IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
San Bernardino County
Defendant and Appellant.
Super. Ct. No. FMB 01787
Defendant Martin Mendoza was convicted by a jury of the first degree
murders of Sandra Resendes, Eric Resendes, and Wendy Cervantes (Pen. Code,
§ 187, subd. (a)),1 as to which the special circumstance of multiple murder was
found to be true. (§ 190.2, subd. (a)(3).) Defendant was also convicted of the
attempted murders of Julio Cervantes, Antonio Cervantes, and San Bernardino
Sheriff’s Department Deputies Mark Kane and Stan Gordon (§§ 187, subd. (a),
664), and assault with a semiautomatic firearm on Rocio Cervantes and Sergio
Mendoza (§ 245, subd. (b); former § 12022.5, subds. (a), (d)2). The jury found
true the special allegation that defendant personally used a semiautomatic firearm.
(Former § 12022.5, subd. (b)(2).) The jury returned a death verdict. The trial
court declined to modify the verdict (§ 190.4, subd. (e)), and sentenced defendant
All further unlabeled statutory references are to the Penal Code.
Former section 12022.5 was repealed and replaced by a new section
12022.5 addressing the same subject matter. (Stats. 2002, ch. 126, § 3.)
to death on the murder counts. This appeal is automatic. (Cal. Const., art. VI,
§ 11, subd. (a); § 1239, subd. (b).) We affirm the judgment.
I. FACTUAL BACKGROUND
A. Guilt Phase
1. Prosecution’s Case
Defendant lived with Rocio Cervantes, his wife, in Carson City, Nevada.
Living with them were Rocio’s two teenage children from a previous relationship,
Sandra Resendes and Eric Resendes, and three younger children defendant and
Rocio had together, Sergio Mendoza, Martin Mendoza, Jr., and Edwardo
On January 5, 1996, defendant hit 13-year-old Sandra with a belt several
times for not helping him wash his truck, but stopped after Rocio interceded.
Defendant said he would not let Sandra sleep that night, forcing her to stand up all
night long as punishment. Rocio left defendant and Sandra alone. When she
returned, Rocio heard Sandra crying and telling defendant, “No,” and saw
defendant pulling Sandra by the hand. Defendant warned Rocio not to interfere,
repeating that Sandra was not going to go to sleep that night. Eventually,
defendant fell asleep on the couch. Rocio believed something else was going on
and dialed 911.
At 3:20 a.m. on January 6, 1996, 911 emergency dispatch received a hang-
up call that was traced to defendant’s residence. When Carson City Sheriff’s3
Deputies Graunke and Mathews arrived at the residence, Sandra told Deputy
Graunke that defendant had arrived home “very intoxicated” and “very angry.”
Carson City, Nevada is a consolidated municipality, and police services are
provided by the Carson City Sheriff’s Office.
Sandra told the deputy that defendant had used a belt to strike her approximately
seven times on the leg. Deputy Graunke observed redness and bruises shaped like
strap marks on Sandra’s legs. The deputies found defendant sleeping on the living
room couch and placed him under arrest for domestic battery. Deputy Graunke
attached Sandra’s witness statement to his incident report. In her statement,
Sandra wrote of defendant, “I at [sic] one time he told me that he was going to
touch me and he did.” Deputy Graunke’s report, however, does not mention the
topic of sexual abuse being broached with Sandra or Rocio.4
After the deputies arrested defendant and took him to the sheriff’s detention
facility, Sandra told Rocio that defendant had been sexually molesting her for
seven to eight months. Sandra told Rocio that the first time it happened defendant
came into her room at night, “hugged her, and was telling her not to yell, that
[Rocio] wasn’t home, and no one was going to say anything.” Sandra also told
Rocio that defendant touched her on her breasts, kissed her, “told her that he was
never gonna allow her to have a boyfriend.” Sandra said defendant told her he
“liked her, and not to tell [Rocio] anything” and that “when she was older she was
gonna be for him.” Sandra also told Rocio that defendant threatened to “kill us” if
Sandra told anyone. Sandra told Rocio that defendant had attempted to kiss her
that night before he had been arrested.
While investigating the murders, Detectives Cavenaugh and Wolf from the
San Bernardino Sheriff’s Department interviewed Deputy Graunke on February 2,
1996 about the January incident. In his interview report, Wolf wrote that “Deputy
Graunke asked Sandra if she was fondled or sexually abused by her father. Sandra
said there was no sexual abuse; her father hit her and she did not feel
That same night, Rocio told defendant’s brother, Hector, about Sandra’s
accusations and then took the children and left for the home of her brother,
Antonio Cervantes, in Landers, California.
Released on bail the next day, defendant returned home to find an empty
house. Defendant phoned Rocio and she confronted him with the details of
Sandra’s accusations.5 Defendant denied molesting Sandra and became very
angry. Defendant and Rocio spoke on the phone numerous times in the following
days, after which Rocio decided to return to Carson City with Sergio, Martin Jr.,
and Edwardo to attempt a reconciliation with defendant. Rocio left Sandra and
Eric in Landers because neither wanted to return. While in Carson City, Rocio
again discussed Sandra’s allegations with defendant, which he continued to deny.
Three days later, Rocio left defendant as a result of Sandra’s claims and returned
to Landers with the children. After she left, defendant phoned Rocio on six or
seven occasions. During those conversations, Rocio and defendant continued to
discuss Sandra’s accusations, which defendant still denied and which caused
defendant to become increasingly angry.
Several witnesses testified that defendant was greatly disturbed by Sandra’s
accusations and the departure of his family. He felt Sandra had betrayed him by
accusing him and that it was her fault that Rocio left and took the children. He
was unable to concentrate or go to work. He slept excessively and began drinking
heavily and using cocaine. He could not stay at his apartment alone, so he went to
his brother Hector’s home, where he would fall asleep on the couch. Defendant
At trial, there was some dispute over the timing of when Rocio informed
defendant of Sandra’s statements. However, it was undisputed that Rocio related
the statements to defendant before he later drove from Carson City to Landers to
pursue his family.
became unable to take care of his daily responsibilities. Hector urged him to go
home to Mexico, put his wife behind him, rest, and collect his thoughts.
Five days before the killings, defendant quit his job. On January 20, 1996,
he bought some extra ammunition for a nine-millimeter gun he owned, as well as
duct tape and a knife.
On January 24, 1996, defendant borrowed a car from his brother, Hector, to
drive to Landers to confront Rocio and Sandra. Defendant asked his nephew, Jose
Soria Delgado,6 to accompany him. On the way, defendant told Soria he intended
to kill Rocio and Sandra, adding he would use the knife in case the gun did not
work. Defendant’s plan was to have Soria drive him to Los Angeles International
Airport, from which defendant would fly to Mexico, while Soria returned the car
to his uncle.
Defendant and his nephew arrived in Landers at Antonio Cervantes’s house
around 6:00 a.m. on January 25, 1996. Around 6:30 or 6:45 a.m., defendant went
to the house and knocked. Angelica Cervantes, Antonio’s daughter, answered the
door and defendant told her he wanted to see Rocio. Angelica told Rocio, who
came to the door. Defendant was carrying a brown bag and was drinking a bottle
of beer. He did not appear drunk, although the smell of alcohol was apparent on
his breath. Rocio told him that she had to get the children ready for school.
Defendant pleaded with Rocio to come home with him and bring the children.
Rocio was not comfortable talking with defendant because she knew he owned a
gun and assumed he had brought it with him “because of what we had been
through.” She came outside to talk to him and let him hold the baby, Edwardo.
Soria was tried separately of these same charges and was found not guilty
on all counts.
Defendant held Edwardo for a while, telling him that “he was very little, and he
was not involved for [sic] what was going to happen.” Rocio asked defendant
what he meant by that statement. Defendant smiled and told Rocio to wait and she
would soon find out. Rocio took Edwardo and gave him to Angelica and then
Rocio went inside the house to get the children ready for school.
Julio Cervantes, Antonio’s son, then walked out of the house a little before
7:00 a.m., saw defendant and said hello to him. Julio left, taking his wife and
brother to school.
A little while later, Sandra and Wendy Cervantes, Antonio’s daughter, told
Rocio that defendant was banging on the door, so Rocio went outside again.
Defendant asked Rocio whether she was afraid of him. He told her to come
closer, asking repeatedly whether she was afraid of him. At that point it was
getting close to the time the rest of the children had to go to school. Julio returned
and the children went outside to go to school. Antonio was nearby on the porch.
Defendant told Rocio the children were not going to school. Antonio and
Julio told defendant the children needed to go to school and Julio told Sandra,
Eric, Sergio, Martin Jr., and Wendy to get in the car. The children got in the car
and defendant again yelled that no one was going to school. When Julio asked
why, defendant pulled out a gun. Defendant grabbed Rocio around the neck, and
pointed a gun at her head.
Julio asked defendant if he wanted Rocio and the children to return with
him. Julio pulled Sergio and Martin Jr. out of the car and said “[t]hey’re here. If
you want to take them, take them.” Antonio told defendant to put the gun away
because he was scaring the children. Julio stood next to Martin Jr., and told
defendant he was scaring the boy. Defendant then shot twice in Julio’s direction.
Antonio moved to take the gun away, but defendant shot at Antonio. Julio,
Antonio, and Sergio ran inside the house. At that moment, Soria drove away from
the house, afraid that he would be blamed for whatever was going to happen.
Defendant, still holding on to Rocio with a gun to her head, walked off the
porch and went next to the car. He ordered Martin Jr. to the car and told Sandra to
get out of the car, telling her he would kill her mom if she did not get out.
Defendant then let go of Rocio and grabbed Sandra by her neck, with the gun to
her head. Sandra began crying and defendant told her to stop. Defendant told her
not to cry because he was going to kill them anyway. Defendant told Rocio to go
around to the other side of the car and turn the car around so that it was facing the
street. Rocio did so and then got out of the car. Defendant told Sandra, Eric,
Wendy, and Martin, Jr., to get in the front seat, which they all did.
Defendant told Rocio to go inside and tell people not to call the police. He
told Rocio to tell Antonio that he also had his daughter, Wendy. Defendant said
that if the police were called, he would kill the children. Rocio asked defendant if
he wanted her to go back home with him, offering to take their biological children
and return with him. Defendant replied that it was too late. Defendant ordered
Rocio to get his knapsack from the porch and to bring it to him, which she did.
Defendant was upset and nervous and said he did not know what would
happen next. About three or four minutes passed. Rocio then heard defendant tell
Sandra, “Turn around to look at your mother. Look how she is and remember that
this is your fault. If you wouldn’t have told your mother anything, she would be
with me. And now both of you are going to die.” He told Sandra not to cry or he
would kill Rocio first. Defendant again told Rocio to go inside and to tell
everyone not to call the police or else he would kill the children.
Meanwhile, Julio phoned 911 and told dispatch what was happening,
warning that the officers needed to be careful because defendant had a gun to
Sandra’s head. Julio told dispatch the officers could get to his house via a rear
street because he was worried about what defendant might do. Nonetheless,
despite Julio’s warnings, patrol car sirens became audible just as Rocio was
entering the house. At that moment, defendant shot Sandra. Defendant then shot
the other children. Antonio attempted to go outside, but defendant shot at him.
When deputies from the San Bernardino Sheriff’s Department arrived, defendant
opened fire on them. The officers drew their guns and returned fire, wounding
defendant. Defendant attempted to flee, running to the side of the house. Julio,
who had been on the line with the 911 operator, dropped the phone and ran after
defendant. Defendant and the deputies continued to exchange gunfire. Defendant
slipped in some sand and Julio jumped on him and took his gun away. The
deputies took defendant into custody.
Rocio ran to see her children. Sandra was lying in a pool of blood. Wendy
was lying against the driver’s side window. Martin Jr. was under the car. Eric
was lying on the ground. Sandra was already dead but Wendy, Eric, and Martin
Jr. were still alive. Wendy and Eric died before emergency personnel arrived.
Martin Jr. survived.7
After they located Soria, the police found in the car a hand-drawn map to
Antonio’s house on which defendant had written Sandra’s name. Defendant had
also drawn a swastika and written the words “Mexican power kill.”
2. Defense Case
Defendant’s version of events largely tracked the prosecutor’s, but
defendant argued that he lacked the mental state necessary for first degree murder.
Defendant called Dr. Jose Moral, a forensic psychiatrist, who testified that Rocio’s
The jury was unable to reach a verdict on count four, which charged
defendant with the attempted murder of Martin Jr.
departure with the children caused defendant to develop a depressive disorder. Dr.
Moral testified that someone in that frame of mind would feel humiliated, angry,
and out of control if their wish that the children not go to school was overridden.
Dr. Moral also testified that the deputies arriving with their sirens activated would
have pushed such a person into a crisis state, perhaps rendering that person unable
to properly react to the situation. The problem would be exacerbated by the
presence of alcohol in one’s system.
Defendant also elicited testimony about the response of the deputies to the
situation in Landers. Defendant called Frank Saunders, a police practices expert,
who testified that the officers responded properly initially, but escalated the
situation by confronting defendant.
B. Penalty Phase
The prosecution’s case in aggravation consisted of four witnesses: Sergio,
Rocio, and Wendy’s parents, Antonio and Antonia Cervantes. They described the
sense of loss each felt due to the death of their family members.
Defendant’s mitigation case consisted of six witnesses. Dr. Joseph Lantz
testified about defendant’s limited mental functioning and low intellectual ability.
He testified that defendant felt overwhelmed as a result of the departure of his
family and his intellectual limitations left him unable to cope with the situation in
Landers. Three family members — defendant’s father, mother, and half-brother
— and two friends testified about defendant’s good qualities, his difficult
childhood, and their positive feelings for defendant.
A. Guilt Phase
1. Admission of Sandra’s Accusation
Defendant contends the trial court erred when it failed to exclude Rocio’s
testimony that Sandra accused defendant of sexually molesting her. First,
defendant argues Sandra’s statements constituted inadmissible hearsay (Evid.
Code, § 1200). Second, defendant claims admission of the accusations violated
the confrontation clause of the Sixth Amendment to the United States
Constitution, as construed by the high court in Crawford v. Washington (2004)
541 U.S. 36 (Crawford). Third, defendant contends that evidence related to the
accusations should have been excluded because its probative value was
substantially outweighed by the danger of undue prejudice (Evid. Code, § 352).
As previously set forth, after the Carson City Sheriff’s deputies arrested
defendant for hitting Sandra, she told Rocio defendant had been sexually
molesting her for the previous seven to eight months. Rocio took the children and
drove to her brother’s house in Landers. After defendant was released from jail,
he phoned Rocio and she confronted him with Sandra’s accusations, which he
angrily denied. Defendant and Rocio discussed Sandra’s claims in detail during
numerous other phone conversations as well. Defendant became depressed,
feeling betrayed by Sandra and blaming her in part for Rocio’s departure with the
children. Before killing Sandra and the other two children on January 25, 1996,
defendant told Sandra, “this is your fault. If you wouldn’t have told your mother
anything, she would be with me. And now both of you are going to die.”
On June 10, 1997, the prosecutor stated his intention to offer Sandra’s
statements as evidence in the guilt and penalty phase. Defense counsel filed a
motion in limine to exclude the statements as inadmissible hearsay and highly
prejudicial. At a hearing on the motion, the prosecutor argued the evidence did
not constitute hearsay because Sandra’s statements were not being offered to
prove defendant actually molested her, but instead that defendant knew of the
accusations and as evidence of his premeditation and motive for driving to
Landers to kill Sandra. The trial court agreed that the evidence was not offered for
a hearsay purpose.
Defense counsel next argued the court should exclude the evidence under
Evidence Code section 352. In defense counsel’s view, the evidence had minimal
probative value and was simply “icing on the cake” of the prosecutor’s case.
Additionally, any probative value was outweighed by the significant danger of
undue prejudice, given the nature of Sandra’s statements. The trial court
disagreed and denied defendant’s motion, although it stated it would give a
During the guilt phase, Rocio testified regarding Sandra’s accusations and
her own detailed communication of those accusations to defendant. Defense
counsel objected on hearsay grounds during Rocio’s testimony and requested the
court instruct the jury not to consider the statements for their truth. The prosecutor
responded, “That’s fine,” and the court stated that it would “so instruct the jury.”
The court admonished the jury during Rocio’s testimony that the statements were
not being offered for their truth but rather to explain defendant’s conduct. The
court also gave similar limiting instructions before the jury began their
Counsel also stipulated to the admission of the two incident reports:
Deputy Graunke’s incident report, which included Sandra’s written statement
accusing defendant of “touching” her, and Detective Wolf’s interview of Deputy
Graunke, in which Deputy Graunke stated Sandra denied having been sexually
abused by defendant.
During the prosecutor’s questioning of the forensic pathologist about the
autopsy conducted on Sandra, the prosecutor briefly addressed whether Sandra
had been molested. The prosecutor asked if Sandra’s body had been examined “to
ascertain whether or not there was any evidence that [Sandra] might have been
molested.” The pathologist testified that he had, but that there was no evidence of
molestation. Defense counsel did not object.
During the penalty phase, Sandra’s accusations were again discussed, albeit
mostly via indirect references. The prosecutor made only a slight reference to it in
his closing argument. Rocio briefly alluded to the accusations of sexual abuse on
two occasions. Defendant did not object to either the prosecutor’s reference or
Rocio’s testimony. Additionally, the psychologist testifying for the defense, while
on direct examination by defense counsel, stated “[w]e know that [defendant] was
upset because Sandra had spoken about abuse.”
Defendant renewed his objections to the admission of Sandra’s statements
in his posttrial motion to set aside the verdict. The trial court denied defendant’s
a. Hearsay Claim
The Evidence Code defines hearsay as “evidence of a statement that was
made other than by a witness while testifying at the hearing and that is offered to
prove the truth of the matter stated.” (Evid. Code, § 1200.) The trial court
concluded the prosecutor was not offering Sandra’s statements to prove defendant
actually molested her, but rather to prove defendant was aware of the accusations
and to explain defendant’s motive for killing Sandra. Accordingly, the evidence
did not constitute hearsay. We agree.
Sandra’s accusations were properly admitted to explain defendant’s state of
mind, motive, and conduct. (People v. Hill (1992) 3 Cal.4th 959, 987; People v.
Duran (1976) 16 Cal.3d 282, 295.) Rocio testified that, after Sandra told her
about defendant’s abuse, she had numerous conversations with defendant during
which she confronted him with the details of Sandra’s accusations. There is no
dispute defendant was aware of the accusations before he went to Landers.
Defendant argues the prosecutor’s actual purpose in presenting evidence of
Sandra’s accusations was to suggest defendant actually molested Sandra. The
record does not support defendant’s contention. The prosecutor contended
defendant’s anger about the allegations and their effect on his family led him to
murder Sandra and the other children. Indeed, as the prosecutor pointed out in his
closing argument in the guilt phase, the veracity of Sandra’s accusations was
immaterial to their relevance in explaining defendant’s motive. “Whether the
allegations were true or false, is not for you to consider. That’s not what we’re
here about. He’s not being tried for molestation. Sandra is not here to testify
about it. So just remember, it’s only there to help you understand that he was
angry, one way or the other. Either that he did [molest Sandra] and she copped on
him, or that he didn’t do it and she lied about it, but he was mad at her.”8
Furthermore, in his guilt phase opening statement, the prosecutor even
noted that Sandra had denied being abused to Deputy Graunke and that defendant
consistently denied doing so. The prosecutor made clear that the statements were
Defendant claims the prosecutor’s examination of the forensic pathologist,
during which the prosecutor asked whether the autopsy had revealed any evidence
of molestation, is evidence that the prosecutor sought to prove Sandra’s
accusations were true. However, the examination on this point was brief and only
resulted in testimony that there was no evidence of molestation. This exchange
does not establish that the prosecutor’s purpose was to prove the accusations true.
only being offered to explain defendant’s conduct because, true or not, “the claim
was made, and Rocio was furious about it, and she took the kids while he was in
jail and left. . . . [¶] . . . [¶] This disturbed him a great deal. He started thinking
about it incessantly about five days before the killings took place.”
Accordingly, we conclude the trial court correctly admitted the statements
for the limited nonhearsay purpose for which it was offered.9
b. Sixth Amendment and Confrontation Clause Claim
Defendant contends the admission of Sandra’s statements violated the
confrontation clause of the Sixth Amendment. We disagree.
The confrontation clause provides: “In all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him.”
(U.S. Const., amend. VI.) However, as the high court acknowledged in Crawford,
the Sixth Amendment is not implicated by the admission of nonhearsay
statements. (Crawford, supra, 541 U.S. at p. 68; People v. Combs (2004) 34
Cal.4th 821, 842-843.) The cases defendant cites to the contrary are inapposite as
they involve testimonial statements being offered to prove the truth of the
statements’ content. (See., e.g., Bockting v. Bayer (9th Cir. 2005) 399 F.3d 1010;
People v. Sisvath (2004) 118 Cal.App.4th 1396.) Because we have already
Our conclusion is the same with regard to the penalty phase. The court
gave a limiting instruction, again telling the jury that the molestation accusations
were not being admitted for their truth. In discussing that instruction in his closing
argument, the prosecutor reiterated that the statements were only offered to
explain defendant’s conduct. Defense counsel elicited similar testimony when he
examined defendant’s psychologist. Accordingly, we conclude that the references
to the accusations during the penalty phase were for a nonhearsay purpose and did
not constitute error.
concluded Sandra’s statements were admitted for a nonhearsay purpose,
defendant’s claim fails.
c. Evidence Code Section 352 Claim
Defendant contends the trial court erred by admitting evidence of Sandra’s
statements, arguing the statements should have been excluded pursuant to
Evidence Code section 352. We disagree.
It is within a trial court’s discretion to exclude evidence if its probative
value is substantially outweighed by the probability that its admission would
create a substantial danger of undue prejudice. (Evid. Code, § 352.) Our review
on this issue is deferential. A trial court’s decision whether to exclude evidence
pursuant to Evidence Code section 352 is reviewed for abuse of discretion.
(People v. Barnett (1998) 17 Cal.4th 1044, 1118.)
While it is true that evidence suggesting defendant was not only a murderer
but a child molester had the potential to be inflammatory, “it did not amount to
‘ “ ‘evidence which uniquely tends to evoke an emotional bias against the
defendant as an individual and which has very little effect on the issues.’ ” ’
[Citations.]” (People v. Barnett, supra, 17 Cal.4th at pp. 1118-1119, italics
added.) As discussed above, Sandra’s accusations were substantially probative of
defendant’s premeditation and motive for coming to Landers to kill Sandra.
Evidence was presented that, after being confronted with Sandra’s accusations,
defendant became increasingly angry and distressed, and felt betrayed by Sandra.
Several witnesses testified defendant told Sandra right before he killed her that she
was to blame for what he was about to do.
By contrast, any prejudice was limited by the instructions given by the trial
court. During his examination of Rocio, the prosecutor suggested the court
admonish the jury that Sandra’s statements were being offered to explain
defendant’s conduct and not to prove the truth of the matter asserted, and the court
did so. At the close of the guilt phase, the court instructed the jury that the
“evidence was admitted for a limited purpose” and “could not be considered by
you for any purpose other than the limited purpose for which it was admitted.”
We presume, absent evidence to the contrary, that the jurors faithfully followed
these instructions. (People v. Green (1980) 27 Cal.3d 1, 29.) In addition, any risk
of prejudice was further minimized by the prosecutor’s repeated underscoring of
the point in his guilt phase opening statement and closing argument, as discussed
above. Thus, the probative value of the statements was not substantially
outweighed by the probability of a substantial danger of undue prejudice.10 We
therefore conclude the trial court did not err in admitting Sandra’s statements.
2. Prosecutorial Misconduct
Defendant contends the prosecutor committed repeated acts of prejudicial
misconduct requiring reversal of the guilt phase. We disagree. While several of
the prosecutor’s comments were improper, reversal is not warranted as the
misconduct was not prejudicial.
A prosecutor’s conduct violates a defendant’s constitutional rights when the
behavior comprises a pattern of conduct so egregious that it infects “ ‘the trial with
unfairness as to make the resulting conviction a denial of due process.’ [Citation.]”
(Darden v. Wainwright (1986) 477 U.S. 168, 181.) The focus of the inquiry is on
As before (ante, at p. 14, fn. 9), our conclusion is the same with regard to
the references to the accusations at the penalty phase. The statements were highly
probative of defendant’s premeditation and intent. Additionally, the court and the
prosecutor reminded the jury that the statements were being offered to explain
defendant’s conduct rather than for their truth. Moreover, defense counsel himself
elicited testimony from his own witness regarding defendant’s being upset by
the effect of the prosecutor’s action on the defendant, not on the intent or bad faith
of the prosecutor. (People v. Crew (2003) 31 Cal.4th 822, 839.) Conduct that
does not render a trial fundamentally unfair is error under state law only when it
involves “ ‘ “the use of deceptive or reprehensible methods to attempt to persuade
either the court or the jury.” ’ [Citations.] ” (People v. Espinoza (1992) 3 Cal.4th
a. Examination of Deputy Gordon
Defendant argues that the prosecutor committed misconduct by making
disparaging remarks about defense counsel and defense evidence. (See People v.
Bemore (2000) 22 Cal.4th 809, 846.) The first cited example occurred during the
prosecutor’s examination of Deputy Stan Gordon. Discussing defendant’s theory
that the deputies’ response to Antonio’s house exacerbated the crisis, the
prosecutor asked the deputy whether that theory had been raised in Soria’s prior
trial.11 When the deputy testified that it had not, the prosecutor stated “[i]n other
words, that defense attorney didn’t try to blame the cops for this?” Defense
counsel objected, stating “[e]xcuse me, counsel has tried to disparage the defense a
number of times. I would like an order that he knock it off.” The prosecutor
retorted “It takes a big man to admit he’s wrong.” The trial court intervened,
sustaining defendant’s objection and admonishing the jury not to draw any
inferences from the prosecutor’s question or comments.
While it is misconduct for a prosecutor to cast aspersions on defense
counsel or suggest that counsel has fabricated a defense, we need not resolve
whether the prosecutor’s comment was improper. In the present case, the trial
As discussed previously (ante, at p. 5, fn. 6), defendant’s nephew was tried
separately but was acquitted of all charges.
court sustained the defense objections and admonished the jury to disregard the
comments; it is assumed the jury followed the admonishment and that prejudice
was therefore avoided. (People v. Jones (1997) 15 Cal.4th 119, 168.)
Later in the direct examination of Deputy Gordon, the prosecutor asked the
deputy whether he had turned on his belt recorder during the incident and, when
the deputy responded that he had, the prosecutor indicated his desire to play the
recording and to question the deputy about it. Defense counsel stated “[y]our
honor, I don’t know if there’s something that this witness needs his memory
refreshed by listening to the recorder. Perhaps [the prosecutor] could ask him the
questions first, and if he doesn’t remember, then he might have to refresh his
recollection.” The prosecutor responded “[c]lever objection, but it’s not the point.
He has to authenticate the voices on the tape, and he has to hear them before he
can do that.” The court overruled the objection.
Defendant’s claim that the prosecutor’s sarcastic retort constituted
misconduct is forfeited by his failure to timely object on that ground and request
the court admonish the jury. (People v. Ayala (2000) 23 Cal.4th 225, 284; In re
Sheena K. (2007) 40 Cal.4th 875, 880, fn. 1.) “ ‘ “Additionally, when the claim
[of misconduct] focuses upon comments made by the prosecutor before the jury,
the question is whether there is a reasonable likelihood that the jury construed or
applied any of the complained-of remarks in an objectionable fashion.” (People v.
Ayala, supra, at p. 284.) While the prosecutor’s statement that counsel had made
a “clever objection” may have been needlessly sarcastic, it did not constitute
b. Examination of Defense Psychiatrist
The next alleged example of misconduct occurred during the prosecutor’s
cross-examination of defense psychiatrist Dr. Jose Moral. Defendant contends the
prosecutor committed misconduct when he mentioned defendant’s prior arrests
without first seeking the court’s permission. Dr. Moral testified about defendant’s
anger issues, stating that defendant did not believe he had an anger issue prior to
hitting Sandra. The prosecutor then mentioned defendant’s arrest in 1986 for
battery and in 1993 for discharging a firearm, asking Dr. Moral whether the arrests
would have put defendant on notice that he had prior problems with anger and
alcohol. Defendant objected and there was a discussion at sidebar. After the
discussion, during which the prosecutor stated that he believed his examination
complied with the trial court’s rulings, the trial court stated it would sustain
defendant’s objection and instruct the jury to disregard the last questions and
When defendant’s objections are sustained and the court admonishes the
jury to disregard the improper comments, we assume the jury will follow the
admonishment and any prejudice is avoided. (People v. Jones, supra, 15 Cal.4th
at p. 168.) Accordingly, we need not decide whether the prosecutor committed
c. Prosecutor’s Closing Argument
Defendant next focuses on the prosecutor’s closing argument. The
prosecutor, discussing whether manslaughter would be appropriate, turned to the
notion of an “ordinarily reasonable person.” “And who is the ordinarily
reasonable person? You folks are.” Defendant objected and sought an
admonition, explaining “that is an incorrect statement of the law. The jury is not
to put themselves in as a reasonable person.” The trial court told the jury “[t]he
Court’s instructions are what you are to follow in this case, not what counsel
Moments later the prosecutor continued, “this is a situation where again
you have to impose the reasonable person standard. It’s not what Mr. Mendoza
may have felt, or what he may have gone through. He’s not entitled to set up his
own standard of conduct. Can you imagine a society that allowed us to do that?
Would any of you do what he did here and say that’s reasonable? Would any of
you do that? No. Would any of you put a gun to people’s heads? Would any of
you do what he did here? Is that reasonable?” Defendant objected and the court
admonished the jury that “the standard is the ordinarily prudent person, which is
an objective test, not an individual’s personal beliefs, but an objective test of what
you think an ordinarily prudent, reasonable person would do or not do.”
Although counsel have “broad discretion in discussing the legal and factual
merits of a case [citation], it is improper to misstate the law. [Citation.]” (People
v. Bell (1989) 49 Cal.3d 502, 538.) Here, the prosecutor misstated the law when
he told the jurors that they, as individuals, could subjectively define the reasonable
person standard. The “reasonable person” is a hypothetical individual who is
intended to represent a sort of “average” citizen. Therefore, it is one thing to refer
to the jurors as members of society in the course of explaining the reasonable
person standard as a means of determining whether a killing was caused by an
event or situation that probably would cause a reasonable person to lose self-
control and kill. Accordingly, it was not misconduct for the prosecutor to tell the
jury “And who is the ordinarily reasonable person? You folks are.” It is another
thing, however, to imply that the jurors, as individuals, can substitute their own
subjective standard of behavior for that of the objective, reasonable person.
Statements such as, “Would any of you do what he did here and say that’s
reasonable? Would any of you do that? No. Would any of you put a gun to
people’s heads? Would any of you do what he did here?” appear to encourage
jurors to impose their own subjective judgment in place of applying an objective
standard. It is here that the prosecutor went too far, committing misconduct.
However, arguments of counsel “generally carry less weight with a jury
than do instructions from the court. The former are usually billed in advance to
the jury as matters of argument, not evidence [citation], and are likely viewed as
the statements of advocates; the latter, we have often recognized, are viewed as
definitive and binding statements of the law.” (Boyde v. California (1990) 494
U.S. 370, 384.) The prosecutor’s misconduct was not prejudicial. The trial court
admonished the jury (People v. Jones, supra, 15 Cal.4th at p. 168) and gave them
the correct standard, and the jury understood that the prosecutor’s statements
merely constituted argument.
Defendant next argues that the prosecutor injected his own feelings during
closing argument. As the prosecutor argued, “Who can forget the very chilling
testimony of little Sergio when he talks about how his father was holding the gun
to people’s head and saying he was gonna kill mom if he didn’t — if Sandra didn’t
stop crying. How outrageous is that? Is that the act of a reasonable person? Shut
up, stop crying, or I’m gonna kill your mom. I don’t know about you, I’m an old
war horse. I’ve been through a lot of these. That choked me up when I saw that
testimony.” Defense counsel asked to approach the bench and, at sidebar, asked
for a finding of prosecutorial misconduct and for a mistrial. Defense counsel
argued that the prosecutor improperly injected his personal opinion into closing
argument and that it was only the most recent example of a pattern of prosecutorial
The court denied the motion, but stated that it would “caution [the
prosecutor]. I do agree this last comment was probably not appropriate, your
personal feelings about, about this. This is probably inappropriate, but I don’t
think it rises to the level of a mistrial. The other problem you mentioned with the
standard, the Court admonished the jury, and has instructed them, and I think that
problem is corrected. In any event, I will deny the motion but with that
admonition to [the prosecutor].”
The prosecutor improperly stated his personal beliefs (e.g., “I don’t know
about you, I’m an old war horse. I’ve been through a lot of these. That choked
me up when I saw that testimony”) based on facts not in evidence. (People v.
Ghent (1987) 43 Cal.3d 739, 772.) In underscoring the egregiousness of
defendant’s crimes, the prosecutor emphasized his long experience as a basis for
assessing Sergio’s testimony. This constituted misconduct. (People v. Bandhauer
(1967) 66 Cal.2d 524, 529-530.) However, the trial court found the statement did
not warrant a mistrial, a decision which is within the sound discretion of the trial
court. (People v. Price (1991) 1 Cal.4th 324, 430.) The prosecutor’s reference to
his own feelings was brief and, after the trial court’s ruling, the prosecutor did not
return to the point. Moreover, the prosecutor’s statements were part of his
argument and likely given less weight than instructions given by the court. (Boyde
v. California, supra, 494 U.S. at p. 384.)
Defendant next argues the prosecutor committed misconduct when it asked
the jury to place themselves into the shoes of the victims. “Do you remember the
thing he said to little Sandra just before he executed her with a gun at her head?
Can you imagine the terror that this child is going through, and that all the people
are going through? Certainly the children. Can you imagine that terror? It’s not
in the courtroom. We’re not here doing some scientific experiment. Imagine
yourselves at the scene. And what does he do?”
Defense counsel asked to approach the bench, and at sidebar again asked
for a mistrial and a finding of prosecutorial misconduct. Defense counsel argued
that the prosecutor was improperly attempting to incite the passions of the jury by
asking them to place themselves at the scene and to imagine the victims’ terror.
The court denied the motion for a mistrial, telling the prosecutor to “move off that
subject and move on with your argument.”
In the guilt phase of a trial, it is misconduct to appeal to the jury to view the
crime through the eyes of the victim. (People v. Stansbury (1993) 4 Cal.4th 1017,
1057.) Here, the prosecutor’s request that the jury imagine the fear defendant’s
victims experienced was clearly improper. However, the misconduct was not
prejudicial as his comments were brief and he did not return to the point.
Moreover, this was not a close case; evidence of defendant’s guilt was
overwhelming. Accordingly, the trial court did not abuse its discretion in denying
defendant’s request for a mistrial. (People v. Price, supra, 1 Cal.4th at p. 430.)
d. Cumulative Effect of Prosecutorial Misconduct
Defendant contends the numerous instances of alleged prosecutorial
misconduct rendered his trial fundamentally unfair, in violation of his federal
constitutional right to due process and a reliable verdict. We disagree. Although
our review has uncovered several instances of misconduct, as discussed above, the
incidents were not prejudicial.
In a number of instances, defendant failed to object or request an
admonition and so forfeited the claim. (People v. Ayala, supra, 23 Cal.4th at
p. 284; In re Sheena K., supra, 40 Cal.4th at p. 880, fn. 1.) In all other instances,
the trial court sustained defense objections and admonished the jury. (People v.
Jones, supra, 15 Cal.4th at p. 168.) Additionally, this was not a close case. As we
have repeatedly noted, it is undisputed that defendant shot and killed three
children, including his two stepchildren. There was also substantial evidence of
defendant’s premeditation, including his purchase of ammunition, his statements
to Soria, and his statements to Rocio and Sandra in Landers. We therefore reject
defendant’s claim of prejudicial misconduct. (People v. Hinton (2006) 37 Cal.4th
3. Cumulative Effect of Court Error and Prosecutorial Misconduct
Defendant contends the cumulative prejudicial effect of the various trial
court errors and prosecutorial misconduct he has raised on appeal requires reversal
of the guilt judgment. We have rejected his claims of error, with limited
exceptions in which we found the instances of prosecutorial misconduct to be
harmless. Considered together, any errors were not prejudicial.
B. Penalty Phase
1. Prosecutorial Misconduct
Defendant contends the prosecutor committed prejudicial misconduct
during his penalty phase closing argument. We disagree.
In discussing the evidence that could be considered as part of section 190.3,
factor (a),12 the prosecutor identified the victim impact testimony presented. In
discussing the families’ suffering, the prosecutor made two additional comments
about other “victims.” The prosecutor first stated “[w]hen a child is murdered, we
all suffer. We have all been made victims, haven’t we?” He then told the jury
“[y]ou are victims in the sense that you have to make a decision as to whether or
not somebody lives or dies.” Defense counsel asked to approach the bench.
At sidebar, defense counsel asked the trial court to find the prosecutor had
committed misconduct by telling the jurors to consider themselves victims of
defendant. Defense counsel requested the trial court read a curative instruction
Section 190.3, factor (a), allows the trier of fact to take into account: “[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.”
counsel had prepared. The trial court agreed the prosecutor had erred, at which
point the prosecutor offered to withdraw the comment and the court stated it
would admonish the jury to disregard the statements. The trial court declined
defense counsel’s invitation to read its curative instruction and instead gave its
own admonition. In open court, the court admonished the jury that “the Court
advises you that it was not proper for the district attorney to refer to you as victims
in this case, and you are to disregard that statement. It’s not to enter into your
consideration in any way.”
As to the prosecutor’s argument that the murders victimized everyone
(“[w]hen a child is murdered, we all suffer. We have all been made victims,
haven’t we?”), no misconduct occurred. (See Payne v. Tennessee (1991) 501 U.S.
808, 825 [noting that a victim’s “ ‘ death represents a unique loss to society’ ”].)
As to the prosecutor’s second argument that the jurors were themselves victims of
defendant because they had to act as jurors (“[y]ou are victims in the sense that
you have to make a decision as to whether or not somebody lives or dies”), as the
trial court found, the comments constituted misconduct. However, the incident
was not prejudicial. The trial court immediately admonished the jury to disregard
the statements, specifically chastising the prosecutor. (People v. Jones, supra, 15
Cal.4th at p. 168.)
As above (ante, at p. 23), we reject defendant’s claim that the cumulative
effect of prosecutorial misconduct warrants reversal.
2. Constitutionality of Death Penalty Statute and Instructions
Defendant challenges a number of California’s death penalty provisions as
unconstitutional. He acknowledges we have repeatedly rejected these claims in
previous decisions but argues we should reconsider our holdings. Having found
no reason to do so, we reject these claims without extensive discussion.
Defendant contends that the lack of intercase proportionality review for
death penalty cases is unconstitutional. This court has repeatedly held that
proportionality review in such circumstances is not required. (People v. Williams
(2006) 40 Cal.4th 287, 338; People v. Anderson (2001) 25 Cal.4th 543, 602; see
Pulley v. Harris (1984) 465 U.S. 37, 50-51.)
Defendant contends that the jury should have been required to find all
aggravating factors beyond a reasonable doubt, that the aggravating factors
outweigh the mitigating factors beyond a reasonable doubt, and that death is the
appropriate penalty beyond a reasonable doubt before imposing the death penalty.
We have repeatedly rejected such claims. (People v. Bell (2007) 40 Cal.4th 582,
620; People v. Avila (2006) 38 Cal.4th 491, 614-615; People v. Snow (2003) 30
Cal.4th 43, 126.) Defendant argues our holdings are no longer tenable in light of
Apprendi v. New Jersey (2000) 530 U.S. 466, Ring v. Arizona (2002) 536 U.S.
584, and Blakely v. Washington (2004) 542 U.S. 296. We have repeatedly held
that the high court’s recent decisions do not compel a different answer. (People v.
Bell, supra, 40 Cal.4th at p. 620; People v. Rogers (2006) 39 Cal.4th 826, 893;
People v. Morrison (2004) 34 Cal.4th 698, 730-731.)
Defendant argues that the failure to assign the state any burden of
persuasion renders unconstitutional California’s death penalty provisions. We
disagree as we have previously held that the appropriateness of a death sentence is
not subject to a burden-of-proof qualification. (People v. Elliot (2005) 37 Cal.4th
Defendant further contends that jurors are constitutionally required to
unanimously agree on which factor it finds in aggravation. We have rejected this
argument on numerous occasions. (People v. Williams, supra, 40 Cal.4th at
p. 338; People v. Morrison, supra, 34 Cal.4th at pp. 730-731.)
Defendant argues that the penalty jury should have been instructed that the
presumption at the penalty phase is a life sentence. We disagree, noting that we
have previously held that the argument lacks merit. (People v. Arias (1996) 13
Cal.4th 92, 190.)
Defendant contends CALJIC No. 8.88 is unconstitutional. CALJIC No. 8.88
instructs the jurors that, to impose the death penalty, they “must be persuaded that
the aggravating circumstances are so substantial in comparison with the mitigating
circumstances that it warrants death instead of life without parole.” We disagree.
We have rejected claims that the “so substantial” language is impermissibly vague
and ambiguous. (People v. Boyette (2002) 29 Cal.4th 381, 494-465.) We have
similarly rejected claims that the instruction is unconstitutional because it refers to
whether the death penalty is “warranted” instead of “appropriate.” (People v.
Perry (2006) 38 Cal.4th 302, 320.) Defendant also argues the instruction fails to
convey that a life sentence is mandatory if mitigating factors outweigh aggravating
factors. We disagree. As we have previously held, the instruction does not permit
the death penalty to be imposed if aggravation fails to outweigh mitigation. (Ibid.)
We have also rejected claims that the instruction impermissibly failed to inform
the jurors of the absence of a burden of proof. (People v. Cornwall (2005) 37
Cal.4th 50, 104.)
Defendant also argues that the instructions regarding the mitigating and
aggravating factors in Penal Code section 190.3 and their application render
defendant’s death sentence unconstitutional. We disagree. Section 190.3, factor
(a) is not so vague as to result in the arbitrary and capricious imposition of the
death penalty. (Tuilaepa v. California (1994) 512 U.S. 967, 976; People v. Brown
(2004) 33 Cal.4th 382, 401.) CALJIC No. 8.85 instructs the jury on factors to be
considered during the penalty phase. A trial court’s failure to delete inapplicable
sentencing factors does not violate a defendant’s constitutional rights. (People v.
Maury (2003) 30 Cal.4th 342, 439-440.) A defendant’s rights are not violated by
the failure to inform the jury that the mitigating factors are relevant solely in
mitigation. (People v. Brown, supra, 33 Cal.4th at p. 402; Tuilaepa v. California,
supra, 512 U.S. at p. 979.) CALJIC No. 8.85, factor (d) asks whether the crime
was committed “while the defendant was under the influence of extreme mental or
emotional disturbance,” and factor (g) asks whether the defendant “acted under
extreme duress or under the substantial domination of another person.” Defendant
argues that the use of adjectives such as “extreme” and “substantial” in these
factors impedes the jury’s consideration of mitigation factors. We disagree.
(People v. Elliot, supra, 37 Cal.4th at p. 488.) We also reject defendant’s claim
that written findings by the jury are constitutionally required. (Ibid.)
Defendant argues California’s use of the death penalty as a regular form of
punishment violates international law, a contention we have repeatedly rejected.
(People v. Elliot, supra, 37 Cal.4th at p. 488.) Nor does it violate international
norms of humanity and decency. (People v. Panah (2005) 35 Cal.4th 395, 500-
501.) Thus, contrary to defendant’s argument, the death penalty does not violate
the Eighth and Fourteenth Amendments to the United States Constitution. (People
v. Blair (2005) 36 Cal.4th 686, 754-755.)
3. Cumulative Effect of Court Error and Prosecutorial Misconduct
Defendant contends the cumulative prejudicial effect of the various trial
court errors and prosecutorial misconduct he has raised on appeal requires reversal
of the penalty judgment. We have rejected his claims of error, with the limited
exception of an instance of prosecutorial misconduct which we found to be
harmless. Considered together, any errors were not prejudicial.
C. Vienna Convention on Consular Rights and the Avena Judgment
Defendant contends his rights under the Vienna Convention on Consular
Relations, April 24, 1963, 21 U.S.T. 77 (Vienna Convention), were violated
during pretrial and trial proceedings in this case, requiring the reversal of his death
sentence. We disagree.
1. Legal Background
Article 36, paragraph 1(b), of the Vienna Convention provides that law
enforcement officials “shall inform” arrested foreign nationals of their right to
have their consulate notified of their arrest, and if a national so requests, inform
the consular post that the national is under arrest. Article I of the Optional
Protocol Concerning the Compulsory Settlement of Disputes, April 24, 1963, 21
U.S.T. 325 (Optional Protocol), provides that disputes “arising out of the
interpretation or application of the [Vienna Convention] shall lie within the
compulsory jurisdiction of the International Court of Justice . . . .” The United
States, upon the advice and consent of the Senate, ratified both instruments in
1969. (Vienna Convention, supra, 21 U.S.T., at p. 79.)13
On January 9, 2003, the Government of Mexico initiated proceedings in the
International Court of Justice (ICJ) against the United States, alleging violations of
the Vienna Convention in the cases of defendant and 53 other Mexican nationals
who had been sentenced to death in state criminal proceedings in the United
States. (Application Instituting Proceedings (Mex. v. U.S.), 2003 I.C.J. 128 (Case
Concerning Avena and Other Mexican Nationals) (Jan. 9, 2003).) After both
Mexico and the United States filed briefs and evidence, the ICJ held a hearing and
The United States gave notice of its withdrawal from the Optional Protocol
on March 7, 2005. (Sanchez-Llamas v. Oregon (2006) __ U.S. __, 126 S. Ct.
2669, 2675 (Sanchez-Llamas).)
then issued its judgment. (Case Concerning Avena and other Mexican Nationals
(Mex. v. U.S.), 2004 I.C.J. 128 (Judg. of Mar. 31, 2004) (Avena).)
The ICJ held that the United States had breached article 36, paragraph 1(b)
of the Vienna Convention in the cases of 51 of the Mexican nationals, including
defendant, by “failing to inform detained Mexican nationals of their rights under
that paragraph” and “to notify the Mexican consular post of the detention.”
(Avena, supra, 2004 I.C.J. 128, pars. 106(1)-(2), 153(4).) The ICJ further held
that in 49 cases, including defendant’s, the United States had breached its
obligation under article 36, paragraph 1(a), “to enable Mexican consular officers
to communicate with and have access to their nationals, as well as its obligation
under paragraph 1(c) of that article regarding the right of consular officers to visit
their detained nationals.” (Avena, supra, pars. 106(3), 153(5-(6).)
Addressing the remedy for the violation, the ICJ denied Mexico’s request
that the convictions and sentences be annulled (Avena, supra, 2004 I.C.J. 128, par.
123), but held United States courts must provide review and reconsideration of the
convictions and sentences “with a view to ascertaining whether . . . the violation . .
. caused actual prejudice to the defendant . . . .” (Id., par. 121; pars. 122, 153(9).)
The ICJ further held that courts could not rely on procedural default rules as a
basis for declining to consider defendants’ claims, lest the courts prevent “full
effect [be] given to the purposes” of article 36. (Avena, supra, par. 113; contra
Sanchez-Llamas, supra, 126 S. Ct. at pp. 2682-2687 (concluding that procedural
default rules may be applied to art. 36 claims).)
On February 28, 2005, after the decision in Avena was issued, President
George W. Bush issued a memorandum to the United States Attorney General,
stating that the United States would discharge its obligations under that decision
“by having State courts give effect to the decision in accordance with general
principles of comity in cases filed by the 51 Mexican nationals addressed in that
2. Relevant Proceedings in Defendant’s Case
Defendant asserts that his death sentence should be set aside based on a
violation of the Vienna Convention. We disagree.
On December 22, 1997, after he had been convicted and sentenced to death
by the jury, defendant filed a motion for a new trial. Nowhere in the motion did
defendant raise a claim that the Vienna Convention had been violated. On the
same day, defendant filed a letter from the Mexican Coordinator General of
Protection and Consular Matters, at the consul’s behest. The letter conveyed the
Mexican government’s “request of clemency,” asking the trial court to take into
account certain factors “to mitigate the judicial resolution.” One of the factors was
that defendant “was not informed of his right to make contact with his consulate”
in violation of the Vienna Convention.
The letter contended that the failure to do so “made it impossible for
[defendant] to receive the protection and assistance of the Consulate from the
moment in which he was apprehended.” Assistance at that point, according to the
consulate, “would have guaranteed, among other things, that the arrestee was
aware of in his own language and in an accessible fashion, his constitutional and
legal rights in the country where he was apprehended, that he be provided which
prompt appropriate legal assistance, that he know the possible legal consequences
(the application of the death penalty) of the crime of which he was accused; that
The effect of Avena and the President’s memorandum is currently pending
before the high court. (Ex Parte Medellin (Tex.Crim.App. 2006) 223 S.W.3d 315,
cert. granted Apr. 30, 2007, sub nom. Medellin v. Texas, No. 06-984, __ U.S. __
[127 S. Ct. 2129; 167 L. Ed. 2d 862].)
[sic] how the legal system of the country where he was detained would be
explained to him.” The letter did not contend, much less establish, that defendant
had been denied any of the things the consulate says it would have provided.
On December 23, 1997, the trial court held a hearing on defendant’s motion
for a new trial. After the prosecutor addressed defendant’s motion, defense
counsel told the court that representatives from the Mexican consulate were
present and wanted to address “the concerns that the government of Mexico has
with the potential sentence in this case.” The trial court stated that it wanted to
first resolve defendant’s motion for a new trial before hearing from the Mexican
After the trial court denied defendant’s motion for a new trial, the court
moved on to the automatic motion to modify the death judgment (§ 190.4, subd.
(e)), at which point the court invited the consular representative to speak. Raul
Cardenas, the Consul of Mexico in San Bernardino, spoke, essentially reiterating
portions of the letter, requesting clemency for defendant. Neither Cardenas nor
defense counsel argued that the alleged violation denied defendant any benefit he
would have otherwise received had the consulate been properly notified. The trial
court did not address the issue when it denied the motion to modify the sentence,
nor did defense counsel press the court to address the issue.
Even if we assume defendant’s consular rights were violated, defendant has
failed to demonstrate that he suffered any prejudice as a result. (Avena, supra,
pars. 121, 122.) While the letter from the Mexican consulate discusses the
assistance it asserts it would have provided had it been notified, the letter did not
claim that defendant did not obtain that assistance from other sources. Nor does
the record reveal any prejudice. Whether defendant can establish prejudice based
on facts outside of the record is a matter for a habeas corpus petition. (People v.
Seaton (2001) 26 Cal.4th 598, 643.) Defendant essentially acknowledges that his
claim is appropriately raised in such a petition.
The judgment is affirmed in its entirety.
WE CONCUR: GEORGE, C. J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Mendoza
Original Appeal XXX
Date Filed: November 29, 2007
County: San Bernardino
Judge: James A. Edwards
Attorneys for Appellant:Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Marianne D.
Bachers, Deputy State Public Defender, for Defendant and Appellant.
Attorneys for Respondent:Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, William M. Wood, David Delgado-Rucci and
Ardianne S. Denault, Deputy Attorney General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):Marianne D. Bachers
Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
Ardianne S. Denault
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92101
Automatic appeal from a judgment of death.
|Date:||Citation:||Docket Number:||Category:||Status:||Cross Referenced Cases:|
|Thu, 11/29/2007||42 Cal.4th 686 original opinion||S067678||Automatic Appeal||closed; remittitur issued|| |
MENDOZA (MARTIN) ON H.C. (S162563)
|1||The People (Respondent)|
Represented by Attorney General - San Diego Office
David Delgado-Rucci, Deputy Attorney General
P.O. Box 85266
San Diego, CA
|2||The People (Respondent)|
Represented by Adrianne Simone Denault
Office of the Attorney General
P.O. Box 85266
San Diego, CA
|3||Mendoza, Martin (Appellant)|
San Quentin State Prison
Represented by Office Of The State Public Defender-Sf
Marianne D. Bachers, Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA
|Nov 29 2007||Opinion: Affirmed|
|Dec 23 1997||Judgment of death|
|Feb 2 1998||Filed certified copy of Judgment of Death Rendered|
|Feb 2 1998||Penal Code sections 190.6 et seq. apply to this case|
|Apr 9 1998||Record certified for completeness|
|Jun 7 2002||Filed:|
applt's application for appointment of counsel. (IFP form)
|Jun 11 2002||Order appointing State Public Defender filed|
to represent applt for the direct appeal.
|Sep 9 2002||Received:|
notice from superior court that 7,390 page record was transmitted to appellant's counsel on 9-9-2002.
|Sep 16 2002||Date trial court delivered record to appellant's counsel|
(see Calif. Rules of Court, rule 39.50(c); the date of delivery is the date of mailing plus five days.)
|Sep 27 2002||Appellant's opening brief letter sent, due:|
April 14, 2003.
|Oct 10 2002||Counsel's status report received (confidential)|
from State P.D.
|Dec 11 2002||Counsel's status report received (confidential)|
from State P.D.
|Feb 4 2003||Counsel's status report received (confidential)|
from State P.D.
|Apr 7 2003||Counsel's status report received (confidential)|
from State P.D.
|Apr 15 2003||Request for extension of time filed|
to file appellant's opening brief. (1st request)
|Apr 17 2003||Filed:|
Supplemental declaration in support of application to file appelant's opening brief.
|Apr 21 2003||Extension of time granted|
to 6/13/2003 to file appellant's opening brief. The court anticipates that after that date, only four further extensions totaling 240 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity, of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
|May 1 2003||Received copy of appellant's record correction motion|
Motion to correct, augment and settle the record on appeal. (13 pp.)
|May 27 2003||Counsel's status report received (confidential)|
from State P.D.
|Jun 9 2003||Request for extension of time filed|
to file apellant's opening brief. (2nd request)
|Jun 13 2003||Extension of time granted|
to 8-12-2003 to file AOB. The court anticipates that after that date, only three further extensions totaling 180 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
|Jul 28 2003||Counsel's status report received (confidential)|
from State P.D.
|Aug 6 2003||Request for extension of time filed|
to file appellant's opening brief. (3rd request)
|Aug 11 2003||Extension of time granted|
to 10/14/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
|Sep 26 2003||Counsel's status report received (confidential)|
from State P.D.
|Oct 14 2003||Request for extension of time filed|
to file appellant's opening brief. (4th request)
|Oct 20 2003||Extension of time granted|
to 12/15/2003 to file appellant's opening brief. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
|Nov 25 2003||Counsel's status report received (confidential)|
from State P.D.
|Dec 2 2003||Record certified for accuracy|
|Dec 15 2003||Request for extension of time filed|
to file appellant's opening brief. (5th request)
|Dec 16 2003||Record on appeal filed|
Clerk's Transcipt 27 volumes (5,476 pages) and reporter's transcripts 16 volumes (3,139 pages) including material under seal; ASCII disks. Clerk's transcripts includes 3,087 of juror questionnaires.
|Dec 16 2003||Letter sent to:|
Counsel advising that record on appeal was filed this date.
|Dec 24 2003||Extension of time granted|
to 2/13/2004 to file appellant's opening brief. The court anticipates that after that date, only one further extension totaling 60 additionald ays will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
|Feb 5 2004||Counsel's status report received (confidential)|
from State P.D.
|Feb 9 2004||Request for extension of time filed|
to file appellant's opening brief. (6th request)
|Feb 18 2004||Extension of time granted|
to 4/13/2004 to file appellant's opening brief. The court anticipates that after that date, only one further extension totaling 30 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
|Mar 30 2004||Counsel's status report received (confidential)|
from State P.D.
|Apr 8 2004||Request for extension of time filed|
to file AOB. (7th request)
|Apr 12 2004||Extension of time granted|
to June 14, 2004 to file the appellant's opening brief. After that date, only 3 further extensions totaling 165 additional days will be granted. Extension is granted based upon Deputy State Public Defender Marianne Bacher's representation that she anticipates filing that brief by 11/30/04.
|Jun 2 2004||Counsel's status report received (confidential)|
from State P.D.
|Jun 17 2004||Request for extension of time filed|
to file AOB. (8th request)
|Jun 21 2004||Extension of time granted|
to 8/13/2004 to file appellant's opening brief. After that date, only three further extensions totalign about 150 additonal days will be granted. Extension is granted based upon Senior Deputy State Public Defender Marianne Bachers's representation that she anticipates filing that brief by 1/2005.
|Aug 17 2004||Counsel's status report received (confidential)|
from State P.D.
|Aug 17 2004||Request for extension of time filed|
to file appellant's opening brief. (9th request)
|Aug 24 2004||Extension of time granted|
to 10/13/2004 to file appellant's opening brief. After that date, only two further extensions totaling about 135 additional days will be granted. Extension is granted based upon Senior Deputy State Public Defender Marianne D. Bachers's representation that she anticipates filing that brief by 2/28/2005.
|Oct 14 2004||Request for extension of time filed|
to file appellant's opening brief. (10th request)
|Oct 14 2004||Counsel's status report received (confidential)|
from State P.D.
|Oct 19 2004||Extension of time granted|
to 12/13/2004 to file appellant's opening brief. After that date, only one further extension totaling about 75 additional days will be granted. Extension is granted based upon Senior Deputy State Public Defender Marianne D. Bachers's representation that she anticipates filing that brief by 2/28/2005.
|Dec 8 2004||Request for extension of time filed|
to file appellant's opening brief. (11th request)
|Dec 13 2004||Extension of time granted|
to 2-28-2005 to file AOB. After that date, only one further extension totaling about 31 additional days will be granted. Extension granted based upon Senior Deputy SPD Marianne D. Bacher's representation that she anticipates filing the brief by 3-31-2005.
|Dec 14 2004||Counsel's status report received (confidential)|
from State P.D.
|Feb 14 2005||Counsel's status report received (confidential)|
from State P.D.
|Feb 16 2005||Request for extension of time filed|
to file appellant's opening brief. (12th request)
|Feb 24 2005||Extension of time granted|
to 4/27/2005 to file appellant's opening brief. After that date, only one further extension totaling about 30 additional days will be granted. Extensioni s granted based upon Senior Deputy State Public Defender Marianne Bachers' representation that she anticipates filing that brief by 5/27/2005.
|Apr 13 2005||Counsel's status report received (confidential)|
from State P.D.
|Apr 21 2005||Request for extension of time filed|
to file appellant's opening brief. (13th request)
|Apr 27 2005||Extension of time granted|
to 5/27/2005 to file appellant's opening brief. Extension is granted based upon Senior State Public Defender Marianne D. Bachers's representation that she anticipates filing that brief by 5/27/2005. After that date, no further extension will be granted.
|May 26 2005||Appellant's opening brief filed|
(43,529 words; 156 pp.)
|May 26 2005||Respondent's brief letter sent; due:|
September 23, 2005
|May 26 2005||Request for judicial notice filed (AA)|
|Aug 12 2005||Respondent's brief filed|
(22949 words; 75 pp.)
|Aug 26 2005||Filed:|
"Amended Proof of Service," of respondent's brief.
|Sep 29 2005||Request for extension of time filed|
to file appellant's reply brief. (1st request)
|Oct 3 2005||Extension of time granted|
to 12/12/2005 to file appellant's reply brief.
|Dec 15 2005||Request for extension of time filed|
to file appellan'ts reply brief. (2nd request)
|Dec 20 2005||Extension of time granted|
to 2/10/2006 to file appellant's reply brief. After that date, only two further extensions totaling about 75 additional days are contemplated. Extension is granted based upon Senior Deputy State Public Defender Marianne D. Bachers's representation that she anticipates filing tht brief by 4/25/2006.
|Feb 3 2006||Request for extension of time filed|
to file appellent's reply brief. (3rd request)
|Feb 7 2006||Extension of time granted|
to 4/10/2006 to file the appellant's reply brief. After that date, only one further extension totaling about 15 additional days is contemplated. Extension is granted based upon Senior Deputy State Public Defender Marianne D. Bachers's representation that she anticipates filing that brief by 4/25/2006.
|Apr 4 2006||Request for extension of time filed|
to file reply brief. (4th request)
|Apr 10 2006||Extension of time granted|
to April 25, 2006 to file reply brief. Extension is granted based upon Senior Deputy State Public Defender Marianne D. Bachers' representation that she anticipates filing that brief by April 25, 2006. After that date, no further extension is contemplated.
|Apr 25 2006||Appellant's reply brief filed|
(7039 words; 29 pp.)
|Apr 25 2006||Request for judicial notice filed (AA)|
appellant's second request for judicial notice.
|Jul 16 2007||Oral argument letter sent|
advising counsel that the court could schedule this case for argument as early as the September calendar, to be held the week of September 3, 2007, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
|Jul 23 2007||Received:|
letter from Deputy SPD Marianne Bachers, dated July 20, 2007, regarding the scheduling of oral argument. She would prefer the September calendar, due to a scheduled vacation in October.
|Jul 30 2007||Request for judicial notice filed (AA)|
appellant's supplement to second request for judicial notice.
|Aug 8 2007||Case ordered on calendar|
to be argued on Thursday, September 6, 2007, at 1:30 p.m., in San Francisco
|Aug 10 2007||Received:|
letter from Senior Deputy State Public Defender Marianne Bachers, dated August 9, 2007, requesting that the court vacate the date set for oral argument.
|Aug 10 2007||Request for judicial notice granted|
Appellant's request for judicial notice of our case files, filed on May 26, 2005, is denied. Appellant's second request for judicial notice, filed on April 25, 2006, is granted.
|Aug 16 2007||Received:|
appearance sheet from Deputy AG David Delgado-Rucci, indicating 30 minutes for oral argument for respondent.
|Aug 20 2007||Filed:|
appellant's focus issue letter, dated August 20, 2007.
|Aug 23 2007||Letter sent to:|
Marianne Bachers, State P.D., in response to her letter of August 9, 2007, requesting that the court vacate the date set for oral argument. The court has denied the request.
|Aug 27 2007||Argument rescheduled|
To be called and continued to October 2007 calendar, a special session to be held in Santa Rosa.
|Sep 4 2007||Received:|
letter from Deputy Attorney General Adrianne S. Denault, dated August 29, 2007, advising that she will argue the case in October for respondent. The assigned deputy, David Delgado-Rucci, is unavailable.
|Sep 5 2007||Case ordered on calendar|
to be argued on October 2, 2007, in Santa Rosa, at 1:30 p.m. special session at the Sonoma Country Day School, 4400 Day School Place, Santa Rosa
|Sep 7 2007||Received:|
appearance sheet from Deputy SPD Marianne Bachers, indicating 45 minutes for oral argument for appellant.
|Sep 17 2007||Supplemental brief filed|
by appellant. (2,787 words; 11 pp. -- excluding attachment)
|Sep 25 2007||Request for Extended Media coverage Granted|
by The Santa Rosa Press Democrat
|Sep 28 2007||Request for Extended Media coverage Granted|
The request for extended media coverage, filed by The Santa Rosa Press Democrat on September 25, 2007, is granted, subject to the conditions set forth in rule 1.150, California Rules of Court.
|Oct 2 2007||Cause argued and submitted|
|Nov 28 2007||Notice of forthcoming opinion posted|
|Nov 29 2007||Opinion filed: Judgment affirmed in full|
opinion by Moreno, J. ----- joined by George, C.J., Kennard, Baxter, Werdegar, Chin and Corrigan, JJ.
|Dec 13 2007||Rehearing petition filed|
by appellant. (1,732 words; 9 pp.)
|Dec 18 2007||Time extended to consider modification or rehearing|
The time for granting or denying rehearing in the above-entitled case is hereby extended to and including February 27, 2008 or the date upon which rehearing is either granted or denied, whichever occurs first.
|Jan 23 2008||Rehearing denied|
The petition for rehearing is denied.
|Jan 23 2008||Remittitur issued (AA)|
|Jan 25 2008||Received:|
copy of motion for leave to proceed in forma pauperis for petition for writ of certiorari sent to U.S.S.C. on January 24, 2008.
|Jan 25 2008||Received:|
copy of appellant's petition for writ of certiorari. (15 pp. excluding appendices.)
|Feb 1 2008||Received:|
receipt for remittitur acknowledged by superior court.
|Feb 4 2008||Received:|
letter from U.S.S.C. dated January 29, 2008. Petition for writ of certiorari was filed on January 24, 2008. No. 07-9025
|Mar 24 2008||Certiorari denied by U.S. Supreme Court|
|Apr 11 2008||Related habeas corpus petition filed (post-judgment)|
|May 26 2005||Appellant's opening brief filed|
|Aug 12 2005||Respondent's brief filed|
|Apr 25 2006||Appellant's reply brief filed|