Supreme Court of California Justia
Docket No. S030644
People v. Roldan

Filed 4/25/05



Plaintiff and Respondent,




Los Angeles County

Super. Ct. No. PA003868

Defendant and Appellant.

Ricardo Roldan was convicted in 1992 in Los Angeles County Superior

Court of the first degree murder of Roland Teal (Pen. Code, § 187; all further

statutory references are to this code unless otherwise indicated) and the robbery

and attempted murder of Barney Pipkin (§§ 211, 664/187). The jury found true a

special circumstance allegation that defendant murdered Teal while engaged in

committing a robbery (§ 190.2, former subd. (a)(17)(i), now subd. (a)(17)(A)) and

also sustained three lesser enhancement allegations (§§ 12022.5, subd. (a)

[personal use of a firearm], 12022, subd. (a)(1) [participation in a felony in which

a principal was armed with a firearm], 12022.1 [on-bail enhancement]). On

October 26, 1992, the jury set the penalty at death under the 1978 death penalty

law. (§ 190.1 et seq.) This appeal is automatic. (§ 1239, subd. (b).)

After considering the claims raised on appeal, we affirm the judgment in its



A. Facts

In 1990, defendant was free on bail while being prosecuted on charges he

had participated in a robbery at the Sun Valley swap meet. On June 3 of that year,

a different swap meet in San Fernando closed at the usual time of 3:00 p.m.

Manager Barney Pipkin followed his usual procedure, collecting the receipts from

the two ticket booths and then returning to the reservation office to count the day’s

receipts with assistant manager Judy Adams. Leticia Calderon and Maria Murillo

also worked in the office. On this day, the receipts were more than $12,000,

mostly in cash, which Pipkin and Adams bundled and placed into seven bags

bound together at the top with rubber bands.

Pipkin, with Adams’s help, then began loading his car trunk with various

items, saving the bags of money for last, as was his custom. As Adams handed

him the bags to load into the car, someone said: “Don’t fucking move.” Adams

turned and observed a young Latino male in a long coat, although it was over 100

degrees that day. He had a gun, somewhat obscured by his coat. Adams turned to

run, but the gunman pointed the gun at her and repeated: “I said don’t anybody

fucking move.” Calderon and Murillo heard this second command. Calderon

heard a clicking metal-on-metal sound, as if the gunman had pulled the trigger but

the gun had misfired. Calderon and Murillo identified defendant as the gunman.

A second young Latino man, later determined to be 17-year-old Sergio

Ayala, approached Pipkin and wrestled the bags of money from him. The two

robbers then fled on foot. Pipkin and Calderon shouted that they had been robbed,

while Adams returned to the office and called the police. Pipkin got into his car

and attempted to follow the robbers. Both Pipkin and Calderon noticed a white

Camaro parked in a driveway nearby.


Juan Jimenez was working at the swap meet as a security guard when he

heard Calderon yelling. He saw the robber (Ayala) with the bags and gave chase,

but the white car, driven by a third robber later identified as Richard Zorns, moved

back and forth, blocking his path. Jimenez continued his pursuit, along with

Roland “Lucky” Teal, his stepson Dominic Wright, and Ricardo Mireles, all swap

meet employees. Teal eventually grabbed the fleeing robber, and Jimenez,

Wright, and Mireles arrived to help detain him.

The gunman, whom Jimenez later identified as defendant, reappeared and

shouted: “Let my friend[] go or I’m going to start shooting.” People scattered,

but Teal simply released the robber, put his hands up, and froze, looking at the

gunman. Defendant fired several shots in succession, as if from a machine gun,

striking Teal in the chest and arm. Teal later died in the hospital of his wounds.

As the robbers prepared to make their getaway in the white car, Pipkin

arrived in his car. Defendant, who was standing in the street near the white car,

pointed a gun at Pipkin’s car. Pipkin heard a “ping” sound and retreated. Police

found a bullet hole in Pipkin’s windshield and a corresponding bullet hole in the

car seat, at chest level, two inches from where Pipkin had been sitting. A second

bullet struck the roof of Pipkin’s car. Pipkin provided police with what he

believed was the license plate number of the white Camaro: 1 BSX 567.

Christine Zorns (hereafter sometimes Christine) owned a white Pontiac

Firebird, license number 2 BSX 544. Her boyfriend at the time was Richard

Zorns.1 Richard Zorns often drove the car. On the day of the crime, Christine

returned to their home in the early afternoon to find both Zorns and her car were


They had married by the time of defendant’s trial, and she gave her name as

Christine Zorns.


gone. She received a telephone call from Zorns later that day, asking her to join

him at his mother’s house. Several people were present when she arrived,

including Zorns, Ayala, and defendant. They were watching television, drinking,

and laughing. They appeared to be discussing the details of the crime. For

example, Christine overheard someone say that Ayala had been caught and that

someone else had said to release him or he would “bump” him, meaning shoot

him. Christine noticed defendant had a briefcase with a lot of money in it; Zorns

and Ayala also had bags filled with money. Zorns’s bag had $4,000.

Jude Barrios was defendant’s girlfriend and the mother of his two children.

They lived with his mother. Barrios testified that defendant often spoke to her of

robbing the San Fernando swap meet. He also had discussed it with Zorns and

Ayala. In the late afternoon on the day of the crime, she called defendant at

Zorns’s mother’s house. Defendant sounded “ecstatic,” “on cloud nine.” She

drove to the house and picked him up; he told her he had robbed the swap meet.

The next day, they went to the courthouse together to await the jury verdict in the

Sun Valley swap meet robbery case. While there, he again confessed to her that

he had robbed the San Fernando swap meet and, reading a press account of Teal’s

killing, told Barrios the newspaper article had incorrect details. Later, he told her

a “huge” Black security guard held Ayala and that he had shot the guard “because

he was the only one who could identify him.” That evening, Richard Zorns and

Sergio Ayala came over to visit defendant; Barrios overheard them laughing and

joking about the crime.

Police arrested defendant the next day. He called Barrios from jail and told

her where he had hidden his share of the money stolen from Pipkin. She found a

briefcase with more than $3,000 and, as instructed, gave some money to

defendant’s mother and spent the rest. She admitted she had lied for defendant in

his earlier robbery trial. She also admitted the prosecution had granted her


immunity in the present case and that defendant had told her if she testified against

him he would not hurt her, but would hurt someone in her family.

Defendant was convicted in the earlier Sun Valley robbery case. Zorns and

Ayala were tried separately and convicted of robbery and murder for their roles in

the crimes at the San Fernando swap meet. The defense in the instant case rested

without calling any witnesses.

B. Pretrial Issues

1. Denial of a Continuance

Defendant first contends the trial court’s denial of his request for a

continuance, made approximately two weeks before the scheduled start of the trial,

violated his federal and state constitutional rights to effective assistance of

counsel, to a fair trial, to confront and cross-examine the witnesses against him, to

due process of law, and to a reliable capital sentencing determination. (U.S.

Const., 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16, 17.) As we

explain, although the denial of a continuance can, under some circumstances,

deprive a criminal defendant of these important constitutional rights, the

circumstances in this case fail to rise to that level. The trial court, therefore, did

not abuse its broad discretion by denying the continuance.

a. Facts

Trial Attorney Richard Gomez-Hernandez2 was appointed to represent

defendant on April 11, 1991, and appeared in court for defendant’s arraignment on

that day. The proceedings were put over several times, often at the request of

counsel. On November 8, 1991, counsel stated he would “probably” be ready to


Gomez-Hernandez was generally referred to at trial as “Mr. Gomez,”

although he referred to himself as “Richard Gomez-H.”


proceed in 45 days. When, on January 9, 1992, scheduling problems developed

due to the court’s previous decision to try defendant jointly with Zorns and Ayala,

the court granted Zorns and Ayala’s motion to sever their cases from defendant’s


On March 6, 1992, defense counsel explained that he was engaged

representing a defendant in a different capital trial, People v. Carrion, that would

take at least 45 days, excluding a possible penalty phase trial. He asked the trial

court not to schedule defendant’s case to begin until “at least a month” after the

end of the Carrion case. The trial court agreed. Back in court on April 24, 1992,

counsel explained that he was engaged in plea negotiations with the prosecutor in

defendant’s case and hoped to reach a mutually agreeable plea agreement as a

result of those negotiations. Both sides agreed to a continuance to May 22. At a

status conference on May 21, 1992, the trial court announced that, barring a plea,

it expected the matter to go to trial and asked the parties whether July 28 was a

viable trial date. When both sides agreed, the trial court set the matter as a “must

go” for July 28, 1992.

The parties were back in court for a status conference on June 30, 1992.

The court reminded the parties that it considered the case a “must go.” Defense

counsel explained that the plea negotiations had been unsuccessful and that the

district attorney’s office refused to accept any plea that did not include the death

penalty. When counsel communicated that information to defendant, “it was a

very, very emotional time for Mr. Roldan. [¶] I continued to speak with him for

approximately a half-hour after I informed him of that fact and Mr. Roldan did not

speak any sentences that were coherent to me.” Counsel also stated he had spoken

to defendant on June 25 and he was similarly incoherent. Counsel then declared

he had a doubt as to defendant’s competence and requested appointment of a

psychiatrist pursuant to section 1368. The trial court stated it did not doubt


defendant’s competence, but offered to appoint a psychiatrist to examine

defendant and to render a report to counsel concerning defendant’s mental state.

Counsel accepted this offer and acquiesced to setting a status conference for

July 13.

By the time the parties met in court on July 13, 1992, Dr. Michael Maloney,

a clinical psychologist, had twice interviewed defendant. In an in camera hearing,

the prosecutor opined that Dr. Maloney was preparing a report that would

conclude that defendant was competent to stand trial. In addition, Dr. Maloney

had informed the prosecutor that in order to avoid trial, defendant had said he

planned to kill the prosecutor. (See Tarasoff v. Regents of University of California

(1976) 17 Cal.3d 425.) Defense counsel confirmed the prosecutor’s story.

Back in court on July 20, 1992, defense counsel indicated he would not be

ready to proceed on July 28, the intended trial date. The court reminded counsel

that jurors had already been ordered for “August 4th, day seven of ten.”3 Counsel

asked the trial court to set a status conference for July 23, saying: “If I were asked

at this point whether or not I would be ready to proceed within the near future, I

would say yes, I would be ready to proceed in the near future, but the near future

is not a trial date on August 4th.” The court replied: “I made this a must go basis.

I need a little more.” Counsel stated he was “prepared to make the necessary

statements for the court,” but asked to do so at a status conference on July 23.


The People had up to 10 days to try defendant, beginning July 28, 1992.

“[A]n action shall not be dismissed under this paragraph if either of the following
circumstances exist: [¶] . . . [¶] (B) The defendant requests or consents to the
setting of a trial date beyond the 60-day period. Whenever a case is set for trial
beyond the 60-day period by request or consent, expressed or implied, of the
defendant without a general waiver, the defendant shall be brought to trial on the
date set for trial or within 10 days thereafter
.” (§ 1382, subd. (a)(2), italics


With counsel’s acquiescence, the court set a status conference for July 22, but

added: “Just so you are aware, when I say ‘no further continuances,’ I do it rarely

because when I do it, I mean it.”

On July 22, 1992, defense counsel moved for a continuance. Neither the

prosecutor nor defendant was present. Counsel explained that when he told

defendant the prosecution intended to seek the death penalty and would not accept

a plea to a lesser charge, “I could see an immediate and substantial impairment on

my ability to represent him to the effect that Mr. Roldan became entirely silent. I

could see that he was extremely angry and upset. I assume that that was just as a

result of me bringing him the news [that a plea to less than the death penalty

would not be accepted]. [¶] Since the time of [that] decision, I had seen Mr.

Roldan about 14 or 15 different times. On each of those occasions he has refused

to speak with me. I have attempted to elicit the help of family members. I don’t

find his family members to be particularly helpful with regard to establishing lines

of communication.” In addition, defense counsel revealed that he too had received

a Tarasoff warning from Dr. Maloney and considered the threat to be real. He

indicated he had taken precautions to protect his wife and children.

Defense counsel considered declaring a conflict and asking the court to

appoint someone else to represent defendant but concluded he could not “in good

conscience ask somebody else to take responsibility and put themselves in a

position like mine.” He averred: “I believe in my heart that Mr. Roldan is

extremely distraught at this time. I also firmly believe that I will be able to work

through this situation and provide him effective assistance of counsel. I don’t see

that happening by August the 4th. [¶] I am not asking you to relieve me at this

time because I believe that I would have the best opportunity to manage this case

until its completion. I don’t want somebody else to be put in this situation, and I


do not believe that my effectiveness would be overshadowed by this particular


The trial court denied the request for a continuance. Citing People v. Hardy

(1992) 2 Cal.4th 86, the court found “that defendant is merely trying to

manufacture a possible conflict of interest. I can foresee that in this case he is

trying to manufacture a possible delay.” (See id. at p. 138.) “[I]f it were not for

you, . . . it would be against attorney X, or attorney Y, or attorney Z, and that if not

now, then the next trial date and the next one.” Defense counsel “implore[d]” the

court to reconsider, seeking time to repair his relationship with defendant. He

noted that defendant’s brother was capable of carrying out the threat. Counsel

sought 45 additional days, claiming that the denial of a continuance compromised

him “beyond effectiveness.” Claiming that the threat to his life “is going to play

on my mind night and day,” counsel claimed: “I cannot, I am not objective at the

present time. And if I am not objective, how effective can I really be for Mr.

Roldan?” The trial court asked counsel: “What assurance can you give me, if

any, that in 45 days this threat will not be as serious?” Counsel replied that he

“will do everything in my power to establish my relationship with Mr. Roldan. I

can tell you, Judge, that I will devote literally all of my time to getting Mr. Roldan

to cooperate. That’s the only way that I can ameliorate a threat.”

Later, defense counsel stated: “Can I provide Mr. Roldan with effective

assistance of counsel? Yes, I believe I can provide him with effective assistance

of counsel if I am given this additional time. Otherwise, I am left to only one, to

one subject, which is [to] declare a conflict right now because, subjectively, I am

not in the frame of mind to be able to say that nothing else would impair my

ability to represent him. I believe this to be a real threat. [¶] I cannot say that

nothing would affect my ability to represent Mr. Roldan, but I can assure you, sir,

that if I was given this additional time, I believe that I can get Mr. Roldan to


cooperate with me and I believe that the threat that has been articulated by the

psychologist to both [the prosecutor] and myself would be minimized.”

The trial court declined to reconsider its previous denial of a continuance,

explaining: “I have to tell you that based upon what you told me, it appears that

you do agree that your client is subject to manufacturing his own reasons for either

a conflict, apparent conflict or delay. I am not . . . convinced that in 45 days the

matter will be assuaged or that is such to be put to rest.” “I accept what you are

saying that you are acting in good faith, and I am not questioning your integrity at

all. I feel your client is trying to manufacture a delay, that’s all.”4

Defense counsel immediately challenged the trial court’s denial of a

continuance, unsuccessfully seeking a pretrial writ of mandate or prohibition and a

stay of trial from the Court of Appeal. (Roldan v. Superior Court, July 28, 1992,

B068672.) On August 7, 1992, this court stayed the trial, which was then in jury

selection, but ultimately denied relief. (Roldan v. Superior Court, Aug. 20, 1992,

S027967.) Counsel renewed his request for a continuance several more times

during this period, but the trial court denied the request each time. Jury selection

eventually resumed, and opening statements finally commenced on September 1,

1992, approximately 40 days after the trial court had denied a continuance on

July 22.

b. Discussion

A “trial court has broad discretion to determine whether good cause exists

to grant a continuance of the trial. (§ 1050, subd. (e) . . . .) A showing of good


Although not before the trial court when it ruled on the motion for a

continuance, it turned out the court’s intuition was correct. At the penalty phase,
defendant testified that he thought he would obtain a postponement of his trial if
he told Dr. Maloney he wanted to gouge the prosecutor’s eyes out.


cause requires a demonstration that counsel and the defendant have prepared for

trial with due diligence.” (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) Such

discretion “may not be exercised so as to deprive the defendant or his attorney of a

reasonable opportunity to prepare.” (People v. Sakarias (2000) 22 Cal.4th 596,

646.) “To effectuate the constitutional rights to counsel and to due process of law,

an accused must . . . have a reasonable opportunity to prepare a defense and

respond to the charges.” (People v. Bishop (1996) 44 Cal.App.4th 220, 231.)

Applying that law here, we find the trial court did not abuse its broad

discretion when it denied defendant’s July 22 request for a continuance as well as

the renewed requests made in the remaining pretrial period. At the time of the

July 22 request, defense counsel had represented defendant for more than 15

months.5 The trial court had set a July 28 trial date and had given counsel two

months’ notice of it, saying the case was a “must go.” In an abundance of caution,

the court accommodated counsel by appointing a mental health expert to examine

defendant before trial, although the court expressly stated it did not doubt his

competence to stand trial. Counsel’s reasons for seeking a delay included

defendant’s refusal to cooperate with him and his threats against him. It is settled

law, however, that the denial of a request for a continuance, when such request is

premised on an accused’s persistent failure to cooperate with counsel and his

deliberate refusal to assist counsel, is not arbitrary. (People v. Jenkins, supra, 22

Cal.4th at pp. 1037-1038; People v. Grant (1988) 45 Cal.3d 829, 844.)

Although counsel’s self-proclaimed inability to provide effective assistance

without a continuance is a cause for concern, counsel did not seek to withdraw at


Accordingly, we reject defendant’s claim that there was an “unreasoning

and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request
for delay.’ ” (Morris v. Slappy (1983) 461 U.S. 1, 11-12.)


that time. Nor could counsel explain why an additional 45-day delay would

improve the situation to a point where defendant would cease issuing threats of

violence against him and would instead begin cooperating with him. Given the

long period of time the case had been pending, the trial court justifiably was

concerned that defendant would threaten any subsequent lawyer and thereby

attempt to delay his trial indefinitely. The trial court expressed this very

sentiment, saying: “if it were not for you, . . . it would be against attorney X, or

attorney Y, or attorney Z, and that if not now, then the next trial date and the next

one.” Under the circumstances, the trial court did not abuse its discretion in

concluding that counsel had had a fair opportunity to prepare for trial and that

defendant was merely attempting to manufacture delay.

Although neither party cites any legal authority involving an accused’s

attempt to delay trial by threatening his lawyer with violence, no authority is

necessary. That the administration of justice would suffer if one accused of a

serious crime could postpone his trial indefinitely merely by issuing a series of

threats to his court-appointed attorney is obvious. Although we sympathize with

defense counsel (and the prosecutor), who were required to work under such

stressful conditions, we depend on our trial judges to discern whether such threats

are genuine or not, whether such threats have rendered trial counsel unable to

continue, and whether granting a continuance would ameliorate the situation. The

trial court here acted well within its wide discretion in ruling that defendant’s

threat to counsel was merely an attempt to delay the trial further.

Finding the trial court did not abuse its discretion by denying a

continuance, we also reject defendant’s further claims that the court’s ruling

violated various of his constitutional rights. Assuming without deciding these

claims were preserved for appellate review despite defendant’s failure to make

timely and specific objections on constitutional grounds (People v. Champion


(1995) 9 Cal.4th 879, 908, fn. 6), our conclusion the trial court acted within its

broad discretion in denying a continuance forecloses a constitutional challenge

(People v. Jenkins, supra, 22 Cal.4th at pp. 1039-1040).

2. Alleged Conflict of Counsel

Defendant next contends he is entitled to reversal of his judgment of

conviction because defense counsel labored under a conflict of interest stemming

from defendant’s threats against counsel’s life.

a. Facts

As explained, ante, defense counsel requested a continuance on July 22,

1992. At that same hearing, he expressly declared that he was not asking to be

relieved. “I don’t want somebody else to be put in this situation, and I do not

believe that my effectiveness would be overshadowed by this particular event.”

Later at the same hearing, counsel stated: “I believe I can provide [defendant]

with effective assistance of counsel if I am given this additional time. Otherwise, I

am left to only one, to one subject, which is [to] declare a conflict right now

because, subjectively, I am not in the frame of mind to be able to say that nothing

else would impair my ability to represent him. I believe this to be a real threat.

[¶] . . . I am not asking you to appoint another lawyer and for me to get off the

case, because my conscience and my moral dictates won’t allow me to subject

somebody else rather than myself.” (Italics added.) Later at the same hearing, he

averred: “I cannot be, I cannot provide him effective assistance of counsel right

now. I want to remain being Mr. Roldan’s lawyer because I believe that the threat

would be lessened to me.” (Italics added.) The court denied the request for a


Back in court on August 20, 1992, following this court’s denial of writ

relief and dissolution of a previously ordered stay of trial, defense counsel


renewed both his motion for a continuance and his claim of a conflict of interest:

“I believe there exists the potential, not the potential, I should say there exists a

conflict between Mr. Roldan and myself, which would materially and irreparably

affect the attorney-client privilege [sic: relationship?].” In response to the trial

court’s questions, counsel affirmed that he was declaring a conflict for the same

reasons he explained in camera on July 22, that is, defendant’s threat to kill him.

The trial court then ruled: “The reasons you stated before were insufficient then,

they are insufficient now. The fact that you are now inferring a conflict of

interest, when you chose specifically to deny that before, does not dissuade me. I

am not saying this is a last minute ploy to inject error into this case. I do not

accept this as a conflict of interest, and the motion is denied.”

The guilt phase portion of the trial began with the prosecutor’s opening

statement on September 1, 1992. As noted in more detail, post, defendant

thereafter twice moved to have his attorney relieved as appointed counsel, once on

September 3 and again on September 15. Both motions were denied.

Defense counsel raised the conflict issue again on September 16, 1992.

Noting in camera that a second mental health expert, Dr. Ronald Siegel, had

reported that defendant again threatened defense counsel’s life, counsel stated:

“Your honor, I don’t know of any way that I can effectively represent Mr. Roldan

if, in fact, . . . there [are] threats against my life pending over my head. But at any

time that I endeavor to secure the assistance of others in order to provide Mr.

Roldan with effective assistance of counsel, those people are told literally that Mr.

Roldan does not want to cooperate and that the threats that I have indicated [have

been] made. [¶] I feel that there is such a conflict, such a breakdown in the

attorney-client relationship, that at this point I am left with no other choice but to

declare a conflict. I believe that the court is well aware of this problem. Its

genesis began with statements to Dr. Maloney.” Then: “I don’t believe I can


exercise my independent judgment as to what can and cannot be done and what

should and should not be done if I have these threats over my head.”

After listening to counsel explain himself, the trial court denied the motion:

“I can tell you at this time that there is nothing in the record to reflect the

breakdown of the attorney-client relationship of the magnitude to jeopardize the

defendant’s right to effective assistance of counsel. [¶] You are doing an

exemplary job. You are making those points that you are seeking to make. Your

client, and I mentioned this before, may be seeking to run this trial, as he stated

himself, in such a way that he either wants a mistrial or should try to inject error

into this proceeding. [¶] Your client yesterday stated during the Marsden[6]

hearing that he wants to get to the penalty phase as quickly as possible. You are

doing your ethical duty to see that that is not so. [¶] The motion to be relieved, if

that’s what it is, is denied for the reasons I have stated.”

b. Discussion

“The right to effective assistance of counsel, secured by the Sixth

Amendment to the federal Constitution, and article I, section 15 of the California

Constitution, includes the right to representation that is free from conflicts of

interest.” (People v. Cox (2003) 30 Cal.4th 916, 948.) “ ‘Conflicts of interest may

arise in various factual settings. Broadly, they “embrace all situations in which an

attorney’s loyalty to, or efforts on behalf of, a client are threatened by his

responsibilities to another client or a third person or by his own interests.” ’ ”

(People v. Hardy, supra, 2 Cal.4th at p. 135.)

Under the federal Constitution, when counsel suffers from an actual

conflict of interest, prejudice is presumed. (Cuyler v. Sullivan (1980) 446 U.S.


People v. Marsden (1970) 2 Cal.3d 118 (Marsden).


335.) This presumption arises, however, “only if the defendant demonstrates that

counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of

interest adversely affected his lawyer’s performance.’ ” (Strickland v. Washington

(1984) 466 U.S. 668, 692, citing Cuyler v. Sullivan, supra, at p. 348.) An actual

conflict of interest means “a conflict that affected counsel’s performance—as

opposed to a mere theoretical division of loyalties.” (Mickens v. Taylor (2002)
535 U.S. 162, 171, italics omitted.) “Under the Sixth Amendment of the federal

Constitution, reversal is required if a defendant, over a timely objection, is forced

to continue with conflicted counsel.” (People v. Dancer (1996) 45 Cal.App.4th

1677, 1685, overruled on other grounds in People v. Hammon (1997) 15 Cal.4th

1117, 1123.) To obtain a reversal for this type of error, “the defendant need not

demonstrate specific, outcome-determinative prejudice. [Citation.] But he must

show that an actual conflict of interest existed and that that conflict adversely

affected counsel’s performance.” (People v. Bonin (1989) 47 Cal.3d 808, 837-

838; see generally Mickens v. Taylor, supra, 535 U.S. 162.)

“ ‘To show a violation of the corresponding right under our state

Constitution, a defendant need only demonstrate a potential conflict, so long as the

record supports an “informed speculation” that the asserted conflict adversely

affected counsel’s performance. [Citations.]’ (People v. Frye (1998) 18 Cal.4th

894, 998 [77 Cal.Rptr.2d 25, 959 P.2d 183].) ‘But “[p]ermissible speculation

giving rise to a conflict of interest may be deemed an informed speculation . . .

only when such is grounded on a factual basis that can be found in the record.” ’


“To determine whether counsel’s performance was ‘adversely affected,’ we

have suggested that [Cuyler v.] Sullivan[, supra, 446 U.S. 335,] requires an inquiry

into whether counsel ‘pulled his punches,’ i.e., whether counsel failed to represent

defendant as vigorously as he might have, had there been no conflict. [Citation.]


In undertaking such an inquiry, we are . . . bound by the record. But where a

conflict of interest causes an attorney not to do something, the record may not

reflect such an omission. We must therefore examine the record to determine

(i) whether arguments or actions omitted would likely have been made by counsel

who did not have a conflict of interest, and (ii) whether there may have been a

tactical reason (other than the asserted conflict of interest) that might have caused

any such omission.” (People v. Cox, supra, 30 Cal.4th at pp. 948-949.)

Defendant essentially complains that due to his threat to kill defense

counsel, counsel became so concerned for his safety that he “pulled his punches”

or otherwise conducted a less-than-vigorous defense, to defendant’s detriment,

that is, counsel acted to ensure his personal safety and thereby deprived defendant

of the undivided loyalty a criminal defendant should expect from his legal

representative. There is something perverse in this argument, for although

defendant unquestionably was entitled to the effective assistance of a conflict-free

attorney, defendant’s own behavior created the alleged conflict and threatened to

undermine his lawyer’s effectiveness. We are reluctant to recognize a rule of law

that would empower criminal defendants to inject reversible error into their trials

by simply threatening their lawyers. (See People v. Linares (2004) 2 N.Y.3d 507,

512 [780 N.Y.S.2d 529, 532] [“That defendant backed his objections to counsel’s

advice with the threat of violence does not” require replacement with a substitute

attorney. “Substitution of counsel is an instrument designed to remedy meaningful

impairments to effective representation, not to reward truculence with delay”].)

The situation is analogous to one where a criminal defendant attempts to

create a conflict by filing a lawsuit against his lawyer. Faced with that situation in

People v. Horton (1995) 11 Cal.4th 1068, we concluded the defendant was not

entitled to relief. “[T]he trial court properly determined, in the exercise of its

discretion, that the filing of the complaint did not create any actual conflict of


interest necessitating the withdrawal of appointed counsel. Although being named

as a defendant in a collateral lawsuit by one’s client may place an attorney in a

situation in which his or her loyalties are divided [citation], a criminal defendant’s

decision to file such an action against appointed counsel does not require

disqualification unless the circumstances demonstrate an actual conflict of interest.

[Citation.] A contrary holding would enable an indigent criminal defendant to

challenge each successive appointment of counsel, delaying indefinitely the

criminal prosecution.” (Id. at p. 1106, second italics added.)

We emphasize that no rigid rule exists to preclude relief whenever a

claimed conflict of interest with counsel originates in a defendant’s own actions.

We rely in the first instance on our trial courts to determine whether a criminal

defendant is represented by an attorney truly laboring under conflicting interests or

whether the defendant has simply engineered an apparent conflict in an attempt to

delay the ultimate moment of truth, the jury’s verdict. Here the court reasonably

concluded that defendant, by threatening counsel, was simply trying to delay his

trial. Thus, in denying a requested continuance based on defendant’s threat to

counsel, the court, speaking to defense counsel, opined: “[I]t appears that you do

agree that your client is subject to manufacturing his own reasons for either a

conflict, apparent conflict or delay. I am not . . . convinced that in 45 days the

matter will be assuaged or that is such to be put to rest.” The court concluded: “I

feel your client is trying to manufacture a delay, that’s all.” When counsel later

renewed the claim, the court, after eliciting from counsel that the circumstances

had not changed, denied a continuance, saying: “The reasons you stated before

were insufficient then, they are insufficient now.” The record adequately supports

the court’s assessment of the situation.

Defendant contends defense counsel’s views were more relevant than the

trial court’s assessment of whether an actual conflict existed. “A criminal defense


attorney ‘ “is in the best position professionally and ethically to determine when a

conflict of interest exists or will probably develop in the course of a trial” ’ ”

(People v. Hardy, supra, 2 Cal.4th at p. 137), and his or her opinion is “a

significant factor when determining whether an actual conflict existed” (ibid.).

But here counsel pronounced at the July 22 hearing that he simply needed

additional time to repair his relationship with defendant in order to facilitate

preparation of a defense, thereby implying no debilitating conflict existed. A

month later, when counsel for the first time announced he was burdened by a

conflict of interest as a result of defendant’s threat against him, he admitted no

new grounds had emerged that had not been discussed at the earlier hearing. In

other words, there was no new threat. Defendant simply was refusing to

communicate with counsel, hampering counsel’s efforts and possibly undermining

his own defense.

Although by September 16 defense counsel had unequivocally declared a

conflict due to defendant’s threats and continued refusal to cooperate, the trial

court reasonably found “nothing in the record to reflect the breakdown of the

attorney-client relationship of the magnitude to jeopardize the defendant’s right to

effective assistance of counsel. [¶] You are doing an exemplary job. You are

making those points that you are seeking to make. Your client . . . may be seeking

to run this trial, as he stated himself, in such a way that he either wants a mistrial

or should try to inject error into this proceeding.” Although we do not wish to

minimize the stress under which counsel was operating, the trial court’s

conclusion was reasonable and supported by the evidence. Considering all the

circumstances, we agree with the trial court that defendant was attempting to make

good on his intention to avoid trial at all costs; he was attempting to disrupt and

delay the trial by threatening his court-appointed lawyer, by threatening the

prosecutor, and by refusing to speak to counsel. Defendant’s meritless Marsden


and untimely Faretta7 motions, discussed post, are but additional elements of his

effort to delay the inevitable. These were difficult circumstances under which to

work, to be sure, but they fall short of demonstrating defense counsel was

burdened by either an actual or potential conflict of interest.8


Faretta v. California (1975) 422 U.S. 806 (Faretta).


At the penalty phase, defense counsel testified that defendant “insisted on

numerous occasions that I not conduct any cross-examination of witnesses. [¶] In
fact, when Jude Barrios testified he was very insistent that I not conduct any
examination of her. And to the point that I agreed to limit my cross-examination
of Jude.” He added: “I must admit that there were times when I perhaps—I did
what [defendant] asked because I considered our relationship to be so important.
That I was his lawyer, and I have a legal and moral obligation to do everything I
possibly can for him. I realized what he wanted to do from the start, and there was
a potential conflict there.”

Defendant cites this passage as evidence that counsel “pulled his punches”

as a result of the conflict. We seriously doubt a defendant can condition his
cooperation with counsel on counsel’s agreement to abdicate his professional
responsibilities during trial and then claim on appeal that his counsel was
burdened with a conflict of interest. In any event, nothing in the aforementioned
testimony suggests that counsel refrained from a more vigorous cross-examination
of Barrios as a result of defendant’s threats. Instead, counsel apparently made his
decision based on other tactical considerations, that is, to maintain a viable
working relationship with his client. Further, we have examined counsel’s cross-
examination of Barrios and do not find it deficient in any way. Significantly,
counsel elicited from Barrios that defendant had told her the shooting was
accidental and that he (defendant) used marijuana every day.

We similarly reject defendant’s claim that counsel’s decision to reveal

defendant’s threats to the trial court showed an actual conflict, “unethically
poisoning the trial court’s view of defendant.” Defendant’s threats of violence
formed the basis of counsel’s motions for a continuance and to be relieved due to a
claimed conflict. Counsel was obligated to support those motions by showing
good cause. Under the circumstances, we conclude counsel’s revelation of the
threats does not evidence an actual conflict. In any event, we trust that the trial
judge was able to maintain his impartiality in the face of such information.


3. The Trial Court’s Failure to Intervene to Ensure Defendant Was

Represented by Conflict-free Counsel

Defendant next contends the trial court failed in its duty to conduct an

independent inquiry into the alleged conflict of interest created by defendant’s

threat of violence. He contends the trial court’s duty to inquire was all the more

important because he had been excluded from the hearings in which defense

counsel and the trial court discussed the issue. Although a trial court has the duty

to inquire when it knows or reasonably should know a conflict of interest exists

between client and lawyer (People v. Seaton (2001) 26 Cal.4th 598, 642), the court

fulfilled this obligation by holding the hearings on July 22, August 20, and

September 16, 1992. Our examination of the trial record confirms the trial court

conducted a meaningful inquiry into the issue. We thus reject defendant’s claim

that the court violated his rights under the Fifth, Sixth, Eighth, and Fourteenth

Amendments to the federal Constitution, as well as his claim that the court

violated his rights under “parallel provisions” of the California Constitution.

4. Denial of Marsden and Faretta Motions

During the guilt phase, at the same time defense counsel sought to be

relieved due to an alleged conflict of interest, defendant sought to relieve counsel.

(Marsden, supra, 2 Cal.3d 118.) In addition, defendant sought to represent

himself. (Faretta, supra, 422 U.S. 806.) As we explain, the trial court did not

abuse its discretion when it denied these requests.

a. Facts

Defendant made his first Marsden motion on September 3, 1992, early in

the guilt phase. After the prosecutor left the courtroom, defendant said: “I just

want to say that I want to fire my lawyer because he don’t listen to what I tell him.

I tell him I already went through this trial before. I told him I want to take a deal

for life [imprisonment] without [the possibility of parole]. I can’t plead guilty to


the death penalty. I told him don’t be talking to the witness, my family. He come

tell me he been talking to Jude [Barrios], my family. If not, I’ll be my own lawyer

if he is going to be like that. He is doing the same thing I can do.” “You know, if

I am going to get railroaded, I might as well railroad myself.” Defense counsel

corroborated defendant’s claim that he had disobeyed defendant’s request that he

not speak to defendant’s family. Citing In re Horton (1991) 54 Cal.3d 82,9 the

trial court denied defendant’s motion to fire his lawyer, noting that counsel was in

charge of trial strategy and that counsel was doing an “exemplary job.” The court

also found the motion was untimely. To the extent defendant’s motion was also

for self-representation, the court ruled that his statement that he would “rather

represent myself” was not an unequivocal assertion of his right to self-

representation and impliedly denied it on that basis.

Defendant made his second Marsden/Faretta motion on September 15,

1992, the fifth day of the guilt trial. Addressing the court in the prosecutor’s

absence, defendant stated: “I wanted to ask you again, because I am not sure if

you understand the first time when I asked you about my attorney, I don’t want

him to be doing this already, I guess the defense for me. All I just want to wish is

hurry up and get to the penalty phase because I don’t want that. I keep on telling

him that I don’t, you know, want him doing certain things. [¶] I was informed by

the court that, I guess, he is my lawyer, and, I guess, this is my case, and I just

don’t want him, I wish to fire him. I’d rather go pro per if I could.” Defendant


“In the criminal context . . . counsel is captain of the ship. As we said

recently: ‘When the accused exercises his constitutional right to representation by
professional counsel, it is counsel, not defendant, who is in charge of the case. By
choosing professional representation, the accused surrenders all but a handful of
“fundamental” personal rights to counsel’s complete control of defense strategies
and tactics.’ ” (In re Horton, supra, 54 Cal.3d at p. 95.)


then stated that he would like two attorneys who were death penalty specialists.

Addressing the Marsden motion first, the trial court denied it, reiterating that

defense counsel was in charge of tactical decisions. To the extent defendant was

seeking to replace counsel with other, more qualified attorneys, the trial court

denied that motion as well, noting counsel was a “death penalty specialist [who]

knows what he is doing.”

The court then turned to defendant’s Faretta motion and asked him to

elaborate on his reasons. Defendant replied: “I feel that I might be able to do a

better job. That’s what I want to do. I don’t want to cross-examine. I don’t want

to question no witness. I refuse to talk to any investigators or doctors or whatever

that can be, you know.” The trial court first noted the motion was untimely, and

then denied it on the merits after considering the factors set forth in People v.

Windham (1977) 19 Cal.3d 121: “One, I have to determine the quality of

counsel’s representation of the defendant. And I have to say at this time it’s been

excellent. [¶] Two, defendant’s prior proclivity to substitute counsel. I do note

that some days ago defendant made the same motion. [¶] Three, the reasons for

the request. I do note that right now the defendant stated that he just wants to get

to the penalty phase as soon as possible. [¶] Fourth, the length and stage of the

proceedings. This trial is many years old. We are in the midst of the People’s

case; it appears that the People are soon to rest. [¶] Five, the disruption and delay

which might reasonably be expected to follow the granting of such motion.” After

eliciting from defendant that he would require a continuance to prepare for trial,

the court resumed placing its reasoning on the record: “All right, this would cause

quite a disruption. It would cause a mistrial, at the very least, the suspending of

the trial for sometime.” Observing that numerous appellate decisions have applied

these factors set forth in Windham, the court denied defendant’s Faretta motion.


Defendant’s third and final combination Marsden/Faretta motion came on

September 25, 1992, after the prosecutor had completed the first portion of his

closing argument for the guilt phase of trial. After noting the motions were

untimely, the trial court invited defendant to speak. The following colloquy then


“THE DEFENDANT: I just want you to reconsider that I wish to fire my

attorney. You know, this case is over with already and there’s no doubt in no

one’s mind about guilty or anything like that. I don’t want my attorney to speak

on these closing arguments.

“I’m down there with the pro pers. I’m right there in high power with all

the pro pers, co-counsels. I want to speak. Do my last closing arguments if I

could. If not go pro per or co-counsel in any way. I want to address the jury.

“You know—you know, this meeting, I don’t have no defense. What’s

wrong with just doing this? I can’t hurt no one else. This is it right here. I have

no defense. I might as well, you know, go by myself. He can’t say nothing for me

to defend me. This case is over with.

“I just wish to say to the jury, you know, my closing arguments. I don’t

want him to speak for me.

“THE COURT: The problem that you told me right off the bat is that you are

down there with the pro pers. These are people that are giving you bad advice.

They are giving you bad advice.

“The case, as far as . . . this stage of the trial, this may be the last part of the

trial. . . . There’s only one thing left for your attorney to do and that’s to argue the

matter. He’s well versed and we talked about that before.

“[¶] . . . [¶]

“THE DEFENDANT: Your honor, there’s nothing to argue. Why should—he

cannot say anything to say—I tried to plead guilty before in the past.


“THE COURT: What do you plan on doing, standing up, looking at the jury

and say, ‘convict me of everything’?

“THE DEFENDANT: If that’s what I have to do. There’s no reason to go

through none of this out here. I wanted to plead guilty long ago. He refused.

“I just want life [imprisonment] without [possibility of parole]. You

probably know yourself that ain’t no joke. There ain’t no difference. I just want

you to let me live my life in jail. Death penalty—life without. I just want to live.

“There’s no reason, you know, you should know yourself how it is in there,

you know, just by sitting here and just, you know, sending everybody up state or

people taking deals or whatever, there’s no guarantee of nothing up there. It’s life

without. I’m going to high security prison. You know, that’s a war zone up there.

You know that. There’s no guarantee. I might get killed up there anyway, before

I even—how long I would make it in death row, whatever. I just want life

without. You know, there’s no argument to tell the jury.”

The court denied the motions. “First of all, we have a number of factors to

discuss. The first one is the defendant asking that counsel be replaced. Again, it

is untimely, and can be denied on that basis alone. [¶] However, even if it were

not [un]timely, again I heard the comments of [defense counsel] and he had

diligently, and I stress that, advocated a defense and did everything in his power

for the defendant.” The court then denied defendant’s request to argue his case

personally, noting: “[A] trial court may authorize [such personal participation in

the case by a represented defendant] upon a substantial showing that it will

promote justice and judicial efficiency in a particular case. [¶] In this case the

defendant told me basically what he wants to argue, which is in a sense to convict

him of everything as charged. I do not feel that that is a substantial showing that it

will promote justice and judicial efficiency in the particular case. [¶] The


defendant’s motion, if that’s what it is, to address the jury is likewise denied as he

is represented by competent counsel.”

Finally, turning to defendant’s Faretta motion, the trial court once again

addressed the factors set forth in People v. Windham, supra, 19 Cal.3d 121, and

concluded: “Based upon the totality of the circumstances I find that the motion is


b. Discussion of Marsden Motion

Defendants in capital cases often express dissatisfaction with their

appointed counsel, affording us ample opportunity to address the contours of the

rule set forth in Marsden, supra, 2 Cal.3d 118. The rule is well settled. “ ‘When a

defendant seeks to discharge his appointed counsel and substitute another attorney,

and asserts inadequate representation, the trial court must permit the defendant to

explain the basis of his contention and to relate specific instances of the attorney’s

inadequate performance. [Citation.] A defendant is entitled to relief if the record

clearly shows that the first appointed attorney is not providing adequate

representation [citation] or that defendant and counsel have become embroiled in

such an irreconcilable conflict that ineffective representation is likely to result.’ ”

(People v. Fierro (1991) 1 Cal.4th 173, 204.) The decision whether to grant a

requested substitution is within the discretion of the trial court; appellate courts

will not find an abuse of that discretion unless the failure to remove appointed

counsel and appoint replacement counsel would “substantially impair” the

defendant’s right to effective assistance of counsel. (People v. Smith (2003) 30

Cal.4th 581, 604.)

Applying these standards here, we conclude the trial court acted well within

its discretion by denying all three of defendant’s Marsden motions. At the outset,

we agree with defendant that, to the extent any part of the trial court’s decision to


deny the three Marsden motions was based on untimeliness, it erred. A criminal

defendant is entitled to raise his or her dissatisfaction with counsel at any point in

the trial when it becomes clear that the defendant’s right to effective legal

representation has been compromised by a deteriorating attorney-client

relationship. Because the trial court heard defendant’s complaints in connection

with each of the three Marsden motions, however, any reliance on the purported

untimeliness was harmless under any standard.

Turning to the merits, we find no abuse of discretion. First, there was

sufficient evidence supporting the trial court’s conclusion that defense counsel was

providing adequate legal assistance. Responding to the first two Marsden

motions, the trial court explicitly noted that counsel was doing an “exemplary

job,” was a “death penalty specialist,” was doing an “excellent” job, and was a

“diligent” advocate on defendant’s behalf. Defendant argues these

characterizations of counsel’s skill and experience were incorrect, noting counsel

did not make an opening statement at the guilt phase10 and did not call any

defense witnesses at the guilt phase. But these events had not yet occurred at the

time of defendant’s first two Marsden motions and thus were unknown to the trial

court. More to the point, defense counsel had a difficult task at the guilt phase

because the evidence of defendant’s guilt was overwhelming.11 Although defense

counsel did not call any witnesses for the defense, he raised on cross-examination

the possibility that defendant was intoxicated when he committed the crime and

that the shooting was an accident.


Counsel deferred his opening statement until after the People had rested.

He then chose not to make one.

In their separate trial, the jury for defendant’s partners in crime, Zorn and

Ayala, took only 30 minutes to convict them of murder and robbery.


Second, the trial court acted within its discretion when it concluded the

purported conflict between defendant and his lawyer was not “ ‘such an

irreconcilable conflict that ineffective representation is likely to result.’ ” (People

v. Fierro, supra, 1 Cal.4th at p. 204.) As the record shows, defendant himself

created the conflict. Defendant’s dissatisfaction with counsel stemmed from

counsel’s failure to convince the district attorney to agree to a plea bargain sparing

defendant’s life and counsel’s decision to contact defendant’s family against his

express wishes. These incidents, while evidently disquieting to defendant, do not

rise to the level of a substantial impairment of his right to the effective assistance

of counsel. To begin with, counsel actively sought a plea bargain to allow

defendant to plead guilty in return for a sentence of life imprisonment, but was

rebuffed by the district attorney’s office. Moreover, counsel’s decision to contact

defendant’s family over his express wishes was a tactical decision counsel was

entitled to make. “A defendant does not have the right to present a defense of his

own choosing, but merely the right to an adequate and competent defense.

[Citation.] Tactical disagreements between the defendant and his attorney do not

by themselves constitute an ‘irreconcilable conflict.’ ‘When a defendant chooses

to be represented by professional counsel, that counsel is “captain of the ship” and

can make all but a few fundamental decisions for the defendant.’ ” (People v.

Welch (1999) 20 Cal.4th 701, 728-729.) The mitigating evidence presented in

defendant’s defense at the penalty phase is an indication of the wisdom of

counsel’s tactical choice in this regard.

Although defendant emphasizes that defense counsel himself several times

asserted that he could not be an effective advocate, those assertions stemmed in

part from defendant’s refusal to speak to counsel. As we explained, ante, a

criminal defendant cannot willfully refuse to cooperate with his appointed

attorney, thereby possibly hampering his own defense, and then claim he is


entitled to a new attorney because counsel has not been effective. The trial court

reasonably deduced from the circumstances, including defendant’s serial Marsden

motions and his considered choice not to speak to counsel, that defendant was

merely attempting to inject error and delay into the proceedings.

Under the circumstances, we find the trial court did not abuse its discretion

by denying the three Marsden motions. We further find no Sixth Amendment

violation and reject defendant’s attempt to equate the denial of his Marsden

motions with the outright denial of counsel.

c. Discussion of Faretta Motion

The trial court also properly denied defendant’s various requests to

represent himself. The right to eschew a professional legal advocate and represent

oneself in a criminal trial, first recognized by the United States Supreme Court in

the seminal case of Faretta, supra, 422 U.S. 806, is one aspect of the

constitutional right to present a defense under the Sixth Amendment to the federal

Constitution (People v. Koontz (2002) 27 Cal.4th 1041, 1069), and the erroneous

denial of this right is reversible per se (McKaskle v. Wiggins (1984) 465 U.S. 168,

177, fn. 8; People v. Dent (2003) 30 Cal.4th 213, 217). The right, however, is not

absolute. “To invoke the constitutional right to self-representation, a criminal

defendant must make an unequivocal assertion of that right in a timely manner.

[Citation.] ‘The court faced with a motion for self-representation should evaluate

not only whether the defendant has stated the motion clearly, but also the

defendant’s conduct and other words. Because the court should draw every

reasonable inference against waiver of the right to counsel, the defendant’s

conduct or words reflecting ambivalence about self-representation may support the

court’s decision to deny the defendant’s motion. A motion for self-representation

made in passing anger or frustration, an ambivalent motion, or one made for the


purpose of delay or to frustrate the orderly administration of justice may be

denied.’ [Citation.] A reviewing court, in determining whether a motion for self-

representation is unequivocal, is not bound by the trial court’s apparent

understanding that the defendant was making a motion for self-representation.”

(People v. Barnett (1998) 17 Cal.4th 1044, 1087.)

These limitations on the constitutional right to self-representation are

particularly relevant here. The first of defendant’s three Faretta motions was

made on September 3, shortly after the guilt phase had begun. He complained to

the trial court that defense counsel had contacted his family against his wishes and

stated that “I’ll be my own lawyer if he is going to be like that.” (Italics added.)

The trial court denied the Faretta request because it was not unequivocal. We

have emphasized that a Faretta request must be unequivocal. (People v. Marshall

(1997) 15 Cal.4th 1, 20-25.) This rule “is necessary in order to protect the courts

against clever defendants who attempt to build reversible error into the record by

making an equivocal request for self-representation. (Id. at p. 22.) This concern

applies here; circumstances strongly suggested defendant was attempting to delay

the trial and did not state unequivocally and definitely that he wished to represent

himself. The trial court acted properly in refusing to permit defendant to control

and delay his trial.

We also conclude the trial court properly denied defendant’s second

Faretta motion, made on September 15. Applying the factors we set forth in

People v. Windham, supra, 19 Cal.3d at page 128, the trial court denied the motion

on the merits. Defendant contends the trial court misapplied these factors in a

number of ways, but we disagree. Defendant first argues the trial court was

incorrect when it concluded counsel’s representation had been “excellent.”

Instead, defendant argues, counsel made no opening statement, called no

witnesses, and had declared (in camera) that he could not be an effective advocate


because defendant refused to speak with him. At the time of this motion,

however, the People had called six witnesses and counsel had cross-examined

each of them. Counsel had deferred making an opening statement, and the People

had not yet rested. Counsel’s confidential assessment of his own ability to provide

effective assistance of counsel was based on defendant’s refusal to speak to or

cooperate with him. The trial court’s implicit conclusion that no irreconcilable rift

had occurred between client and counsel, and that defendant was merely

attempting to delay the trial, was a reasonable one.

Defendant next argues that contrary to the court’s conclusion when it

denied his second Faretta motion, he had no prior proclivity to substitute counsel.

His contention is belied by the record, for he had made a similar motion just a few

days before. The reason for his request, the third Windham factor, had not

essentially changed from the time the court denied the first motion for self-

representation. As the trial court noted, defendant did not think he could do a

better job, but merely wanted to speed up the guilt trial so he could proceed to the

penalty phase as soon as possible. The trial court properly concluded this reason

would not support a midtrial decision to permit defendant to fire his lawyer and

represent himself. The final Windham factors (the length and stage of the trial and

the disruption and delay that would result from granting the motion) also strongly

support the trial court’s denial of the Faretta motion. Defendant’s case had

dragged on for more than two years, and defendant’s second Faretta motion came

in the middle of the guilt phase. Defendant affirmed that he would need a

continuance to prepare for trial, leading the trial court reasonably to conclude that

granting a mistrial would be necessary if it permitted defendant to represent

himself at that late date.

Defendant argues that “[d]elay, and delay alone, should not be the

determining factor,” but that argument misconstrues the nature of the trial court’s


ruling. The court considered several factors other than the delay that would ensue

if it granted the motion. Defendant also contends an “objective assessment” of the

propriety of the trial court’s denial of his second Faretta motion should consider

the court’s eve-of-trial denial of a requested 45-day continuance and the denial of

his motion for appointment of second counsel. He argues that his Faretta motion

was not made sooner because the denial of these motions sparked his

dissatisfaction with defense counsel, which led to the motion for self-

representation. Thus, he argues, the delay in making the motion was

understandable. There are several answers to this claim. First, defendant had

made an earlier Faretta motion. In denying the second motion, the trial court

noted the previous, equivocal motion. Thus, this is not a case in which a

defendant made a Faretta motion as soon as was practicable. Second, the trial

court chose not to deny the motion as untimely; defendant therefore was not

penalized for the belated nature of his motion. Third, nothing in the record

indicates that defendant’s dissatisfaction with counsel was linked to the denial of a

continuance or the denial of second counsel. Defendant proclaimed in court that

he wished to represent himself and that he could do a better job than counsel, but

“I don’t want to cross-examine. I don’t want to question no witness. I refuse to

talk to any investigators or doctors or whatever that can be, you know.” Under the

circumstances, the trial court did not err in denying defendant’s second Faretta


We reach the same conclusion with regard to defendant’s third Faretta

motion, made and denied as untimely on September 25. By the time defendant

made this last Faretta motion, presentation of evidence at the guilt phase was

complete and the prosecutor had finished the opening part of his closing statement.

All that was left of the guilt phase was defense counsel’s closing argument and the

prosecutor’s rebuttal. The trial court denied the motion, noting specifically that


defendant “wishes merely to have the jury convict him of all counts and all

allegations so he can just ask for life in prison without the possibility of parole,

and end the matter” and that the trial was “about to wind down to an end.” The

court also noted the “disruption of the delay which might reasonably be expected

to follow the granting of such motion.” We find no abuse of discretion. Contrary

to defendant’s further argument, the trial court did not focus on any one fact but,

as it expressly stated, denied the motion based on the totality of the circumstances.

(People v. Barnett, supra, 17 Cal.4th at p. 1109.)

Even if the guilt phase judgment must stand, defendant claims the penalty

judgment must be reversed because the trial court abused its discretion in denying

this third Faretta motion. He argues the motion came at a convenient time as it

was between the guilt and penalty phases of the trial and that no delay would have

resulted because he did not request a continuance. The mere fact this third Faretta

request came between the guilt and penalty phases is of no moment, for the

request is still considered to be one made midtrial. “[T]he penalty phase has no

separate formal existence but is merely a stage in a unitary capital trial.” (People

v. Hamilton (1988) 45 Cal.3d 351, 369.) Accordingly, defendant was not entitled

to invoke the absolute right of self-representation. (Ibid.) Finding no abuse of

discretion, we reject defendant’s claim that we must reverse the penalty judgment.

In sum, the trial court properly denied all three of defendant’s Faretta


5. Denial of Keenan Counsel

Defendant next contends the trial court abused its discretion when it twice

denied his motion for appointment of a second attorney to assist defense counsel.

He further claims the court’s refusal to appoint second counsel violated his state

and federal constitutional rights to effective assistance of counsel, to due process

of law, to a fair trial, to a reliable sentencing determination, and constituted an


arbitrary deprivation of an entitlement under state law. (U.S. Const., 5th, 6th, 8th

& 14th Amends.; Cal. Const., art. I, §§ 15, 16, 17.)

The right to counsel is, of course, a bedrock constitutional right (U.S.

Const., 6th Amend.; Cal. Const., art. I, § 15; see Gideon v. Wainwright (1963) 372

U.S. 335), but California’s interest in ensuring that those charged with capital

crimes receive adequate legal representation manifests itself in a further layer of

protection: courts have the statutory discretion to appoint a second defense

attorney at public expense. (People v. Weaver (2001) 26 Cal.4th 876, 950;

Keenan v. Superior Court (1982) 31 Cal.3d 424 (Keenan); § 987, subd. (d).)12

But unlike the constitutional right, the statutory right to appointed second counsel

is qualified. Thus, “[i]f it appears that a second attorney may lend important

assistance in preparing for trial or presenting the case, the court should rule

favorably on [a] request. Indeed, in general, under a showing of genuine need . . .

a presumption arises that a second attorney is required.” (Keenan, supra, at

p. 434.) “ ‘The initial burden, however, is on the defendant to present a specific

factual showing as to why the appointment of a second attorney is necessary to his

defense against the capital charges.’ [Citation.] An ‘abstract assertion’ regarding

the burden on defense counsel ‘cannot be used as a substitute for a showing of


Section 987, subdivision (d) provides: “In a capital case, the court may

appoint an additional attorney as a cocounsel upon a written request of the first
attorney appointed. The request shall be supported by an affidavit of the first
attorney setting forth in detail the reasons why a second attorney should be
appointed. Any affidavit filed with the court shall be confidential and privileged.
The court shall appoint a second attorney when it is convinced by the reasons
stated in the affidavit that the appointment is necessary to provide the defendant
with effective representation. If the request is denied, the court shall state on the
record its reasons for denial of the request.”


genuine need.’ ” (People v. Staten (2000) 24 Cal.4th 434, 447.) With these rules

in mind, we turn to an analysis of defendant’s two Keenan requests.

On March 6, 1992, well before the start of trial, defense counsel moved for

second, or Keenan, counsel. Noting that the case would probably proceed to a

penalty phase, counsel stated: “I consider this to be a complicated case because of

the number of witnesses that will testify. The fact is that investigation in this case

is ongoing, that I will need to interview witnesses myself rather than just rely upon

investigators. There are witnesses that will be inconsistent with the statements

that were made by other witnesses during the trial proceeding and I would ask the

court . . . to appoint second counsel. This case warrants [such appointment]

because of the high probability that we will proceed to penalty phase.” The trial

court denied the request, saying: “The fact that a case in your opinion is almost

assured to go to penalty phase is not the specific and compelling reasons that

[precedent] require[s]. . . . [Y]ou are an experienced capital attorney [and] the fact

that a case is going to go to penalty phase itself is not sufficient in and of itself [to

appoint second counsel].”

Defense counsel then explained that his Keenan request was not solely

based on the probability of a penalty phase. “I must also indicate to the court that

based upon my independent investigation that the witnesses that testified in the

case of People versus Ayala and Zorns, their statements will be contradicted in

part by witnesses that will be presented by Mr. Roldan, and I need the assistance

of another attorney to do that.” Counsel thought the task of coordinating such

witnesses was more than one attorney could handle. The trial court disagreed: “I

have had the unusual circumstance of actually sitting through the factual bases for

this trial one time already and the trial with the two defendants lasted some four

weeks. I cannot see the evidence, as far as the People’s case is concerned, lasting

even that long as far as your client is concerned.”


Counsel then explained that he had been working as second counsel in

another capital case and was undertaking defendant’s case “literally back to back,”

that there was a lot of work in the other case, and that he sought to have lead

counsel in the other case be appointed as second counsel in defendant’s case. The

trial court disagreed that counsel would be ineffective without the appointment of

second counsel, noted that counsel was being “overly modest” about his abilities,

and concluded: “Based upon my discretion, weighing the factors here and

understanding the facts as I understand them thus far in this case I am denying

your motion for appointment of second counsel.” The court added: “My ruling is

not in concrete and if there [are] reasons that come up, specific and compelling

reasons, I will be glad at any time to entertain such a motion.”

The decision whether to grant a request to appoint second counsel under

section 987 is reviewed for abuse of discretion. (People v. Ochoa (1998) 19

Cal.4th 353, 408.) The abuse of discretion standard is used in many other contexts

and reflects the trial court’s superior ability to consider and weigh the myriad

factors that are relevant to the decision at hand. A trial court will not be found to

have abused its discretion unless it “exercised its discretion in an arbitrary,

capricious, or patently absurd manner that results in a manifest miscarriage of

justice.” (People v. Lawley (2002) 27 Cal.4th 102, 158 [addressing exercise of

discretion to permit a jury to view defendant’s cabin].)

On these facts, we cannot find the trial court abused its discretion. Defense

counsel’s explanation that he would be required personally to interview additional

witnesses who would provide impeachment evidence was respectfully discounted

by the trial court, who had firsthand knowledge of the weight and nature of the

evidence of guilt, having presided over the trial of Sergio Ayala and Richard

Zorns. In fact, the case was quite straightforward, as eyewitnesses had identified

defendant as the gunman, and both his girlfriend, Jude Barrios, and Richard


Zorns’s then girlfriend, Christine, testified to his damaging and incriminating

admissions. Counsel’s further explanation that he was overloaded by conducting

back-to-back trials was no doubt discounted by the court given the fact

defendant’s trial was not to begin for several months. Finally, the trial court had

discretion to rely on its own evaluation of counsel’s competence.13

Defense counsel renewed the Keenan motion on July 22, 1992, in

conjunction with his request for a continuance prompted by the threats of violence

revealed by Dr. Maloney. Despite counsel’s understandable anxiety over the

threat to his life, he did not articulate any specific need for the services of second

counsel at this hearing over and above the abstract desire for assistance. (People

v. Staten, supra, 24 Cal.4th at p. 447.) Accordingly, the trial court did not abuse

its discretion when it denied the renewed request.

6. Restriction of Voir Dire

Defendant next contends the trial court improperly restricted voir dire in a

number of ways, prejudicially inhibiting his ability to identify prospective jurors

who might have been subject to a challenge for cause and those who should have

been removed by the exercise of a peremptory challenge. He claims the trial

court’s restrictions violated his federal constitutional rights to due process of law,

to an impartial and representative jury, to a jury drawn from a fair cross-section of

the community, to a fair trial, and to a reliable capital sentencing determination.


Defendant also contends the trial court abused its discretion because

defense counsel needed assistance to meet the prosecutor’s evidence, at the
penalty phase, of defendant’s three prior crimes. We agree with respondent that
defense counsel bore the burden of demonstrating the need for the appointment of
second counsel (People v. Staten, supra, 24 Cal.4th at p. 447) and cannot rely on
appeal on arguments not presented to the trial court.


(U.S. Const., 5th, 6th, 8th & 14th Amends.) He also claims the court’s restrictions

violated “parallel provisions” of the California Constitution.14

We begin with the obvious: A criminal defendant is entitled to a trial by

jurors who are impartial and unbiased. (U.S. Const., 6th & 14th Amends.; Cal.

Const., art. I, § 16.) Although neither the state nor federal Constitution expressly

mentions the impartiality of jurors, courts have long interpreted both charters to

encompass the right to impartial jurors. (Turner v. Louisiana (1965) 379 U.S. 466,

471-472; People v. Wheeler (1978) 22 Cal.3d 258, 265.) “ ‘[T]he right to

unbiased and unprejudiced jurors is an inseparable and inalienable part of the right

to a trial by jury guaranteed by the [C]onstitution.’ ” (People v. Earp (1999) 20

Cal.4th 826, 852.)

The impartiality of prospective jurors is initially determined during the

pretrial procedure known as voir dire. “Voir dire plays a critical function in

assuring the criminal defendant that his Sixth Amendment 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. [Citation.] Similarly,

lack of adequate voir dire impairs the defendant’s right to exercise peremptory

challenges where provided by statute or rule.” (Rosales-Lopez v. United States

(1981) 451 U.S. 182, 188.) “Voir dire examination serves to protect [an accused’s

right to a fair trial] by exposing possible biases, both known and unknown, on the

part of potential jurors. Demonstrated bias in the responses to questions on voir

dire may result in a juror’s being excused for cause; hints of bias not sufficient to


Although defendant does not separately argue the state Constitution

provides greater protection against restriction of voir dire than does the federal
Constitution, we conclude he has adequately raised the state constitutional issue.


warrant challenge for cause may assist parties in exercising their peremptory

challenges.” (McDonough Power Equipment, Inc. v. Greenwood (1984) 464 U.S.

548, 554 (plur. opn. of Rehnquist, J.).) “The ability of a defendant, either

personally, through counsel, or by the court, to examine the prospective jurors

during voir dire is thus significant in protecting the defendant’s right to an

impartial jury.” (In re Hitchings (1993) 6 Cal.4th 97, 110.)

Choosing a jury for a capital case poses a special problem. “The state and

federal constitutional guarantees of a trial by an impartial jury include the right in

a capital case to a jury whose members will not automatically impose the death

penalty for all murders, but will instead consider and weigh the mitigating

evidence in determining the appropriate sentence. [Citation.] ‘[A] juror may be

challenged for cause based upon his or her views concerning capital punishment

only if those views would “prevent or substantially impair” the performance of the

juror’s duties as defined by the court’s instructions and the juror’s oath.’

[Citations.] If the death penalty is imposed by a jury containing even one juror

who would vote automatically for the death penalty without considering the

mitigating evidence, ‘the State is disentitled to execute the sentence.’ ” (People v.

Weaver, supra, 26 Cal.4th at p. 910, quoting Wainwright v. Witt (1985) 469 U.S.

412, 424, and Morgan v. Illinois (1992) 504 U.S. 719, 729.)

a. The Voir Dire Procedure

At the beginning of voir dire, the trial court asked prospective jurors

whether they wished to be excused for hardship. Those whose claim of hardship

the court accepted were excused. Those remaining were asked to fill out a 24-

page juror questionnaire. The questionnaire asked jurors to reveal their place of

residence, occupation, military service, marital status, education, and contacts with

the justice system. It also asked jurors whether they had heard about defendant’s


case or about defendant and, if so, whether the information about the case made

them favor the prosecution or the defense, what newspapers they read and

television news they watched, and whether they followed other crime stories in the

news. Finally, the questionnaire asked several questions regarding the jurors’

views about the death penalty. The court photocopied the completed

questionnaires and distributed copies to both the prosecutor and defense counsel.

The trial court, having decided to choose six alternate jurors for this trial,

called the first 18 prospective jurors, 12 to sit in the jury box and six to sit as

alternates. The trial court asked each juror in open court whether the juror wished

to change any of his or her answers in the questionnaire. The court then asked the

jurors individually four questions regarding their willingness and ability to return a

verdict of first degree murder, to sustain a special circumstance allegation, and to

vote for either life imprisonment or for the death penalty. Questions regarding

sensitive and personal matters were asked at the bench, out of the hearing of the

other jurors, but the balance of the questioning was done in open court. Some

jurors were excused on stipulation by both sides, some by the court on its own

motion, and some for cause due to their views on the death penalty. The trial court

then had all prospective jurors leave the courtroom and entertained challenges for

cause from the parties. When both sides indicated they intended to make no

further challenges for cause, the jury was brought in and the parties exercised their

peremptory challenges. The procedure continued until 12 jurors and six alternates

were chosen.

b. Failure to Hold Sequestered Voir Dire

Defendant first contends the trial court committed prejudicial error by

failing to sequester the jurors and question them individually. He admits the

procedure used was authorized by section 223 of the Code of Civil Procedure,


added to the code when the electorate passed Proposition 115 in 1990. That

section provides in part: “Voir dire of any prospective jurors shall, where

practicable, occur in the presence of the other jurors in all criminal cases,

including death penalty cases.” Defendant nevertheless contends that

nonsequestered voir dire tends generally to produce juries more likely to return a

guilty verdict than to acquit, and more likely to choose the death penalty over life

imprisonment. More specifically, defendant contends the nonsequestered voir dire

in this case allowed prospective jurors to hear (and thus become prejudiced by)

concerns expressed by some jurors about possible gang involvement in the trial, as

well as the nature of some pretrial publicity.

Defendant failed to object to the trial court’s decision to conduct voir dire

in open court and thus failed to preserve the issue for appeal. (People v. Avena

(1996) 13 Cal.4th 394, 413.) Had he moved for sequestered, individual voir dire

and the trial court denied the motion, we would have had to determine whether the

trial court abused its discretion. (People v. Waidla (2000) 22 Cal.4th 690, 713-


Conceding that section 223 of the Code of Civil Procedure creates a

preference for nonsequestered voir dire in capital cases, and that Proposition 115

was designed to supersede the contrary rule established in Hovey v. Superior

Court (1980) 28 Cal.3d 1, 80-81 (see People v. Gurule (2002) 28 Cal.4th 557, 596,

fn. 6), defendant nevertheless argues the trial court would have abused its

discretion in denying a motion for sequestered voir dire because the procedures

followed by the court denied him critical information about the prospective jurors.

He cites Tapia v. Superior Court (1991) 53 Cal.3d 282, 299, in support, where we

explained that “[t]here is no reason to believe that the new voir dire rules will be

applied to deprive [defendants] of any information to which voir dire is

legitimately directed.” He does not, however, indicate how the nonsequestered


voir dire procedure deprived him of relevant information, given the detailed jury

questionnaires and the follow-up questions asked by the trial court. Accordingly,

even were we to assume defendant had properly preserved this claim with a timely

objection, it is meritless.

c. Court-only Questioning

In a related claim, defendant contends the trial court’s voir dire of

prospective jurors “unfairly limited the amount of information that defense

counsel received.” As with the decision not to sequester the jurors, however,

defendant failed to preserve this issue by objecting. (People v. Hernandez (2003)

30 Cal.4th 835, 855-856.) Even assuming the issue were properly before us,

defendant fails to explain what type of information was missing or how the

detailed jury questionnaires and follow-up questions from the bench were

inadequate. Accordingly, the claim is meritless.

d. Refusal to Ask Follow-up Questions

Defendant cites several instances in which he sought unsuccessfully to have

the trial court conduct additional questioning of certain prospective jurors in order

to have them elaborate on the answers given in their questionnaires and during in-

court examination. By denying these requests, he claims, the trial court

compromised his ability to acquire sufficient information to exercise his

challenges, both for cause and peremptorily, in an intelligent manner and thereby

violated his constitutional rights.

Although defendant identifies 14 prospective jurors of whom he sought to

have the trial court ask additional questions on voir dire, only two actually served

on his jury. Accordingly, even assuming error as to the other 12, no prejudice

could have resulted from the trial court’s refusal to engage in supplementary voir

dire questioning as to them. (People v. Burgener (2003) 29 Cal.4th 833, 866;


People v. Ramos (1997) 15 Cal.4th 1133, 1157.) The two who served on

defendant’s jury were Juror B.R. and Juror H.R. In his questionnaire, Juror B.R.

made clear he was in favor of the death penalty,15 but would not automatically

vote for death without considering the evidence, both aggravating and mitigating,

including defendant’s background and character. When questioned in open court,

he affirmed he would not automatically vote for death as the appropriate penalty

and that he would follow the law as described by the trial court even if he did not

agree with it. Defense counsel requested “supplemental voir dire” of Juror B.R.

and also challenged him for cause. The trial court denied both the request and the

challenge, noting the juror “pass[ed] Wainwright versus Witt scrutiny, both on the

questionnaire and in open court, and [expressed] the general feelings that he has,

the evident frustration in the criminal justice system, as well as his views of

punishment in general.”

Like Juror B.R., Juror H.R. also expressed favorable views about the death

penalty in her jury questionnaire,16 but indicated she could set aside her personal

feelings and follow the law as explained by the trial court. In open court, she

affirmed she would not automatically vote for the death penalty. As with Juror


Asked what his “general feelings” were concerning the death penalty, Juror

B.R. responded: “I am in favor of the death penalty. I feel one should be
punished for their crimes committed.” He also wrote that the death penalty was
imposed “too seldomly. There are a lot of people awaiting [the] death penalty for
their crimes.”

Asked what her “general feelings” were regarding the death penalty, Juror

H.R. answered: “I am for the death penalty. It cost thousands of tax dollars each
year to keep a criminal incarcerated. If the guilty party maliciously took
someone’s life then the same should be done unto him.” She also responded that
the death penalty was imposed “too seldomly—hundreds are still being murdered
[and] the jails are becoming overcrowded. Some of these prisoners should be
made an example.”


B.R., defense counsel challenged Juror H.R. for cause and, in the alternative,

requested that the trial court “ask additional questions of her.” The trial court

denied the challenge for cause, explaining that “[h]er views generally are that the

death penalty is a deterrent. She answered twice both in the [questionnaire] and

orally the Wainwright versus Witt questions and does not fall within the standard.”

The court also denied the request for additional voir dire questioning.

In neither case did defense counsel explain to the trial court what additional

questions he sought to have asked, what subjects needed additional exploration, or

why the existing information he had about Jurors B.R. and H.R. (from their

detailed questionnaires and from their answers to the in-court questioning by the

trial court) was insufficient to exercise his challenges intelligently. Nor does he

now explain what additional information he had hoped to discover by having the

court ask additional questions. Although defendant relies on People v. Cash

(2002) 28 Cal.4th 703, 718-723, that case is distinguishable. In Cash, the

defendant sought to ask prospective jurors additional questions on a particularly

relevant topic that, on the facts of that case, could have undermined their

assertions of impartiality. Concluding the trial court committed reversible error by

refusing to permit additional questions, we explained that “the trial court’s ruling

prohibited defendant’s trial attorney from inquiring during voir dire whether

prospective jurors would automatically vote for the death penalty if the defendant

had previously committed another murder. Because in this case defendant’s guilt

of a prior murder (specifically, the prior murders of his grandparents) was a

general fact or circumstance that was present in the case and that could cause

some jurors invariably to vote for the death penalty, regardless of the strength of

the mitigating circumstances, the defense should have been permitted to probe the

prospective jurors’ attitudes as to that fact or circumstance. In prohibiting voir


dire on prior murder, a fact likely to be of great significance to prospective jurors,

the trial court erred.” (Id. at p. 721, italics added.)

Here, in contrast, defendant identifies no fact about his case that is

comparable in relevance to the prior murders in People v. Cash, supra, 28 Cal.4th

703, facts that could potentially have prejudiced even a reasonable juror. There

were in this case no prior murders, no sensational sex crimes, no child victims, no

torture. (See, e.g., id. at p. 721.) That defendant personally committed the murder

was not seriously in question.

Because defendant does not explain what additional information he sought

to have elicited or how the existing information about Jurors B.R. and H.R. was

inadequate, and because it appears defendant had sufficient information to

intelligently exercise his challenges, we find the trial court did not abuse its

discretion by denying the requests for additional voir dire questioning of Jurors

B.R. and H.R. (People v. Waidla, supra, 22 Cal.4th at pp. 713-714 [applying the

abuse of discretion standard of review].)17

e. Questioning on Pretrial Publicity

Defendant next contends the trial court’s inquiry into the effect of pretrial

publicity on the impartiality of the jury pool was inadequate. At the threshold, we


Also distinguishable is our recent decision in People v. Stewart (2004) 33

Cal.4th 425, where we reversed the penalty judgment when the trial court granted
five challenges for cause based solely on somewhat ambiguous responses in the
jury questionnaires. As noted, the trial court here conducted an in-court oral voir
dire of every prospective juror and followed up on hesitant or equivocal responses.
Sensitive or personal matters were addressed orally with the juror at sidebar, out of
the hearing of the other jurors. The trial court was thus able to observe the
demeanor of the jurors. (See id. at p. 451.) Unlike People v. Stewart, this was not
a case where the trial court failed to conduct any clarifying follow-up


find defendant failed to preserve this claim for appeal by failing to object to the

questionnaire or to the manner or completeness of the court’s questioning on this

issue. (People v. Sanchez (1995) 12 Cal.4th 1, 61-62; see also Turner v. Murray

(1986) 476 U.S. 28, 37 [“a defendant cannot complain of a judge’s failure to

question the venire on racial prejudice unless the defendant has specifically

requested such an inquiry”].) We also reject the claim on the merits. The jury

questionnaire filled out by all prospective jurors asked them whether they had any

knowledge of defendant’s case (question 30) and, if so, what they had learned

about it (question 32), where they learned it (question 32(a)), and whether the

information made them favor the prosecution or the defense (question 32(b)); what

newspapers they read frequently (question 33) and what portion of the paper they

read (question 33(a)); whether they followed major crime stories and, if so, which

ones (question 33(b)); what was the last book they read (question 33(c)); what

radio and television news broadcasts they had seen or heard (question 34); whether

they follow criminal cases in the broadcast media and, if so, which ones (question

34(a)); what was the most serious crime story they followed that year (question

35); whether they try to follow stories about the functioning of the criminal justice

system (question 36); and whether they could follow an instruction not to “read,

view or discuss any news media coverage of this case” (question 37). Jurors with

knowledge of the case who were unable or unwilling to set their feelings aside

were excused by the trial court. None of the 12 jurors who sat on defendant’s jury

expressed any hint in their questionnaires that they were in any way tainted by

pretrial publicity about defendant’s case. Defendant’s claim that the trial court’s

inquiry into pretrial publicity was somehow inadequate is wholly baseless. (See

People v. Sanchez, supra, at pp. 62-63 [reliance on jury questionnaire].)


f. Questioning on Racial Bias

Defendant is of Puerto Rican descent. His victim, Roland Teal, was

African-American. Defendant contends the trial court abused its discretion by

failing to adequately question the prospective jurors as to whether racial prejudice

might affect their impartiality. As with the previous claim regarding the possible

impact of pretrial publicity on the jurors, we find defendant did not preserve this

claim for appeal because he failed to object to the questionnaire or to the manner

or completeness of the court’s questioning concerning racial prejudice. (People v.

Sanchez, supra, 12 Cal.4th at pp. 61-62; see also Turner v. Murray, supra, 476

U.S. at p. 37.) We also reject the claim on the merits. Question 47 in the jury

questionnaire asked: “A part(ies), attorney(s) or witness(es) may come from a

particular national, racial or religious group or has a life style different from your

own. Would that fact affect your judgment or the weight and credibility you

would give to his or her testimony.” Although, as defendant urges, this question is

not a model of clarity, all 12 jurors answered it in the negative. This was not a

case in which racial prejudice was an obvious issue. (See People v. Earp, supra,

20 Cal.4th at pp. 854-855.) We emphasize that a trial court retains discretion “as

to the form and number of questions on the subject, including the decision whether

to question the venire individually or collectively.” (Turner v. Murray, supra, at

p. 37.) Because defendant does not explain how the jury questionnaire was

inadequate to reveal hidden racial discrimination among the jurors, and because it

appears he had sufficient information to intelligently exercise his challenges, we

find the trial court did not abuse its discretion by relying on the jury questionnaire

to address the issue of possible racial bias among the prospective jurors.

Finally, defendant emphasizes that “the cumulative effect of a restrictive

[voir dire] process . . . undermined the proper purpose of jury selection” and


requires reversal. Having found no abuse of discretion and no constitutional

violation, we also reject the claim of cumulative prejudice.

7. Excusal of Two Jurors for Cause

Defendant contends that during the death penalty qualification of

prospective jurors, the trial court erroneously granted two of the prosecutor’s

challenges for cause, thereby violating defendant’s constitutional rights to a

representative jury, to a jury drawn from a fair cross-section of the community, to

a fair trial, to due process of law, and to a reliable sentencing determination, citing

the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution and

“parallel provisions” of the state Constitution.

In Wainwright v. Witt, supra, 469 U.S. 412, the United States Supreme

Court set forth the proper procedures for choosing jurors in capital cases. That

case “requires a trial court to determine ‘whether the juror’s views would prevent

or substantially impair the performance of his duties as a juror in accordance with

his instructions and his oath.’ [Citation.] ‘Under Witt, therefore, our duty is to

“examine the context surrounding [the juror’s] exclusion to determine whether the

trial court’s decision that [the juror’s] beliefs would ‘substantially impair the

performance of [the juror’s] duties . . .’ was fairly supported by the record.” ’

[Citations.] [¶] In many cases, a prospective juror’s responses to questions on voir

dire will be halting, equivocal, or even conflicting. Given the juror’s probable

unfamiliarity with the complexity of the law, coupled with the stress and anxiety

of being a prospective juror in a capital case, such equivocation should be

expected. Under such circumstances, we defer to the trial court’s evaluation of a

prospective juror’s state of mind, and such evaluation is binding on appellate

courts.” (People v. Fudge (1994) 7 Cal.4th 1075, 1093-1094.)


Defendant contends the trial court improperly excused two prospective

jurors for cause. Juror M.B. was a 72-year-old widow. Asked in the questionnaire

to explain her “general feelings regarding the death penalty,” she replied: “Death

penalty I can’t live with. It will always haunt me [be]cause I’m not God to say

who deserves to live or die.” Asked whether the penalty was imposed too often or

too seldom, she replied: “Have no opinion since I do not believe in death

penalty.” Asked whether she “automatically” would vote one way or another, she

replied: “I don’t know.” When the trial court, following up on these responses,

asked Juror M.B. whether she had a conscientious objection to the death penalty,

she replied: “Hm . . . .” She denied that she would automatically vote against a

special circumstance allegation to avoid the death penalty question, but when

asked whether she would automatically vote for life imprisonment “and never vote

for a verdict of death,” she admitted: “Probably, yeah. It’s very hard.” The court

probed this issue further, asking: “No one says this is going to be easy. You said

your answer was probably never?” She agreed: “Probably never.” When defense

counsel objected to the prosecutor’s challenge for cause (which the trial court

invited), the court explained: “Under People versus Pinholster [People v.

Pinholster (1992) 1 Cal.4th 865] . . . , it held that there was sufficient grounds to

excuse a prospective juror for cause where the juror states he would have a quote,

‘hard time,’ quote, ‘imposing death in a case [in] which a burglar stabbed an adult

victim.’ [¶] In this case this juror went beyond that as stated in Pinholster and

stated that basically she thinks she could not vote [for] death in this case. [¶] The

challenge for cause is sustained.”

Defendant characterizes the trial court’s examination of Juror M.B. as

revealing that she was “concerned and a little nervous, but attempting to do her

civic duty.” He contends the ambiguities in her responses were never clarified and

that because a person rarely, if ever, sits on a capital jury, “[s]tating that one would


‘probably never’ vote for death is consistent with the assertion that one could vote

for death in extreme and deserving circumstances.” As the trial court recognized,

however, we previously have held it permissible to excuse a juror who indicated

he would have a “hard time” voting for the death penalty or would find the

decision “very difficult.” (People v. Pinholster, supra, 1 Cal.4th at pp. 916-917.)

These are not magic phrases, of course, but they indicate a degree of equivocation

on the juror’s part which, taken into account with the juror’s hesitancy, vocal

inflection, and demeanor, can justify a trial court’s conclusion regarding the

juror’s mental state that the juror’s views would “ ‘prevent or substantially impair

the performance of his duties as a juror in accordance with his instructions and his

oath.’ ” (Wainwright v. Witt, supra, 469 U.S. at p. 424.) Such decisions are

committed to the discretion of the trial court, which is able to observe the juror’s

demeanor firsthand. That Juror M.B. was somewhat equivocal and might have

been rehabilitated with further voir dire does not require a different result. “There

is no requirement that a prospective juror’s bias against the death penalty be

proven with unmistakable clarity.” (People v. Rodrigues (1994) 8 Cal.4th 1060,

1146.) “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.” (Id. at p. 1147.) The record supports

the court’s exercise of discretion sustaining the prosecutor’s challenge for cause of

Juror M.B.

We reach the same conclusion for Juror V.Z., whose exclusion defendant

also challenges as contrary to the standard set forth in Wainwright v. Witt, supra,
469 U.S. 412. Juror V.Z. was a 47-year-old teacher. Asked in the questionnaire to

explain her “general feelings regarding the death penalty,” she replied: “I don’t

like it, but can understand why sometimes it’s necessary, although I always feel

bad when someone is executed.” Asked whether the penalty was imposed too


often or too seldom, she replied: “I can’t answer this[, I have] too many mixed

feelings.” Asked whether she “automatically” would vote one way or another, she

replied: “I don’t think so.” The trial court followed up on these responses, asking

Juror V.Z. whether, due to a conscientious objection to the death penalty, she

would refuse to vote for a first degree murder verdict to avoid reaching the penalty

phase, to which she replied: “I honestly don’t know.” Asked whether, based on a

conscientious objection to the death penalty, she would vote “not guilty”

irrespective of the evidence so as to avoid the death penalty question, she replied:

“I find it hard to answer that” and “I don’t know. I really don’t.”

Asked whether she would automatically find a special circumstance

allegation “not true,” she replied: “I don’t think so” and “Well, it’s just I have

never been in a situation like this and I really don’t know how, you know, I would

vote, if I would at all. It’s very hard for me.” After further probing, Juror V.Z.

concluded: “No, I don’t think I could ever vote for death.” (Italics added.)

The prosecutor challenged Juror V.Z. for cause, and defense counsel

objected, explaining: “I think [Juror V.Z.] is attempting to articulate the fact that

this is one of the most difficult decisions that any individual could possibly

confront. Her questions [sic: answers?] are equivocal. She is indicating that . . .

she would have difficulty with the process, but she is willing to abide by the legal

standards that would be required of her by the law. She hasn’t indicated that . . .

under all circumstances she would vote for life without the possibility of parole

and never consider the death penalty.” He added that excluding her for cause

would deprive him of a jury drawn from a representative cross-section of the

community. Noting certain of this court’s decisions in which we approved the

exclusion of prospective jurors who gave similar answers on voir dire, the trial

court ruled that “based upon the equivocal responses in the questionnaire, and the

responses here in court, which are not equivocal, under the Witt standard there


[are] sufficient grounds to sustain the challenge for cause, and it is sustained.”

The court then added that the “excusal of those persons that cannot impose death

does not violate the fair cross-sectional rule.”

We conclude the trial court did not abuse its discretion in determining that

Juror V.Z.’s views would “ ‘prevent or substantially impair the performance of

[her] duties as a juror in accordance with [her] instructions and [her] oath.’ ”

(Wainwright v. Witt, supra, 469 U.S. at p. 424.) Although her initial equivocation

was apparent and could itself have supported the court’s decision (see People v.

Welch, supra, 20 Cal.4th at p. 747), she ultimately declared she could not “ever

vote for death.” The trial court obviously believed her, a credibility determination

that, on this record, is binding on this court. (People v. Fudge, supra, 7 Cal.4th at

p. 1094.)

The trial court did not abuse its discretion by granting the prosecutor’s

challenges for cause and excusing Jurors M.B. and V.Z. To the extent defendant

contends the exclusion of these jurors violated other constitutional rights,

including his right to a fair cross-section of the community, we reject those claims

as well. (People v. Gurule, supra, 28 Cal.4th at p. 597.)

8. Alleged Wheeler Error

Defendant next claims the prosecutor violated his constitutional rights by

excusing four prospective jurors on the basis of their race. (People v. Wheeler,

supra, 22 Cal.3d 258 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79 (Batson).)

“ ‘In [Wheeler] . . . we held that the use of peremptory challenges by a prosecutor

to strike prospective jurors on the basis of group membership violates the right of

a criminal defendant to trial by a jury drawn from a representative cross-section of

the community under article I, section 16, of the California Constitution.

Subsequently, in Batson . . . the United States Supreme Court held that such a

practice violates, inter alia, the defendant’s right to equal protection of the laws


under the Fourteenth Amendment to the United States Constitution.’ ” (People v.

Catlin (2001) 26 Cal.4th 81, 116.) Defendant also contends the trial court’s denial

of his Wheeler/Batson motion violated his constitutional right to a fair trial, to a

fair jury drawn from a fair cross-section of the community, to due process of law,

to equal protection of the laws, and to a reliable sentencing determination under

both the federal and state Constitutions.18

a. Facts

Defendant made two Wheeler/Batson motions. The first motion concerned

Prospective Jurors E.H. and A.F. Prospective Juror E.H., an African-American,

was a light equipment operator who indicated on his questionnaire that he was

“not for the death penalty” and instead believed life imprisonment without the

possibility of parole was “fair.” In response to voir dire questions from the trial

court, however, E.H. affirmed he had no conscientious objections to the death

penalty and would not automatically vote for or against it. Outside the hearing of

the other prospective jurors, he explained that his oldest son was in prison and had

been in prison for eight of the previous 10 years. He said he was unsure of the

specific crime his son had committed, but believed it was a gang-related,

nonviolent drug offense. The prosecutor unsuccessfully challenged Juror E.H. for

cause and used his second peremptory challenge to excuse him.

Prospective Juror A.F., also African-American, reported in his

questionnaire that he was a county probation “peace officer” and that he had not

formed an opinion on the death penalty. “If it applies[,] then, I don’t care one way

or the other.” He also revealed that once, while riding in a car, the driver had a


Although defense counsel did not mention Batson, supra, 476 U.S. 79, in

his motion at trial, reliance on this federal precedent is properly preserved for
appeal. (People v. Yeoman (2003) 31 Cal.4th 93, 117.)


marijuana cigarette. For the first and last time in his life, A.F. took a puff. They

were stopped and cited by police and fined $50. When questioned by the trial

court, he clarified that he was a group supervisor for the probation department and

not a sworn peace officer. He also affirmed that he had no conscientious objection

to the death penalty. The prosecutor later used a peremptory challenge to excuse

Juror A.F.

After the prosecutor excused Prospective Juror A.F., defense counsel did

not immediately make a Wheeler/Batson motion but instead excused a prospective

juror himself. He then approached the bench and, out of the hearing of the jury,

made a Wheeler motion, arguing that Juror A.F. was African-American and that

two of the prosecutor’s eight peremptory challenges had been against African-

American men. Because defense counsel had exercised a peremptory challenge

after the prosecutor excused Juror A.F., the trial court ruled that the Wheeler/

Batson motion was untimely and “as such, I won’t even get into the area of

whether you have made a prima facie case of such group bias.” After some

discussion, the trial court changed its mind and ruled defense counsel had failed to

make a prima facie showing of group bias. The court explained that Juror E.H.

had a son in prison and that E.H.’s general view was against the death penalty. As

for Juror A.F., the court noted that he had been detained by police for marijuana

use. The court made it clear, however, that it was denying the motion for both

untimeliness and because no prima facie showing of group bias had been made.

Out of an abundance of caution and to “protect the record on appeal,” the court

invited the prosecutor to state his reasons for the excusals, but he declined the


Defendant made his second Wheeler/Batson motion after the prosecutor

peremptorily challenged two prospective jurors for the pool of alternate jurors:

Prospective Jurors G.A., a Hispanic man, and T.J., apparently an African-


American woman. The trial court denied this motion, and neither juror ended up

serving on the jury.

b. Discussion

“We presume that ‘a prosecutor uses his peremptory challenges in a

constitutional manner. [Citation.] The defendant bears the burden to show, prima

facie, the presence of purposeful discrimination. [Citation.] If he succeeds, the

burden shifts to the prosecutor to show its absence.’ [Citation.] In order to

establish a prima facie case of group bias, a litigant must raise the issue in a timely

fashion, make as complete a record as feasible, establish that the persons excluded

are members of a cognizable class, and show a ‘ “strong likelihood” ’ of group

rather than individual bias. [Citations.] ‘We give great deference to the trial court

in distinguishing bona fide reasons from sham excuses.’ ” (People v. Boyette

(2002) 29 Cal.4th 381, 421-422.)

That the now challenged jurors belonged to a cognizable class and that the

record is as complete as was feasible are not disputed. Defendant contends,

however, that the trial court erred in ruling that his first Wheeler/Batson motion

was untimely. A motion attacking the use of a peremptory challenge on the basis

of group bias must be timely raised. (People v. Thompson (1990) 50 Cal.3d 134,

179; Wheeler, supra, 22 Cal.3d at p. 280.) For example, a Wheeler/Batson motion

first made after the jury has been sworn and the venire dismissed is untimely.

(People v. Thompson, supra, at p. 179; People v. Perez (1996) 48 Cal.App.4th

1310, 1314; see People v. McDermott (2002) 28 Cal.4th 946, 969-970 [Wheeler

motion was timely where jury was already sworn but selection of alternates


The jury had not yet been sworn when defendant made his first Wheeler

motion. Indeed, little time, perhaps no longer than a single minute, had passed


between the prosecutor’s excusal of Juror A.F. and defense counsel first raising

the Wheeler issue. The only intervening events between the prosecutor’s excusal

of Juror A.F. and counsel making his first Wheeler motion were defense counsel

exercising a peremptory challenge to excuse another juror and the prosecutor

passing his turn to exercise another challenge. Moreover, this is not a case in

which defense counsel had no explanation for his tardiness, explaining: “The

reason I exercised a peremptory [challenge] was that I believe for purposes of

continuity I was not going to ask that the court reporter continue this trek back and

forth here [to the bench], and that I was, by the exercise of one additional

peremptory [challenge], it doesn’t render my challenge into Wheeler untimely per

se.” Although as a general matter Wheeler motions must be timely made, we have

located no authority, and the People cite none, holding that such motions must be

made, on pain of waiver, immediately upon the exercise of the offending

peremptory challenge and before any other challenges have been made. Indeed,

the People essentially concede defendant’s first Wheeler motion was timely. We

agree, and find the trial court erred in ruling otherwise.

Before we turn to the merits of defendant’s Wheeler claim, we address

another preliminary issue. Defendant complains the trial court denied his two

Wheeler motions by applying the wrong legal standard. For example, in

summarizing the law before denying the motion, the trial court opined that “from

all the circumstances in the case, the defense must show a strong likelihood that

such persons are being challenged because of their group association rather than

because of any specific bias.” (Italics added.) Defendant contends that because

Batson holds a litigant need show only a reasonable “inference” of bias to shift the

burden of justification to the opposing party, the trial court held him to too high a

standard in ruling he had failed to make a prima facie case. (See Batson, supra,

476 U.S. at p. 96.) The “exact test is not critical to our resolution of this case”


(People v. Cleveland (2004) 32 Cal.4th 704, 732, fn. 5), because defendant’s

showing that group bias animated the prosecutor’s use of his peremptory

challenges was particularly weak. His only showing in support of the first

Wheeler motion was that the two challenged jurors were both African-American

and that two of his eight peremptory challenges were used against African-

Americans. This was insufficient to make a prima facie showing under any

standard. (See People v. Farnum (2002) 28 Cal.4th 107, 136-137.) Clearly,

which standard the trial court applied was not dispositive here.19

Turning to the merits of defendant’s first Wheeler motion, we find no

reversible error after viewing the record as a whole. “When a trial court denies a

motion under Wheeler, supra, 22 Cal.3d 258, after finding no prima facie case of

group bias, we consider the entire record of voir dire for evidence to support the

trial court’s ruling. If the record suggests grounds upon which the prosecutor

might reasonably have challenged the prospective jurors in question, we affirm.”

(People v. Yeoman, supra, 31 Cal.4th at p. 116.) We need not in this case merely

infer grounds on which the prosecutor might have challenged the jurors, because

the trial court made such reasons plain in explaining why it was denying the

motion. Juror E.H. had a son in prison, and “the use of peremptory challenges to

exclude prospective jurors whose relatives and/or family members have had

negative experiences with the criminal justice system is not unconstitutional.”

(People v. Douglas (1995) 36 Cal.App.4th 1681, 1690.) In addition, although he

later softened his answers in response to the trial court’s voir dire, Juror E.H.


This issue is currently before the United States Supreme Court. (Johnson v.

California (Jan. 7, 2005, No. 04-6964) ___ U.S. ___ [125 S.Ct. 824] [granting


reported in his questionnaire that he was against the death penalty. It does not

violate Wheeler, supra, 22 Cal.3d 258, or Batson, supra, 476 U.S. 79, to remove a

juror who has “unfavorable” views regarding the death penalty. (People v.

McDermott, supra, 28 Cal.4th at p. 972.)

In contrast to Juror E.H., Juror A.F.’s connection with the criminal justice

system was more trivial, having once been detained and cited for possession of

marijuana. The trial court mentioned this incident, however, and also noted that

Juror A.F. was not entirely candid, initially reporting he was a “peace officer”

when he was not. These constitute grounds on which the prosecutor reasonably

could have based his peremptory challenge. (People v. Yeoman, supra, 31 Cal.4th

at p. 116.) Given the weakness of defendant’s showing of bias and the existence

of plausible, if not overwhelming, grounds on which the prosecutor might have

relied to excuse the jurors, we conclude the trial court did not err in denying

defendant’s first Wheeler motion for lack of a prima facie showing of group bias.

Defendant also claims the trial court erred in denying his second Wheeler

motion regarding Prospective Alternate Jurors G.A. and T.J., but we reject his

claim at the threshold. “[Because] no alternate jurors were ever substituted in, . . .

it is unnecessary to consider whether any Wheeler violation occurred in their

selection. Moreover, any Batson violation could not possibly have prejudiced the

defendant.” (People v. Turner (1994) 8 Cal.4th 137, 172.)

Having found the trial court did not err by denying defendant’s first

Wheeler/Batson motion and that no prejudice could have resulted from denial of

the second motion involving the alternate jurors, we reject defendant’s further

reliance on boilerplate invocations of various provisions of the state and federal

Constitutions. (See People v. Yeoman, supra, 31 Cal.4th at p. 118 [“Defendant’s

unelaborated citations to the Fifth, Sixth and Eight Amendments to the United

States Constitution add nothing to his argument”].)


C. Trial Issues

1. Admission of Sun Valley Swap Meet Robbery

Prior to trial, the prosecutor moved to admit evidence of defendant’s

participation in the Sun Valley swap meet robbery in 1988. The prosecutor argued

the evidence was admissible on the issues of identity, intent, and motive pursuant

to Evidence Code section 1101, subdivision (b),20 because of the striking

similarities between the crimes. Thus, he asserted that in both crimes (1) the

perpetrators robbed a swap meet; (2) there were three participants, one who

grabbed the money, one who stood behind him with a gun, and one in the getaway

car; (3) the robbers stole “readily available cash,” not merchandise; (4) the robbers

used an Uzi-like weapon or machine gun; (5) the weapon was obscured by

clothing (in the Sun Valley crime, a coat was draped over the gun; in the San

Fernando crime, the shooter wore a long coat to hide the weapon); and (6) the

getaway car was owned by either a participant or a friend.

Responding to the prosecutor’s motion, defense counsel emphasized the

differences between the two crimes. For example, the robbers in the Sun Valley

crime broke into a secured area, whereas the San Fernando crime was essentially a

“snatch and run.” Defense counsel disputed that swap meets were per se a

distinctive location for a crime, arguing that robberies are committed wherever

money is present, including at swap meets. The prosecutor countered that

defendant, knowing he was about to be convicted in the Sun Valley crime,

committed the San Fernando robbery in order to provide some money for his


Evidence Code section 1101, subdivision (b) provides in pertinent part that

evidence of other crimes is admissible “when relevant to prove some fact (such as
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake or accident . . .) other than his or her disposition to commit such an act.”


girlfriend; thus, the earlier robbery provided a motive for the second one.21 In

addition, the prosecutor argued that because in the Sun Valley crime the security

guard had been a key witness against him, when Teal obstructed his getaway in

the San Fernando crime defendant was motivated to kill him “as revenge for the

[the security guard’s] testimony . . . and that Mr. Teal was clearly killed to prevent

him from testifying based upon the lesson that was learned by [defendant] in the

previous robbery.”22 The trial court ruled the evidence was admissible and, to the

extent defendant was also moving to exclude the evidence under Evidence Code

section 352, denied that motion as well. Evidence was then presented showing

defendant’s guilt of the Sun Valley crime.

Defendant contends the trial court erred by admitting evidence of his

participation in the previous Sun Valley swap meet robbery under Evidence Code

section 1101, subdivision (b) and that its admission prejudiced him by permitting

the jury to conclude he possessed a bad character. We disagree.23


After his arrest, defendant told Jude Barrios where he had hidden his share

of the loot and told her he wanted her to have it, but to give some to his mother.
At the penalty phase, defendant testified he robbed the San Fernando swap meet to
provide for his family while he was in prison.

Jude Barrios later testified at trial that defendant told her he shot Teal to

prevent him from testifying against him.

Defendant also claims the error “goes beyond statutory error and infringes

upon the constitutional right to due process and a fair trial.” Assuming without
deciding we may reach this constitutional issue in the absence of an objection on
that ground (People v. Champion, supra, 9 Cal.4th at p. 908, fn. 6), we conclude
the state authority defendant cites is inapposite because it does not address the
federal constitutional issue (see, e.g., People v. Moten (1991) 229 Cal.App.3d
1318; People v. Gibson (1976) 56 Cal.App.3d 119) and that defendant fails to
persuade us the admission of evidence concerning the prior swap meet robbery
rendered his trial so fundamentally unfair that it violated his due process rights
(see Estelle v. McGuire (1991) 502 U.S. 62, 75; Walters v. Maass (9th Cir. 1995)
45 F.3d 1355, 1357).


The rules governing the admissibility of evidence of other crimes are well

settled. “ ‘Evidence of the defendant’s commission of a crime other than one for

which the defendant is then being tried is not admissible to show bad character or

predisposition to criminality but it may be admitted to prove some material fact at

issue, such as motive or identity. (Evid. Code, § 1101.) Because evidence of

other crimes may be highly inflammatory, its admissibility should be scrutinized

with great care. [Citation.]’ [Citation.] In cases in which the prosecution seeks to

prove the defendant’s identity as the perpetrator of the charged offense by

evidence he had committed uncharged offenses, admissibility ‘depends upon proof

that the charged and uncharged offenses share distinctive common marks

sufficient to raise an inference of identity.’ ” (People v. Medina (1995) 11 Cal.4th

694, 748.) A somewhat lesser degree of similarity is required to show a common

plan or scheme and still less similarity is required to show intent. (People v.

Ewoldt (1994) 7 Cal.4th 380, 402-403.) On appeal, we review a trial court’s

ruling under Evidence Code section 1101 for abuse of discretion. (People v. Lewis

(2001) 25 Cal.4th 610, 637.)

As Evidence Code section 1101, subdivision (b) recognizes, that a

defendant previously committed a similar crime can be circumstantial evidence

tending to prove his identity, intent, and motive in the present crime. Like other

circumstantial evidence, admissibility depends on the materiality of the fact sought

to be proved, the tendency of the prior crime to prove the material fact, and the

existence vel non of some other rule requiring exclusion. (People v. Catlin, supra,

26 Cal.4th at p. 146.) Defendant placed all issues in dispute by pleading not


guilty. (Ibid.)24 Accordingly, the identity of the person who robbed Pipkin and

killed Teal, and that person’s intent and motive, were all material facts.

The evidence of defendant’s participation in the Sun Valley crime also

tends to prove these material facts. “For identity to be established, the uncharged

misconduct and the charged offense must share common features that are

sufficiently distinctive so as to support the inference that the same person

committed both acts. [Citation.] ‘The pattern and characteristics of the crimes

must be so unusual and distinctive as to be like a signature.’ ” (People v. Ewoldt,

supra, 7 Cal.4th at p. 403.) Requiring a “highly unusual and distinctive nature

[for] both the charged and uncharged offenses virtually eliminates the possibility

that anyone other than the defendant committed the charged offense.” (People v.

Balcom (1994) 7 Cal.4th 414, 425.)

Here, defendant and his cohorts victimized the owners or proprietors of

swap meets, an unusual venue for such crimes. We disagree with defendant’s

characterization of a swap meet as just another generic location where money can

be found by those willing to transgress the larceny laws. Swap meets are

distinctive in that they are large sprawling affairs with less security over cash

receipts than might be found in a permanent brick and mortar establishment.

Moreover, the crimes here were committed in a distinctive manner. One robber

grabbed the cash, not merchandise, while a second stood behind him with an Uzi

or machine gun partially obscured by clothing. The third member of the group

waited in a car to facilitate a rapid departure. In light of the distinctiveness and

unusual nature of these shared characteristics, we conclude the trial court did not


We note defendant declined to stipulate that he was one of the robbers

(identity) or that he intended permanently to deprive Pipkin of his money (intent).


abuse its discretion in ruling evidence of the Sun Valley offense would support the

inference the same person committed the San Fernando offense.

We reach the same conclusion as to the issue of intent. “ ‘We have long

recognized “that if a person acts similarly in similar situations, he probably

harbors the same intent in each instance” [citations], and that such prior conduct

may be relevant circumstantial evidence of the actor’s most recent intent. The

inference to be drawn is not that the actor is disposed to commit such acts; instead,

the inference to be drawn is that, in light of the first event, the actor, at the time of

the second event, must have had the intent attributed to him by the prosecution.’ ”

(People v. Gallego (1990) 52 Cal.3d 115, 171.) In other words, if defendant

intended permanently to deprive the victim of the Sun Valley crime of his money,

the jury legitimately could infer he harbored the same intent with regard to his

actions toward Pipkin. Although defendant argues the intent to deprive was not

“significantly” in issue, it nevertheless was part of the prosecution’s burden to

prove such intent.

Finally, we conclude likewise as to motive. Although defendant argued at

trial that motive was not one of the elements of any crime the prosecutor was

obliged to prove, evidence of motive makes the crime understandable and renders

the inferences regarding defendant’s intent more reasonable. “Motive is not a

matter whose existence the People must prove or whose nonexistence the defense

must establish. [Citation.] Nonetheless, ‘[p]roof of the presence of motive is

material as evidence tending to refute or support the presumption of innocence.’ ”

(People v. Scheer (1998) 68 Cal.App.4th 1009, 1017.) Because the security guard

at the Sun Valley swap meet had provided key prosecution evidence against

defendant, the jury could infer that defendant had a motive to eliminate Teal as a

witness. Although defendant argued below that Teal was not, in fact, a security

guard for the San Fernando swap meet, he could not have known that at the time


of the robbery. All defendant saw was that Teal had captured Ayala during the

getaway period; for all intents and purposes, Teal must have appeared to defendant

as a security guard. On appeal, defendant contends this theory of motive “is

completely unfounded and far too speculative to support admission of other crimes

evidence.” On the contrary, Jude Barrios later testified that defendant told her he

killed Teal to eliminate a witness to the crime, indicating the theory was not so

speculative as defendant would have us believe.

Accordingly, we find the trial court did not abuse its discretion in admitting

the evidence of the Sun Valley swap meet robbery. For the same reasons, we also

find the court did not abuse its discretion in denying defendant’s motion to

exclude this evidence under Evidence Code section 352. Even were we to find the

court abused its discretion, however, any error would have been harmless. After

Jude Barrios and Christine Zorns testified, there was little doubt on the issue of

identity. Moreover, given defendant’s actions during the robbery, coupled with

the jury’s finding that he personally used a firearm to shoot Teal, there would have

been little doubt about his intent or motive. Any error in admitting evidence of the

Sun Valley swap meet robbery was thus harmless.

2. Use of a Demonstration Weapon

Defendant claims the trial court erred by allowing the prosecutor to display

two Uzi-like weapons as demonstrative evidence when questioning five witnesses.

He contends the trial court’s decision to permit the display of such demonstrative

evidence violated his due process rights to a fair trial and a reliable penalty verdict

and requires a reversal of the convictions under the Sixth, Eighth, and Fourteenth

Amendments to the federal Constitution and “parallel provisions” of the California

Constitution because (a) it was impermissible to use demonstrative evidence;

(b) the prosecutor did not establish a proper foundation for such display; and

(c) the evidence was irrelevant to the robbery, attempted murder, and murder


charges. Defendant did not assert these constitutional claims below. (People v.

Sanders (1995) 11 Cal.4th 475, 510, fn. 3.) Assuming without deciding the issue

was properly preserved for appellate review (People v. Champion, supra,

9 Cal.4th at p. 908, fn. 6), we find it is meritless.

“It is entirely proper for a prosecutor to use objects similar to those

connected with the commission of a crime for purposes of illustration.” (People v.

Barnett, supra, 17 Cal.4th at p. 1135.) “[D]emonstrative evidence is admissible

for the purpose of illustrating and clarifying a witness’ testimony” so long as a

proper foundation is laid. (People v. Ham (1970) 7 Cal.App.3d 768, 780,

disapproved on another ground in People v. Compton (1971) 6 Cal.3d 55, 60,

fn. 3.) “[I]t is paramount that it be established that the [weapon] was substantially

similar to that which it seeks to illustrate.” (People v. Ham, supra, at p. 780.) We

approved of Ham’s analysis in People v. Wiley (1976) 18 Cal.3d 162, 177, and

noted that once a proper foundation had been laid, “admission was within the

sound discretion of the trial court.”

People v. Barnett, supra, 17 Cal.4th 1044, is illustrative. In that case, two

witnesses observed the defendant hook a fishing lure into the victim’s back before

murdering him. The prosecution did not have the actual lure used by the

defendant so he displayed a demonstration lure to the witnesses. Both witnesses

described characteristics of the lure before the prosecutor displayed it, and one

witness identified similarities and differences between the demonstration lure and

the lure actually used by the defendant. The demonstration lure was substantially

similar to the actual lure with the only difference being it lacked the feathers the

actual lure had. We held the prosecutor’s display of a demonstration lure was

proper “[b]ecause it was useful for illustrative purposes and had no tendency to

evoke an emotional bias against the defendant as an individual” even though the

actual lure was used by the defendant to injure and torture the victim before his


death. (Id. at p. 1136.) We further noted that “the prosecutor did not use

deceptive or reprehensible methods of persuasion [citations] in showing the lure to

the witnesses and did not try to pass it off as the lure used by the defendant.

Commendably, the prosecutor specifically elicited testimony from [one of the

witnesses] identifying the difference between the two lures. No misleading

impression was created.” (Ibid.)

In this case, the trial court properly permitted the prosecutor to display a

gun similar to defendant’s for demonstrative purposes because the actual gun

defendant used was never recovered. As a threshold matter, we reject defendant’s

claim that the prosecutor failed to lay a proper foundation that the gun defendant

used was substantially similar to the demonstration Uzi. Although defendant

objected on this ground below, the prosecutor established a proper foundation

necessary to display the demonstration weapon to witnesses. Based on the

prosecution’s firearms expert’s opinion, the prosecutor asserted the likely weapon

was an Uzi. The prosecutor used two different Uzis as demonstrative evidence.

One was an open-bolt model, not marked as an exhibit at trial, that could be fired

automatically or semiautomatically, and the other was a closed-bolt model, that

could be fired only semiautomatically. With respect to each witness, the

prosecutor elicited testimony about the witness’s recollection of the gun before he

displayed the demonstration Uzi.

For example, Dominic Wright testified that defendant’s weapon was not a

handgun and defendant needed both hands to hold it. Wright particularly

indicated that defendant’s left palm was face up, holding the front of the weapon,

and his right hand was on the grip and magazine about six inches behind his left

hand. After examining the “demonstration” Uzi, Wright testified the barrel was

similar to defendant’s gun. In like fashion, Ricardo Mireles testified that

defendant’s gun was a submachine gun and that he held it with both hands,


similarly to the way Wright had described. After being shown the

“demonstration” Uzi, Mireles testified the barrel was similar to defendant’s gun.

Thus, the prosecutor laid the proper foundation and established that the

demonstration Uzi was substantially similar to the actual gun used by defendant.

Having found the People laid an adequate foundation for the evidence, we

turn to defendant’s contention that use of the demonstration Uzi was improper

because, as it could not be adequately linked to the crime, it was irrelevant. We

disagree. The demonstration weapon assisted the jury in understanding the

evidence and testimony. Investigators had recovered expended shell casings at the

crime scene, as normally expected in a shooting, but also found four live rounds

that were previously chambered and identical to the caliber and manufacturer of

the expended shell casings. Leticia Calderon testified that she heard defendant’s

gun make a clicking sound when he pointed it at Judy Adams during the initial

confrontation in the parking lot. The prosecution theorized that defendant’s gun

had probably malfunctioned or jammed, which made a metal-on-metal clicking

sound and caused him to manually eject the live rounds later found by the police.

The prosecution’s firearms expert testified that if an Uzi malfunctions or jams,

manual ejection of the bullets would be required. Thus, the demonstration Uzi

was relevant in explaining the four live rounds found at the crime scene and the

metal-on-metal clicking sound heard by Calderon.

Finally, the prosecutor did not attempt to mislead the jury with the Uzi.

Rather, the prosecutor specifically stated the demonstration Uzi was not the actual

weapon used by defendant. Upon initial display, the judge immediately repeated

to the jury that the weapon was just a demonstration weapon. On these facts, the

demonstration Uzi could not have evoked any emotional bias against defendant.

(People v. Barnett, supra, 17 Cal.4th at p. 1136.)


Finding the prosecution laid a sufficient foundation, that the evidence was

relevant, and that the prosecutor did not use the evidence in an inflammatory or

misleading way, we find no error.

3. Various Evidentiary Rulings

a. Adoptive Admissions

Jude Barrios and Christine Zorns testified over defense objection and

recounted incriminating comments they had overheard while defendant, Richard

Zorns, and Sergio Ayala discussed the crime in the hours following the swap meet

robbery and Teal’s murder. Defendant contends the admission of this evidence

violated the hearsay rule as well as his constitutional rights to due process of law

and to confront the witnesses against him. Regarding the hearsay question, we

agree with the trial court that the challenged evidence was admissible because it

qualified as an adoptive admission. The law is well settled. Evidence Code

section 1221 provides: “Evidence of a statement offered against a party is not

made inadmissible by the hearsay rule if the statement is one of which the party,

with knowledge of the content thereof, has by words or other conduct manifested

his adoption or his belief in its truth.” “Under this provision, ‘If a person is

accused of having committed a crime, under circumstances which fairly afford

him an opportunity to hear, understand, and to reply, and which do not lend

themselves to an inference that he was relying on the right of silence guaranteed

by the Fifth Amendment to the United States Constitution, and he fails to speak, or

he makes an evasive or equivocal reply, both the accusatory statement and the fact

of silence or equivocation may be offered as an implied or adoptive admission of

guilt.’ [Citations.] ‘For the adoptive admission exception to apply, . . . a direct

accusation in so many words is not essential.’ (People v. Fauber (1992) 2 Cal.4th

792, 852 . . . .) ‘When a person makes a statement in the presence of a party to an


action under circumstances that would normally call for a response if the statement

were untrue, the statement is admissible for the limited purpose of showing the

party’s reaction to it. [Citations.] His silence, evasion, or equivocation may be

considered as a tacit admission of the statements made in his presence.’ ” (People

v. Riel (2000) 22 Cal.4th 1153, 1189.)

Defendant presented no evidence suggesting he did not hear the comments

testified to by Barrios and Christine Zorns. Nor is there any suggestion he failed

to speak because he was relying on his Fifth Amendment rights. Although, as

defendant emphasizes, the witnesses did not specifically attribute each comment to

a particular speaker, that is irrelevant on the facts of this case, where defendant

heard the comments, had the opportunity to reply, and the comments were made

under circumstances that normally would call for a response. Although he claims

there was no evidence of his reaction to the comments, his silence may be taken as

an adoption of them. We conclude the trial court properly admitted the statements

as adoptive admissions excepted from the hearsay rule.

Defendant also contends the admission of this same evidence violated his

federal constitutional rights. He did not, however, make a specific objection on

constitutional grounds at trial. Assuming without deciding the issue was properly

preserved for appellate review (People v. Champion, supra, 9 Cal.4th at p. 908,

fn. 6), we conclude defendant fails to persuade us the admission of his adoptive

admissions rendered his trial so fundamentally unfair that it violated his due

process rights. (See Estelle v. McGuire, supra, 502 U.S. at p. 75.) In short, we

find no constitutional error.25


Assuming for argument that defendant preserved the confrontation issue,

we further find the evidence from Ayala and Zorns was nevertheless admissible
despite the United States Supreme Court’s recent decision in Crawford v.

(footnote continued on next page)


b. Barrios’s Admission of Perjury

The prosecutor proposed to have Jude Barrios testify she perjured herself

when, in defendant’s earlier trial for the Sun Valley swap meet robbery, she

provided him with an alibi. Defendant objected, claiming lack of relevance. The

court overruled the objection, noting that “[a] witness’s credibility is always in

issue.” Barrios thereafter testified that she had provided defendant with an alibi,

that she had lied when she did so, and that she and defendant had discussed her

testimony in the prior case before she testified. She had committed perjury

because she loved him and thought she could help him.

(footnote continued from previous page)

Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177]. Prior to that case, the
Supreme Court had held that an unavailable witness’s out-of-court statement
against a criminal defendant could be admitted consistent with the confrontation
clause if it bore an “adequate ‘indicia of reliability.’ ” (Ohio v. Roberts (1980)
448 U.S. 56, 66.) To qualify under that test, evidence had either to fall within a
“firmly rooted hearsay exception” or bear “particularized guarantees of
trustworthiness.” (Ibid.) After Crawford, it is important to distinguish between
hearsay statements that are testimonial and those that are not. “Where testimonial
statements are at issue, the only indicium of reliability sufficient to satisfy
constitutional demands is the one the Constitution actually prescribes:
confrontation.” (Crawford v. Washington, supra, at p. ___ [158 L.Ed.2d at
p. 203].) Where an offered statement is nontestimonial, states may regulate the
admission of evidence by applying their hearsay rules without running afoul of the
confrontation clause. (Ibid.)

While the precise contours of the category of “testimonial” statements

remain unclear, the statements at issue here do not implicate the constitutional
concerns in Crawford. Because the statements were adopted by defendant, they
become, in effect, his statements, and, “[b]eing deemed the defendant’s own
admissions, we are no longer concerned with the veracity or credibility of the
original declarant.” (People v. Silva (1988) 45 Cal.3d 604, 624; see People v.
(2004) 34 Cal.4th 821, 842-843.) In sum, admission of defendant’s
adoptive admissions did not violate the confrontation clause as interpreted in
Crawford v. Washington.


Defendant admits evidence of a witness’s credibility is generally

admissible, but contends “the real purpose for the prosecutor’s eliciting this

evidence was to prejudice the defendant by showing his involvement in another

crime—aiding and abetting perjury—and attack his character.” (See Evid. Code,

§ 1101.) He did not object on this ground and therefore forfeited the issue for

appeal. Even had he preserved the claim, it lacks merit. As noted, ante, the trial

court admitted evidence of defendant’s role in the earlier Sun Valley swap meet

robbery. Barrios’s testimony, especially that she had discussed with defendant

what she should say when testifying to provide him a false alibi, was relevant to

show defendant’s consciousness of guilt for that crime. This evidence was clearly

relevant for that purpose and therefore properly admitted.

c. Admission of Photographs of Roland Teal

The jury was not allowed to view postmortem photographs of victim

Roland Teal while the witnesses were testifying, but near the end of the

prosecution’s presentation of guilt phase evidence, the trial court considered

whether to admit four photographs. The first shows the nude body of the victim

lying on the coroner’s table, covered by a towel. The other three photographs

portrayed close-up views of the wounds the victim suffered. Defendant objected

to their admission; the trial court took the basis of the objection to be that the

evidence was more prejudicial than probative. (Evid. Code, § 352.) As to the

latter three, the court ruled they were “basically clinical photos. They are not

gruesome. They are not bloody.” Moreover, “[t]hey are relevant to show the

nature of the wounds, the position of the . . . victim in receiving the wounds, and

helps illustrate the coroner’s testimony.” The court concluded these photographs

were not more prejudicial than probative and admitted them.


The trial court initially made a different ruling as to the first photograph,

which showed the victim on the coroner’s table. The trial court stated it saw no

relevance to the photo and thus excluded it. The prosecutor argued that the

photograph was relevant to an issue raised by the coroner’s testimony.

Specifically, it was the prosecutor’s theory that the victim was shot while his arms

were raised (as if to give himself up), although defendant, in his cross-examination

of the coroner, raised the possibility the victim was engaging in certain body

gyrations when shot, thereby explaining the particular type of wounds. The

prosecutor argued the photo, showing that the victim was an overweight elderly

man, was relevant to whether the victim was capable of engaging in such

gyrations. The trial court agreed, reconsidered its ruling, and admitted the


Defendant contends the trial court erred when it overruled his objections to

the admission of these photographs. The admission of allegedly gruesome

photographs is basically a question of relevance over which the trial court has

broad discretion. (People v. Scheid (1997) 16 Cal.4th 1, 13-14.) “A trial court’s

decision to admit photographs under Evidence Code section 352 will be upheld on

appeal unless the prejudicial effect of such photographs clearly outweighs their

probative value.” (People v. Gurule, supra, 28 Cal.4th at p. 624.)

We have examined the photographs in question and conclude the trial court

did not abuse its discretion. They are not unduly bloody or gruesome and are

relevant to the manner in which the victim was killed. As we have previously

noted, “ ‘murder is seldom pretty, and pictures, testimony and physical evidence in

such a case are always unpleasant.’ ” (People v. Pierce (1979) 24 Cal.3d 199,

211.) Although defendant argues the photographs were cumulative to the

coroner’s detailed testimony, this fact, even if true, does not demonstrate the trial

court abused its broad discretion. “[P]rosecutors, it must be remembered, are not


obliged to prove their case with evidence solely from live witnesses; the jury is

entitled to see details of the victims’ bodies to determine if the evidence supports

the prosecution’s theory of the case.” (People v. Gurule, supra, 28 Cal.4th at

p. 624.)

d. Pipkin’s Testimony as to a Lack of Prior Robberies

The prosecutor asked Barney Pipkin, the manager of the San Fernando

swap meet, whether he had ever been robbed before while loading his car with the

proceeds from the swap meet. He answered in the negative, whereupon defendant

objected on the ground of relevance. The trial court overruled the objection,

merely saying: “The answer is in.” Defendant contends the information was

irrelevant and encouraged the jurors to feel sympathy for Pipkin. Respondent

argues defendant waived the issue by failing to request the witness’s answer be

stricken. We need not resolve either of these contentions, for the issue is too

trivial. Even assuming the answer was irrelevant, no conceivable prejudice could

have resulted.

e. Judy Adams’s Call to Police

Judy Adams called the police when she realized a robbery was occurring.

While she was on the phone, she did not see what was happening but relayed to

the police a description of the events provided to her by her son, Rod Adams, and

Leticia Calderon, both of whom were percipient witnesses. Police taped this call,

and the prosecutor proposed to play the tape for the jury. Defendant objected on

the ground the tape contained hearsay, but the trial court overruled the objection.

The tape was then played for the jury.

Defendant contends the trial court erred by permitting the prosecution to

play the tape for the jury, arguing that Judy Adams was not a percipient witness

and her comments therefore did not qualify as a spontaneous utterance that could


fall under an exception to the hearsay rule. 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.” In a

multiple, nested hearsay situation as here, the multiple hearsay is admissible only

“if each hearsay layer separately meets the requirements of a hearsay exception.”

(People v. Arias (1996) 13 Cal.4th 92, 149.) A trial court’s decision to admit

evidence under the spontaneous utterance exception to the hearsay rule will not be

reversed unless the court abused its discretion. (People v. Phillips (2000) 22

Cal.4th 226, 236.)

That all three people involved—Judy Adams, her son Rod Adams, and

Leticia Calderon—were operating under the stress and excitement of the robbery

when the tape was made is not questioned. The crime had just occurred and was

ongoing; the robbers were fleeing with the loot, and Roland Teal, Barney Pipkin,

and others were in hot pursuit. Although defendant is correct that Judy Adams

was not a percipient witness to the events she related to police on the telephone,

she was a witness to what the others (Rod Adams and Leticia Calderon) were

saying. (People v. Arias, supra, 13 Cal.4th at p. 150 [the “act” or “event”

described can be another’s statement].) Rod Adams and Leticia Calderon, in turn,

were percipient witnesses to the unfolding events of the robbery and the flight

therefrom. Because both levels of hearsay qualified under the spontaneous

utterance exception to the hearsay rule, the trial court did not abuse its discretion

by admitting the tape.26


Defendant did not object at trial on constitutional confrontation grounds

and, although he mentions the confrontation clause in his briefing before this

(footnote continued on next page)


4. Failure to Instruct on Voluntary Intoxication

Defendant contends the trial court erred by denying his request to instruct

the jury on the effect on his mental state of his alleged voluntary intoxication. He

also claims the court’s refusal to instruct on intoxication deprived him of his

federal constitutional rights to due process of law, to a properly instructed jury, to

a fair trial, and to a nonarbitrary capital sentencing process. (U.S. Const., 6th, 8th

& 14th Amends.)27 Because only minimal and insubstantial evidence supported

an intoxication defense, the trial court properly refused the requested instruction.

“[T]he trial court normally must, even in the absence of a request, instruct

on general principles of law that are closely and openly connected to the facts and

that are necessary for the jury’s understanding of the case.” (People v. Carter

(2003) 30 Cal.4th 1166, 1219.) In addition, “a defendant has a right to an

instruction that pinpoints the theory of the defense [citations]; however, a trial

judge must only give those instructions which are supported by substantial

evidence. [Citations.] Further, a trial judge has the authority to refuse requested

instructions on a defense theory for which there is no supporting evidence.”

(People v. Ponce (1996) 44 Cal.App.4th 1380, 1386.) “A party is not entitled to

(footnote continued from previous page)

court, he does not argue the tape of Judy Adams’s telephone call to police was
inadmissible under Crawford v. Washington, supra, 541 U.S. 36. Nevertheless,
assuming this claim is properly before us despite the absence of a timely objection
on constitutional grounds, we conclude any possible confrontation problem was
avoided by the fact that Leticia Calderon testified at trial. Thus, defendant was
able to cross-examine Calderon, the percipient witness, as well as Judy Adams, the
conduit of the information to police. To the extent some part of the tape recording
of Judy Adams’s call to police was attributable to the out-of-court statements of
Rod Adams, any error was harmless beyond a reasonable doubt in light of
Calderon’s testimony.

Defendant does not rely on any state constitutional ground for this issue.


an instruction on a theory for which there is no supporting evidence.” (People v.

Memro (1995) 11 Cal.4th 786, 868.)

Evidence of voluntary intoxication, formerly admissible on the issue of

diminished capacity (see generally People v. Mendoza (1998) 18 Cal.4th 1114,

1125), now is “admissible solely on the issue of whether or not the defendant

actually formed a required specific intent, or, when charged with murder, whether

the defendant premeditated, deliberated, or harbored express malice aforethought.”

(§ 22, subd. (b); People v. Mendoza, supra, at p. 1126.) Accordingly, a defendant

is entitled to an instruction on voluntary intoxication “only when there is

substantial evidence of the defendant’s voluntary intoxication and the intoxication

affected the defendant’s ‘actual formation of specific intent.’ ” (People v.

Williams (1997) 16 Cal.4th 635, 677.)

Very little evidence suggested defendant was intoxicated when he robbed

Pipkin and killed Teal, and there was no evidence of the effect, if any, such

alleged intoxication had on defendant. (People v. Ivans (1992) 2 Cal.App.4th

1654, 1661 [intoxication instruction not required “unless the evidence also shows

he became intoxicated to the point he failed to form the requisite intent”].)

Defendant relies on the testimony of Jude Barrios, but her testimony fails to

provide substantial evidence of intoxication. For example, she testified that Sergio

Ayala was intoxicated at the time of the crime and that, due to his heavy drinking,

he felt sick after fleeing the scene of the robbery. That information does not

establish that defendant also was drinking. Defendant attempts to link Ayala’s

drinking with himself, noting that Barrios testified defendant told her “they” had

been drinking (meaning he, Ayala, and Zorns) in order to build up their courage

before committing the robbery. However, she also testified: “I don’t know if that

meant everybody, but he said they had been drinking.” She later clarified her

testimony, saying defendant never told her he personally had been drinking. “He


said he felt a little woozy, but that was the extent of it. He didn’t say he was

drinking or anything.” This evidence is inadequate to support an intoxication

instruction. Nor does evidence that defendant was an habitual user of marijuana

constitute substantial evidence he was intoxicated or under the influence at the

time of the crime. Further, testimony that a few hours after the crime defendant

was “ecstatic” and on “cloud nine” does not establish he was intoxicated at the

time of the crime.

Because the evidence defendant was intoxicated at the time of the crime

was “at most minimal” (People v. Williams (1988) 45 Cal.3d 1268, 1312), the trial

court properly refused the defense request to instruct the jury that his alleged

voluntary intoxication precluded him from forming the specific intent to kill or to

rob. The jury having been properly instructed on this point, we also reject

defendant’s claims of constitutional error.

5. Failure to Instruct on Manslaughter

Defense counsel requested that the trial court give a manslaughter

instruction based on a theory the gun discharged by accident or mistake. He did

not elaborate. The trial court denied the request, saying: “There’s no evidence

here to warrant the instructions of voluntary manslaughter as to accident and

misfortune.” The court also explained that a theory of accident or mistake

“wouldn’t apply in this case under the theory of [the] crime,” apparently a

reference to the felony-murder rule. Changing theories on appeal, defendant now

contends that, due to his intoxication, the trial court should have instructed on both

voluntary and involuntary manslaughter as lesser included offenses. The court’s

failure to instruct on manslaughter, he claims, deprived him of his federal

constitutional rights to due process of law, to a properly instructed jury, to a fair


trial, and to a nonarbitrary capital sentencing process. (U.S. Const., 6th, 8th &

14th Amends.)28 We disagree.

“The trial court must instruct on lesser offenses necessarily included in the

charged offense if there is substantial evidence the defendant is guilty only of the

lesser. [Citation.] On the other hand, if there is no proof, other than an

unexplainable rejection of the prosecution’s evidence, that the offense was less

than that charged, such instructions shall not be given.” (People v. Kraft (2000)

23 Cal.4th 978, 1063.) Defendant contends he was entitled to an instruction on

voluntary manslaughter because his intoxication “affect[ed] or reduc[ed] the intent

to steal necessary for a robbery conviction, [which was] the underlying felony in

the felony-murder theory.” This same evidence of his alleged intoxication, he

claims, required the court to instruct the jury on involuntary manslaughter because

it showed he was unconscious at the time of the crime. These claims are meritless.

The evidence that, at the time of the murder and robbery, defendant was

intoxicated was meager. There was absolutely no evidence he had, at the time of

the crime, been so intoxicated that he was unable to form the basic mental intent to

commit a robbery, or was rendered unconscious. (People v. Cunningham (2001)

25 Cal.4th 926, 1009.) We conclude the trial court properly refused to instruct on

either voluntary or involuntary manslaughter and did not violate defendant’s

constitutional rights thereby.

6. Defendant’s Exclusion from Proceedings

Defendant contends the trial court violated his constitutional rights under

both the state and federal Constitutions to be present at all meaningful proceedings


As before, defendant does not rely on the state Constitution for this claim.


in his trial.29 In particular, he identifies certain in camera hearings held both

before and during trial in which defense counsel (in the absence of both defendant

and the prosecutor) declared a conflict due to defendant’s threats of violence; other

hearings at which counsel, the trial court, and the prosecutor discussed defendant’s

threats; and a hearing at which defense counsel discussed the possibility of defense

counsel’s testifying at the penalty phase of the trial.

“A criminal defendant’s federal constitutional right to be present at trial,

largely rooted in the confrontation clause of the Sixth Amendment, also enjoys

protection through the due process clause of the Fifth and Fourteenth Amendments

[citation] ‘ “whenever his presence has a relation, reasonably substantial, to the

fulness of his opportunity to defend against the charge,” ’ but not ‘ “when

presence would be useless, or the benefit but a shadow.” ’ ” (People v. Ochoa

(2001) 26 Cal.4th 398, 433.) “[A] criminal defendant does not have a right to be

personally present at a particular proceeding unless he finds himself at a ‘stage . . .

that is critical to [the] outcome’ and ‘his presence would contribute to the fairness

of the procedure.’ ” (People v. Waidla, supra, 22 Cal.4th at p. 742, quoting

Kentucky v. Stincer (1987) 482 U.S. 730, 745.) “Article I, section 15 of the

California Constitution applies the same standard.” (People v. Ochoa, supra, 26

Cal.4th at p. 433.)

All of the identified hearings were conducted outside the presence of the

jury and in some manner concerned defendant’s threats to harm his counsel and


Respondent’s claim that defendant does not rely on the California

Constitution for this contention is incorrect. Respondent is correct, however, that
defendant does not assert his absence from certain hearings violated any state
statutes. (See People v. Weaver, supra, 26 Cal.4th at pp. 967-968 [discussing
statutory basis for the claim].)


the prosecutor. As to the hearings directly concerning the effect of defendant’s

threats against the prosecutor and defense counsel, defendant argues that, had he

been present, he could have explained that he posed no threat to either man and

thus his presence would have increased the fairness of the hearings or improved

his opportunity to defend against the murder and robbery charges.30 We disagree.

Defendant already had testified he was merely trying to delay his trial and did not

actually intend to harm the prosecutor. It is doubtful his presence could have

added anything to the hearings; accordingly, his exclusion from them did not

diminish the fairness of the proceedings.

Similarly, defendant was excluded from the hearing on October 13, 1992,

wherein defense counsel discussed the possibility he would testify. But this

hearing was not a critical one, for defendant had been present at hearings on

October 8, 19, and 20, 1992, in which the possibility of counsel’s proposed

testimony was openly discussed. In the latter hearing, defendant expressly waived

his attorney-client privilege and acknowledged his ability to prevent counsel from

testifying. Accordingly, we conclude the October 13 hearing did not bear a

“ ‘ “ ‘reasonably substantial relation to the fullness of his opportunity to defend

against the charge.’ ” ’ ” (People v. Bradford (1997) 15 Cal.4th 1229, 1357.)

Because defendant has not shown the identified hearings were critical to the

outcome of the trial, nor that his exclusion had an impact on the fairness of the


Inasmuch as defendant had proclaimed that he wished to fire his counsel

and defend himself in order to ask the jury to convict him of all charges, it is
particularly ironic that he now argues his absence from these hearings somehow
undermined his ability to defend himself.


proceedings, his absence from the hearings does not require reversal. (People v.

Waidla, supra, 22 Cal.4th at p. 742.)31

7. Alleged Prosecutorial Misconduct

Defendant contends that throughout the guilt phase of his trial, the

prosecutor “prejudiced the jury, corrupted the evidentiary presentation and

rendered the entire proceeding fundamentally unfair” in violation of his rights to a

fair trial, to due process of law, to the assistance of counsel, and to a reliable

penalty determination under the Fifth, Sixth, Eighth, and Fourteenth Amendments

to the federal Constitution and to “parallel provisions” of the state Constitution.

“ ‘The applicable federal and state standards regarding prosecutorial

misconduct are well established. “ ‘A prosecutor’s . . . intemperate behavior

violates the federal Constitution when it comprises a pattern of conduct “so

egregious that it infects the trial with such unfairness as to make the conviction a

denial of due process.” ’ ” (People v. Gionis (1995) 9 Cal.4th 1196, 1214 . . .;

People v. Espinoza (1992) 3 Cal.4th 806, 820 . . . .) Conduct by a prosecutor that

does not render a criminal trial fundamentally unfair is prosecutorial misconduct

under state law only if it involves “ ‘ “the use of deceptive or reprehensible

methods to attempt to persuade either the court or the jury.” ’ ” ’ ” (People v. Hill

(1998) 17 Cal.4th 800, 819.)

“Prosecutors, however, are held to an elevated standard of conduct. ‘It is

the duty of every member of the bar to “maintain the respect due to the courts” and


Defendant argues his absence from these hearings requires reversal, citing

Campbell v. Rice (9th Cir. 2002) 302 F.3d 892. Although that case is
distinguishable from defendant’s case, we need not decide that question as the
Ninth Circuit Court of Appeals has ordered a rehearing en banc, thereby vacating
the original decision. (Campbell v. Rice (9th Cir. 2004) 386 F.3d 1258.)


to “abstain from all offensive personality.” (Bus. & Prof. Code, § 6068, subds.

(b), (f).) A prosecutor is held to a standard higher than that imposed on other

attorneys because of the unique function he or she performs in representing the

interests, and in exercising the sovereign power, of the state.’ ” (People v. Hill,

supra, 17 Cal.4th at pp. 819-820.) “ ‘Prosecutors who engage in rude or

intemperate behavior, even in response to provocation by opposing counsel,

greatly demean the office they hold and the People in whose name they serve.’ ”

(Id. at p. 820.)

Defendant complains the prosecutor had an ex parte contact with the trial

court and interfered with the defense case by informing defense counsel that

defendant’s brother Eric Roldan was a threat to him, apparently causing counsel to

experience unnecessary anxiety. In addition, he claims the prosecutor made a

number of gratuitous comments throughout the trial indicating he was not

approaching the trial with sufficient solemnity. Some examples suffice: When, in

questioning Barney Pipkin the prosecutor referred to the shooter as a “gentleman,”

he added: “And I use gentleman in the loosest sense at this point in time.” When

cross-examining Maria Murillo, who was an employee at the swap meet, counsel

asked her whether she had conferred with the prosecutor before her testimony.

She answered: “Yes, he took care of my lunch.” The prosecutor then joked: “For

the record, your honor, I have Ms. Murillo’s lunch right here. I believe it has

some milk in it, a banana.” In closing argument, the prosecutor described how

defendant sat in the courthouse cafeteria waiting for a verdict in his trial for the

Sun Valley robbery and remarked to his girlfriend that the newspaper article about

his murder of Roland Teal was inaccurate. The prosecutor opined: “Talk about

the audacity in that. Talk about kicking the whole system in the teeth.”

“ ‘As a general rule a defendant may not complain on appeal of

prosecutorial misconduct unless in a timely fashion—and on the same ground—


the defendant made an assignment of misconduct and requested that the jury be

admonished to disregard the impropriety.’ ” (People v. Hill, supra, 17 Cal.4th at

p. 820.) Although many of the comments defendant now claims were misconduct

were trivial, we need not reach the merits of the issue because he failed to object

to any of them and thus failed to preserve the claims for appellate review. Were

we to reach the merits, we would find no misconduct because the prosecutor’s

sarcastic comments did not render defendant’s trial fundamentally unfair. (Id. at

p. 819.)

Other claims of alleged misconduct were preserved by a timely objection,

but we find none constituted deceptive or reprehensible attempts to persuade the

jury. For example, defendant complains the prosecutor asked the victim’s son to

identify his father from an autopsy photograph and left the allegedly gruesome

photograph face up on the table where the jury could see it. As noted, ante, the

photographs were admissible. Moreover, the court noted the witness maintained

his composure, though defense counsel disagreed. Accordingly, there was no


Defendant also claims the prosecutor committed misconduct by having

Christine Zorns identify her husband, Richard Zorns, from a photograph of him

wearing jail clothes. The trial court correctly ruled there was no error;

accordingly, there was no misconduct. “The appearance of a defense witness

attired in prison clothes does not . . . adversely affect the presumption of

innocence or carry with it the inference that the defendant is a person disposed to

commit crimes.” (People v. Froehlig (1991) 1 Cal.App.4th 260, 264, italics


Defendant contends the prosecutor fanned the flames of racial prejudice by

repeating a witness’s description of the suspicious men he saw at the San

Fernando swap meet as “cholo types.” Defendant objected, explaining: “I have


never seen cholo used as a term that’s intended for a compliment.”32 The trial

court directed the prosecutor to forgo using the phrase and instead refer to the men

as “suspicious persons.” The prosecutor complied; hence, any possible prejudice

was averted.

We reach the same conclusion with regard to the prosecutor’s snide

comments when examining Christine Zorns. He asked whether her statement to

the San Fernando police was just a “smoke screen.” The trial court sustained an

objection. He then asked what her husband and defendant were doing on a

particular occasion, to which she answered: “Well, they were talking. I am sure

when you go with your friends you guys laugh and joke around.” The prosecutor

responded: “My friends don’t go out and kill people.” The trial court properly

sustained an objection, and the prosecutor did not return to the theme. There was

no conceivable prejudice flowing from these isolated and minor incidents.

(People v. Mayfield (1997) 14 Cal.4th 668, 754.) In sum, we find defendant failed

to preserve for appeal most of his claims of prosecutorial misconduct at the guilt

phase, and those he did preserve do not rise to the level of reversible error.


Thus, for example, a “cholo” is defined as “[a] lower class Mexican (often

derog[atory])” (3 Oxford English Dict. (2d ed. 1989) p. 159, col. 2), or “a lower-
class Mexican or person of Mexican ancestry” (Webster’s 3d New Internat. Dict.
(2002) p. 393, col. 1), or “a boy or man who is a member of a Chicano street
gang” (1 Random House Historical Dict. of American Slang (1994) p. 412, col. 1).
A “cholo” is also defined, however, as “a Spanish-American Indian esp: an
acculturated Quechuan of Peru and Bolivia.” (Webster’s 3d New Internat. Dict.,
supra, p. 393, col. 1, definition 1.)



A. Facts

1. Aggravating Evidence

Juan Salazar testified that on November 29, 1987, when he was 16 years

old, he was seated in a car when a large African-American man approached him

and asked for the time. When Salazar looked at his watch, the man grabbed his

right wrist and demanded that he relinquish his car keys. When Salazar complied,

the man forcibly removed him from the car and got in the driver’s seat. Salazar

then noticed defendant, at the time 16 years old, get into the passenger seat. The

robbers drove away in the car.

On September 4, 1991, Robert Price was in county jail for possession of

narcotics when he was stabbed multiple times in the back. He did not see who

assaulted him, but guards later found the probable weapon, a nail configured with

duct tape, discarded in the yard. Deputy Sheriff David Koss observed the assault

and identified defendant, with whom he was acquainted, as the attacker.

Defendant later made incriminating statements to Deputy Sheriff Janice Munson.

In addition, as described in more detail, post, when examined by Dr.

Maloney before trial, defendant threatened to gouge the prosecutor’s eyes out.

Louise Teal, the victim’s widow, testified that they had been married nine

years when her husband, Roland Teal, was murdered. She had had four children

before marrying the victim and five more children with him. He worked three

jobs to support the family, usually beginning at 4:30 a.m. and not coming home

until 9:00 or 10:00 at night. Since his death, her family’s standard of living had

declined. She described her husband as an active member of the Pacoima

community: He was a member of the Chamber of Commerce in Pacoima, an

honorary mayor of Pacoima, and on Sundays he was a preacher at the Sylmar


Juvenile Hall. One year he organized the Pacoima Christmas Parade for the

children of the community and convinced merchants to donate food and presents

for the needy. Once or twice a week, people would come to his home and he

would give them money or food.

Once, when a plane crashed near the swap meet and someone was trapped

inside, no one went to help because some power lines had fallen on the plane.

Roland Teal alone rescued the man and received a commendation letter for his

heroism from the Governor. Louise Teal characterized her husband as a

“fantastic” and “very supportive” husband. Her children still talk about their

father “constantly.” She misses him “just all the time.”

2. Mitigating Evidence

Defendant presented evidence of his family background in mitigation.

Edith Yolanda Roldan, defendant’s mother, testified he was born in Manhattan.

His father was an alcoholic and drug addict who came home only on weekends.

He was a violent man and often beat her. The apartment was infested with vermin

and had no electricity. To escape that life, Mrs. Roldan moved the family to

Pacoima, California, when defendant was between two and four years old. Within

six months, she had acquired a boyfriend named Earl, a drug addict, who also beat

her. He also hit the children, including defendant. Because she was afraid Earl

would harm her children, she sent defendant and two other sons to Puerto Rico to

live with their father. Defendant was about seven years old. Around this time, she

became an alcoholic.

After defendant went to Puerto Rico, his mother rarely checked on her sons.

Defendant returned to Pacoima when he was 10 or 12 years old. He often skipped

school, received poor grades, and completed only the ninth or tenth grade. His

mother never spoke to his teachers or counselors and never attended a PTA


meeting. Defendant began drinking heavily and using drugs in January 1990, after

his best friend was shot and killed.

Albert Roldan, defendant’s older brother, testified that his mother told him

and his two brothers they were going to Puerto Rico to live with their father.

When they arrived, they learned their mother had told their father only two of

them were coming, not three. Their father was often absent, abused alcohol

frequently, and abandoned them after a few months. They lived in a single house

in the jungle with several of their father’s relatives. Their uncle Wilfred often

whipped them with a horse whip for punishment. It was clear they were not

wanted, but they had nowhere to go. They were in Puerto Rico for four years.

Defendant testified and gave his version of the crime. He did not attempt to

shoot Judy Adams; the metal-on-metal clicking sound occurred when he pulled the

bolt on the gun back, chambering a bullet. He thought he had emptied the gun of

bullets before the crime, but when Ayala bumped into him trying to get away from

Teal, the gun went off accidentally. He admitted he fired in the direction of

Pipkin’s car, but he was just trying to get Pipkin to stop following them. He fired

at the ground, but the bullets must have ricocheted. He did not intend to kill Teal.

He committed the San Fernando robbery because he expected to be convicted of

the Sun Valley robbery and wanted to give his family some money before he went

to prison. He admitted he threatened to gouge out the prosecutor’s eyes, but never

really intended to do so. He merely thought the threat would lead to a

postponement of the trial. He also admitted threatening Barrios, but said he was

“very desperate” and “wild” because he had been held in isolation in jail. He

admitted stabbing Price, but claimed he had been threatened by some large Black

inmates who told him he would be “next.”


B. Discussion

1. Admission of Confidential Statements to Dr. Maloney: Attorney-

client Privilege

Prior to the penalty phase of trial, the parties held a hearing to discuss the

admissibility as aggravating evidence of defendant’s threats to kill the prosecutor.

Dr. Maloney testified at this hearing that he had warned the prosecutor because

“defendant said several things. One, that he wasn’t going to trial. Number 2, that

he’d do anything he could to keep from going to trial. Number 3, he made

multiple negative comments regarding [the prosecutor]; he apparently knew him

from another case. He said he fantasized about hurting him and mentioned

gouging or scratching his eyes out.” Dr. Maloney considered defendant

sufficiently dangerous, and the threat sufficiently serious, that he was required

under Tarasoff v. Regents of University of California, supra, 17 Cal.3d 425, to

warn the prosecutor. The prosecutor argued this evidence was not privileged

under either the psychotherapist-patient privilege or the attorney-client privilege.

In addition, he argued the evidence revealed a violation of section 422, which

prohibits criminal threats, and was thus admissible as aggravating evidence of

criminal activity under section 190.3, factor (b). Defense counsel argued the

information was privileged and thus inadmissible, but did not otherwise address

whether it was proper aggravating evidence. The trial court ruled the evidence

was admissible as aggravating evidence. Dr. Maloney later testified that

defendant had said he wanted to hurt the prosecutor; specifically, he mentioned

gouging the prosecutor’s eyes out.

Defendant contends the trial court erred by permitting Dr. Maloney to

testify and describe for the jury defendant’s threat because that information was

inadmissible due to the attorney-client privilege, a ground on which defendant

specifically objected. As noted, ante, the trial court appointed Dr. Maloney to


assist the defense when defendant became extremely depressed and

uncommunicative following the prosecution’s decision not to accept any plea short

of the death penalty. Defendant’s comments to Dr. Maloney, a defense expert,

were thus privileged under the attorney-client privilege.33 “The attorney-client

privilege is ‘a privilege to refuse to disclose, and to prevent another from

disclosing, a confidential communication between client and lawyer.’ (Evid.

Code, § 954.) That privilege encompasses confidential communications between a

client and experts retained by the defense.” (People v. Coddington (2000) 23

Cal.4th 529, 605, italics added, overruled on another point in Price v. Superior

Court (2001) 25 Cal.4th 1046, 1069; see Evid. Code, § 952 [defining “confidential

communication between client and lawyer” as including information disclosed to

“third persons . . . who are present to further the interest of the client in the

consultation or those to whom disclosure is reasonably necessary for the

transmission of the information or the accomplishment of the purpose for which

the lawyer is consulted”].) At the time of defendant’s trial, “[n]o express

exception to the attorney-client privilege exist[ed] for threats of future criminal

conduct.” (People v. Clark (1990) 50 Cal.3d 583, 621.)34 Accordingly, it was

error to admit this evidence over defendant’s objection.


The statements normally would have been privileged under the

psychotherapist-patient privilege but, as the parties recognize, Dr. Maloney was
permitted to reveal the threat under the dangerous patient exception as set forth in
Evidence Code section 1024. (See Menendez v. Superior Court (1992) 3 Cal.4th
435, 449.)

Evidence Code section 956.5 now permits the disclosure of

communications, otherwise privileged by the attorney-client privilege, when
disclosure “is necessary to prevent a criminal act that the lawyer reasonably
believes is likely to result in the death of, or substantial bodily harm to, an
individual.” (Added by Stats. 1993, ch. 982, § 8, p. 5622.)


Although we find error, we also conclude the error was harmless. To be

sure, the prosecutor returned to the evidence of the threat again and again, in

questioning Dr. Maloney, in cross-examining defendant, and in closing argument.

But such repetition was offset by Dr. Maloney’s repeated testimony that

defendant’s comments indicated it was a fantasy and that he merely had “dreams”

of hurting people. That defendant made his comments while extremely angry and

depressed over his predicament was clear, and that he lacked well-developed skills

to cope with life’s disappointments could not have escaped the jury’s notice.

Defendant did not deny he made the threatening statements to Dr. Maloney, but

repeatedly denied actually intending to harm the prosecutor, never wavering from

his assertion that he was simply desperate to delay his trial. The jury knew

defendant was being held in isolation in jail due to his assault on inmate Price, and

no evidence was adduced indicating how defendant could have come close to

making good on his threat. In sum, the evidence of the threat was likely seen by

the jury as foolish talk from a boastful yet desperate young man.

In addition, the jury was presented with other, significant aggravating

evidence. Defendant was on bail and awaiting a jury’s decision for committing a

very similar crime when he robbed Pipkin and killed Teal. Though only 19 years

old, he had already led a life of crime and, while in jail awaiting this trial,

seriously assaulted another inmate. He had a serious drug and alcohol problem,

going so far as to use money Barrios received for their children from county

general assistance in order to buy drugs. He even threatened Barrios’s family.

Finally, the evidence describing his victim’s life and the impact of his murder on

the victim’s surviving family was powerful. Under the circumstances, it is not

reasonably possible defendant would have obtained a more favorable penalty

phase result had the trial court excluded the evidence of defendant’s threat to harm

the prosecutor. (People v. Michaels (2002) 28 Cal.4th 486, 538.)


Defendant also contends that, threats to the prosecutor aside, it was also

improper to have allowed Dr. Maloney to testify and describe other information

learned in confidence, including defendant’s drug use, his “statements showing

callousness and disregard for others, and a statement that [he] dreamed of hurting

other people.” This information also was protected by the attorney-client privilege

and thus should have been excluded. Evidence of defendant’s drug use and his

casual disregard for the safety and feelings of others, however, was amply

demonstrated by other evidence. The cumulative nature of this evidence

compared to the strong evidence in aggravation persuades us that Dr. Maloney’s

recounting of defendant’s nonthreatening statements was harmless.

2. Admission of Defendant’s Threat to the Prosecutor: Section 422

Defendant contends Dr. Maloney’s testimony of his threatening comment

was erroneously admitted for another reason, i.e., because his “fantasy” that he

would maim and kill the prosecutor did not constitute a violation of section 422.

Although defendant objected to the admission of this evidence on grounds of

privilege, he did not object on the ground that his actions failed to come within the

statutory definition of a criminal threat. Accordingly, he failed to preserve this

claim for appeal. In any event, as we explained, ante, this evidence was

improperly admitted because it was inadmissible on attorney-client privilege


3. Alleged Conflict of Counsel

Defendant next claims reversal of the penalty judgment is required because

his right to conflict-free counsel was abrogated when his defense attorney testified

at the penalty phase. As we explain, relief is unwarranted because defendant

waived the conflict.


When the trial court ruled Dr. Maloney could testify about defendant’s

statements threatening to kill the prosecutor made during a pretrial psychological

evaluation, defense counsel raised for the first time the possibility that he himself

might testify and describe the circumstances surrounding defendant’s statements.

Specifically, counsel would testify that at the time defendant made his threats, the

prosecution had just refused to accept a plea involving a sentence short of the

death penalty. Counsel asserted that on hearing this news, defendant became

extremely depressed and angry and for a time stopped talking to counsel entirely.

By describing the circumstances surrounding the threats, counsel apparently hoped

to convince the jury that defendant had spoken while flushed with anger,

disappointment, and fear of the death penalty, but did not actually intend to hurt

the prosecutor.

Counsel explained to the trial court that he had discussed the issue with

defendant and “I indicated to him that since I am the only lawyer on the case that

there is a potential conflict of not only in the eyes of the jury but perhaps a

conflict, in fact, if the lawyer is going to be a witness.” Counsel concluded: “Mr.

Roldan has indicated to me that he may want me to serve as a witness.”

At a later hearing, the trial court had defendant execute a waiver to permit

his attorney to testify:

“THE COURT: I did state that under the Rules of Professional Conduct, rule

5-210 which stated in subdivision c, ‘A member,’ meaning a member of the bar,

‘shall not act as an advocate before a jury which will hear testimony from the

member unless the member has informed written consent of the client.’

“I don’t see the need for a written consent here, since we can do this in

open court. You did discuss the fact that you may be testifying with the



“[DEFENSE COUNSEL]: Your Honor, not only have I discussed it with Mr.

Roldan. Mr. Gutierrez [another attorney hired to independently advise defendant]

in my presence has discussed it with Mr. Roldan and I believe Mr. Roldan is

apprised of the entire ramification should his attorney take the witness stand in

order to testify as to events surrounding a conversation I had with members of the

district attorney’s office and what I advised Mr. Roldan based on those


“THE COURT: All of this is true, Mr. Roldan?


“THE COURT: And does your attorney have your permission to testify in

this case during which time you will be represented by Mr. Gutierrez?


“THE COURT: All right. That’s fine.” At a later hearing, the court took an

express waiver of defendant’s attorney-client privilege. Defense counsel testified

shortly thereafter, questioned by Gutierrez.

As defendant now observes, it is dangerous for an attorney who represents

a client also to testify in the client’s case. (Comden v. Superior Court (1978) 20

Cal.3d 906, 912 [“An attorney who attempts to be both advocate and witness

impairs his credibility as witness and diminishes his effectiveness as advocate”].)

But, as he concedes, a client can waive a conflict arising out of this dual role. We

agree with respondent that defendant validly waived any conflict of interest arising

from counsel’s testimony. Although defendant characterizes the waiver as one

limited to his attorney-client privilege, the record clearly belies that

characterization. Defense counsel spoke in terms of the potential conflict of

having him testify and, after securing Gutierrez to serve as independent counsel to

advise defendant, assured the court that Gutierrez had discussed with defendant

the “entire ramification should his attorney take the witness stand.” Defendant


concurred with this assessment. This was sufficient. “ ‘A waiver need not be in

any particular form, nor is it rendered inadequate simply because all conceivable

ramifications are not explained.’ ” (People v. Carpenter (1997) 15 Cal.4th 312,


Defendant also contends the trial court abused its discretion in accepting his

waiver of the potential conflict. In a somewhat different context, we recently

explained that, in order to ensure a fair trial, trial courts have “substantial latitude”

to refuse a defendant’s offer to waive his attorney’s conflict of interest. (People v.

Jones (2004) 33 Cal.4th 234, 241; see Wheat v. United States (1988) 486 U.S.

153.) “Protection of a defendant’s right to loyal counsel is essential. This court

has said that trial judges assume the burden of ensuring that their appointments of

counsel for indigent defendants do not ‘result in a denial of effective counsel

because of some possible conflict.’ ” (Maxwell v. Superior Court (1982) 30

Cal.3d 606, 612.)

Nevertheless, “that a court may refuse to accept a waiver does not mean the

court must do so.” (People v. Carpenter, supra, 15 Cal.4th at p. 376.) Defendant

fails to persuade that the trial court, presented with a defendant willing to waive

his right to unconflicted counsel, and a defense attorney proposing to testify and

support defendant’s claim that he did not actually intend to harm the prosecutor,

and aware that defendant had received independent legal advice, nevertheless

abused its discretion by accepting defendant’s proffered waiver. That defense

counsel’s resulting testimony was not as persuasive or focused as defendant would

have liked does not undermine the trial court’s exercise of discretion, which

obviously must be tested by what was known to the court at the time it ruled.

We conclude defendant waived any potential conflict arising out of his

attorney’s testimony at the penalty phase, and the trial court did not abuse its

discretion by accepting the waiver.


4. Response to Juror Question

After the jury had been deliberating on the issue of penalty for a short time,

it sent out a note to the judge, stating: “We would like to have a copy of the four

questions asked by the judge of each of the jurors during jury selection.” In the

presence of defendant, defense counsel, and the prosecutor, the court then read the

questions to the jury. Defense counsel made no objection nor did he request the

court to follow any other course of conduct. Defendant now contends that by

acceding to a jury request to read the questions without inquiring more directly

about the reason for the request, the court “failed in its duty to oversee the jury’s

penalty-phase decision-making process and violated [his constitutional rights].”

We conclude the issue was not preserved for presentation on appeal due to defense

counsel’s failure to object; in any event, the claim is meritless.

Section 1138 provides: “After the jury have retired for deliberation, if there

be any disagreement between them as to the testimony, or if they desire to be

informed on any point of law arising in the case, they must require the officer to

conduct them into court. Upon being brought into court, the information required

must be given in the presence of, or after notice to, the prosecuting attorney, and

the defendant or his counsel, or after they have been called.”

When a trial court decides to respond to a jury’s note, counsel’s silence

waives any objection under section 1138. (People v. Kageler (1973) 32

Cal.App.3d 738, 746.) “The failure of defendant’s counsel to object or move for a

mistrial upon the court frankly informing him of the court’s action might also be

construed to be a tacit approval. Approval of the court’s action, even though it

might have been a technical violation of section 1138 of the Penal Code, cures any

possible error.” (People v. House (1970) 12 Cal.App.3d 756, 765-766,

disapproved on other grounds in People v. Beagle (1972) 6 Cal.3d 441, 451-452.)

We reached a similar conclusion in the analogous situation in which the trial court


declined to respond to a jury’s note pursuant to section 1138. (People v. Boyette,

supra, 29 Cal.4th at p. 430.)

Defendant argues we may reach the issue, citing People v. Gurule, supra,

28 Cal.4th 557, and People v. Litteral (1978) 79 Cal.App.3d 790, but neither case

is on point. In Gurule, the trial court declined a jury request for a readback of

defense counsel’s closing argument “after conferring with the parties.” (People v

v. Gurule, supra, at pp. 648-649, italics added.) Contrary to defendant’s claim

here, there is no indication the defense attorney in Gurule failed to object. We

previously have observed that Litteral is of doubtful validity because it permitted a

defendant to assert what is essentially the jury’s right to a readback of testimony.

(People v. Hillhouse (2002) 27 Cal.4th 469, 505.) In any event, the case is

distinguishable, for there the trial court refused to read back portions of the trial,

although the jury requested the readback. The jury was thus deprived of critical

information it desired to make a decision. (People v. Litteral, supra, at p. 796.)

By contrast, the trial court here reiterated for the jury, as requested, the

information it desired.35 Unlike in Litteral, the jury here was not deprived of any


Nor is this the type of error an appellate court might reach in the absence of

an objection. By declining to object, a defense attorney might believe the

additional information is favorable to his or her client. Such is the case here,

where the fourth question read to the jury asked whether a juror, “regardless of the

evidence, . . . would automatically, and in every case, vote for a verdict of death

and never vote for a verdict of life without the possibility of parole.” A juror may


We reject out of hand defendant’s further claim that “the trial court did not

give defense counsel a chance to object.” The record indicates counsel was
present and could have interposed an objection at any time.


have appeared to the others as voting for death without considering the evidence.

That counsel, for a strategic reason, desired this question be read back to the jury

is quite possible. There being the possibility counsel made a considered decision

not to object, we should not now give defendant a second bite at the apple.

Even assuming for argument we may overlook the absence of an objection,

the claim is meritless. Although defendant speaks in terms of jury difficulties and

disorientation, and argues “the trial court has no duty to simply acquiesce to the

jury’s request,” he does not explain what type of confusion he believes was

evident in the jury’s request, what type of probing the court should have done in

response, or how the court erred by responding as it did. We have emphasized

that interrogating jurors in the middle of their deliberations is a delicate business

and courts should take care lest they inadvertently coerce a verdict. “[N]ot every

incident involving a juror’s conduct requires or warrants further investigation.

‘The decision whether to investigate the possibility of juror bias, incompetence, or

misconduct—like the ultimate decision to retain or discharge a juror—rests within

the sound discretion of the trial court.’ ” (People v. Cleveland (2001) 25 Cal.4th

466, 478.) We conclude the trial court did not abuse its discretion in failing to

further investigate the reason for the jury’s request, nor in rereading for the jury

the four questions from voir dire.

5. Victim Impact Evidence

Following the rendering of the guilt phase verdicts on September 29, 1992,

the prosecutor moved for permission to present victim impact evidence at the

penalty phase despite having failed to provide defendant with notice of such

evidence under section 190.3. When the trial court asked why no notice had been

given, the prosecutor replied: “I have no excuse, your honor.” Defense counsel

argued the request was untimely and, if the court intended to permit the


prosecution to present such evidence despite the lack of notice, asked for a

continuance. The trial court made a tentative ruling that the prosecution’s

previous notice that it intended to rely, as aggravating evidence, on the

“circumstances of [the] present crime,” constituted sufficient notice of victim

impact evidence. Defense counsel asked that a final decision be put over until

October 8, and the court agreed.

On October 8, 1992, defendant moved to exclude victim impact evidence

on ex post facto grounds, arguing his crime “preceded the decision by the United

States Supreme Court with regard to the admissibility of victim impact testimony.”

The trial court denied the motion, but granted a further motion for advance

disclosure “with some degree of specificity” of the type of evidence the

prosecution intended to present. At a subsequent hearing on October 14, the

prosecutor moved in limine to admit into evidence numerous plaques and

certificates from various cities attesting to the victim’s community work and to a

heroic act he once performed. Defense counsel objected, again pointing out the

prosecution had provided no notice of this evidence. The trial court affirmed its

earlier tentative ruling admitting victim impact evidence, but also ruled that the

prosecutor could not read the inscriptions on the plaques and certificates. It later

clarified it was excluding the plaques and certificates from evidence, as well as a

videotape prepared by the victim’s widow. The court allowed the jury to see a

single photograph of the victim with his nine children. Louise Teal then testified

and described her life with the victim and the impact of his killing on her and her

children. No other family member testified. In closing argument, the prosecutor

emphasized the positive aspects of the victim’s life.36


The prosecutor opined: “[A]lso consider Lucky Teal and Lucky Teal’s

family. You heard testimony from Louise Teal about Mr. Teal, that he was a hero.

(footnote continued on next page)


Defendant raises a number of arguments challenging the admission of

Louise Teal’s testimony. As the parties recognize, “[p]rior to 1991, evidence of a

murder’s impact on a victim and the victim’s family and friends was not

admissible in the penalty phase of a capital trial. (Booth v. Maryland (1987) 482

U.S. 496, 501-502 . . . .) The federal high court later reversed itself in Payne v.

Tennessee (1991) 501 U.S. 808 . . . , deciding that ‘[v]ictim impact evidence is

simply another form or method of informing the sentencing authority about the

specific harm caused by the crime in question’ [citation] and was thus admissible

evidence. We have followed the high court’s lead [citation] and have also found

such victim impact evidence admissible as a circumstance of the crime pursuant to

section 190.3, factor (a).” (People v. Boyette, supra, 29 Cal.4th at pp. 443-444.)

Defendant first argues admission of the evidence violated his constitutional

right against ex post facto37 laws (U.S. Const., art. I, § 9, cl. 3; Cal. Const., art. I,

§ 9), because his crime occurred before Payne v. Tennessee, supra, 501 U.S. 808,

was decided. Accordingly, he claims his case is controlled by the rule set forth in

Booth v. Maryland, supra, 482 U.S. 496. We recently addressed this claim in

(footnote continued from previous page)

That he had nine kids. That he worked three jobs from before sunup to after
sundown in order to feed and clothe and support his kids as best he could. [¶] You
heard how generous he was. That people would come and ask him for money and
for food and things like that. [¶] You heard how active he was in the community
with the Chamber of Commerce and making sure that deprived kids in Pacoima
where the defendant is from had toys for Christmas. [¶] How he would go to
Sylmar Juvenile Hall and preach to people. All of those factors can be considered
by you in determining the aggravativeness, if that’s a word, of his crime.”

Although the state and federal ex post facto clauses are limitations on

legislative action, the judicial branch is limited by the same principle pursuant to
the state and federal due process clauses. (In re Baert (1988) 205 Cal.App.3d 514,


People v. Brown (2004) 33 Cal.4th 382, 394-395, concluding Payne did no more

than remove a judicially created obstacle that had withdrawn a type of evidence

that could have proved a material fact. Accordingly, applying the rule in Payne in

a case where the crime preceded that decision does not violate ex post facto

principles. Defendant offers no reason to suggest our decision in People v. Brown

was in error. We thus hold the admission of Louise Teal’s testimony did not

violate defendant’s constitutional right to be free of laws with retrospective


Defendant next argues we should better define the boundaries of victim

impact evidence and urges us to adopt a rule disallowing evidence of the victim’s

characteristics that were unknown to his killer at the time of the crime.38 Such a

limitation, he claims, is necessary to ensure such evidence remains relevant to

assessing the moral culpability of the offender. (See People v. Bacigalupo (1993)

6 Cal.4th 457, 476.) We disagree. (People v. Pollock (2004) 32 Cal.4th 1153,


Defendant next argues the trial court erred by failing to exclude the victim

impact evidence on the ground it was overly inflammatory. We have several times

noted that victim impact evidence may be deemed inadmissible if it is so

inflammatory that it would tend to divert the jury’s attention from the task at hand.

(See, e.g., People v. Zapien (1993) 4 Cal.4th 929, 992.) Defendant did not object

on this ground, however, and thus failed to preserve the issue for appellate review.


In objecting to the testimony, defense counsel stated: “This is a case in

which there was a murder committed in the course of a robbery. It is not the type
of case in which Mr. Teal was killed because of his standing in the community. I
believe that there is sufficient evidence from which a reasonable trier of fact could
ascertain that . . . Mr. Teal’s status in the community was completely unknown to


(Ibid.) We also reject the claim on the merits: Louise Teal’s time on the stand

was relatively short and subdued, and no other family member testified. The trial

court properly exercised its discretion by excluding the many plaques and

certificates bestowed on the victim for community work and individual heroism.

By contrast, the jury heard evidence defendant had threatened the life of the

prosecutor and stabbed a jail inmate. Evidence from the surviving spouse, though

no doubt possessing a strong emotional impact, was not overly inflammatory.

Defendant next contends the admissibility of victim impact evidence

renders the California death penalty statute unconstitutionally vague because the

admission of such evidence prevents the law from performing the narrowing

function necessary to ensure its constitutionality. We recently rejected this precise

claim, and nothing defendant presents suggests our conclusion was in error.

(People v. Boyette, supra, 29 Cal.4th at p. 445, fn. 12.)

Finally, defendant contends the trial court abused its discretion by

admitting the victim impact evidence despite the prosecution’s failure to provide

adequate notice of the evidence. The fourth paragraph of section 190.3 provides

the applicable rule and states in pertinent part: “Except for evidence in proof of

the offense or special circumstances which subject a defendant to the death

penalty, no evidence may be presented by the prosecution in aggravation unless

notice of the evidence to be introduced has been given to the defendant within a

reasonable period of time as determined by the court, prior to trial.” Defendant

was thus entitled to notice of the prosecution’s intended aggravating evidence

before the cause was called for trial or as soon thereafter as the prosecutor learned

of the existence of the evidence. (People v. Pride (1992) 3 Cal.4th 195, 258.) The

trial court, aware of the holding in Pride, ruled that notice of the evidence was

timely under section 190.3 because the prosecution had given notice it intended to


present the circumstances of the crime as an aggravating factor, and victim impact

evidence is considered a part of the circumstances of the offense.

By so ruling, the trial court fell into error. Although we have found “victim

impact evidence admissible as a circumstance of the crime pursuant to section

190.3, factor (a)” (People v. Boyette, supra, 29 Cal.4th at p. 444), generic,

nonspecific notice that the prosecution intends to rely, as an aggravating factor, on

the circumstances of the offense (see § 190.3, factor (a)) fails to give adequate

notice that it also intends to present victim impact evidence from surviving family

members. Nor is the lack of notice excused by the first sentence in paragraph four

of section 190.3, which dispenses with notice of “evidence in proof of the offense

or special circumstances.” (Italics added.) Evidence of a murder’s impact on

surviving family members is not necessary to prove the murder itself or to prove

the existence of any special circumstances and thus cannot be “evidence in proof

of” either the murder or the special circumstance.

Although section 190.3 gives the trial court discretion to determine what

type of notice is adequate (People v. Roberts (1992) 2 Cal.4th 271, 330), the

record indicates defense counsel had no notice at all that the prosecution intended

to present victim impact evidence at the penalty phase. The prosecutor himself did

not believe he had complied with section 190.3, admitting he had no excuse for

failing to give notice. Moreover, the section 190.3 notice to which the trial court

apparently referred merely stated the following: “Please take notice that . . . all

documents, exhibits and witnesses attached hereto and incorporated by reference

herein . . . may be utilized by the [P]eople for purposes of [aggravation].

[¶] Furthermore, notwithstanding any other possible use as evidence, the [P]eople

will also request the use of prior acts of which the defendant . . . was convicted.”

Attached to this notice were documents evidencing defendant’s participation in the

Sun Valley swap meet robbery and a transcript of a statement by Sergio Ayala


describing the robbery and murder in the present crime. There was no mention of

victim impact evidence.39 Under the circumstances, we conclude the trial court

abused its discretion in finding the prosecution had provided adequate notice.

Though we find error, we conclude the lack of notice was harmless. “The

purpose of the notice provision is to afford defendant an opportunity to meet the

prosecutor’s aggravating evidence.” (People v. Taylor (2001) 26 Cal.4th 1155,

1182.) The prosecutor first raised the prospect of victim impact evidence on

September 29, 1992; defense counsel mentioned the possibility of a continuance at

that time, but did not renew the issue at a later hearing. The trial court raised the

possibility of holding a hearing pursuant to Evidence Code section 402 to obtain

more detailed information about the evidence the People intended to present, but

counsel apparently was satisfied with the prosecution’s cooperation in providing

informal disclosure of the evidence. Louise Teal did not testify until October 14,

1992, more than two weeks after the issue of victim impact evidence first arose.

Although defense counsel did not receive timely notice of the evidence, he never

asked for a continuance in order to meet it (see People v. Rodrigues, supra, 8

Cal.4th at p. 1156 [defendant did not ask for continuance]); hence, we may infer

he was notified in time to devise a plan how best to confront it effectively (ibid.

[defendant had 11 days to prepare to meet the evidence for which notice was

absent]). Under the circumstances, the trial court’s error in finding that the

prosecutor’s generic notice complied with section 190.3 was harmless.40


The prosecution also gave notice it intended to use, in aggravation,

evidence defendant had attempted to murder jail inmate Price and evidence
discovered in a search of his residence.

We also reject defendant’s attempt to constitutionalize the issue of notice in

this context. This case is distinguishable from Lankford v. Idaho (1991) 500 U.S.
110, on which he relies, because unlike the accused in that case, defendant had

(footnote continued on next page)


Because we find no prejudice, we also reject defendant’s further claims that

the admission of Louise Teal’s testimony violated his state and constitutional

rights to confrontation, to due process of law, to a fundamentally fair penalty

proceeding, and to a reliable sentencing determination.

6. Defendant’s Statements to Deputy Sheriff Munson

Defendant next contends the trial court violated his Miranda rights

(Miranda v. Arizona (1966) 384 U.S. 436 (Miranda)) when it admitted evidence

regarding two sets of statements he made to Deputy Sheriff Janice Munson that

bore on his guilt of stabbing inmate Price in county jail. The now familiar rule in

Miranda relies on the Fifth Amendment to the federal Constitution to preclude the

evidentiary use of statements made pursuant to a custodial interrogation unless the

suspect has knowingly and intelligently waived the rights to remain silent and to

the presence and assistance of an attorney, the latter provided at state expense for

indigent suspects. (See People v. Storm (2002) 28 Cal.4th 1007, 1021.)

“ ‘Interrogation’ consists of express questioning, or words or actions on the part of

the police that ‘are reasonably likely to elicit an incriminating response from the

suspect.’ ” (People v. Cunningham, supra, 25 Cal.4th at p. 993, quoting Rhode

Island v. Innis (1980) 446 U.S. 291, 301.) Just as well established, however, is

that “[s]tatements volunteered when not in response to an interrogation are

admissible against a defendant, even after an initial assertion of the right to remain

silent.” (People v. McDaniel (1976) 16 Cal.3d 156, 172.)

“An appellate court applies the independent or de novo standard of review,

which by its nature is nondeferential, to a trial court’s granting or denial of a

(footnote continued from previous page)

sufficient time to prepare to meet the victim impact evidence. (People v.
, supra, 8 Cal.4th at p. 1156 [similarly distinguishing Lankford].)


motion to suppress a statement under Miranda insofar as the trial court’s

underlying decision entails a measurement of the facts against the law.” (People

v. Waidla, supra, 22 Cal.4th at p. 730.) Applying this standard, we conclude the

trial court correctly found defendant’s statements to Deputy Munson were not

made in response to interrogation, were instead gratuitously volunteered, and were

thus admissible.

In the first set of statements, Deputy Munson testified she had encountered

defendant in the food line in county jail and he had addressed her, saying:

“ ‘What’s happening, Deputy Munson?’ ” Recognizing him, she “asked him if he

was going to stay out of trouble.” He responded: “ ‘Yeah, it was nothing. I don’t

know why they are bothering with all this court. I am guilty. I hit that guy in the

yard.’ ” By saying he “hit” someone, defendant used jail jargon meaning he had

stabbed someone. Munson testified defendant appeared “nonchalant. And he just

spontaneously said it. I never questioned him about that particular day. I was just

inquiring why he was back out [of the high security area].”

In the second set of statements, Deputy Munson testified that that evening

or the next day, she was transporting defendant back to a high security area. He

asked her why he was being moved, and she replied “it was for his own

protection.” He responded: “ ‘It is no big deal. I don’t know why. I am probably

going to face the death penalty anyway.’ ” She agreed with the prosecutor that

defendant made this statement “just matter of factly.” The trial court held neither

set of statements was made in response to interrogation, but they were instead

volunteered by defendant and thus their admission did not violate Miranda. The

record amply supports this finding; hence, we conclude the statements were

properly admitted into evidence.

Defendant’s further argument that the admission of Deputy Munson’s

testimony violated his Sixth Amendment rights under Massiah v. United States


(1964) 377 U.S. 201 was not preserved for appellate review by a timely objection

on that ground. (See People v. Jenkins, supra, 22 Cal.4th at p. 1007 [reaching the

Massiah claim although implying it was waived for failure to object].) We also

deny it on the merits. “In order to make out the Sixth Amendment claim,

defendant had the burden of ‘demonstrat[ing] that the police and their informant

took some action, beyond merely listening, that was designed deliberately to elicit

incriminating remarks.’ ” (Ibid., quoting Kuhlmann v. Wilson (1986) 477 U.S.

436, 459.) Applying independent review, we conclude Deputy Munson did not

deliberately elicit defendant’s incriminating comments and thus did not violate his

Massiah rights.41

7. Admission of Other Criminal Acts

Evidence was produced showing defendant had participated in a number of

crimes in addition to the robbery of Barney Pipkin and the murder of Roland Teal.

He argues such evidence, to be admissible, must meet “constitutionally-mandated

indicia of reliability,” that the evidence of other crimes did not meet this standard,

and that its admission denied him the reliable penalty determination and

fundamental fairness the Constitution requires for capital trials. As we explain, he

is incorrect.


Defendant argues he was interrogated in a custodial setting, noting that

county jail is by its nature “custodial” because he was not free to leave. He cites
Mathis v. United States (1968) 391 U.S. 1 in support. By concluding Deputy
Munson did not interrogate defendant, we need not decide whether any
interrogation that could have occurred was custodial. (Cf. People v. Fradiue
(2000) 80 Cal.App.4th 15, 19-21 [holding some additional restraint, over and
above mere incarceration, is required before an interrogation is custodial for
Miranda purposes].)


As noted, the prosecution presented evidence that defendant, when he was

16 years old, participated with another man in the 1987 robbery of Juan Salazar by

taking his car. Defendant contends that “[a]t best, he was derivatively liable for a

robbery” and that a crime “committed while [he] was still a juvenile, hardly serves

as a reliable [indicator] of moral culpability.” Defendant did not object on these

grounds, however, and thus failed to preserve the claim for appellate review.

(People v. Catlin, supra, 26 Cal.4th at p. 172.) The claim is also meritless.

“Although juvenile adjudications do not qualify as prior convictions under section

190.3, factor (c), and may not be admitted during the penalty phase, evidence of

juvenile criminal conduct may be considered as an aggravating factor. Prior

violent juvenile misconduct, regardless of conviction, may be admitted as

evidence of ‘criminal activity . . . which involved the use or attempted use of force

or violence or the express or implied threat to use force or violence.’ (§ 190.3,

factor (b) . . . .)” (People v. Lewis (2001) 26 Cal.4th 334, 378.)

Defendant next challenges the admission of evidence showing he stabbed

inmate Price in county jail. He claims this evidence was inadmissible because,

although he was charged with attempted murder, the charges were dropped and he

was never prosecuted. We have held that unadjudicated violent criminal behavior

is admissible under section 190.3, factor (b)42 and its admission does not violate a

capital defendant’s constitutional rights. (People v. Jenkins, supra, 22 Cal.4th at

p. 1054.) We decline to revisit that considered decision. We further find the trial


Section 190.3, factor (b) provides: “In determining the penalty, the trier of

fact shall take into account any of the following factors if relevant: . . . [¶] (b) The
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.”


court did not abuse its discretion in admitting this evidence. (People v. Smithey

(1999) 20 Cal.4th 936, 991.)

Defendant next contends the prosecution was erroneously permitted to

elicit evidence of his participation in other gun-related crimes. The prosecutor

cross-examined defendant about his familiarity with firearms and whether he had

fired other guns before. Defendant testified he once bought a machine gun and

fired it in a park. The prosecutor characterized that act as the grossly negligent

discharge of a firearm, a felony. Defendant objected, but the trial court correctly

ruled that the line of questioning was permissible because, in earlier testimony,

defendant had suggested Teal’s shooting was an accident; thus, “the People are

allowed to inquire into the number of guns, if they are loaded, and the habit and

custom of keeping them loaded or unloaded or negligently loaded.” The trial court

denied, however, the prosecutor’s request that the jury be instructed on the grossly

negligent discharge of a firearm as an unadjudicated violent crime under section

190.3, factor (b).

The trial court did not err in overruling defense counsel’s objection. (Cf.

People v. Hill (1995) 34 Cal.App.4th 727, 737 [evidence defendant intended to kill

victim to eliminate witness of earlier crime admissible to refute claim of accidental

shooting in earlier crime].) Moreover, because the trial court did not instruct the

jury to consider the gun evidence as aggravating other-crimes evidence under

section 190.3, factor (b), nor did the prosecutor urge the jury to consider the

evidence as such, even if the trial court erred in admitting the evidence, no

conceivable prejudice resulted.

Defendant next argues the trial court erroneously admitted evidence of

perjury as aggravating evidence. The matter arose on the prosecutor’s cross-

examination of defendant, when defendant admitted he had asked his girlfriend

Jude Barrios and at least one other person to lie for him in his trial for the Sun


Valley swap meet robbery. Defendant contends evidence of perjury was

inadmissible because the crime did not involve violence or the threat of violence.

(§ 190.3, factor (b).) He did not object, however, and thus failed to preserve the

claim for appellate review. (People v. Riel, supra, 22 Cal.4th at p. 1207 [claim of

improper admission of nonstatutory aggravating evidence forfeited by failure to

object].) In addition, the evidence was admissible to impeach his credibility.

In sum, we find that of the cited instances of alleged improper other-crimes

evidence, defendant either forfeited the claim by failing to object or the evidence

was properly admitted against him.

8. Exclusion of Defendant’s Drug Use

Defendant testified that he used PCP, marijuana, LSD, and drank heavily.

When being questioned by defense counsel, the following exchange occurred:

“Q. [DEFENSE COUNSEL]: When you were using drugs, did it have an

effect on your life?

“A. [DEFENDANT]: Yes, definitely.

“Q. [DEFENSE COUNSEL]: How did it [a]ffect your life?

“[THE PROSECUTOR]: I object as calling for an expert opinion that this

witness is not qualified to give.

“THE COURT: As formed, I am going to have to sustain that.”

Defendant contends that by so ruling, the trial court violated his Eighth

Amendment rights and analogous rights under the California Constitution by

preventing him from presenting relevant mitigating evidence of his character and

background. He claims the trial court’s ruling “prevented the jury from learning

important mitigating evidence about [defendant]” including “the effect of

[defendant’s] drug use on his life.”


We agree the trial court erred by sustaining the prosecutor’s objection.

Defendant’s opinion as to how drug abuse destroyed his young life was

undoubtedly relevant and admissible as mitigating evidence and not excludable as

improper expert opinion. The exclusion of mitigating evidence “violates the

constitutional requirement that a capital defendant must be allowed to present all

relevant evidence to demonstrate he deserves a sentence of life rather than death.

[Citations.] Exclusion of such evidence . . . does not automatically require

reversal, but is instead subject to the standard of review announced in Chapman v.

California (1967) 386 U.S. 18, 24, that is, the error is reversible unless it is

harmless beyond a reasonable doubt.” (People v. Fudge, supra, 7 Cal.4th at

p. 1117; see Skipper v. South Carolina (1986) 476 U.S. 1.)

Although the trial court erred, any error was harmless because the trial

court immediately thereafter overruled follow-up objections and allowed

defendant to testify to his memory problems, his using his wife’s money to buy

drugs, his failure to support his children as a result of his drug habit, and his

failure to hold a regular job. He also was allowed to testify that his grades began

slipping when he was drinking and that he then stopped going to school altogether.

Because defendant was allowed to present the excluded evidence after all, the

error was harmless beyond a reasonable doubt.

9. Instruction on Criminal Threats

As discussed, ante, evidence was admitted of defendant’s statement to the

psychologist that he would like to gouge the prosecutor’s eyes out, and the trial

court instructed the jury on the elements of the crime of criminal threats under

section 422. Defendant complains the trial court’s instruction, for two reasons,

deprived him of his constitutional rights to due process of law and to a

nonarbitrary capital sentencing process. The court delivered this instruction:


“Any person who willfully threatens to commit a crime which will result in death

or great bodily injury to another person, with the specific intent that the statement

is to be taken as a threat, even if there is no intent of actually carrying it out, which

on its face and under the circumstances in which it is made, is so unequivocal,

unconditional, immediate, and specific as to convey to the person threatened, a

gravity of purpose and immediate prospect of execution of the threat, and thereby

causes that person reasonably to be in sustained fear for his or her own safety or

for his or her immediate family’s safety, is guilty of a felony.” This instruction

essentially tracks the wording of section 422 as it read at the time of defendant’s

trial. (Stats. 1989, ch. 1135, § 1, pp. 4195-4196.)

Defendant first contends the instruction was faulty because it describes the

crime as a felony, when it in fact can be punished as either a misdemeanor or a

felony. (§ 422.) He is correct the instruction was slightly misleading for that

reason. We do not, however, share his further view that this error was prejudicial.

He argues that the instruction “inflates the criminality of the act” and that it

“suggests that the Legislature considers this type of conduct to be far more serious

than many other crimes.” To the contrary, we view this error as minimal.

Moreover, compared to his crime of robbing the swap meet and killing the

unarmed Roland Teal, as well as his long history of criminality, the instructional

misstep was clearly harmless under any standard.

Defendant also argues the instruction fails to set out “as a separate and

understandable element” the mental state necessary to commit the crime. Instead,

he claims, the instruction “lump[s] this crucial intent element in the long stream of

verbiage making up the statute.” We disagree: “ ‘[T]he language of a statute

defining a crime or defense is generally an appropriate and desirable basis for an

instruction, and is ordinarily sufficient when the defendant fails to request

amplification.’ ” (People v. Estrada (1995) 11 Cal.4th 568, 574.) “[I]f the


instruction as given is adequate, the trial court is under no obligation to amplify or

explain in the absence of a request that it do so.” (People v. Mayfield, supra, 14

Cal.4th at p. 778.)

Finally, having found no error in the instruction on criminal threats, we

reject defendant’s further claim that this alleged error, compounded with other

errors, resulted in an unfair sentencing process.

10. Failure to Give Proposed Jury Instructions

Defendant argues the trial court erred by refusing his three proposed special

jury instructions for the penalty phase. We disagree. The first proposed

instruction stated that a single mitigating factor could support a sentence of life

imprisonment. But the jury was instructed that “[i]f any of the mitigating evidence

or any aspect of . . . this case arouses in you compassion for a defendant you may

consider this response in deciding the appropriate penalty to impose in this case.

You may, based upon this response alone, reject death as a penalty.” (Italics

added.) Of course, a trial court has no duty to give duplicative instructions.

(People v. Gurule, supra, 28 Cal.4th at p. 659.)

Defendant also proposed an instruction informing the jury that a mitigating

factor need not be proved beyond a reasonable doubt and can be relied on if

supported by substantial evidence. “Instructions should also be refused if they

might confuse the jury.” (People v. Gurule, supra, 28 Cal.4th at p. 659.) As we

explained in People v. Kraft, supra, 23 Cal.4th at page 1077, the trial court did not

err in refusing this potentially misleading instruction because the instruction

implies erroneously that aggravating factors must be proved beyond a reasonable


Defendant’s third proposed instruction advised the jury that if it had a

reasonable doubt as to the appropriate penalty, it must give defendant the benefit


of that doubt and vote for life imprisonment. Courts may refuse instructions that

incorrectly state the law (People v. Gurule, supra, 28 Cal.4th at p. 659), and the

trial court properly ruled defendant’s third proposed instruction was incorrect

because the beyond a reasonable doubt standard does not apply in this context

(People v. Weaver, supra, 26 Cal.4th at p. 992). Accordingly, we find the trial

court did not err in refusing defendant’s three proposed special penalty phase


11. Alleged Prosecutorial Misconduct

Defendant next argues the prosecutor committed numerous instances of

misconduct, violating his rights under the Eighth and Fourteenth Amendments to

the federal Constitution. As we explain, we find the identified instances of alleged

misconduct trivial, harmless, forfeited for appeal because defense counsel failed to

object, or some combination thereof.

(a) Discovery Violations. Defendant first complains the prosecutor

attempted to introduce photographs taken from his home without having first

disclosed them to defense counsel. Although defense counsel objected, saying he

had not previously seen the photos, his real objection was that the photos

comprised bad character evidence that was inadmissible in rebuttal because he had

not introduced any good character evidence. The court agreed and excluded the

photos on that basis. Although defendant complains the court took no further

steps to correct the alleged discovery violation, counsel did not move for further

sanctions and none were necessary.

A second alleged discovery violation occurred in connection with Louise

Teal’s testimony, but, as discussed earlier, there was faulty notice but not a failure

to permit discovery. The prosecutor apparently disclosed the specifics of the

witness’s expected testimony in the days preceding her taking the stand, and


defense counsel did not object on the ground the prosecutor violated the rules of

discovery. Any claim was thus forfeited for appeal.

(b) Suggesting Defendant Had Committed Other Crimes. For a prosecutor

to suggest in questioning that he or she has information outside the record is

misconduct. (See People v. Wagner (1975) 13 Cal.3d 612, 619.) When

questioning defendant’s brother, Albert Roldan, the prosecutor asked him if

defendant “was working or was he going out stealing, bringing money home?”

The witness answered: “I don’t know if he was stealing, but I know he was

bringing home some sort of money.” Defense counsel objected, but was

overruled. The prosecutor did not return to this theme, instead asking the witness

about the jobs defendant had held. In light of the evidence defendant had recently

committed robberies at the Sun Valley and San Fernando swap meets, this single

question, coupled with the witness’s equivocal answer, could not have been

prejudicial even if error.

When cross-examining defendant, the prosecutor asked him: “Did you ever

tell anybody else that you thought about trying to kill me?” The trial court

sustained an objection and instructed the jury to “completely disregard it.” This

single question, followed by the trial court’s direct admonishment, could not have

been prejudicial even if misconduct.

(c) Sarcasm. Defendant next cites several instances in which the

prosecutor made sarcastic comments or conducted questioning in an

argumentative and confrontational manner. “ ‘It is unprofessional conduct for a

prosecutor to engage in behavior or tactics purposefully calculated to irritate or

annoy the court or opposing counsel.’ ” (People v. Hill, supra, 17 Cal.4th at

p. 832, quoting ABA Project on Stds. for Crim. Justice, Stds. Relating to the

Prosecution Function and the Defense Function (Approved Draft 1971), std. 5.2.)


Some comments now challenged met with no objection and were thus not

preserved for appellate review. Other comments met with a quick objection,

sustained by the trial court, thereby ameliorating any potential harm. While the

record shows the prosecutor was heated and at times inappropriately sarcastic, the

case falls far short of one, like People v. Hill, supra, 17 Cal.4th 800, where the

misconduct was so egregious and pervasive that the defendant was denied a fair


(d) Appeals to Passion and Prejudice. Defendant contends the prosecutor

improperly appealed to the passion and prejudice of the jury. (People v. Bradford,

supra, 15 Cal.4th at p. 1379.) The prosecutor twice attempted to elicit from

defendant that he had used the money he stole from Pipkin to buy drugs and get

high at approximately the same time the Teal family was mourning the death of

the victim. Defense counsel’s objections to these attempts were sustained,

minimizing any harm. In addition, the jury was instructed not to be “influenced by

bias nor prejudice against the defendant,” that “[s]tatements made by the attorneys

during the trial are not evidence,” that “[i]f an objection was sustained to a

question, do not guess what the answer might have been,” and “[d]o not assume to

be true any insinuation [in a question] asked a witness. A question is not

evidence.” We presume the jury followed these instructions.

(e) Biblical Reference. Defendant next argues the prosecutor committed

misconduct by referring to portions of the Bible he asserted conveyed approval of

capital punishment. Defendant did not object and thus failed to preserve the issue

for appellate review. (People v. Slaughter (2002) 27 Cal.4th 1187, 1209.) Nor

can we say the argument rendered the trial so unfair that we may reach the issue in

the absence of an objection, for the prosecutor did not argue the Bible required a

death sentence and he immediately proceeded to emphasize the statutory factors in

aggravation. Nevertheless, although the issue was forfeited for appeal, we


emphasize that for prosecutors to engage in such arguments is “patent

misconduct.” (People v. Hill, supra, 17 Cal.4th at p. 836, fn. 6.) When

prosecutors invoke religious rhetoric (see, e.g., id. at p. 836 [“ ‘an eye for an eye, a

tooth for a tooth’ ”]), when they rely on what they purport to be “God’s will”

(People v. Navarette (2003) 30 Cal.4th 458, 514), or when they argue based on

what they take to be the true meaning of scriptural passages (see People v. Wash

(1993) 6 Cal.4th 215, 274 [prosecutor explaining why apparently conflicting

statements in the Old and New Testaments do not really conflict]; Bennett v.

Angelone (4th Cir. 1996) 92 F.3d 1336, 1346 [prosecutor argued commandment

“thou shalt not kill” inapplicable to the government]), all to convince a jury to

impose the death penalty, they create and encourage an intolerable risk that the

jury will abandon logic and reason and instead condemn an offender for reasons

having no place in our judicial system (see People v. Hill, supra, at p. 837

[religious argument “tends to diminish the jury’s personal sense of responsibility

for the verdict”]). Such argument also threatens unnecessarily to consume scarce

judicial resources, when an otherwise guilty offender must be retried. (See

Sandoval v. Calderon (9th Cir. 2000) 241 F.3d 765; State v. Wangberg (1965) 272

Minn. 204 [136 N.W.2d 853].)

(f) Improper Vouching. It is improper argument for a prosecutor to

suggest that the jury should accord some weight to the decision of the district

attorney’s office to seek the death penalty. (People v. Hardy, supra, 2 Cal.4th at

p. 211 [misconduct to “trad[e] on the prestige of the district attorney’s office in an

attempt to convince the jury to return a verdict of death”].) The prosecutor may

have transgressed this rule, but defendant failed to preserve the claim by objecting.

Moreover, the prosecutor’s solitary and brief comment could not have been



(g) Viewing Crime from Victim’s Perspective. Defendant next contends

the prosecutor committed misconduct by asking the jury in closing argument:

“You go to swap meets. Would you want to have a person like the defendant, with

a gun like this, fighting for his right to get away with the money that he has

illegally gotten with the gun like this? [¶] Would you want to be anywhere near

that? [¶] How many innocent bystanders would have been killed that day?

[¶] How many others would have died?” Although defendant contends asking the

jury to view the crime from the victim’s point of view is improper, he failed to

object and thus forfeited the claim for appeal. Moreover, this was permissible

argument at the penalty phase, based on the circumstances of the offense. (People

v. Garceau (1993) 6 Cal.4th 140, 206; § 190.3, factor (a).)

Defendant raises a number of other claims based on the prosecutor’s

closing argument, but we find the arguments were permissible as reasonably based

on the evidence adduced at the penalty phase, the instances were too trivial to be

characterized as misconduct, the claims were forfeited for lack of an objection, or

some combination thereof.

12. Challenges to the Death Penalty Law

Defendant raises a number of constitutional challenges to this state’s death

penalty law and to the standard penalty phase jury instructions. We have rejected

these claims in previous cases, and defendant does not persuade us our prior

opinions were in error. Accordingly, as noted below, we reject these claims.

(a) The penalty phase jury instructions do not fail “to narrow and channel

the jury’s discretion,” nor were they “unnecessarily confusing, and failed to

properly define the consideration of mitigating factors.” (See generally People v.

Boyette, supra, 29 Cal.4th at pp. 465-467.)


(b) The California death penalty law does not violate international law,

specifically the International Covenant on Civil and Political Rights. (People v.

Brown, supra, 33 Cal.4th at pp. 403-404.)

(c) The California death penalty law does not fail to narrow the pool of

those eligible for the death penalty. (People v. Weaver, supra, 26 Cal.4th at

p. 992.)

(d) The California death penalty law is not unconstitutional due to the lack

of intercase proportionality review. (People v. Weaver, supra, 26 Cal.4th at

p. 992.)

(e) The capital sentencing factors are not vague and “ill-defined.” (See

generally People v. Boyette, supra, 29 Cal.4th at pp. 465-467.)

(f) The sentencing scheme is not unconstitutional due to an improper

allocation of the burden of proof. (People v. Weaver, supra, 26 Cal.4th at p. 991.)

(g) The sentencing scheme, with aggravating and mitigating factors, is not

unconstitutionally confusing due to “the unitary nature of the listing.” (People v.

Boyette, supra, 29 Cal.4th at p. 466.)

(h) The jury instructions were not flawed for failure to delete inapplicable

sentencing factors. (People v. Williams (1997) 16 Cal.4th 153, 268.)

(i) The jury instructions were not flawed for failure to “delineate between

the aggravating and mitigating circumstances.” (People v. Boyette, supra, 29

Cal.4th at p. 466.)


As noted, the trial court made three errors at the penalty phase: (a) The

court erred in ruling the prosecutor had complied with section 190.3 with respect

to giving defense counsel notice of the victim impact evidence he intended to

introduce; (b) the court erroneously sustained an objection to a question asking

defendant’s opinion how drug and alcohol abuse had detrimentally affected his


life; and (c) the court erred in admitting as aggravating evidence defendant’s

threatening statements, made to Dr. Maloney in a pretrial examination, because

those statements were privileged under the attorney-client privilege. The lack of

notice of the victim impact evidence was harmless because defendant had more

than two weeks to consider the evidence and did not ask for a continuance. The

preclusion of defendant’s testimony regarding his drug abuse was also harmless

because the court later overruled similar objections and permitted defendant to

give his opinion. The admission of defendant’s threat to kill the prosecutor was

the most serious error, a breach of defendant’s attorney-client privilege. In light of

the other aggravating evidence, however, including his prior violent robberies, his

attempt to kill inmate Price in the county jail, and the victim impact evidence, we

find that error was also harmless. Considering the cumulative prejudicial impact

of these errors, we also find it is not reasonably possible defendant would have

achieved a more favorable penalty judgment in the absence of the errors.

The judgment is affirmed in its entirety.




See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Roldan

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: April 25, 2005

County: Los Angeles
Judge: Ronald S. Coen


Attorneys for Appellant:

Timothy J. Foley, under appointment by the Supreme Court, for Defendant and Appellant.


Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Keith H. Borjon, John R. Gorey and Sharlene A. Honnaka, Deputy
Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Timothy J. Foley
2901 Webster Street
San Francisco, CA 94123
(415) 922-0882

Sharlene A. Honnaka
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2272

Opinion Information
Date:Docket Number:
Mon, 04/25/2005S030644

1The People (Respondent)
Represented by Attorney General - Los Angeles Office
Sharlene A. Honnaka, Deputy Attorney General
300 South Spring Street, 5th Floor
Los Angeles, CA

2Roldan, Ricardo (Appellant)
San Quentin State Prison
Represented by Timothy J. Foley
Attorney at Law
3104 "O" Street, Number 357
Sacramento, CA

Apr 25 2005Opinion: Affirmed

Dec 29 1992Judgment of death
Jan 11 1993Filed certified copy of Judgment of Death Rendered
Jan 16 1997Counsel appointment order filed
  Timothy J. Foley is appointed to represent appellant on his automatic appeal, including any related habeas proceedings.
Jan 16 1997Compensation awarded counsel
Mar 12 1997Application for Extension of Time filed
  By Applt to request correction of the Record.
Mar 14 1997Extension of Time application Granted
  To Applt To 5-16-97 To request Corr. of Record.
May 15 1997Application for Extension of Time filed
  By Applt to request correction of the Record.
May 20 1997Extension of Time application Granted
  To Applt To 6-16-97 To request Corr. of Record.
Jun 13 1997Received letter from:
  Applt, Advising that Applt's request for correction, Etc. has been filed in L.A. Superior Ct.
Jun 16 1997Received:
  Copy of Applt's Applic. for correction, for Addit. Record, for release of Sealed Transcripts, & to Settle the Record (12 Pp.)
Jul 10 1997Compensation awarded counsel
Aug 13 1997Filed:
  Applt's Applic. for release of Sealed Writ Proceedings to Applt's Counsel (5 Pp.)
Aug 29 1997Compensation awarded counsel
Sep 2 1997Opposition filed
  By Resp to Applic. for release of Sealed Writ Proceedings to Aplnt's Counsel Only.
Sep 3 1997Filed:
  Supplement to Applt's Applic. for release of Sealed Writ Proceedings.
Sep 8 1997Filed:
  Reply to Opposition to Applic. for release of Sealed Writ Proceedings.
Sep 26 1997Note:
  Received Record from C/A 2: Roldan V. Super. Ct., L.A., No. B068672 (Our No. S027967).
Oct 22 1997Order filed:
  Appellant's application for release of copies of sealed writ proceedings is granted. The record is augmented to include any and all filings, transcripts and orders presently on file under seal in Roldan v. Los Angeles County Superior Court, S027967 (August, 1992) and Roldan v. Los Angeles Superior Court, B068672 (July, 1992). The clerk is directed to copy these materials, to place copies in the record (in sealed envelopes marked "CONFIDENTIAL -- MAY NOT BE EXAMINED WITHOUT COURT ORDER") and to provide copies to appellant's counsel, only. Unless otherwise ordered by this court, materials subject to this order shall remain under seal and shall be examined by this court, the Court of Appeal, appellant or appellant's attorneys, only. (Cal. Rules of Court, Rule 33.5(b).)
Jul 13 1998Compensation awarded counsel
Aug 3 1999Change of Address filed for:
  Attorney Timothy Foley
Jun 19 2000Note:
  Certified Record returned to Superior Court (Confidential and Non-Confidential Material Mixed)
Jul 27 2000Counsel's status report received (confidential)
Jul 27 2000Record on appeal filed
  C-17 (3,488 pp) and R-55 (3,049 pp) including material under seal
Jul 27 2000Appellant's opening brief letter sent, due:
Aug 28 2000Application for Extension of Time filed
  To file AOB. (1st request)
Aug 31 2000Extension of Time application Granted
  To 11/6/2000 to file AOB.
Sep 19 2000Counsel's status report received (confidential)
Oct 27 2000Application for Extension of Time filed
  To file AOB. (2nd request)
Oct 31 2000Extension of Time application Granted
  To 1/5/2001 to file AOB.
Nov 22 2000Counsel's status report received (confidential)
Jan 2 2001Application for Extension of Time filed
  To file AOB. (3rd request)
Jan 4 2001Extension of Time application Granted
  To 3/6/2001 to file AOB.
Jan 12 2001Compensation awarded counsel
  Atty Foley
Jan 25 2001Counsel's status report received (confidential)
Feb 28 2001Application for Extension of Time filed
  to file AOB. (4th request)
Mar 2 2001Extension of Time application Granted
  To 5/7/2001 to file AOB
Mar 29 2001Counsel's status report received (confidential)
May 14 2001Application for Extension of Time filed
  To file AOB. (5th request)
May 15 2001Extension of Time application Granted
  To 7/6/2001 to file AOB.
May 30 2001Counsel's status report received (confidential)
Jul 3 2001Application for Extension of Time filed
  to file AOB. (6th request)
Jul 10 2001Extension of Time application Granted
  To 9/4/2001 to file AOB.
Jul 30 2001Counsel's status report received (confidential)
Aug 30 2001Application for Extension of Time filed
  To file AOB.(7th request)
Sep 6 2001Extension of Time application Granted
  To 11/5/2001 to file AOB.
Oct 9 2001Counsel's status report received (confidential)
Oct 12 2001Counsel's status report received (confidential)
Nov 1 2001Application for Extension of Time filed
  To file AOB. (8th request)
Nov 6 2001Extension of Time application Granted
  To 1/4/2002 to file AOB.
Dec 13 2001Counsel's status report received (confidential)
Dec 28 2001Request for extension of time filed
  To file AOB. (9th request)
Jan 8 2002Extension of time granted
  To 2/19/2002 to file AOB. Counsel anticipates filing the brief by 2/8/2002. No further extension is contemplated.
Feb 6 2002Application to file over-length brief filed
  To file oversize AOB. (360 pp. AOB submitted under separate cover)
Feb 11 2002Order filed
  Applt.'s application for permission to file oversized brief is granted.
Feb 11 2002Appellant's opening brief filed
  (360 pp.)
Feb 13 2002Filed:
  Declaration of Atty. Foley re consultation about potential habeas corpus issues (confidential).
Feb 15 2002Counsel's status report received (confidential)
  from atty Foley.
Feb 22 2002Compensation awarded counsel
  Atty Foley
Mar 6 2002Request for extension of time filed
  to file respondent's brief (1st request).
Mar 8 2002Extension of time granted
  To 5/13/2002 to file resp.'s brief.
Mar 20 2002Motion filed
  by resp for copies of sealed transcripts and writ proceedings.
Mar 26 2002Opposition filed
  by applt. to resp.'s motion for copies of sealed transcripts and writ proceedings.
Apr 16 2002Counsel's status report received (confidential)
May 1 2002Order filed
  Respondent's "Motion for Copies of Sealed Transcripts and Writ Proceedings," filed March 20, 2002, is granted. The clerk is directed to unseal, and transmit to respondent copies of, the following passages of the reporter's transcript on appeal: RT 114-120, 138-144, 147-150, 154-175, 1016-1018, 1047, 1288-1293, 1294-1300, 1301-1306, 1307-1308, 1964-1973, and 2262-2267. The clerk also is directed to unseal, and transmit to respondent copies of, all filings, transcripts and orders in two writ proceedings, Roldan v. Los Angeles County Superior Court, B068672 (July 1992) and and Roldan v. Los Angeles County Superior Court, S027967 (Aug. 1992), with which the record was augmented on October 22, 1997.
May 3 2002Request for extension of time filed
  to file respondent's brief (2nd. request).
May 10 2002Extension of time granted
  To 7/12/2002 to file resp.'s brief. Dep. Atty. General Honnaka anticipates filing the brief by 8/15/2002. Only one further extension totaling 34 additional days is contemplated.
Jun 12 2002Compensation awarded counsel
  Atty Foley
Jun 18 2002Counsel's status report received (confidential)
Jul 3 2002Request for extension of time filed
  to file respondent's brief (3rd request).
Jul 17 2002Extension of time granted
  To 9/11/2002 to file resp.'s brief. Dep. Atty. General Honnaka anticipates filing that brief by 9/11/2002. No further extension will be granted.
Aug 20 2002Counsel's status report received (confidential)
Sep 6 2002Application filed to:
  file supplemental appellant's opening brief. (8 pp. brief submitted under separate cover)
Sep 10 2002Respondent's brief filed
  (177 pp.)
Sep 11 2002Order filed
  Appellant's application for permission to file the supplemental opening brief is granted. Any supplemental respondent's brief is to be served and filed on or before 10/11/2002. No extension of time will be granted.
Sep 11 2002Supplemental brief filed
  by appellant. (5 pp.)
Sep 20 2002Compensation awarded counsel
  Atty Foley
Sep 23 2002Request for extension of time filed
  To file appellant's reply brief. (1st request)
Sep 25 2002Extension of time granted
  To 12/2/2002 to file appellant's reply brief.
Oct 9 2002Supplemental brief filed
  by respondent. (5 pp.)
Oct 22 2002Counsel's status report received (confidential)
Nov 22 2002Request for extension of time filed
  To file appellant's reply brief. (2nd request)
Nov 26 2002Extension of time granted
  To 1/31/2003 to file appellant's reply brief. Extension is granted based upon counsel Timothy J. Foley's representation that he anticipates filing that brief. by 1/31/2003. After that date, no further extension is contemplated.
Dec 19 2002Compensation awarded counsel
  Atty Foley
Dec 20 2002Habeas funds request filed (confidential)
Dec 23 2002Counsel's status report received (confidential)
Jan 10 2003Appellant's reply brief filed
  (101 pp.)
Jan 13 2003Compensation awarded counsel
  Atty Foley
Jan 15 2003Order filed re habeas funds request (confidential)
Feb 3 2003Filed:
  Confidential declaration re substantial completion of habeas corpus investigation by appellate/habeas corpus counsel.
Feb 19 2003Counsel's status report received (confidential)
Mar 5 2003Compensation awarded counsel
  Atty Foley
Apr 16 2003Related habeas corpus petition filed (concurrent)
  (No. S115143)
Apr 16 2003Motion to consolidate filed (AA case)
  Motion to consolidate appellate and habeas corpus proceedings.
Apr 30 2003Compensation awarded counsel
  Atty Foley
May 21 2003Motion to consolidate denied
  Appellant's "Motion to Consolidate Appellate and Habeas Corpus Proceedings" filed on April 16, 2003, is denied.
Sep 23 2003Change of Address filed for:
  counsel for appellant Timothy J. Foley.
Aug 19 2004Exhibits requested
  People's: 5, 54-56.
Aug 23 2004Change of contact information filed for:
  attorney Timothy Foley.
Aug 26 2004Exhibit(s) lodged
  People's: 5, 54-56.
Dec 6 2004Letter sent to:
  advising counsel that case could be scheduled for oral argument as early as the February calendar, to be held the week of February 7, 2005, in Sacramento. Any request for additional time (to argue), notification of requirement for two counsel, or advisement of "focus issues" must be made no later than 10 days after the case has been set for oral argument.
Jan 12 2005Case ordered on calendar
  2/8/05 @ 2pm - Sacramento
Jan 21 2005Filed letter from:
  respondent, dated 1/21/2005, re focus issues for oral argument.
Jan 24 2005Filed letter from:
  attorney Foley, dated 1/22/2005, re focus issues for oral argument.
Jan 27 2005Received:
  letter from atty Foley, dated 1/26/2005, re supplemental authorities for oral argument.
Feb 8 2005Cause argued and submitted
Apr 7 2005Filed:
  letter appellant, dated 4/5/2005, re second notice of supplemental authorities.
Apr 13 2005Compensation awarded counsel
  Atty Foley
Apr 25 2005Opinion filed: Judgment affirmed in full
  Opinion by Werdegar, J. -----joined by George, C.J., Kennard, Baxter, Chin, Brown, & Moreno J.J.
May 5 2005Rehearing petition filed
  by appellant (2037 words; 10 pp.)
May 10 2005Time extended to consider modification or rehearing
  to 7/22/2005, or the date upon which rehearing is either granted or denied, whicever occurs first.
Jun 8 2005Rehearing denied
  Petition for rehearing DENIED.
Jun 8 2005Remittitur issued (AA)
Jun 14 2005Exhibit(s) returned
  People's: 5, 54, 55 and 56.
Jun 15 2005Received:
  acknowledgment of receipt of remittitur.
Jun 24 2005Order filed (150 day statement)
Jun 30 2005Received:
  acknowledgment of receipt of exhibits.
Aug 8 2005Application to stay execution filed
  Application for stay of execution in a capital case. (execution date: October 28, 2005)
Aug 17 2005Stay of execution order filed
  Appointed counsel for condemned inmate Ricardo Roldan represents that he will submit to the United States Supreme Court a timely filed petition for writ of certiorari seeking review of this court's decision affirming the judgment of death. Moreover, appointed counsel has filed a capital-related petition for writ of habeas corpus on behalf of Ricardo Roldan in this court (S115143) and the disposition of that petition is pending. Accordingly, the application for stay of execution is granted and execution of the judgment of death entered against Ricardo Roldan by the Los Angeles Superior Court (No. PA003868), and affirmed by this court on April 25, 2005 (35 Cal.4th 646), is hereby stayed pending the last to occur of the following: final determination of any timely filed petition for writ of certiorari in the United States Supreme Court, and this court's disposition of Ricardo Roldan's capital-related petition for writ of habeas corpus. If the petition for writ of of habeas corpus is denied, and if a petition for writ of certiorari is not submitted within the time prescribed, this stay will terminate when the time for submitting such petition has expired. Werdegar, J., was absent and did not participate.
Aug 31 2005Received:
  Copy of appellant's cert petition. (10 pp. - excluding attached appendices)
Sep 7 2005Received:
  letter from U.S.S.C., dated 9/2/2005, advising cert petition filed on 8/29/2005 as No. 05-6165.
Oct 31 2005Certiorari denied by U.S. Supreme Court

Feb 11 2002Appellant's opening brief filed
Sep 10 2002Respondent's brief filed
Jan 10 2003Appellant's reply brief filed
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