevant witnesses, including (if they are
available) Mataele’s trial counsel, Mataele’s investigator
(Carpenter) and, most significantly, Towne himself. (In re
Figueroa (2018) 4 Cal.5th 576, 587) [if “the court conclude[s]
there are factual issues in dispute, ‘it may appoint a referee
and order an evidentiary hearing’ ”].) In sum, this is a highly
fact-specific inquiry that will benefit from additional argument
and evidence that is not part of the record before us on direct
appeal. This is precisely what a habeas corpus proceeding is
best suited for. (Cf. Mickel, supra, 2 Cal.5th at p. 198.
GROBAN, J.
5
PEOPLE v. MATAELE
S138052
Concurring and Dissenting Opinion by Justice Liu
Defendant Tupoutoe Mataele was sentenced to death by a
jury wrongly prevented from hearing testimony from an
eyewitness who would have described the shooter in a manner
inconsistent with Mataele’s size. As today’s opinion holds, the
trial court erred in excluding this testimony in the penalty
phase. (Maj. opn., ante, at p. 67.) But I cannot agree with
today’s further holding that the error was harmless. In the
circumstances here, I believe the error was of the sort that “may
have led a single juror to vote for the death penalty, who, if the
error had not occurred, would not have done so.” (People v. Terry
(1964) 61 Cal.2d 137, 153 (Terry).
Mataele weighed 300 to 350 pounds at the time of the
shooting. Eyewitness Matthew Towne would have described the
shooter to the jury as a male wearing a cap who “definitely had
a thin build” and was around 160 to 170 pounds, “definitely not
anywhere near 300 pounds.” Ryan Carrillo, who accepted a six-
year plea deal to testify against Mataele, and whom the defense
argued was the actual shooter, weighed 145 pounds and
admitted to wearing a cap the night of the shooting.
The prosecution’s case against Mataele rested on Carrillo’s
immunized testimony and John Masubayashi’s limited view of
the shooter’s forearm. Towne’s testimony would have matched
the description provided by another eyewitness, John Fowler,
who described the shooter as a man half the size of Mataele. In
1
PEOPLE v. MATAELE
Liu, J., concurring and dissenting
my view, “there is a reasonable possibility” that Towne’s
testimony would have been sufficient to create a lingering doubt
about the shooter’s identity and thereby cause one or more
jurors to select a different penalty. (People v. Gay (2008
42 Cal.4th 1195, 1227 (Gay).) Under the applicable standard of
review, the death verdict cannot stand.
A penalty phase error requires reversal if “ ‘there is a
reasonable possibility such an error affected a verdict.’ ” (People
v. Nelson (2011) 51 Cal.4th 198, 218, fn. 15, italics omitted.
This standard “ ‘is the same, in substance and effect, as the
harmless beyond a reasonable doubt standard of Chapman v.
California (1967) 386 U.S. 18, 24.’ ” (Ibid., italics omitted.) It is
not satisfied so long as there is a doubt “based upon ‘reason.’ ”
(Jackson v. Virginia (1979) 443 U.S. 307, 317.) A “reviewing
court making this harmless-error inquiry” must not “ ‘become in
effect a second jury.’ ” (Neder v. United States (1999) 527 U.S.
1, 19.) We ask only whether absence of the error “could
rationally lead to a contrary finding.” (Ibid.) This stringent
standard serves to ensure “ ‘reliability in the determination that
death is the appropriate punishment in a specific case.’ ” (People
v. Brown (1988) 46 Cal.3d 432, 448.) “Anything less [than the
Chapman standard] would force a reviewing court to run a
constitutionally unacceptable risk of affirming a judgment
against a human being for whom death may not be the
appropriate penalty.” (Id. at p. 470 (conc. opn. of Mosk, J.).
Today’s opinion discounts Towne’s testimony because he
saw the shooter for only a few seconds across a dark parking lot.
It states that because defense counsel proffered that Towne’s
testimony would be “ ‘pretty consistent with Fowler’s testimony
. . . ,’ we can also take note that Fowler’s testimony was replete
with references to the poorly lit conditions and difficulty in
2
PEOPLE v. MATAELE
Liu, J., concurring and dissenting
discerning any of the shooter’s distinguishing features,
including how big he was. As Fowler put it, he saw a ‘basic
shadow.’ ” (Maj. opn., ante, at pp. 67–68.) But Fowler
repeatedly testified that he was “sure” the shooter was not 300
pounds and that the shooter did not approach the size of
Mataele. And, as Towne indicated in a declaration, Towne was
prepared to testify that the shooter was a 5’ 8” to 6” tall male
who “definitely had a thin build” and “was definitely not
anywhere near 300 pounds.”
Beyond having obvious “exculpatory value” standing on its
own, as the Attorney General’s briefing concedes, Towne’s
testimony would have served an important role in relation to the
other eyewitness testimony. The only third party eyewitnesses
were Towne, Fowler, and Jose Rodriguez. At the scene,
Rodriguez told police that the shooter was of “medium” build. At
trial, he testified that the shooter was “kind of maybe heavyset”
based on the baggy clothes he observed, but that his recollection
would have been better at the scene and that if there was a
discrepancy, he would go with what he initially told police.
Fowler initially described the shooter as having thin build and
wearing a cap. At trial, he maintained that the shooter had
thin-to-medium build and wore a beanie.
Towne’s testimony that the shooter had thin build would
have reinforced Fowler’s testimony and lent credence to
Rodriguez’s statements at the scene. Towne’s testimony would
have broken any perceived tie between Rodriguez’s testimony
and Fowler’s testimony about the shooter’s size and would have
supported Fowler’s testimony that the shooter was wearing a
hat (Rodriguez could not recall whether the shooter was wearing
a hat). The fact that each eyewitness observed the shooter in
poor lighting conditions made the fact that Towne’s testimony
3
PEOPLE v. MATAELE
Liu, J., concurring and dissenting
corroborated Fowler’s of even greater value. The prosecutor
recognized the consequential nature of Fowler’s testimony for
the defense, emphasizing his cross-examination of Fowler in
closing argument. A second, disinterested eyewitness providing
the same description of the shooter in the parking lot
inconsistent with Mataele’s physical appearance would have
more strongly countered the prosecution’s case than Fowler’s
testimony alone.
The court notes that a defense investigator’s affidavit
stated that Towne described the shooter to him as Black, “which
lined up with Rodriguez’s initial statement to police officers and
Fowler’s subsequent interview with defense investigators” and
“would have pointed away from Carrillo and toward defendant,”
who is Tongan. (Maj. opn., ante, at p. 68.) But Towne’s affidavit
makes no mention of the shooter’s race, and despite what the
court “assume[s]” (id. at p. 67), we do not know what Towne
would have said on this point if he had testified. It does not
appear Towne identified the shooter’s race at the scene. Nor did
Fowler, who testified at trial that he could not determine the
race of the person and had mistakenly told a defense
investigator years later that the shooter was African American
because he “assumed that person to be” based on the person’s
“silhouette . . . , the way the person was walking holding the
gun.” Rodriguez testified that while he described the shooter as
Black at the scene, he could not tell what ethnicity the shooter
was, see the shooter’s face, or recall why he thought the person
was Black. In sum, it is unlikely that whatever testimony
Towne might have offered about the shooter’s race would have
appreciably diminished the significance of his testimony,
corroborating Fowler’s, about the shooter’s size as a basis for
lingering doubt.
4
PEOPLE v. MATAELE
Liu, J., concurring and dissenting
Today’s opinion says Towne’s testimony would have
“pale[d] in comparison to the evidence at the guilt phase . . .
establishing defendant’s guilt.” (Maj. opn., ante, at p. 68.
However, a jury “may properly conclude that the prosecution
has discharged its burden of proving defendant’s guilt beyond a
reasonable doubt but . . . may still demand a greater degree of
certainty of guilt for the imposition of the death penalty.”
(Terry, supra, 61 Cal.2d at pp. 145–146.) The question is
whether it is within reason that Towne’s testimony may have
prevented “absolute certainty” in the mind of one or more jurors
and thereby “mitigate[d] against imposing the death penalty.”
(Gonzalez v. Wong (9th Cir. 2011) 667 F.3d 965, 993.) A juror
entertaining “doubt, however slight” (People v. Hamilton (2009
45 Cal.4th 863, 950), “which does not rise to reasonable doubt[,]
can be expected to resist those who would impose the irremedial
penalty of death” (Smith v. Balkcom (5th Cir. 1981) 660 F.2d
573, 581).
As noted, the prosecution’s case at the guilt phase focused
on the testimony of Carrillo and Masubayashi. Although the
jury may have found their testimony credible beyond a
reasonable doubt, their testimony was hardly so compelling as
to foreclose any possible doubt about Mataele’s role.
Carrillo, who faced special circumstance murder charges,
gave an immunized statement about his involvement in the
crime, naming Mataele as the shooter. He then pled guilty to
reduced charges and a six-year sentence. Carrillo testified he
would have done anything to get out of jail at the time of his
statement, and the jury was instructed to view his testimony
with caution. Fowler’s eyewitness testimony described a shooter
half the size of Mataele and wearing a cap, as Carrillo was
wearing that night. And Shawn Monroe testified that Carrillo
5
PEOPLE v. MATAELE
Liu, J., concurring and dissenting
asked him for help finding someone to provide fake
identification documents because “[Carrillo] said he just shot
some fools out in Orange County” and “need[ed] to leave town.”
Mataele testified that Carrillo was the shooter, and Allan
Quiambao testified Carrillo admitted to the shooting in 2001.
Carrillo’s testimony was also inconsistent with the
prosecution’s other evidence on key points. Carrillo said he was
in the car with Masubayashi when Danell Johnson and
Masubayashi were shot; Masubayashi said Carrillo got out of
the vehicle before any shots were fired. Carrillo had blood on
his clothes, inconsistent with forensic evidence that there was
no blood spatter anywhere near where Carrillo alleged to have
been sitting at the time of Johnson’s death. All of the blood
inside and outside of the vehicle was to the right of Johnson
where the shooter would have stood.
Towne, on the other hand, was a disinterested eyewitness
whose testimony may have been given more weight than
Carrillo’s. His testimony, combined with Fowler’s, may have
further drawn Carrillo’s testimony into doubt.
As for Masubayashi, he was in the car with Johnson but
was not looking in Johnson’s direction when Johnson was shot.
Masubayashi testified that he saw Mataele’s forearm holding a
gun pointing into the car after hearing the shot that killed
Johnson. But Masubayashi did not see who was shooting at him
as he took off across the parking lot, which is what Towne would
have testified to. At the scene, Masubayashi told an officer who
asked who shot him, “ ‘patch me up and I’ll tell you.’ ” In the
hospital, Masubayashi first maintained that he could not
identify whether the shooter was Mataele, Carrillo, or someone
from the neighboring car; he said he “d[id not] know who” shot
6
PEOPLE v. MATAELE
Liu, J., concurring and dissenting
him “because [he] c[ouldn’t] even see.” Nor could Masubayashi
identify the gun when he was first interviewed. He thought the
shooter was Mataele because Mataele had a gun earlier that
evening, and a week after the shooting, Masubayashi continued
to name Mataele as the shooter. But he indicated he was still
not sure because he could not see the shooter’s face and the
events occurred too quickly.
In these circumstances, it seems quite plausible that the
jury could have credited aspects of Carrillo’s and Masubayashi’s
testimony while still harboring some doubt about Mataele’s role.
Further, although the jury could have understood aspects of
Quiambao’s and Sia Her’s testimony to suggest that Mataele
was the shooter, their testimony was also not inconsistent with
the defense’s theory that while Mataele was present and carried
a gun earlier that evening, Carrillo was the shooter. The jury
requested readbacks of Quiambao’s, Masubayashi’s, Carrillo’s,
and Her’s testimony, indicating they were “focused on
defendant’s role in the murder” and did not view this as an
airtight case. (Gay, supra, 42 Cal.4th at p. 1227.) The
prosecutor’s argument in the penalty phase focused in large part
on the circumstances of the crime, describing it as a “cold-
blooded,” “calculated murder” that warranted a death verdict.
Admitting Towne’s testimony at the penalty phase would have
appreciably weakened the case in aggravation. In sum,
although there was sufficient evidence for the jury to conclude
beyond a reasonable doubt that Mataele was the shooter, there
is a reasonable possibility that had Towne’s testimony been
admitted, at least one juror would have “demand[ed] a greater
degree of certainty of guilt for the imposition of the death
penalty.” (Terry, supra, 61 Cal.2d at pp. 145–146.
7
PEOPLE v. MATAELE
Liu, J., concurring and dissenting
Today’s opinion also relies on the prosecution’s other
penalty phase evidence in finding the error harmless, but the
evidence was hardly overwhelming. The prosecutor presented
victim impact testimony from two of Johnson’s cousins and Sia
Her, who was Johnson’s girlfriend at the time of the shooting.
The prosecution also introduced evidence of three prior
incidents that were not especially aggravated; indeed, the
prosecutor told the jury in his penalty phase opening statement
that these “may not be the most violent crimes you’ve heard
about in your whole life.” First, Deputy Sheriff Claude Waddle
testified that Mataele, at age 13, admitted to exposing himself
to and touching two classmates on the breast and buttocks. One
of the victims testified that she “vaguely remember[ed]” Mataele
exposing himself to her and did not remember him ever touching
her. Second, Thomas Kinsey testified that when Mataele was
17 years old, four individuals confronted him (Kinsey) for his
briefcase and asked him for money. Officer David Dooros
testified that he observed Mataele push Kinsey and draw back
his arm as if to punch Kinsey. Dooros broke up the scene and
Kinsey was unharmed. Third, John Hagen testified that when
Mataele was 19 years old, Mataele put a gun to his (Hagen’s
head and took his wallet. Mataele pled to five years for armed
robbery.
In total, the prosecution’s penalty phase case-in-chief was
comprised of eight witnesses, lasted less than a day, and took up
fewer than 70 pages of the reporter’s transcript. There was no
rebuttal.
The defense’s case in mitigation, by contrast, lasted seven
days and included 32 witnesses. Numerous witnesses described
generational violence, poor supervision and discipline, and
Mataele’s father’s alcohol abuse. Relatives described how
8
PEOPLE v. MATAELE
Liu, J., concurring and dissenting
Mataele and his mother were brutally beaten by his father for
decades. Mataele tried to protect his mother and younger
siblings from their father. Mataele also supported the family
financially at times and helped care for a disabled family
member, Cece, whom he loved like a daughter. In addition,
family members, friends, teachers, and coaches described
Mataele as smart, loving, artistic, respectful, and kind. Mataele
organized weekly “family home meetings” to encourage the kids
in the family to go to school and other family members to get a
job, help one another, and stay out of trouble. Thirty to fifty
family members would attend each week, and Mataele led the
meetings. Witnesses described how Mataele’s advice led them
to positive lifestyle changes. Further, medical and correctional
experts described Mataele’s intelligence and ability to benefit
from educational opportunities; reviewed his confinement
records and reported no incidents involving drugs, weapons, or
gang activity; and testified that Mataele would be a “good
candidate to lead a productive, nonviolent life in prison.” The
trial court said it thought defense counsel was doing “a
marvelous job in presenting a different picture of Mr. Mataele
to this jury” and in bringing evidence “in front of the jury
regarding a defendant’s other personality . . . than . . . a
coldblooded killer.”
The penalty trial in this case was not an instance where
the totality of the evidence portrayed the defendant as
irredeemably depraved or dangerous. The jury was ultimately
unpersuaded by the defense evidence of Mataele’s background
and character. But Towne’s testimony would not have been
cumulative of such evidence. Instead, it would have responded
directly to the prosecution’s reliance on the brutality of the
murder by sowing doubt about Mataele’s role. If Towne had
9
PEOPLE v. MATAELE
Liu, J., concurring and dissenting
been allowed to testify at the penalty phase, it is reasonably
possible that one or more jurors would have refrained from
voting for death because of lingering doubt as to whether
Mataele was the shooter, among other mitigating factors.
The court considers it “significant[]” that the defense’s
penalty phase argument focused “not on lingering doubt, but on
defendant’s family history, background and character, brain
activity, and adjustment to prison as factors in mitigation.”
(Maj. opn., ante, at p. 69.) It contends that “defense counsel’s
failure to raise the issue even given Fowler’s admitted
testimony — which was essentially the same as Towne’s
excluded testimony — serves to further underscore the
inconsequential nature of the error.” (Id. at p. 70.) But it should
come as no surprise that the defense did not make a lengthier
lingering doubt argument when it was prohibited from
presenting the most persuasive evidence it had of Mataele’s
innocence. As noted, Fowler’s testimony on its own was of less
persuasive value than Towne’s testimony and Fowler’s
testimony would have been combined. Defense counsel plainly
would have made more of lingering doubt had Towne’s
testimony been admitted. Indeed, in objecting to the prosecutor
questioning Mataele about the shooting during Mataele’s
penalty phase testimony, defense counsel said, “We’re not here
to relitigate the whole guilt phase all over again. . . . If I wanted
to relitigate some stuff, which I couldn’t because I couldn’t even
put Towne on, well, then maybe it’s a different story. I’d be
reopening it. But I intentionally stayed away from relitigating
the guilt issues part because I couldn’t even present Mr. Towne
to establish some sort of lingering doubt.”
Even so, defense counsel did argue lingering doubt at some
length during his penalty phase closing argument. He also
10
PEOPLE v. MATAELE
Liu, J., concurring and dissenting
continued to urge the jury to question the credibility of
Masubayashi and Carrillo, noting they were the “cornerstone”
and “foundation” of the prosecution’s case. And he reminded the
jury that “just because we didn’t repeat it during the penalty
phase doesn’t mean you are precluded from considering it
during this second phase.” It is clear that defense counsel
wanted the jury to continue to consider evidence that Mataele
was not the shooter. On this record, I see no basis for concluding
that “defense counsel’s failure to raise the issue . . . serves to
further underscore the inconsequential nature of the error.”
(Maj. opn., ante, at p. 70.
Finally, the trial court’s instruction on lingering doubt
does not tend to show that the exclusion of Towne’s testimony
was harmless. If anything, the fact that the prosecution did not
oppose the instruction and the trial court agreed to issue it,
despite recognizing its discretion not to do so, confirms that the
defense theory of lingering doubt was in play. Because the
exclusion of Towne’s testimony reduced the value of the
requested instruction to the defense, I cannot conclude that the
error was harmless.
The standard of review here bears emphasis: The
erroneous exclusion of Towne’s testimony can be found harmless
only if there is no reasonable possibility that absent the error,
the balance of aggravating and mitigating factors, including
lingering doubt, would have led one or more jurors to vote for
life imprisonment without parole instead of death. Although my
colleagues are confident there is no such possibility, I am not.
Given the circumstances of this capital sentencing trial, it is
hard to think of evidence more potentially consequential than
eyewitness testimony identifying someone other than the
defendant as the actual killer. It is reasonably possible that one
11
PEOPLE v. MATAELE
Liu, J., concurring and dissenting
or more jurors would not have been certain beyond all possible
doubt that Mataele was the shooter and, on that basis, would
have refrained from voting for death. Accordingly, I respectfully
dissent from the penalty judgment while joining today’s opinion
affirming Mataele’s convictions.
LIU, J.
I Concur:
KRUGER, J.
12
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Mataele
Procedural Posture (see XX below
Original Appeal XX
Original Proceeding
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted
Opinion No. S138052
Date Filed: July 21, 2022
Court: Superior
County: Orange
Judge: James A. Stotler
Counsel:
Stephen M. Lathrop, under appointment by the Supreme Court, for
Defendant and Appellant.
Kamala D. Harris and Rob Bonta, Attorneys General, Gerald A. Engler
and Lance E. Winters, Chief Assistant Attorneys General, Julie L.
Garland and James William Bilderback II, Assistant Attorney
General, Holly D. Wilkens, Annie Featherman Fraser, Kristen
Kinnaird Chenelia and Donald W. Ostertag, Deputy Attorneys
General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Stephen M. Lathrop
904 Silver Spur Road #430
Rolling Hills Estates, CA 90274
(310) 237-1000
Donald W. Ostertag
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9557
Opinion Information
| Date: | Docket Number: |
| Thu, 07/21/2022 | S138052 |
