Filed 6/23/16
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S045423
v.
EDGARDO SÁNCHEZ,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. LA011426
A jury convicted defendant, Edgardo Sánchez, of the first degree murder of
Officer John A. Hoglund under the special circumstances of murder to prevent
arrest, murder of a peace officer, and murder in the commission of robbery; of the
first degree murder of Lee Chul Kim under the special circumstance of murder in
the commission of robbery; of the attempted murder of Luis Enrique Medina; and
of 26 counts of robbery, two counts of attempted robbery, five counts of assault
with a deadly weapon, and two counts of assault with a stun gun. The jury also
found true the special circumstance allegation of multiple murder and that
defendant personally used a firearm as to many, although not all, of the counts.
After a penalty trial, the jury returned a verdict of death. The court denied the
automatic motion to modify the verdict and imposed a judgment of death. This
appeal is automatic. We reverse one robbery count, modify the determinate prison
sentence accordingly, and otherwise affirm the judgment.
SEE CONCURRING OPINION.
I. THE FACTS
A. Guilt Phase
1. Overview
Defendant and several cohorts, usually including his two codefendants,
Jose Contreras and Benjamin Navarro, committed seven separate takeover-style
armed robberies of business establishments from December 1991 to May 1992.1
During one robbery, defendant and Contreras shot the store owner to death.
During another robbery, defendant applied a stun gun to two victims to try to
coerce one of them to unlock a safe. While leaving the scene of the final robbery,
defendant shot to death a police officer responding to a silent alarm.
Videotape containing images of all three defendants captured portions of
the last robbery. Numerous eyewitness identifications and other evidence also
connected defendant to the crimes.
At trial, defense counsel conceded that defendant was involved in some of
the robberies, and that the videotape of the final robbery showed defendant
committing it. But he argued there was a reasonable doubt about his involvement
in some of the robberies and about his guilt of some of the specific crimes.
2. Prosecution Evidence
a. Outrigger Lounge
During the evening of December 31, 1991, the Outrigger Lounge in Sun
Valley was crowded with customers preparing to celebrate the New Year. Around
8:00 p.m., at least three men entered the lounge and, at gunpoint, ordered the
customers to go to the floor. The gunmen spoke English with an Hispanic accent.
1
Contreras and Navarro were convicted of many of the same crimes. They
did not receive the death penalty and are not involved in this appeal.
2
One gunman, identified as defendant, wielded a short shotgun. He jumped
over the bar, knocking down the bartender, Robert Lehman, in the process.
Pointing his shotgun at Lehman, defendant took Lehman‘s wallet, watch, and
money clip. He also took around $410 from the cash register. Defendant then
forced Lehman to go to the office, where defendant took about $800 from the safe.
The perpetrators also took property at gunpoint from customers Walter
deWitt, Margaret Tucker, Eugene Engelsberger, Praneet Gallegos, Marjorie
Livesley, Lois Skinner, and Dennis Sorenson. The owner of the lounge, Jeannette
Luettjohann, testified that the gunmen took about $1,600 in cash and $125-130
worth of food. One gunman hit John Tucker, Margaret‘s husband, with the butt of
a shotgun, breaking two ribs.
Anne Pickard, Sorenson‘s girlfriend, who was in the restroom when the
robbery began, came out in time to see people on the floor. She later identified
defendant as the man with the short shotgun. She had previously identified him
from photographic and live lineups with differing degrees of certainty. Barbara
Salazar, an employee, tentatively identified defendant from a photographic lineup
as one of the gunmen. Engelsberger identified defendant from a photographic
lineup. Gallegos identified defendant as the man with the shotgun in court and
from a photographic lineup. Some witnesses identified Contreras and Navarro as
gunmen with various degrees of certainty.
Livesley identified a gold chain found on defendant‘s person when he was
later arrested as one that had been taken from her during the robbery.
For this incident, defendant was convicted of robbing Margaret Tucker,
Eugene Engelsberger, Praneet Gallegos, Jeanette Luettjohann, Marjorie Livesley,
Lois Skinner, Robert Lehman, and Walter deWitt, and of assaulting John Tucker
with a deadly weapon.
3
b. El 7 Mares Restaurant
On the evening of April 18, 1992, around 8:00 p.m., as many as six armed
men invaded the El 7 Mares Restaurant in Los Angeles. All were speaking
Spanish; some witnesses said they had Central American accents. One
perpetrator, holding a shotgun, told two others to ―[t]ake care of the guard.‖ The
men took private security guard Rene Aguilar‘s equipment, including his
handcuffs, and later led him at gunpoint to the kitchen area. A gunman entered the
office of Magdaleno Urrieta, the restaurant manager, and forced him to turn over
$5,000-$5,500 in cash. The gunmen then forced customers and employees,
including Urrieta, into the kitchen and told them to lie facedown on the floor.
The gunmen took a watch and about $200 from customer Nelson
Hernandez and about $8,000 worth of jewelry from his wife; money from the cash
register; around $290 from waitress Lupe Guizar; and a watch, chain, wedding
ring, and wallet containing about $80 from Urrieta.
Aguilar and Guizar identified defendant and his codefendants as among the
gunmen. Aguilar described defendant as short and Contreras as tall.2 Nelson
Hernandez identified Navarro as one of the gunmen; he identified a watch found
in a residence linked to defendant as similar to the watch taken from him.
Aguilar‘s handcuffs were later found in Navarro‘s home.
For this incident, defendant was convicted of robbing Magdelano Urrieta,
Nelson Hernandez, Lupe Guizar, and Rene Aguilar.
c. Mercado Buenos Aires
On April 24, 1992, around 5:25 p.m., at least four gunmen invaded the
Mercado Buenos Aires supermarket in Van Nuys. One gunman said, ―This is a
2
Throughout the trial, witnesses generally identified defendant as the
shortest and Contreras as the tallest of the gunmen.
4
robbery. Hands upon your head.‖ Witnesses said the men spoke Spanish with
what sounded like a Central American accent.
The store owner, Manuel Rodriguez, observed one gunman grab a well-
dressed customer by the hair and, apparently believing the customer was the
owner, tell him, ―You‘re going to show us where the money is.‖ Manuel told the
gunmen to leave the customer alone, as he, Manuel, was the owner. A gunman
took Manuel into the store office and demanded that he give him money. Manuel
turned over cash, checks, and food stamps worth about $3,000 and told the
gunmen there was no more money. Manuel‘s wife Clelia Rodriguez was brought
into the office with a gun pointed to her head. One gunman told another to cut off
one of her fingers to force Manuel to say where the rest of the money was. The
gunman also threatened to kill her if Manuel did not say where more money was.
Manuel responded that there was nothing else but to take what they wanted.
Eventually, the gunmen herded Manuel, Clelia, their son Paul, a customer,
and two employees, Dario de Luro and Arturo Flores, into a back bathroom.
Manuel Rodriguez testified that the gunmen took his chain and wedding ring,
Clelia‘s chain and bracelet, and de Luro‘s wallet and watch. He believed they
took wallets and watches from others before they entered the bathroom. Paul
Rodriguez testified that the gunmen took his necklace and ring and a wallet from
de Luro.
Manuel Rodriguez identified defendant from photographic and live lineups
and at trial as the man who pointed the gun at his wife. He identified Cordova as
the gunman who threatened to cut off Clelia‘s finger and, with less certainty,
Navarro as another gunman. He testified that defendant and Cordova seemed to
be giving the orders. Paul Rodriguez identified defendant from photographic and
live lineups and at trial as the gunman giving the orders. With less certainty, he
identified Cordova as another of the gunmen. Manuel and Paul identified a
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necklace and a bracelet found on defendant‘s person when he was later arrested as
similar to items taken during the robbery.
For this incident, defendant was convicted of robbing Manuel Rodriguez,
Paul Rodriguez, Clelia Rodriguez, Arturo Flores, and Dario de Luro.
d. Woodley Market
On the morning of May 4, 1992, around 9:35 a.m., three or four gunmen
entered the Woodley Market, a food store in Van Nuys. Owner Lee Chul Kim had
just returned from the bank carrying cash in a brown leather bag. One gunman
approached employee Victor Cisneros, pointed a gun at him, and forced him to go
to the back of the store and lie down. The gunman spoke Spanish with what
Cisneros described as an ―El Salvadoran‖ accent. Another gunman approached
Teresa Torres, a cashier, and told her not to touch anything.
Employee Guillermo Galvez observed Kim running from a gunman,
identified as defendant, who was following Kim and pointing a handgun at him.
While he was running, Kim dropped the money bag and the keys to the store cash
drawer. Employees Eduardo Rivera and Galvez observed Kim, followed by
defendant, run to the meat freezer and try to close the door.3 Rivera heard Kim
say something that sounded as if he was ―in fear, like [he was] terrorized.‖ As
defendant attempted to and eventually succeeded in opening the freezer door,
Galvez heard Kim crying ―please don‘t do anything to me,‖ and saying ―that the
keys were here and he would give them everything.‖ Cisneros heard Kim, with
fear in his voice, say, ―Okay, Okay, please, please, okay.‖ He heard another voice
say, in Spanish with a Salvadoran accent, ―The keys, the keys.‖ Torres could not
3
Rivera was unavailable to testify at trial, so his preliminary hearing
testimony was read to the jury.
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see Kim, but she, as well as Rivera, heard him say, ―Please, please.‖ Galvez and
Rivera saw defendant hit Kim in the neck with the gun. When Galvez last saw
Kim alive, he was on his knees in the freezer.
Gunfire erupted from the freezer area. Galvez observed defendant and
Cordova fire at Kim. He estimated he heard around 10 gunshots from two
different guns. Defendant shot downwards at Kim. Cisneros heard the sound of a
gun being dropped, then he looked and observed a hand pick up a gun. A voice
said, ―Let‘s go.‖ The men then ran past Cisneros and out of the store.
Kim was shot eight times by two different guns. Six of the shots alone
would have been fatal or potentially fatal. Evidence indicated that Kim managed
to get off some shots of his own from a .25-caliber semiautomatic handgun that he
carried on his person. His empty holster, but not his gun, was found in his pocket.
Cisneros and Galvez identified defendant at trial as one of the gunmen.
Rivera identified defendant at the preliminary hearing with ―95 percent‖ certainty
and identified him earlier at a live lineup. Cisneros, Torres, and Rivera also
identified Cordova.
For this incident, defendant was convicted of the attempted robbery and
first degree murder of Kim under the special circumstance of murder in the
commission of robbery. The jury found him not guilty of attempting to rob
Galvez and Rivera.
e. Casa Gamino
Armando Lopez was the manager, and Maricella Mendoza a hostess, at the
Casa Gamino Restaurant in Paramount. Around 9:30 p.m. on the evening of May
17, 1992, several gunmen entered the restaurant. One gunman grabbed Mendoza
by the hair, pointed a gun at her, and took her to the kitchen, where one of the
gunmen demanded she open a cash register. When she could not open it because
7
she was nervous, a man slapped her. Gunmen took other employees, including
Armando‘s brothers, Arturo and Javier Lopez, and Esequiel Flores, to the kitchen
area, where they robbed them and Mendoza of jewelry and other property.
Another gunman, identified as defendant, placed a gun against Armando‘s
stomach, and took him to the back. During these events, defendant sometimes
spoke English and sometimes Spanish with a Central American accent. Defendant
displayed what looked like a stun gun and said to Armando, ―I‘m going to kill you
with this if you say anything.‖ Defendant then forced him into the office and
demanded money. He took the money that was in the office, around $20,000.
In the office, defendant demanded that Armando open the safe. Armando
did not know the combination and told defendant he could not open it. Defendant
slapped him, then shot him with the stun gun two or three times on his ribs and
stomach, causing him to scream loudly in pain. Armando testified the gun had
―like some blue flames coming out of it.‖ Javier Lopez saw defendant give
Armando electric shocks and heard Armando screaming and saying he did not
know the combination. Defendant demanded again that Armando open the safe.
Armando responded ―that I was unable to open the door. I said I had children.‖ In
response, defendant placed his gun in his mouth and counted ―one, two, three, and
he said, ‗If you do not open the safe, I‘m going to kill you.‘ ‖
Another gunman then brought Mendoza into the office. There, as she
testified, ―They began torturing me in order to make Armando talk.‖ ―They had a
stun gun, and they were hitting me on my shoulders and my back. And they put
the gun inside Armando‘s mouth. They told him that if he was not going to open
the safe . . . , they would kill him and they would kill me as well.‖ When she told
them she did not know how to open the safe, defendant hit her in the head with a
gun. Being shocked with the stun gun was very painful and caused her to scream.
They used it on her about six times, and she could see ―blue bolts‖ coming from it.
8
Both Armando and Mendoza testified that the same man, identified by Armando
as defendant, used the stun gun on both of them.
A gunman then took Mendoza to the back and told her ―to scream . . .
loudly so that Armando would open the safe.‖ He threatened to ―put me inside
some water that was there, and then he said he was going to use the stun gun to hit
me on the heart so that I would die if I didn‘t scream loud enough.‖ She screamed
to Armando to open the safe. Arturo and Javier Lopez heard her scream many
times.
Armando was forced to open a cash register. A gunman took $300-$400
from it. Defendant took Armando‘s gold bracelet, ring, and watch. Gunmen also
took property from Lucia Lopez, Javier‘s wife. Lucia heard Mendoza screaming
from the kitchen area.
Armando, Mendoza, and Javier heard some of the robbers refer to one of
the gunmen, identified by Armando as defendant, by the name ―Morro.‖ Armando
testified that defendant responded to that name. The gunmen then left. Javier
estimated that the robbery lasted about 25-27 minutes.
Armando identified defendant in court as the man who used the stun gun on
him. Previously he identified two photographs from a lineup — one of defendant
and one of a nonsuspect — as possibly being the gunman. He also tentatively
identified Cordova and Navarro as other gunmen. Mendoza tentatively identified
Navarro as one of the gunmen but was unable to identify defendant. Arturo
identified defendant as the gunman who was with Armando, and Cordova as
another gunmen. Lucia and Javier identified defendant as one of the gunmen and
had previously identified him from photographic and live lineups. They also
identified Cordova. Flores identified Navarro from a photographic lineup as a
gunman. Customers Norman and Charlene Busby identified Cordova and
Navarro. Customer John Khounthavong, an off-duty police officer, identified
9
Cordova, and customer Raul Ramirez identified Navarro from a photographic
lineup.
The stun gun used in the robbery was never found, but an expert testified
about the characteristics of stun guns. Unlike a Taser, which can be used from a
distance, a stun gun must be applied directly to the person to have an effect. The
expert demonstrated the use of a stun gun that witnesses testified looked like the
one defendant used. It generated blue sparks and could be used to immobilize a
person.
For this incident, defendant was convicted of robbing and assaulting
Armando Lopez with a deadly weapon and with a stun gun, of robbing and
assaulting Maricella Mendoza with a deadly weapon and with a stun gun, and with
robbing Javier Lopez, Esequiel Flores, and Arturo Lopez.
f. Ofelia’s Restaurant
Ofelia Saavedra and her husband, Juan Saavedra, owned Ofelia‘s
Restaurant in South Gate. Their daughter, Leticia Saavedra, and Obdulia Garcia
also worked in the restaurant.
Around 11:30 a.m. on May 22, 1992, Ofelia observed her husband walking
toward the back door followed by a man, identified as defendant, wielding a gun.
Around this same time, Leticia was returning from an errand and was entering the
restaurant through the back door. Ofelia heard defendant, speaking Spanish, tell
Juan to stop. Juan responded by saying, ―Let me open the door for my daughter.‖
A struggle ensued between defendant and Juan over the gun. Ofelia, holding a
knife, turned to face defendant.
Leticia entered the restaurant in time to observe the struggle. Defendant
was threatening to kill Juan, and Juan was saying to let go of the gun. In the
struggle, the gun went off twice, firing into the floor. Then a second gunman,
10
identified as Cordova, appeared. Ofelia pointed the knife at Cordova but dropped
it after he threatened to shoot her. Leticia saw Cordova hit her father in the head
with his gun at least five times, causing bleeding. Cordova took Ofelia to the
dining area, where he took property from Garcia.
After the gunshots, defendant said, ―Let‘s go, the cops are coming,‖ and the
gunmen left running. A slip-on black shoe that the parties stipulated belonged to
defendant was left behind. The gunmen left in two cars, one red and one blue.
Leticia identified defendant from a live lineup and later in court as the man
who struggled with her father. She also identified a photograph of the car
defendant was driving when he was arrested as similar to the red getaway car.
Ofelia identified defendant in court and Cordova from a photographic lineup.
For this incident, defendant was convicted of assaulting with a deadly
weapon and attempting to rob Juan Saavedra, of robbing Obdulia Garcia, and of
assaulting Ofelia Saavedra with a deadly weapon.
g. George’s Market
On May 29, 1992, around 1:30 p.m., several gunmen invaded George‘s
Market, a delicatessen in Maywood. Portions of the robbery were captured on a
videotape that was played for the jury.
Defendant and Cordova went behind the counter where owner Linda Park
and her son Tom Park were standing and, at gunpoint, demanded money. They
threatened to kill Tom if he did not reveal where the money was. At one point,
defendant slapped him, knocking his glasses to the floor. At another point,
defendant pulled the slide of his semiautomatic handgun as though placing a bullet
into the chamber. They took about $1,500 from each of two cash registers, around
$1,000 worth of food stamps, a few hundred dollars from under the counter, three
bundles of $2,000 each, and a handgun the Park family kept behind the counter.
11
During these events, a gunman robbed employee Gumercindo Salgado,
taking $200-$300 from a cash register. The gunmen left, with defendant the last to
leave. Shortly after they left, those inside the store heard gunshots.
The gunmen prevented the Parks from pushing the store‘s silent alarm
button, but Salgado activated the silent alarm in the butcher shop. Two police
vehicles responded to the alarm. Officer John Hoglund, wearing a uniform, was
alone in the vehicle nearer the scene. Officer Kenneth Meisels and Reserve
Officer William Wallace — 20 minutes into his first-ever duty shift — were
together in the second vehicle farther away. Officer Hoglund radioed Officer
Meisels that he would respond to the alarm and later said he had arrived at the
location.
As Officer Meisels neared the store, he observed a red sports car with a
dark-tinted back window containing a single occupant speed past and run a stop
sign. He tried to pursue it, but it was going too fast. He attempted to contact
Officer Hoglund. Receiving no response, he gave up pursuing the car and drove to
the scene of the silent alarm. Officers Meisels and Wallace arrived to see Officer
Hoglund‘s police vehicle parked in front of the market with his bullet-riddled body
partly inside the car with his legs outside. Officer Hoglund‘s firearm was in its
unsnapped holster.
Erik Sanchez was driving in the area when he saw a police vehicle stop and
an officer get out. He heard four to five gunshots and saw the officer fall half in
the vehicle. He did not see the shooter but he saw four men run and get into two
cars, one of which was a red Mazda RX 7 with a tinted back window. He tried to
get the Mazda‘s license number but could not do so because the numbers were
obscured. The Mazda‘s driver was an Hispanic male.
Luis Enrique Medina testified that he double parked in front of George‘s
Market that day waiting while a friend went inside the store. He observed a man,
12
whom the evidence indicated was Navarro, walking back and forth in front as if
watching the store. Some men came out and then went back inside the store.
They were speaking Spanish with a Central American accent. Medina observed a
police officer turn on the lights of his vehicle, then get out and stand up. Some
men came out of the store and started running. The officer told them to stop. The
last one out, whom the evidence showed was defendant, passed by Medina‘s car
and pulled out a gun. Medina, a former police officer in Mexico familiar with
guns, believed the gun was a black nine-millimeter handgun.
Defendant swore at the police officer and said, ―You‘re going to die.‖
When, as Medina testified, the officer ―wanted to pull out his gun and his radio,‖
defendant shot him. The officer was hit in the body and fell. As the officer fell,
defendant shot him again, this time in the head.
After shooting the officer, defendant aimed the gun at Medina from about
eight feet away. Defendant was looking at Medina with his finger on the trigger.
Medina could tell the gun was empty because the slide was open. He testified that
defendant ―was trying to shoot, but there were no bullets in the gun,‖ and ―he
made a gesture as to remove the clip that was there.‖
Defendant‘s cohorts called and he ran to them. He got into a small red car,
and they drove away. Medina was unable to get the license number of the car
because something was obscuring it.
Officer Hoglund died of three gunshot wounds, two into the torso (one
through the heart), and one through the brain. The positioning of the head wound
was consistent with the officer being in the car slumped forward when shot in the
head. Each of the gunshots individually would have been fatal. The bullets were
consistent with those from a nine-millimeter handgun.
Defendant‘s image appeared on the videotape. Tom and Linda Park
identified him at photographic and live lineups and later at trial, and customer
13
Elvira Acosta identified him from a live lineup and later in court. Witnesses also
identified Contreras and Navarro. Officers Meisels and Wallace, and witness Erik
Sanchez, testified that the car defendant was driving when he was later arrested
was similar to the red car they observed.
Medina was not positive of his identification of defendant in court. He had
changed his testimony at the preliminary hearing regarding the identity of the
shooter, although he eventually identified defendant. He testified at trial the
reason for this was that at the preliminary hearing, he had been ―afraid, and I was
afraid for my family.‖ But he consistently identified defendant, who was wearing
a distinctive striped shirt in the videotape, as the man who shot the officer.
Los Angeles County Sheriff‘s Deputy Delores Perales, who investigated
this case, testified that in her experience with semiautomatic weapons, it is
obvious when the gun is empty. A criminalist testified that a magazine of a nine-
millimeter semiautomatic handgun can hold from six to as many as 19 bullets. If
the slide locks to the rear, that would indicate the gun was out of ammunition.
For this incident, defendant was convicted of the first degree murder of
Officer Hoglund under the special circumstances of murder to prevent arrest,
murder of a peace officer, and murder in the commission of robbery; of robbing
Linda Park, Tom Park, and Gumercindo Salgado; and of the attempted murder of
Luis Enrique Medina.
h. Uncharged Incident at Rod’s Coffee Shop
Brian Wellman, the manager of Rod‘s Coffee Shop in Arcadia, observed
five men enter the establishment shortly before midnight on November 7, 1990.
He offered them a table. He testified that ―as they came in, they just were kind of
looking around, and I felt very uneasy right off the bat.‖ Two of the five had some
coffee and ―took a couple of sips,‖ then the men left the shop without ordering
14
anything else. Shortly thereafter, Wellman observed ―that they were all kind of
congregated near the back door, and that made me kind of nervous.‖ ―They did
not seem to be leaving.‖ Wellman observed them standing near a car parked in the
driveway facing the street. The car appeared to be ―ready to drive away‖ rather
than parked properly in the parking lot. He also observed another vehicle off to
the side. Apprehensive that the group was planning a robbery, Wellman called the
police.
Sergeant Randy Kirby and Detective Robert Anderson responded. They
observed and then stopped an orange Datsun and a silver Honda. Defendant was
the driver of the Datsun. The Honda contained a loaded .357 Magnum. The
Datsun contained a loaded .22-caliber revolver under the front passenger seat and
a loaded .38-caliber revolver under the driver‘s seat. Next to the handgun under
the passenger seat was a functional black stun gun.
The stun gun was booked into evidence but not preserved. Detective
Anderson testified that the stun gun was functional and, when activated, emitted
blue sparks. Armando Lopez and Maricela Mendoza later identified a stun gun
that emitted similar blue sparks as one that ―looked like the one‖ used in the Casa
Gamino robbery.
i. Other Evidence
Bullets and bullet casings found at the scenes of the three robberies during
which shots were fired — the Woodley Market, Ofelia‘s Restaurant, and George‘s
Market robberies — were examined. The examination established that a single
nine-millimeter gun fired at least some of the shots during each of those robberies.
Three different guns — two nine-millimeter handguns and a .25-caliber handgun
(possibly victim Kim‘s gun) — fired shots during the Woodley Market robbery.
15
Three different guns — two nine-millimeter handguns and a .22-caliber
handgun — fired shots during the George‘s Market robbery.
Contreras and Navarro, who originally gave police the name ―Hector
Reyna,‖ were arrested on May 31, 1992. When Navarro was arrested, he was
driving an orange Nissan with 13-year-old Rosa S. as a passenger.
The officer who arrested Navarro also observed a red Mazda believed to be
involved in the robberies. Later the same evening, he stopped that car and arrested
defendant, the driver. The car‘s rear license plate number was obscured.
Witnesses testified that the car was similar to the red car seen leaving the scene of
the Ofelia‘s Restaurant and George‘s Market robberies. When he was arrested,
defendant had a white sock containing jewelry concealed in his underwear.
Witnesses later identified items of jewelry removed from the sock as similar to
jewelry taken in the Outrigger Lounge and Mercado Buenos Aires robberies.
When arrested, and as late as his first court appearance, defendant identified
himself as ―Carlos Antonio Juarez.‖
The prosecution placed into evidence photographs found in some of the
defendants‘ residences showing the defendants together, sometimes with firearms
that witnesses said resembled firearms used in the robberies.
Rosa S. testified that she was with Navarro, whom she knew as ―Hector,‖
when he was arrested.4 Two days earlier, the day of the George‘s Market robbery,
she had been at the house of a friend of Navarro‘s she knew as ―El Morro.‖ She
identified defendant in court and from the videotape of the George‘s Market
robbery as the friend. Defendant and Navarro left the house, then returned about
4
Rosa S. could not be located at the time of trial, so her preliminary hearing
testimony was read to the jury. The court also admitted a taped statement Rosa
had previously made to the police.
16
an hour later with a large amount of money. Defendant drove the red car he was
later arrested in. Later other men, including Cordova, arrived, some with
handguns. In Rosa‘s presence, they divided the money among themselves.
While Rosa S. was still at defendant‘s house, and in defendant‘s presence,
someone said, ―Carlos‖ — meaning defendant — ―shot a cop.‖ Defendant himself
said, ―I shot a cop.‖ He said he ―shot because the officer had gotten in his way.‖
In the same conversation, he also said that ―he had already shot like eight or nine
people in his country.‖
3. Defense Evidence
Los Angeles County Sheriff‘s Deputy Nicholas Cabrera testified that he
interviewed witnesses shortly after the Casa Gamino robbery, at a time when
matters were chaotic. Armando Lopez told him he believed one of the robbers,
apparently referring to defendant, ―was of Mexican descent,‖ and the other robbers
came from Central America.
B. Penalty Phase
The prosecution presented evidence that in 1990, defendant was convicted
of possession for sale of cocaine base.
Defendant presented substantial evidence in mitigation. He was from
Honduras, the youngest of 10 children. His mother, two brothers, and a sister
testified about his life in Honduras. He also presented several witnesses who
testified that he had embraced religion in jail and would be of help to others in the
future. Arturo Talamante, a ―Hispanic coordinator of the ministry in prisons,‖
testified that in 25 years, he had found only two people, including defendant, ―who
have the spirituality that he [defendant] has had.‖ Luke Packel, a Catholic
missionary, expressed the opinion that because of the depth of his religious
feelings, defendant‘s ―life has completely turned around.‖
17
Defendant testified. He discussed his religious conversion in jail. He
studied the Bible and ―surrendered fully to the learning, to learn more about our
Lord.‖ He wrote some Bible studies, hoping they would help others. He said he
shot and killed Kim, but only after Kim shot him first. He admitted shooting
Officer Hoglund to escape after the robbery. At first he did not feel remorse, but
over time, he came to ―realize that human life has an infinite value to it,‖ and now
he had ―the genuine desire to rescue others from their mistakes.‖ He concluded
his direct examination by saying that he now knows that ―human life has an
infinite value to it, and I ask our Lord to grant me the opportunity to prove that to
others so that they can once and for all abandon that path and to be saved by our
Lord.‖
II. DISCUSSION
A. Jury Selection Issues
1. Denial of Sequestered Voir Dire
Defendant moved the court ―to conduct individualized, sequestered death
qualification in compliance with Hovey v. Superior Court (1980) 28 Cal.3d 1.‖
The court denied the motion. Defendant contends the court erred, and that it was
required to question the jurors individually about their views on the death penalty.
We disagree.
―Code of Civil Procedure section 223 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.‘ That provision, added
by initiative (Prop. 115) in 1990, had the effect of abrogating this court‘s
supervisory direction in Hovey v. Superior Court (1980) 28 Cal.3d 1, 80 (Hovey)
that the death-qualifying voir dire always be conducted individually and in
18
sequestration, i.e., out of the other prospective jurors‘ presence.‖ (People v.
Brasure (2008) 42 Cal.4th 1037, 1050.)
Defendant contends the Hovey rule is constitutionally compelled. It is not.
―The Hovey rule was not constitutionally compelled; the electorate was free to
abrogate it by initiative statute.‖ (People v. Brasure, supra, 42 Cal.4th at p. 1050.)
He also contends the court abused its discretion. ―Under Code of Civil Procedure
section 223, the trial court retains the discretion to conduct sequestered voir dire if
it concludes that collective voir dire would not be practicable.‖ (People v. Thomas
(2012) 53 Cal.4th 771, 789.) In this case, the prospective jurors were asked to fill
out a detailed questionnaire so they could state their opinions untainted by the
other prospective jurors. The court did not abuse its discretion in finding this
procedure adequate to ensure a fair jury selection process. (People v. Watkins
(2012) 55 Cal.4th 999, 1011.)
Defendant argues that, even after filling out the questionnaires, some
prospective jurors might have been influenced during voir dire by answers other
prospective jurors gave. But ―the purpose and effect of the ‗group voir dire‘
requirement of Code of Civil Procedure section 223 would be obviated if
nonsequestered questioning were deemed ‗[im]practicable‘ because of the
speculative concern that one prospective juror‘s death penalty responses might
influence the responses of others in the venire. It is precisely this premise of
Hovey v. Superior Court, supra, 28 Cal.3d 1, that Proposition 115‘s adoption of
Code of Civil Procedure section 223 was intended to overrule.‖ (People v.
McKinnon (2011) 52 Cal.4th 610, 634.) We see no abuse of discretion.
2. Prosecutor’s Use of Peremptory Challenges
During jury selection, defendant twice objected that the prosecutor
exercised peremptory challenges against ―Hispanic‖ prospective jurors for reasons
19
of group bias in violation of his state and federal constitutional rights. (See Batson
v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258
(Wheeler).) He appears to define the group broadly to include anyone who self-
identifies as Hispanic or a member of a Hispanic subgroup, or anyone with a
Spanish surname. (See People v. Trevino (1985) 39 Cal.3d 667, 676, 686.) Both
times, the trial court found that defendant had not made out a prima facie case of
discriminatory challenges and denied the objection. Defendant contends the court
erred.
a. Applicable Legal Principles
―Both the state and federal Constitutions prohibit the use of peremptory
strikes to remove prospective jurors on the basis of group bias. (Batson, supra,
476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277.) The now familiar
Batson/Wheeler inquiry consists of three distinct steps. First, the opponent of the
strike must make out a prima facie case by showing that the totality of the relevant
facts gives rise to an inference of discriminatory purpose in the exercise of
peremptory challenges. Second, if the prima facie case has been made, the burden
shifts to the proponent of the strike to explain adequately the basis for excusing the
juror by offering permissible, nondiscriminatory justifications. Third, if the party
has offered a nondiscriminatory reason, the trial court must decide whether the
opponent of the strike has proved the ultimate question of purposeful
discrimination. (Johnson v. California (2005) 545 U.S. 162, 168 (Johnson).)‖
(People v. Scott (2015) 61 Cal.4th 363, 383 (Scott).)
The trial court ruled defendant had not made out a prima facie case of
discriminatory purpose on both occasions. It invited the district attorney to state
reasons for some of the excusals but did not rule on the validity of those reasons.
Under these circumstances, we review the correctness of the court‘s first stage
20
rulings that defendant had not made out a prima case. (Scott, supra, 61 Cal.4th at
p. 386.) We review those rulings independently where, as here, the trial predated
Johnson v. California, supra, 545 U.S. 162 (Johnson), and it is not clear from the
record whether the trial court analyzed the Batson/Wheeler motion under
Johnson‘s standard of an inference of discriminatory purpose. (Scott, at p. 384.)
―Although the question at the first stage concerning the existence of a prima
facie case depends on consideration of the entire record of voir dire as of the time
the motion was made [citation], we have observed that certain types of evidence
may prove particularly relevant. [Citation.] Among these are that a party has
struck most or all of the members of the identified group from the venire, that a
party has used a disproportionate number of strikes against the group, that the
party has failed to engage these jurors in more than desultory voir dire, that the
defendant is a member of the identified group, and that the victim is a member of
the group to which the majority of the remaining jurors belong. [Citation.] A
court may also consider nondiscriminatory reasons for a peremptory challenge that
are apparent from and ‗clearly established‘ in the record (People v. Box (2000) 23
Cal.4th 1153, 1189; see People v. Turner (1994) 8 Cal.4th 137, 168) and that
necessarily dispel any inference of bias. (People v. Taylor (2010) 48 Cal.4th 574,
644; accord, U.S. v. Stephens (7th Cir. 2005) 421 F.3d 503, 518, 516 [‗the
examination of ―apparent‖ reasons in the record . . . involves only reasons for the
challenges that are objectively evident in the record . . .‘ such that ‗there is no
longer any suspicion, or inference, of discrimination in those strikes‘]; cf. Williams
v. Runnels (9th Cir. 2006) 432 F.3d 1102, 1110 [‗refutation of the inference
requires more than a determination that the record could have supported race-
21
neutral reasons for the prosecutor‘s use of his peremptory challenges . . .‘].‖
(Scott, supra, 61 Cal.4th at p. 384.)5
―[A] reviewing court may not rely on a prosecutor‘s statement of reasons to
support a trial court‘s finding that the defendant failed to make out a prima facie
case of discrimination. Although a court reviewing a first-stage ruling that no
inference of discrimination exists ‗may consider apparent reasons for the
challenges discernable on the record‘ as part of its ‗consideration of ―all relevant
circumstances‖ ‘ [citation], the fact that the prosecutor volunteered one or more
nondiscriminatory reasons for excusing the juror is of no relevance at the first
stage.‖ (Scott, supra, 61 Cal.4th at p. 390.)
Accordingly, we now review independently the totality of the
circumstances as they existed when defendant objected to determine whether the
trial court correctly ruled that defendant did not make out a prima facie case of
discrimination. As we explain, we find no error.
b. First Finding of No Prima Facie Case
During jury selection, the court worked with groups of 18 prospective
jurors, 12 of whom would be placed in the jury box and made subject to challenge.
5
Defendant cites the recent decision of Shirley v. Yates (9th Cir. 2015) 807
F.3d 1090, 1101, which stated that a reviewing court may not affirm a finding of
no prima facie case any time the record suggests grounds on which the prosecution
might reasonably have made the challenge at issue. This statement is comparable
to the language from Williams v. Runnels, supra, 432 F.3d at page 1110, quoted in
Scott, supra, 61 Cal.4th at page 384. Shirley and Williams appear correct that
under Johnson, supra, 545 U.S. 162, reviewing courts may not uphold a finding
of no prima facie case simply because the record suggests grounds for a valid
challenge. But we believe Johnson permits courts to consider, as part of the
overall relevant circumstances, nondiscriminatory reasons clearly established in
the record that necessarily dispel any inference of bias. (Scott, supra, 61 Cal.4th at
p. 384; see also U.S. v. Stephens, supra, 421 F.3d 503 [cited in Scott].)
22
When one of the 12 was challenged, another would replace that one and then be
subject to challenge. As needed, more prospective jurors would be added to
replenish the number to 18.
When defendant made his first Batson/Wheeler objection, the prosecution
had used two of its first eight peremptory challenges to excuse two of the five
Hispanic jurors then available for challenge: P.G. and E.A.6 Both prospective
jurors identified themselves as Mexican-American in their jury questionnaire. The
court found no prima facie case but invited the prosecution to state its reasons for
the challenges. Because the two prosecutors, Deputy District Attorneys Susan
Speer and Michael Grosbard, each exercised one of the challenges, each explained
the reasons. The court did not evaluate those reasons but simply denied the
motion.
Regarding P.G., Grosbard said he ―was extremely against the death penalty
on the questionnaire. Always, never, never on the questioning. And here in court
he said he didn‘t like it. He ultimately equivocated, but he — his questionnaire
showed he was extremely against it. We don‘t think he could be fair on the issue.‖
Regarding E.A., Speer said she ―came from a very disturbed background and
indicated she had recent surgery, was on medication. She was abused as a child,
indicated she could probably set that aside, but she indicated she also had medical
problems from the surgery. She was also very anti-death penalty on the
questionnaire.‖
6
Defendant states that only three Hispanic jurors had been subject to
challenge at this point, specifically, E.S., P.G., and E.A. However, the other two,
T.M. and M.M., were called into the box and made subject to challenge shortly
before the prosecution challenged E.A.
23
Exercising two of eight peremptory challenges to excuse two of the five
Hispanic prospective jurors then subject to challenge did not itself provide an
inference of discriminatory purpose. The prosecution had not excused most or all
of the group and did not use a significantly disproportionate number of strikes
against that group. Nothing indicates the questioning was desultory.
As defendant notes, the three defendants were Hispanic and the two murder
victims were not. But many other victims were Hispanic, including attempted
murder victim Medina and the two victims of the particularly vicious assaults with
the stun gun at the Casa Gamino Restaurant. Moreover, the evidence the jury was
to hear indicated the defendants came from Central America. Medina testified he
was from Mexico. The jurors could reasonably infer that at least some of the other
victims, many of whom testified with the aid of an interpreter, came from Spanish-
speaking countries. It is not clear prosecutors would be motivated to excuse
prospective jurors who self-identified as Mexican-American in a case involving so
many apparently Hispanic victims, including at least one from Mexico. This
factor does not support an inference of discriminatory purpose.
Moreover, as initially sworn, the actual jury contained six non-Hispanic
African-Americans, five non-Hispanic Whites, and one Hispanic. This suggests
that, at the time of the motions, it was not clear that the victims belonged to the
group to which a majority of the remaining jurors would belong. It appears none
of the victims were African-American. Accordingly, this factor does not support
an inference of discrimination.
Additionally, the record clearly establishes nondiscriminatory reasons for
the two challenges that dispel any inference of bias. P.G. said he had ―never been
in favor of the death penalty,‖ and he did not believe ―it has been applied in a
standard way to the diverse population of offenders.‖ During voir dire, he
indicated he could impose the death penalty ―if things are very desperate, very
24
clear that it‘s not even,‖ because he accepted that it was the law. But he also said
that he was not in favor of it and would support ―tak[ing] it off the books.‖
E.A. indicated on the questionnaire that she had been sexually abused as a
child and was ―recovering from a brain operation for seizure disorder.‖ She was
on medication and had her doctor‘s permission to serve as a juror. She would
have ―[d]ifficulty‖ to ―judge in terms of the death penalty.‖ Regarding the death
penalty, she wrote, ―I feel sad that we have the death penalty, life is precious to
me. Death penalty is necessary though because of the crime involved. I feel
reluctant to be directly involved with a decision regarding the death penalty.‖ She
added, ―I understand the penalty of death. I do not want to be in a position to
make a decision on this penalty.‖ During voir dire, she indicated that choosing life
would not be an ―emotional decision,‖ Choosing death would be ―difficult,‖ but
she could ―detach‖ herself.
All of these circumstances support the conclusion that the prosecution
excused these jurors for nondiscriminatory reasons and not due to group bias.
These reasons, apparent from the record, are included in the actual reasons the
prosecutors stated. This is no coincidence. The mere fact the prosecutors stated
the reasons is not relevant to support a finding of no prima facie case. But the
reasons apparent from the record and the reasons the prosecutor stated will
generally, if not always, coincide.
Defendant notes that the prosecution challenged for cause another of the
Hispanic prospective jurors, E.S., who eventually became an actual juror, on the
basis that the juror had difficulty understanding the proceedings. The court denied
the challenge. A prosecutor (and indeed any party) is entitled to challenge
prospective jurors for cause. (People v. Kelly (2007) 42 Cal.4th 763, 780.)
Although a specious challenge for cause might in some circumstances support an
inference of bias in a prosecutor‘s peremptory challenges, nothing in this record
25
suggests the challenge was specious. The record indicates the trial court was
concerned that E.S. might have trouble with English, was probably not well
educated, and offered a somewhat inappropriate response suggesting he would
have a problem with the age of the defendants. Moreover, the prosecutor did not
challenge this juror peremptorily.
The totality of the circumstances as they existed at the time of the court‘s
first ruling did not suggest an inference of discriminatory purpose. The court
properly found no prima facie case.
c. Second Finding of No Prima Facie Case
After the court denied the first Batson/Wheeler motion, jury selection
continued. The prosecution accepted the jury multiple times with three Hispanic
prospective jurors on the panel while the defendants continued exercising
peremptory challenges.
During this time, Prospective Juror R.F. was called. He was the sixth and
final Hispanic to be called other than those excused for cause or hardship. R.F.
provided no response when asked his racial or ethnic background on the
questionnaire, and the record does not otherwise indicate his race or ethnicity; he
qualifies as Hispanic because he has a Spanish surname. Outside the presence of
the jury, defendant‘s attorney challenged R.F. for cause for reasons not clear from
the record. The court denied the challenge, stating, ―I hope somebody excuses
him, but I don‘t believe it rises to cause.‖ When back in front of the jury, the
prosecution exercised a peremptory challenge against R.F.
Later, defendant challenged one of the three remaining Hispanic jurors.
After this, the prosecution accepted the jury two more times with the two
remaining Hispanic prospective jurors on it. Then, after the defendants exercised
additional peremptory challenges, the prosecution challenged Hispanic
26
Prospective Juror T.M. On her questionnaire, she identified herself as
―Hispanic/white.‖
At this point, defendant made his second Batson/Wheeler objection,
pointing out that the prosecution had challenged four of the six prospective
Hispanic jurors subject to peremptory challenge. The court again found no prima
facie case but invited the prosecution to ―make a record with respect to [T.M.].‖
The prosecutor stated his reasons for that challenge: ―She had some equivocation
about the death penalty in her jury questionnaire. She indicated that: Police are
fair most of the time. Sometimes I get the impression they prejudice people on
how they look. She had mixed feelings about the death penalty. On page 20:
Could you see yourself rejecting life and choosing the death penalty instead? She
wrote no. She does work for the Department of Children Services [sic]. I think
she would tend to be more sympathetic to the problems of the defendants in the
penalty phase. She seemed more in tune with the defense attorneys than she was
when the prosecution voir dired her. She had some problems with immunized
witnesses on her questionnaire.‖ The court did not evaluate those reasons but
instead reiterated that it found no prima facie case.
The totality of the circumstances that existed at the time of this second
objection also did not support an inference of a discriminatory purpose.
Defendant stresses that at this point, the prosecution had exercised four of its 10
peremptory challenges to challenge four out of six (i.e., two-thirds) of the
prospective Hispanic jurors, which meant that, after defendant challenged another
of the Hispanic prospective jurors, only one Hispanic individual was actually on
the jury. It appears that, as of this time, 19 percent of the jurors subject to
challenge (six of 32) were Hispanic. Considered alone, these circumstances might
suggest a discriminatory purpose, but under the totality of circumstances, they do
not. The prosecution challenged R.F. immediately after defendant himself had
27
challenged R.F. for cause, and the court, while denying the cause challenge, had
stated the wish that someone would excuse him. This circumstance strongly
suggests a nondiscriminatory purpose for the challenge.
Additionally, before the prosecution finally challenged T.M. (as well as
R.F.) it had accepted the jury several times with three and then, after defendant
challenged one, two Hispanic jurors on it. This circumstance, although not
dispositive, ―strongly suggests that race was not a motive behind the challenge.‖
(People v. Kelly, supra, 42 Cal.4th at p. 780; see People v. Cunningham (2015) 61
Cal.4th 609, 664; People v. Clark (2011) 52 Cal.4th 856, 906.)
Additionally, the record clearly establishes nondiscriminatory reasons for
challenging T.M. On the questionnaire, she answered ―Yes‖ when asked whether
she had ―moral, ethical or religious beliefs that would make it difficult for you to
vote for‖ the death penalty, explaining that ―it would be hard, but it depends on the
overall crime.‖ After stating that she could return a verdict of life imprisonment,
she answered ―No‖ to the question: ―Given the fact that you have two options
available to you, can you see yourself, in the appropriate case, rejecting life
imprisonment without the possibility of parole and choosing the death penalty
instead.‖ During voir dire, she said she could vote for the death penalty, but her
questionnaire answers provided a strong reason for a prosecutor to excuse her out
of concern about her views and not for a discriminatory purpose.
Defendant notes that the court did not invite the prosecution to state its
reasons for excusing R.F. But because defendant himself had just challenged that
juror for cause, and the court had expressed the wish that someone would excuse
him, such an explanation was hardly necessary.
Defendant asks us to engage in comparative juror analysis, but such
analysis is inappropriate in a first stage case such as this, where we do not evaluate
the prosecution‘s stated reasons for the challenges. (People v. Taylor, supra, 48
28
Cal.4th at pp. 616-617.) Moreover, even if we were to engage in comparative
juror analysis in this situation, it would not aid defendant for the reasons stated in
Justice Liu‘s concurring opinion.
In short, the totality of the relevant facts as of the time of the objections
does not give rise to an inference of a discriminatory purpose. The trial court
properly denied the Batson/Wheeler objections.
B. Guilt Phase Issues
1. Admission of Two Witnesses’ Preliminary Hearing Testimony
The prosecution could not locate three witnesses at the time of trial and
sought to have their preliminary hearing testimony admitted. The court denied the
request as to one witness, finding the prosecution had not shown due diligence in
locating him. It admitted the preliminary hearing testimony of the other two
witnesses — Eduardo Rivera and Rosa S. Defendant contends the court erred as
to these two witnesses.
a. Applicable Legal Principles
A criminal defendant has a state and federal constitutional right to confront
witnesses, but the right is not absolute. If a witness is unavailable at trial and has
given testimony at a previous court proceeding against the same defendant at
which the defendant had the opportunity to cross-examine the witness, the
previous testimony may be admitted at trial. In a criminal case, the prosecution
bears the burden of showing that the witness is unavailable and, additionally, that
it made a ―good-faith effort‖ (Barber v. Page (1968) 390 U.S. 719, 725) or,
equivalently, exercised reasonable or due diligence to obtain the witness‘s
presence at trial. (People v. Cromer (2001) 24 Cal.4th 889, 892 (Cromer); see
People v. Valencia (2008) 43 Cal.4th 268, 291-292 [―California law and federal
constitutional requirements are the same in this regard.‖].)
29
―[T]he term ‗due diligence‘ is ‗incapable of a mechanical definition,‘ but it
‗connotes persevering application, untiring efforts in good earnest, efforts of a
substantial character.‘ ‖ (Cromer, supra, 24 Cal.4th at p. 904.) Relevant
considerations include the timeliness of the search, the importance of the witness‘s
testimony, and whether leads were competently explored. (Ibid.) The reviewing
court defers to the trial court‘s determination of the historical facts if supported by
substantial evidence, but it reviews the trial court‘s ultimate finding of due
diligence independently, not deferentially. (People v. Bunyard (2009) 45 Cal.4th
836, 851 (Bunyard); Cromer, supra, 24 Cal.4th at p. 900-901.)
b. Eduardo Rivera
Defendant agreed that the due diligence question regarding Eduardo Rivera
could be based on the district attorney‘s offer of proof, which included the
following. After the crime, Rivera, a Mexican national, told others that ―he was
distraught and was having a lot of mental and psychiatric problems as a result of
witnessing the killing.‖ Several months before trial, he told various people that
―he was returning to Mexico to buy a plot of land and was not planning to return.‖
Around April 1994 (i.e., six months before the October 13, 1994 hearing), after a
fourth suspect was arrested in these crimes, the district attorney‘s office attempted
unsuccessfully to locate Rivera. Two investigators ―found the same information,
that everyone told him he had left, he was no longer at his former address or
former employment or former phone numbers.‖
Since April 1994, Will Abram, an investigator with the district attorney‘s
office, had tried to locate Rivera. With the assistance of the Immigration and
Naturalization Service, he determined that Rivera was, in fact, a Mexican national.
Abram located Rivera‘s brother on September 23, 1994, living in the San
Francisco area, who confirmed that Rivera had ―returned to Mexico with no
30
definite plans to return at this time.‖ The brother could not give a telephone
number for Rivera because he had no telephone. The location was ―a small village
outside of Guadalajara which, to our information, has one phone. His brother has
made several attempts to leave messages at that phone to have his brother return
his call, to no avail.‖
Abram also told the court that the last conversation with the brother ―was
on October 4, last week, and the brother reiterated at that time that he made
several attempts to call and left messages for his brother to return the call and he
has not heard from Mr. Rivera yet.‖
Based on these facts, the court found that the prosecution had exercised due
diligence to obtain Rivera‘s presence at trial and admitted his preliminary hearing
testimony.
At trial, defendant argued that the prosecution should have sent an
investigator to Mexico to try to find Rivera and convince him to come to
California voluntarily to testify. On appeal, relying on cases that postdate the trial,
he also argues that the prosecution should have made use of a treaty between
Mexico and the United States that took effect in 1991 and that, as one of the cases
defendant cites describes it, ―allows the prosecution to request the assistance of
Mexican authorities to invite a person in Mexico to come to California and testify
and to inform the person concerning the extent to which expenses will be paid.‖
(People v. Sandoval (2001) 87 Cal.App.4th 1425, 1439, fn. omitted (Sandoval);
see People v. Herrera (2010) 49 Cal.4th 613, 626-627 & fn. 7.)
The Attorney General argues that defendant has forfeited the claim that the
prosecution should have made use of the treaty because he did not make that
argument at trial. We disagree. Defendant objected to the admission of the
preliminary hearing testimony and argued the prosecution had not shown due
diligence in procuring the witness‘s presence. Given that the prosecution has the
31
burden of showing due diligence, this objection was sufficient to preserve the
contention. The argument at trial need not be identical to the appellate argument
in all respects. However, the circumstance that no one suggested the prosecution
make use of the then very recent treaty is relevant to the question of whether the
prosecution had made a good faith effort, i.e., exercised due diligence, to obtain
the witness. The prosecution must do what is reasonable under the circumstances,
not necessarily everything that can be suggested in hindsight.
Under the circumstances here, we conclude the prosecution exercised due
diligence. It determined that Rivera had left California and returned to his native
Mexico, and was apparently living in a village with only one communal telephone.
It located Rivera‘s brother, who tried, unsuccessfully, several times to contact
Rivera. It is speculative to believe that additional efforts would have resulted in
finding him and convincing him to return voluntarily to the United States to
testify.
Nor was Rivera‘s testimony particularly important. (Cromer, supra, 24
Cal.4th at p. 904.) Rivera, although important in the sense that he positively
identified defendant as the perpetrator of very serious crimes, was but one of many
witnesses, whose testimony was consistent and who overwhelmingly established
defendant‘s guilt of the crimes about which Rivera testified. In a case like this,
with dozens of witnesses, there is a limit to what one can expect the prosecution to
do to procure the attendance of a noncritical witness.
Defendant relies on Sandoval, supra, 87 Cal.App.4th 1425. But, unlike that
case, Rivera was not a ―crucial witness.‖ (Id. at p. 1428.) Nor, also unlike
Sandoval, had the prosecution established contact with Rivera.
We conclude the trial court correctly found the prosecution exercised due
diligence to try to locate Rivera and properly admitted his preliminary hearing
testimony.
32
c. Rosa S.
Rosa S. was 13 years old at the time of the events about which she testified
(May 1992), 14 years old when she testified at the preliminary hearing (March
1993), and 16 years old at the time of the due diligence hearing on October 13,
1994. It appears she gave birth to a baby in January 1994, several months before
the due diligence hearing.
Rosa had testified at the preliminary hearing under a grant of use immunity.
Before she testified, the prosecution informed the court that it was having
difficulty locating her. Two days later, it stated that it had finally located her the
previous day when she was arrested in an unrelated matter. It requested that she
be held to testify as a material witness under Penal Code section 1332. (See
Bunyard, supra, 45 Cal.4th at p. 847.) The court ordered $20,000 bail be set to
ensure her testimony. Two days later, after she had testified on direct examination
and cross-examination had begun, the prosecution asked the court to set no bail at
all because the witness had ―indicated she has wanted to stay on the street, not any
intention of returning home or resurfacing in this case.‖ The court maintained the
$20,000 bail, and Rosa completed her testimony.
At trial, the prosecution informed the court it could not locate Rosa, and a
due diligence hearing was held, based on representations from the two prosecutors
and the testimony of investigator Will Abram.
The prosecutor stated that Rosa ―has always been very cooperative in terms
of testifying in this matter and providing information.‖ On May 4, 1994, after a
fourth suspect in these robberies had been arrested, one of the prosecutors and
Deputy Perales, the investigator who later testified at trial, visited her in Pomona.
That prosecutor described her at that time as ―very friendly, very cooperative. She
gave us the name of her social worker, her home number, her home address.‖ The
prosecutor told Rosa that she would be needed to testify at the preliminary hearing
33
against the fourth defendant and in this trial in September. ―She indicated she did
not want to do it, but she would, that she understood that she needed to tell the
truth and to be available.‖ At that time, the prosecution served her with a
subpoena to attend a live lineup on May 16, 1994, involving the fourth defendant
and with a subpoena to appear on September 7, 1994, in this matter. She did
appear at the live lineup as scheduled, at which time she was again served with a
subpoena to appear on September 7.
According to one of the prosecutors, during this time Rosa ―continued to
exhibit cooperativeness with the district attorney‘s office in this matter, such that
we didn‘t expect to have difficulties finding her.‖ He explained, ―We go back to
her prior history. She was a runaway and that was the only thing that we
understood was the problem in contacting her was that she kept running away
from her parents. Once she was no longer with her parents, we did not expect to
have any of the problems that have occurred.‖
That May, Rosa also told the prosecutor that ―she had not yet turned herself
in on the outstanding warrant from Pomona.‖ When told that she needed to turn
herself in, ―[s]he agreed that she would clear up the matter.‖
The prosecutor and Deputy Perales visited Rosa again in July 1994. She
had moved to Montclair in the meantime. They told her that the preliminary
hearing regarding the fourth defendant and the trial in this case was coming up.
She again said she had not yet turned herself in. ―Detective Perales again told her
that she had to turn herself in or she would be picked up on the warrants
immediately.‖ Rosa agreed to do so.
In August 1994, the prosecutors learned that Rosa had in fact turned herself
in and the Pomona matter was disposed of, with a final hearing scheduled for the
following October 14 (i.e., the day after the due diligence hearing). During
August, she had been in custody in that matter for several days. Then, according
34
to one of the prosecutors, Rosa ―was released to her parents pending a pickup by
the community detention program.‖ When the deputy district attorney handling
Rosa‘s Pomona matter asked the prosecution in this case what it wanted done with
her in that matter, the prosecutor, ―knowing that she had been cooperative with us
and knowing that she now had an address that was different from the address that
she had been running away from, that of her parents, we indicated that we don‘t
have a problem with her release as long as there is electronic surveillance with
her.‖
The prosecutor explained further, ―Between the time she testified at the
preliminary hearing and the time she was served with the subpoena, she had a
baby. We believed this to lend her some stability. She also is collecting checks
from, I believe, D.P.S.S. [Department of Public Social Services], and we agreed to
the release on the community detention program, but there were no promises
whatsoever made to [Rosa] in exchange for cooperation or anything like that. It
turns out, as I see from the minute order from the juvenile court which sustained
her petition, that she was released to her parents. This is the place that she had
been running away from. She was released to them pending the installation of the
electronic surveillance device. The very night she was released to her parents, she
left. We have not been able to find her since.‖ The Pomona court issued a
warrant for her arrest on August 19, 1994.
Investigator Abram testified about his efforts to locate Rosa after her
release from custody in August 1994. (All dates mentioned in his testimony are to
the year 1994.) He began trying to find her on August 31, when he went to her
last known address and spoke to the manager, who said he did not recognize
Rosa‘s photograph. The next day, he contacted the Department of Public Social
Services, and was told the person assigned to Rosa‘s case was on vacation until
the following Tuesday. He also called the clerk of the Pomona court that had
35
handled her case, who gave him the telephone number of the attorney who had
represented her. He called that number, but it was disconnected and there was no
new number. He called the State Bar and was given a number for the attorney, but
it was also disconnected. He also called the community detention program that
Rosa was supposed to be on and spoke with a person who said she would research
the matter and call him back.
On September 7, Abrams spoke with the assigned case worker with the
Department of Public Social Services, who gave him a new address for Rosa in
Pomona. He went to the apartment at that address and spoke with Naomi Rojas,
who said that Rosa had come to the apartment on September 1 to pick up her
welfare check, but that she had not lived there for two months. Rojas said she was
the sister of the man who was reportedly the father of Rosa‘s baby. However,
Rojas said, ―shortly after the baby was born, [Rojas] and her mother . . . found out
this was actually not their brother‘s baby. Difficulties arose. That is why [Rosa]
was no longer living with them. She said she had no idea where [Rosa] was
living.‖ Rojas gave Abram the baby‘s name and date of birth. He called the
caseworker at the Department of Public Social Services, and she agreed to hold
Rosa‘s check and call him if Rosa called in with a new address.
Abram also contacted the deputy district attorney assigned to Rosa‘s
Pomona case, who checked the file and verified that ―Rosa had inadvertently not
been placed on the electronic home surveillance.‖ He spoke with the probation
officer assigned to Rosa‘s case, who told him that ―through some paper mishap
Rosa was placed on an informal probation status and . . . that is why she was not
placed on this home detention program.‖ On September 12, he obtained a copy of
the juvenile court‘s minute order and August 19 arrest warrant.
On September 15, Abram received a call from the Department of Public
Social Services case worker, who said Rosa had called that morning and given her
36
a new address in Pomona. He asked her to continue to hold Rosa‘s welfare check
until he visited that address. On September 20, he spoke with Rosa‘s father, who
told him he picked his daughter up on August 19, and she ran away the next day.
He filled out a missing person‘s report with the sheriff, and did not know where
Rosa was. Abram also went to Rosa‘s new address and spoke with Lucy
Espinoza, who was living at the apartment. She told him Rosa had been living at
the next-door apartment with Naomi Rojas and her mother. She had received a
telephone message from Rosa on September 17 that just left her name. Abram
told her he was looking for Rosa, not because she was in trouble, but because he
was trying to help her and needed her to testify in court. Espinoza ―expressed
concern for Rosa because she felt Rosa was very young and easily misled and she
would assist me in any way possible.‖
On September 29, Abram again spoke with the caseworker and asked her to
continue to hold the welfare check because Rosa was not living at the new
address. She told him she could not stop the check from being mailed. On
October 1, he returned to the last known address and spoke again with Espinoza.
He took the welfare check from her and told her to have Rosa call him when she
came to pick it up. He gave her a 24-hour number at which he could be reached.
On October 2, he told one of the prosecutors that he had the check and expected
Rosa to call him. On October 12, he again called Espinoza, who said she had not
seen or heard from Rosa. He also verified that he would be notified if and when
Rosa was brought in on the arrest warrant.
On cross-examination, defense counsel ascertained that Abrams had not
tried to contact Naomi Rojas‘s brother, the purported father of Rosa‘s child.
Abrams further testified that Rosa‘s father had told him that before he remarried,
―he and his daughter got along fine. Once he remarried, his daughter did not get
along with his new wife and it created these types of problems. She has been a
37
runaway apparently a year and a half or close to two years, and we are talking
about a girl that is only 16 years old now.‖
At the end of the hearing, the court ruled: ―I think there is due
diligence. . . . [I]n terms of what the People did and the way it ended up, resulting
in the contact made in August, the fact she showed up on the warrant to attend the
lineup, her cooperativeness other than the apparent problems she had with her
father . . . . I don‘t know what else they could have done other than your saying
she should have been kept in custody from August. In light of the way it was
presented, I don‘t think the D.A.‘s decision to let her go was unreasonable.‖
Defendant makes two arguments. First, he argues that on August 19, 1994,
the prosecution should have asked the juvenile court to keep Rosa in custody until
her appearance at trial. Second, he argues that Abram‘s efforts to locate her were
insufficient. We disagree on both points.
―[W]hen the trial court errs in releasing a material witness from custody,
which results in the witness becoming unavailable for testimony, and the
prosecution supports that release, the prosecution may be held to have not
exercised reasonable diligence.‖ (Bunyard, supra, 45 Cal.4th at p. 849.) ―The
decision to detain in custody a material witness involves weighing important
competing rights. . . . [¶] . . . The unjustified deprivation of a material witness‘s
liberty is a violation of the due process clauses of the federal and state
Constitutions.‖ (Id. at p. 849-850.) Thus, the defendant‘s right to confront
witnesses must be balanced ―against the substantial due process right of the
witness, who has not been charged with a crime, to not be unreasonably
incarcerated.‖ (Id. at p. 851.) ―To have a material witness who has committed no
crime taken into custody, for the sole purpose of ensuring the witness‘s
appearance at a trial, is a measure so drastic that it should be used sparingly.‖
(People v. Cogswell (2010) 48 Cal.4th 467, 477.)
38
Under the circumstances, we agree with the trial court that the prosecution
was not required to try to keep Rosa in custody until she testified. The trial court
credited the prosecution‘s statements that Rosa had been cooperative, and that it
did not believe it would be difficult to obtain her trial testimony. Defendant
argues this asserted belief ―was at best unreasonable and more likely
disingenuous.‖ But the evidence supports the court‘s finding regarding what the
prosecution actually believed, and we will defer to it. Whether, as the trial court
also found, the belief was reasonable under the circumstances is something we
will decide independently.
Defendant notes, as he did in the trial court, the prosecution‘s very different
attitude during the preliminary hearing, when it informed the court it was having
difficulty locating Rosa and took steps to ensure her testimony. But the two
situations are not necessarily inconsistent. Before she testified at the preliminary
hearing, the prosecutors presumably had little experience with her and, given the
difficulties in locating her and her statements to them, they were reasonably
concerned that she might not cooperate. But she did testify. In the interim
between the preliminary hearing and the trial, they had numerous contacts with
Rosa. The prosecutors said she was consistently cooperative, and the record
provides no reason for this court to conclude otherwise. She did in fact honor the
subpoena to appear at a live lineup regarding the new fourth suspect. Defendant
argues that her appearance at that time is irrelevant. On the contrary, her
cooperation was highly relevant to whether the prosecution reasonably believed
she would appear at trial.
It is true that the record reflects Rosa‘s unstable lifestyle. She was a
runaway and lived at various locations. But, as the prosecution believed, the fact
she had recently given birth might have lent her more stability. Moreover, the risk
that, despite her apparent cooperation, she might not appear to testify had to be
39
balanced against her liberty interest. Although there was an unrelated juvenile
matter against her, she was charged with no crime in this case, and no evidence
exists that she committed any. The necessary period of incarceration to ensure her
testimony would have been lengthy. Defendant notes that she had been
subpoenaed for the date trial was scheduled to begin, September 7, 1994, which
was less than three weeks after her release from juvenile court custody. But the
evidence portion of trial would not begin for weeks after that. The due diligence
hearing was held on October 13. Presumably, if Rosa had been in custody, she
could have testified earlier than that. But the evidence portion of trial did not
begin until September 26, 1994. Even if she were to testify that first day, she
would have been in custody for some 38 days for the sole purpose of ensuring her
testimony. Especially given the fact that Rosa had a several-month-old baby at the
time, we find reasonable the prosecution‘s decision not to adopt this ―drastic‖
measure that ―should be used sparingly.‖ (People v. Cogswell, supra, 48 Cal.4th
at p. 477.)
We also agree with the trial court that the prosecution exercised due
diligence in trying to locate Rosa after her August 19, 1994 release in the juvenile
proceeding. ―[D]iligence has been found when the prosecution‘s efforts are
timely, reasonably extensive and carried out over a reasonable period.‖ (Bunyard,
supra, 45 Cal.4th at p. 856.) Defendant argues the prosecution‘s efforts were too
little and too late. But beginning the search on August 31, only 11 days after her
release, was reasonable. Investigator Abram made reasonable efforts to try to
locate her, including pursuing several leads and trying to withhold her welfare
check to motivate her to contact him. Defendant suggests other measures Abram
might have taken, such as trying to contact the reported father of Rosa‘s baby, who
might have been in prison at the time. Additional measures can always be
suggested. ―But these suggestions do ‗not change our conclusion that the
40
prosecution exercised reasonable diligence. ―That additional efforts might have
been made or other lines of inquiry pursued does not affect this conclusion.
[Citation.] It is enough that the People used reasonable efforts to locate the
witness.‖ ‘ ‖ (People v. Valencia, supra, 43 Cal.4th at p. 293.)
Accordingly, we conclude the trial court did not err in admitting Rosa‘s
preliminary hearing testimony.
2. Other Contentions Regarding Rosa S.’s Testimony
Defendant makes two additional arguments regarding Rosa S.‘s preliminary
hearing testimony.
a. Admission of Hearsay Statement
After the court ruled that Rosa S.‘s preliminary hearing testimony was
generally admissible at trial, the court and parties discussed that testimony in
detail to determine which specific portions were admissible. The court excluded
as hearsay Rosa‘s testimony that Navarro had told her that defendant ―had shot a
cop,‖ and that Navarro and defendant each purchased a car. It also ruled that
statements by Navarro indicating that he had committed robberies was admissible
only against Navarro, and it so admonished the jury.
During the actual reading of the preliminary hearing testimony, the
prosecutor inadvertently included Rosa‘s testimony that Navarro had told her that
defendant ―had shot the cop,‖ for which he apologized outside the jury‘s presence.
The court granted defendant‘s motion to strike that testimony and admonished the
jury to disregard it.
In addition, a taped statement Rosa made to the police the day Navarro was
arrested was played over defendant‘s objection at both the preliminary hearing and
again at trial as either prior inconsistent or prior consistent statements. (As
regarding defendant, that statement was consistent with her preliminary hearing
41
testimony.) It appears this statement was not redacted to exclude Navarro‘s
hearsay statements. Accordingly, the jury heard the following. Rosa said that
defendant had told her that he had shot the police officer. Additionally, she said,
―And [Navarro] told me, all of them know that.‖ Later, she said that defendant
and Navarro had each bought a car with money ―from another store robbery‖
about three or four months previously in which they each obtained about $14,000.
Defendant contends these statements from the taped statement were hearsay
and not admissible against him. He argues that admitting these statements
violated his constitutional right to confront witnesses, specifically his right to
confront Navarro. (See Bruton v. United States (1968) 391 U.S. 123; People v.
Aranda (1965) 63 Cal.2d 518.) The record is not entirely clear, but it appears the
source of the information about ―another store robbery‖ was Navarro, not
defendant, and we will assume that is the case. It is also not clear whether the
court intended to admit these hearsay statements from the taped statement after it
had excluded comparable statements from Rosa‘s preliminary hearing testimony,
or whether the statements were simply overlooked in the complex and lengthy
discussions over which portions of the preliminary hearing testimony to admit and
which to exclude.
What is clear, however, is that any error in admitting these portions of the
taped statement was harmless beyond a reasonable doubt. (People v. Livingston
(2012) 53 Cal.4th 1145, 1159.) Because Rosa specifically testified that defendant
told her he shot the police officer, her statement that Navarro had said the same
thing could not have been prejudicial. Her statement that defendant had
committed a previous robbery was also nonprejudicial. The jury heard
overwhelming evidence that defendant had committed not one but six previous
robberies. Indeed, defendant conceded his identity regarding some of the
robberies. For example, in addition to the many eyewitness identifications, he left
42
behind one of his shoes when fleeing the Ofelia‘s Restaurant robbery, and jewelry
from some of the robberies was found concealed on his person when he was
arrested. Given this evidence, Rosa‘s mention of a previous store robbery was
innocuous.
b. Limitation on Cross-examination
At the preliminary hearing, defendant cross-examined Rosa S. at length.
When she was found in the car with Navarro on May 31, 1992, she was arrested
and charged in an unrelated matter in Pomona. Much of the cross-examination
concerned this other matter and whether she was promised or expected any benefit
in that matter for her testimony in this case, generally eliciting denials of any such
promise or expectation. She said that, other than that she would have to testify,
she did not discuss this case with those involved in the Pomona case, including her
Pomona attorney. Counsel also elicited testimony that before her preliminary
hearing testimony, she had discussed this case with the two prosecutors and
Deputy Perales, the investigator in this case. Additionally, defense counsel
elicited from her that she had refused to speak with him when she had the
opportunity to do so, and that she had initially lied to the police and court about
her name and age.
When Rosa‘s preliminary hearing testimony was read to the jury, the jury
was also informed that she had been given immunity for her testimony regarding
any nonviolent crimes; that when she invoked her Fifth Amendment right to
remain silent, the court ordered her to testify under the grant of immunity; that she
was in custody when she testified; and that, after her testimony, she had been
released from her custody status regarding this case.
At the preliminary hearing, the court sustained prosecutorial objections to
questions regarding who else she had talked to about the Pomona case and who
43
else other than her attorney she had talked to in the ―Van Nuys courtroom,‖
apparently referring to the courtroom involved in this case. Defendant contends
this limitation violated his constitutional right to confront and cross-examine Rosa.
A criminal defendant‘s constitutional right to confront witnesses is violated
when the court prohibits the defendant from conducting otherwise appropriate
cross-examination designed to show a prototypical kind of bias on the witness‘s
part, and thereby provide the jury with facts from which it could appropriately
draw inferences regarding the witness‘s reliability. But not every restriction on a
defendant‘s cross-examination violates the Constitution. The trial court retains
wide latitude to restrict repetitive, prejudicial, confusing, or marginally relevant
cross-examination. Unless the defendant can show that the prohibited cross-
examination would have created a significantly different impression of the
witness‘s credibility, the trial court‘s exercise of discretion to restrict cross-
examination does not violate the constitutional right of confrontation. (Delaware
v. Van Arsdall (1986) 475 U.S. 673, 680; People v. Capistrano (2014) 59 Cal.4th
830, 866; People v. Virgil (2011) 51 Cal.4th 1210, 1251.)
We see no constitutional violation in the slight restriction the preliminary
hearing court imposed. Defense counsel was given wide latitude to cross-examine
Rosa, including whether and to what extent she expected or hoped that her
testimony would benefit her in the Pomona case. Counsel elicited that Rosa spoke
with the investigators and prosecutors in this case, who were the ones who would
be expected to offer her benefits for her testimony, if anyone did. She testified
that she did not discuss this case with the people in Pomona (other than regarding
that she would have to testify). Further testimony regarding exactly who she
spoke with in Pomona would not significantly affect the credibility of this
testimony.
44
Moreover, no significant reason existed for the jury to doubt Rosa‘s general
credibility. Her testimony regarding defendant was consistent with her initial
taped statement. The main thrust of that testimony was that she heard defendant
say he shot the police officer, something a 13-year-old girl would be expected to
understand and remember. Although she originally lied about her age and name,
was a runaway, and refused to discuss the case with the defendant‘s attorney, none
of these circumstances would likely provide a motive to lie about defendant.
Perhaps most importantly, her testimony was entirely consistent with the
remaining evidence. The evidence established that one of the gunman in the
George‘s Market robbery shot and killed Officer Hoglund, and that defendant was
one of those gunman (among other items of evidence, his image was captured on
the videotape). So the only remaining question regarding who shot Officer
Hoglund was whether defendant was that gunman. Defendant looked nothing like
the other gunmen and wore a distinctive striped shirt, unlike the shirts the other
gunmen wore. Accordingly, the jury could readily conclude that Medina was not
mistaken in his testimony that defendant was the gunman who shot Officer
Hoglund and pointed the gun at him.
The ballistics evidence also strongly corroborated Rosa‘s testimony. One
gun was fired at all three robberies that involved gunfire: those at the Woodley
Market, Ofelia‘s Restaurant, and George‘s Market. Many witnesses identified
defendant as the shooter at Ofelia‘s Restaurant (where the shooter left behind a
shoe that the parties stipulated belonged to defendant) and at Woodley‘s Market,
thus strongly showing that defendant was the one who fired that weapon on all
three occasions.
In light of all this, the prohibited cross-examination would not have
produced a significantly different impression of Rosa‘s credibility and,
accordingly, it did not violate defendant‘s right to confront her.
45
3. Admission of Evidence of Uncharged Crime
Over defense objection, and after a hearing, the court admitted evidence of
the uncharged incident at Rod‘s Coffee Shop, during which defendant was stopped
while driving a car containing a stun gun. Defendant contends the court erred in
violation of various constitutional rights. We conclude the court acted within its
discretion.
When the court first considered the matter, it ruled that if defendant
conceded the question of identity regarding the Casa Gamino robbery (the one
during which the stun gun was used), it would disallow evidence of the incident at
Rod‘s Coffee Shop because ―the prejudice outweighs the probative value where
[identification] is no longer in issue at the Casa Gamino robbery.‖ But it invited
the prosecution to revisit the question if, in fact, defendant did dispute identity
regarding that robbery.
Later, when it became apparent that defendant was in fact challenging his
identity as the one who used the stun gun during the Casa Gamino robbery, the
court admitted evidence of the incident at Rod‘s Coffee Shop. It explained that
the stun gun ―is so unique and so unusual. In fact, in all my years in the justice
system, whichever side of the bench I was on, I have never seen an electrical
device being used. . . . I don‘t think it matters that it wasn‘t the same one, but it is
so unique that I think under all the case law that permits [evidence under Evidence
Code section 1101] where it is material, there‘s no other rule that would not permit
it, and under [Evidence Code section] 352 I think the probative value far
outweighs any prejudice or confusion that arises from it.‖ It gave a limiting
instruction regarding how the jury could consider the evidence.
Evidence of other crimes is generally not admissible merely to show a
criminal disposition, but it may be admitted if relevant to show a material fact
such as identity. (Evid. Code, § 1101; cf. Evid. Code, § 1108 [special rule
46
concerning evidence of sex offenses].) The admissibility of such evidence
depends on (1) the materiality of the facts to be proved; (2) the tendency of the
evidence to prove those facts; and (3) the existence of a rule or policy, such as that
of Evidence Code section 352, requiring exclusion of the evidence. (People v.
Kelly, supra, 42 Cal.4th at p. 783.) ―Because substantial prejudice is inherent in
the case of uncharged offenses, such evidence is admissible only if it has
substantial probative value. [Citation.] This determination lies within the
discretion of the trial court.‖ (Ibid.) Here, the court admitted evidence of the
incident at Rod‘s Coffee Shop primarily on the question of defendant‘s identity as
the one who used the stun gun during the Casa Gamino robbery. ―For identity to
be established, the offenses must share common features that are so distinctive as
to support an inference that the same person committed them.‖ (People v. Scott
(2011) 52 Cal.4th 452, 472.)
As the trial court found, possessing a stun gun was unusual, especially in
1990 and 1992. Because the police seized the first stun gun in 1990, obviously a
different one was used in the 1992 Casa Gamino robbery. But the evidence
showed that both were functioning and, when activated, emitted similar blue
sparks. The narrow question on which the evidence was most probative was
which of the Casa Gamino robbers used the stun gun. The facts that defendant
participated in activity that a jury could reasonably conclude was a prelude to a
robbery similar to the ones he later committed, and that a stun gun was in his car,
support a reasonable inference that defendant was that person. No evidence
connected any of the other robbers to a stun gun. Whether defendant wielded the
stun gun was certainly material at trial. Moreover, the evidence was not
particularly prejudicial. Because no robbery actually occurred, the uncharged
incident was not nearly as inflammatory as the charged crimes. The court
47
therefore acted within its discretion in finding the probative value outweighed any
undue prejudice.
Defendant also argues that, because the gun was under the passenger seat
and he was the driver, the evidence was insufficient to support a finding by a
preponderance of the evidence that he had possessed the stun gun. (See People v.
Carpenter (1997) 15 Cal.4th 312, 382 [preponderance of the evidence is the
proper standard for uncharged crimes].) But the jury could have readily inferred
that defendant, the driver, who appeared to be acting in tandem with the others in
the car, knew of the gun and had control over it. We see no error.
4. Sufficiency of the Evidence as to One of the Robberies
Defendant contends the evidence was insufficient to support his conviction
for robbing Arturo Flores at the Mercado Buenos Aires market. We agree and
reverse defendant‘s conviction and sentence for that robbery.
To decide whether the evidence is sufficient to support a jury verdict, ―a
reviewing court reviews the entire record in the light most favorable to the
judgment to determine whether it discloses evidence that is reasonable, credible,
and of solid value such that a reasonable jury could find the defendant guilty
beyond a reasonable doubt.‖ (People v. Rountree (2013) 56 Cal.4th 823, 852-
853.)
Flores testified at the preliminary hearing that one of the gunmen took his
wallet. However, he could not be located to testify at trial and, after a hearing, the
court ruled that the prosecution had not exercised due diligence to obtain his
presence at trial. Accordingly, the court refused to admit his preliminary hearing
testimony. No witness who actually testified at trial observed Flores‘s property
being taken. Witnesses testified that the four persons Flores was with in the
bathroom were robbed: Manuel Rodriguez, Paul Rodriguez, Clelia Rodriguez,
48
and Dario de Luro. Additionally, Manuel Rodriguez testified that he ―think[s]‖
others, which probably included Flores, had been robbed earlier. This evidence
would support a conclusion that Flores was probably also a robbery victim. But
absent any testimony that someone observed property being taken from Flores or
other evidence that he was missing property, we do not believe the evidence
supports a conclusion beyond a reasonable doubt that he was a robbery victim.
Accordingly, we reverse that robbery conviction, count 21 in the
information. In addition to entering a judgment of death on the murder counts, the
court imposed, and then stayed, a total determinate prison sentence of 54 years six
months. Of this, one year (one-third the midterm of three years) was imposed for
the Flores robbery. In light of the reversal of that conviction, we reduce the
determinate prison sentence to 53 years six months.
5. Contentions Regarding the Attempted Murder Charge
The jury found defendant guilty of attempting to murder Luis Enrique
Medina shortly after he shot Officer Hoglund to death. Defendant challenges the
conviction in two regards. First, he argues that parts of Medina‘s testimony
should have been stricken as speculative. Second, he argues that the evidence was
insufficient to support the conviction.
The attempted murder charge was based largely, although not entirely, on
Medina‘s testimony. On direct examination, Medina, a former police officer
familiar with handguns, testified that when defendant aimed his gun at him, he
could tell the gun was empty because the slide was open. When asked whether
that was the position the gun was in when defendant pointed it at him, he
responded, ―Yes, but I believe he wanted to put another clip inside.‖ The court
sustained defendant‘s motion to strike that statement on the ground it was
49
speculative. After Medina further testified that he had seen defendant‘s finger on
the trigger, the testimony moved to other areas.
The subject was revisited on redirect examination. The prosecutor asked
Medina whether he saw defendant pull the trigger. He responded, ―I was unable to
notice whether he pressed the trigger, but I believe that he tried to do that.‖ The
court sustained defendant‘s motion to strike the statement on the ground it was
speculative. The prosecutor then asked whether Medina saw any movement or
what he thought were attempts to pull the trigger. Medina responded, ―I think he
was trying to put another clip there.‖ Again, the court sustained defendant‘s
motion to strike the statement on the ground it was speculative. The prosecutor
then asked about the witness‘s preliminary hearing testimony, in which he agreed
he had testified that defendant ―kept pulling, but the gun didn‘t have any more
bullets in it.‖ Medina agreed that his memory was better at the time of the
preliminary hearing.
On recross-examination, defense counsel asked the witness about the
apparent change in his testimony regarding whether he saw defendant‘s finger
moving. He asked, ―Now, yesterday, you didn‘t tell us that his finger was moving
and today you are. Why is there a difference?‖ Medina responded, ―There is no
change in my testimony. What I said is that he was aiming the gun at me and I
was just looking at the gun. I can‘t really know all the things he did with his
hands. It‘s impossible that I be able to relate all the details. I mean, you think that
one can do that. I was just thinking about what was going to happen to me.‖ He
reiterated that defendant ―was trying to shoot, but there were no bullets in the gun.
So he tried to change the clip. Well, it seems logical if somebody is pressing the
trigger and there is no bullets inside the gun, then one tries to load the gun again.‖
The court overruled defendant‘s motion to strike this testimony as speculative.
50
Defense counsel asked Medina whether he saw defendant put a new clip in
the gun. He responded, ―No, I didn‘t say that he changed it. I said that he wanted
to do so. But then he took off running because they were calling him, telling him
to get out of that place.‖ When defense counsel suggested Medina was trying to
read defendant‘s mind, he responded that defendant ―made a gesture as to remove
the clip that was there.‖ Pursuing the matter, defense counsel asked whether the
witness had seen defendant taking out the clip. He responded, ―No. But he was
trying to do so.‖ He also said, ―If his friends hadn‘t been calling him, I believe he
would have done it.‖ Defense counsel renewed his motion to strike the testimony,
which the court denied.
Later, outside the jury‘s presence, the trial court explained its denial of
defendant‘s motion to strike the testimony as speculative: ―The reason I denied
the objection is because I think we have a language problem, number one. So I
don‘t think the examination is as precise as we could ever get it with English.
[Medina testified through a Spanish language interpreter.] And, secondly, he
did . . . say specifically he tried to change the clip, and . . . he referred to a
gesture. . . . I think it goes beyond mere speculation.‖ Because of this, the court
believed it was ―something for the jury to figure out, not to me.‖ It summarized:
―Today, he said he tried to change the clip. There was a gesture. That‘s beyond
just a mere speculation . . . . But, anyway, I think it is enough for the jury to crank
out [sic] and not me to take it away from them.‖
Defendant argues that the testimony about his wanting to change the clip
and his gesture should have been stricken as speculative. (People v. Watkins,
supra, 55 Cal.4th at p. 1023 [inferences may not be based on speculation].) The
court initially sustained defendant‘s objections on this ground, but it overruled
later objections after it permitted both parties to ask probing questions that elicited
answers clarifying that Medina‘s testimony was based on his observations, not
51
speculation. Although he could not, or at least did not, articulate it further, he
testified that defendant made a gesture that to Medina indicated he was about to
replace the clip.
This part of Medina‘s testimony was essentially lay opinion testimony.
― ‗A lay witness may express opinion based on his or her perception, but only
where helpful to a clear understanding of the witness‘s testimony (Evid. Code,
§ 800, subd. (b)), ―i.e., where the concrete observations on which the opinion is
based cannot otherwise be conveyed.‖ [Citation.]‘ (People v. Hinton (2006) 37
Cal.4th 839, 889.) Such a situation may arise when a witness‘s impression of
what he or she observes regarding the appearance and demeanor of another rests
on ‗subtle or complex interactions‘ between them (ibid.) or when it is impossible
to otherwise adequately convey to the jury the witness‘s concrete observations.
(People v. Melton (1988) 44 Cal.3d 713, 744; People v. Manoogian (1904) 141
Cal. 592, 595-597.) A lay witness generally may not give an opinion about
another person‘s state of mind, but may testify about objective behavior and
describe behavior as being consistent with a state of mind. (People v. Chatman
(2006) 38 Cal.4th 344, 397.) . . . A trial court‘s ruling on the admission or
exclusion of evidence is reviewed for abuse of discretion.‖ (People v. DeHoyos
(2013) 57 Cal.4th 79, 130-131; see People v. Seumanu (2015) 61 Cal.4th 1293,
1310-1311.)
Exactly what occurred in the few seconds during which defendant pointed
the gun at Medina was subtle and complex, and the court could reasonably
conclude it would be impossible to convey Medina‘s concrete observations other
than through the testimony it permitted. In sum, the court acted within its
discretion in concluding that Medina‘s testimony was not speculative but based on
his observations, and leaving it to the jury to evaluate it.
52
Defendant interprets the court‘s mention of what it believed to be a
―language problem‖ as applying a ―less stringent standard to testimony given
through a Spanish interpreter‖ than given to other witnesses, and he argues that
doing so violated his right to equal protection of the laws. We see no error in the
court‘s comment regarding the difficulty of testifying through an interpreter.
Ultimately, the same standards apply to all witnesses, and the court did not suggest
otherwise.
Defendant also argues the evidence was insufficient to support the jury‘s
attempted murder verdict because it was insufficient to demonstrate his intent to
kill Medina. ―Attempted murder requires the specific intent to kill and the
commission of a direct but ineffectual act toward accomplishing the intended
killing.‖ (People v. Lee (2003) 31 Cal.4th 613, 623.) Because direct evidence of a
defendant‘s intent rarely exists, intent may be inferred from the circumstances of
the crime and the defendant‘s acts. (People v. Smith (2005) 37 Cal.4th 733, 741.)
Here, the evidence was ample to support the jury‘s finding. Medina
testified that defendant placed his finger on the trigger when he pointed the gun at
him and then, when he realized the gun was empty, made a gesture to change the
clip. Defendant claims Medina ―embellished‖ his testimony. But it is for the jury,
not a reviewing court, to determine credibility. (People v. Smith, supra, 37 Cal.4th
at p. 739.) Both the prosecution and defendant questioned Medina closely on his
exact observations. The jury was entitled to believe him. Moreover, Medina‘s
testimony was not the only evidence supporting a finding of intent to kill. Only
seconds before he pointed the gun at Medina, defendant had shot Officer Hoglund
three times, killing him. Medina was only about eight feet from defendant and, so
the jury could reasonably have found, was in his way when defendant pointed the
gun at him, just as Officer Hoglund had been in defendant‘s way. All of this
evidence supports defendant‘s conviction for attempting to murder Medina.
53
6. Refusal to Investigate a Juror’s Alleged Reaction to Testimony
Among the portions of Rosa S.‘s preliminary hearing testimony read to the
jury was the following: Defendant and Navarro ―were going to go pick up some
drugs and sometimes the black guys and the cops would get in their way. That‘s
why they took guns with them.‖
Shortly after this testimony, defendant‘s attorney asked to approach the
bench. Outside the jury‘s presence, counsel stated that during the prosecution‘s
opening statement referring to this testimony, Juror M.L., an African-American,
―made a very adamant up and down motion with her head.‖ He said he was
worried ―that she had made up her mind right then, and that is all she needed to
hear was there was some kind of violence against blacks. And her gesturing with
her head appeared to be in response to that statement during the opening
statement. Now that the same line was just read to the jury, [M.L.] did the exact
same thing, a very adamant up and down motion with her head. I don‘t have any
doubt in my mind she has already made up her mind what she is going to do with
the penalty phase and guilt phase because of the perception there is violence
against blacks.‖ Counsel for codefendant Navarro said he made similar
observations. The court stated it did not see it.
The court noted that there were ―no blacks involved as witnesses, victims,
or defendants in the case other than she is a black juror.‖ Counsel asked the court
to hold a hearing ―about whether or not she has already made up her mind and
decide if you want to throw her out.‖ The court denied the request, noting that
―we are dealing with pure speculation.‖ It explained, ―I don‘t think anything is
established by an adamant head shake. I see jurors nodding or sitting up or dozing
or looking off. If I had to stop and have a hearing every time I saw a reaction by a
juror, we would never get through a trial.‖ It added, ―I don‘t think it would at all
be appropriate to have a hearing.‖
54
Later, again outside the jury‘s presence, one of the prosecutors stated she
was watching M.L. after counsel made his objection: ―She was rocking, just like
rocking back and forth. I did not see any nodding, just more of a nervous habit.
She was rocking during the entire testimony.‖ Counsel for Navarro stated that that
was different from what they had observed. Counsel for defendant stated that a
paralegal had observed the same thing during the opening statement. He added,
―After we approached and had the discussion about her, she mostly stared at me,
and I think she figured out that we were talking about her.‖ The court observed,
―She probably did . . . . We all looked over at her when we were standing at
side . . . .‖ Counsel for defendant said he did not look at her.
Later still, after the parties concluded their closing arguments to the jury,
the court stated the following outside the jury‘s presence: ―I have been sensitive
to [M.L.‘s] reactions to any reference to blacks or cops getting in the way of the
guns. And I noted the rest of that day where you had your concerns expressed she
continued to rock in her chair. And every time she rocked, her head nodded. And
I saw nodding throughout the rest of the afternoon. Yesterday, when [one of the
prosecutors] twice in his argument mentioned that same statement, there was
absolutely no reaction from her. And today there was absolutely no reaction from
her. And she has continued to rock and nod. I am not saying there may not have
been a reaction, but I‘m not sure that we can assume her state of mind, and I want
you to know that I have been watching it, that every specific time that issue came
up I watched her and have seen absolutely no reaction.‖
Defendant argues the court‘s failure to investigate M.L.‘s perceived
reaction to the testimony violated various of his constitutional rights. We
disagree. ―[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
55
discharge a juror — rests within the sound discretion of the trial court.
[Citation.] . . . [¶] As our cases make clear, a hearing is required only where the
court possesses information which, if proven to be true, would constitute ―good
cause‖ to doubt a juror‘s ability to perform his duties and would justify his
removal from the case. [Citation.]‘ ‖ (People v. Cleveland (2001) 25 Cal.4th 466,
478; accord, People v. Manibusan (2013) 58 Cal.4th 40, 53.)
We find no abuse of discretion. Unlike this court, the trial court was in a
position to observe the juror‘s demeanor. It took defendant‘s allegations seriously
and carefully observed the juror‘s later reactions. Based on these observations, it
properly refused to question the juror. We have cautioned that the ―very act of
questioning deliberating jurors about the content of their deliberations could affect
those deliberations.‖ (People v. Cleveland, supra, 25 Cal.4th at p. 476.) Similar
concerns exist midtrial. The very act of questioning M.L. about her reactions to
testimony would tend to suggest she had done something wrong, which could
adversely affect her view of the case.
7. Claims of Instructional Error
Defendant contends the court committed three instructional errors.
a. Instruction Regarding Evidence of Uncharged Crime
Before evidence of the incident at Rod‘s Coffee Shop was presented to the
jury, the court instructed the jury on the limited purpose for which it could
consider the evidence. The court repeated the limiting instruction as part of its
general instructions after all of the evidence was presented.
Specifically, the court instructed the jury it could consider the evidence
only against defendant and not against his codefendants (who were not implicated
in the incident). It also instructed that the evidence could not be considered ―to
prove that the defendant is a person of bad character or that he has a disposition to
56
commit crimes.‖ Instead, the jury could consider the evidence ―only for the
limited purpose of determining if it tends to show: The identity of the person who
committed the crime, if any, of which he is accused; that the defendant had
knowledge or possessed the means that might have been useful or necessary for
the commission of the crime charged; and the crime charged is a part of the larger
continuing plan, scheme, or conspiracy.‖ The court reiterated that the jury is ―not
permitted to consider such evidence for any other purpose.‖ It also instructed the
jury it could not consider the evidence unless it found by a preponderance of the
evidence that defendant committed the uncharged crime, and it defined this
standard of proof.
Defendant contends the instruction was erroneous in two respects. First, he
contends the court should have limited the jury‘s consideration of the evidence to
specified counts. He does not state exactly what counts these might be, but
presumably he would limit consideration to only those counts involving use of the
stun gun, or possibly all counts arising out of the Casa Gamino robbery.
The argument is not cognizable on appeal because defendant did not
request the court to limit use of the evidence in this way. The court has no sua
sponte duty to give a limiting instruction. (Evid. Code, § 355; People v.
Hernandez (2004) 33 Cal.4th 1040, 1051.) Indeed, a criminal defendant might not
want the court to pinpoint the exact counts to which the evidence was relevant.
(Hernandez, at p. 1053.)
The contention also lacks merit. The evidence was admitted primarily for
its relevance regarding the Casa Gamino robbery. Indeed, the court had initially
indicated it would exclude the evidence if defendant conceded identity regarding
that robbery. But the court did not have to explain this to the jury. In multiple-
count cases, some of the evidence will primarily, sometimes exclusively, be
relevant as to one or more, but not all, of the counts. For example, the testimony
57
that one of the gunmen during the Outrigger Lounge robbery hit John Tucker with
a shotgun, breaking two ribs, had little, if any, relevance to the charges arising out
of the other robberies. But the court does not normally identify for the jury the
counts to which the evidence is relevant. The jury can determine that for itself.
Once the evidence of the Rod‘s Coffee Shop incident was admitted,
whatever prejudicial effect there might have been was realized, and the jury could
consider it for any proper purpose. (People v. Hernandez, supra, 33 Cal.4th at p.
1053; People v. Carpenter, supra, 15 Cal.4th at p. 382.) The court carefully
delineated what those proper purposes were. Doing so provided sufficient
guidance.
Second, defendant contends that, by instructing the jury it could consider
the evidence only if it found by a preponderance of the evidence that he committed
the crime, and then defining this standard of proof, the court lowered the
prosecution‘s burden of proof. We have repeatedly rejected this contention. The
court also gave the jury the full panoply of standard instructions regarding the
prosecution‘s burden of proof and the reasonable doubt standard. These
instructions made clear to the jury that the prosecution had the burden of proving
all ultimate facts beyond a reasonable doubt. (People v. Virgil, supra, 51 Cal.4th
at pp. 1259-1260; People v. Foster (2010) 50 Cal.4th 1301, 1347-1348.)
b. Instruction on Witness Identification
The court gave CALJIC No. 2.92, the standard instruction regarding how
the jury should consider eyewitness identification evidence. It said the jury should
consider any factor that bears on the accuracy of the identification including, but
not limited to, specified factors. One of the specified factors was ―the extent to
58
which the witness is either certain or uncertain of the identification.‖7 (See
CALCRIM No. 315 [among other factors, the jury should consider ―[h]ow certain
was the witness when he or she made an identification‖].) Citing scientific studies
that conclude there is, at best, a weak correlation between witness certainty and
accuracy, defendant argues the court erred in instructing the jury it could consider
the certainty factor.
The Attorney General argues the claim is forfeited because defendant did
not request that CALJIC No. 2.92 be modified. We agree. If defendant had
wanted the court to modify the instruction, he should have requested it. The trial
court has no sua sponte duty to do so. (People v. Ward (2005) 36 Cal.4th 186,
213; People v. Sullivan (2007) 151 Cal.App.4th 524, 561.) This conclusion is
especially forceful here because, under the facts, it is not clear defendant would
7
As given, the entire instruction pursuant to CALJIC No. 2.92 was as
follows: ―Eyewitness testimony has been received in this trial for the purpose of
identifying the defendant as the perpetrator of the crimes charged. In determining
the weight to be given eyewitness identification testimony, you should consider
the believability of the eyewitness as well as other factors which bear upon the
accuracy of the witness‘s identification of the defendant, including but not limited,
to any of the following:
―The opportunity of the witness to observe the alleged criminal act and the
perpetrator of the act; the stress, if any, to which the witness was subjected at the
time of the observation; the witness‘s ability, following the observation, to provide
a description of the perpetrator of the act; . . . the extent to which the defendant
either fits or does not fit the description of the perpetrator previously given by the
witness; the cross-racial or ethnic nature of the identification; the witness‘s
capacity to make an identification; evidence relating to the witness‘s ability to
identify other alleged perpetrators of the criminal act; whether the witness was
able to identify the alleged perpetrator in a photographic or physical lineup; the
period of time between the alleged criminal act and the witness‘s identification;
whether the witness had prior contacts with the alleged perpetrator; the extent to
which the witness is either certain or uncertain of the identification; whether the
witness‘s identification is in fact a product of his or her own recollection; and any
other evidence relating to the witness‘s ability to make an identification.‖
59
want the modification. This case involved many identifications, some certain,
some uncertain. Defendant would surely want the jury to consider how uncertain
some of the identifications were, as CALJIC No. 2.92 instructs. And defendant
might be concerned about the difficulty of instructing the jury to consider how
uncertain an identification was without also, at least implicitly, suggesting it
should also consider how certain it was. Thus, in this case, it is unclear that
defendant would want the court to delete the certainty or uncertainty factor from
the instructions.
We also find no error and no prejudice. Studies concluding there is, at best,
a weak correlation between witness certainty and accuracy are nothing new. We
cited some of them three decades ago to support our holding that the trial court has
discretion to admit expert testimony regarding the reliability of eyewitness
identification. (People v. McDonald (1984) 37 Cal.3d 351, 369.) In People v.
Wright (1988) 45 Cal.3d 1126, 1141, we held ―that a proper instruction on
eyewitness identification factors should focus the jury‘s attention on facts relevant
to its determination of the existence of reasonable doubt regarding identification,
by listing, in a neutral manner, the relevant factors supported by the evidence.‖
We specifically approved CALJIC No. 2.92, including its certainty factor.
(Wright, at pp. 1144, 1166 [appendix].) We have since reiterated the propriety of
including this factor. (People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232.)
Defendant correctly notes that some courts have disapproved instructing on
the certainty factor in light of the scientific studies. (E.g., State v. Mitchell (Kan.
2012) 275 P.3d 905; Commonwealth v. Santoli (Mass. 1997) 680 N.E.2d 1116.)
But, in a case like this involving uncertain as well as certain identifications, it is
not clear that even those cases would prohibit telling the jury it may consider this
factor. As the Santoli court noted, ―It is probably true that the challenged
instruction has merit in so far as it deals with the testimony of a witness who
60
expressed doubt about the accuracy of her identification . . . .‖ (Santoli, at p.
1121.) Any reexamination of our previous holdings in light of developments in
other jurisdictions should await a case involving only certain identifications.
We also see no prejudice to defendant. The instruction cited the certainty
factor in a neutral manner, telling the jury only that it could consider it. It did not
suggest that certainty equals accuracy. In this case, telling it to consider this factor
could only benefit defendant when it came to the uncertain identifications, and it
was unlikely to harm him regarding the certain ones.
Moreover, the eyewitness identifications were far from the only evidence
connecting defendant to the crimes. He was caught on videotape robbing
George‘s Market. He literally ran out of his shoe after robbing Ofelia‘s
Restaurant. The ballistics evidence, together with other evidence, strongly showed
that defendant was the gunman who fired shots during three of the robberies.
Evidence connected him to a stun gun like the one used in the Casa Gamino
robbery. Jewelry from some of the robberies was found concealed on his person
when he was arrested. His car was connected to some of the robberies. It is true
that not all of the seven robberies had evidence connecting defendant other than
eyewitness identifications. But the similarity of the takeover robberies and the
general descriptions of some of the gunmen strongly indicated the same group
committed all of the robberies. Defendant was clearly a leader of that group, and
he had a distinctive appearance among the robbers. The many identifications,
together with the remaining evidence, strongly showed that defendant was present
at each of the robberies. It is not reasonably probable defendant would have
obtained a more favorable result had the trial court deleted the certainty factor.
(People v. Ward, supra, 36 Cal.4th at p. 214.) Indeed, we would find giving the
instruction harmless beyond a reasonable doubt.
61
c. Reasonable Doubt Instructions
Defendant contends that a series of standard instructions the court gave
undermined the reasonable doubt standard. (CALJIC Nos. 2.01, 2.21.1, 2.21.2,
2.22, 2.27, 8.83.) ―[W]e have rejected this precise argument on occasions too
numerous to recite. [Citations.] As we have explained, each of these instructions
‗is unobjectionable when, as here, it is accompanied by the usual instructions on
reasonable doubt, the presumption of innocence, and the People‘s burden of
proof.‘ [Citation.] Defendant invites us to revisit the issue, but provides no
persuasive reason to do so.‖ (People v. Whalen (2013) 56 Cal.4th 1, 70.)
C. Penalty Issues
1. Joint Trial
Defendant moved to sever his trial from that of his codefendants several
times before and during the trial. He also moved for separate penalty juries or
sequential penalty trials. The court denied each motion.8 Defendant contends the
court erred. It did not. No good reason existed to try the defendants separately, to
use two penalty juries, or to conduct sequential penalty trials.
The applicable law is settled. The Legislature has expressed a preference
for joint trials; therefore, two or more defendants jointly charged with crimes must
be tried together unless the court orders separate trials. (Pen. Code, § 1098;
People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 378.) Joint trials
promote efficiency and help avoid inconsistent verdicts. (Zafiro v. United States
(1993) 506 U.S. 534, 537; Bryant, Smith and Wheeler, at pp. 378-379.)
―[I]mportant concerns of public policy are served if a single jury is given a full
8
Some of these motions concerned severance of the trial of guilt. But
defendant primarily, although not exclusively, claims prejudice as to penalty.
Accordingly, we will consider the entire severance question together, as does
defendant.
62
and fair overview of the defendants‘ joint conduct and the assertions they make to
defend against the ensuing charges.‖ (Bryant, Smith and Wheeler, at p. 379.) The
court has discretion to order separate trials if there is an incriminating confession,
prejudicial association, likely confusion due to evidence on multiple counts,
conflicting defenses, or the possibility that a codefendant might provide
exonerating testimony at a separate trial. (Ibid.) Prejudicial association might
exist if ―the characteristics or culpability of one or more defendants [is] such that
the jury will find the remaining defendants guilty simply because of their
association with a reprehensible person, rather than assessing each defendant‘s
individual guilt of the crimes at issue.‖ (Id. at p. 383.) We review the court‘s
denial of severance for abuse of discretion based on the facts as of the time of the
ruling. If the court properly denied severance at the time, the reviewing court may
reverse a judgment only if it finds that the joint trial caused gross unfairness that
denied due process. (Id. at p. 379.)
Defendant was charged with all of the crimes, making this a ―classic case
for a joint trial.‖ (People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th at p.
379.) Virtually no reason existed for severance. There was no incriminating
confession; defendant was not prejudiced by his association with the codefendants;
defendant was charged with all counts, so severance would not have resulted in
fewer counts; there were no conflicting defenses; and there was no suggestion that
a codefendant would have given exonerating testimony at a separate trial. Rosa S.
did testify that Navarro told her, in defendant‘s absence, that defendant had shot
the police officer. The court admonished the jury not to consider that evidence as
to defendant. But she also testified that defendant said the same thing to her, so
this circumstance could not have prejudiced defendant, and certainly did not
warrant severance.
63
Defendant asserts that the prosecution repeatedly claimed at trial that the
three codefendants were equally culpable when, in fact, it always intended to
portray him as the most culpable. The record does not support the assertion and,
in any event, the argument supplies no reason for the court to order severance.
Joinder is not limited to cases in which each defendant is equally culpable.
The prosecution did contend that codefendants Cordova and Navarro were
legally guilty of the crimes to the same extent as defendant. But it did not portray
each defendant as equally culpable. The prosecution did portray defendant as the
most culpable of the three defendants. This was due to the evidence, not to
joinder. The evidence showed it was defendant who assumed a leadership role
among the robbers. It was defendant who shot Officer Hoglund three times. It
was defendant who chased Lee Chul Kim into the meat freezer and, with Cordova,
shot him to death. It was defendant who tortured Armando Lopez and then
Maricella Mendoza with a stun gun to try to force Lopez to open the safe at Casa
Gamino. It was defendant who fired a gun during the robbery at Ofelia‘s
Restaurant. The evidence would have shown defendant was the most culpable at a
separate trial just as surely as at a joint trial.
Defendant also argues that, because the codefendants‘ cases in mitigation
were supposedly stronger than his own, he was prejudiced by joinder of the
penalty trial. ―The trial court must exercise its broad discretion to resolve motions
to sever the penalty phases of jointly tried codefendants [citation] in a manner
consistent with ‗the need for individualized consideration as a constitutional
requirement in imposing the death sentence‘ [citations].‖ (People v. Letner and
Tobin (2010) 50 Cal.4th 99, 196, quoting Lockett v. Ohio (1978) 438 U.S. 586,
605.) This record provides no suggestion the jury failed to give individualized
consideration to defendant‘s proper sentence. ―[I]t is not surprising that different
defendants presented different mitigating evidence regarding their backgrounds.
64
That circumstance alone clearly cannot establish that the jury failed to give each
defendant individualized consideration.‖ (Bryant, Smith and Wheeler, supra, 60
Cal.4th at p. 384.)
The court instructed the penalty jury it was its duty ―to render an
individualized determination about the appropriate penalty,‖ and it ―must now
determine which of said penalties shall be imposed on each defendant.‖ It
instructed on the factors to consider ―in determining which penalty is to be
imposed on each defendant.‖ It also instructed that ―you must decide separately
the question of the penalty as to each of the defendants. If you cannot agree upon
the penalty to be inflicted upon all the defendants, but you do agree on the penalty
as to one or more of them, you must render a verdict as to the one or more upon
which you do agree.‖ In fact, the jury could not agree on a penalty verdict as to
the codefendants, but it did agree on one as to defendant. All of these
circumstances show that the jury gave defendant‘s penalty individualized
consideration. (People v. Letner and Tobin, supra, 50 Cal.4th at pp. 196-197.)
A recent high court opinion supports this conclusion. (Kansas v. Carr (Jan.
20, 2016, No. 14-449) __ U.S. __ [136 S.Ct. 633].) ―Joint proceedings are not
only permissible but are often preferable when the joined defendants‘ criminal
conduct arises out of a single chain of events. Joint trial may enable a jury ‗to
arrive more reliably at its conclusions regarding the guilt or innocence of a
particular defendant and to assign fairly the respective responsibilities of each
defendant in the sentencing.‘ . . . To forbid joinder in capital-sentencing
proceedings would, perversely, increase the odds of ‗wanto[n] and freakis[h]‘
imposition of death sentences. [Citation.] Better that two defendants who have
together committed the same crimes be placed side-by-side to have their fates
determined by a single jury.‖ (Id. at p. __ [136 S.Ct. at pp. 645-646].)
65
For similar reasons, the court acted within its discretion in denying the
motions for separate penalty juries or sequential penalty trials. (People v. Bennett
(2009) 45 Cal.4th 577, 599-600; People v. Taylor (2001) 26 Cal.4th 1155, 1173-
1174.) As defendant notes, at trial, Contreras‘s attorney argued in support of
sequential penalty trials that ―there will be no victim impact [evidence], so there
will be no repetition with respect to witnesses coming back to testify.‖9 But this
circumstance also presents no reason to conduct separate penalty trials.
In short, the joint trial was not unfair to defendant at all, much less grossly
unfair. The court acted within its discretion in implementing the legislative
preference for conducting joint trials.
2. Admitting One of Defendant’s Statements
Defendant objected to admitting Rosa S.‘s testimony that during the
conversation in which he said he had shot a police officer he also said ―he had
already killed eight or nine people in his country.‖ The court ruled the evidence
inadmissible at the guilt phase under Evidence Code section 352, finding its
prejudicial effect outweighed its probative value. But the court also ruled the
prosecution could admit the statement at a penalty trial as evidence of the
circumstances of the crime under Penal Code section 190.3, factor (a).
Defendant‘s attorney stated that, in that event, he would prefer the statement be
presented at the guilt phase rather than have the jury hear it for the first time at the
penalty phase. Later, defendant renewed his objection, this time arguing that a
transcript of the statement Rosa S. gave to the police was ambiguous as to whether
it was defendant or someone else who had made the statement. Noting that the
9
Counsel did not explain why he believed there would be no victim impact
evidence, but, in fact, the prosecution presented none.
66
transcript of her preliminary hearing testimony resolved any ambiguity, the court
reiterated its ruling.
Accordingly, the jury heard about the statement at the guilt phase both
during the playing of the taped statement and during the reading of Rosa‘s
preliminary hearing testimony. When the jury first heard the evidence, the court
admonished it that defendant‘s ―comments about having killed eight or nine
people is not offered for the truth of the matter. There‘s no evidence to support
that there were eight or nine people or anybody else killed. It is offered simply for
your consideration as to the declarant‘s state of mind at the time the statement was
made, not for the truth of that fact.‖
Defendant contends the court erred in ruling the evidence admissible at the
penalty phase. Because Rosa‘s initial taped statement was somewhat ambiguous
as to who exactly made the statement, he first argues the evidence was unreliable.
However, as the trial court noted when it overruled defendant‘s objection on this
basis, any ambiguity in the taped statement was clarified during her testimony.
She testified specifically that defendant made the statement. No reason appears to
exclude the statement on this basis.
Defendant also argues the statement was unduly prejudicial, as there was no
evidence he did actually kill several other people. It is true that no such evidence
exists. But the court did not admit the statement for its truth, and it admonished
the jury in this respect. The statement, made in the same conversation in which
defendant said he had shot Officer Hoglund, was relevant to show defendant‘s
cavalier attitude towards his killing of the officer.
We upheld the admission of a similar statement in People v. Michaels
(2002) 28 Cal.4th 486. In Michaels, the trial court excluded at the guilt phase the
defendant‘s ―claim[] that he was a contract killer and had committed 10 to 15
contract killings,‖ but it admitted the statement at the penalty phase over objection.
67
(Id. at p. 533.) The trial court gave a limiting instruction similar to that in this
case, explaining that the statement was ― ‗offered on the issue of his mental state
and motive on the nature and circumstances of the present offense, and not for the
truth of whether there were other homicides.‘ ‖ (Ibid.) The court told the jury
―not to consider such evidence ‗for any purpose except the limited purpose for
which it is admitted.‘ ‖ (Ibid.) The evidence ―was offered under [Penal Code]
section 190.3, factor (a), as part of the circumstances of the charged murder, not
under factor (b). The trial court here told the jury it could not consider defendant‘s
confession as proof that he had committed other homicides. The prosecution did
not claim defendant had committed any contract killings or planned to do so. The
evidence was admitted solely to show defendant‘s attitude and motive in
connection with the charged murder and, so limited, was properly admitted.‖ (Id.
at p. 534.)
We rejected the defendant‘s argument the trial court should have excluded
the statement as unduly prejudicial under Evidence Code section 352. We
explained that, although the court may not exclude all Penal Code section 190.3,
factor (a) evidence at the penalty phase, it ―retains a limited discretion‖ to exclude
such evidence, including specific items of evidence that might be ― ‗misleading,
cumulative, or unduly inflammatory.‘ ‖ (People v. Michaels, supra, 28 Cal.4th at
pp. 534-535.) However, we found no abuse of discretion in admitting the
evidence. ―The prejudicial effect of the evidence was that it might lead the jury to
believe that defendant had committed other murders or planned to do so. But in
view of the prosecutor‘s avoidance of any such claim, the absence of any evidence
to support it, and the trial court‘s limiting instruction, it is far more likely that the
jurors would recognize the defendant‘s actions as mere braggadocio. Thus the
trial court could reasonably conclude that, as long as it gave limiting instructions,
68
the probative value of the evidence at issue would outweigh its prejudicial effect.‖
(Id. at p. 535.)
This case is similar. There was no evidence defendant had actually killed
in addition to the charged murders, and the court gave a limiting instruction.
Defendant argues, however, that, unlike People v. Michaels, supra, 28 Cal.4th
486, here the prosecutor did not avoid any claim that he had committed other
murders. When he cross-examined defendant regarding his professed religious
conversion in jail, the prosecutor asked, ―Did you feel especially in a humorous
mood as you recalled killing those eight or nine other people that you had killed?‖
When defendant asked which killings, the prosecutor responded, ―the ones that
you talked about when you were giggling and laughing over killing the officer.‖
Defendant denied making the statement and denied ever speaking with Rosa S.
Defendant did not object at the time.
Later, outside the jury‘s presence, defendant‘s attorney argued that ―the
prosecutor asked the question with the force and effect as if he knew that to be the
truth.‖ The court agreed and stated that it would have sustained an objection at the
time had defendant made one. It found the first sentence inappropriate, although it
believed the followup question (referring to what defendant had talked about) was
appropriate. At defendant‘s request, it also agreed to give the jury a further
limiting instruction. In the jury‘s presence, it explained that ―there was some
reference when [defendant] was on the stand where [the prosecutor] asked about
the statement about killing eight or nine people before. I want to remind you that
that statement was offered not for the truth of the eight or nine people being killed,
there is no such evidence, but it was admitted for your consideration as to the state
of mind, if you believe that statement was made, offered only for the state of mind,
not for the truth of eight or nine people being killed. There is no such evidence. I
69
want to make sure you remember that admonition that you heard back at the guilt
phase.‖
To the extent the prosecutor‘s first question suggested defendant had, in
fact, committed other killings, the suggestion was improper. But the second
question made clear the first question was based only on what defendant had said.
The general questioning about defendant‘s attitude towards the crimes was
appropriate. The court‘s firm second admonition made clear to the jury it was not
to consider the statement for the truth and that no evidence supported it.
Defendant requested a stronger admonition, but, under the circumstances, the
actual admonition was sufficient to cure any harm. The court acted within its
discretion in treating the matter as it did.
3. Admission of Other Crimes Evidence
Over defendant‘s objection, the court ruled that the jury could consider at
the penalty phase the evidence of the 1990 incident at Rod‘s Coffee Shop under
Penal Code section 190.3, factor (b) (criminal activity involving force or
violence). The court found the evidence sufficient to warrant the jury‘s finding of
an attempted robbery or possession of a stun gun, or both. Regarding attempted
robbery, it explained: ―Where we have the entry to the restaurant, an obvious
artificial presence there, the mingling in the back even after there was no reason
for them to remain, the location of the cars, one blocking the driveway and . . . the
other in an unusual location, . . . plus the possession of the weapons, there‘s more
than enough to show they have gone beyond the mere planning stage.‖
Accordingly, the court instructed the jury that ―evidence has been
introduced for the purpose of showing that the defendant . . . has committed the
following criminal acts relating to Rod‘s Coffee Shop: These being attempted
robbery and possession of a stun gun, such acts which involved the express or
70
implied use of force or violence or the threat of force or violence.‖ It also
instructed the jury on the reasonable doubt standard it had to employ in
considering the evidence.
Defendant contends the court erred in permitting the jury to consider the
evidence in this way. He argues that there was insufficient evidence to support a
jury finding that defendant committed an actual crime involving force or violence.
We disagree. The court‘s ruling is reviewed for abuse of discretion. (People v.
Bacon (2010) 50 Cal.4th 1082, 1127.)
Penal Code section 190.3, factor (b), allows the penalty jury to consider
evidence of ―criminal activity by the defendant which involved the use or
attempted use of force or violence or the express or implied threat to use force or
violence.‖ The court acted within its discretion in permitting the jury to consider
the evidence both as an attempted robbery and as possession of a stun gun.
Sufficient evidence existed that he committed both crimes, and that both crimes
involved force or violence.
Attempted robbery requires the ―specific intent to commit robbery and . . . a
direct but ineffectual act toward the commission of the crime.‖ (People v.
Lindberg (2008) 45 Cal.4th 1, 27.) Under the circumstances, especially in light of
later events, the jury could easily find defendant intended to commit robbery. The
jury could also find the required direct act. ―The crime of attempted robbery
requires neither the commission of an element of robbery nor the completion of a
theft or assault.‖ (Id. at p. 28.) ―The act required must be more than mere
preparation, it must show that the perpetrator is putting his or her plan into action.
That act need not, however, be the last proximate or ultimate step toward
commission of the crime.‖ (People v. Bonner (2000) 80 Cal.App.4th 759, 764.)
In Bonner, the defendant ―was never in close proximity to either victim and
made no demand on either for money.‖ (People v. Bonner, supra, 80 Cal.App.4th
71
at p. 763.) Instead, he ―went armed to the scene, placed a mask over his face,
[and] waited in hiding moments before his victim‘s approach,‖ at which point he
was discovered. (Id. at p. 764, fn. 3.) The appellate court found this sufficient
evidence of the requisite direct act. (Ibid.; see People v. Dillon (1983) 34 Cal.3d
441, 456 [sufficient evidence of attempted robbery when the would-be robbers
armed and disguised themselves, approached but did not enter the targeted
marijuana field, passing ― ‗no trespassing‘ signs‖ on the way, and then watched for
their opportunity]; People v. Vizcarra (1980) 110 Cal.App.3d 858, 861-863
[sufficient evidence of attempted robbery when the defendant approached a liquor
store with a rifle and attempted to hide on a pathway adjacent to the store when a
customer observed him].) Here, the evidence showed that the five men, including
defendant, were armed, arrived at the coffee shop, positioned a car to make a
quick getaway, and actually entered the coffee shop. They went outside but then
lingered until the proprietor called the police. This evidence was enough for a jury
to find the necessary act beyond mere preparation.
The evidence was also sufficient to find that defendant possessed the stun
gun. It was under the passenger seat of the car he was driving. Defendant
suggests he might not have known the stun gun was there. But, under all of the
circumstances, including the later events in which defendant was clearly a leader
and actually used a stun gun, the jury could have reasonably concluded defendant
did not drive the car unaware of the stun gun under the seat. There was also
sufficient evidence of an implied threat to use force or violence. ―Possession of a
firearm is not, in every circumstance, an act committed with actual or implied
force or violence. [Citation.] The factual circumstances surrounding the
possession, however, may indicate an implied threat of violence.‖ (People v.
Bacon, supra, 50 Cal.4th at p. 1127; see People v. Elliot (2012) 53 Cal.4th 535,
586-587.) The same is true of possession of a stun gun. Here, the circumstances
72
support a jury finding that defendant possessed the stun gun with an implied threat
to use force or violence.
4. Replacement of Interpreter
Defendant testified on his own behalf at the penalty phase with the
assistance of an interpreter. After a break at midday, outside the jury‘s presence,
one of the defense attorneys stated that he was informed the prosecutor had
―verbally attacked‖ the interpreter ―in the way that she was conducting the
interpretation.‖ The court said, ―It was brought to my attention and I agree. I will
have to admit in the translation the tone of voice has been entirely different for the
questions directed by the D.A. as opposed to the responses. The interpreter was
literally shouting the questions. Mr. Grosbard‘s voice was high, but she was
shouting the questions Grosbard asked in an entirely different tone than the
responses by the defendant.‖ The court decided to change interpreters. It
explained that ―[t]he interpreter should just be interpreting, there should be no
hand motions, simply the interpretation without a change in voice. The change in
voice could affect the jury in some way to hurt your client, too, and I wasn‘t
comfortable with it either, so it was brought to my attention. Mr. Grosbard
apparently did have a conversation. At this point I would like to switch, keep her
in here because we need her, and I don‘t see any problem with the interpretation,
but I did notice the change in her voice.‖
The court overruled defendant‘s objection to changing interpreters,
explaining that ―we have three interpreters in here. When we don‘t have
somebody on the stand we have two, they are constantly switching off. I don‘t see
anything that will telegraph anything to the jury. They are constantly switching.‖
Later, in denying defendant‘s new trial motion based on the change of interpreters,
the court added that ―no defendant or no witness has a right to have an interpreter
73
act out for them their emotions and certainly what the court saw was great emotion
invested in the interpreter‘s interpretation. There were gestures totally
inappropriate and unprofessional. Certainly the interpreter who substituted for the
interpreter we did have at the time was very professional. And I didn‘t see
anything improper about the actual interpretation, there was nothing with the
words, it was the inflection, the emotional addition to the statements, as well as the
gestures.‖
Defendant contends the court erred in violation of various constitutional
rights in replacing one interpreter with another. We disagree. The trial court did
not abuse its discretion when it replaced an interpreter it believed was acting
inappropriately.
Certainly, a criminal defendant who needs one has a constitutional right to
an interpreter. (Cal. Const., art. I, § 14; People v. Romero (2008) 44 Cal.4th 386,
410; People v. Aguilar (1984) 35 Cal.3d 785, 790.) But the right is to a competent
interpreter, not to a particular interpreter. (People v. Aranda (1986) 186
Cal.App.3d 230, 237.) ―The question of an interpreter‘s competence is a factual
one for the trial court.‖ (Ibid., citing People v. Mendes (1950) 35 Cal.2d 537, 543,
and People v. Roberts (1984) 162 Cal.App.3d 350, 355.) We have no basis on this
record to overturn the court‘s determination that the interpreter should be replaced.
Citing the Judicial Council‘s Professional Standards and Ethics for
California Court Interpreters, defendant argues that an interpreter is supposed to
include some of the witness‘s intonation. According to those standards, ―Triers of
fact need to have a clear understanding of emotions such as anger, fear, shame, or
excitement that are expressed by witnesses. People convey their emotions not
only in words but also in facial expressions, posture, tone of voice, and other
manifestations. These nonlinguistic means of expression are very closely tied to
culture and language, so when people do not speak the same language they may
74
misunderstand the emotional content of a message. The court interpreter should
strive to preserve this element of emotion through moderate voice modulation. . . .
However, refrain from any kind of dramatics. Interpreters are not actors and
should not become the center of attention. . . . The key is moderation.‖
(Professional Standards and Ethics for Cal. Court Interpreters (5th ed. 2013) p. 10
(Professional Standards).)
Defendant contends the interpreter was merely acting within these
standards. To the extent the trial court believed the interpreter should never
change the tone of voice, these standards indicate otherwise. But the court still
had discretion to conclude the interpreter was acting unprofessionally. The
standards state that moderation is key. The court may have believed the
interpreter‘s actions were excessive, not moderate. The court was also concerned
with the interpreter‘s gestures, finding them ―totally inappropriate and
unprofessional.‖ This concern was appropriate. The Professional Standards
instruct interpreters not to ―reproduce any gestures used by the witness or attempt
to replace them with target-culture equivalents. That only complicates matters,
potentially mischaracterizing the testimony.‖ (Professional Standards, supra, at p.
11.) We see no abuse of discretion in replacing the interpreter.
Replacing one interpreter with another was also harmless beyond a
reasonable doubt. (People v. Rodriguez (1986) 42 Cal.3d 1005, 1010.) Defendant
argues that the court erroneously instructed the replacement interpreter simply to
interpret ―without change of voice,‖ and that this placed him at a disadvantage, as
he could not appreciate the emotional quality of the prosecutor‘s questions. We
disagree. The record shows defendant understood the thrust of the questions and
responded appropriately. At one point, for example, when the prosecutor
questioned him closely, and possibly sarcastically, about his claimed religious
conversion in jail, he responded, ―I don‘t understand why it is that you want to
75
confuse me. I have said one thing. I said that once I came to know Christ, and I
had the revelation about his death, I understood truly that the value of life is
infinite. Prior to that I didn‘t have that knowledge. Prior to that, I didn‘t value
life. Had I had that knowledge, had I valued life, I wouldn‘t have done what I
did.‖ When it denied defendant‘s new trial motion, the court stated that the
replacement interpreter was ―very professional.‖ On this record, we have no basis
to find otherwise. (Id. at p. 1015.) Providing defendant with a competent
interpreter complied with his constitutional rights.
5. Cross-examination of Defendant
Defendant testified at the penalty phase. He contends the court erred in two
respects in the scope of cross-examination it permitted. The relevant general legal
principles are settled. ―Once the defense has presented evidence of circumstances
admissible under factor (k) [of Penal Code section 190.3], . . . prosecution rebuttal
evidence would be admissible as evidence tending to ‗disprove any disputed fact
that is of consequence to the determination of the action.‘ (Evid. Code, § 210.)‖
(People v. Boyd (1985) 38 Cal.3d 762, 776.) ―[T]he scope of rebuttal lies within
the trial court‘s discretion.‖ (People v. Friend (2009) 47 Cal.4th 1, 87.) ―A
prosecutor is permitted wide scope in the cross-examination of a criminal
defendant who elects to take the stand.‖ (People v. Gutierrez (2002) 28 Cal.4th
1083, 1147.)
First, defendant objected to any cross-examination regarding the crimes
themselves. He argued that his testimony on direct examination would be limited
to his postcrime religious conversion and his ―dealing with the realization of what
he had done and acceptance of personal responsibility for what he had done,‖ and
that, therefore, cross-examination regarding the crimes themselves would be
improper. The court overruled the objection, finding that the People ―have a right
76
to explore what it is he is feeling remorse about, and that includes covering the
specifics of the crimes.‖ Later, the court explained further that the prosecution
had the right to ―test the sincerity of what he is doing now.‖ In light of the court‘s
ruling, defendant testified on direct examination that he shot and killed Kim and
Officer Hoglund, but he said he shot Kim only after Kim shot him in the leg. On
cross-examination, he admitted participating in the robbery at the El 7 Mares
Restaurant, but denied being present during the robbery of the Outrigger Lounge.
He denied bringing a stun gun to the Casa Gamino robbery but said someone
handed one to him during the robbery. He denied using the stun gun on Maricella
Mendoza, although he admitted using it on Armando Lopez because ―he didn‘t
cooperate.‖
The court‘s ruling permitting this questioning came within its discretion.
When a defendant presents evidence of his religious conversion in jail, the
prosecution is entitled to test the sincerity of this conversion. (People v. Friend,
supra, 47 Cal.4th at pp. 88-89; People v. Montiel (1993) 5 Cal.4th 877, 932-933.)
―No constitutional principle precludes examination of a witness about the sincerity
and depth of religious and remorseful feelings he himself has placed in issue.‖
(Montiel, at p. 934.) An obvious, and permissible, method for the prosecution to
test the sincerity of defendant‘s claimed religious conversion was to question him
about his attitude towards his crimes.
Second, defendant testified on direct examination that he shot Kim only
after Kim shot him first. On cross-examination by deputy district attorney
Grosbard, he testified that after the Woodley Market shooting he ―went to the
Good Samaritan hospital, and there they took care of me.‖ But no one removed
the bullet from his leg. Defendant also testified that he had recently had X-rays
taken. Grosbard asked, ―Are you sure you didn‘t get shot somewhere in the period
between December 31, 1991 and April 18, 1992?‖ Defendant replied, ―I am sure
77
it wasn‘t then.‖ At defense request, a conference was held outside the jury‘s
presence.
During the conference, Grosbard stated, ―I have a good faith basis for
asking that, your Honor. There is a big time gap and we know of a shooting he is
connected to during that time.‖ Defense counsel objected that ―the prosecution is
trying to get other crimes and evidence in.‖ The court said, ―I don‘t see how you
can keep the People from suggesting that bullet was acquired some other time.‖
Referring to X-rays, the court asked defense counsel whether there were any
records from the hospital ―that are consistent with the bullet shown on those X-
rays?‖ Defense counsel responded, ―No.‖ In that event, the court observed, ―How
can I not let him cross-examine on that? You want all of us to take his word and
not allow any cross-examination where there is no record to support his position.
It‘s his word. I think the People have a right to challenge that word.‖ Grosbard
said his good faith belief was based on newspaper articles about a shooting in
February 1992.10 The court responded that it would not allow the prosecutor to go
into the newspaper articles.
In front of the jury, Grosbard asked defendant, ―Were you involved in a
shoot-out in February of 1992 in which you may very well have received that
gunshot wound?‖ Defense counsel objected. The court sustained the objection
and asked the prosecutor to rephrase the question. Grosbard then asked, ―Were
you involved in the shoot-out during the time period, between December 31, 1991,
and April 18, 1992?‖ Defendant said he was not involved in the shootout the
10
The prosecutor was apparently referring to Honduran newspaper articles
about a shootout in that country in which defendant was allegedly involved. At
one point earlier in the proceedings, the court ruled that, without more evidence,
the prosecutor could not ask questions about the articles. But it permitted the
prosecutor to renew the matter based on the actual evidence defendant presented.
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prosecutor was talking about. Defense counsel asked to approach the bench. The
court denied permission and directed Grosbard to ask his next question. Grosbard
moved on to another topic.
Later, defendant presented evidence that approximately two weeks before
defendant began testifying, X-rays were taken of him showing what appeared to
be a bullet in his right leg. The witness identifying the X-rays did not know the
caliber of the bullet and could not say how old it was.
For the reasons the court stated, it properly permitted the prosecution to ask
defendant a general question about the possibility he received the bullet wound on
some occasion other than during the Kim shooting. The court sustained
defendant‘s objection regarding the specific date that was apparently based on the
newspaper articles. Defendant denied participation in any such shootout, and the
matter was never pursued. Even if the prosecutor should not have asked the more
specific question, no prejudice ensued. The court sustained defendant‘s objection,
and the point was minor in light of the trial as a whole.
6. Claims of Prosecutorial Misconduct
Defendant contends the two prosecutors committed several acts of
misconduct. The use of deceptive or reprehensible methods to persuade the jury
constitutes misconduct. To preserve a claim of misconduct, the defendant must
object in a timely fashion and request an admonition. A claim of misconduct is
preserved for review only if an admonition would not have cured the harm.
(People v. Gonzales (2012) 54 Cal.4th 1234, 1275.) The Attorney General argues
that defendant has forfeited some of the current claims. Except as specifically
noted below, we find the claims cognizable. Defendant generally, and sometimes
repeatedly, objected to the cited misconduct on the grounds urged on appeal. The
court overruled some, although not all, of the objections, thus making a further
79
request for an admonition futile as to those objections. We discuss each claim of
misconduct in order.
(a) Defendant reiterates his argument that the prosecutor improperly
suggested in cross-examining him that he had actually committed the eight or nine
killings in his own country that he had mentioned to Rosa S. (See pt. II.C2, ante,
p. 66) The court‘s two admonitions cured any improper suggestion. Defendant
also argues that the prosecutor‘s questions on cross-examination regarding
whether he had been shot on some occasion other than during the Woodley Market
robbery (see pt. II.C.5, ante, p. 76) further suggested he committed the eight or
nine killings. It did not. The two points were separate. Vaguely referring to a
shootout in some undisclosed place in which defendant might have received the
bullet in his leg is entirely different from suggesting defendant committed several
killings in his own country.
Defendant also argues that the cross-examination of his sister, Argentina
Sanchez, who testified as a witness in mitigation, further improperly suggested he
had killed people in Honduras. It did not. This sister testified about defendant‘s
childhood in Honduras. She testified that during that time, because their parents
had separated, she ―was like a mother to him.‖ She also testified that ‖we make
mistakes‖ and asked the jury to spare defendant‘s life so ―he can serve other
people through the work of God.‖ On cross-examination, to establish how well
she had known defendant in recent years, the prosecutor asked her when she had
last seen defendant. Over defendant‘s objection, the court permitted the
prosecutor to elicit that she had last seen him in 1992 at her mother‘s house in
Honduras, and that before that he had only sent her two letters from the United
States. It sustained objections regarding additional details. We see no
impropriety.
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(b) Next, defendant contends the prosecutor committed misconduct by
violating certain court rulings. To fully understand the contention, a detailed
review of the relevant record is required.
Before he testified, defendant‘s attorney stated that he would not answer
any questions regarding who else was involved in the crimes and the roles of the
codefendants. The prosecutor argued ―that such questions would in fact test the
defendant‘s sincerity as to having a clean slate in life. The fact that he accepts for
himself what was done was wrong must be buttressed in order to show sincerity by
the fact that everybody else who was involved did wrong. And if he was not
willing to say what these other people have done and their roles, their names, their
locations, things like that, then it shows he is not in fact sincere in his religious
beliefs. It goes directly to his sincerity.‖ The court ruled that if defendant refused
to answer such questions, it would not hold him in contempt, but the prosecution
―can take advantage of that in argument and I think the defense can then handle it
the way they want to.‖
At this point, counsel for codefendant Navarro objected to questions about
Navarro. The prosecutor argued that such questions would be proper. The court
ruled that the prosecutor could ―ask about what he did, you can‘t ask what the
others did. You can ask him to indicate what he did . . . , no cross-examination to
the extent that we are asking the jury to separate the three of them. It makes it
difficult to separate the three when you start attacking the other defendants, use
Mr. Sanchez. So, no, you can‘t do it.‖
At one point during defendant‘s cross-examination, the prosecutor asked
whether defendant had ―made a choice to kill Officer Hoglund in order for you to
make an escape, for you and your compadres.‖ When counsel for Navarro
objected, the court said to ―limit it to just Mr. Sanchez.‖ Later, outside the jury‘s
presence, the prosecutor stated his intent to ask defendant about ―who did you do
81
the other robberies with other than the two men in court.‖ The court ruled he
could not do so, stating ―that gets into something other than himself and I don‘t
think the relevance of his remorse. Just leave it alone. When we originally talked,
it was just as to these defendants. I don‘t see anything to be gained by asking
about anybody else involved other than him. I know it was said differently before,
but as I think about it, the whole point of the penalty phase is to determine his
culpability.‖
During further cross-examination, the prosecutor asked defendant whether
he had ―provided any information to any investigators in this case in an attempt to
get the dangerous men who assisted you in the robbery and killing of Officer
Hoglund so those investigators could go find them and arrest them.‖ When
counsel for defendant asked to approach the bench, the court said the objection
was sustained. The prosecutor then asked, ―Have you provided any information to
get these people?‖ The court said, ―It‘s the same question. Just go on to
something else.‖ Later, the prosecutor asked whether defendant had ―split the
money evenly with the other people who participated in the robberies.‖ The court
sustained defendant‘s objection ―to the form of that question.‖ When the
prosecutor next asked whether defendant had gotten ―a fair share of the money,‖ a
conference was held outside the jury‘s presence.
Defendant‘s attorney asked the court to hold the prosecutor in contempt.
The court denied the request, ruling that the way the prosecutor rephrased the
question was appropriate. Counsel for Contreras objected to the prosecutor‘s
arguing from this questioning how much Contreras‘s share was. The court ruled,
―Maybe you cannot editorialize by taking out the ‗fair,‘ but I think that is not a bad
question, what did you get.‖
Later during defendant‘s cross-examination, the prosecutor asked where he
had gone after the Woodley Market shooting. Defendant responded that he went
82
to some friends‘ home, specifically the Umana family‘s home. The prosecutor
asked, ―Isn‘t that one of your partners in crime, Carlos Umana?‖ At this point,
another conference was held outside the jury‘s presence. Counsel for defendant
again asked the court to find the prosecutor in contempt. The court denied the
request. It explained, ―I reversed my ruling as the jury was walking in. Earlier I
did indicate you [the prosecutor] would be allowed to ask about the other persons.
I rethought that. Even though it may not affect the other defendants here on trial, I
am a little concerned about overlap over the other defendants and keeping it
separate. And for you to ask a question involving others, you are risking the
danger of having the defendant include the other defendants. So if he talks about
friends, leave it alone, or anybody else involved, and just ask what he did.‖ The
court stated it found no reason to find the prosecutor in contempt: ―The defendant
did make reference to going to a friend‘s house and there is a certain point — the
D.A. does have a right to cross-examine, but you are stepping into areas that may
affect the others, so stay away from anything that related to anybody other than
himself.‖
Still later during defendant‘s cross-examination, after defendant testified
that someone else had brought the stun gun to the Casa Gamino robbery, the
prosecutor asked, ―Did you ask to borrow it for a moment while you tortured those
people?‖ The court sustained counsel for Navarro‘s objection to the question ―as
phrased.‖ It permitted the prosecutor to ask, ―You knew that stun gun had been
brought to that location, didn‘t you?‖
During the cross-examination of Arturo Talamante, the coordinator of the
ministry of prisons, who testified about defendant‘s religious conversion, the
prosecutor asked, ―Did the defendant tell you why he has done nothing to help the
authorities to bring his other accomplices to justice?‖ The court sustained
defendant‘s objection, and the matter was not pursued.
83
Defendant argues that by asking these questions, the prosecutor repeatedly
violated the court‘s rulings against cross-examining him about the actions of
others. We disagree. The prosecutor was entitled to test the sincerity of
defendant‘s professed religious conversion by rigorous cross-examination. In so
doing, of course, he was not entitled to violate rulings the court had already made.
But he did not do so. As the trial court found in denying defendant‘s repeated
attempts to have the prosecutor found in contempt, the questions defendant
complains of did not violate its previous rulings.
Apparently concerned about possible unfairness to the codefendants, the
court originally ruled the prosecutor could not ask defendant about what the
codefendants had done, but it permitted questioning about participants other than
the codefendants. Later, it expanded the prohibition to include questions about the
actions of any of the participants. These are the rulings defendant claims the
prosecutor violated. The court sustained objections to some of the questions, and,
as to those questions, defendant did not request an admonition. As an admonition
would have cured any harm caused by a specific question, defendant has forfeited
the narrow claim that the particular question was misconduct. But he has
preserved the broader claim that the prosecutor repeatedly violated court rulings.
He objected repeatedly on that point.
The prosecutor‘s question about whether defendant had made the choice to
kill Officer Hoglund in order for him and his ―compadres‖ to escape did not
violate these rulings. The question merely asked defendant about his own
motivation and did not ask what the codefendants had done. In any event, the
court told the prosecutor just to limit the question to defendant.
The questions regarding whether defendant had provided any information
about the identities of the other participants also did not violate the rulings. The
questions asked only about defendant‘s own action or inaction. They did not ask
84
about the actions, or even identities, of anyone else. They seemed appropriate to
test the sincerity of defendant‘s claimed religious conversion. The court did not
explain why it sustained the objection, but the prosecutor could not be faulted for
not anticipating that the court would do so. The same is true of the prosecutor‘s
questions regarding whether defendant had split the money evenly. When
defendant testified that he had gone to the Umana family home, asking whether
that was the home of one of his partners in crime also did not violate the ruling,
although this question is a bit closer. The question seems relevant to proper cross-
examination, and the court acted properly in not finding any reason to find the
prosecutor in contempt. In any event, the question could not have prejudiced
defendant. The same is true of the question about whether defendant had asked to
borrow the stun gun. The court sustained the objection to the question as phrased
but permitted the followup question as to whether defendant had known the stun
gun had been brought to that location. This latter question was clearly proper
cross-examination, thus making the previous question innocuous.
Finally, the questioning of Talamante did not violate any court order. The
orders concerned cross-examination of defendant, not someone else. The
prosecutor asked Talamante nothing about the actions of others, but only about
defendant‘s actions. The question also seemed appropriate to test the validity of
Talamante‘s testimony regarding defendant‘s professed religious sincerity. The
court did not explain why it sustained the objection, but we see no misconduct in
asking the question. In any event, the matter was not pursued.
(c) Defendant claims the prosecutor improperly contacted the court ex
parte in connection with the events leading to the replacement of the interpreter.
(See pt. II.C.4, ante, p. 73.) He bases the claim on the following portions of the
record. After a lunch break during defendant‘s cross-examination, the prosecutor,
Grosbard, stated: ―Your honor, we understand we were going to have a different
85
interpreter this afternoon.‖ Counsel for codefendant Contreras stated that the
interpreter had approached him during the lunch hour and said that the prosecutor
had ―verbally attacked her in the way that she was conducting the
interpretation. . . . He threatened her in terms of taking her off the case, or
something to that effect.‖ He said that if the prosecutor had any problems ―he
should bring it to your [the court‘s] attention.‖ The court responded, ―It was
brought to my attention and I agree.‖ The court went on to replace the interpreter.
Based on this record, defendant concludes there must have been some sort
of improper ex parte communication between the prosecutor and the court during
the lunch break. The claim is forfeited because defendant did not object on this
point (although he did object to replacing the interpreter). The record could have
been clarified, and any impropriety quickly cured, had defendant objected to any
perceived improper communication.
The record also does not support the contention. The court did not indicate
when or how, or by whom,‖[i]t‖ was brought to its attention, or even exactly what
―it‖ was. No reason exists to believe there was an improper ex parte
communication between the prosecutor and the court rather than some other way
―it‖ was brought to the court‘s attention. No one present, including defendant‘s
attorney, apparently believed any improper communication had occurred. In any
event, because the parties had the full opportunity to litigate the propriety of
replacing the interpreter, and the replacement was neither erroneous nor
prejudicial, any assumed communication was harmless beyond a reasonable doubt.
(d) Defendant contends the prosecutor sometimes acted unprofessionally
and sarcastically. At one point during defendant‘s cross-examination, his attorney
asked for a conference outside the jury‘s presence. He asked the court ―to
admonish the prosecution to calm down a bit‖ and explained, ―I think that the
theatrics is in effect an attempt by him to testify, to tell the jury how disgusted he
86
is by my client.‖ He also complained that the prosecutor was sometimes sarcastic
in the cross-examination. The court refused to make any order, but told the
prosecutor, ―You can cut back on the editorializing. Just ask the questions and
save it for argument.‖ The prosecutor responded, ―I will.‖ Defendant‘s attorney
also objected that ―there‘s comments back and forth between the two district
attorneys in the court‖ that constituted ―public displays of their thoughts on the
testimony.‖ The court overruled that objection, noting that ―they‘re quietly
conferring. I don‘t see that as a public display any more that I see consultation
between [the defense attorneys].‖
On another occasion, after a morning recess, counsel for codefendant
Contreras asked the court to ―admonish Mr. Grosbard when he is finished with
witnesses, a simple ‗no more questions‘ will suffice rather than this reported oral
indignation.‖ The court responded, ―I will remind both of you, Mr. Leonard
[Contreras‘s attorney] as well as Mr. Grosbard. I will warn both of you again, we
don‘t need any editorializing, Mr. Grosbard.‖
This record shows that the defense attorneys complained about Grosbard,
as they often did. But it does not establish misconduct. The trial judge, who was
present and could observe the proceedings, did not believe more than these simple
admonitions was needed. We have no basis on which to disagree or to find any
prejudicial misconduct.
(e) Defendant contends Speer committed misconduct in cross-examining
Arturo Talamante, the coordinator of ministry in prisons who testified about
defendant‘s professed religious conversion. On direct examination, Talamante
testified that ―in these past 25 years, I‘ve only found two people who have the
spirituality that he [defendant] has had.‖ On cross-examination, over objection,
the prosecutor asked the witness who the second person was. Talamante said it
was Mr. Bedolla Duarte. He also testified that Bedolla Duarte ―was equally as
87
spiritual as the defendant.‖ Speer then asked, ―And do you believe that someone
like Mr. Bedolla or Mr. Sanchez in court, if they really found God they would not
go out and commit vicious acts of murder?‖ Defendant objected on the grounds of
―improper future dangerousness.‖ Speer responded that she was ―testing his
opinion.‖ The court overruled the objection. The witness said he believed that
―people that have truly found God don‘t go out and commit vicious acts of
murder.‖ He believed this of both defendant and Bedolla.
Over objection, the court ruled that, because the witness had said that in
―his 25 years there‘s only been two people of the level of spirituality he has ever
experienced, Bedolla being one and the defendant being the other,‖ the prosecutor
could question him about crimes Bedolla had committed after supposedly finding
God ―to impeach his assessment of sincerity.‖ It added that the prosecutor could
not go into future dangerousness. It explained that ―when we have a very strong
statement by this witness saying these are the only two people in 25 years, I think
she certainly has a right to explore that.‖ The prosecutor then noted to the witness
that Bedolla had recently been convicted of three counts of first degree murder,
five counts of attempted murder, 10 counts of robbery, and 12 counts of assault
with a firearm. The witness said he did not know that but reiterated his belief that
Bedolla had found God.
Defendant contends the court should not have permitted this cross-
examination. He does not contend the prosecutor lacked a good faith belief in the
facts of Bedolla‘s convictions (see People v. Payton (1992) 3 Cal.4th 1050, 1066),
but he argues it was improper impeachment. We disagree. As the trial court noted
in overruling defendant‘s objection, the witness identified defendant and Bedolla
as the two people who were the most spiritual in his 25 years of experience. The
prosecutor was entitled to explore the credibility of this belief. (Id. at pp. 1066-
1067 [cross-examination of a religious-conversion witness].) ―The value of giving
88
the jury a full and accurate view of [Talamante‘s] credibility was not substantially
outweighed by the probability of a substantial danger of undue prejudice. (Evid.
Code, § 352.)‖ (People v. Bennett, supra, 45 Cal.4th at p. 607.) We see no abuse
of discretion.
(f) Defendant contends Speer committed many acts of misconduct in the
jury argument. She argued that the murders were particularly aggravated because
they were deliberate and premeditated. The court overruled defendant‘s objection
that the argument was ―beyond the scope of the instructions‖ and later overruled
his renewed objection. Noting that the prosecution had successfully objected to
guilt phase instructions on deliberation and premeditation and instead relied solely
on the felony-murder rule as a basis for first degree murder, defendant contends it
was misconduct to argue premeditation and deliberation at the penalty phase. But
the two phases are quite different. The jury was entitled to consider the
―circumstances of the crime‖ in its penalty determination. (Pen. Code, § 190.3,
factor (a).) Whether the murders were deliberate and premeditated was a
circumstance of the crime relevant to penalty even if the question was irrelevant to
guilt due to the felony-murder rule. Defendant also claims the prosecutor
misstated the law in this regard by arguing that ―premeditation and deliberation is
certainly more aggravating than an unintentional killing or accidental killing
during the course of a robbery.‖ She did not misstate the law. She merely argued
circumstances that, in her view, made the crimes particularly aggravated. Doing
so was proper.
In her opening statement to the jury at the outset of the penalty phase, Speer
explained the penalty phase process. Without objection, she said the new phase
would ―venture into the background and character of the defendants. Now, we
cannot tell you everything about the defendants in this phase of the trial. We are
limited by law as the judge was explaining to you briefly to factors which are
89
called factors in aggravation, (a), (b), and (c), which are part of the jury
instructions that you will receive at the end of the evidence. The remaining factors
that are listed in these two charts in front of you can only be in mitigation, they
cannot be aggravation, except for the question of (a), which can be mitigation or
aggravation, which we will explain later on during the trial.‖
In her argument to the jury after presentation of evidence, she said, ―We
chose, Mr. Grosbard and I, to rely on the weight and gravity and the convincing
force of the evidence that you heard during the guilt phase.‖ None of the
defendants objected at the time. Later, outside the jury‘s presence, defendant‘s
attorney objected that this ―argument implied that there‘s things that the
prosecution could have used but didn‘t use, and that‘s not the state of the case.‖
The court noted that counsel did not object ―at the time where I could have
corrected it.‖ It added that ―there was something I caught that could have been
inferred that way, and then as she went on I thought the inference was not
supported.‖ It requested defense counsel to find the statement objected to in the
transcript. As far as the record shows, counsel did not pursue the matter.
Defendant contends the prosecutors improperly implied to the jury that
other aggravating evidence existed they chose not to present. The matter is not
cognizable because defendant never objected to the opening statement and did not
timely object to the argument on this ground. Further, counsel did not request an
admonition after the court invited him to find the statement in the record. As the
trial court indicated, an admonition could easily have corrected any
misimpression. It appears counsel decided to drop the matter, which was
reasonable under the circumstances. Any improper implication was very weak
and was never exploited. Other parts of the prosecutor‘s argument and the court‘s
instructions made clear to the jury that its verdict had to be based on the evidence
presented at the guilt and penalty phases of the trial. The vague statement
90
complained of, made in the course of a very lengthy argument, could not have
influenced the outcome.
Speer argued to the jury that the defense attorneys would ask for mercy for
their clients, but that the prosecution asked instead for justice. She noted that
crime victims are not permitted themselves to seek vengeance for the crimes —
that was what the criminal justice system is for. She went on to argue ―we owe the
victims in this case vengeance as part of our system of justice and as sanctioned by
the laws of our state, and that you swore to uphold as jurors in this case in
determining the penalty.‖ The court overruled defendant‘s objection at the time.
Later, outside the jury‘s presence, it overruled defendant‘s renewed objection, but
it also instructed the prosecutor ―to stay away from any further discussion of
vengeance.‖
Defendant contends this discussion of vengeance was improper. It was not.
―[P]rosecutorial references to community vengeance, while potentially
inflammatory, are not misconduct if they are brief and isolated, and do not form
the principal basis for advocating the death penalty.‖ (People v. Zambrano (2007)
41 Cal.4th 1082, 1178.) ―We noted in Zambrano that it is not error to argue ‗that
the death penalty, where imposed in deserving cases, is a valid form of community
retribution or vengeance — i.e., punishment — exacted by the state, under
controlled circumstances, and on behalf of all its members, in lieu of the right of
personal retaliation.‘ ([Zambrano], at p. 1178.) As in Zambrano, the prosecutor‘s
comments ‗did not seek to invoke untethered passions, or to dissuade jurors from
making individual decisions, but only to assert that the community, acting on
behalf of those injured, has the right to express its values by imposing the severest
punishment for the most aggravated crimes.‘ (Id. at p. 1179.) No misconduct
occurred.‖ (People v. Collins (2010) 49 Cal.4th 175, 228.) Arguing that ―we owe
the victims in this case vengeance as part of our system of justice‖ did not violate
91
this rule. The comment was brief and isolated. Indeed, the court, in overruling
defendant‘s objection, ordered the prosecutor to say away from further discussion
of vengeance, which the prosecutor did.
Speer argued that ―the defense may argue that we are stooping to their level
by giving the death penalty for killers, but there is a big difference, and that
couldn‘t be further from the truth, for the defendants will be executed, they will be
entitled to all the rights, privileges and safeguards that our society could possibly
provide, and that were meticulously honored by the police, the courts, the
attorneys, Mr. Grosbard and myself.‖ The court overruled defendant‘s objection
to the argument. Defendant contends this argument violated the rule ―that it is
constitutionally impermissible to rest a death sentence on a determination made by
a sentencer who has been led to believe that the responsibility for determining the
appropriateness of the defendant‘s death rests elsewhere.‖ (Caldwell v.
Mississippi (1985) 472 U.S. 320, 328-329.) It did not do so. The prosecutor
merely compared a death sentence that would be rendered after all of the
procedural protections the defendants received with the murders they committed.
Nothing in these comments suggested the responsibility for determining the proper
penalty rested elsewhere.
Finally, defendant cites a host of additional comments that he collectively
characterizes as ―flagrant misconduct.‖ Some were made at the guilt phase, but
defendant claims they improperly influenced the penalty determination. We have
reviewed these comments and find little, if anything, that is at all problematic and
certainly nothing prejudicial. Contrary to defendant‘s argument, one portion of
the argument did not improperly argue deterrence. At another point, the
prosecutor argued that the defendants ―may say that execution is horrible, but any
means of execution in our state is done with great efforts and great attempts to
make it as humane as possible.‖ The court sustained defendant‘s objection and
92
admonished the jury that it was ―not to consider for any purpose the manner of
execution. That is not something that needs to be or should be considered by you
in your determination as to which penalty is appropriate.‖ The comment could not
have affected the outcome, especially in light of the admonition. Contrary to
defendant‘s argument, comparing the robberies to a ―military operation,‖
describing some of the actions as ―torture‖ or coming ―into the Outrigger like
stormtroopers,‖ and calling defendant a ―little man,‖ were all properly based on
the evidence. (See People v. Dykes (2009) 46 Cal.4th 731, 768.) The robberies
were arguably like a military operation, the evidence showed defendant did torture
two victims, the reference to ―stormtroopers‖ did not improperly refer to any
particular historical figures (cf. People v. Bloom (1989) 48 Cal.3d 1194, 1213),
and we have permitted far worse epithets than ―little man‖ (which the prosecutor
presumably meant figuratively more than literally) when the evidence warranted
it. (People v. Fuiava (2012) 53 Cal.4th 622, 691-692.)
7. Denial of Instruction Regarding Mercy
The court denied defendants‘ request to instruct the jury regarding mercy.
Defendant contends the court erred. It did not. The standard instructions the court
gave were sufficient to inform the jury of its sentencing responsibility, and no
specific instruction on mercy was required. (People v. Jones (2012) 54 Cal.4th 1,
74-75, and cases cited.)
8. Denial of Motion to Modify Verdict
Defendant contends the court erred in denying his automatic motion to
modify the verdict of death. (§ 190.4.) ―In ruling on defendant‘s application for
modification of the verdict, the trial court must reweigh the evidence; consider the
aggravating and mitigating circumstances; and determine whether, in its
independent judgment, the weight of the evidence supports the jury‘s verdict.
93
[Citation.] On appeal, although the trial court‘s ruling is subject to independent
review, we do not make a de novo determination of penalty.‖ (People v. Brady
(2010) 50 Cal.4th 547, 588.) We have reviewed the court‘s ruling and conclude it
applied the correct standard. It understood its role perfectly and reviewed the
evidence and law thoroughly.
Defendant contends the court erred in several respects. ―Because [he]
failed to object on these — or any — grounds, and because the modification
hearing postdated our decision in People v. Hill (1992) 3 Cal.4th 959, [he] has
forfeited these claims.‖ (People v. Rodriguez (2014) 58 Cal.4th 587, 650.) We
would also reject the contention on the merits.
As defendant notes, the court did make one mistake in its extraordinarily
detailed recitation of the facts of the crimes. The court stated that defendant
―personally . . . sexually assaulted‖ Maricella Mendoza. In fact, although she
testified that one of the robbers had tried to kiss her, it appears defendant was not
that person. But the mistake was insignificant in light of the crimes as a whole.
The court found that the jury‘s assessment ―that the factors in aggravation
substantially outweighed the factors in mitigation and that death is warranted is
overwhelmingly supported by the evidence.‖ We see no reasonable possibility the
misstatement affected the ruling. (People v. Cleveland (2004) 32 Cal.4th 704,
767.)
The court also stated that defendant ―tortured‖ Armando Lopez and
Maricella Mendoza. Defendant contends the court erred in using this word
because he was not charged with the crime of torture under Penal Code section
206. But the court did not state that defendant had been convicted of the crime of
torture. Rather, it stated that he did, in fact, torture the two. The evidence showed
that he did exactly that when he repeatedly used the stun gun on them while trying
94
to force Lopez to unlock the safe. Indeed, witnesses said their screams of pain
could be heard throughout the restaurant.
The court found that the evidence of defendant‘s ―upbringing and religious
conversion does not serve as a moral justification or extenuation for his conduct
and further finds that such mitigation is not sufficient to serve as a basis for a
sentence less than death.‖ (Italics added.) Defendant argues the court erred
because he did not have to show ―that his mitigating evidence served as a moral
justification for his conduct.‖ He is correct, but the court never suggested he did
have to make that showing. Whether the ―the offense was committed under
circumstances which the defendant reasonably believed to be a moral justification
or extenuation for his conduct‖ is a statutorily designated factor in mitigation for
the sentencer to consider. (Pen. Code, § 190.3, factor (f).) The court properly
noted the absence of this factor in mitigation. It repeatedly stated it was
considering all of the evidence and all of the factors in mitigation, and it did so,
thoroughly. The italicized portion of the court‘s ruling that defendant challenges
made clear the court did consider the evidence in mitigation for all purposes. ―The
court must consider all of the evidence, but it need not give any particular weight
or, indeed, any weight to any particular evidence offered in mitigation.‖ (People
v. Rodriguez, supra, 58 Cal.4th at p. 651.)
The court mentioned that it had received a letter from defendant and briefly
described its contents. It said the letter was delivered after the trial ―and has no
impact on the court‘s evaluation of the motion under [Penal Code section] 190.4,
but to have an impact to find that the conversion is sincere, the court is not able to
make that finding.‖ Defendant argues this means the court improperly considered
the letter rather than limiting itself to the evidence presented at trial. He is correct
that the court is supposed to consider only the evidence presented at trial. (People
v. Rodriguez, supra, 58 Cal.4th at p. 651.) The court recognized that rule. It is not
95
entirely clear what the court otherwise meant, but at most it added that the letter
did not cause it to find the claimed religious conversion was sincere. What is clear
is that the court did not base its denial of the modification motion on the letter.
The court properly denied the modification motion.
9. Challenges to California’s Death Penalty Law
Defendant reiterates several contentions we have repeatedly rejected. We
see no reason to reconsider our previous decisions.
Penal Code sections 190.2 and 190.3 are not impermissibly broad, and
factor (a) of Penal Code section 190.3 does not make imposition of the death
penalty arbitrary and capricious. (People v. Johnson (2015) 60 Cal.4th 966, 997.)
―Except for evidence of other crimes and prior convictions, jurors need not find
aggravating factors true beyond a reasonable doubt; no instruction on burden of
proof is needed; the jury need not achieve unanimity except for the verdict itself;
and written findings are not required.‖ (Ibid.) ―CALJIC No. 8.88‘s use of the
words ‗so substantial,‘ its use of the word ‗warrants‘ instead of ‗appropriate,‘ its
failure to instruct the jury that a sentence of life is mandatory if mitigation
outweighs aggravation, and its failure to instruct the jury on a ‗presumption of life‘
does not render the instruction invalid.‖ (People v. Rountree, supra, 56 Cal.4th at
pp. 862-863.) ―The trial court was not required to instruct the jury that there is no
burden of proof at the penalty phase, and that the beyond-a-reasonable-doubt
standard and requirement of jury unanimity do not apply to mitigating factors.‖
(People v. Streeter (2012) 54 Cal.4th 205, 268; see also Kansas v. Carr, supra, __
U.S. at p. __ [136 S.Ct. at pp. 641-644].) Penal Code ―[s]ection 190.3‘s use of
adjectives such as ‗extreme‘ and ‗substantial‘ in describing mitigating
circumstances does not impermissibly limit the jury‘s consideration of mitigating
factors.‖ (Rountree, at p. 863.) ―The court need not delete inapplicable
96
sentencing factors or instruct that statutory mitigating factors are relevant solely in
mitigation.‖ (Ibid.) Intercase proportionality review is not required. (Id. at p.
862.)11 California‘s death penalty law does not violate equal protection by
treating capital and noncapital defendants differently. (Id. at p. 863.) California‘s
use of the death penalty does not violate international law. (Ibid.)
D. Cumulative Prejudice
Defendant contends the cumulative effect of the claimed errors was
prejudicial. We are reversing one count of robbery. But this error is not
prejudicial regarding the death judgment given that defendant committed
numerous other crimes including two murders, one attempted murder, and 25
other robberies. Any other assumed error, even considered cumulatively, was not
prejudicial.
11
We do provide intracase proportionality review on request. (People v.
Rountree, supra, 56 Cal.4th at p. 860.) Defendant does not request it, but, even if
he did, such review would not aid him. Given the extraordinarily callous and
brutal nature of the crimes, defendant‘s death sentence is neither disproportionate
to his individual culpability nor shocking to the conscience. (Ibid.)
97
III. CONCLUSION
We reverse defendant‘s conviction and sentence on count 21, the robbery of
Arturo Flores, modify the determinate prison sentence to a sentence of 53 years six
months, and otherwise affirm the judgment.
CHIN, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
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CONCURRING OPINION BY LIU, J.
I write separately to highlight two issues in this case that are ripe for
reconsideration by this court. The first concerns the relevance of comparative
juror analysis in determining whether a defendant has established a prima facie
case of racial discrimination in jury selection under Batson v. Kentucky (1986) 476
U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). The
second concerns California‘s standard instruction on how juries should evaluate
eyewitness identification evidence, a topic on which scientific research has shed
important light in recent decades.
I.
Today‘s opinion holds that the trial court did not err when it found no prima
facie case of racial discrimination in the prosecutor‘s use of peremptory strikes
against several Hispanic jurors. (Maj. opn., ante, at pp. 19–29.) In reaching this
conclusion, the court posits various nondiscriminatory reasons for why the
prosecutor would have wanted to strike those jurors. (Id. at pp. 24–25, 28.) I
agree that those reasons are apparent and clearly established in the record.
However, the court goes on to say: ―Defendant asks us to engage in comparative
juror analysis, but such analysis is inappropriate in a first stage case such as this,
where we do not evaluate the prosecution‘s stated reasons for the challenges.‖ (Id.
at pp. 28–29.)
1
I have previously explained why our rule barring comparative juror analysis
at the first stage of the Batson inquiry violates Batson‘s directive to consider ―all
relevant circumstances‖ in determining whether the opponent of a strike has
established a prima facie case of discrimination. (Batson, supra, 476 U.S. at p. 96;
accord, Johnson v. California (2005) 545 U.S. 162, 168–169.) ―If a court
hypothesizes race-neutral reasons the prosecution might have given for striking a
particular juror, isn‘t it relevant to inquire whether those reasons applied equally to
other jurors?‖ (People v. Harris (2013) 57 Cal.4th 804, 875 (conc. opn. of Liu, J.)
(Harris).) ―As the high court has explained: ‗If a prosecutor‘s proffered reason
for striking a black panelist applies just as well to an otherwise-similar nonblack
who is permitted to serve, that is evidence tending to prove purposeful
discrimination to be considered at Batson‘s third step.‘ (Miller-El [v. Dretke
(2005) 545 U.S. 231,] 241 (Miller-El).) By the same logic, if a court‘s
hypothesized reason for a prosecutor‘s strike of a black panelist ‗applies just as
well to an otherwise-similar nonblack who is permitted to serve, that is evidence
tending to prove purposeful discrimination to be considered‘ at Batson‘s first
step.‖ (Id. at p. 874.)
Today‘s opinion cites People v. Taylor (2010) 48 Cal.4th 574, 616–617
(Taylor), for the contrary rule. That case cited People v. Bonilla (2007) 41 Cal.4th
313, 350 (Bonilla), which in turn cited People v. Bell (2007) 40 Cal.4th 582, 601
(Bell).
In Bell, ―[t]his court, like the trial court, [was] able to determine that
defendant made no prima facie case without hypothesizing permissible reasons
that might have motivated the prosecutor‘s challenges.‖ (Bell, supra, 40 Cal.4th at
p. 600.) The defendant argued that the high court‘s then-recent decision in Miller-
El mandated comparative juror analysis at Batson‘s first step. Rejecting this
argument, we said: ―In the circumstances of this first-stage Wheeler-Batson case,
2
comparative juror analysis would make little sense. In determining whether
defendant has made a prima facie case, the trial court did not ask the prosecutor to
give reasons for his challenges, the prosecutor did not volunteer any, and the court
did not hypothesize any. Nor, obviously, did the trial court compare the
challenged and accepted jurors to determine the plausibility of any asserted or
hypothesized reasons. Where, as here, no reasons for the prosecutor‘s challenges
were accepted or posited by either the trial court or this court, there is no fit
subject for comparison. Comparative juror analysis would be formless and
unbounded.‖ (Bell, at pp. 600–601.) We added: ―Miller-El does not mandate
comparative juror analysis in a first-stage Wheeler-Batson case when neither the
trial court nor the reviewing courts have been presented with the prosecutor‘s
reasons or have hypothesized any possible reasons.‖ (Id. at p. 601.) Bell thus
stands for the proposition that comparative juror analysis does not make sense at
Batson‘s first step when neither the trial court nor a reviewing court has
hypothesized any reasons for the contested strike. In that circumstance, ―there is
no fit subject for comparison,‖ and a court has no duty to compare jurors on the
basis of ―unspecified criteria.‖ (Bell, at p. 601.)
Four months later, this court in Bonilla extended the rule against
comparative juror analysis at Batson‘s first step to circumstances where we did
hypothesize reasons for the contested strikes. (See Bonilla, supra, 41 Cal.4th at
pp. 343, 346–349 [positing reasons to explain multiple strikes].) The entirety of
our reasoning was that ―this is a ‗first-stage‘ Wheeler/Batson case, in that the trial
court denied Bonilla‘s motions after concluding he had failed to make out a prima
facie case, not a ‗third-stage‘ case, in which a trial court concludes a prima facie
case has been made, solicits an explanation of the peremptory challenges from the
prosecutor, and only then determines whether the defendant has carried his burden
of demonstrating group bias. We have concluded that Miller-El v. Dretke (2005)
3
545 U.S. 231 does not mandate comparative juror analysis in these circumstances
(People v. Bell, supra, 40 Cal.4th at p. 601), and thus we are not compelled to
conduct a comparative analysis here. Whatever use comparative juror analysis
might have in a third-stage case for determining whether a prosecutor‘s proffered
justifications for his strikes are pretextual, it has little or no use where the analysis
does not hinge on the prosecution‘s actual proffered rationales, and we thus
decline to engage in a comparative analysis here.‖ (Bonilla, supra, 41 Cal.4th at
p. 350.)
Bonilla‘s reliance on Bell was misplaced. Bell held that comparative juror
analysis is not required when a reviewing court does not hypothesize reasons for a
contested strike in finding no prima facie case of discrimination. (Bell, supra, 40
Cal.4th at pp. 600–601.) Bell‘s reasoning does not apply when a reviewing court
does hypothesize such reasons, for in that circumstance, there is a ―fit subject for
comparison,‖ and the criteria for comparing jurors are not ―unspecified.‖ (Id. at
p. 601.) If a court posits a nondiscriminatory reason for a contested strike,
whether that reason applies to similarly situated jurors whom the prosecutor did
not strike is plainly a ―relevant circumstance[]‖ bearing on its plausibility as an
explanation for the contested strike. (Batson, supra, 476 U.S. at p. 96.)
Since Bonilla, this court has repeatedly held that it is unnecessary to engage
in comparative juror analysis to test the plausibility of a hypothesized reason at
Batson‘s first step. (See People v. Streeter (2012) 54 Cal.4th 205, 225–226 &
fn. 5 (Streeter); People v. Clark (2011) 52 Cal.4th 856, 907–908 & fn. 13 (Clark);
Taylor, supra, 48 Cal.4th at pp. 616–617; People v. Hawthorne (2009) 46 Cal.4th
67, 80, fn. 3; People v. Howard (2008) 42 Cal.4th 1000, 1019–1020.) Our cases
have simply cited Bonilla or precedent applying Bonilla without further reasoning.
Recently, in Harris, one justice changed her view on this issue: ―When, as
here, a reviewing court discerns from the record that a peremptory challenge is
4
supported by a race-neutral reason not stated by the prosecutor, should the court
also consider whether that reason ‗applied equally to other jurors‘ not challenged
by the prosecutor? (Conc. opn. of Liu, J., post, 57 Cal.4th at p. 875.) As Justice
Liu explains, consideration of such information flows logically from the United
States Supreme Court‘s statement that, in determining whether a party has made a
prima facie case that the opposing party has challenged a prospective juror
because of race, a court should consider ‗all relevant circumstances.‘ (Batson,
supra, 476 U.S. at pp. 96–97.) But in that situation, this court has noted in past
decisions that it would not engage in comparative juror analysis. [Citations to
Streeter, Clark, and Bonilla.] I joined those decisions. I am now persuaded,
however, that circumstances pertaining to other jurors can be relevant in this
context. What comes to mind in this change of view are the oft-quoted words of
United States Supreme Court Justice Felix Frankfurter: ‗Wisdom too often never
comes, and so one ought not to reject it merely because it comes late.‘ (Henslee v.
Union Planters Bank (1949) 335 U.S. 595, 600.)‖ (Harris, supra, 57 Cal.4th at
pp. 862–863 (conc. opn. of Kennard, J.).)
Notably, this court in Harris, while observing that ―we have declined to
conduct a comparative juror analysis‖ at Batson‘s first step, acknowledged
contrary precedent and did not reaffirm our rule. (Harris, supra, 57 Cal.4th at
p. 836, citing U.S. v. Collins (9th Cir. 2009) 551 F.3d 914.) Instead of finding it
unnecessary to conduct a comparative juror analysis, Harris held that ―even if we
were to do so, a comparative juror analysis does not aid defendant.‖ (Harris, at
p. 836.) The court proceeded to conduct a comparative juror analysis (id. at
pp. 836–838) — as did Justice Kennard (id. at p. 863 (conc. opn. of Kennard, J.))
and I (id. at pp. 876–879 (conc. opn. of Liu, J.)) — and the court concluded that
there were valid reasons in the record for distinguishing between the contested
jurors and other prospective jurors. The reasoning of all seven justices in Harris
5
belies any concern that comparative juror analysis in these circumstances would
be ―formless and unbounded‖ (Bell, supra, 40 Cal.4th at p. 601) or analytically of
―little or no use‖ (Bonilla, supra, 41 Cal.4th at p. 350) or otherwise
―inappropriate‖ (maj. opn., ante, at p. 28). (Cf. Harris, at p. 876 (conc. opn. of
Liu, J.) [noting that the court in Harris engaged in comparative juror analysis at
step one of Batson ―for the first time in our case law,‖ and questioning whether
―the court in deed, if not in word, has signaled a retreat from its established
rule‖].)
Our decisions, including this one, have never cited any other jurisdiction
that has rejected the relevance of comparative juror analysis in testing a
hypothesized reason for a contested strike. Meanwhile, a mountain of contrary
authority has piled up before and after Bonilla. (See, e.g., Sanchez v. Roden (1st
Cir. 2014) 753 F.3d 279, 302 [― ‗[A] prima facie case of discrimination can be
made out by offering a wide variety of evidence.‘ . . . [¶] [O]f great importance
here, we take into account ‗whether similarly situated jurors from outside the
allegedly targeted group were permitted to serve‘ on the jury in ruling on a Batson
challenge.‖]; Aspen v. Bissonnette (1st Cir. 2007) 480 F.3d 571, 577 [―In
considering [whether a defendant has raised an inference of discrimination], courts
examine both numeric and non-numeric forms of evidence. . . . Relevant non-
numeric evidence includes . . . apparent non-discriminatory reasons for striking
potential jurors based on their voir dire answers, [citation], and whether similarly
situated jurors from outside the allegedly targeted group were permitted to serve
. . . .‖]; Bennett v. Gaetz (7th Cir. 2010) 592 F.3d 786, 792 [―[U]nder the facts of
this case, the jurors‘ experience with crime seems an implausible reason for the
peremptories. Although the two African-Americans struck by the prosecution
testified that they had been crime victims, so too did at least four non-African-
Americans who ultimately served as jurors. Based on this side-by-side
6
comparison between excluded and non-excluded jurors, the prosecution would
have been hard-pressed to credibly assert the jurors‘ experience with crime as a
race-neutral reason had the trial court proceeded to Batson‘s second stage.‖]; U.S.
v. Young-Bey (8th Cir. 1990) 893 F.2d 178, 180 [evidence supporting an inference
of discrimination under Batson includes ―a pattern of discriminatory strikes, the
prosecutor‘s statements during voir dire suggesting discriminatory purpose, [and]
the fact that white persons were chosen for the petit jury who seemed to have the
same qualities as stricken black venirepersons‖]; U.S. v. Johnson (8th Cir. 1989)
873 F.2d 1137, 1140 [―In this case, the voir dire record does raise the inference of
discrimination as the Government struck black veniremen at a disproportionate
rate and struck blacks who did not respond during voir dire but did not strike
whites who similarly did not respond.‖]; U.S. v. Hughes (8th Cir. 1989) 880 F.2d
101, 103 [―There were six blacks on the original jury panel. . . . During voir dire
one of these three jurors . . . did not answer affirmatively to any of the district
court‘s questions calculated to determine bias or prejudice. Yet, as we read the
voir dire, others did not answer and some of those who did not answer appear to
have served on the petit jury. [¶] A second of the blacks challenged . . . had
served as a juror in city court and had been a victim of a burglary eight years
earlier. . . . About half of the venire similarly had been crime victims and several
had prior jury service.‖]; Crittenden v. Ayers (9th Cir. 2010) 624 F.3d 943, 956
[―[C]omparative juror analysis may be employed at step one to determine whether
the petitioner has established a prima facie case of discrimination.‖]; U.S. v.
Collins, supra, 551 F.3d at p. 922 [―[B]ased on our review of the record, we
conclude that an inference of discrimination did exist in this case. Comparison of
Juror No. 9‘s characteristics with the characteristics of other similarly situated
panel members who were allowed to serve reveals little distinction that could
account for the prosecutor‘s strike of Juror No. 9.‖]; U.S. v. Esparsen (10th Cir.
7
1991) 930 F.2d 1461, 1467 [―By itself, the number of challenges used against
members of a particular race is ‗not sufficient to establish or negate a prima facie
case.‘ [Citations.] The number takes on meaning only in the context of other
information such as the racial composition of the venire, the race of others struck
by the prosecution, or the voir dire answers of those who were struck compared to
the answers of those who were not struck.‖ (fns. omitted)]; U.S. v. Ochoa-Vasquez
(11th Cir. 2005) 428 F.3d 1015, 1044 [―In order to determine whether a Batson
objector like Ochoa has established a prima facie case of discrimination, courts
must consider all relevant circumstances. [Citations.] . . . While statistical
evidence may support an inference of discrimination, it can do so ‗only‘ when
placed ‗in context.‘ [Citations.] For example, ‗the number of persons struck takes
on meaning only when coupled with other information such as the racial
composition of the venire, the race of others struck, or the voir dire answers of
those who were struck compared to the answers of those who were not struck.‘ ‖];
U.S. v. Allison (11th Cir. 1990) 908 F.2d 1531, 1538 [―In making out a prima facie
case, . . . ‗[t]he defendant must identify facts and circumstances that support the
inference of discrimination, such as a pattern of discriminatory strikes, the
prosecutor‘s statements during voir dire suggesting discriminatory purpose, or the
fact that white persons were chosen for the petit jury who seemed to have the same
qualities as stricken black venirepersons.‘ ‖]; State v. Rhone (Wash. 2010) 229
P.3d 752, 757 [―circumstances evincing an inference of discrimination‖ include
―similarities between those individuals who remain on the jury and those who
have been struck‖]; People v. Davis (Ill. 2009) 909 N.E.2d 766, 773 [comparative
juror analysis is ―one factor in the totality of the circumstances that the court
should take into consideration in considering the existence of a prima facie case‖];
People v. Bolling (N.Y. 1992) 591 N.E.2d 1136, 1141 [―The defendant may also
raise an inference of discrimination by making a record comparing Caucasians
8
accepted with similarly situated African-Americans challenged . . . .‖]; Ex parte
Branch (Ala. 1987) 526 So.2d 609, 622–623 [―the types of evidence that can be
used to raise the inference of discrimination‖ include ―[d]isparate treatment of
members of the jury venire with the same characteristics, or who answer a
question in the same or similar manner; e.g., . . . a black elementary school teacher
was struck as being potentially too liberal because of his job, but a white
elementary school teacher was not challenged‖].)
In sum, the rule we announced in Bonilla is out of step with prevailing
authority; Bonilla‘s reliance on Bell was misplaced; neither Bonilla nor any
subsequent case has explained why comparative juror analysis is irrelevant or
inappropriate to test the plausibility of a hypothesized reason for a contested strike;
and the application of comparative juror analysis by the majority and concurring
justices in Harris demonstrates its relevance to the first-stage Batson inquiry. These
considerations present ample justification for reconsidering our precedent. (See
Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287, 296–297.)
In this case, the court‘s first-stage analysis includes hypothesized reasons
for the prosecutor‘s strikes of Prospective Jurors P.G., E.A., and T.M. (Maj. opn.,
ante, at pp. 24–25, 28.) Comparative juror analysis is warranted but, on this
record, does not aid the Batson claims. Although defendant Edgardo Sánchez says
four other jurors were similar to P.G. in their opposition to the death penalty, the
record shows that none of the four expressed as strong a dislike of the death
penalty as P.G. did. As to E.A., Sánchez does not identify any comparison jurors,
and in any event, no other prospective juror possessed E.A.‘s combination of
reluctance to be involved in making a death penalty decision, history of sexual
abuse as a child, and recent experience of a brain operation for a seizure disorder.
And as to T.M., the record shows that there were 10 other jurors who answered
―yes‖ on the questionnaire to the question whether the juror had ―moral, ethical or
9
religious beliefs that would make it difficult for you to vote for‖ the death penalty.
Among those 10, six were excused for cause, two were struck by the prosecution,
and the other two never reached the jury box. Comparative juror analysis thus
casts no doubt on the plausibility of the reasons posited by the court for the strikes
of P.G., E.A., and T.M., and I join the court in affirming the trial court‘s first-stage
Batson rulings.
II.
The trial court instructed the jury with CALJIC No. 2.92, which says that
―[i]n determining the weight to be given eyewitness identification testimony, you
should consider the believability of the eyewitness as well as other factors which
bear upon the accuracy of the witness‘ identification of the defendant, including
but not limited, to any of the following: [¶] . . . [¶] The extent to which the
witness is either certain or uncertain of the identification . . . .‖ Sánchez argues
that the trial court erred in instructing the jury that it could consider the certainty
factor. I agree that Sánchez forfeited this claim (maj. opn., ante, at p. 59) and that
any error was harmless because ―the eyewitness identifications were far from the
only evidence connecting defendant to the crimes‖ (id. at p. 61). But I do not join
the court in approving the instruction as given in this case.
Today‘s opinion notes that during the more than two decades since we
approved the certainty factor in People v. Johnson (1992) 3 Cal.4th 1183, 1231–
1232, at least two state high courts have disapproved instructing on this factor in
light of scientific studies showing that witness certainty is not necessarily
correlated with accuracy of eyewitness identifications. (See State v. Mitchell
(Kan. 2012) 275 P.3d 905, 912–913 (Mitchell); Commonwealth v. Santoli (Mass.
1997) 680 N.E.2d 1116, 1121.) The court goes on to say that this case involves
―uncertain as well as certain identifications‖ and that ―[a]ny reexamination of our
10
previous holdings in light of developments in other jurisdictions should await a
case involving only certain identifications.‖ (Maj. opn., ante, at pp. 60–61.)
But even if it were proper to instruct the jury to consider a witness‘s
expression of uncertainty regarding an identification, that would not mean it is
proper to instruct the jury to consider a witness‘s expression of certainty. They
are not two sides of the same coin. If it is erroneous to instruct a jury to consider a
witness‘s certainty in evaluating the accuracy of an identification, then it is no less
erroneous to instruct a jury to consider both certainty and uncertainty in a case
involving certain and uncertain identifications. Because we can dispose of
Sánchez‘s claim on grounds of forfeiture and harmless error, we need not resolve
the merits here. But I see no reason to ―await a case involving only certain
identifications‖ (maj. opn., ante, at p. 61) before taking up this important issue.
The court says ―[t]he instruction cited the certainty factor in a neutral
manner, telling the jury only that it could consider it. It did not suggest that
certainty equals accuracy.‖ (Maj. opn., ante, at p. 61.) But the instruction
naturally ―prompts the jury to conclude that an eyewitness identification is more
reliable when the witness expresses greater certainty.‖ (Mitchell, supra, 275 P.3d
at p. 913.) As the New Jersey Supreme Court explained in a recent decision
reevaluating the legal framework for admitting eyewitness identification evidence,
―[w]e presume that jurors are able to detect liars from truth tellers. But as scholars
have cautioned, most eyewitnesses think they are telling the truth even when their
testimony is inaccurate, and ‗[b]ecause the eyewitness is testifying honestly (i.e.,
sincerely), he or she will not display the demeanor of the dishonest or biased
witness.‘ [Citation.] Instead, some mistaken eyewitnesses, at least by the time
they testify at trial, exude supreme confidence in their identifications.‖ (State v.
Henderson (N.J. 2011) 27 A.3d 872, 889 (Henderson).)
11
The Oregon Supreme Court, in another recent decision reexamining the
admissibility of eyewitness identification evidence, summarized the research on
witness certainty and accuracy as follows: ―Despite widespread reliance by judges
and juries on the certainty of an eyewitness‘s identification, studies show that,
under most circumstances, witness confidence or certainty is not a good indicator
of identification accuracy. Regarding prospective certainty—the witness‘s
confidence prior to the identification procedure in his or her ability to make an
identification—a number of meta-analytic studies have found no correlation
between certainty and identification accuracy. In contrast, retrospective
certainty—witness confidence in the accuracy of their identification after it has
occurred—may have a weak correlation with accuracy. See Gary L. Wells &
Elizabeth A. Olsen, Eyewitness Testimony, 54 Ann. Rev. Psychol. 277, 283 (2003)
(describing studies). The effect, however, appears only within the small
percentage of extremely confident witnesses who rated their certainty at 90
percent or higher, and even those individuals were wrong 10 percent of the time.
Id.
―Research also shows that retrospective self-reports on eyewitness certainty
are highly susceptible to suggestive procedures and confirming feedback, a factor
that further limits the utility of the certainty variable. Wells, ‗Good, You Identified
the Suspect‘[: Feedback to Eyewitnesses Distorts Their Reports of the Witnessing
Experience (1998)] 83 J. Applied Psychol. 360. Witnesses who receive
confirming feedback, i.e., are told or otherwise made aware that they made a
correct identification—report higher levels of retrospective confidence than
witnesses who receive either no feedback or disconfirming feedback. Id. It
appears, moreover, that confirming feedback may inflate confidence to a greater
degree in mistaken identifications than in correct identifications. See, e.g., Amy L.
Bradfield et al., The Damaging Effect of Confirming Feedback on the Relation
12
Between Eyewitness Certainty and Identification Accuracy, 87 J. Applied Psychol.
112, 115 (2002) (reporting that inaccurate witness self-reports increased from an
average of 49 percent certain to an average of 67 percent certain after receiving
confirming feedback, while the same feedback increased accurate witnesses‘
certainty only from an average of 80 percent to 85 percent).
―Finally, we note that witness certainty, although a poor indicator of
identification accuracy in most cases, nevertheless has substantial potential to
influence jurors. Studies show that eyewitness confidence is the single most
influential factor in juror determinations regarding the accuracy of an eyewitness
identification. See, e.g., Gary L. Wells et al., Accuracy, Confidence, and Juror
Perceptions in Eyewitness Identification, 64 J. Applied Psychol. 440, 446 (1979);
Michael R. Leippe et al., Cueing Confidence in Eyewitness Identifications:
Influence of Biased Lineup Instructions and Pre-Identification Memory Feedback
Under Varying Lineup Conditions, 33 Law & Hum. Behav. 194, 194 (2009)
(summarizing prior research). Jurors, however, tend to be unaware of the
generally weak relationship between confidence and accuracy, and are also
unaware of how susceptible witness certainty is to manipulation by suggestive
procedures or confirming feedback. See, e.g., Tanja R. Benton et al., Eyewitness
Memory is Still Not Common Sense: Comparing Jurors, Judges and Law
Enforcement to Eyewitness Experts, 20 Applied Cognitive Psychol. 115, 120
(2006) (finding that only 38 percent of jurors surveyed correctly understood the
relationship between accuracy and confidence and only 50 percent of jurors
recognized that witnesses‘ confidence can be manipulated). As a result, jurors
consistently tend to overvalue the effect of the certainty variable in determining
the accuracy of eyewitness identifications.‖ (State v. Lawson (Or. 2012) 291 P.3d
673, 704–705; see State v. Ledbetter (Conn. 2005) 881 A.2d 290, 311–313
[reviewing research showing that ―a weak correlation, at most, exists between the
13
level of certainty demonstrated by the witness at the identification and the
accuracy of that identification‖ and that ―this factor seems to have a significant
impact on the [jury‘s] reliability analysis‖].)
In a recent report canvassing the scientific research on eyewitness
identification, a committee of the National Academy of Sciences wrote:
―Evidence indicates that self-reported confidence at the time of trial is not a
reliable predictor of eyewitness accuracy. The relationship between the witness‘
stated confidence and accuracy of identifications may be greater at the moment of
initial identification than at the time of trial. However, the strength of the
confidence-accuracy relationship varies, as it depends on complex interactions
among such factors as environmental conditions, persons involved, individual
emotional states, and more. Expressions of confidence in the courtroom often
deviate substantially from a witness‘ initial confidence judgment, and confidence
levels reported long after the initial identification can be inflated by factors other
than the memory of the suspect.‖ (Nat. Research Council, Identifying the Culprit:
Assessing Eyewitness Identification (2014) p. 108, fns. omitted (Identifying the
Culprit).)
CALJIC No. 2.92 instructs the jury that the ―extent to which the witness is
either certain or uncertain of the identification‖ is a factor ―bear[ing] upon the
accuracy of the witness‘s identification of the defendant‖ that ―you should
consider.‖ This instruction does not distinguish between witness certainty at the
time of identification and witness certainty at the time of trial. Nor does it caution
that many factors can affect the relationship between certainty and accuracy at the
time of identification and at the time of trial. Nor does it acknowledge that the
relationship between uncertainty and inaccuracy may differ from the relationship
between certainty and accuracy. To be sure, the reliability of eyewitness
identification is a matter that the parties can contest at trial, using expert testimony
14
if they wish. (See People v. McDonald (1984) 37 Cal.3d 351, 369; Perry v. New
Hampshire (2012) 565 U.S. __, __–__ [132 S.Ct. 716, 728–730].) But the parties‘
evidence and arguments do not obviate the need for a proper jury instruction. In
light of developments in scientific research and recent case law, there is a
substantial question whether it is proper for trial courts to instruct that witness
certainty is a factor bearing on the accuracy of an identification that juries should
consider.
The sooner we reexamine this issue, the better — for law enforcement, for
criminal defendants, and for society at large. ―Accurate eyewitness identifications
may aid in the apprehension and prosecution of the perpetrators of crimes.
However, inaccurate identifications may lead to the prosecution of innocent
persons while the guilty party goes free.‖ (Identifying the Culprit, supra, at p. 9;
see State v. Delgado (N.J. 2006) 902 A.2d 888, 895 [―Eyewitness identification
can be the most powerful evidence presented at trial, but it can be the most
dangerous too.‖].) Indeed, mistaken eyewitness identifications have played a role
in a substantial number of wrongful convictions and unsolved crimes. (Garrett,
Convicting the Innocent: Where Criminal Prosecutions Go Wrong (2011) p. 48
[finding that 190 of the first 250 inmates exonerated by DNA testing since 1989
were misidentified by an eyewitness].) This issue deserves our careful attention,
for ―[a]t stake is the very integrity of the criminal justice system and the courts‘
ability to conduct fair trials.‖ (Henderson, supra, 27 A.3d at p. 879.)
III.
Finally, today‘s opinion holds that the trial court did not err when it
admitted the stun gun evidence from the incident at Rod‘s Coffee Shop as
probative of Sánchez‘s identity as the person who used the stun gun during the
Casa Gamino robbery. (Maj. opn., ante, at p. 46.) But it is not clear to me that use
of a stun gun is ― ‗so unusual and distinctive as to be like a signature‘ ‖ relevant to
15
proving identity. (People v. Ewoldt (1994) 7 Cal.4th 380, 403.) Instead of
deciding whether the trial court erred, I would find that any error was harmless
beyond a reasonable doubt in light of the trial testimony of Armando Lopez and
Javier Lopez, both of whom identified Sánchez as the stun gun user.
Apart from the issues discussed above, I join the opinion of the court.
LIU, J.
16
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Sánchez
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S045423
Date Filed: June 23, 2016
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Jacqueline A. Connor
__________________________________________________________________________________
Counsel:
Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Sara Theiss,
Deputy State Public Defender, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Joseph P. Lee and Corey J. Robins, Deputy Attorneys General, for Plaintiff
and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Sara Theiss
Deputy State Public Defender
1111 Broadway, 10th Floor
Oakland, CA 94607
(510) 267-3300
Corey J. Robins
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 576-1343
Opinion Information
| Date: | Docket Number: |
| Thu, 06/23/2016 | S045423 |
