Supreme Court of California Justia
Docket No. S115872A
People v. Sandoval

Filed 12/24/15 (reposting to provide page numbers)



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S115872

v.

Los Angeles County

RAMON SANDOVAL, JR.,

Super. Ct. No. BA240074

Defendant and Appellant.



Defendant Ramon Sandoval, Jr. was convicted following a jury trial of the

premeditated murder of Long Beach Police Detective Daryle Black and the

attempted murder of his partner, Detective Rick Delfin. The jury found that the

murder was committed with the special circumstances that the victim was a peace

officer engaged in the lawful performance of his duties and that it was committed

for the purpose of preventing a lawful arrest, by means of lying in wait, and to

further the activities of a criminal street gang. The jury fixed the penalty at death.

This appeal is automatic. (Pen. Code, § 1239, subd. (b); all undesignated statutory

references are to this code.) We reverse the special circumstance finding that

Sandoval committed the murder by means of lying in wait, but otherwise affirm

the judgment.

I. FACTS

On February 9, 2001, a Los Angeles County Grand Jury returned an

indictment against defendant Ramon Sandoval and codefendants Adolfo

Bojorquez and Miguel Camacho. Bojorquez and Camacho are not parties to this

appeal. The indictment charged Sandoval with the April 2000 murder of Long

Beach Police Detective Daryle Black. (§ 187, subd. (a).) It also charged the

special circumstances that the victim was a peace officer engaged in the lawful

performance of his duties (§ 190.2, subd. (a)(7)), that the murder was committed

for the purpose of preventing a lawful arrest (§ 190.2, subd. (a)(5)) and by means

of lying in wait (§ 190.2, subd. (a)(15)), and that defendant was an active

participant in a criminal street gang and committed the murder to further the

activities of the gang (§ 190.2, subd. (a)(22)).

The indictment further charged Sandoval with the willful and premeditated

attempted murder of Long Beach Police Detective Rick Delfin while Detective

Delfin was in the lawful performance of his duties (§§ 664, subds. (e), (f); 187,

subd. (a)) and assault with an assault weapon on a peace officer in the lawful

performance of his duties (§ 245, subd. (d)(3)). The indictment also charged

Sandoval with assaulting Maria Cervantes with an assault weapon (§ 245,

subd. (d)(3)). The indictment alleged that Sandoval committed several of these

offenses for the benefit of a street gang (§ 186.22, subd. (b)(1)) and that he

personally discharged an assault weapon (former § 12022.53, subds. (c), (d),

(e)(1)).

A.

Guilt Phase

Trial began on September 23, 2002. In his opening statement, defense

counsel acknowledged that Sandoval was a gang member and that he had

confessed he shot and killed Detective Black and injured Detective Delfin, adding:

―The thing we are contesting was that Ramon Sandoval did not lie in wait on Lime

Avenue to kill Detective Black. We think the evidence will show that was strictly

a spontaneous, bizarre event that just occurred. Had those officers come by one

minute earlier or one minute later, they wouldn‘t have been shot.‖

2
According to Sandoval‘s confession, which was tape-recorded and played

for the jury, he was a member of the Barrio Pobre gang and goes by the moniker

―Menace.‖ On April 29, 2000, Sandoval and about 15 other members of the

Barrio Pobre gang were drinking outside an abandoned house in Compton when a

car pulled up. Someone in the car yelled ―Fuck BP‖ and ―East Side,‖ and began

shooting at them. No one was hit, and the car drove away. Sandoval and his

fellow gang members believed the shooting was committed by a rival gang named

East Side Paramount.

Sandoval and several members of his gang decided to retaliate. Sandoval

retrieved an assault weapon, an AR-15, from a fellow gang member, and they

went to the home of Vincent Ramirez, known as ―Toro,‖ who was a ―shot caller‖

or leader of the East Side Paramount gang. They knew that Toro was having a

birthday party at his house on Lime Avenue between 19th and 20th Streets in

Long Beach. They intended to knock on the door and kill Toro.

Sandoval, carrying the assault weapon, rode in a red Chevrolet Beretta

driven by Juan Camacho (―Pipas‖), the brother of codefendant Miguel Camacho

(Camacho or ―Rascal‖). They followed Camacho, Adolfo Bojorquez (―Grumpy‖),

and Julio Del Rio (―Sparky‖), who were riding in a Honda. They pulled to the

curb near Toro‘s house on the west side of Lime Avenue, facing south. Sandoval

got out of the car, still carrying the assault weapon, and saw Camacho walking on

the sidewalk on the east side of the street towards Toro‘s house. Sandoval was

about to join him when he saw a police car driving down Lime Avenue, so

Sandoval ducked behind the Beretta. The car was unmarked, but Sandoval

recognized it as a police car, in part because of the spotlights mounted on the

sides.

Sandoval saw that there were two police officers in the car, and they were

looking at Camacho. Sandoval knew Camacho was on parole and was violating

3
the terms of his parole because he was armed with a .45-caliber handgun. To

―save‖ Camacho from ―going to jail,‖ Sandoval stood up and opened fire on the

police car. Sandoval said the officers ―didn‘t know what to do‖ because ―[t]hey

didn‘t know where . . . the bullets were coming from‖ ―[‘c]ause they didn‘t see

me.‖

Detective Delfin confirmed that he did not see Sandoval until Sandoval

began shooting. Detective Delfin testified that he was driving an unmarked police

car southbound on Lime Avenue accompanied by Detective Black. They were

part of the gang unit. He noticed a car that was double-parked ―about midblock‖

and saw Camacho standing ―by the back bumper.‖ Detective Delfin ―slowed up

and stopped about two car lengths behind that car‖ as Camacho began walking

east across the street. Detective Delfin continued to look to his left, watching

Camacho. He was about to get out of the car and talk to Camacho when ―someone

up to my right . . . started unloading on our police car with [what sounded like] an

assault weapon.‖ He said, ―I did not know anybody was on that side of the car,

sir, until they started shooting.‖ ―First shot, I don‘t think it did anything. But the

ones following the first shot shattered the windows; window exploded, broke. The

car was getting torn apart inside the interior. Debris is flying. Then I caught a

round on the side of the head.‖

Jimmy Falconer was driving on Lime Avenue and witnessed the shooting.

He said there was nothing the police officers could do: ―It was sort of like a kind

of ambush. I‘m not saying set-up ambush, but if it was gonna be an ambush, this

would be the way to do it. They didn‘t have time. They were preoccupied with

[Camacho]. They were getting ready to jack him across the street, but then the

gunfire opened up from across the — from this other side of the street . . . .‖

―[T]hey didn‘t see it coming.‖

4
Officers responding to Detective Delfin‘s radio call for assistance took

Detective Black to the hospital, where he died from a gunshot wound to his head.

Detective Delfin had been shot in the head and right knee. Police found 28

expended shell casings at the crime scene.

Maria Cervantes also was shot. She had been lying in her bed in her home

on Lime Avenue when she was shot in her leg and abdomen. She was about eight

months pregnant, but her unborn child was not injured.

About 20 minutes after the shooting, police found Camacho hiding in the

backyard of a nearby house. Camacho assisted police ―in trying to locate the

shooter‖ in this case.

On May 2, 2000, police executed a search warrant for Sandoval‘s residence

and arrested Sandoval. A red Chevrolet Beretta was parked behind the residence,

and an AR-15 assault weapon, covered by a towel, was found behind the stove.

Ballistics tests revealed that this was the rifle that had been used to shoot

Detectives Black and Delfin.

B.

Penalty Phase

The first penalty phase commenced on October 23, 2002, but the court

declared a mistrial after the jury was unable to reach a verdict. The penalty phase

retrial began on March 17, 2003.



i.

Prosecution Case

Many of the witnesses who had testified during the guilt phase testified at

the second penalty phase and described the circumstances of the crime. This

testimony included information about the Barrio Pobre gang, Sandoval‘s and

Camacho‘s participation in the gang, and the gang meeting just before the

shooting on Lime Avenue. Detective Delfin gave a detailed description of the

shooting.

5
The prosecution also introduced evidence of an uncharged crime in which

Sandoval and Camacho killed Jesus Cervantez and attempted to kill Steve Romero

at a McDonald‘s restaurant in Lynwood six months before Detective Black‘s

murder. The victims in that incident were members of a tagging crew called Just

Kicking It, who earlier had committed a drive-by shooting aimed at Sandoval and

his gang. Sandoval admitted he used an AK-47 against the crew members to

retaliate for the drive-by shooting.

As part of the prosecution‘s victim impact evidence, several of Detective

Black‘s friends and siblings testified to his gentle demeanor and noted his

compassion toward and desire to have children. Detective Delfin also testified to

the emotional strain caused by the knee injury he sustained during the shooting,

which rendered him unable to work. His wife testified to the emotional and

physical impact of the incident on both her husband and their three young

children.

ii. Defense Case

Sandoval was born on August 8, 1981 to parents who had emigrated to the

United States from Mexico. He was 18 years old at the time of the Lime Avenue

shooting.

Sandoval‘s family moved around frequently and struggled to pay the bills

during his childhood. Members of Sandoval‘s extended family testified to his

behavior as a child, describing him as a ―normal boy,‖ ―a good child,‖ and ―very

easy going.‖ Multiple witnesses described his soccer abilities as a young teenager.

Sandoval‘s soccer coach also described a family situation that ―maybe affected

[defendant]‖: during the last season in which Sandoval played soccer, his father

began an affair with the coach‘s niece.

6
Sandoval‘s mother testified to her love for her son. She explained that

gangs had been present in their neighborhood while he was growing up. In

addition to moving homes, she and her husband twice sent Sandoval to live with

relatives during his teenage years in an effort to remove him from gang influence.

The defense presented evidence of the increasing pressure Sandoval felt to join a

gang, his efforts to protect his younger brother from gangs, and the overall

influence of gangs on poor urban youth.

II. PRETRIAL ISSUES

A. Motion to Suppress Evidence

Sandoval argues that the trial court erred by relying upon extrajudicial

findings in denying his motion to suppress evidence and in failing to conduct an

evidentiary hearing. Defendant seeks ―a remand for a full and fair hearing.‖

Before trial, Sandoval filed a motion to suppress the statements he made to

police following his arrest, to quash the warrant used to search his residence and

automobile, and to suppress all evidence obtained as a result of these searches. He

asked for a de novo hearing pursuant to Franks v. Delaware (1978) 438 U.S. 154

(Franks). The warrant was based upon the 12-page declaration of Long Beach

Police Officer Steven F. Smith, which was executed on April 30, 2000, and

described in detail the murder of Detective Black and the shooting of Detective

Delfin and Maria Cervantes the night before, including the fact that there were 17

bullet holes in the right side of the officers‘ police car and 28 shell cases from a

.223-caliber firearm recovered at the crime scene. These types of shells would

have been ―fired from an AR-15 assault rifle or a Ruger Mini-14.‖ Another

officer had interviewed Detective Delfin at the hospital, and Detective Delfin said

he had stopped his police car behind a parked car. A young ―male Hispanic‖ was

standing by the open driver‘s side door, and another ―male Hispanic‖ left from the

7
passenger side of the parked car and ran across the street. Detective Delfin then

heard gunfire from a semi-automatic weapon, such as an AK-47, and was struck

by bullets in his knee and head.

Officer Smith declared that shortly after the shooting, Camacho was found

―hiding in the courtyard‖ of a nearby residence. Camacho first claimed he had

been chased by a group of black males and told the officers they could ― ‗[c]heck

with Detective Delfin,‘ ‖ who could vouch for his credibility. When told that

Detective Delfin was one of the officers who had been shot, Camacho ―broke

down in tears‖ and told the officers that ―a fellow member of the Compton Barrio

Pobre gang, named Ramon Sandoval,‖ was responsible for the shooting. Camacho

admitted he was on parole from the California Youth Authority. His record

showed he had been convicted of assault with a deadly weapon (§ 245, subd.

(a)(1)), and there was a warrant for his arrest for a parole violation.

Camacho told the officer that Sandoval was armed with an AR-15 assault

weapon. Camacho crossed the street and began walking as the police car arrived.

When the police car stopped, Camacho heard several loud gunshots and saw

Sandoval ―firing the AR-15 into the passenger side door area of the car.‖

Camacho ran and hid in the courtyard, where police found him. Camacho

identified Sandoval from a photo lineup and led officers to Sandoval‘s house.

Officers confirmed that Sandoval lived at that residence.

The affidavit recounted that a vehicle driven by Jimmy Falconer was

making a U-turn nearby when the shooting started. Falconer had seen the officers‘

car pass him and knew it was a police car because it had spotlights mounted on

each side. Falconer saw a Hispanic male cross to the east side of the street, and

the police car moved toward him ―as if the officers were going to make contact

with that subject.‖ Falconer noticed another Hispanic male on the west side of the

street, leaning over the roof of a car and pointing a gun at the passenger side of the

8
police car. The Hispanic male, whom Falconer described as about 25 years old

with a shaved head and a mustache, fired multiple rounds at the police car.

Falconer turned his car around and left the area.

The affidavit noted that Camacho‘s statement that he crossed to the east

side of the street was corroborated by the fact that both Detective Delfin and

Falconer had seen a Hispanic male cross to the east side of the street.

The search warrant was issued and was executed the following morning,

resulting in Sandoval‘s arrest and the discovery of an AR-15 assault weapon that

ballistics tests later determined to be the murder weapon. Following his arrest,

Sandoval confessed to the crimes.

Citing People v. Campa (1984) 36 Cal.3d 870, Sandoval argued that the

search warrant was not supported by probable cause because ―the magistrate had

no reason to conclude that Camacho gave reliable information‖ linking him to the

crime: ―Camacho, a convicted criminal on parole, found in extremely suspicious

circumstances during the investigation of a notorious crime, had every reason to

try to throw the suspicion off himself, and on to another person.‖ Sandoval also

argued that the affidavit in support of the warrant had two ―glaring‖ omissions.

First, the affidavit did not reveal that Camacho was a notorious gang member who

was suspected of committing two other homicides. Second, the affidavit did not

reveal that the day before, another Long Beach police officer had obtained a

warrant on a different theory, ―that black Crip members in Long Beach had killed

Detective Black in retaliation for the April 28, 2000 killing of Crip gang member

Billy James Johnson.‖

The prosecution responded that, unlike in Campa, police thought Camacho

was ―a witness to the crime who knew the shooter, saw the crime, and was

distraught when informed that one of the victims was detective Delfin.‖ Also

unlike in Campa, the affidavit described the circumstances in which Camacho

9
made his statements, and those statements were corroborated by the statements of

Detective Delfin and Falconer. The prosecution argued in the alternative, citing

United States v. Leon (1984) 468 U.S. 897, that even if the warrant was defective,

the evidence should not be suppressed because the officers acted in good faith.

The prosecution argued that Sandoval‘s claim of material omissions in the

affidavit was insufficient to warrant an evidentiary hearing because the motion to

suppress evidence failed to show how the affiant ―could have known that another

police agency was investigating Camacho‘s possible involvement in other crimes.‖

Nor was an evidentiary hearing required by Sandoval‘s claim that the affidavit

should have disclosed that an earlier search warrant had been obtained on the

theory that Crips gang members might have committed the murder as retaliation.

The fact that law enforcement had investigated other leads had no bearing on

whether probable cause existed to issue the warrant to search Sandoval‘s home

and car. Sandoval did not show that these facts were deliberately omitted or

omitted with reckless disregard of the truth.

Regarding the claim that the affidavit contained material omissions, the

trial court noted that defense counsel was ―making a lot of assumptions‖ — for

example, that Detective Smith knew that Camacho was being investigated for

other homicides and deliberately withheld that information. Defense counsel

replied, ―That‘s correct,‖ but asked for ―a hearing, very brief hearing, and if

Detective Smith wants to come in and say I had no idea Camacho was just out of

Youth Authority; I had no idea there was a warrant out for him . . . ; I had no idea

he was wanted for a Carson murder, that‘s fine. [¶] If that‘s reasonable, and the

court believes it, then it should deny the motion, but seems to me that the

assumptions we‘re making in this motion are the more reasonable ones . . . .‖

The trial court denied the motion. The court found that ―the magistrate had

overwhelming evidence to issue the warrant and not just probable cause.‖

10
Camacho‘s statements were corroborated in part by the statements of Detective

Delfin and Falconer: ―Those three statements about what they each saw dove-

tailed with one another.‖ The trial court added that ―Camacho was not a suspect,

. . . the police were treating him as a witness at that time.‖ The affidavit did not

contain material omissions. ―[T]he magistrate was faced with information that

Mr. Camacho was not an innocent citizen informant by any stretch. [¶] . . .

[T]here was a statement about the fact he was on CYA parole; that he had been

arrested for a parole violation, and there was a warrant out; that he had a

conviction for assault with [a deadly weapon under section] 245A1; that he was a

gang-banger . . . . So the magistrate already knew that he had a criminal history.

Whether or not any other information of other violations would have added to the

magistrate‘s decision is highly questionable.‖

In denying Sandoval‘s request for an evidentiary hearing, the trial court

quoted at length from Franks, supra, 438 U.S. 154, and said: ―It‘s clear to this

court that counsel had not made that Franks showing that is mandated under the

law. In fact, as you have stated consistently, these are assumptions you‘re making

based on your interpretation of what you knew about the case and not based on

anything that the police knew. So it‘s denied.‖

A week later, on September 26, 2002, Sandoval filed a ―Supplemental

1538.5 Motion‖ that asked the trial court to ―reopen‖ the motion to suppress

evidence ―in order to take into account evidence of which the defendant was

unaware at the time of the initial motion.‖ The supplemental motion asserted that

defense counsel had just received a reporter‘s transcript of a hearing in a motion to

suppress evidence brought by Camacho. Based upon this transcript, defense

counsel argued that Camacho‘s statements to the police were involuntary because,

among other reasons, Camacho had been denied counsel and had been deprived of

sleep. The trial court ruled: ―I have reviewed the motion, and . . . I don‘t see

11
where any of this changes the circumstances . . . . Most of the statements . . . Mr.

Camacho made during . . . his own motion to try and suppress his statement. My

recollection is the court found him to be far less than a credible witness. In fact,

most of what he said was absurd. . . . I don‘t see how the additional statements

that the defense offered would warrant a Franks hearing and would be grounds for

altering the ruling the court has already given.‖

Defendant argues that he was erroneously denied an evidentiary hearing

under Franks‘s holding that ―where the defendant makes a substantial preliminary

showing that a false statement knowingly and intentionally, or with reckless

disregard for the truth, was included by the affiant in the warrant affidavit, and if

the allegedly false statement is necessary to the finding of probable cause, the

Fourth Amendment requires that a hearing be held at the defendant‘s request.‖

(Franks, supra, 438 U.S. at pp. 155–156.) The high court added that ―the rule

announced today has a limited scope, both in regard to when exclusion of the

seized evidence is mandated, and when a hearing on allegations of misstatements

must be accorded.‖ (Id. at p. 167.) Reiterating the ―presumption of validity with

respect to the affidavit supporting the search warrant,‖ Franks explained that ―[t]o

mandate an evidentiary hearing, the challenger‘s attack must be more than

conclusory and must be supported by more than a mere desire to cross-examine.

There must be allegations of deliberate falsehood or of reckless disregard for the

truth, and those allegations must be accompanied by an offer of proof. . . .

Affidavits or sworn or otherwise reliable statements of witnesses should be

furnished, or their absence satisfactorily explained. . . . [A]nd if, when material

that is the subject of the alleged falsity or reckless disregard is set to one side,

there remains sufficient content in the warrant affidavit to support a finding of

probable cause, no hearing is required.‖ (Id. at pp. 171–172, fn. omitted.)

12
This court has applied the rule in Franks to deliberate omissions of material

facts from an affidavit for a search warrant: ―A defendant can challenge a search

warrant by showing that the affiant deliberately or recklessly omitted material

facts that negate probable cause when added to the affidavit.‖ (People v. Eubanks

(2011) 53 Cal.4th 110, 136.) We have recognized that a claim that material facts

were omitted from an affidavit differs from a claim that the affidavit contains

falsehoods: ―Though similar for many purposes, omissions and misstatements

analytically are distinct in important ways. Every falsehood makes an affidavit

inaccurate, but not all omissions do so. An affidavit need not disclose every

imaginable fact however irrelevant. It need only furnish the magistrate with

information, favorable and adverse, sufficient to permit a reasonable, common

sense determination whether circumstances which justify a search are probably

present. [Citations.]‖ (People v. Kurland (1980) 28 Cal.3d 376, 384.) ―[A]n

affiant‘s duty of disclosure extends only to ‗material‘ or ‗relevant‘ adverse facts.‖

(Ibid.) ―[F]acts are ‗material‘ and hence must be disclosed if their omission would

make the affidavit substantially misleading. On review under section 1538.5, facts

must be deemed material for this purpose if, because of their inherent probative

force, there is a substantial possibility they would have altered a reasonable

magistrate‘s probable cause determination.‖ (Id. at p. 385.)

―We review the denial of a Franks hearing de novo. [Citation.]‖ (People v.

Panah (2005) 35 Cal.4th 395, 457.) Sandoval was not entitled to an evidentiary

hearing because he made only conclusory allegations that admittedly were based

upon assumptions. This is not sufficient. (See Franks, supra, 438 U.S. at p. 171

[―Affidavits or sworn or otherwise reliable statements of witnesses should be

furnished, or their absence satisfactorily explained.‖].) Sandoval demonstrated no

―more than a mere desire to cross-examine.‖ (Ibid.; People v. Panah, supra, 35

Cal.4th at p. 456.)

13
No evidentiary hearing would have been required even if Sandoval had

supported his claims with affidavits or sworn statements because the material that

he asserts was deliberately omitted from the affidavit was not material; its absence

did not ―make the affidavit substantially misleading.‖ (People v. Kurland, supra,

28 Cal.3d at p. 385.) We address each of Sandoval‘s claims in turn.

Sandoval argues that the affidavit should have disclosed that police had

earlier obtained a warrant from a different judge to search the home of a member

of the Crips gang who lived on Lime Avenue, on the theory that Detective Black

was murdered in retaliation for an officer-involved shooting of a Crips gang

member. The affidavit in support of this earlier warrant stated that on April 28,

2000, the day before Detectives Black and Delfin were shot, a Long Beach police

officer shot and killed Crips gang member Billy James Johnson during an armed

confrontation. Johnson had lived with his mother at 1992 Lime Avenue. The next

day, a Long Beach police officer was told, ―you killed one of my homies last

night, there‘s gonna be payback.‖ Later that day, Detectives Black and Delfin

were shot on the 1900 block of Lime Avenue. Police obtained a search warrant

for the residence of Johnson‘s mother at 1992 Lime Avenue.

The fact that police initially suspected that the Crips had shot Detectives

Black and Delfin in retaliation for an officer-involved shooting of a Crips gang

member the day before had no bearing on the existence of probable cause to

search Sandoval‘s home. During the investigation of a crime, police often will

pursue theories that do not turn out to be true. The police would have been remiss

if they had not investigated whether Detective Black‘s murder was linked to the

death the day before of a gang member who had lived on the same block where the

officers were shot. The issuance of this earlier warrant was irrelevant to the

question of whether there was probable cause to search Sandoval‘s residence and

14
automobile, and the omission of this evidence from the affidavit did not render it

substantially misleading.

Sandoval also argues that the affidavit failed to disclose that the police

deemed Camacho ―a suspect, and not a mere witness,‖ that Camacho was a

suspect in two other pending homicide investigations, and that he was a member

of the Barrio Pobre gang. The record before us does not support these allegations.

The affidavit disclosed that Camacho was a member of the Barrio Pobre gang, that

he had been convicted of assault with a deadly weapon and was on parole from the

California Youth Authority, and that there was a warrant for his arrest for violating

parole. Sandoval produced no evidence that the police considered Camacho a

suspect rather than a witness. It was not until Sandoval was arrested and

implicated Camacho that the police considered Camacho a suspect. Finally,

Sandoval produced no evidence that the affiant knew Camacho was a suspect in

two unrelated homicides. Sandoval has shown no more than that it was possible

that the affiant could have discovered that fact; Sandoval made no showing that

the affiant actually knew that fact. As the trial court observed, ―the magistrate

already knew that [Camacho] had a criminal history. Whether or not any other

information of other violations would have added to the magistrate‘s decision is

highly questionable.‖

Sandoval‘s supplemental motion to suppress evidence, like the original

motion, was not supported by affidavits or sworn statements. It alleged that

Camacho had filed a motion to suppress evidence in his separate prosecution on

the ground that his statements to police were involuntary. Sandoval argued that

his statements to police were the fruit of Camacho‘s involuntary statements, that

the affidavit failed to disclose that Camacho‘s statements were involuntary, and

that it failed to disclose that a sergeant in the Los Angeles County Sheriff‘s

Department had earlier spoken to a sergeant in the Long Beach Police Department

15
gang unit, which allegedly showed that the Long Beach Police Department had

access to information about homicides investigated by other law enforcement

agencies.

The supplemental motion did not show that any of the allegations in

Camacho‘s motion to suppress evidence were true. It did not show that

Camacho‘s statements were involuntary or that the affiant knew that fact but failed

to disclose it. And the allegation that a sergeant in the Los Angeles County

Sheriff‘s Department earlier had spoken to a sergeant in the Long Beach Police

Department gang unit had little if any relevance. Even if there had been some

communication between these two agencies, it did not establish that the affiant

knew but failed to disclose that Camacho was a suspect in two homicide

investigations pending in other jurisdictions.

Sandoval further argues that ―the trial court improperly relied on the factual

findings it made during the evidentiary hearing on [Camacho‘s] motion to

suppress.‖ The trial court observed that several of the factual allegations made in

the supplemental motion to suppress evidence were ―statements which Mr.

Camacho made during . . . his own motion to try and suppress his statement.‖ The

court stated: ―My recollection is the court found him to be far less than a credible

witness. In fact, most of what he said was absurd.‖ The court ruled: ―I don‘t see

how the additional statements that the defense offered would warrant a Franks

hearing and would be grounds for altering the ruling the court has already given.‖

Sandoval argues that he ―should not have been bound by critical credibility

determinations made by the court in a hearing to which he had not been a party.‖

Sandoval forfeited this claim by failing to object on this ground in the trial court.

(People v. Pearson (2013) 56 Cal.4th 393, 416.) The claim also lacks merit.

Sandoval relies on cases discussing judicial notice (Plumley v. Mockett (2008) 164

Cal.App.4th 1031, 1050–1051; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548,

16
1568; U.S. v. Jones (11th Cir. 1994) 29 F.3d 1549, 1553) and informing a jury of

facts found in a judicial opinion (U.S. v. Sine (9th Cir. 2007) 493 F.3d 1021, 1034;

Harmer v. State (Neb. 1937) 276 N.W. 378, 380 [―a judgment in another case

finding a fact now in issue is ordinarily not admissible‖].) In the present case,

Sandoval relied upon Camacho‘s testimony at a hearing over which the trial court

judge recently had presided. He cites no authority stating it was improper for the

trial court to rely upon the fact that this testimony had not been credible.

B. Death Qualification of Prospective Jurors

Sandoval argues that excusing for cause prospective jurors who indicated

they could not consider imposing the death penalty ―resulted in impanelment of a

jury biased in favor of conviction and imposition of the death penalty,‖ thereby

violating ―his jury trial right, his right to due process, his right to equal protection,

and it inhibited the exercise of his right to be free from cruel and/or unusual

punishment.‖ (Fns. omitted.) Defendant acknowledges that this court and the

United States Supreme Court have considered and rejected this argument

(Lockhart v. McCree (1986) 476 U.S. 162, 176–177; People v. Chism (2014) 58

Cal.4th 1266, 1286) but raises the issue nonetheless ―because the death penalty

jurisprudence of the courts in this nation is not static but evolving.‖ He presents

no persuasive reason for us to revisit our previous holdings on this point.

C. Failure to Read the Indictment to the Jury

Sandoval claims that the judgment must be reversed because the trial court

failed to read the indictment to the jury and inform the jury that he had pled not

guilty, as required by section 1093. Section 1093 states in pertinent part: ―The

jury having been impaneled and sworn, unless waived, the trial shall proceed in

the following order, unless otherwise directed by the court: [¶] (a) If the

accusatory pleading be for a felony, the clerk shall read it, and state the plea of the

17
defendant to the jury, and in cases where it charges a previous conviction, and the

defendant has confessed the same, the clerk in reading it shall omit therefrom all

that relates to such previous conviction. In all other cases this formality may be

dispensed with.‖

Before the first panel of prospective jurors was brought into the courtroom,

the trial court described how jury selection would be conducted and noted that

after his introductory comments he would ―have to read the indictment to the

panel as well.‖ The court read the indictment to the first panel of prospective

jurors. It does not appear that the trial court informed the jury that Sandoval had

pled not guilty. The court did not read the indictment to the second panel of

prospective jurors but did so for the third panel. The court did not read the

indictment to the fourth, fifth, or sixth panels. The jury and four alternate jurors

were selected and sworn. The following then took place outside the presence of

the jury:

―The Court: I know I stopped reading the indictment. . . . Therefore, I

have to read it on Monday, unless you don‘t think it‘s necessary.

―[Defense Counsel]: I don‘t think it‘s necessary.

―[Prosecutor]: I don‘t either.

―The Court: Fine. Then I won‘t. That‘s fine with me.‖

At the beginning of the proceedings the following day, the court instructed

the jury, ―You must not be biased against the defendant because he has been

arrested for this offense, charged with a crime and brought to trial. None of these

circumstances is evidence of guilt, and you must not infer or assume from any or

all of them he is more likely to be guilty than not guilty.‖

We agree with the Attorney General that defense counsel expressly waived

any right Sandoval had to have the court read the indictment. ―Section 1093 of the

Penal Code expressly authorizes the waiving of the reading of the information and

18
clearly this is a function which lies within the general authority of counsel to

perform for the defendant absent any specific requirement in the law that the

waiver must be by the defendant personally.‖ (People v. Herrera (1962) 209

Cal.App.2d 748, 752.) In his reply brief, Sandoval contends that ―[a]ssuming an

enforceable waiver with respect to the reading of the indictment, any such waiver

did not relieve the court of its duty to inform the jury that Mr. Sandoval had pled

not guilty to the charges against him.‖ But because the court‘s obligation to state a

defendant‘s plea in section 1093 follows on the court‘s obligation to read the

indictment, we find that Sandoval, by agreeing to waive the court‘s reading of the

indictment, likewise waived the court‘s statement of his plea to the indictment.

III. GUILT PHASE ISSUES

A. Testimony of Gang Expert

Sandoval contends that the trial court invaded the province of the jury by

admitting testimony by a gang expert that one reason Sandoval brought the assault

weapon was to use it against the police if they arrived during the planned attack on

Toro.

Over Sandoval‘s objection, Sergeant Richard Valdemar testified that gangs

―often use military type tactics.‖ When Sandoval and his fellow gang members

reached Toro‘s house, ―they would deploy in a group, like a military unit . . . .

[T]he long arm or rifle would take a position of advantage that would allow him to

cover the people with hand guns who would approach the house, possibly also

acting as lookouts on either end of the street . . . .‖ Gang members ―expect there

to be a law enforcement presence.‖ Using an assault weapon usually ―would out

gun the police.‖ If the police arrived, ―it would be the back up man‘s duty to take

them on and pin them down or kill them if possible.‖

19
―A person is qualified to testify as an expert if he has special knowledge,

skill, experience, training, or education sufficient to qualify him as an expert on

the subject to which his testimony relates.‖ (Evid. Code, § 720, subd. (a).) ―If a

witness is testifying as an expert, his testimony in the form of an opinion is limited

to such an opinion as is: [¶] (a) Related to a subject that is sufficiently beyond

common experience that the opinion of an expert would assist the trier of fact

. . . .‖ (Evid. Code, § 801.)

Sandoval is incorrect in claiming that ―the sergeant was no more qualified

than the jury to determine whether Mr. Sandoval took part in a premeditated plan

to ‗take on‘ any police who interrupted B.P.‘s attack on Toro.‖ Sergeant

Valdemar qualified as an expert on gang tactics because he had extensive

experience with criminal street gangs as a police officer and in the military as a

military police officer. And we have held that the subject of gang tactics is

sufficiently beyond common experience to be a proper subject of expert testimony.

(People v. Gardeley (1996) 14 Cal.4th 605, 617.)

Nor did ―the sergeant‘s testimony constitute[] an impermissible opinion as

to Mr. Sandoval‘s guilt on the first degree murder charge,‖ as Sandoval‘s briefing

contends. Sergeant Valdemar did not testify that Sandoval was guilty of murder.

He properly testified that one reason for bringing an assault weapon to an action to

retaliate against a rival gang leader was to attack the police if they arrived during

the planned attack.

B. The Lying-in-wait Special Circumstance Must Be Reversed

Sandoval contends that the lying-in-wait special circumstance must be

reversed. There are two bases for his challenge. First, he contends there was

insufficient evidence of lying in wait. Second, he argues that the jury was not

properly instructed with CALJIC Nos. 8.83 and 8.83.1 that between two

20
reasonable inferences from circumstantial evidence, the jury must choose the

inference pointing to innocence. We need not decide the first issue because we

agree with Sandoval on the second.

The trial court instructed the jury that to find true the lying-in-wait special-

circumstance allegation, it must find that the ―murder was committed while the

defendant was lying in wait.‖ (Italics added.) This formulation is ―slightly

different from, and more stringent than,‖ the requirement for lying-in-wait first

degree murder ―that the murder be perpetrated ‗by means of‘ lying in wait . . . .‖

(People v. Lewis (2008) 43 Cal.4th 415, 511, italics added.) A 2000 ballot

measure (Prop. 18) changed the definition of the lying-in-wait special

circumstance in section 190.2, subdivision (a)(15) to delete the requirement that

the murder be committed ―while‖ the defendant was lying in wait and to instead

require only the lesser standard that the defendant must have ―intentionally killed

the victim by means of lying in wait.‖ (Stats. 1998, ch. 629, § 2, p. 4165,

approved by voters as Prop. 18, Primary Elec. (Mar. 7, 2000), italics added.) This

change took effect on March 8, 2000, the month before Detective Black was

killed, but the trial court used the former, more stringent language to instruct the

jury in this case. The new language does not make a material difference in this

case.

Lying-in-wait murder serves two functions in our criminal law. First, it is a

means of proving first degree murder. ―Lying in wait is the functional equivalent

of proof of premeditation, deliberation, and intent to kill.‖ (People v. Stanley

(1995) 10 Cal.4th 764, 794–795.) Proof of lying in wait ― ‗distinguish[es] those

cases in which a defendant acts insidiously from those in which he acts out of rash

impulse. [Citation.] This period need not continue for any particular length ― ‗of

time provided that its duration is such as to show a state of mind equivalent to

premeditation or deliberation.‘ ‖ ‘ ‖ (People v. Mendoza (2011) 52 Cal.4th 1056,

21
1073.) Once a sufficient period of watching and waiting is established, together

with the other elements of lying-in-wait murder, no further evidence of

premeditation and deliberation is required in order to convict the defendant of first

degree murder. (People v. Thomas (1953) 41 Cal.2d 470, 474.)

Second, lying in wait is also a special circumstance that fulfills the

constitutional mandate that ― ‗a capital sentencing scheme . . . ―genuinely narrow

the class of persons eligible for the death penalty and must reasonably justify the

imposition of a more severe sentence on the defendant compared to others found

guilty of murder.‖ ‘ ‖ (Romano v. Oklahoma (1994) 512 U.S. 1, 7.) We have held

that the lying-in-wait special circumstance performs this function because it ―has

been ‗anciently regarded . . . as a particularly heinous and repugnant crime.‘ ‖

(People v. Edelbacher (1989) 47 Cal.3d 983, 1023.) A substantial period of

watching and waiting is one characteristic that helps distinguish lying-in-wait

murder from ordinary murder. Concealment of purpose is not by itself ―sufficient

to establish lying in wait‖ because ―many ‗routine‘ murders are accomplished by

such means.‖ (People v. Morales (1989) 48 Cal.3d 527, 557.) But ―an intentional

murder, committed under circumstances which include (1) a concealment of

purpose, (2) a substantial period of watching and waiting for an opportune time to

act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim

from a position of advantage, presents a factual matrix sufficiently distinct from

‗ordinary‘ premeditated murder to justify treating it as a special circumstance.‖

(Ibid.; see People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1183 (Hajek and Vo).)

Sandoval contends that the jury should have been instructed with CALJIC

Nos. 8.83 or 8.83.1. CALJIC No. 8.83 (6th ed. 1996) states: ―You are not

permitted to find a special circumstance alleged in this case to be true based on

circumstantial evidence unless the proved circumstance is not only (1) consistent

with the theory that a special circumstance is true, but (2) cannot be reconciled

22
with any other rational conclusion. [¶] Further, each fact which is essential to

complete a set of circumstances necessary to establish the truth of a special

circumstance must be proved beyond a reasonable doubt. [¶] In other words,

before an inference essential to establish a special circumstance may be found to

have been proved beyond a reasonable doubt, each fact or circumstance upon

which that inference necessarily rests must be proved beyond a reasonable doubt.

[¶] Also, if the circumstantial evidence is susceptible of two reasonable

interpretations, one of which points to the truth of a special circumstance and the

other to its untruth, you must adopt the interpretation which points to its untruth,

and reject the interpretation which points to its truth. [¶] If, on the other hand, one

interpretation of that evidence appears to you to be reasonable and the other

interpretation to be unreasonable, you must accept the reasonable interpretation

and reject the unreasonable.‖ CALJIC No. 8.83.1 (6th ed. 1996) is essentially the

same except it specifically references mental states: ―you may not find a special

circumstance alleged in this case to be true unless the proved circumstances are

not only, (1) consistent with the theory that the defendant had the required

[specific intent] [mental state], but (2) cannot be reconciled with any other rational

conclusion.‖

While acknowledging he did not ask the trial court to instruct with CALJIC

Nos. 8.83 and 8.83.1, Sandoval contends that the trial court had a sua sponte duty

to give at least one of these instructions. The obligation to instruct the jury sua

sponte ―on general principles of law relevant to the issues raised by the facts of the

case before it . . . includes the duty to instruct on the effect to be given

circumstantial evidence but only when circumstantial evidence is ‗substantially

relied on for proof of guilt.‘ [Citation.] The instruction should not be given ‗when

the problem of inferring guilt from a pattern of incriminating circumstances is not

present.‘ ‖ (People v. Wiley (1976) 18 Cal.3d 162, 174 (Wiley).) As the court said

23
in People v. Bender (1945) 27 Cal.2d 164, 175 (Bender), in explaining why the

equivalent instruction should be given sua sponte: ― ‗[T]o justify a conviction, the

facts or circumstances must not only be entirely consistent with the theory of guilt

but must be inconsistent with any other rational conclusion.‘ It cannot be too

strongly emphasized that such quoted statement enunciates a most important rule

governing the use of circumstantial evidence.‖ On the other hand, when the

circumstantial evidence is not substantially relied on, giving this kind of

instruction may confuse or mislead the jury. (People v. Anderson (2001) 25

Cal.4th 543, 582.) Thus, the instruction should not be given, for example, when

circumstantial evidence is merely used to corroborate direct evidence. (Ibid.;

People v. Wright (1990) 52 Cal.3d 367, 406.)

Whether the instruction should be given therefore depends on whether the

prosecution in this case substantially relied on circumstantial evidence to prove the

lying-in-wait special circumstance. The resolution of this question requires us to

understand the nature of the prosecution and defense cases with regard to that

circumstance. Although Sandoval‘s attack on Detectives Black and Delfin had

many of the hallmarks of murder by means of lying in wait and appeared to the

surviving victim and an observer like a classic ambush, Sandoval argued at trial,

and now contends, that there was insufficient evidence of a substantial period of

watching and waiting for an opportune time to murder the officers.

The prosecutor argued that the period in question was substantial enough

because it began the moment Sandoval ducked down behind the car. At that point,

according to the prosecution, Sandoval was not merely hiding from the police but

contemplating murdering them. As the prosecutor said during closing argument:

―He sees the police officer, ducks down, and waits to see whether it‘s necessary,

whether it‘s appropriate, for him to begin shooting, whether it‘s going to be

necessary to kill the police officers. Depending on their conduct.‖

24
Sandoval‘s counsel contested the prosecution‘s characterization of the facts.

He said, ―It‘s not a lying in wait murder of Daryle Black. The hiding behind the

car. He was not lying in wait to shoot Daryle Black. He was hiding from him.

There was no period of watching and waiting. It was a total surprise.‖

Sandoval‘s confession supports, or at least does not contradict, the defense

argument that he initially ducked down behind the car to hide from the police and

formulated an intention to kill them only when they approached Camacho

(Rascal). Sandoval had the following exchange with his chief interrogator, Steve

Lasiter:

―SL: And you‘re just getting out of the car when you see [the police car.]

―RS: Yes.

―SL: What did you do next?

―RS: I ducked.

―SL: Okay. You ducked where?

―RS: Behind.

―SL: Where did you duck? Or what did you hide behind?

―RS: Behind the car.

―SL: All right. As you‘re hiding behind the car, what do you see?

―RS: I see the cop car looking at Rascal.

―SL: Okay. How many officers are in the car?

―RS: Two.

―SL: Okay. And can you see them?

―RS: Yes.

―SL: Okay. Both of [the police officers] are looking at Rascal?

―RS: Yes.

―SL: Okay. And you can see that?

―RS: Yes.

25
―SL: All right. What happens next?

―RS: Well, I try to save Rascal. So I jumped off.

―SL: Okay. You try to save Rascal from what?

―RS: From not going to jail.

―SL: Why would he go to jail?

―RS: Because he was on parole.

―SL: Okay.

―RS: So I jumped off and started shooting at the officers.‖

Elsewhere in his confession, Sandoval said that when he first spotted the

police car, it was about two houses north of where he was. When he saw the

police officers looking at Camacho, the police car was one car length north of him,

and that was when he decided to shoot them. Sandoval further said that the car

was 10 feet away when he began shooting, though it is not clear whether Sandoval

meant 10 feet north or 10 feet east of him. The one eyewitness to testify, Jimmy

Falconer, said that he was backing out of his driveway and then stopped backing

out as the police car passed. He continued to back up and saw the police car slow

down, and ―just as they passed me up, gun fire opened up.‖

From the record, it is difficult to determine the length of time between

Sandoval‘s decision to kill the officers after they approached Camacho and his

execution of that decision. The evidence suggests it was extremely short, perhaps

a second or two. But Sandoval‘s confession was not the only evidence relevant to

fixing the period of watching and waiting. As recounted above, Sergeant

Valdemar, the gang expert witness, opined in response to a hypothetical posed by

the prosecutor that in an operation to kill a rival gang leader, those gang members

involved in the operation ―would deploy in a group, like a military unit . . . . [T]he

long arm or rifle would take a position of advantage that would allow him to cover

the people with hand guns who would approach the house, possibly also acting as

26
lookouts on either end of the street . . . .‖ Gang members ―expect there to be a law

enforcement presence.‖ Using an assault weapon usually ―would out gun the

police.‖ If the police arrived, ―it would be the backup man‘s duty to take them on

and pin them down or kill them if possible.‖

Thus, the prosecutor‘s statement that Sandoval ―sees the police officer,

ducks down, and waits to see whether it‘s necessary, whether it‘s appropriate, for

him to begin shooting, whether it‘s going to be necessary to kill the police

officers,‖ is unmistakably a reference to Sergeant Valdemar‘s testimony because

that was the principal evidence supporting that supposition. That reference

became explicit in the prosecutor‘s surrebuttal, responding to defense counsel‘s

intertwined arguments that there was no premeditation or lying in wait: The

prosecutor told the jury to ―[l]isten to what Rich Valdemar said.‖ In summarizing

Valdemar‘s testimony, he told the jury: ―This is the way [criminal street gangs]

deploy their troops. This is the way they commit these types of crimes. They do

consider law enforcement‘s presence. They do bring long arms in order to fend

off police in the apprehension of their fellow gangsters.‖ From this testimony, the

jury could infer that when Sandoval ducked behind the car, he was contemplating

killing the police.

Sergeant Valdemar‘s testimony, which was indisputably circumstantial

evidence, was thus critical to the prosecutor‘s case for lying in wait. Although

there was evidence that Sandoval was hiding and waiting and watching as soon as

the police appeared on Lime Avenue, Sergeant Valdemar‘s testimony was the

principal evidence in support of the prosecution‘s theory that Sandoval was

watching and waiting for an opportune time to commit the murder from the

moment he spotted the police. Yet Sandoval‘s confession, though highly

incriminating, makes no mention of any thought about killing the police until they

approached Camacho. Thus, this case is unlike People v. McKinnon (2011) 52

27
Cal.4th 610, 676 fn. 40, where we held that circumstantial evidence that

corroborates or bolsters direct evidence does not warrant the circumstantial

evidence instruction at issue here, even when a defendant claims the circumstantial

evidence was stronger than the direct evidence. In this case, contrary to Justice

Chin‘s view (see conc. & dis. opn., post, at p. 10–11), Sergeant Valdemar‘s

testimony did not bolster any direct evidence of the prosecution‘s theory; it was

the crucial evidence used to prove that theory.

We therefore conclude that the prosecution‘s case for the lying-in-wait

special circumstance substantially relied on that circumstantial evidence, and that

CALJIC No. 8.83 or No. 8.83.1, or its equivalent, should have been given sua

sponte. The trial court‘s mistake may have been understandable in these

circumstances. The lying-in-wait issue was a relatively small part of the

prosecutor‘s case: most of his case focused on establishing first degree

premeditated murder and attempted murder, and the prosecution also argued for

three other special circumstances and various enhancements. Furthermore, as

discussed, the prosecutor‘s reference to Sergeant Valdemar‘s testimony was

sometimes oblique. Nonetheless, the prosecutor did substantially rely on that

circumstantial evidence to prove his theory of the lying-in-wait special

circumstance, and CALJIC No. 8.83 or 8.83.1 should have been given.

When a trial court erroneously fails to give this instruction or its equivalent,

it may be reversible error. (Wiley, supra, 18 Cal.3d 162, 174–175; People v.

Yrigoyen (1955) 45 Cal.2d 46, 49–50; Bender, supra, 27 Cal.2d at p. 175.) We

have not had occasion to specify the standard of prejudice to be applied to such an

error. The requirement to give CALJIC No. 8.83 is a rule emerging out of our

case law to ensure that the reasonable doubt standard and the burden of proof are

properly applied in the context of circumstantial evidence. (See Bender, supra, at

p. 175.) The failure to give the instruction, while a significant omission, does not

28
affirmatively mislead the jury about the proper standard or burden of proof, and

therefore is not structural error requiring automatic reversal. (Cf. Sullivan v.

Louisiana (1993) 508 U.S. 275, 280–282.) Nor does the failure to give the

instruction omit an element of a criminal offense, an error that can only be

excused if harmless beyond a reasonable doubt. (Cf. People v. Gonzales (2012)

54 Cal.4th 643, 662–663.) The error in this case is more closely analogous to the

trial court‘s failure to give a pinpoint instruction, which is judged as state law error

that is prejudicial only where there is a reasonable probability of a more favorable

result. (People v. Fudge (1994) 7 Cal.4th 1075, 1111–1112; People v. Watson

(1956) 46 Cal.2d 818, 837.) ― ‗We have made clear that a ―probability‖ in this

context does not mean more likely than not, but merely a reasonable chance, more

than an abstract possibility.‖ (People v. Wilkins (2013) 56 Cal.4th 333, 351.)

Here we conclude that it is reasonably probable that had the jury been

properly instructed, it would not have found the special circumstance true. ―We

presume that jurors understand and follow the court‘s instructions.‖ (People v.

Pearson, supra, 56 Cal.4th at p. 414.) One inference from Sergeant Valdemar‘s

testimony is that Sandoval, acting the way gang members typically operate, began

to contemplate the murder of the police officers as soon as he saw them and hid

behind the car. But this inculpatory inference is not the only reasonable inference

that could be drawn from such testimony. A reasonable juror, while believing the

gang expert, might have inferred that his testimony about how street gangs usually

think and act did not prove that Sandoval thought or acted that way in this

instance. Such a juror could reasonably refuse to credit the prosecution‘s theory

about what Sandoval was thinking when he first saw the police unless Sergeant

Valdemar‘s testimony was supported by direct evidence of Sandoval‘s mental

state at the time. This view does not posit that the jury ―rejected the

circumstantial evidence‖ (dis. opn., post, at p. 3); it posits only that the jury

29
reasonably rejected the inference that the prosecution wanted it to draw from that

evidence.

We further conclude that with Sergeant Valdemar‘s testimony discounted,

there is a reasonable chance the jury would have found the lying-in-wait special

circumstance not true. The jury was instructed that lying in wait was defined in

part as ―a waiting and watching for an opportune time to act‖ that ―need not

continue for any particular period of time provided that its duration is such as to

show a state of mind equivalent to premeditation and deliberation.‖ As discussed,

the prosecutor argued that the period of waiting and watching for an opportune

time to act began at the time the officers arrived on Lime Avenue. Sergeant

Valdemar‘s testimony was the principal evidence in support of that theory.

Notwithstanding Justice Chin‘s view of the evidence (see conc. & dis, opn., post,

at pp. 10–11), it is unlikely that the jury on its own would have arrived at an

alternate theory and would have concluded that the very brief, indeterminate time

between when Sandoval noticed the police looking at Camacho and when

Sandoval opened fire was a sufficiently substantial period of watching and

waiting. Whether or not this would have constituted sufficient evidence of lying

in wait, there is more than an abstract possibility that, without the benefit of the

prosecutor‘s theory and confronted with an extremely short period of waiting that

seems difficult to call waiting at all, the jury would not have found true the lying-

in-wait special circumstance.

We therefore reverse the judgment on the lying-in-wait special

circumstance. Sandoval does not argue that reversal of that special circumstance

requires a reversal of the penalty phase judgment, nor could he plausibly do so.

As discussed below, the failure to properly instruct on the role that circumstantial

evidence played in proving the lying-in-wait special circumstance does not call

into question Sandoval‘s first degree murder verdict. Moreover, three special-

30
circumstance findings against Sandoval remained, which underscores the

particularly heinous nature of the murder: murder of a peace officer engaged in

the lawful performance of his duties, murder committed for the purpose of

preventing a lawful arrest, and murder to further the activities of a criminal street

gang. Each of these was proved primarily by the direct evidence of Sandoval‘s

confession. Furthermore, the jury would still have been statutorily permitted at the

penalty phase to consider almost all of the same evidence concerning the facts and

circumstances of Black‘s murder. (§ 190.3, factor (a); see Hajek and Vo, supra,

58 Cal.4th at pp. 1186–1187.) Even if the jury had concluded there was

insufficient evidence of watching and waiting to find the lying-in-wait special

circumstance true, that conclusion would have done little to alter the highly

aggravated nature of Sandoval‘s murder of Detective Black and attempted murder

of Detective Delfin. Nor would it have changed the jury‘s assessment of the other

aggravating evidence introduced. We conclude there is no reasonable possibility

that the error affected the penalty phase verdict.

C. Sufficiency of Evidence of First Degree Murder

Sandoval argues that there was insufficient evidence of first degree murder

because his shooting of Detective Black was ―intentional but unplanned‖ and ―not

premeditated and deliberate.‖ He argues, as defense counsel did at trial, that there

was only sufficient evidence of second degree murder.

In reviewing a challenge to the sufficiency of the evidence, we ―review the

whole record to determine whether any rational trier of fact could have found the

essential elements of the crime or special circumstances beyond a reasonable

doubt. [Citation.] The record must disclose substantial evidence to support the

verdict — i.e., evidence that is reasonable, credible, and of solid value — such that

a reasonable trier of fact could find the defendant guilty beyond a reasonable

31
doubt. [Citation.] In applying this test, we review the evidence in the light most

favorable to the prosecution and presume in support of the judgment the existence

of every fact the jury could reasonably have deduced from the evidence.

[Citation.]‖ (People v. Zamudio (2008) 43 Cal.4th 327, 357.)

We first note that the jury in this case was instructed on two theories of first

degree murder: premeditation and deliberation, and lying in wait. When a jury is

instructed on two theories of first degree murder, a first degree murder verdict will

be upheld if there is insufficient evidence as to one of the theories. (People v.

Lewis (2008) 43 Cal.4th 415, 507.) We need not decide whether there was

sufficient evidence of murder by means of lying in wait because we conclude there

was sufficient evidence of premeditation and deliberation. Contrary to Justice

Chin‘s view (see conc. & dis. opn., post, at p. 13), a conclusion that there was

insufficient evidence of lying-in-wait murder does not mean there was no

premeditation and deliberation, but only that these mental states must be

established by another route.

The trial court instructed the jury that ―murder which is perpetrated by any

kind of willful, deliberate and premeditated killing with express malice

aforethought is murder of the first degree.‖ ―First degree murder, like second

degree murder, is the unlawful killing of a human being with malice aforethought,

but has the additional elements of willfulness, premeditation, and deliberation

which trigger a heightened penalty.‖ (People v. Chiu (2014) 59 Cal.4th 155, 166.)

― ‗Deliberation‘ refers to careful weighing of considerations in forming a course of

action; ‗premeditation‘ means thought over in advance. [Citations.] ‗The process

of premeditation and deliberation does not require any extended period of time.

―The true test is not the duration of time as much as it is the extent of the

reflection. Thoughts may follow each other with great rapidity and cold,

32
calculated judgment may be arrived at quickly.‘ ‖ (People v. Koontz (2002) 27

Cal.4th 1041, 1080 (Koontz).)

―In People v. Anderson (1968) 70 Cal.2d 15, 26–27, this court reviewed

earlier decisions and developed guidelines to aid reviewing courts in assessing the

sufficiency of evidence to sustain findings of premeditation and deliberation.

[Citation.] We described three categories of evidence recurring in those cases:

planning, motive, and manner of killing. [Citations.] The Anderson decision

stated: ‗Analysis of the cases will show that this court sustains verdicts of first

degree murder typically when there is evidence of all three types and otherwise

requires at least extremely strong evidence of [planning] or evidence of [motive]

in conjunction with [evidence of] either [planning] or [manner of killing].‘

(Anderson, at p. 27; [citation].) Since Anderson, we have emphasized that its

guidelines are descriptive and neither normative nor exhaustive, and that

reviewing courts need not accord them any particular weight.‖ (People v.

Halvorsen (2007) 42 Cal.4th 379, 419–420.) In particular, the Anderson factors

―are not well adapted to a case . . . in which the defendant‘s post-offense

statements provide substantial insight into the defendant‘s thought processes in the

crucial moments before the act of killing.‖ (People v. Mayfield (1997) 14 Cal.4th

668, 768 (Mayfield.)

In his briefing, Sandoval says he arrived at Lime Avenue intending to kill

Toro and had insufficient time to premeditate the murder of Detective Black. But

there is ample, uncontradicted direct evidence from Sandoval‘s own confession

and conduct of premeditation and deliberation. First, Sandoval‘s confession

reveals his motive. His decision to kill the police rather than have his fellow gang

member returned to prison epitomizes a ― ‗ ―cold, calculated judgment . . . arrived

at quickly.‖ ‘ ‖ (Koontz, supra, 27 Cal.4th at p. 1080; see Mayfield, supra, 14

Cal.4th at p. 767 [quick but ―cold and calculated decision‖ to kill police officer

33
rather than being arrested supports a finding of premeditation].) Moreover, the

manner of killing may be ―sufficiently ‗ ―particular and exacting‖ ‘ to warrant an

inference that defendant was acting according to a preconceived design.‖ (People

v. Thomas (1992) 2 Cal.4th 489, 518.) The fact that the manner of killing is

prolonged also supports an inference of deliberation. (People v. Davis (1995) 10

Cal.4th 463, 510.) Here, the firing of 28 shots from a high-powered weapon into a

police car, a period that lasted for about two minutes, according to eyewitness

Jimmy Falconer‘s testimony, provided evidence of a military-style execution of

Sandoval‘s hastily made plan from which the jury could reasonably infer

premeditation and deliberation.

On the other hand, there is scant evidence to support Sandoval‘s theory of

second degree murder. There is little indication that the murder was rash and

impulsive, as when a defendant acts out of a fear or passion in response to a

provocation that is insufficient to show an absence of malice. (See People v.

Rogers (2006) 39 Cal.4th 826, 866–867; People v. Dewberry (1959) 51 Cal.2d

548, 553.) We conclude there was sufficient evidence from which a jury could

conclude beyond a reasonable doubt that Sandoval‘s murder of Detective Black

was willful, deliberate, and premeditated, and therefore constituted murder of the

first degree.

Sandoval argues that ―the prosecutor urged the jury to find premeditation

and deliberation pursuant to a transferred premeditation theory.‖ (See Hajek and

Vo, supra, 58 Cal.4th at p. 1184, fn. 12 [a transferred intent theory of the lying-in-

wait special circumstance has ―no support in case law‖].) Although the prosecutor

argued that ―[t]he premeditation and deliberation . . . started a long time before

they ever got to Lime [Avenue],‖ he did not argue that Sandoval‘s prior intent to

kill Toro could be transferred to constitute intent to kill Detective Black. Rather,

the prosecutor argued that when the police car arrived at the scene, Sandoval

34
―chang[ed] his focus from willful, deliberate premeditated killing Toro to now,

I‘m going to kill these police officers. This defendant considered what the options

were and what the appropriate course of action was, and he chose to kill Daryle

Black and try and kill his partner.‖ The record does not support Sandoval‘s claim

that the prosecutor urged a transferred premeditation theory.

D. Refusal to Instruct the Jury with CALJIC No. 2.02

Sandoval argues that the trial court erroneously refused his request to give

the jury the standard instruction regarding the use of circumstantial evidence,

CALJIC Nos. 2.01 and 2.02, the guilt phase equivalents of the special

circumstance instructions CALJIC Nos. 8.83 and 8.83.1, discussed above.

Sandoval points out that ―[e]vidence of a defendant‘s state of mind is almost

inevitably circumstantial . . . .‖ (People v. Bloom (1989) 48 Cal.3d 1194, 1208.)

But we have held that this fact alone does not require a trial court to instruct the

jury pursuant to CALJIC No. 2.02: ―The fact that the elements of a charged

offense include mental elements that must necessarily be proved by inferences

drawn from circumstantial evidence does not alone require an instruction on the

effect to be given such evidence however. The contrary is usually the rule.‖

(Wiley, supra, 18 Cal.3d at p. 175.) An instruction on the effect to be given

circumstantial evidence is not required simply because the defendant‘s mental

state ―had to be inferred from the circumstances‖ of the crime. (Ibid.)

Moreover, although we hold above that the equivalent circumstantial

evidence instruction should have been given with respect to the lying-in-wait

special circumstance, we do not similarly conclude CALJIC No. 2.01 or 2.02

should have been given simply because the jury was instructed on murder by lying

in wait. As discussed, this instruction should be given ―only when circumstantial

evidence is ‗substantially relied on for proof of guilt.‘ ‖ (Wiley, supra, 18 Cal.3d

35
at p. 174.) Here the prosecutor, when arguing first degree murder to the jury,

relied primarily on a theory of premeditation and deliberation, emphasizing

Sandoval‘s confession and the manner of killing. We held in Wiley that

―[e]xtrajudicial admissions, although hearsay, are not the type of indirect evidence

as to which the instructions on circumstantial evidence are applicable.‖ (Ibid.)

Even if it were error to refuse the instruction, there is no reasonable

probability the instruction would have resulted in a more favorable verdict. The

strong direct evidence of premeditation and deliberation recounted above, which

the prosecutor focused on, means that even if the jury discounted Sergeant

Valdemar‘s testimony about Sandoval‘s likely mental state when he initially

spotted the police officers on Lime Avenue, there is no reasonable chance it would

have returned a second degree rather than first degree murder verdict.

E. Admission of Camacho’s Notes

Sandoval asserts that the trial court erred in admitting into evidence notes

written by codefendant Miguel Camacho as he prepared for a gang meeting.

On the afternoon of the day Sandoval shot Detectives Black and Delfin,

Camacho and about 30 other members of the Barrio Pobre gang met in a house on

Dairy Street. As Camacho was organizing the meeting, he wrote notes on two

sheets of white, lined paper. One page has what appears to be 13 gang names

followed by telephone numbers. The other sheet lists 33 gang names. In the

middle of the page, Camacho wrote what appear to be talking points for the

meeting: ―Tagers in the neighborhood, no straps, too much hanging out and not

enough dead muthaphuckers, homies click tripping, homies doing stupid shit and

cause of that other homies pay for it, braging about another homie‘s dirt or even

talking about it.‖ A gang expert testified that ―tagers‖ refers to graffiti and ―strap‖

36
refers to carrying a gun, so ―no straps‖ means some gang members did not have

guns.

Sandoval objected to admission of the notes on the grounds that Camacho‘s

notes were ―not connected up with [Sandoval] because there‘s no showing that

[Sandoval] endorsed or watched [Camacho] write it; was there when he talked

about it,‖ and the notes are ―basically hearsay,‖ and their probative value was

outweighed by their prejudicial effect. The court held that ―the foundation was

laid as to the authenticity of the writing,‖ it was relevant because it listed the

people who attended the meeting, it was connected to Sandoval because he

attended the meeting, it was very probative and was more probative than

prejudicial. The court did not rule on the hearsay objection.

On appeal, Sandoval focuses on the statement in the notes that there was

―too much hanging out and not enough dead muthaphuckers.‖ A gang expert

testified that this meant ―we‘re acting like a club, not like a gang. We‘re not

killing enough people or our rivals.‖ Sandoval argues that this statement was

hearsay because it was offered to prove the truth of the matter stated:

―Specifically, the prosecutor offered the written remark to prove Mr. Sandoval‘s

mental state at the time of the shooting of Detective Black.‖

― ‗Hearsay evidence‘ is evidence of a statement that was made other than

by a witness while testifying at the hearing and that is offered to prove the truth of

the matter stated.‖ (Evid. Code, § 1200, subd. (a).) In People v. Mendoza (2007)

42 Cal.4th 686, 697, we held that the murder victim‘s out-of-court accusation that

the defendant had sexually molested her was not hearsay because it was not

offered ―to prove defendant actually molested her, but rather to prove defendant

was aware of the accusations and to explain defendant‘s motive for killing‖ the

victim. We held that the victim‘s ―accusations were properly admitted to explain

defendant‘s state of mind, motive, and conduct.‖ (Ibid.) Similarly, Camacho‘s

37
note was not offered to prove that there actually were not enough dead people or

that the gang actually had not killed enough people, but to prove that shortly

before defendant shot Detectives Black and Delfin, a leader of his gang had told

him that gang members should kill more people. The note was properly admitted

to explain Sandoval‘s state of mind when he shot the officers.

Sandoval also appears to argue that the notes were irrelevant because ―[n]o

evidence was presented that [Camacho] or any other B.P. member read or

otherwise communicated the contents of [Camacho‘s] notes to other B.P. members

at the B.P. meeting . . . .‖ Evidence was introduced that Camacho prepared these

notes as he was organizing a meeting of gang members. The jury reasonably

could conclude that these notes reflected what Camacho later said at the meeting.

F. Evidence of Threats Against Angela Estrada

Sandoval contends the trial court erroneously admitted evidence that

prosecution witness Angela Estrada was threatened. Estrada was living at her

sister‘s house on Dairy Street when Sandoval, Camacho, and other members of

Barrio Pobre met there just before the April 29, 2000 shooting. During direct

examination, the prosecutor asked Estrada whether she had been threatened:

―Q: Have you been threatened with regard to coming in here and telling this

jury the truth about what you know?

―The Court: I‘m going to admonish the jury right now. Any questions dealing

with threats does not infer or assume that those threats are connected with the

defendant in any way, but threats in general may have occurred by people on their

own who have no ties or relationship with the defendant, and you‘re not to assume

otherwise. Please go ahead.

―[¶] . . . [¶]

―Q: Do you remember the question?

38
―A: Yes. Have I been threatened?

―Q: Yes.

―A: Not in particular. But in general, yes.

―Q: What do you mean? What does that mean?

―A: I‘ve just been told, you know, just to watch what I say.

―Q: Well, what does that mean?

―A: I don‘t know.

―Q: Was the person with a message that you got a message from someone in

Barrio Pobre?

―A: No.

―Q: Did you tell Detective Prell and I when we spoke it was someone in

Barrio Pobre?

―A: Look, I don‘t know what you‘re trying to get at but - -

―The Court: Ma‘am, just answer the question.

―A: No, it wasn‘t.

―Q: Did you tell Detective Prell and I, and then Detective Robbins and I, that

you were threatened by someone in Barrio Pobre?

―A: Someone told me, you know. They didn‘t tell me directly. Someone had

said, you know, we -- we -- we--we saw the paperwork, and you said this and you

said that. That‘s all that was said.‖

Estrada later added:

―Q: If there were paperwork indicating that you had testified being a past

member of Barrio Pobre, and you had testified against another member of B.P., would

that be looked on favorably or unfavorably by people in the neighborhood?

―A: Unfavorably.‖

A ―jury may consider in determining the credibility of a witness any matter

that has any tendency in reason to prove or disprove the truthfulness of his

39
testimony at the hearing, including but not limited to any of the following: [¶] . . .

[¶] (f) The existence or nonexistence of a bias, interest, or other motive. [¶] . . . [¶]

(j) His attitude toward the action in which he testifies or toward the giving of

testimony.‖ (Evid. Code, § 780.) ―Evidence that a witness is afraid to testify or

fears retaliation for testifying is relevant to the credibility of that witness and

therefore is admissible. [Citations.] An explanation of the basis for the witness‘s

fear is likewise relevant to her credibility and is well within the discretion of the

trial court.‖ (People v. Burgener (2003) 29 Cal.4th 833, 869.) ―Moreover,

evidence of a ‗third party‘ threat may bear on the credibility of the witness,

whether or not the threat is directly linked to the defendant. [Citations.]‖ (People

v. Mendoza, supra, 52 Cal.4th at p. 1084.) ―It is not necessarily the source of the

threat — but its existence — that is relevant to the witness‘s credibility.‖

(Burgener, supra, 29 Cal.4th at p. 870.) The trial court did not abuse its discretion

in admitting evidence that Estrada had been threatened.

The court immediately admonished the jury not to ―infer or assume that

those threats are connected with the defendant in any way,‖ explaining that ―threats in

general may have occurred by people on their own who have no ties or relationship

with the defendant.‖ Sandoval argues that this admonition was inadequate because

―the court did not instruct the jury to limit its consideration of the evidence to the

witness‘s state of mind.‖ Because the court instructed the jury not to infer that the

threats were connected to Sandoval in any way, there was no reason to believe that

the jury would have considered the evidence of threats for any reason other than

evaluating the state of mind of the witness. The trial court‘s admonition was

sufficient.

40
G. Absence of Defendant from the Proceedings

Sandoval argues that the trial court committed reversible error by

discussing with counsel how to respond to a question from the jury during

deliberations when he was not present.

After the jury retired to deliberate, the trial court asked whether Sandoval

wished to be present if the jury requested that testimony be read back. Sandoval

personally waived his right to be present. The court then asked whether both of

his attorneys wished to be present if the court was called upon to respond to a

question from the jury. Defense counsel agreed that only one attorney, William

Ringgold, would be present. Sandoval personally waived his right to have both of

his attorneys present. He was not asked if he waived his right to be personally

present when the court responded to the jury‘s question.

On the second full day of deliberations, the jury sent the court a written

question regarding the attempted murder charge in count two. The question stated

in part: ―Pages 54 and 55 of the instructions do not states [sic] that this must be a

premeditated act. Is my interpretation of the elements right?‖ The trial court

consulted by telephone with the prosecutor and both defense counsel, and they

agreed upon the following response, which was sent to the jury: ―Whether or not

there was premeditation as to count two is a finding you are required to make.

Please refer to CALJIC 8.67 at pages 56 and 57.‖ Sandoval does not claim this

was error.

Later that morning, the court received a second written question from the

jury: ―If we find the person guilty of count two attempted murder, but find the

attempt not to be premeditated, is this person still guilty of the crime?‖ The

prosecutor and defense counsel, Ringgold, appeared. The trial court asked

Ringgold whether he wanted Sandoval to be present, and Ringgold replied: ―No.

I‘ll waive his presence.‖ The trial court and both counsel agreed to send the jury

41
the following response: ―Yes.‖ Near the end of the following court day, the jury

returned its verdict.

― ‗Broadly stated, a criminal defendant has a right to be personally present

at certain pretrial proceedings and at trial under various provisions of law,

including the confrontation clause of the Sixth Amendment to the United States

Constitution, the due process clause of the Fourteenth Amendment to the United

States Constitution, section 15 of article I of the California Constitution, and

sections 977 and 1043. [Citation.]‘ [Citations.] ‗ ―A defendant, however, ‗does

not have a right to be present at every hearing held in the course of a trial.‘ ‖ ‘ ‖

(People v. Jennings (2010) 50 Cal.4th 616, 681 (Jennings).) A defendant has a

right under the Fourteenth Amendment to be present ―at a ‗stage . . . that is critical

to [the] outcome‘ and [if] defendant‘s ‗presence would contribute to the fairness of

the procedure.‘ ‖ (Id. at pp. 681–682.)

In Jennings, the defendant was not present at a discussion in chambers

between the trial court and counsel at which they discussed how to respond to a

question from the jury during deliberations. We held ―that defendant did not have

a constitutional or statutory right to be personally present during the in-chambers

discussion regarding how to respond to the jury‘s question . . . . The formulation

of an appropriate response to this question was a legal matter, and . . . a defendant

does not have the right to be personally present during proceedings, held in-

chambers and outside of the jury‘s presence, concerning questions of law.‖

(Jennings, supra, 50 Cal.4th at p. 682.)

Jennings applies here. The fact that the discussion between the court and

counsel about how to respond to the jury‘s question took place in the courtroom

rather than in chambers makes no difference. The jury was not present, and the

discussion involved a legal matter. Sandoval‘s presence would not have

contributed to the fairness of the proceedings.

42
IV. PENALTY PHASE ISSUES

A. Retrial of Penalty Phase

Sandoval claims it was unconstitutional to conduct a second penalty trial

after the jury in the first penalty trial was unable to reach a verdict. Citing a

―national consensus,‖ he argues that ―if the prosecutor does not convince the

originally empaneled jury to unanimously vote to impose the death penalty, the

federal and state bans on cruel and/or unusual punishment prohibit the prosecutor

from seeking to exact that penalty in a second penalty trial.‖ He acknowledges

that we considered and rejected this argument in People v. Taylor (2010) 48

Cal.4th 574, 633–634, but he ―respectfully raises the issue here in order to

preserve his right to raise the issue in future proceedings, if necessary.‖ Sandoval

presents no persuasive reason for us to revisit this issue. (People v. Gonzales and

Soliz (2011) 52 Cal.4th 254, 311.)

B. Removal of Prospective Juror for Cause

Sandoval argues that the trial court erred in removing for cause Prospective

Juror D.M. during jury selection for the second penalty trial.

―[T]he proper standard for determining when a prospective juror may be

excluded for cause because of his or her views on capital punishment . . . is

whether the juror‘s views would ‗prevent or substantially impair the performance

of his duties as a juror in accordance with his instructions and his oath.‘ . . . [T]his

standard . . . does not require that a juror‘s bias be proved with ‗unmistakable

clarity.‘ This is because determinations of juror bias cannot be reduced to

question-and-answer sessions which obtain results in the manner of a

catechism. . . . [M]any veniremen simply cannot be asked enough questions to

reach the point where their bias has been made ‗unmistakably clear‘; these

veniremen may not know how they will react when faced with imposing the death

43
sentence, or may be unable to articulate, or may wish to hide their true feelings.

Despite this lack of clarity in the printed record, however, there will be situations

where the trial judge is left with the definite impression that a prospective juror

would be unable to faithfully and impartially apply the law. . . . [T]his is why

deference must be paid to the trial judge who sees and hears the juror.‖

(Wainwright v. Witt (1985) 469 U.S. 412, 424–426, fns. omitted.)

In the present case, D.M. filled out a lengthy juror questionnaire that asked

about his views on the death penalty. D.M. indicated he was ―for‖ the death

penalty ―in some cases.‖ He said he would be able to vote for the death penalty if

the evidence showed that penalty was appropriate. But when asked, ―Do you

realistically see yourself as a person capable of returning a verdict of death on

another human being?‖ D.M. circled the answer ―Don‘t know.‖ D.M. also circled

―No‖ in response to the question, ―If you had a choice, would you want to be a

juror on this case?‖

During individual voir dire, the prosecutor asked D.M. whether he saw

himself as a person who could return a death verdict if it was warranted. D.M.

said, ―I thought about it. And I honestly couldn‘t answer you. I‘ve never been in

that situation before.‖ The prosecutor again asked whether D.M. could return a

death verdict if he believed if was warranted, and D.M. answered, ―I think so. I

really don‘t know until I face that situation.‖

When defense counsel asked whether D.M. could vote either for death or

for life without parole, D.M. replied, ―To be honest, I‘m not sure,‖ adding, ―I think

whether, perhaps I should even have the ability or the power to decide life or

death.‖ D.M. said, ―I‘m not sure whether – I don‘t know. I‘m not sure whether

I‘m up to the responsibility, to be honest.‖ When asked again whether he could

vote for death if he thought it was appropriate, D.M. said, ―To be honest, I could

only say yes until I was at that actual point.‖

44
D.M. agreed with defense counsel that what was bothering him was that

deciding whether to impose the death penalty was ―a pretty momentous and

difficult decision.‖ When defense counsel asked whether D.M. was ―able to make

decisions in your life, even tough ones,‖ D.M. replied, ―Not very well.‖

When the prosecutor asked the court to dismiss D.M. ―based on his

ambivalence,‖ the court replied, ―I think so too. I think he‘s too ambivalent . . . .

I don‘t think he can make any decision.‖ The court dismissed D.M., saying ―he

had a problem with just this kind of decision, that this isn‘t the kind of decision

that one should be forced to even make.‖

The trial court did not dismiss D.M. because he was biased either for or

against the death penalty, but because the court concluded that D.M. would be

unable to make a decision either way. A prospective juror who is unable to reach

a decision is unable to perform the duties of a juror and may be removed for cause.

―At bottom, capital jurors must be willing and able to follow the law, weigh the

sentencing factors, and choose the appropriate penalty in the particular case.

[Citations.]‖ (People v. DePriest (2007) 42 Cal.4th 1, 20.) In determining

whether D.M. was unable to fulfill the role of a juror, we accord deference to the

trial court. (See Uttecht v. Brown (2007) 551 U.S. 1, 9 [―the trial court makes a

judgment based in part on the demeanor of the juror, a judgment owed deference

by reviewing courts‖]; People v. DePriest, supra, at p. 21 [―The trial court is in the

unique position of assessing demeanor, tone, and credibility firsthand—factors of

‗critical importance in assessing the attitude and qualifications of potential

jurors.‘ ‖].)

We reject Sandoval‘s argument that the trial court erroneously ―applied a

double standard‖ because it denied his motion to remove for cause three

prospective jurors who favored the death penalty. When asked whether she could

be fair and impartial, one such juror answered, ―I think so. I don‘t know.‖

45
Another prospective juror said she was ―really leaning . . . toward the death

penalty‖ because Sandoval had killed a police officer, but assured the court she

would take into account all the evidence before reaching a decision. Similarly, the

third prospective juror indicated he was ―predisposed to the death penalty in the

case of the death of an officer‖ but would listen to evidence of Sandoval‘s

background before making a decision. None of these three prospective jurors

indicated, as D.M. did, that they would not be able to reach a decision.

In sum, the record before us supports the trial court‘s ruling that D.M. could

not perform the functions of a juror because he was ―too ambivalent‖ to ―make

any decision.‖ The trial court did not err in excusing D.M. for cause.

C. Use of Profanity by Detective Delfin

Sandoval contends that the trial court erred in failing to declare a mistrial

after Detective Delfin called Sandoval a ―son of a bitch‖ during his testimony in

the penalty phase retrial.

The prosecutor called Detective Delfin as a witness at the penalty retrial,

and the detective recounted in moment-by-moment detail what happened when

Sandoval opened fire with his assault rifle on the police vehicle Detective Delfin

was driving. Detective Delfin heard what he recognized as a shot from an assault

weapon and ―noticed that it became extremely hot like someone opened up a pizza

oven. It was hot. And the car was getting filled with gunfire. [¶] I heard glass

breaking. . . . [I]t was like I was in a tornado. The car inside just started

exploding everywhere. There was debris flying, glass, fragments. . . . I got shot

on the right side of my head, and it knocked me senseless. I lost my motor skills.

. . . Pain. From a one to ten scale, a ten. Excruciating pain.‖

Detective Delfin noticed that Detective Black was not moving and made no

sound. He assumed he had been shot. Detective Delfin then was shot in his right

46
knee, which again caused excruciating pain. The following colloquy then took

place.

―[The Prosecutor] When you say the bullet hit you in the knee, what did it

do?

―[Detective Delfin] It shattered my whole knee. It shattered the bones. . . .

And the bullet exited in the right inner portion of my leg and tore all the muscle

out too.

―Q And as a result of that gunshot, do you have a knee anymore?

―A No, sir.

―Q What do you have instead?

―A I have a prosthetic knee.

―Q Does the injury which was caused by this person who chose to fire an

assault weapon into your vehicle, has it altered your ability to pursue your career

as a gang detective?

―A Yes.

―Q In what way?

―A I‘m no longer able to work the streets. The citizens of Long Beach no

longer have an officer who cares as much as I do anymore because this son of a

bitch shot me, man.‖

The trial court interrupted, sent the jury to the jury room, and called a

recess. Outside the presence of the jury, the trial court denied Sandoval‘s motion

to dismiss the penalty phase and declare a mistrial, ruling that a jury instruction

would be sufficient to cure any prejudice. When the jurors returned, the court

admonished them ―to disregard the profanity that was used in characterizing the

defendant by this witness.‖

Citing Parker v. Gladden (1966) 385 U.S. 363, Sandoval argues that

Detective Delfin‘s comment was inherently prejudicial because he is a state

47
official. Parker is distinguishable. The court bailiff in Parker told some of the

jurors during deliberations that the defendant was a ― ‗wicked fellow‘ ‖ who was

― ‗guilty‘ ‖ and later added, ― ‗If there is anything wrong [in finding petitioner

guilty] the Supreme Court will correct it.‘ ‖ (Id. at pp. 363-364.) The high court

held that the bailiff‘s comments violated the defendant‘s Sixth Amendment rights

because ― ‗the ―evidence developed‖ against a defendant shall come from the

witness stand in a public courtroom where there is full judicial protection of the

defendant‘s right of confrontation, of cross-examination, and of counsel.‘ ‖ (Id. at

p. 364.) Here, by contrast, Detective Delfin was testifying as a witness and was

subject to cross-examination. His use of profanity was a momentary breach of

decorum that was swiftly and adequately addressed by the trial court.

D. Juror Misconduct

Sandoval argues that two alternate jurors engaged in misconduct by

discussing the case prior to deliberations.

After the jury had been excused for the day following Detective Delfin‘s

testimony, Juror No. 11 told the court clerk that he had overheard two alternate

jurors discussing the case during a break in the jury room. The court notified

counsel and, the next morning, ordered Juror No. 11 to appear outside the presence

of the other jurors. Juror No. 11 said that during the previous day, when the jury

was in the jury room following Detective Delfin‘s use of profanity, one alternate

juror whispered to another alternate juror, asking what the detective had said; ―the

response was the curse word.‖ The alternate juror then said, ―I can‘t believe this is

happening. I think that it‘s not even. The consensus is probably seven to five still.

I don‘t know what these people are thinking.‖

After the juror had left the courtroom, the trial judge remarked that this

indicated to her ―that somebody has read one of the newspaper articles, because

48
that information was in one of the newspaper articles the other day that the prior

jury had hung seven to five.‖ Both the prosecutor and defense counsel added that

this information also had appeared in earlier newspaper articles.

The court also examined three jurors who were seated near the alternate

jurors. Two had heard nothing, and the third believed that the alternate jurors had

been discussing the case because ―they were saying like ‗he,‘ ‗him‘ and

whispering,‖ but he could not recall what they had said. The two alternate jurors

were examined. One denied having discussed the case. The other also denied

having discussed the case, but ―vaguely‖ recalled asking someone whether

Detective Delfin had said the phrase ―son of a bitch.‖ The court then examined

each of the remaining jurors individually; each denied hearing any conversation.

The trial court denied Sandoval‘s motions ―for dismissal of the penalty‖ or for a

mistrial and to excuse the two alternate jurors, finding that no misconduct

occurred. Although the court observed that there was ―very conflicting

testimony,‖ it seemed to accept the testimony of Juror No. 11, stating that the

alternate juror‘s purported comments were ―all statements which have nothing to

do with the evidence in the case. But statements dealing with his state of mind,

which they‘re not forbidden to have.‖

As required by Penal Code section 1122, subdivision (b), the trial court

instructed the jurors at the end of each court day that they were not to ―converse

among themselves . . . on any subject connected with the trial, or to form or

express any opinion about the case until the cause is finally submitted to them.‖

We agree with Sandoval that it was misconduct for the alternate juror to ask

another alternate juror whether Detective Delfin had used the phrase ―son of a

bitch, ‖ as well as for the alternate juror to express disbelief that the jury appeared

split on whether to impose the death penalty. These comments, which violated the

49
trial court‘s instruction not to discuss the case before deliberations, constituted

misconduct. We must examine whether the misconduct was prejudicial.

Juror ―misconduct raises a presumption of prejudice that may be rebutted

by proof that no prejudice actually resulted.‖ (People v. Cooper (1991) 53 Cal.3d

771, 835.) We find that the presumption of prejudice was rebutted in this case.

The alternate juror‘s question with respect to Detective Delfin‘s statement was a

trivial and inconsequential breach of the trial court‘s instruction. The alternate

juror‘s expression of disbelief that the jury appeared split, while more serious, was

brief and isolated. It was heard only by one other juror and was not repeated.

(See People v. Manibusan (2013) 58 Cal.4th 40, 59 [juror‘s comments on the

defendant‘s failure to testify were not prejudicial because they were ―merely brief

and passing observations‖]; People v. Avila (2009) 46 Cal.4th 680, 727 [jurors‘

discussion of the defendant‘s failure to testify was not prejudicial because it ―was

not of any length or significance‖].) And the described conversation was between

two alternate jurors, neither of whom participated in deliberations.

E. Admission of Uncharged Shooting

Sandoval contends that the prosecutor committed misconduct by supplying

the jury with a portion of Sandoval‘s confession in which he admitted shooting

another person with the weapon he used to shoot Detectives Black and Delfin, and

that defense counsel was ineffective in failing to move for a mistrial when this

error was discovered.

Three days after the crime, police executed a search warrant for Sandoval‘s

residence. The AR-15 assault weapon that Sandoval had used to shoot the victims

was found covered by a towel behind the stove. After being arrested, Sandoval

made a tape-recorded confession in which he admitted unloading the assault

50
weapon and placing it behind the stove. He also admitted that he previously had

fired the weapon. A 55-page transcript of the confession was prepared.

Before the recording of his confession was played for the jury at the guilt

phase, Sandoval moved to exclude two lines from the tape and transcript in which

Detective Lassiter asked whether Sandoval had ever shot anyone else with the

assault weapon and Sandoval answered, ―Yes, I have.‖ The prosecutor agreed to

remove those lines from the transcript and not play that portion of the tape for the

jury.

During the penalty phase retrial, just before the tape recording of

Sandoval‘s confession was played for the jury, the prosecutor gave the jurors

copies of the transcript. While the tape was being played for the jury, defense

counsel interrupted and asked to approach the bench. He noted that Sandoval‘s

statement that he had shot someone else with the murder weapon appeared in the

transcript given to the jury. The bailiff collected the copies of the transcript from

the jurors, and the trial court instructed the jurors that ―there is absolutely no

evidence the defendant ever shot anyone else with the CAR-15, and you‘re

ordered to disregard the statements to that effect.‖ Those lines were deleted from

the original transcript that was later provided to the jury. The remainder of the

tape recording then was played for the jury.

We reject Sandoval‘s claim that the prosecutor committed misconduct by

including the excluded question and answer in the transcript. ―In general, a

prosecutor commits misconduct by the use of deceptive or reprehensible methods

to persuade either the court or the jury. [Citations.] But the defendant need not

show that the prosecutor acted in bad faith or with appreciation for the

wrongfulness of the conduct, nor is a claim of prosecutorial misconduct defeated

by a showing of the prosecutor‘s subjective good faith.‖ (People v. Price (1991)

1 Cal.4th 324, 447.) Here, the prosecutor made a mistake that was quickly caught

51
and corrected. The erroneous transcripts were taken from the jurors, and the trial

court gave a clear admonition to cure any harm.

Nor was defense counsel ineffective in failing to move for a mistrial

because the prosecutor‘s error did not warrant declaring a mistrial. The potential

for prejudice was not great. The jury was erroneously told that Sandoval admitted

he had used the murder weapon to shoot someone else, but the jury already knew

that he had used the murder weapon to kill Detective Black and wound Detective

Delfin. And the jury knew that Sandoval had used an assault rifle to kill Jesus

Cervantez and attempt to kill Steve Romero. Sandoval‘s admission that he had

used the murder weapon to shoot someone else could not have affected the

outcome of the penalty phase, and the trial court‘s timely admonition was

sufficient to cure any harm.

F. Improper Prosecutorial Argument

Sandoval claims that the prosecutor committed misconduct by arguing that

Sandoval had grown out his hair to deceive the jury and by anticipating several

arguments he expected defense counsel to make.

During his argument at the penalty retrial, the prosecutor invited the jury to

consider a videotape taken just prior to the shooting, saying:

―[Prosecutor]: . . . Because that‘s the person that was on Lime Avenue.

That‘s the person that went to McDonald‘s; not the guy that started growing his

hair out two months ago to deceive you, because that‘s why he did it. He doesn‘t

have his hair this way, and it won‘t be this way for 15 minutes after your verdict.

―[Defense Counsel]: I object. That‘s improper argument.

―The Court: Overruled.

―[Prosecutor]: He began growing his hair out to deceive you. He began

doing it when he knew this case was coming to trial. That‘s why he did it.

52
―[Defense Counsel]: There‘s no evidence of this, your Honor.

―The Court: Counsel may argue inferences from the evidence. Overruled.‖

The trial court did not err. ― ‗It is settled that a prosecutor is given wide

latitude during argument. The argument may be vigorous as long as it amounts to

fair comment on the evidence, which can include reasonable inferences, or

deductions to be drawn therefrom. [Citations.]‘ ‖ (People v. Wharton (1991) 53

Cal.3d 522, 567.) We have held that a prosecutor‘s argument that the defendant

had deliberately altered his appearance between the time of the murder and the

time of trial ―was not improper, because it related to the issues of identity and

consciousness of guilt.‖ (People v. Cunningham (2001) 25 Cal.4th 926, 1001; see

People v. Foster (2010) 50 Cal.4th 1301, 1355 [―It is not improper for a

prosecutor to suggest that a defendant deliberately altered his or her appearance to

raise doubt concerning the defendant‘s identity as the perpetrator . . . .‖].)

Nor did the prosecutor commit misconduct by anticipating arguments that

the jury was ―likely to hear from defense counsel.‖ The prosecutor predicted that

defense counsel would use a triangle to symbolize the population as a whole and

argue that only the ―infinitesimal portion‖ of people at the tip of the triangle

should get the death penalty. The prosecutor also argued that defense counsel

would claim that a sentence of life without the possibility of parole was sufficient

because Sandoval would still be in prison 30 years from now. Defense counsel

objected only when the prosecutor added that if defendant were sentenced to life

without parole ―Thirty years from now he would still have access to all the quality

of life that exists within the prison community; watching television,‖ stating,

―Objection. There‘s no evidence of this, your Honor.‖

Defendant is precluded from arguing on appeal that the prosecutor

committed misconduct by anticipating arguments defense counsel would raise

―because he failed to timely object and request the jury be admonished.‖

53
[Citations.]‖ (People v. Wharton, supra, 53 Cal.3d at p. 566.) In any event, the

prosecutor‘s argument was proper. There is no misconduct ―where the prosecutor

anticipates the flaws likely to appear in counsel‘s closing argument based upon

evidence that was introduced.‖ (People v. Bemore (2000) 22 Cal.4th 809, 846,

citing People v. Thompson (1988) 45 Cal.3d 86, 113 (Thompson).)

G. Prosecutorial Misconduct During Argument

Sandoval contends that the prosecutor committed misconduct during his

argument in the penalty phase retrial by showing the jury a photo montage of the

victims accompanied by music.

At the end of the prosecutor‘s argument, he played a nearly six-minute

PowerPoint presentation that consisted of still photos introduced into evidence

accompanied by stirring orchestral music. The photos depicted each phase of

Detective Black‘s life, from infancy until his death, culminating with photos of his

lethal wounds and dead body. There were numerous photos of his funeral, which

included full honors and was attended by thousands of uniformed officers.

Detective Delfin was shown both before and after his injury, as was Maria

Cervantes and a photo of the blood-soaked bed in which she was shot. Several

photos showed Sandoval flashing gang signs. The presentation also showed the

murder weapon and the bullet-ridden, bloodstained car that Detectives Black and

Delfin were in when they were shot. Following the presentation, defense counsel

stated without contradiction, outside the presence of the jury, that ―[d]uring the

playing of the video, [juror] number 12, number 7, number 3, and at the end,

number 11 began to openly cry.‖ When the court said it did not see Juror No. 11,

the clerk interjected, ―Yes, including number 11 began to.‖

Our case law holds that the use of audio-visual presentations dramatizing

the life and death of the victims, though not categorically prohibited, risks

54
injecting an improper degree of emotion into the proceedings. ―Courts must

exercise great caution in permitting the prosecution to present victim-impact

evidence in the form of a lengthy videotaped or filmed tribute to the victim.

Particularly if the presentation lasts beyond a few moments, or emphasizes the

childhood of an adult victim, or is accompanied by stirring music, the medium

itself may assist in creating an emotional impact upon the jury that goes beyond

what the jury might experience by viewing still photographs of the victim or

listening to the victim‘s bereaved parents. . . . In order to combat this strong

possibility, courts must strictly analyze evidence of this type and, if such evidence

is admitted, courts must monitor the jurors‘ reactions to ensure that the

proceedings do not become injected with a legally impermissible level of

emotion.‖ (People v. Prince (2007) 40 Cal.4th 1179, 1289 (Prince); see People v.

Vines (2011) 51 Cal.4th 830, 887 (Vines) [―courts should be cautious about

admitting videotapes featuring the victim‖].)

Prince upheld the admission of a 25-minute interview with the victim

conducted at a local television station. We were careful to note the unemotional

nature of the evidence: ―[T]he videotaped interview of [the victim] did not

constitute an emotional memorial tribute to the victim. There was no music,

emotional or otherwise. The tape did not . . . display the victim in her home or

with her family, nor were there images of the victim as an infant or young child.

The setting was a neutral television studio, where an interviewer politely asked

questions concerning the victim‘s accomplishments on the stage and as a musician

and the difficulty she experienced in balancing her many commitments, touching

only briefly upon her plan to attend college in the fall and follow the stage as a

profession. . . . The loss of such a talented and accomplished person is poignant

even for a stranger to contemplate, but the straightforward, dry interview depicted

55
on the videotaped recording was not of the nature to stir strong emotions that

might overcome the restraints of reason.‖ (Prince, supra, 40 Cal.4th at p. 1290.)

In People v. Dykes (2009) 46 Cal.4th 731, we found no error in presenting

an eight-minute video of a murder victim and his family ―preparing for and

enjoying a trip to Disneyland.‖ (Id. at p. 783.) The trial court had deleted the

audio portion of the tape and cautioned the prosecutor that commentary during the

showing of the tape ―should be unemotional.‖ (Id. at p. 784.) We held: ―The

videotape is an awkwardly shot ‗home movie‘ depicting moments shared by [the

victim] with his family shortly before he was murdered. The videotape does not

constitute a memorial, tribute, or eulogy; it does not contain staged or contrived

elements, music, visual techniques designed to generate emotion, or background

narration; it does not convey any sense of outrage or call for vengeance or

sympathy; it lasts only eight minutes and is entirely devoid of drama; and it is

factual and depicts real events.‖ (Id. at p. 785.)

A three-minute videotape ―of fewer than 20 still photographs‖ of the victim

was properly admitted in People v. Bramit (2009) 46 Cal.4th 1221 because it ―was

not unduly emotional‖ and was ―unenhanced by any soundtrack or commentary.‖

(Id. at pp. 1240–1241.) And in Vines, we upheld the admission of a five-minute

― ‗home movie‘ ‖ of the victim singing and dancing, noting that there was no

―added music‖ and ―it is not a tribute or eulogy, and there is nothing particularly

dramatic or emotional about the performances.‖ (Vines, supra, 51 Cal.4th at

p. 888.) We agreed with the trial court ―that the videotape contained ‗nothing

inflammatory that would divert the jury from [its] proper function,‘ and nothing in

the record suggests the jury in fact reacted emotionally to the playing of the

videotape. We therefore conclude[d] the trial court did not abuse its discretion in

admitting it.‖ (Ibid.)

56
The presentation in this case was markedly different. The photographs

were accompanied by stirring, emotional music. In People v. Kelly (2007) 42

Cal.4th 763 (Kelly), we said: ―Nonfactual dramatization of the evidence in a

videotape — in the sense of making a presentation in a dramatic manner — adds

irrelevant factors to the videotape. The videotape must factually and realistically

portray the victim‘s life and character and not present a ‗staged and contrived

presentation . . . .‘ [Citation.] Trial courts must not permit irrelevant background

music or video techniques that enhance the emotion of the factual presentation.

Moreover, the videotape, even when presented factually, must not be unduly

emotional. [Citation.]‖ (Kelly, supra, 42 Cal.4th at p. 798; see People v. Verdugo

(2010) 50 Cal.4th 263, 299; People v. Zamudio, supra, 43 Cal.4th at p. 367.) The

music accompanying the photos did not serve ―to remind the jury that the person

whose life was taken as a unique human being‖; it instead appeared designed to

―inflame [the jury‘s] passions more than did the facts of the crime.‖ (Payne v.

Tennessee (1991) 501 U.S. 808, 831, 832 (conc. opn. of O‘Connor, J.).) The

photos themselves had been admitted into evidence, and the prosecutor could

properly have shown them to the jury during his argument. But the trial court

abused its discretion in allowing the prosecutor to present these images with music

designed to amplify their emotional impact. We hold that because background

music in victim impact presentations provides no relevant information and is

potentially prejudicial, it is never permitted. Music in such presentations is

permissible only when it is relevant to the jury‘s penalty phase decision. (See,

e.g., Vines, supra, 51 Cal.4th at p. 888.)

However, we find ―no reasonable possibility‖ that the jury would have

reached a different penalty verdict if the stirring music had been omitted from the

PowerPoint presentation. (Kelly, supra, 42 Cal.4th at p. 799.) The presentation

came at the end of the four-day penalty trial, during which the evidence focused

57
on the highly aggravated circumstances of the crime. The fact that Sandoval,

using an assault weapon, had fired 28 rounds into a police car, killing one officer

in the line of duty and attempting to kill another, undoubtedly had a considerable

impact on the jury. This impact was amplified by evidence properly admitted

from Detective Black‘s friends and siblings and from Detective Delfin and his

wife about the impact of the shooting. Further, as noted, the photographs of

Sandoval and his victims in the PowerPoint presentation had been properly

admitted. And the jury was also presented with serious aggravating evidence apart

from the circumstances of the crime, i.e., that Sandoval had used an assault

weapon to kill Jesus Cervantez and attempt to kill Steve Romero. It is true that

Sandoval was 18 years old at the time he committed the capital offense, that the

defense offered several witnesses on his behalf at the penalty retrial, and that the

first penalty phase jury did not return a death verdict. But we find no reasonable

possibility, in light of the aggravating evidence presented to the jury, that omitting

the music in the PowerPoint presentation would have resulted in a different

penalty verdict.

H. Instruction about Life Sentence

Sandoval claims that the trial court erred in not permitting defense counsel

to tell the jury during argument that a sentence of life without the possibility of

parole would mean that he would never be released from prison.

Defense counsel argued to the jury that a sentence of life without the

possibility of parole ―means that you will never get out.‖ The prosecutor objected.

Outside the hearing of the jury, the court explained that ―the correct statement of

the law is that you are to assume that it means that.‖ Defense counsel asked the

court ―to admonish them now,‖ and the court told the jury: ―Life without the

possibility of parole . . . you are to assume that it means that.‖ Defense counsel

58
added, ―you are to assume that that‘s what it means because that‘s what it does

mean. It means that Ramon Sandoval will spend the rest of his life in a California

maximum security prison.‖ The court interrupted:

―The Court: Excuse me. The jury is not allowed to accept the statement

that life without the possibility of parole means exactly what it is. You‘re to

assume that that‘s what it means. Thank you.

―[Defense Counsel]: Well, okay. You‘re to assume that Ramon Sandoval

will spend the rest of his life in a California maximum security prison. Even if he

lives to be 100 years old, you‘re to assume that‘s where he‘s going to die.‖

As a preliminary matter, we reject the Attorney General‘s contention that

because Sandoval‘s counsel requested the court to admonish the jury that they are

to assume that life without possibility of parole means what it says, Sandoval

forfeited the right to contest that admonition on appeal. Counsel requested that

instruction only after the court informed him that it was improper to tell the jury

that someone sentenced to life imprisonment without possibility of parole ―will

never get out.‖ Sandoval has not forfeited his claim that the trial court erroneously

prevented him making that argument to the jury.

We also conclude that the trial court erred in not allowing counsel to argue

the finality of life imprisonment without parole. To be sure, we have held in the

context of jury instructions that it is ―incorrect to tell the jury the penalty of death

or life without possibility of parole will inexorably be carried out.‖ (Thompson,

supra, 45 Cal.3d at p. 130.) Thompson explained that such an instruction ―is not

accurate‖ in part because it ―ignores the Governor‘s power of commutation.‖

(Ibid.; see People v. Arias (1996) 13 Cal.4th 92, 172 [instructing jury that a

defendant sentenced to life without possibility of parole ― ‗will spend the rest of

his life confined in state prison‘ ‖ would be ―inaccurate‖ because ―[t]he Governor

may ameliorate any sentence by use of the commutation or pardon power‖].) But

59
in Thompson we distinguished between jury instructions and remarks made during

voir dire. ―In general, impressing the jury with the weight of its responsibility is

beneficial. Hence it was not necessarily error to suggest to them on voir dire that

the sentence they decide on will be carried out. At the stage of formal instruction

to the jury at the penalty phase, however, the effect of the inaccuracy in this

instruction is hard to predict.‖ (Thompson, at p. 131, fn. omitted.) Thompson

extended this logic to counsel‘s closing argument: ―Defense counsel‘s remarks to

the jury during closing argument as to what life without possibility of parole

would really mean and what an unending punishment it would be were also within

the scope of legitimate argument to the extent the remarks impressed on the jury

the gravity of its task.‖ (Id. at p. 131, fn. 29.)

We have since disapproved of instructing a penalty phase jury to

― ‗assume‘ ‖ that its sentence will be carried out. (People v. Letner and Tobin

(2010) 50 Cal.4th 99, 206 (Letner and Tobin).) Instead, we have concluded that if

an instruction on this subject is given, it should simply admonish the jury to

refrain from speculating on matters beyond the evidence and the trial court‘s

instructions. (Ibid.) But we have not revised the distinction recognized in

Thompson between trial court instruction on this topic and statements made during

voir dire or closing argument. Defense counsel is permitted to argue that life

without possibility of parole is an ―unending punishment‖ to impress upon the jury

the ―gravity of its task‖ –– that it is choosing between the two harshest

punishments available under the law. (Thompson, supra, 45 Cal.3d at p. 131, fn.

29.) In this particular context, counsel is permitted to argue that the sentence of

imprisonment for life without the possibility of parole means the defendant will

not be released from prison –– a legally accurate description of the sentence ––

without reference to the speculative factual possibility that the sentence may not

be carried out. Claiming that Thompson should not be followed, Justice Chin cites

60
People v. Smith (2003) 30 Cal.4th 581, 636, where we noted without explanation

that defense counsel‘s statement that the defendant will ―never have a parole

hearing‖ was inaccurate. But we went on to note that both sides in that case

argued without objection that if spared execution, the defendant would die in

prison; as a result, ―[t]he jury understood the significance of its choices.‖ (Ibid.)

We are unpersuaded that Smith eclipses the rule set forth in Thompson that we

follow today.

We therefore turn to the question of whether the error was harmless. We

first note that the Attorney General has not argued harmless error, which

complicates our task. We are bound by article VI, section 13 of the California

Constitution, which says: ―No judgment shall be set aside, or new trial granted, in

any cause, on the ground of misdirection of the jury, or of the improper admission

or rejection of evidence, or for any error as to any matter of pleading, or for any

error as to any matter of procedure, unless, after an examination of the entire

cause, including the evidence, the court shall be of the opinion that the error

complained of has resulted in a miscarriage of justice.‖ The plain meaning of this

provision is that a reviewing court may not reverse a judgment without addressing

harmless error. But ―as a general rule, ‗[o]ur adversary system is designed around

the premise that the parties know what is best for them, and are responsible for

advancing the facts and arguments entitling them to relief.‘ ‖ (Greenlaw v. United

States (2008) 554 U.S. 237, 244; see also Carducci v. Regan (D.C. Cir. 1983) 714

F.2d 171, 177 (Scalia, J.) [―The premise of our adversarial system is that appellate

courts do not sit as self-directed boards of legal inquiry and research, but

essentially as arbiters of legal questions presented and argued by the parties before

them.‖].) Courts in other jurisdictions have warned of ―the dangers of allowing

sua sponte consideration of harmlessness,‖ including ―the potential burden on

reviewing courts of searching the record without guidance from the parties and

61
encouragement of sloppy practice by lawyers.‖ (Gover v. Perry (6th Cir. 2012)
698 F.3d 295, 300.) Furthermore, courts have warned that ―[t]he practice may

unfairly tilt the scales of justice by authorizing courts to construct the

government‘s best arguments for it without providing the defendant with a chance

to respond.‖ (U.S. v. Gonzalez-Flores (9th Cir. 2005) 418 F.3d 1093, 1101.)

When the government has made no case for harmless error, some federal

authorities have held that a reviewing court has discretion whether to conduct a

harmless error inquiry and that the exercise of such discretion to find an error

harmless requires ―a double level of certainty: we must be convinced that the

error was ‗harmless beyond a reasonable doubt‘ and that ‗satisfaction of that

standard is beyond serious debate.‘ ‖ (U.S. v. Brooks (9th Cir. 2014) 772 F.3d

1161, 1171.) Under article VI, section 13 of the California Constitution, we do not

have discretion to reverse a judgment without first conducting harmless error

review. But even if we were to ask, in light of the government‘s failure to argue

harmless error, whether it is beyond serious debate that the error was harmless

under Chapman, we would conclude that it was in this case. An instruction about

a sentence of life without possibility of parole that, although imperfect, does not

misinform the jury will generally not be the basis for a reversal in the absence of

evidence of juror confusion or concern about the subject. (See Letner and Tobin,

supra, 50 Cal.4th at pp. 206–207.) We find no such evidence on this record.

Moreover, it is highly doubtful the jury would draw a prejudicial implication from

the trial court‘s fine distinction between ―accepting‖ and ―assuming‖ that a

sentence of life without possibility of parole will be carried out. We therefore

perceive no prejudice either from the trial court‘s ruling preventing Sandoval‘s

counsel from arguing that his sentence ―means that you will never get out‖ or from

its admonition to ―assume‖ the same.

62
I. Instruction that Jurors Need Not Agree

Sandoval argues that the trial court erred in refusing his request to instruct

the jury that ―[t]he jurors need not unanimously agree on whether a particular

mitigating circumstance is present.‖ Sandoval requested the following jury

instruction: ―A mitigating circumstance does not have to be proved beyond a

reasonable doubt to exist. The jurors need not unanimously agree on whether a

particular mitigating circumstance is present. Each juror, in his or her own

individual assessment of the evidence, may find that a mitigating factor exists if he

or she finds there is any substantial evidence to support it.‖ The trial court refused

to give the requested instruction because ―it‘s covered by the other instructions.‖

The trial court did not err. ―We repeatedly have held the trial court does

not have to instruct the penalty phase jury that . . . a juror may find that a

mitigating circumstance exists if there is any substantial evidence to support it, [or

that] . . . there is no requirement that all jurors agree on any factor in mitigation

. . . .‖ (People v. Lee (2011) 51 Cal.4th 620, 655.) ―The trial court is not required

to instruct that mitigating factors need not be proven beyond a reasonable doubt

. . . .‖ (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 458.)

J. Harmless Error

Sandoval claims that a reviewing court may not conclude that any error

committed during the penalty phase is harmless. As noted, the California

Constitution prohibits a judgment from being set aside unless ―the error

complained of has resulted in a miscarriage of justice.‖ (Cal. Const., art. VI,

§ 13.) Pursuant to this mandate, we have regularly employed harmless error

analysis in deciding whether a death verdict should be affirmed (see, e.g., People

v. Cowan (2010) 50 Cal.4th 401, 491; People v. Gonzalez (2006) 38 Cal.4th 932,

960–961; People v. Ashmus (1991) 54 Cal.3d 932, 990; People v. Brown (1988)

46 Cal.3d 432, 448), and we see no persuasive reason to discard our precedent in

63
favor of a categorical bar on harmless error analysis with respect to penalty phase

error.

K. Validity of Death Penalty Statutes

Sandoval contends that the death penalty ―cannot be administered in a

constitutional manner‖ but recognizes that this court ―has repeatedly rejected

challenges to the constitutionality of the death penalty.‖ He raises this challenge

―to preserve his right to litigate the issue in further proceedings if necessary.‖

Sandoval has offered no persuasive reason to revisit our precedent holding that

California‘s death penalty law is constitutional. (People v. Bryant, Smith and

Wheeler, supra, 60 Cal.4th at pp. 468–469.)

64
CONCLUSION

The judgment with respect to the lying-in-wait special circumstance is

reversed. In all other respects, the judgment is affirmed.

LIU, J.


WE CONCUR:

CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CUÉLLAR, J.
KRUGER, J

65









CONCURRING AND DISSENTING OPINION BY CHIN, J.




Although I concur in the judgment affirming defendant‘s convictions,

enhancements, and sentence, for reasons explained below, I do not agree that we

should vacate the lying-in-wait special circumstance. Nor do I agree that the trial

court erred in precluding defense counsel from making erroneous and inaccurate

statements to the jury regarding a sentence of life without possibility of parole,

i.e., that the sentence ―means that you will never get out‖ and that defendant ―will

spend the rest of his life in a California maximum security prison.‖ I also do not

subscribe to the majority‘s suggestion that the approach of some federal

authorities to harmless error review when the government fails to make a harmless

error argument may be applicable to California appellate courts. The parties have

not briefed, or even mentioned, this question, no doubt because the majority‘s

suggestion is so clearly at odds with the California Constitution‘s express

commands regarding the review duty of California appellate courts.

1. Lying in Wait

One of the special circumstances the jury found true is that defendant

―intentionally killed the victim by means of lying in wait.‖ (Pen. Code, § 190.2,

subd. (a)(15).) Defendant argues that, for two reasons, we should set aside this

finding: (1) the evidence to establish it is insufficient; and (2) the trial court

prejudicially erred in failing to give, sua sponte, an instruction on evaluating
circumstantial evidence. The majority vacates the finding based solely on the

latter argument. In my view, neither argument has merit.

A. The Court Did Not Err in Failing to Give a Circumstantial

Evidence Instruction.

Defendant argues the trial court prejudicially erred in failing to give, sua

sponte, CALJIC No. 8.83 ―and/or‖ CALJIC No. 8.83.1.‖ CALJIC No. 8.83 (6th

ed. 1996) states: ―You are not permitted to find a special circumstance alleged in

this case to be true based on circumstantial evidence unless the proved

circumstance is not only (1) consistent with the theory that a special circumstance

is true, but (2) cannot be reconciled with any other rational conclusion. [¶]

Further, each fact which is essential to complete a set of circumstances necessary

to establish the truth of a special circumstance must be proved beyond a

reasonable doubt. [¶] In other words, before an inference essential to establish a

special circumstance may be found to have been proved beyond a reasonable

doubt, each fact or circumstance upon which that inference necessarily rests must

be proved beyond a reasonable doubt. [¶] Also, if the circumstantial evidence is

susceptible of two reasonable interpretations, one of which points to the truth of a

special circumstance and the other to its untruth, you must adopt the interpretation

which points to its untruth, and reject the interpretation which points to its truth.

[¶] If, on the other hand, one interpretation of that evidence appears to you to be

reasonable and the other interpretation to be unreasonable, you must accept the

reasonable interpretation and reject the unreasonable.‖

CALJIC No. 8.83.1 (6th ed. 1996) is similar, but specifically addresses

specific intent and mental states. It provides: ―The [specific intent] [mental state]

with which an act is done may be shown by the circumstances surrounding its

commission. But you may not find a special circumstance alleged in this case to

be true unless the proved surrounding circumstances are not only, (1) consistent

with the theory that the defendant had the required [specific intent] [mental state],

2
but (2) cannot be reconciled with any other rational conclusion. [¶] Also, if the

evidence as to [any] [specific intent] [mental state] is susceptible of two

reasonable interpretations, one of which points to the existence of the [specific

intent] [or] [mental state] and the other to the absence of the [specific intent] [or]

[mental state], you must adopt that interpretation which points to the absence of

the [specific intent] [or] [mental state]. [¶] If, on the other hand, one

interpretation of the evidence as to the [specific intent] [or] [mental state] appears

to you to be reasonable and the other interpretation to be unreasonable, you must

accept the reasonable interpretation and reject the unreasonable.‖ (Ibid.)

The federal Constitution does not require the giving of an instruction on

evaluating circumstantial evidence where the trial court correctly instructs the jury

on reasonable doubt. (People v. Livingston (2012) 53 Cal.4th 1145, 1167.)

However, this court ―has long held‖ that, under certain circumstances, ―trial courts

must give ‗an instruction embodying the principle that to justify a conviction on

circumstantial evidence the facts and circumstances must not only be entirely

consistent with the theory of guilt but must be inconsistent with any other rational

conclusion.‘ ‖ (Ibid.)

In this case, however, the court did not err in failing to give a circumstantial

evidence instruction with respect to lying in wait because two of the circumstances

that would have triggered its duty to give such an instruction were lacking. In her

separate opinion, Justice Corrigan has explained why one of those circumstances

is missing: Sergeant Valdemar‘s testimony, which is the circumstantial evidence

the majority discusses, did not ―reasonably support[] an inference that defendant

did not act with the required mental state.‖ (Dis. opn. of Corrigan, J., post, at p.

3.)

The other circumstance that was lacking was substantial reliance by the

prosecution on the circumstantial evidence to prove defendant‘s guilt. We have

long and ―consistently‖ held that a trial court must give a circumstantial evidence

instruction only when the prosecution ―substantially relies on [such] evidence to

3
prove its case.‖ (People v. Anderson (2001) 25 Cal.4th 543, 582.) ―Conversely,

the instruction need not be given when circumstantial evidence is merely

incidental to and corroborative of direct evidence . . . .‖ (People v. McKinnon

(2011) 52 Cal.4th 610, 676 (McKinnon).) Indeed, where circumstantial evidence

―is not the primary means by which the prosecution seeks to establish‖ its case, the

instruction ―should not be given‖ because it ―may confuse and mislead‖ the jury.

(Anderson, supra, at p. 582.) Under our decisions, this is true even if the

circumstantial evidence is ―substantial,‖ arguably ―central‖ to the prosecution‘s

case, and ―strong,‖ either in the abstract or in comparison to the ―quality of the

direct evidence‖ that it ―bolsters, corroborates, or supports.‖ (McKinnon, supra, at

p. 676 & fn. 40.) It is also true even if the defendant‘s mental state is at issue; a

circumstantial evidence instruction is not required if that mental state is ―proved

by inference drawn from the direct evidence of [the] defendant‘s conduct,‖

including the defendant‘s own extrajudicial statements and the testimony of

eyewitnesses. (People v. Wiley (1976) 18 Cal.3d 162, 175.)

Under these principles, because the prosecution in this case primarily relied

on direct evidence to prove the lying-in-wait special circumstance, the trial court

did not err in failing to give, sua sponte, a circumstantial evidence instruction in

connection with that special circumstance. During discussions about jury

instructions, defendant‘s counsel objected to instructing on lying in wait, arguing

there ―wasn‘t sufficient evidence for‖ doing so. In response, the prosecution relied

only on evidence provided by defendant‘s ―own statement.‖ The court agreed

with the prosecution, stating: ―The evidence supports those comments, including

the evidence by Mr. Falconer who was an eyewitness to the shooting.‖

Consistent with the preceding comments, in its opening argument to the

jury after the close of evidence, with respect to the lying-in-wait special

circumstance, the prosecution relied on the defendant‘s confession, the testimony

of eyewitnesses, and inferences that could be directly and reasonably drawn from

that direct evidence. Specifically, the prosecution argued: ―Remember what all

4
the testimony is here? Jimmy Falconer, the defendant, and Rick Delfin. What did

they say happened here? Jimmy Falconer said it was like shooting fish in a barrel.

They never gave them a chance. What does Rick Delfin tell you? I never saw

him. I didn‘t think he‘d ever stop shooting. I was sitting in a police car looking at

this other guy planning to go talk to this guy, Camacho, when this ambush assault

occurred. What does the defendant say? They never looked at me. Why did you

hide behind the car? They never seen me. What did you do when you popped up?

I shot them when they weren‘t looking. That‘s an ambush. That‘s what lying in

wait is all about. This concealment, hiding of himself, is where you get the lying

in wait. He sees the police officer, ducks down, and waits to see whether it‘s

necessary, whether it‘s appropriate to for him to begin shooting, whether it‘s going

to be necessary to kill the police officers, depending on their conduct. And he

watches and he waits. And he sees what they do. And they kind of do what a

gang member would expect, they go over and focus on the gang member that‘s

across the street on his way up to Toro‘s house to ring the bell and kill Toro. As

they‘re approaching him getting ready to contact him and ultimately arrest him

and prevent having Toro killed, this defendant instead of having his homeboy

arrested, the focus was on the police officer on the opposite side of the street. He

discharged his assault weapon into Detective Black and killed him.‖

As is readily apparent, in its opening argument, the prosecution relied on

reasonable inferences from the direct evidence, and made no reference to expert

testimony. However, in a completely separate part of its opening argument, the

prosecution did expressly and precisely explain ―why gang experts [had been]

called‖: to address issues related to charges that had a gang component, e.g.,

―intentional killing by an active street gang member‖ or ―an active participant in a

criminal street gang,‖ ―crimes committed for the benefit of a criminal street

gang,‖ engaging ―in a pattern of criminal gang activity,‖ ―the primary activities of

the gang.‖ Thus, the record clearly demonstrates that, in its opening argument, the

5
prosecution did not substantially rely on Sergeant Valdemar‘s testimony to prove

lying in wait; indeed, it did not rely on that testimony at all.

The majority ignores this clear record in concluding otherwise, i.e., in

finding that the prosecution‘s opening argument regarding the lying-in-wait

special circumstance was ―unmistakably a reference to Sergeant Valdemar‘s

testimony.‖1 (Maj. opn., ante, at p. 27.) It then compounds this factual error with

a legal one: engaging in a mode of analysis that we clearly rejected just four years

ago. In McKinnon, the defendant based his argument that circumstantial evidence

was ―central to the prosecution‘s case,‖ such that a circumstantial evidence

instruction should have been given, on ―the ‗quality‘ of the evidence,‖ asserting

that a finding of substantial reliance is appropriate when ―the quality of the direct

evidence is weak, and the quality of the circumstantial evidence is strong.‖

(McKinnon, supra, 52 Cal.4th at p. 676 & fn. 40.) We rejected that argument,

finding ―no persuasive authority for our consideration of [the quality of the

evidence] in analyzing whether an instruction on circumstantial evidence was

required.‖ (Id. at p. 676, fn. 40.) The majority‘s reasoning here — that the

circumstantial evidence ―was critical to‖ the prosecution‘s case ―because‖ it was

―the principal evidence in support of the prosecution‘s theory‖ (maj. opn., ante, at

p. 27, italics added) — is virtually the same argument we rejected in McKinnon —

that the circumstantial evidence ―was central to the prosecution‘s

case‖ (McKinnon, supra, at p. 676). It rests on the very ―factor‖ — the relative

― ‗quality‘ of the evidence‖ — we held in McKinnon should not be considered.

(Id. at p. 676, fn. 40.) Adopting the mode of analysis we rejected in McKinnon,

the majority in essence concludes that the prosecution substantially relied on


1

Notably, although initially asserting that the prosecution‘s argument was

―unmistakably a reference to‖ Sergeant Valdemar‘s testimony (maj. opn., ante, at
p. 27), two paragraphs later, the majority characterizes the supposed reference as
―oblique‖ (id. at p. 28). As I have explained, the record belies either
characterization.

6
Sergeant Valdemar‘s testimony because ―the quality of [that] circumstantial

evidence is strong‖ and ―the quality of the direct evidence‖ — defendant‘s

confession and the eyewitness testimony — ―is weak‖ as to the duration of the

watching and waiting. (McKinnon, supra, 52 Cal.4th at p. 676, fn. 40.) Thus, the

majority‘s reasoning is not only factually inconsistent with the record, it is

analytically contrary to our recent precedent.2

The majority correctly notes that the prosecution addressed Sergeant

Valdemar‘s testimony during its rebuttal argument (maj. opn., ante, at p. 27), but

the majority‘s discussion of that circumstance is incomplete and misleading.

According to the majority, the prosecution was ―responding‖ to defense counsel‘s

―arguments that there was no premeditation or lying in wait.‖ (Ibid.) However,

the record shows that, in fact, the prosecution was responding to defense counsel‘s

argument regarding ―premeditation,‖ not lying in wait. Specifically, defense

counsel charged that the prosecution had ―brought‖ Sergeant Valdemar ―in here

because [it] knows that [its] evidence on premeditation is weak. So [it‘s] trying to

get Sergeant Valdemar up here to say, Oh, yes, if you see someone with a long

gun, that means they‘re prepared to shoot a policeman.‖ (Italics added.) In

rebuttal, the prosecution responded that defense counsel‘s ―suggestion that Rich

Valdemar was called because our case was weak is so far from the truth.‖ In its

ensuing comments, the prosecution stated, among other things: ―This is the way

[criminal street gangs] deploy their troops. This is the way they commit these

types of crimes. They do consider law enforcement‘s presence. They do bring

2

The majority‘s response — that Sergeant Valdemar‘s testimony ―did not

bolster any direct evidence of the prosecution‘s theory‖ (maj. opn., ante, at p.
28) — obviously overlooks the compelling inferences the direct evidence supports
(see post, at pp. 10-12) and our established rule, as stated above, that a
circumstantial evidence instruction is not required where mental state is proved
―by inference drawn from the direct evidence of [the] defendant‘s conduct,‖
including the defendant‘s own extrajudicial statements and the testimony of
eyewitnesses. (People v. Wiley, supra, 18 Cal.3d at p. 175, italics added.)

7
long arms in order to fend off police in the apprehension of their fellow

gangsters.‖ Given that the prosecution was responding to defense‘s counsel

comments about the weakness of the evidence ―on premeditation,‖ the jury no

doubt understood this statement as directed at that issue, not at lying in wait.

In any event, although briefly discussing Sergeant Valdemar‘s testimony,

the prosecution, consistent with its focus during opening argument, spent most of

its rebuttal emphasizing the inferences supported by the following direct

evidence provided by defendant‘s confession and the eyewitness testimony: (1)

defendant went to a gang meeting where he and other gang members agreed to go

to Toro‘s house and shoot him in retaliation for an earlier drive-by shooting; (2)

defendant retrieved a fully automatic assault weapon he had earlier loaded, and

took it with him to shoot Toro; (3) as defendant was exiting his parked car with the

assault weapon, he saw the police officers approaching in their car and ducked

down behind his car to conceal himself; (4) while he was behind the car, he

continued watching the police as they moved down the street, approached his

position, and started looking at Camacho; and (5) in order to prevent the officers

from sending Camacho to jail for violating parole, defendant stood up and started

shooting at them with the assault weapon. Under McKinnon, even assuming ―the

incriminating effect of‖ Sergeant Valdemar‘s testimony was ―substantial,‖ because

that testimony ―complemented, and was merely corroborative of, defendant‘s

admissions‖ and other eyewitness testimony, the trial court ―was not obligated to

instruct on circumstantial evidence.‖3 (McKinnon, supra, 52 Cal.4th at p. 676.)


3

In another part of its opinion, the majority correctly holds that, with respect

to the prosecution‘s theory of premeditated and deliberate murder, no
circumstantial evidence instruction was required because the prosecution
emphasized the direct evidence — defendant‘s confession and the manner of
killing — and did not substantially rely on Sergeant Valdemar‘s testimony. (Maj.
opn., ante, at pp. 35-36.) The majority fails to explain how it justifies reaching the
opposite conclusion with respect to lying in wait, given that the prosecution‘s


(footnote continued on next page)

8
B. Any Error in Failing to Give a Circumstantial Evidence Instruction

Was Harmless.

Even had the trial court erred in failing to give a circumstantial evidence

instruction as to lying in wait, reversal would be unwarranted because there is no

reasonable probability defendant would have obtained a more favorable result had

the court given the instruction.

In concluding otherwise, the majority reasons: (1) Sergeant Valdemar‘s

testimony ―was the principal evidence‖ supporting ―the prosecutor‘s theory‖ that

the period of watching and waiting began when defendant spotted the officers; (2)

a properly instructed jury might have ―discounted‖ Sergeant Valdemar‘s

testimony, which would have foreclosed the prosecutor‘s theory; (3) absent

Sergeant Valdemar‘s testimony, ―[i]t is unlikely‖ the jury would have concluded

that the period of watching and waiting began when defendant spotted the officers;

(4) instead, given that defendant‘s confession ―makes no mention of any thought

about killing the police until they approached Camacho,‖ the jury would likely

have concluded that the period of watching and waiting did not begin until

defendant ―noticed the police looking at Camacho‖; and (5) ―[i]t is unlikely‖ the

jury would have concluded that ―the very brief, indeterminate time between‖ the

moment defendant saw the officers looking at Camacho and the moment

defendant started shooting was ―sufficiently substantial‖ to prove the truth of the

special circumstance allegation. (Maj. opn., ante, at p. 30.)

The majority‘s analysis contains several errors. First, as demonstrated

above, Sergeant Valdemar‘s testimony was not the principal evidence on which



(footnote continued from previous page)

remarks about Sergeant Valdemar‘s testimony were expressly directed at the issue
of premeditation, not lying in wait, and that the prosecution emphasized the same
direct evidence in arguing both issues to the jury.

9
the prosecution relied to prove lying in wait; instead, the prosecution relied

principally on the direct evidence — defendant‘s confession and the eyewitness

testimony — and the reasonable inferences that direct evidence supported.

Indeed, the prosecution did not even mention Sergeant Valdemar‘s testimony until

its rebuttal, and then only in response to defendant‘s charge about the weakness of

the prosecution‘s case on premeditation. Thus, the discounting of Sergeant

Valdemar‘s testimony would not have foreclosed the prosecution‘s theory; it

would have had little, if any, effect on that theory.

Second, based on the direct evidence alone, it is highly likely the jury

would have concluded that the period of watching and waiting began when

defendant spotted the officers, and highly unlikely it would have concluded that

the period did not begin until defendant saw the officers looking at Camacho.

That direct evidence shows the following: Out of loyalty to his own gang and to

retaliate against Toro‘s gang for a drive-by shooting, defendant retrieved a fully

automatic AR-15 assault weapon he had earlier loaded with about 30 rounds of

ammunition, went to a meeting with other gang members, and made a plan to go

together to Toro‘s house and kill him. Pursuant to the plan, defendant, carrying

the assault weapon, followed a car containing Camacho and other gang members

to Toro‘s street. There, after parking along the sidewalk, defendant started exiting

his car with his weapon. He saw the officers approaching in a police car. At this

point, Camacho, whom defendant knew to be violating parole by carrying a

weapon, was already walking on the sidewalk, in plain view of the officers. Upon

spotting the approaching police car, defendant did not throw his weapon away or

flee. Instead, he ducked down behind his car, still holding the AR-15. But even

when he ducked down, he did not completely conceal himself. Instead, he kept a

close watch on the officers as they slowly moved closer to Camacho. With the

police car still one or two car lengths away, defendant saw the officers looking at

Camacho and decided he would shoot them in order to prevent them from taking

Camacho to jail for violating parole. When the police car was right next to him,

10
he opened fire, shooting at least 28 times. On this evidence, there is no reasonable

chance that, absent Sergeant Valdemar‘s testimony, the jury would have found

that when defendant, a loyal gang member who had armed himself with a loaded,

fully automatic assault weapon in order to carry out a retaliatory hit with Camacho

and other members of his gang, spotted the officers approaching Camacho, ducked

down with his weapon, and continued tracking the officers‘ movements, he was

not contemplating shooting them in order to protect Camacho. Instead, it is highly

likely the jury would have concluded that defendant began contemplating shooting

the officers at virtually the moment he ducked down with his weapon and started

tracking their movements as they slowly approached.

Third, under the instructions the jurors received, even had they concluded

that the period began when defendant saw the officers looking at Camacho, there

is no reasonable probability they would have reached a different conclusion based

on the direct evidence. In his confession, defendant stated that the police car was

―just like two cars — like one car‖ north of his position when he saw the officers

looking at Camacho, and was ―right next to‖ his position, ―about 10 feet away,‖

when the shooting occurred. Defendant did not state that he started shooting as

soon as the car pulled up right next to him. Detective Delfin, however, did

provide relevant evidence on this point. He testified that, as he was driving down

Lime Avenue, he ―slowed up‖ upon spotting a double parked car and ―stopped

about two car lengths behind‖ it. He then saw Camacho ―by the back of the

bumper‖ of the double-parked car and ―made eye contact‖ with him. He

―continued observing‖ and making ―eye contact with‖ Camacho as Camacho

―walked in an eastbound direction across Lime.‖ Based on his observations of

Camacho‘s ―walk‖ and ―mannerisms,‖ Detective Delfin ―formed the opinion‖ that

Camacho might be carrying a firearm. He decided to ―go get this guy and talk to

him,‖ but before he was able to exit his car, ―someone started unloading on‖ him

and Detective Black. Thus, the evidentiary record shows that, between the time

defendant saw the officers looking at Camacho and the time defendant started

11
shooting, the police car slowly moved forward one or two car lengths until

stopping in a location right next to defendant, and Detective Delfin then watched

Camacho walk across the street, made sustained ―eye contact with‖ Camacho,

observed Camacho‘s walk and mannerisms long enough to form the opinion that

he might be carrying a firearm, and made a decision to go talk to Camacho.

Under the jury instructions, on this direct evidence alone, there can be no

doubt the jury would have found the period of watching and waiting sufficient.

On this issue, the court correctly instructed the jury that ―[t]he lying in wait need

not continue for any particular period of time provided that its duration is such as

to show a state of mind equivalent to premeditation or deliberation.‖ Only

moments before giving that instruction, the court instructed the jury that ―[t]he law

does not undertake to measure in units of time the length of the period during

which the thought must be pondered before it can ripen into an intent to kill which

is truly deliberate and premeditated,‖ that ―the true test‖ for premeditation and

deliberation ―is not the duration of time but rather the extent of the reflection,‖ that

―the slayer must weigh and consider the consequences and consider the question

of killing and the reasons for and against such choice, and having in mind the

consequences, he chooses to and does kill,‖ and that ―[a] cold, calculated

judgment and decision may have been arrived at in a short period of time.‖ Under

these instructions, the jury would surely have found that the ―duration‖ of the

period was ―such as to show a state of mind equivalent to premeditation or

deliberation‖ given the evidence that defendant, having watched the officers

approach Camacho and decided to kill them when he saw them looking at

Camacho, waited to begin firing long enough for them to drive slowly forward

another one or two car lengths, stop their car right next to his position, make

sustained eye contact with Camacho, and observe him long enough to form an

opinion he might be carrying a firearm.

Indeed, the majority itself confirms this conclusion by holding that, as to

the first degree murder conviction based on the ―theory of premeditation and

12
deliberation,‖ any error in failing to give a circumstantial evidence instruction was

harmless. (Maj. opn., ante, at p. 36.) As explained above, the prosecution‘s

remarks during rebuttal about Sergeant Valdemar‘s testimony — as well as

defense counsel‘s remarks on that subject — were expressly directed, not at the

issue of lying in wait, but at the issue of premeditation. The majority nevertheless

finds no ―reasonable probability‖ that a circumstantial evidence instruction ―would

have resulted in a more favorable verdict‖ on the issue of premeditation and

deliberation. (Ibid.) ―The strong direct evidence of premeditation and

deliberation,‖ the majority explains, ―means that even if the jury discounted

Sergeant Valdemar‘s testimony,‖ ―there is no reasonable chance it would have

returned a second degree rather than first degree murder verdict.‖ (Ibid.) I agree.

But the majority fails to explain how a jury that necessarily would have found the

period to be of sufficient duration to constitute premeditation and deliberation

would not necessarily also have found, in accordance with the trial court‘s correct

jury instructions on premeditation and lying in wait, the very same period to be of

a ―duration . . . such as to show a state of mind equivalent to premeditation or

deliberation.‖ Thus, under the jury instructions, the majority‘s harmless error

finding with respect to premeditated and deliberate murder compels a similar

conclusion with respect to lying in wait.

Rather than respond to this analysis, the majority mischaracterizes it.

Contrary to the majority‘s suggestion, I do not contend that a conclusion ―there

was insufficient evidence of‖ lying-in-wait murder ―mean[s] there was no

premeditation and deliberation,‖ or that these different forms of murder ―must be

established by‖ the same ―route.‖ (Maj. opn., ante, at p. 32.) Indeed, neither I nor

the majority concludes ―there was insufficient evidence of lying-in-wait.‖ (Ibid.)

What I do contend is that given the majority‘s correct conclusion that ―there is no

reasonable chance,‖ in light of ―[t]he strong direct evidence of premeditation and

deliberation‖ — defendant‘s ―confession and the manner of killing‖ — that the

jury would not have found that defendant had that mental state (id. at p. 36), it

13
logically follows that ―there is no reasonable chance‖ (ibid.), in light of that same

direct evidence and the applicable jury instructions, that the jury would not have

found the period in question to have been of a ―duration . . . such as to show a state

of mind equivalent to premeditation or deliberation.‖ The majority fails to explain

its contrary conclusion.

C. The Evidence Was Sufficient.

On the claim the majority does not reach — the sufficiency of the

evidence — defendant contends only that the period of watching and waiting was

of insufficient duration. He is incorrect.

―The purpose of the watching and waiting element is to distinguish those

cases in which a defendant acts insidiously from those in which he acts out of rash

impulse.‖ (People v. Stevens (2007) 41 Cal.4th 182, 202 (Stevens).) We have

never required a ―fixed, quantitative minimum time‖ limit as to this requirement.

(People v. Bonilla (2007) 41 Cal.4th 313, 333.) ―Indeed, the opposite is true, for

we have previously explained that ‗[t]he precise period of time is . . . not critical.‘

[Citation.]‖ (People v. Moon (2005) 37 Cal.4th 1, 23.) ―Even a short period of

time is sufficient to overcome an inference that a defendant acted rashly.

[Citation.]‖ (People v. Russell (2010) 50 Cal.4th 1228, 1245.) As the trial court

instructed the jury, the period ―need not continue for any particular length ‗ ―of

time provided that its duration is such as to show a state of mind equivalent to

premeditation or deliberation.‖ ‘ ‖ (Stevens, supra, at p. 202, fn. omitted.)

Applying these principles and viewing the record, as discussed above, in

the light most favorable to the judgment, I conclude that a reasonable trier of fact

could find this element proved beyond a reasonable doubt by evidence that

defendant, having carefully watched the officers from his hidden position and

having decided to shoot them in order to prevent their apprehension of Camacho,

then waited until they slowly pulled up next to him, stopped, and watched

Camacho cross the street, before he stood up and opened fire. As the majority

14
correctly concludes, this evidence provides ―little indication that the murder was

rash and impulsive.‖ (Maj. opn., ante, at p. 34.) Indeed, defendant‘s behavior

―dispel[s] any inference that he killed as a result of rash impulse‖; it ―is

completely consistent with, and ―provides substantial evidence for, the watching

and waiting element of the lying-in-wait special circumstance.‖ (Stevens, supra,

41 Cal.4th at p. 203; see People v. Lewis (2008) 43 Cal.4th 415, 511 [evidence that

the defendant watched the victim ―for at least the time it took her to open the

passenger door of her car and begin ‗doing something in . . . the backseat‘ ‖ was

sufficient to establish watching and waiting element].)

2. Defense Counsel’s Erroneous Statements About Life Without the

Possibility of Parole




During his closing argument in the penalty phase retrial, defense counsel

told the jury that a sentence of life without the possibility of parole ―means that

you will never get out.‖ The prosecutor objected and, outside of the jurors‘

presence, asserted that ―case law does not allow you [to argue] an inaccurate

statement.‖ The trial court commented that ―the correct statement of the law is

that you are to assume that it means that.‖ Defense counsel, without disagreeing

with the court, then stated, ―I would ask you to admonish them now.‖ The court

did as defense counsel requested, telling the jurors: ―Life without the possibility

of parole, that sentence, you are to assume that it means that. That is the statement

of the law. You are to assume [it] means life without the possibility of parole.‖

Defense counsel then added: ―[Y]ou are to assume that that‘s what it means

because that‘s what it does mean. It means that Ramon Sandoval will spend the

rest of his life in a California maximum security prison.‖ The court interrupted

counsel and stated: ―The jury is not allowed to accept the statement that life

without the possibility of parole means exactly what it is. You‘re to assume that

that‘s what it means.‖

15


Consistent with defense counsel‘s failure to disagree with the trial court‘s

statement, defendant concedes on appeal that, under our case law, it was

―permissible‖ for the court to tell the jury ―to assume‖ that a sentence of life

without the possibility of parole would result in a capital defendant ―spending the

rest of his/her life in prison.‖ Indeed, at the time of defendant‘s penalty phase

retrial in 2003, we had expressly so held in numerous cases.4 (People v. Kipp

(1998) 18 Cal.4th 349, 378–379; People v. Fierro (1991) 1 Cal.4th 173, 250;

People v. Thompson (1988) 45 Cal.3d 86, 131 (Thompson).)

However, citing Thompson, defendant argues that the trial court

prejudicially erred in precluding his counsel from telling the jury that a sentence of

life without the possibility of parole would ―in fact result in the defendant never

being released from prison,‖ and in ―correcting‖ his counsel‘s statement that the

sentence ―would actually result in life imprisonment.‖ The majority agrees with

defendant. (Maj. opn., ante, at pp. 59-61.) For reasons that follow, I do not.

As the prosecution correctly asserted at trial in support of its objection,

―case law does not allow [counsel] to . . . argue an inaccurate statement.‖

―Arguments of counsel [that] misstate the law are subject to objection and to

correction by the court.‖ (Boyde v. California (1990) 494 U.S. 370, 384.) Indeed,


4

In 2010, years after defendant‘s retrial, we held that a trial court ―did not err

by refusing‖ to give such an instruction because stating that jurors ―should
‗assume‘ or ‗presume‘ that the sentence will be carried out obscures the purpose of
the instruction‖ and ―is misleading in the sense that, although other presumptions
and assumptions that juries are instructed to consider have their bases in logic and
experience, a presumption or assumption that the sentence will be carried out is, in
fact, contradicted by the real possibility, of which some jurors may be aware, that
the sentence will not be carried out.‖ (People v. Letner and Tobin (2010) 50
Cal.4th 99, 206.) We did not hold that courts that had followed our prior decisions
and given such an instruction had erred, but we suggested that, ―[i]n the future,‖ a
court ―might‖ instead instruct jurors that, in determining punishment, they ― ‗must
not be influenced by speculation or by any considerations other than those upon
which I have instructed you.‘ ‖ (Ibid.)

16
a trial judge has both ―the right‖ and ―the duty to curtail defense counsel,‖ not just

the prosecution, ―from making incorrect or incomplete statements of law.‖

(People v. Ott (1978) 84 Cal.App.3d 118, 132 (Ott).) Thus, although a court has

discretion to ―allow counsel to incorporate correct statements of law in [their]

argument,‖ ―it must sustain an objection to an incorrect statement of law.‖

(People v. Suddeth (1966) 65 Cal.2d 543, 548, italics added (Suddeth).)

We have long and consistently held that telling jurors the defendant, if

sentenced to life without the possibility of parole, will never be released and will

remain in prison for the rest of his or her life, or will never be considered for

parole and will not be paroled at any time, is ―an incorrect statement of the law.‖

(People v. Adams (2014) 60 Cal.4th 541, 581; People v. Whalen (2013) 56

Cal.4th 1, 88; People v. Letner and Tobin, supra, 50 Cal.4th at p. 204; see also

People v. Smith (2003) 30 Cal.4th 581, 635 (Smith) [it would be ―inaccurate‖ to

tell jurors that a sentence of life without possibility of parole ― ‗means

imprisonment for the rest of [the defendant‘s] natural life‘ ‖].) Such statements

are ―erroneous‖ in light of the Governor‘s commutation and pardon powers and

the possibility that the law‘s sentencing provisions might be invalidated. (People

v. Holt (1997) 15 Cal.4th 619, 688.) As we have explained, ―[t]he Governor may

ameliorate any sentence by use of the commutation or pardon power . . . . ‖

(People v. Arias (1996) 13 Cal.4th 92, 172.) Thus, under our decisions, the

majority is simply incorrect in asserting, without citation of authority, that defense

counsel‘s remarks were ―legally accurate.‖ (Maj. opn., ante, at p. 60.)

It inexorably follows from these well-established principles that, upon the

prosecution‘s objection, the trial court in this case did not err in precluding defense

counsel from making the incorrect argument that life without the possibility of

parole ―means‖ that the defendant ―will never get out‖ and ―will spend the rest of

his life in a California maximum security prison.‖ Indeed, consistent with these

principles and this conclusion, in Smith, supra, 30 Cal.4th at page 636, we

unanimously rejected the defendant‘s contention that the trial court had erred in

17
―sustain[ing] an objection when defense counsel started to argue that defendant

would never have a parole hearing.‖ ―[T]his argument,‖ we reasoned, ―would

have been inaccurate.‖ (Ibid.) Following Smith, we should similarly reject

defendant‘s argument.

In reaching a contrary conclusion, the majority ignores these bedrock

principles and declines to follow Smith, choosing instead to rely entirely on dictum

defendant cites from Thompson. As here relevant, our holding in Thompson was

that the trial court had properly declined to instruct jurors that if they selected a

death sentence, ― ‗the sentence will be carried out,‘ ‖ and that if they selected life

without the possibility of parole, ― ‗the defendant will never be released from

prison.‘ ‖ (Thompson, supra, 45 Cal.3d at p. 129.) Such an instruction is

―[in]accurate‖ and ―incorrect,‖ we explained, because it ―ignores‖ the superior

court‘s statutory power to reduce a sentence of death and the Governor‘s power of

commutation. (Id. at p. 130.) In a footnote, we added the following statement,

which is the foundation of the majority‘s conclusion: ―Defense counsel‘s remarks

to the jury during closing argument as to what life without possibility of parole

would really mean and what an unending punishment it would be were . . . within

the scope of legitimate argument to the extent the remarks impressed on the jury

the gravity of its task.‖ (Id. at p. 131, fn. 29.)

The majority‘s reliance on this statement is suspect for several reasons.

First, it was obviously dictum; it was completely unnecessary to our holding, and

thus does not, as the majority‘s asserts, establish a ―rule.‖ (Maj. opn., ante, at p.

61.) Indeed, just three years after deciding Thompson, in People v. Ashmus (1991)

54 Cal.3d 932, 960, footnote 5 (Ashmus), we not only noted that Thompson‘s

discussion was ―dictum,‖ we declared it ―open to question.‖

Second, nowhere in Thompson did we set forth what defense counsel

actually said in his ―remarks to the jury during closing argument.‖ (Thompson,

supra, 45 Cal.3d at p. 131, fn. 29.) For this separate and additional reason,

Thompson‘s dictum does not ―set forth‖ a ―rule‖ (maj. opn., ante, at p. 61) that

18
defense counsel, over the prosecution‘s objection, is entitled to make the

definitive, unqualified, and incorrect statement that a sentence of life without

possibility of parole ―means‖ the defendant ―will never get out‖ and ―will spend

the rest of his life in a California maximum security prison.‖ Indeed, a careful

reading of Thompson suggests that, in fact, defense counsel‘s remarks in that case

were similar to the trial court’s statement in this case that jurors should assume the

sentence would be carried out, not to the unqualified remarks of defendant‘s

counsel. In announcing our holding, we stated that, because it is generally

―beneficial‖ to ―impress[] the jury with the weight of its responsibility,‖ ―it was

not necessarily error to suggest to them on voir dire that the sentence they decide

on will be carried out.‖ (Thompson, at p. 131.) Notably, as our opinion discloses,

this idea was suggested to the jurors on voir dire by telling them, as the trial court

told the jurors here, ― ‗that they should assume the sentence they voted for,

whether death or life without possibility of parole, would be carried out.‘ ‖ (Id. at

p. 129, italics added.) As the majority explains, the footnote on which it relies

―extended‖ this discussion of the comments during voir dire to defense counsel‘s

remarks during closing argument. (Maj. opn., ante, at p. 60; see Thompson, supra,

at p. 131, fn. 29.) It is therefore logical to infer that the closing remarks were

similar to those made during voir dire, i.e., that jurors should assume the sentence

they voted for would be carried out.

This inference is supported by the third and final reason that the majority‘s

reliance on Thompson is suspect: in Thompson‘s dictum, we did not even mention

a court‘s ―duty to curtail defense counsel from making incorrect . . . statements of

law‖ (Ott, supra, 84 Cal.App.3d at p. 132) and to ―sustain an objection to an

incorrect statement of law‖ (Suddeth, supra, at p. 65 Cal.2d at p. 548). Surely, we

would have discussed these duties before holding that defense counsel is entitled

to make incorrect and misleading statements to the jury during closing argument

about the meaning of a life sentence. For all of these reasons, our dictum in

Thompson is not support for the majority‘s holding that, over the prosecution‘s

19
objection, defense counsel was entitled to make the erroneous arguments in

question here.

Another good reason for rejecting the majority‘s holding is the majority‘s

failure to consider the effect of that holding on the prosecution. We have long

held that it is improper for the prosecution, in closing statement, to mention or

suggest the possibility that the sentence the jury selects will not be carried out.

(People v. Davenport (1985) 41 Cal.3d 247, 287–288.) Thus, the prosecution has

no way to respond to a defense counsel‘s erroneous argument to a jury that life

without the possibility of parole means the defendant will never be released and

will die in prison. Neither, the majority holds, is the court entitled to correct

defense counsel‘s misstatement. I see no logic to, justification for, or fairness in a

rule that uniquely entitles defense counsel to misstate the law to jurors without

response or correction.

Certainly, as the record here demonstrates, the rule the majority announces

is not needed to serve the goal Thompson mentioned: ―impress[ing] on the jury

the gravity of its task.‖ (Thompson, supra, 45 Cal.3d at p. 131, fn. 29.) In this

case, defendant‘s counsel ably accomplished this goal by telling jurors, after the

trial court made its ruling, the following: ―Well, okay. You‘re to assume that

Ramon Sandoval will spend the rest of his life in a California maximum security

prison. Even if he lives to be 100 years old, you‘re to assume that‘s where he‘s

going to die. In 10 years, 20 years from now, whenever your children graduate

from college or graduate from high school, Ramon Sandoval will still be in a

California maximum security prison. It‘s not a gift. It is an extremely bleak

environment. It‘s one of the bleakest and most terrible environments that you can

imagine. And in many ways, it‘s worse that the death penalty. And the point I

think we‘re trying to make is that life without the possibility of parole is all that

society demands in this case. Society will be safe.‖ Surely, these comments

adequately ―impress[ed] on the jury the gravity of its task.‖ (Ibid.)

20
Although we have cited Thompson‘s dictum since declaring it ―open to

question‖ in Ashmus, supra, 54 Cal.3d at page 960, footnote 5, until today, we

have never held that, over the prosecution’s objection, a defendant is entitled to

make the incorrect statements at issue here. In People v. Nguyen (2015) 61

Cal.4th 1015, after quoting Thompson‘s ―dicta‖ (at p. 1087), we held that, because

the trial court had ―permitted‖ defense counsel to argue that life without possibility

of parole ― ‗means for the rest of [the defendant‘s] natural life he is going to be

locked up in prison,‘ ‖ the court did not err in precluding defense counsel from

describing the measurements and features of the defendant‘s prison cell (id. at p.

1088). In People v. Gutierrez (2002) 28 Cal.4th 1083, 1159, we discussed

Thompson‘s dictum in holding that the trial court had not erred in rejecting the

defendant‘s proposed instruction that life without the possibility of parole ―means

‗defendant will be imprisoned for the rest of his life,‘ ‖ but ―permit[ting] counsel

to argue its substance before the jury.‖ (Italics added.) In these decisions, we

cited the fact that defense counsel had been permitted to make such comments

―without objection‖ (Nguyen, supra, 61 Cal.4th at p. 1087) in rejecting claims that

it was otherwise error to refuse a requested instruction or preclude counsel from

making other arguments. In neither did we hold or suggest that where, as here, the

prosecution objects, a trial court must allow defense counsel to make the incorrect

arguments at issue in this case.5 In short, there is no precedent in our case law

supporting the majority‘s conclusion.

On the other hand, there is precedent to the contrary; as explained above, in

Smith, supra, 30 Cal.4th at page 636, we unanimously rejected a claim that the

trial court had erred in ―sustain[ing] an objection‖ to defense counsel‘s argument


5

Moreover, in Gutierrez, we did not set forth the remarks the trial court

permitted defense counsel to make (People v. Gutierrez, supra, 28 Cal.4th at p.
1159), so it is impossible to determine from our opinion whether those remarks
were similar to the unqualified remarks at issue here.

21
―that defendant would never have a parole hearing,‖ reasoning that this argument

―would have been inaccurate.‖ The majority‘s reasons for departing from Smith

are erroneous and unpersuasive. We did not, as the majority asserts (ante, at p.

61), simply ―note[]‖ in Smith, at page 636, that it was ―inaccurate‖ for defense

counsel to tell jurors that the defendant ―would never have a parole hearing‖ if

sentenced to life without the possibility of parole. That conclusion was our

primary basis for rejecting defendant‘s complaint that the trial court had

―sustained an objection‖ to defense counsel‘s ―argument.‖ (Ibid.) Contrary to the

majority‘s suggestion (maj. opn., ante, at p. 61), the force and authority of this

conclusion are not lessened by our subsequent comment in Smith that, ―[i]n any

event,‖ because ―both sides argued, without objection, that a life verdict would

mean [the] defendant would die in prison,‖ ―[t]he jury understood the significance

of its choices.‖ (Smith, at p. 636, italics added.)

Nor is the majority correct in suggesting that we failed in Smith to provide

an ―explanation‖ for our conclusion. (Maj. opn., ante, at p. 61.) Earlier in the

same paragraph, we held that the trial court had not erred in refusing to instruct the

jury that life without the possibility of parole ― ‗means imprisonment for the rest

of [the defendant‘s] natural life,‘ ‖ explaining that such an instruction ―would have

been inaccurate because the Governor has the power to commute a sentence.

[Citations.]‖ (Smith, supra, 30 Cal.4th at p. 635.) We were clearly referring to

this explanation when, in later rejecting the related claim that the trial court had

erroneously ―sustained an objection‖ to defense counsel‘s similar argument, we

stated: ―Again, this argument would have been inaccurate.‖ (Id. at p. 636, italics

added.)

Consistent with Smith and the well-established legal principles discussed

above, we should hold that where, as here, the prosecution objects to defense

counsel‘s inaccurate and erroneous statements about the meaning of a sentence of

life without the possibility of parole, a trial court does not err in sustaining that

objection. We should not, as does the majority, now transform Thompson‘s

22
dictum — which cites no authority, fails to discuss established principles, and does

not even identify the remarks in question — into a ―rule‖ that a trial court commits

error in precluding defense counsel, upon the prosecution‘s objection, from

making such misstatements. (Maj. opn., ante, at p. 61.)

Finally, even were I to adopt the majority‘s rule and find error, like the

majority, I would affirm for lack of prejudice. However, unlike the majority, I see

no reason to analyze this issue under — or even to mention — the approach that

some federal authorities have taken when the government fails to make a harmless

error argument. (See maj. opn., ante, at pp. 61-62.) In his briefs, defendant

nowhere mentions that approach, let alone urges us to adopt it. Thus, the majority

has needlessly and improperly injected into this case an issue the parties have

neither raised nor briefed.

Moreover, the federal approach is clearly at odds with our state

constitutional duty as a reviewing court. Article VI, section 13 of the California

Constitution precludes a reviewing court from setting aside a judgment because of

an instructional or procedural error ―unless, after an examination of the entire

cause, including the evidence, the court shall be of the opinion that the error

complained of has resulted in a miscarriage of justice.‖ (Italics added.) As the

majority explains, the ―plain meaning of‖ this binding constitutional provision ―is

that a reviewing court may not reverse a judgment without addressing harmless

error,‖ even if the People fail to address that issue in their responding brief. (Maj.

opn., ante, at p. 61.) Thus, even if, as the majority asserts, ―some federal

authorities have held that a reviewing court has discretion [not] to conduct a

harmless error inquiry‖ under these circumstances (id. at p. 62), a California

reviewing court does not. In short, the government‘s failure to offer ― ‗guidance‘ ‖

on the issue of prejudice (id. at p. 61) does not affect a California reviewing

court‘s constitutional duty to ―examin[e] . . . the entire cause, including the

evidence‖ (Cal. Const., art. VI, § 13, italics added) — i.e., to ― ‗search[] the

record‘ ‖ (maj. opn., ante, at p. 61) — in determining whether there has been ―a

23
miscarriage of justice‖ (Cal. Const., art. VI, § 13). Neither is there any logical or

persuasive reason why that failure should affect the standard a reviewing court

applies to determine that same issue. In other words, whether the record

establishes the constitutionally mandated criterion for reversal — ―a miscarriage

of justice‖ (ibid.) — should not depend in any way on whether the People make a

harmless error argument. I disagree with the majority‘s discussion insofar as it

suggests otherwise.

CHIN, J.

I CONCUR:

CORRIGAN, J.

24









DISSENTING OPINION BY CORRIGAN, J.

I respectfully dissent from the majority‘s reversal of the lying-in-wait

special circumstance. (Pen. Code, § 190.2, subd. (a)(15).) The majority concludes

defendant was prejudiced by the court‘s failure to instruct on circumstantial

evidence as it relates to the lying-in-wait special circumstance. Specifically, such

an instruction would have stated that if circumstantial evidence supports multiple

reasonable conclusions and one of those conclusions supports an inference that the

special circumstance is not true, then the jury must conclude the allegation has not

been proven by the circumstantial evidence. (See CALCRIM No. 704 [Special

Circumstances: Circumstantial Evidence—Sufficiency]; CALJIC Nos. 8.83

[Special Circumstances—Sufficiency of Circumstantial Evidence—Generally],

8.83.1 [Special Circumstances—Sufficiency of Circumstantial Evidence to Prove

Required Mental State].) Defendant did not request such an instruction, but the

majority concludes the trial court should have given it sua sponte. (Maj. opn.,

ante, at pp. 27-28.)

CALJIC No. 8.81.15 (6th ed. 1996) (Special Circumstances—Murder

While Lying in Wait), as given, informed the jury that it could find the lying-in-

wait special circumstance true if defendant intentionally killed the victim and the

murder was committed while lying in wait. The instruction defined ―lying in

wait‖ as ―a waiting and watching for an opportune time to act, together with a

concealment by ambush or by some other secret design to take the other person by

surprise. The lying in wait need not continue for any particular period of time
provided that its duration is such as to show a state of mind equivalent to

premeditation or deliberation.‖

The truth of this special circumstance thus turned on whether defendant

was ―waiting and watching for an opportune time to act.‖ The majority fails to

distinguish between direct and circumstantial evidence. Defendant‘s confession

was direct evidence of his own mental state. Sergeant Valdemar‘s testimony was

circumstantial in that it related facts supporting a different conclusion about that

same question. Valdemar testified that gangs ―often use military type tactics,‖

including having a person with a long firearm who ―would take a position of

advantage that would allow him to cover the people with hand guns who would

approach the house, possibly also acting as lookouts on either end of the

street . . . .‖ Gangs also anticipate police intervention and ―it would be the backup

man‘s duty to take them on and pin them down or kill them if possible.‖ The

majority reasons that ―[a]lthough there was evidence that Sandoval was hiding and

waiting and watching as soon as the police appeared on Lime Avenue, Sergeant

Valdemar‘s testimony was the principal evidence in support of the prosecution‘s

theory that Sandoval was watching and waiting for an opportune time to commit

the murder from the moment he spotted the police.‖ (Maj. opn., ante, at p. 27.)

This testimony was in contrast to the defense claim that defendant was not

watching and waiting for an opportune time to act, but merely hiding from police

when he ducked behind a car as he saw police approach. The only evidence cited

by the defense in support of its theory was the timeline of events recounted by

defendant in his confession and his own direct statements about what he saw and

did.

On these facts, I disagree the trial court erred. The applicable rule on this is

well established. ― ‗[W]hen the only inference to be drawn from circumstantial

evidence points to the existence of a requisite mental state, a circumstantial

2
evidence instruction need not be given sua sponte.‘ ‖ (People v. Rodrigues (1994)

8 Cal.4th 1060, 1142, italics added; see People v. Morrisson (1979) 92 Cal.App.3d

787, 791-794; see also People v. Dunkle (2005) 36 Cal.4th 861, 928 (Dunkle),

disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn.

22; People v. Heishman (1988) 45 Cal.3d 147, 167, abrogated on another ground

by People v. Diaz (2015) 60 Cal.4th 1176, 1190; People v. Wiley (1976) 18 Cal.3d

162, 175 (Wiley).)

The only relevant circumstantial evidence cited by the majority is Sergeant

Valdemar‘s testimony. Yet, the majority fails to explain how that testimony, if

believed, reasonably supported an inference that defendant did not act with the

required mental state. Sergeant Valdemar‘s testimony that gangs ―usually‖ are

prepared for police intervention and it is the duty of the person with the long

firearm to ―pin them down or kill them if possible‖ supports the inference that

defendant was so prepared and intended to do so as he sought cover from the

approaching officers. If the jury believed this interpretation of Valdemar‘s

testimony, the only reasonable conclusion to be drawn was that defendant was

watching the officers and waiting for an opportune time to shoot and thus acted

with the requisite mental state. The majority suggests the jury could have rejected

the prosecution‘s theory based upon defendant‘s confession. (Maj. opn., ante, at

pp. 29-30.) It could have done so. But in such a case, it would have rejected the

circumstantial evidence and accepted defendant‘s own direct evidence.

Although the majority disagrees with this analysis, its attempt to refute it

only bears it out. The majority asserts: ―A reasonable juror, while believing the

gang expert, might have inferred that his testimony about how street gangs usually

think and act did not prove that Sandoval thought or acted that way in this

instance. Such a juror could reasonably refuse to credit the prosecution‘s theory

about what Sandoval was thinking when he first saw the police unless Sergeant

3
Valdemar‘s testimony was supported by direct evidence of Sandoval‘s mental

state at the time. This view does not posit that the jury ‗rejected the circumstantial

evidence‘ (dis. opn., post, at p. 3); it posits only that the jury reasonably rejected

the inference that the prosecution wanted it to draw from that evidence.‖ (Maj.

opn., ante, at pp. 29-30.)

However, in this scenario, the jury ―refuse[s] to credit the prosecution‘s

theory‖ and ―reject[s] the inference that the prosecution wanted it to draw from

that evidence‖ based upon its evaluation of the direct evidence of defendant‘s

confession. Contrary to the majority‘s suggestion, the circumstantial evidence

instruction is not intended to address a potential conflict between direct and

circumstantial evidence. That instruction addresses the danger that a jury would

rely on circumstantial evidence to convict even though the same evidence may

reasonably support a finding of innocence. That simply is not the case here. The

majority points to no interpretation under which Valdemar‘s testimony could be

understood to support an interpretation reasonably supporting a not guilty finding.

In sum, ―[t]he fact that the elements of a charged offense include mental

elements that must necessarily be proved by inferences drawn from circumstantial

evidence does not alone require an instruction on the effect to be given such

evidence however. The contrary is usually the rule.‖ (Wiley, supra, 18 Cal.3d at

p. 175; see Dunkle, supra, 36 Cal.4th at p. 928.) The circumstantial evidence at

issue must be both substantially relied upon by the prosecution and support at least

one interpretation pointing to innocence. Because the only reasonable inference

from Valdemar’s testimony was that defendant acted with the required mental

state, the trial court did not err in failing to instruct the jury sua sponte regarding

circumstantial evidence. I would affirm the judgment of conviction in its entirety.

I CONCUR:









CORRIGAN, J.

CHIN, J.

4
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Sandoval
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S115872
Date Filed: December 24, 2015
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Joan Comparet-Cassani

__________________________________________________________________________________

Counsel:

Victor S. Haltom, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Jaime L. Fuster and Timothy M. Weiner, Deputy Attorneys General, for
Plaintiff and Respondent.









Counsel who argued in Supreme Court (not intended for publication with opinion):

Victor S. Haltom
428 J Street, Suite 350
Sacramento, CA 95814
(916) 444-8663

Timothy M. Weiner
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-4922


2
Opinion Information
Date:Docket Number:
Thu, 01/07/2016S115872A