Supreme Court of California Justia
Citation 54 Cal. 4th 205, 278 P.3d 754, 142 Cal. Rptr. 3d 481
People v. Streeter



Filed 6/7/12



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S078027

v.

HOWARD LARCELL STREETER,

San Bernardino County

Defendant and Appellant.

Super. Ct. No. FVA07519



A jury convicted defendant Howard Larcell Streeter of the first degree

murder of Yolanda Buttler. (Pen. Code, § 187.)1 It found true special-

circumstance allegations of lying in wait (§ 190.2, subd. (a)(15)) and the

intentional infliction of torture (§ 190.2, subd. (a)(18)). The trial court declared a

mistrial as to the penalty phase after the jury could not reach a verdict. At the

beginning of the penalty phase retrial, the trial court released the jury after

granting defendant‘s motion for a continuance. At the second penalty retrial, the

jury returned a verdict of death, and the trial court imposed that sentence. This

appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.


1

All further statutory references are to the Penal Code unless otherwise

indicated.

1




I. FACTS

A. Guilt Phase

1. The Prosecutions Case

Defendant and Yolanda Buttler lived together for about five years in

Fontana. They lived with their child, ―Little Howie,‖ Yolanda‘s two older

children, Patrick and Lawanda, and Yolanda‘s niece, Shavonda.

In December 1996, Yolanda told her siblings, Lucinda and Quentin Buttler,

that defendant was beating her and had pulled hair, and that she was afraid of him

and wanted to leave him. They agreed to help Yolanda secretly move out of her

home when defendant was at work. Quentin advised Yolanda to get a restraining

order.

In early January 1997, Yolanda moved out with the children. Initially,

Yolanda went to her sister‘s house in Los Angeles, but then she decided to stay in

a motel for safety reasons. After a week‘s stay in the motel, Yolanda and the

children moved to an apartment in Victorville.

On February 7, 1997, Yolanda applied for a restraining order against

defendant. In her declaration, she described an incident that had occurred on

December 30, 1996, during which defendant had pulled her braided extensions so

hard because she would not have sex with him that he pulled hair out of her head.

In April 1997, defendant called Yolanda and convinced her to allow him to

see Little Howie. They met in a public area without incident. Afterwards,

defendant called frequently and tried to convince Yolanda to reconcile with him.

He wanted to see Little Howie again. Yolanda agreed to meet him at a Chuck E.

Cheese restaurant in Fontana.

2



On April 27, 1997, Yolanda drove to the restaurant with Patrick, Shavonda,

and Little Howie.2 Patrick accompanied his mother to protect her; Yolanda was

nervous that defendant had obtained their telephone number in the Victorville area

and had been calling them frequently in an attempt to get back together with her.3

When they arrived at the restaurant, defendant was waiting for them. He was

clapping his hands and appeared nervous. Patrick and Little Howie got out of the

car, while Yolanda and Shavonda stayed inside the car. Defendant grabbed Little

Howie and proceeded towards his car in the parking lot. Yolanda asked, ―Where

are you taking him?‖ Defendant replied that he was taking him and said not to

worry.

Patrick stated that Yolanda followed defendant in her car, parked next to

defendant‘s car, and got out of her car. Yolanda and defendant began to argue.

Yolanda tried to take Little Howie out of defendant‘s car, but defendant pushed

her away. They began pushing each other. Defendant went to the trunk of his car

and retrieved a plastic container with gasoline in it. Seeing this, Yolanda ran back

towards her car. Defendant chased her and poured gasoline on the front of her car.

Yolanda was on the other side of the car and tried to run away, but defendant

caught up to her and poured gasoline on her.

In the meantime, Shavonda — who was disabled and wore leg braces —

was still in the back seat of Yolanda‘s car. Patrick smelled gasoline and was

scared because he knew the car could catch on fire. He jumped inside the car,

drove it to the end of the parking lot, and ran back towards Yolanda and


2

At the time of trial (one and one-half years after the offenses), Patrick was

15 years old, Lawanda was 16 years old, Little Howie was six years old, and
Shavonda was eight years old.
3

A large part of Patrick‘s testimony was admitted by stipulation after he

became very emotional on the witness stand.

3



defendant. When he got to them, Patrick saw that Yolanda and the plastic

container were on the ground and defendant was hitting Yolanda.

Bystanders also witnessed the events. John Martinez was in the restaurant‘s

parking lot when he heard a woman yelling for help. A ―couple of‖ children were

nearby. Martinez heard defendant yelling and saw him beating Yolanda and

pulling her hair. Defendant struck Yolanda more than four times and slammed her

to the ground. He went to his car, took out what appeared to be a plastic antifreeze

container from the trunk, and poured gasoline from the container onto Yolanda‘s

car and then on her body. Martinez then saw Patrick drive Yolanda‘s car to

another area of the parking lot. Defendant dragged Yolanda back towards his car

―because he had nothing to light the lady with.‖ Martinez ran into a store next to

the restaurant and told the owner to call 911. When Martinez and the owner went

outside, Yolanda was already on fire and was burning from the top of her head to

her waist. People were throwing water on her and wrapping her in blankets.

Anzerita Chonnay also saw the incident. She heard Yolanda and defendant

yelling at each other and saw defendant hitting and kicking Yolanda. Chonnay ran

inside a store to have someone call 911. When she returned outside, Chonnay saw

defendant retrieve a container from the trunk of his car and began pouring

something from it, while people were yelling at him. A man tried to intervene, but

defendant pushed him away. Chonnay then saw Yolanda ―on fire.‖ The flames

shot up ―real high.‖ Several people tried to extinguish the fire with their clothing.

While Yolanda was burning, Patrick watched as he held the two younger children.

Edward Jasso was seated in his car in the restaurant‘s parking lot and saw

Yolanda and defendant in the parking lot. Jasso saw liquid being thrown. At first,

Jasso thought they were having a water fight, but then realized they were not

playing after he saw defendant push Yolanda to the ground. Defendant began

hitting and kicking Yolanda, and called her a ―fucking bitch.‖ Jasso got out of his

4



car and told defendant to leave Yolanda alone. Defendant dragged Yolanda by her

hair towards his car, released her, went to his car, and took off his shirt. Dazed,

Yolanda began walking towards the Chuck E. Cheese restaurant. Jasso saw

defendant retrieve something from his car. Thinking that the item might be a gun

or knife, Jasso yelled for everyone to run. Defendant came towards Jasso and

Yolanda and was holding a cigarette lighter. Jasso tried to grab the lighter from

defendant, but his hand slipped off because defendant‘s arm was wet from

gasoline. Defendant caught up to Yolanda and lit the lighter while he was only

three to four inches away from her. Yolanda ―went up in flames‖ immediately.

When defendant lit the lighter, Jasso tried to grab him, but having accidentally

grabbed Yolanda instead, Jasso‘s arm also caught on fire. Defendant fled as Jasso

tried to extinguish the fire on his arm.

Richard Humphreys saw people yelling at defendant, who was running

away from the scene. Humphreys got into his truck, followed defendant, and saw

him attempting to climb a fence. Humphreys ordered defendant to stop.

Defendant climbed down and began walking away. The police arrived and

arrested defendant. Defendant smelled very strongly of gasoline and appeared to

be under the influence of alcohol. However, defendant‘s blood sample, drawn at

5:39 p.m. that night, showed no signs of drugs or alcohol.4

When the paramedics arrived, they saw Yolanda standing within arm‘s

reach of the children. She was calling to them and trying to grasp them. Yolanda

was crying, screaming, and in pain. Her clothing was black, burnt, and

smoldering, and had melted onto her skin. The paramedics tried to cool Yolanda

down with saline solution. During the ride to the hospital, Yolanda was crying


4

The 911 call reporting Yolanda on fire was received at 3:21 p.m.

5



and screaming in pain, and repeatedly asked about her children. The paramedics

reassured her that the children were with the police. Because Yolanda‘s burns

were so deep and her skin was so thickened, the paramedics could not find or gain

access intravenously to a vein and were unable to administer pain medication to

Yolanda. Instead, they attempted to relieve her pain by pouring cold water on her

burns. While being transported, Yolanda grasped one of the paramedics, pulled

him close to her face, and begged, ―Just kill me. Please kill me.‖ Yolanda

endured the 20-minute ambulance ride without any pain medication.

Yolanda was admitted to the hospital in critical condition. She suffered

extensive second and third degree burns from the waist up, including her entire

face, arms, front chest, and back. Yolanda sustained burns to 55 to 60 percent of

her body‘s surface. According to the pathologist, the extent of the pain suffered

from these burns could be extreme and severe. Her lungs were dense and swollen,

evidence of organ failure. Yolanda was treated in the hospital‘s burn unit for 10

days until her death. She died from pulmonary failure caused by the effects of

thermocutaneous burns.

At the scene, the police found a clump of Yolanda‘s hair, one earring, and

the plastic container. Defendant‘s car was in the parking lot with a ―Club‖ locking

device on the steering wheel and the car‘s gas cap sitting on its bumper.

Defendant‘s shoes, the plastic container, and several items of Yolanda‘s clothing

tested positive for gasoline residue. No gasoline residue was found on defendant‘s

shorts, socks, or underwear, or on Yolanda‘s earrings or hair.

Inside the glove compartment of defendant‘s car, the police found a note

written by defendant on the back of a smog certificate attached to a vehicle

registration form. The note read:

―to mom and pop, I hate to do you gys like this but I don‘t like liveing the

way I am so I don‘t know what to say but I love you both and I am very sorry to

6



have to put you though this but my life is over I don‘t have any thing to live for

any more, I know it going to cost a lot to berrie me but I am sorry I hope you both

understand and I know what I did to Youlanda is worng but she don‘t dersive to

live like me. P.S. If you can get my son Baby Howie and raise him to the best of

your abbilty. Tell him his dady is sorry for what I did but I will alway love him

and to don‘t never fall in love with a women. Love alyaw Howie.‖ (Errors in

original.)

A sheriff‘s detective from the arson squad and a captain from the fire

department conducted a joint investigation and concluded that gasoline had been

poured on Yolanda and ignited.

2. The Defense Case

Defendant‘s defense was that he caused Yolanda‘s death, but did not intend

to kill or torture her. Defendant claimed that he was so emotionally distraught,

upset, and angry at Yolanda for taking his son away from him, for being late that

afternoon, and for making him wait at the restaurant, that he was guilty of, at the

most, second degree murder or voluntary manslaughter when he poured gasoline

on Yolanda and ignited it.

Defendant testified in his own defense. He stated that he and Yolanda had

lived together since 1991 and had had a loving relationship until 1996, when their

relationship began to fall apart. According to defendant, the strain was caused by

Yolanda‘s desire to buy a house, which defendant could not afford.

Defendant stated that when he came home on January 4, 1997 about 4:00

p.m., he discovered that Yolanda had moved out with the children. She had given

no indication she was leaving and had taken some of the furniture and electronic

equipment. He was hurt and in shock. He called Yolanda‘s brother, Victor, who

claimed that he did not know her whereabouts. Defendant bought alcohol and

7



rock cocaine, went back to his home, drank the alcohol and took the drugs until

10:00 or 11:00 p.m., and called Victor again. Victor told defendant to stop calling.

Defendant then went to Victor‘s house to find Yolanda. When no one

answered the door, defendant broke Victor‘s wife‘s van window with a bat. He

then went to the house of another of Yolanda‘s brothers. When no one answered

the door, defendant yelled that he wanted his wife and kids back, threw a rock

through a window, and drove to Yolanda‘s sister‘s house. When her sister

Lucinda told defendant she did not know where Yolanda was, he warned that if

they tried to keep his family from him, something bad would happen to them.

Defendant called Victor again the next day. This time, Victor said that

Yolanda and Little Howie were there, and that he could get his son. When

defendant arrived at Victor‘s house, Victor told him to put his gun down, although

defendant denied he had a gun. Victor kept stalling him. Suspecting that Yolanda

and his son were not there and that he was being set up, defendant decided to

leave. As he was driving away, he saw that police officers were parked around the

corner waiting for him. The officers stopped and arrested him, and took him to

jail. Defendant pleaded guilty to one count of assault with a deadly weapon and

was released from jail on February 28, 1997.

Defendant then ―moved from place to place,‖ having lost his apartment

while he was in jail. Two weeks after his release, defendant‘s mechanic called and

demanded payment for servicing Yolanda‘s car. After defendant refused to pay

unless the mechanic told defendant where Yolanda was staying, the mechanic

provided Yolanda‘s telephone number. Defendant called Yolanda and said he

loved her and wanted her back. She refused to give him another chance.

Defendant called again that same night and told Yolanda he wanted to see the

children. Agreeing to meet with defendant at the Discovery Zone, Yolanda

8



brought Little Howie and Shavonda and spent an hour and 45 minutes with him.

When defendant said he wanted to see them again, Yolanda told him to call.

During the next several weeks, defendant repeatedly called Yolanda and

told her he wanted her back. When she refused, defendant warned that if she did

not return, he would do something to himself. They agreed to meet at a Chuck E.

Cheese restaurant at 4:00 p.m. on April 27, 1997. Defendant stated that he arrived

on time, and became angry and frustrated because he waited for Yolanda and the

children for 30 to 45 minutes. When Yolanda drove up, defendant took Little

Howie out of Yolanda‘s car, declared he was going to leave, placed Little Howie

inside his car, and got into the driver‘s seat. As he tried to remove the locking

device from the steering wheel, Yolanda began arguing with defendant about

taking Little Howie, and scratched and hit defendant. Defendant pushed her away

and got out of the car. They got into a ―scuffle.‖ Defendant stated that he took out

the container of gasoline that he normally kept in the trunk of his car for his

carburetor, but did not know why he took the container out. He was upset and in a

―rage‖ and remembered only ―bits and pieces‖ of the proceeding events, including

pouring gasoline on Yolanda and himself. Someone tried to grab him, and the

next thing he knew, they were both on fire.

Defendant testified that he did not intend to set Yolanda on fire and kill her.

Regarding the note, defendant explained that it was a suicide note and his

statement he knew what he did to Yolanda was wrong was only a reference to the

December 30, 1996 incident, the subject of Yolanda‘s declaration for the

restraining order. Defendant claimed that, during that incident, they argued over

Yolanda‘s refusal to have sex with him and that he only pulled on Yolanda‘s

braided hair extensions so that she would come to bed. He denied raping her and

claimed he still loved her. Defendant further claimed that he did not intend to hurt

Yolanda. Instead, when he wrote that Yolanda did not deserve ―to live like me,‖

9



he meant only that she did not deserve to live the lifestyle that he was living (i.e.,

drinking alcohol and taking drugs) and that she deserved a house, which he could

not afford. He intended to show the note to Yolanda in the hope she would feel

sorry for him and take him back. The note asked his parents to raise Little Howie

because defendant did not want him to be raised by a stepfather.

On cross-examination, defendant admitted that although the note was dated

April 27, 1997, he wrote the note three to five days earlier when he was drinking.

Defendant claimed that he did not know how his gas cap got on the bumper, but

thought that he might have left it there when he put gasoline in his car in Los

Angeles before driving to the Chuck E. Cheese restaurant in Fontana. He denied

that he siphoned the gasoline from his fuel tank to put into the plastic antifreeze

container before Yolanda‘s arrival. Defendant denied that he planned to run away

from the scene and that he put the Club on his car to prevent its theft after he fled.

On redirect examination, defendant testified that when he grabbed Little

Howie from Yolanda‘s car, his intent was to leave with the baby.

3. Rebuttal

Yolanda‘s children, Patrick and Lawanda, testified about their mother‘s and

defendant‘s relationship. Patrick stated that defendant was mean to Yolanda and

that Patrick went to Chuck E. Cheese so that nothing bad would happen. He did

not see defendant attempt to remove the Club from the steering wheel.

Lawanda stated that she disliked defendant because he threatened Yolanda,

pushed her around, and threw things at her. Lawanda described the December 30,

1996 incident. She was awakened by her mother‘s screams. Lawanda saw

defendant pulling Yolanda‘s hair and dragging Shavonda by her leg braces, while

Little Howie watched. Defendant warned Lawanda that if she wanted to watch, he

would pull her mother‘s hair even harder. Defendant got on top of Yolanda and

10



did ―something sexually‖ to Yolanda after she refused to have sex with him.

According to Lawanda, defendant ―tortured‖ Yolanda for hours and Yolanda

complained her head was sore the next day. Defendant would throw things

around and shove Yolanda around ―continually.‖ He behaved this way during the

last year of their relationship, and possibly even before.

Yolanda‘s brother, Victor Buttler, testified that on January 4, 1997,

defendant pounded loudly on Victor‘s door around 3:00 or 4:00 a.m. He then

broke the window of Victor‘s wife‘s van. When Victor ran outside, he saw

defendant driving away. Victor called the police and filed a report. Later that

night, defendant called Victor, admitted he broke the van window, and warned that

people in the family would start ―dropping like flies‖ if Victor did not divulge

Yolanda‘s whereabouts. Defendant returned that night. As defendant was

walking towards Victor‘s front door, Victor saw him pull out a gun and

immediately closed the door. Defendant walked back to his car and drove away.

Over the next several weeks, defendant continued to call Victor often, threatening

to kill people in his family if he did not find out Yolanda‘s whereabouts.

Yolanda‘s sister, Lucinda Buttler, testified that Yolanda spoke of leaving

defendant for two years. During the last year or two of their relationship, Yolanda

explained that defendant was abusive to her. Lucinda once saw defendant push

Yolanda out of their mother‘s house. Yolanda would often call Lucinda secretly

because defendant did not want the sisters to talk with or see each other.

The day after Yolanda moved out, defendant went to Lucinda‘s house and

asked where Yolanda was. When Lucinda replied she did not know, defendant

warned that if Yolanda did not show up, he would start killing her family members

one by one. He told Lucinda what he had done to Victor so that she would take

his threats seriously.

11



B. Penalty Phase

1. The Prosecutions Case

Because the penalty phase was tried before a different jury than the guilt

phase, the prosecution presented much of the guilt phase evidence, relating to

defendant‘s history with Yolanda and the circumstances of the crime — at the

penalty phase. That evidence included defendant‘s abusive and controlling

behavior towards Yolanda, the December 30, 1996 incident, which was the subject

of Yolanda‘s restraining order, defendant‘s visits to the homes of Yolanda‘s

siblings after Yolanda left him, his threats to her siblings when he was trying to

locate Yolanda, and expert testimony on the burns suffered by Yolanda.

Other evidence presented at the penalty phase included the testimony of

another of Yolanda‘s brothers and additional testimony by Yolanda‘s brother,

Victor. Rallin Buttler, another brother, testified that after Yolanda moved out,

defendant made threatening calls to Rallin and his mother, who lived in Rallin‘s

house. Defendant called Rallin‘s mother names and threatened to do bodily harm

to her and her family if she did not disclose Yolanda‘s whereabouts. Defendant

threatened to kill Rallin, to ―take‖ him and his entire family ―out‖ if they refused

to give the location of Yolanda, and to ―blow away‖ anyone who got in his way,

including Yolanda. Defendant said that when he found Yolanda, she was going to

regret it.

Rallin testified that on January 4, 1997, he and his family were awakened

by a loud banging on the front door. Rallin heard the shattering of his front

window and saw defendant driving away in defendant‘s car. Rallin saw 10-15

dents in his front door that appeared to have been made by a gun.

Victor Buttler testified that Yolanda told him she was afraid of defendant

and that he had threatened to kill her if she ever left him.

12



The prosecution also presented evidence that defendant had pleaded guilty

to felony assault with a deadly weapon (§ 245, subd. (a)(2)) on February 18, 1997

for the gun incident at Victor‘s house and had also been convicted of shooting at

an inhabited dwelling (§ 246) in 1982, a misdemeanor. On the felony assault

conviction, defendant was placed on probation. Regarding the conviction for

shooting at an inhabited dwelling, the prosecution presented evidence of the

underlying circumstances. Defendant had followed Paul Triplett, a man who was

dating the mother of one of defendant‘s children, and they got into a physical

altercation. After the fight, defendant fired a shotgun into the house Triplett had

entered. The shot shattered the window in a room in which an infant lay in a

bassinet. No one was hurt.

The prosecution presented victim impact evidence, including the severe

emotional trauma Little Howie and the other children suffered and the behavioral

problems they were still exhibiting.

2. The Defense Case

Defendant presented testimony from his mother and a neighbor who

portrayed defendant as a devoted father, son, and boyfriend. Defendant‘s mother

testified that Little Howie did not experience traumatic shock from his mother‘s

death or act differently after she died.

Defendant testified in detail about his loving relationship with Yolanda, his

desperation when she left him, his use of drugs and alcohol before the crime, and

his writing the suicide note as a ploy to get Yolanda back, not as an expression of

his intent to kill her. He denied that he threatened Yolanda‘s family members or

used a gun at her brothers‘ houses. As in the guilt phase, defendant testified in

detail about the events leading up to the murder, including his phone calls to

Yolanda, his prior meeting with Yolanda and the children, the fight between him

13



and Yolanda at the Chuck E. Cheese in Fontana, and his lack of memory regarding

his pouring gasoline on Yolanda and setting her on fire. He denied that he

intended to kill or hurt Yolanda. Also, as in the guilt phase, defendant testified

that on December 30, 1996, he only pulled Yolanda‘s braided hair extensions so

that she would come to bed.

Defendant explained that as expressed in his note to Yolanda, he intended

to kill himself, but had no idea how, though the possibility of a police chase or

police shooting occurred to him. He wanted to have someone else kill him

because he is Christian and wanted to go to heaven. He was sorry for what he had

done to Yolanda, but that because his life belongs to the Lord Jesus Christ and if

God gives him the opportunity, he will make it up by leading other inmates in the

right direction.

3. Rebuttal

The People‘s rebuttal consisted primarily of defendant‘s statements during

the booking process, and to three psychologists who examined him during the

pendency of the case.

During the booking process, defendant made a spontaneous statement that

his ―ex-wife‖ had broken up with him in January, she had packed up the children

and moved to Victorville, she had ruined his life, and he wanted to ruin her life.

In a statement to one of the psychologists, defendant admitted that he

threatened Yolanda‘s family. In statements to two psychologists, defendant

described how he had set Yolanda on fire. In one statement, defendant described

that he had splashed Yolanda with gasoline, but claimed that he lit the lighter only

to scare her. A bystander grabbed his hand, causing him to flick the lighter and

ignite the gasoline. In another statement, defendant stated that he and Yolanda

had argued over Little Howie and that Yolanda started scratching and hitting

14



defendant. Defendant removed the gasoline from his car, doused her with it, then

lit a cigarette lighter, which led to her being burned.

II. DISCUSSION

A. Jury Selection Issue

Peremptory Challenges

Defendant claims that during voir dire of the penalty phase retrial, the

prosecutor improperly exercised peremptory challenges against three African-

American prospective jurors on the basis of race. (Batson v. Kentucky (1986) 476

U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).) Defendant

is and the victim was African–American. The applicable law is well settled.

Under Wheeler, ― ‗[a] prosecutor's use of peremptory challenges to strike

prospective jurors on the basis of group bias—that is, bias against ―members of an

identifiable group distinguished on racial, religious, ethnic, or similar grounds —

violates the right of a criminal defendant to trial by a jury drawn from a

representative cross-section of the community under article I, section 16 of the

state Constitution. [Citations.]‘ ‖ (People v. Hawthorne (2009) 46 Cal.4th 67, 77-

78.) Such a practice also violates the defendant's right to equal protection under

the Fourteenth Amendment. (Batson, supra, 476 U.S. at p. 88; People v.

Hawthorne, supra, 46 Cal.4th at p. 78.)

In ruling on a motion challenging the exercise of peremptory strikes, the

trial court follows a three-step procedure. ―First, the defendant must make out a

prima facie case ‗by showing that the totality of the relevant facts gives rise to an

inference of discriminatory purpose.‘ [Citations.] Second, once the defendant has

made out a prima facie case, the ‗burden shifts to the State to explain adequately

the racial exclusion‘ by offering permissible race-neutral justifications for the

strikes. [Citations.] Third, ‗[i]f a race-neutral explanation is tendered, the trial

15



court must then decide . . . whether the opponent of the strike has proved

purposeful racial discrimination.‘ [Citation.]‖ (Johnson v. California (2005) 545

U.S. 162, 168, fn. omitted (Johnson).)

Without objection from defense counsel, the prosecutor exercised his third

peremptory challenge to excuse Prospective Juror No. 3 and his fourth peremptory

challenge to excuse Prospective Juror No. 44. After the prosecutor used his fifth

and final challenge to excuse Prospective Juror No. 46, defense counsel made a

Wheeler/Batson motion because the prosecutor had excused three prospective

jurors who were African–American. At the time of the motion, seven African-

Americans had been called to the jury box. The prosecutor peremptorily excused

three of them, while the defense peremptorily excused two of them. Two African-

American prospective jurors remained in the jury box.

In support of his motion, defendant argued that the prosecutor used his last

three peremptory challenges to ―systematically eliminat[e] Black jurors.‖ When

the trial court noted that the defense peremptorily challenged two African-

American prospective jurors, defense counsel explained that he was justified in

those excusals, and that they had come after the trial court denied his challenges to

them for cause. The trial court responded, ―I don‘t think there is any dispute that

you had a valid reason in your mind and your client‘s mind to excuse the two.

You did. That is not an issue, really.‖

The prosecutor argued that defendant failed to make a prima facie showing

and offered to relate his concerns regarding Prospective Juror No. 44. The trial

court responded, ―If you wish.‖ The prosecutor commented that she had a BA in

sociology, and had ―done social work and nursing all of her life.‖ The prosecutor

further commented that her questionnaire answers indicated that although some

murders may be intentional, the fact they are committed by a person who is

temporarily insane or emotional might affect her decision regarding imposition of

16



the death penalty. The prosecutor explained that ―given the facts of this particular

case, I don‘t think that juror could ever actually render the death verdict given

what we know to be the facts of our case.‖ The prosecutor also expressed concern

with Prospective Juror No. 44‘s demeanor, noting that she appeared to be distant

when the other prospective jurors responded to questions and appeared to be a

―loner,‖ which could lead to a hung jury.

The prosecutor pointed out that he and defense counsel stipulated to several

excusals for cause, including two African-American prospective jurors who could

not be impartial, and that he argued vigorously to retain the two Black prospective

jurors that had been challenged by the defense for cause, but that the defense used

its peremptory challenges against them. The prosecutor asserted that he

challenged the African-American prospective jurors ―for reasons having nothing

to do with skin color.‖

The trial court denied defendant‘s motion, finding there was an insufficient

showing of a prima facie case.

Defendant argues that although the trial court did not state which standard it

was using, it presumptively used the wrong standard, i.e., whether defendant

established a ―strong likelihood‖ that a juror has been peremptorily challenged on

the basis of group bias. (Wheeler, supra, 22 Cal.3d at p. 280.) After the trial in

this case, the high court disapproved that standard for purposes of a defendant‘s

establishing a prima facie case. (Johnson, supra, 545 U.S. at pp. 166-168.) Under

Batson, the court stated that the prima facie burden is simply to ―produc[e]

evidence sufficient to permit the trial judge to draw an inference that

discrimination has occurred.‖ (Johnson, supra, 545 U.S. at p. 170.) In addition,

defendant claims that in finding no prima facie showing, the trial court relied on

irrelevant grounds.

17



Regardless of the standard or considerations used by the trial court, we

have reviewed the record independently (applying the high court‘s standard) to

resolve the legal question whether the record supports an inference that the

prosecutor excused a juror on the basis of race. (People v. Hawthorne, supra, 46

Cal.4th at p. 79.) We conclude that the record does not support such an inference.

In establishing a prima facie showing, a defendant has the burden of

demonstrating that the facts and circumstances of the case raise an inference that

the prosecutor excluded prospective jurors based on race. (Batson, supra, 476

U.S. at p. 96.) Notably, defendant‘s only stated basis for establishing a prima

facie case at trial was that the prosecutor exercised three of five peremptory

challenges against African-American jurors. Defendant attempts to buttress that

stated basis by arguing on appeal that 28 percent of the prospective jurors called to

the jury box were African-American, while the prosecutor used a disproportionate

ratio of his strikes (60 percent) against African-Americans. However, defendant‘s

numerical showing falls short of a prima facie case. (People v. Clark (2011) 52

Cal.4th 856, 905 [no prima facie case where prosecutor challenged four of five

African-American prospective jurors ]; People v. Cornwell (2005) 37 Cal.4th 50,

70 [no prima facie case where prosecutor challenged one out of two African-

American prospective jurors]; People v. Yeoman (2003) 31 Cal.4th 93, 115 [prima

facie case not established by cursory reference to prosecutor‘s strike of three

prospective jurors by name, number, occupation and race]; People v. Farnum

(2002) 28 Cal.4th 107, 136-137 [prima facie case not established by asserting

prosecutor exercised four of five peremptory challenges against Black prospective

jurors]; People v. Adanandus (2007) 157 Cal.App.4th 496, 503-504 [no prima

facie case established by asserting prosecutor exercised three peremptory

challenges against Black prospective jurors].)

18



The totality of the relevant facts of voir dire refutes an inference of

discriminatory purpose. (People v. Clark, supra, 52 Cal.4th at p. 905; People v.

Gray (2005) 37 Cal.4th 168, 186.) Before he exercised a single peremptory

challenge against an African-American juror, the prosecutor accepted the jury four

times with up to three African-American prospective jurors seated in the jury box.

During the first three times, the prosecutor accepted the jury with two African-

American prospective jurors (Nos. 3 and 23) seated.

Another African-American prospective juror (No. 35) came into the jury

box to replace an excused juror. Defense counsel challenged Prospective Juror

No. 35 for cause. The prosecutor opposed the challenge and questioned the juror

in an attempt to rehabilitate him. The trial court denied defendant‘s challenge for

cause.

The prosecutor accepted the jury a fourth time with three African-American

prospective jurors (Nos. 3, 23, and 35) seated. At that point, defense counsel did

not peremptorily challenge Prospective Juror No. 35, but used his fifth peremptory

challenge against another prospective juror. That juror was replaced with

Prospective Juror No. 42, who was African-American. The prosecutor then used

his third peremptory challenge against Prospective Juror No. 3, which was his first

peremptory challenge against an African-American juror. Prospective Juror No. 3

was replaced with Prospective Juror No. 43, who was also African-American.

Defense counsel challenged Prospective Juror No. 43 for cause. The

prosecutor opposed the challenge and questioned the juror in an attempt to

rehabilitate him. The trial court again denied defendant‘s challenge for cause.

Defense counsel exercised his sixth peremptory challenge against

Prospective Juror No. 43, who was replaced by another African-American

prospective juror (44). The prosecutor exercised his fourth peremptory challenge

against Prospective Juror No. 44, which was his second peremptory challenge

19



against an African-American juror. Prospective Juror No. 44 was replaced by

another African-American juror (No. 46), leaving four African-American jurors

seated in the jury box. After defense counsel exercised his seventh peremptory

challenge, the prosecutor accepted the jury a fifth time, with those four African-

American jurors (Nos. 23, 35, 42, and 46) seated. Defense counsel used his eighth

peremptory challenge against Prospective Juror No. 35. The prosecutor used his

fifth peremptory challenge against Prospective Juror No. 46, leaving two African-

American prospective jurors seated in the jury box (Nos. 23 and 42). Defendant

then made a Wheeler/Batson motion.

After the trial court denied the motion, defense counsel exercised his ninth

and final peremptory challenge against Prospective Juror No. 42, his third

peremptory challenge against an African-American prospective juror. Prospective

Juror No. 23 was the only African-American juror who sat on the final penalty

phase jury.

Thus, the record reflects that before defendant made the Wheeler/Batson

motion, the prosecutor accepted the jury five times with up to four African-

American prospective jurors seated in the jury box. The prosecutor accepted the

jury four times with Prospective Juror No. 3 seated and one time with Prospective

Juror No. 46 seated before finally excusing them. (People v. Clark, supra, 52

Cal.4th at p. 906 [no prima facie case where prosecutor passed two African-

American jurors during several rounds before finally excusing them].) The

prosecutor‘s acceptance of a panel including African-American prospective jurors,

while not conclusive, was ― ‗an indication of the prosecutor‘s good faith in

exercising his peremptories, and . . . an appropriate fact for the trial judge to

consider in ruling on a Wheeler objection . . . .‘ ‖ (People v. Hartsch (2010) 49

Cal.4th 472, 487.) The record also reflects that there was an African-American on

the jury panel ultimately sworn, and the prosecutor repeatedly passed that juror on

20



his peremptory challenges. (People v. Clark, supra, 52 Cal.4th at p. 906; People

v. Cornwell, supra, 37 Cal.4th at p. 70; People v. Adanandus, supra, 157

Cal.App.4th at pp. 503-504.) It further reflects that after extensive questioning,

the prosecutor successfully rehabilitated two African-American jurors, Prospective

Jurors Nos. 35 and 43, staving off defense challenges for cause. The prosecutor‘s

desire to keep African-American jurors on the jury tended to show that the

prosecutor was motivated by the jurors‘ individual views instead of their race.

(People v. Hartsch, supra, 49 Cal.4th at p. 487.)

Finally, the record of voir dire shows race-neutral reasons for the

prosecutor‘s excusals of Prospective Jurors Nos. 3, 44, and 46. Prospective Juror

No. 3 was a married, 27-year-old woman with two children who worked for the

San Bernardino County Department of Social Services as a social services

caseworker. On the questionnaire, she stated that she ―strongly disagreed‖ that

anyone who intentionally killed another person should get the death penalty. She

stated that if under certain circumstances, the person killed with ―good reason‖ he

or she ―should be punished, but not put to death.‖ She explained, ―[w]hen I say

good reason, I mean in their minds.‖ Prospective Juror No. 3 further stated that

―maybe‖ the death penalty was appropriate in cases where a person of sound mind

admits to death and commits willful acts of cruelty, such as execution-style or

gang murders.

From Prospective Juror No. 3‘s responses, the prosecutor could have

reasonably been concerned with her emphasis on the killer‘s subjective

perspective, especially in a case such as this one, where the defense would be that

the defendant snapped under extreme emotional despair and did not intend to kill.

Her responses also indicated a willingness to impose the death penalty only under

very limited circumstances and if the defendant confessed, facts not present in this

case. As with Prospective Juror No. 44, the prosecutor could also have reasonably

21



believed that as a social services caseworker, Prospective Juror No. 3 might be

more sympathetic to the defense. (People v. Clark, supra, 52 Cal.4th at p. 907

[peremptory challenge properly based on juror‘s experience in counseling or social

services]; People v. Landry (1996) 49 Cal.App.4th 785, 790-791 [peremptory

challenge properly based on juror‘s educational background and experience in

psychiatry or psychology].) )

Prospective Juror No. 44 was a 63-year-old widow with grown children,

who worked for San Bernardino County as a supervising social worker. She

graduated from college with a BA in sociology and was a social worker for 30

years. On the questionnaire, she stated that she had served 30 days in custody for

committing credit card fraud 30 years earlier and had visited her husband in jail

for drunk driving. She indicated that her decision to impose the death penalty

might be affected where an intentional murder is ―so emotional,‖ or the person is

temporarily insane.

Other than the prosecutor‘s concerns with the juror‘s demeanor, the record

supports his stated concerns regarding Prospective Juror No. 44‘s employment as a

social worker, and her unwillingness to impose the death penalty in cases such as

this one involving a defense centered on defendant‘s emotional instability.

Prospective Juror No. 46 was a married, 44-year-old woman with three

children, who worked for the Los Angeles County Department of Public Health as

an eligibility worker and Medi-Cal liaison. On the questionnaire, she indicated

she had not thought much about the death penalty, could not think of a general

purpose it would serve, and believed that life imprisonment was a harsher penalty

than death. Prospective Juror No. 46 strongly disagreed that anyone who

intentionally kills another person should automatically get the death penalty.

When asked if she could impose the death penalty in an appropriate case, she

answered ―possibly.‖

22



From Prospective Juror No. 46‘s responses, the prosecutor could have

reasonably concluded that she was uncertain about her ability or willingness to

impose the death penalty, even in the most extreme cases. Also, as with

Prospective Jurors Nos. 3 and 44, the prosecutor could have reasonably been

concerned with Prospective Juror No. 46‘s employment in the social services field.

Thus, the record discloses race-neutral reasons for the excusals.5

Because defendant failed to meet his burden of establishing a prima facie

case of group discrimination, the trial court correctly denied his Wheeler/Batson

motion.

B. Pretrial Issues Regarding Penalty Phase

1. Denial of Defendants Marsden Motion

Defendant claims that the trial court improperly denied his motion to

replace appointed counsel at the penalty phase retrial, resulting in a violation of his

federal and state constitutional rights. The trial court did not abuse its discretion

in denying defendant‘s motion.

a. Facts

On August 27, 1998, during jury selection for the guilt phase of trial,

defendant made his first motion to substitute Defense Counsel Robert Amador.

The trial court held a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118.


5

For the first time on appeal, defendant asks us to conduct a comparative

analysis regarding the prospective jurors‘ responses and the prosecutor‘s
questioning of them. Here, the trial court did not ask the prosecutor for his
reasons for the excusals or rule on the prosecutor‘s actual reasons for excusing
Prospective Juror No. 44. (See People v. Mills (2010) 48 Cal.4th 158, 174, fn. 3;
People v. Hawthorne, supra, 46 Cal.4th at p. 79, fn. 2.) Because the trial court
determined there was no showing of a prima facie case, we decline to conduct a
comparative juror analysis in this ― ‗first-stage‘ ‖ Wheeler/Batson case. (People v.
Hawthorne, supra
, 46 Cal.4th at p. 80, fn. 3.)

23



Defendant stated that, although counsel had been assigned at the beginning of the

case, defendant had not seen any police reports or documents and was unaware of

his defense. He believed that Amador was not prepared because he had not filed a

written response to one of the prosecution‘s motions, but had only responded

verbally. When defendant stated he believed counsel was not adequately

defending him, the trial court asked him to provide specific examples of what he

wanted Amador to do that he had not done. Defendant responded that the

prosecution‘s motions contained ―lies‖ and he wanted Amador to challenge the

truthfulness of the evidence. The court noted that defendant had not proffered any

facts to support his claim. It stated that defendant had not provided a reason for

relieving Amador, but appointed independent counsel to provide assistance to

defendant on the Marsden motion.

On August 31, 1998, at the next hearing on the Marsden motion, Charles

Nacsin, who had been appointed to assist on the motion, announced that defendant

wanted to withdraw the motion. Defendant told the court that after speaking with

Amador, his concerns had been resolved and he understood what Amador was

doing.

On September 21, 1998, the jury returned guilty verdicts and true findings

on the special circumstances. On October 14, 1998, the jury advised the court it

could not reach a verdict on the penalty; the trial court found the jury was

hopelessly deadlocked and declared a mistrial on the penalty phase of trial.

On November 2, 1998, during jury selection for the first penalty phase

retrial, Defense Counsel Amador moved to be relieved as counsel.6 Amador


6

On November 25, 1998, the trial court discharged the jury after granting

defendant‘s motion for a continuance. Defendant‘s second penalty phase retrial
began on January 19, 1999.

24



stated he was concerned that another attorney had been visiting defendant in jail,

that this would interfere with his representation of defendant, and that defendant

refused to provide Amador reasons for the visits. A jail log revealed that Attorney

David Karlson had visited defendant nine times from July 25, 1998 to October 28,

1998. Defendant denied that Karlson was interfering with Amador‘s

representation. He explained that Karlson had said there was nothing he could do

for defendant on his case until after the penalty phase ended. Defendant felt that

because Amador did not want to represent him, he too did not want Amador

representing him. Amador clarified that he was not currently asking to be

relieved, but that if Karlson‘s jail visits continued, he would ask to be relieved.

The court issued an order to show cause against Karlson and appointed Attorney

Nascin to consult with defendant regarding the need for a Marsden motion.

On November 4, 1998, the trial court held a hearing regarding Attorney

Karlson‘s jail visits with defendant. Karlson testified that defendant asked to

speak with him after the jury hung on the penalty verdict. On October 28th,

Karlson visited defendant briefly and told him that because defendant was already

represented, he could not advise him on the case until after the trial and his

attorney-client relationship with Amador had ended. Karlson assured the court he

would follow its order barring any future contacts with defendant. Attorney

Nascin then requested a Marsden hearing; after talking with defendant, he felt that

there was a breakdown in the relationship between defendant and Amador.

On the following day, the trial court held a Marsden hearing, with Nascin

representing defendant. Defendant initially testified that he had lost confidence in

Amador for two reasons. First, Amador had asked to be relieved as counsel.

Second, Amador had failed to respond to his requests during the guilt phase to

pursue other evidence and to ask witnesses certain questions. When asked about

his first Marsden motion, defendant explained that he had withdrawn the motion

25



after Amador assured him things would be better and that ―he had stuff up his

sleeves he was going to bring out.‖ But, as the trial progressed, defendant felt that

Amador was not fighting for him and giving him ―100 percent,‖ and that he did

not receive a fair trial.

Defendant testified that his feelings about Amador ―really changed‖ when

the trial court dismissed the jury after its penalty deadlock. He had questions on

what was going to happen next, but could not reach Amador by telephone.

Defendant was told that Amador had gone to Reno and would return the following

morning. But, Amador did not call or visit him during the two-week period after

the mistrial. Because he and his family were concerned about the future

proceedings, defendant contacted Karlson for information, but Karlson did not

provide any answers. Defendant stated that he lost confidence in Amador because

he felt that if Amador was professional and had been doing a good job, he would

not have been concerned about defendant‘s contacts with Karlson. Defendant also

questioned why Amador had advised him not to testify and why he told the court

of that advisement, even though defendant wanted to testify. Finally, defendant

stated he felt that there was no communication between him and Amador.

Amador testified that on defendant‘s suggestion, the defense team spoke to

several witnesses. Because several of these witnesses had ―nothing good to say‖

about defendant, they determined that these witnesses would have caused more

harm to defendant‘s case. For example, one witness related that a few days before

he burned Yolanda, defendant wanted to borrow a handgun. Amador denied that

he told defendant that he had ―something up‖ his ―sleeve.‖

Amador testified that because defendant did not want him as his lawyer and

did not like Amador, he felt uncomfortable and did not want to represent

defendant. Amador felt that their relationship had broken down and was

irreparably harmed. Because defendant refused to tell him why Attorney Karlson

26



was visiting him so often, Amador felt that defendant was not candid and did not

cooperate with him. However, Amador believed that if defendant was counseled

to cooperate and communicate with him, Amador could still try the case. His

personal feelings would not detract from his professional representation of

defendant.

On the adequacy of Amador‘s representation, the trial court found that

defendant‘s complaints about his failure to pursue certain matters and his

unpreparedness were not specific enough, and that counsel‘s advice to defendant

not to testify was an insufficient showing of ineffective representation. Regarding

Amador‘s failure to see defendant after the penalty mistrial, the court noted that

the quality of representation does not depend solely on the number of times a

defendant speaks with his attorney. It commented that throughout the proceedings

in this case, Amador conducted the defense appropriately, was prepared, and

argued persuasively. It saw nothing unfair about the trial. The court noted that

given the evidence and defendant‘s confession at the guilt phase, defendant could

not have expected a not guilty verdict. The court further noted that, at the first

penalty trial, Amador was able to convince a jury to hang on the verdict.

The trial court found that ―what we have here, very unfortunately, is a

personal relationship that has broken down.‖ The court noted that Amador asked

to be relieved based only on his perception that defendant had been consulting

another attorney, who might have been ―second-guessing‖ Amador‘s

representation of defendant. The court further noted that defendant ―joined in‖

Amador‘s motion, but did not initiate the motion for relief. It was only at that

point that defendant lost confidence in Amador‘s ability to defend him.

Despite their personal relationship, the trial court denied Amador‘s and

defendant‘s motions for relief of counsel because there was not an irreconcilable

conflict and there was no showing of ineffective representation. The court

27



accepted Amador‘s representation that his personal feelings would not influence or

affect his ability to professionally represent defendant and advised defendant to

cooperate and communicate with his attorney.

b. Discussion

―When a defendant seeks substitution of appointed counsel pursuant to

People v. Marsden, supra, 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44, ‗the trial

court must permit the defendant to explain the basis of his contention and to relate

specific instances of inadequate performance. A defendant is entitled to relief if

the record clearly shows that the appointed counsel is not providing adequate

representation or that defendant and counsel have become embroiled in such an

irreconcilable conflict that ineffective representation is likely to result.‘ ‖ (People

v. Taylor (2010) 48 Cal.4th 574, 599.) ―A trial court should grant a defendant‘s

Marsden motion only when the defendant has made ‗a substantial showing that

failure to order substitution is likely to result in constitutionally inadequate

representation.‘ ‖ (People v. Hines (1997) 15 Cal.4th 997, 1025.)

―We review the denial of a Marsden motion for abuse of discretion.‖

(People v. Taylor, supra, 48 Cal.4th at p. 599.) ―Denial is not an abuse of

discretion ‗unless the defendant has shown that a failure to replace counsel would

substantially impair the defendant's right to assistance of counsel.‘ ‖ (Ibid.)

We conclude that defendant has failed to establish that the trial court

abused its discretion in denying his Marsden motion. Although defendant

emphasizes that Amador failed to communicate with him, defendant‘s testimony

reveals that this claim was based primarily on counsel‘s failure to speak with him

during the two-week period between the penalty phase mistrial and the motions for

relief of counsel. Although not answered immediately, defendant‘s questions

about the upcoming proceedings presumably were answered later. Similarly,

28



defendant‘s lack of confidence in Amador was based primarily on counsel‘s

failure to communicate with defendant during that two-week period and on

counsel‘s request to be removed. However, as the trial court explained, ―the

number of times one sees his attorney, and the way in which one relates with his

attorney, does not sufficiently establish incompetence.‖ (See People v. Silva

(1988) 45 Cal.3d 604, 622.) After presiding over the guilt phase trial and the first

penalty phase trial, the court noted that counsel had performed adequately and

accepted counsel‘s representation he could continue to represent defendant

professionally. Although defendant now points to some of Amador‘s actions as

specific examples of a ―rather tepid‖ performance throughout the case, he failed to

raise those claims to the trial court. In any event, tactical disagreements between a

defendant and his attorney or a defendant‘s frustration with counsel are not

sufficient cause for substitution of counsel. (People v. Jackson (2009) 45 Cal.4th

662, 688; People v. Barnett (1998) 17 Cal.4th 1044, 1092.)

On this record, the court reasonably concluded that defendant failed to

show counsel provided inadequate representation or that any conflict between

defendant and Amador was irreconcilable. There was no abuse of discretion.

2. Absence of Defense Counsel and Presence of Substitute Attorney

During Portion of Jury Selection At Penalty Phase Retrial

Defendant claims that the absence of his attorney and the presence of

substitute counsel during the distribution of juror questionnaires and hardship

screening at the penalty phase retrial deprived him of his right to counsel under the

federal and state constitutions. He is wrong.

On January 19, 1999, the first day of the second penalty phase retrial (third

penalty phase trial), Attorney Amador was not present in court because of illness.

Another attorney, Julian Ducre, was present to represent defendant during

Amador‘s absence. The trial court asked defendant if somebody spoke to him

29



―about the situation with Mr. Amador.‖ Defendant replied yes. The court

explained that during the proceedings in Amador‘s absence and Ducre‘s presence,

―nothing will happen regarding the presentation of your case or the prosecution‘s

case except to explain to the jury the procedure and hand out the questionnaires

and have them returned on a later date.‖ When asked if he would consent to that

procedure, defendant replied yes.

During Ducre‘s presence, three groups of prospective jurors were called

into the courtroom and sworn. The first group appeared on the morning of

January 19. The second group was brought in that afternoon, while the third group

came in on the following morning. During all three sessions, the trial court

introduced the parties, read the information, related that Attorney Ducre would be

sitting in that day because defendant‘s attorney, Amador, was ill, and explained

the proceeding was a penalty phase trial. It discussed the jury selection procedure

and schedule, including the fact that questionnaires would be distributed, and the

prospective jurors would be dismissed and ordered to return on February 1st with

the completed questionnaires. After the questionnaires were distributed, the court

explained the grounds for a hardship excusal. The court asked those prospective

jurors claiming hardship to stay and dismissed the other prospective jurors. After

questioning, the court dismissed those prospective jurors who had been excused by

stipulation.

After the above proceedings, the trial court ordered the prosecutor to meet

with Amador to discuss the questionnaires and return to court on February 1. On

that date, Amador was present in court when the first group of prospective jurors

returned with their completed questionnaires.

The Attorney General claims that defendant cannot challenge his attorney‘s

absence because he consented to Amador‘s absence and the substitution of

Attorney Ducre. Defendant responds that defendant agreed to have stand-in

30



counsel only for the purpose of handing out the jury questionnaires and was not

advised that the court would be excusing prospective jurors for hardship in

Amador‘s absence. Defendant argues that, under these circumstances, he did not

waive his right to have his attorney present during the excusal proceedings.

Because we conclude that defendant was not deprived of his right to counsel, we

need not decide the waiver issue.

On the merits, defendant contends that the absence of Amador during jury

selection proceedings constituted a ―structural error‖ that requires automatic

reversal of the judgment without reference to harmless error analysis. (Arizona v.

Fulminate (1991) 499 U.S. 279, 309.) Alternatively, he argues that Amador‘s

absence was a presumptively prejudicial violation of his right to counsel at a

critical stage of the proceedings. (Bell v. Cone (2002) 535 U.S. 685, 695-697;

United States v. Cronic (1984) 466 U.S. 648, 659.)

―A criminal defendant enjoys the right to counsel under both the state and

federal Constitutions (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15, Gideon v.

Wainwright (1963) 372 U.S. 335, 339-345, People v. Koontz (2002) 27 Cal.4th

1041, 1069, 119 Cal.Rptr.2d 859, 46 P.3d 335.) A complete denial of counsel at a

critical stage of the proceedings, including during jury voir dire (Gomez v. United

States (1989) 490 U.S. 858, 873), gives rise to a presumption that the trial was

unfair. (Cronic, supra, 466 U.S. at p. 659). But when the defendant is represented

by counsel, the presumption of prejudice will only stand when counsel entirely

failed to subject the prosecution's case to meaningful adversarial testing. (Bell v.

Cone (2002) 535 U.S. 685, 695; Cronic, at p. 659.)‖ (People v. Benavides (2005)

35 Cal.4th 69, 86.)

We reject defendant‘s claims for several reasons. First, because defendant

had an attorney representing him at all times during the jury selection proceedings,

there was not a complete denial of counsel, let alone ―structural error.‖ (People v.

31



Benavides, supra, 35 Cal.4th at p. 86 [defense cocounsel‘s conducting of voir dire

in absence of lead counsel not a violation of right to counsel]; Carroll v. Renico

(6th Cir. 2007) 475 F.3d 708, 712-713.)

Second, we question whether Amador‘s absence and Ducre‘s presence

occurred during a critical stage of the proceedings. Hardship screening of the jury

pool is not a critical stage of the proceedings. (People v. Ervin (2000) 22 Cal.4th

48, 72 [defendant had no absolute right to be present during hardship screening];

People v. Basuta (2001) 94 Cal.App.4th 370, 395-396 [jury commissioner‘s

screening of jury pool for financial hardship in absence of defense counsel or

defendant not constitutionally significant].) Here, the court‘s hardship screening

and distribution of juror questionnaires bore ― ‗no reasonable, substantial relation

to [defendant‘s] opportunity to defend the charges against him‘ ‖ (People v. Ervin,

supra, 22 Cal.4th at p. 74), nor was there even an opportunity for counsel to

subject the prosecution's case to meaningful adversarial testing during the

preliminary portion of the jury selection process. (Bell v. Cone, supra, 535 U.S. at

p. 695; United States v. Cronic, supra, 466 U.S. at p. 659.) Thus, defendant was

not presumptively prejudiced by Amador‘s absence.

Moreover, defendant has failed to show he was actually prejudiced.

Defendant argues that Amador‘s presence was necessary because he ―had an

awareness of trial strategy and an understanding of the unique aspects of the case.‖

Hardship excusals ― ‗are to be granted only on a sufficient showing that the

individual circumstances of the prospective juror make it unreasonably difficult

for the person to serve or that hardship to the public will occur if the person must

serve in the particular case.‘ ‖ (People v. Tate (2010) 49 Cal.4th 635, 663.) The

propriety of a hardship excusal does not depend on the underlying facts of the

specific case, but rather on the juror‘s individual circumstances of hardship in

32



serving on a jury in general. Thus, intimate knowledge of the case is not

necessary for counsel‘s effective representation during hardship excusals.

Defendant contends that stand-in counsel failed to object to the trial court‘s

use of a more lenient standard for hardship excusals than designated in California

Rules of Court, rule 2.1008. For example, he argues that financial hardship

excusals were granted by the court or by stipulation without a showing that there

was an ―extreme‖ burden (Cal. Rules of Court, rule 2.1008(d)(3)) and were

granted to full-time students and those with planned vacations, criteria not

designated in the rules of court. However, as the Attorney General argues, even if

Attorney Amador had been present, the result would have been the same. As she

points out, in the first trial, Amador stipulated to the excusal of jurors who

requested a hardship dismissal on the same grounds defendant now claims were

too permissive. Moreover, there is no showing that any of the hardship excusals

were improper or an abuse of discretion. ―[R]ule 2.1008‘s strictures on the jury

commissioner‘s authority to issue hardship excusals do not necessarily apply to

hardship excusals granted by the trial court during voir dire.‖ (People v. Tate,

supra, 49 Cal.4th at p. 665, fn. 18.) Defendant has failed to show that any of those

excusals resulted in the seating of biased jurors or that the panel from which

persons were excused for hardship reasons was less than representative. (See

People v. Tate, supra, 49 Cal.4th at p. 663, fn. 16.)

Finally, defendant argues that Attorney Ducre failed to object when the trial

court stated that because a previous jury had determined defendant‘s guilt and the

truth of the special circumstances, it ―will not be something that you will have to

concern yourself with.‖ He claims that he was prejudiced because the statement

undermined the concept of lingering doubt. As discussed below, the trial court‘s

statement was not incorrect. (See post, pp. 77-79.) Moreover, as the Attorney

General points out, it was likely that Amador himself would not have objected.

33



Amador did not object when the trial court gave the same information to

prospective jurors before the start of the first penalty phase retrial.

Accordingly, the presence of a substitute attorney during the preliminary

stage of jury selection was not a denial of defendant‘s right to counsel.

C. Guilt Phase Issues

1. Admission of Photographs, Expert Testimony About the Nature and

Degree of the Victims Burns, and Tape Recording of Victim in the
Ambulance


Defendant contends that the trial court committed prejudicial error by

admitting photographs of the victim‘s injuries, expert testimony about the nature

and extent of the burns she suffered, and a tape recording of Yolanda‘s screams in

the ambulance while she was transported to the hospital. He argues that admission

of this evidence, individually and collectively, violated California law and his

federal constitutional rights to a fair trial and a reliable, nonarbitrary adjudication

of all stages of a death penalty case. As explained below, the trial court properly

admitted the evidence.

a. Photographs

The prosecutor sought admission of five photographs of various parts of the

victim‘s body to show the burn injuries that she had sustained. He represented

that Dr. David Vannix, the prosecution‘s burn expert, chose the five photographs

as necessary to support his expert opinion. Defendant objected that the

photographs were irrelevant and tended to inflame the jury (People‘s Exhibits Nos.

8-12). The prosecutor argued that the photographs were relevant to establish

malice and on the issues relating to torture murder as well as the torture special

circumstance. The trial court admitted three of the five photographs (People's

Exhibits Nos. 8-10) to show the severity of the burns and the victim‘s pain and

suffering. It explained that the three admitted photographs showed different

34



portions of the victim‘s body and thus, different areas of injury on the body.

Exhibit No. 8 showed the lower portion of the victim‘s front torso. Exhibit No. 9

showed the victim‘s back torso. Exhibit No. 10 showed the victim‘s front, her

upper torso and face. The court excluded exhibits Nos. 11 and 12 as cumulative

because they duplicated the areas of the body shown in exhibits Nos. 8-10.

b. Expert Testimony

Defendant moved to exclude admission of the expert testimony of Dr.

Vannix and other evidence relating to the victim‘s pain and suffering. Defense

counsel argued that the evidence was irrelevant to any disputed issue since he

admitted during opening statement that defendant had caused Yolanda‘s death and

that she suffered a horrible, painful death. Regarding Dr. Vannix‘s testimony,

defense counsel claimed the evidence was cumulative and not a proper subject for

expert testimony. The prosecutor argued that the evidence was probative on the

issues of malice and torture, and that the nature of the burns sustained by Yolanda

was beyond the experience and understanding of the jury. The trial court denied

defendant‘s motion, stating that the expert would assist the jury in determining the

type of pain and suffering one would endure with this type of burning.

Deputy Medical Examiner Steven Trenkle testified that Yolanda‘s burns

were consistent with burns from a gasoline fire. She suffered extensive second

and third degree burns on her head behind her hairline, and on her entire face, the

front of her chest, both arms, her back, and the top of both thighs. The pain

inflicted from these types of burns could be severe and ―potentially extreme.‖

Dr. Vannix, the medical director of the hospital and the victim‘s attending

surgeon at the hospital‘s burn center, testified that Yolanda was admitted to the

hospital in critical condition with life-threatening burn injuries. He explained how

first, second, and third degree burns differed in appearance and in the severity of

35



pain. First degree burns involve redness of the skin and some pain, but do not

blister or peel. With second degree burns from heat or flame, there are blisters and

the skin usually appears red and is sometimes black from the ash or combustion.

Second degree burns involve injury to the deeper layer of dermis beyond the

epidermis. Third degree burns involve injury to the fatty tissue underlying the

skin. The skin is usually white and may or may not be blistered. Unlike first and

second degree burns, third degree burns ―denature the skin‘s protein structure‖; the

skin is not elastic, but is thick, and feels heavy and leathery.

Dr. Vannix testified that because second degree burns cause injury to more

nerve endings in the dermis than the epidermis, they are significantly more painful

than first degree burns. With third degree burns, the burns may not be painful

initially, if none of the nerve endings survive. In that case, the painlessness may

be temporary until the nerve endings begin to regenerate. Within 24 hours,

someone with third degree burns feels the same or even worse pain than that

associated with a second degree burn. Such pain is extreme and ―is among the

most significant types of pain in human experience.‖

Dr. Vannix further testified that the paramedics were unsuccessful in

administering pain medication to Yolanda. Because the burns were so deep and

the skin was so thickened, they were unable to find or gain access to a vein.

Jeffrey Boyles, a fireman who assisted in Yolanda‘s medical care during her

transportation to the hospital, testified that Yolanda was in tears and screaming

and went through the entire 20-minute ambulance trip without pain medication.

They tried to relieve the pain by pouring water over her burns.

c. Ambulance Tape

Defendant objected to the playing of a tape recording in which Yolanda

was heard screaming during the ambulance ride to the hospital. He argued that,

36



under Evidence Code section 352, the evidence was cumulative and unfairly

prejudicial. Again, the prosecutor argued that the tape recording showed the

degree of pain suffered by Yolanda, which was relevant to the issues relating to

torture murder and to the torture special-circumstance allegation. The trial court

overruled the objection, finding that the evidence was relevant. It found that

although the tape recording was ―to some extent‖ cumulative, it was a ―different

type of evidence,‖ i.e., ―a presentation of what was going on at the time, rather

than somebody‘s verbal recitation of what they recall.‖ The court further

explained that it was relevant and material for the jury ―to actually hear from the

victim‘s own mouth expressions of the kind of pain that she was sensing as it goes

to the issues in the lawsuit.‖

d. Analysis

On appeal, defendant contends that admission of evidence of Yolanda‘s

pain and suffering was irrelevant, cumulative, more prejudicial than probative, and

violated his federal constitutional rights. Initially, we note that defendant did not

object at trial to the expert testimony and the introduction of the ambulance tape

on federal constitutional grounds. (People v. Heard (2003) 31 Cal.4th 946, 972,

fn. 12 [failure to raise federal constitutional objection in trial court forfeits

appellate claim].) To the extent his federal due process claim is merely a gloss on

his objections in the trial court, it is preserved. (People v. Partida (2005) 37

Cal.4th 428, 437-438.) However, his claims are without merit.

We review for abuse of discretion a trial court‘s rulings on relevance and

admission or exclusion of evidence under Evidence Code section 352, including

photographic and tape-recording evidence. (People v. Hawthorne, supra, 46

Cal.4th at p. 103; People v. Cole (2004) 33 Cal.4th 1158, 1196, 1198.)

37



To prove torture murder, the prosecution must establish ― ‗a willful,

deliberate, and premeditated intent to cause extreme pain or suffering for the

purpose of revenge, extortion, persuasion, or another sadistic purpose.‘ ‖ (People

v. DArcy (2010) 48 Cal.4th 257, 293.) To prove a torture-murder special

circumstance, the prosecution must show that defendant intended to kill and had a

torturous intent, i.e., an intent to cause extreme pain or suffering for the purpose of

revenge, extortion, persuasion, or another sadistic purpose. (People v. Elliot

(2005) 37 Cal.4th 453, 479.) The jury may infer the intent to inflict extreme pain

from the circumstances of the crime, the nature of the killing, and the condition of

the victim's body. (People v. Chatman (2006) 38 Cal.4th 344, 390.)

People v. Cole, supra, 33 Cal.4th 1158, is on point. There, the defendant

poured gasoline on the victim and set her on fire. Like Yolanda, the victim in

Cole sustained burns over 50 percent of her body, died 10 days later from severe

respiratory problems, and had been in a violent, abusive relationship with her

killer. In Cole, we held that evidence of the victim‘s suffering — in the form of

expert testimony and photographs — was relevant to prove intent to inflict

extreme pain, required for both murder by torture and the torture-murder special

circumstance, and to prove the commission of an act calculated to cause extreme

pain, required for the torture-murder special circumstance. (People v. Cole, supra,

33 Cal.4th at pp. 1196-1199.)

Defendant argues that Cole is distinguishable because it is a pre-Proposition

115 case, while this is a post-Proposition 115 case. He is correct that Proposition

115, effective June 6, 1990, eliminated ― ‗proof of the infliction of extreme

physical pain no matter how long its duration‘ ‖ as an element of the torture-

murder special circumstance. (People v. Cole, supra, 33 Cal.4th at p. 1197, fn. 7.)

Nevertheless, the evidence here, as in Cole, was relevant to prove intent to inflict

extreme pain. (See also People v. DArcy, supra, 48 Cal.4th at pp. 298-299

38



[photographs of burn victim relevant to prove intent to torture for torture murder];

People v. Whisenhunt (2008) 44 Cal.4th 174, 211-212 [same]; People v. Brasure

(2008) 42 Cal.4th 1037, 1054 [photographs of burn victim relevant to proof of

how, when, and where victim was tortured and murdered]; People v. Washington

(1969) 71 Cal.2d 1061, 1083.) Moreover, the evidence showed the manner in

which Yolanda was killed, which was relevant to the issue of intent to kill.

(People v. Ramirez (2006) 39 Cal.4th 398, 454.)

As in Cole, we also find that the trial court did not abuse its broad

discretion in admitting the evidence under Evidence Code section 352. (People v.

Cole, supra, 33 Cal.4th at pp. 1197, 1199; see also People v. Whisenhunt, supra,

44 Cal.4th at p. 212.) Regarding the photographs, the court carefully reviewed

each photograph and admitted only those photographs that it determined not to be

cumulative. As for the expert testimony, the court impliedly found the evidence

was not cumulative and expressly found it was a proper subject for expert

testimony. The photographs were properly admitted to clarify the medical

testimony of Dr. Vannix. (People v. Ramirez, supra, 39 Cal.4th at p. 453; People

v. Brasure, supra, 42 Cal.4th at p. 1054; see People v. DArcy, supra, 48 Cal.4th at

p. 299 [prosecution not obliged to prove how crime occurred solely from

testimony of live witnesses].) On the ambulance tape, the court expressly

determined that the evidence was not cumulative because it was the victim‘s

expression of pain and suffering at the time of the actual events.

Although defendant offered to stipulate to the cause and manner of death,

he did not concede that he intended to inflict extreme physical pain on Yolanda.

In any event, the prosecution may not be compelled to accept a stipulation where

the effect would be to deprive the state‘s case of its persuasiveness and

forcefulness. (People v. Arias (1996) 13 Cal.4th 92, 131.)

39



Here, the evidence ―did no more than accurately portray the shocking

nature of the crimes. The jury can, and must, be shielded from depictions that

sensationalize an alleged crime, or are unnecessarily gruesome, but the jury cannot

be shielded from an accurate depiction of the charged crimes that does not

unnecessarily play upon the emotions of the jurors.‖ (People v. Ramirez, supra,

39 Cal.4th at p. 454; see also People v. Brasure, supra, 42 Cal.4th at p. 1054

[―challenged photographs simply showed what had been done to the victim

[doused with gasoline and burned]; the revulsion they induced is attributable to the

acts done, not to the photographs‖].) The record reflects that the trial court was

aware of its duty to weigh the evidence‘s prejudicial effect against its probative

value, and carefully did so. Because the evidence was properly admitted, we

necessarily reject defendant‘s constitutional claims. (People v. Cole, supra, 33

Cal.4th at p. 1197, fn. 8.)

2. Admission of Yolandas Declaration in Support of Temporary

Restraining Order

Defendant contends that the admission of Yolanda‘s declaration in support

of the temporary restraining order against him violated the confrontation clause of

the Sixth Amendment to the United States Constitution.

At trial, the prosecution moved to admit Yolanda‘s declaration under

Evidence Code section 1370. The declaration stated:

―On December 30th, 1996, Howard went crazy. He took my braids and

wrapped them around his hand. He had a very very tight grip on them. He kept

pulling and pulling on my braids so hard he pulled my hair out of my head. When

I would scream he told me to shut up and put his hand on my neck.

―All of this because I wouldn‘t have sex with him. When my daughter

came to see what was happening he told her to leave, he said if she didn‘t leave

she could stand there and watch.

40



―He would start drinking and get realy mean. He push me out the house

and lock the door. He would throw things at me. One time he held me down

because I wouldn‘t give him my bank card. He would push me around. He would

call me bitches and hores. One time we went to Knotts Berry Farm he told me if I

didn‘t leave with him, he would beat my ass and every one around us heard. Some

times he would make me give him my money and he would make me have sex

with him.‖ (Errors in original.)

Defendant objected to the declaration‘s admission on the ground it would

violate the Evidence Code and the confrontation clause. The trial court granted

the prosecution‘s motion and admitted the declaration at both the guilt and penalty

phases of trial.

At the time of trial, the admission of extrajudicial hearsay statements of

unavailable witnesses did not violate the confrontation clause if those statements

fell within a firmly rooted hearsay exception or contained particularized

guarantees of trustworthiness. (Ohio v. Roberts (1980) 448 U.S. 56, 66.) In

Crawford v. Washington (2004) 541 U.S. 36, the United States Supreme Court

overruled Roberts. It held that ―Where testimonial statements are at issue, . . . the

Sixth Amendment demands what the common law required; unavailability and a

prior opportunity for cross-examination.‖ (Crawford v. Washington, supra, 541

U.S. at p. 68.)

The Attorney General concedes that the declaration‘s statements — made

under penalty of perjury and for the purpose of obtaining a judicial order against

defendant —are testimonial, and there is no indication defendant had an

opportunity to cross-examine Yolanda about these statements. Nevertheless, the

Attorney General argues that the statements were admissible under the rule of

forfeiture by wrongdoing. (Giles v. California (2008) 554 U.S. 353, 359-361

[forfeiture by wrongdoing not an exception to Sixth Amendment‘s right to

41



confrontation unless defendant engaged in conduct designed to prevent absent

witness from testifying].) Defendant responds that the rule is inapplicable here

because defendant did not engage in conduct designed to prevent the witness from

testifying. We need not decide this question because any error in admitting the

declaration was harmless beyond a reasonable doubt. (Harrington v. California

(1969) 395 U.S. 250, 288.)

First, the declaration‘s statements merely corroborated testimony presented

in the form of live witnesses. The prosecution presented extensive evidence of

defendant‘s violent, abusive relationship with Yolanda at both phases of trial.

During the guilt and penalty phases, Yolanda‘s daughter, Lawanda, testified

about the December 30, 1996 event, but in greater detail. She described that on

that day, she was awoken by her mother‘s screams and saw defendant pulling on

Yolanda‘s hair and dragging Shavonda by her leg brace in the presence of Little

Howie. Defendant warned Lawanda that if she continued watching, he would pull

Yolanda‘s hair harder. Defendant got on top of Yolanda. Because defendant‘s

and Yolanda‘s pants were down, it appeared he was trying to do something

―sexually.‖ Defendant ―tortured‖ Yolanda for hours. The next day, Yolanda‘s

head was sore. Lawanda identified a photograph of her mother depicting the head

injuries she suffered that night. Lawanda stated that before this incident,

defendant continually threw things around the house, argued with and threatened

Yolanda, and pushed her around.

Other witnesses provided further details about their relationship. During

the guilt and penalty phases, Yolanda‘s sister, Lucinda Buttler, testified that she

saw defendant push Yolanda out of the door when Yolanda did not want to leave

the house after her father‘s funeral and that Yolanda told her defendant was

abusive during the last year or two of their relationship. During the guilt phase,

Yolanda‘s brother, Quentin Buttler, testified that he saw and photographed

42



Yolanda‘s head injuries in December 1996, which Yolanda attributed to

defendant. Yolanda told Quentin that she was scared and wanted to leave

defendant because he had been beating her. Quentin advised Yolanda to seek the

restraining order. There was also evidence that defendant was controlling. He

would not allow Yolanda to visit her siblings.

Second, the declaration described events separate from the charged

incident. At the guilt phase, the trial court instructed the jury to consider the

contents of the declaration for the limited purpose of showing malice and intent at

the time he committed the charged crime. It further admonished the jury it was

not to consider that evidence as showing defendant was a bad person or of bad

character or was prone to commit acts of violence. Indeed, during the guilt phase

closing argument, the prosecutor advised the jury that ―we‘ve put on a lot of

evidence that may make the defendant sound like a bad guy. But you should not

think of him as a bad guy . . . or convict him because you may not like him, may

not think he‘s a good guy.‖

Finally, the evidence of the murder was overwhelming. After discovering

that Yolanda had taken the children and left, defendant hunted her down; he went

from one member of her family to the next, and angrily threatened to kill them.

During the penalty phase, defendant stated that he wanted to ruin Yolanda‘s life

because she had ruined his life and that she would regret leaving him. He carried

out his threat in a horrific manner, first by pouring gasoline on Yolanda‘s car,

where her disabled young niece was trapped in the backseat and then by pouring

gasoline over Yolanda‘s body and setting her on fire in front of her children and

others. Moreover, the note in the glove compartment of defendant‘s car reflects

that defendant intended to kill Yolanda.

Any error in admitting Yolanda‘s declaration was harmless beyond a

reasonable doubt.

43



3. Sufficiency of the Evidence

Defendant contends the evidence, in several respects, was insufficient to

support the judgment. In reviewing a criminal conviction challenged as lacking

evidentiary support, ― ‗the court must review the whole record in the light most

favorable to the judgment below to determine whether it discloses substantial

evidence—that is, evidence which is reasonable, credible, and of solid value—

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

reasonable doubt.‘ [Citation.]‖ (People v. Hillhouse (2002) 27 Cal.4th 469, 496.)

The same standard of review applies to special-circumstance allegations. (People

v. Maury (2003) 30 Cal.4th 342, 396.) ―An appellate court must accept logical

inferences that the jury might have drawn from the evidence even if the court

would have concluded otherwise.‖ (People v. Combs (2004) 34 Cal.4th 821, 849.)

a. First Degree Murder Conviction; Torture and Lying-in-wait

Special-circumstance Findings

The prosecution tried the case and the trial court instructed on three theories

of first degree murder: (1) deliberate and premeditated murder; (2) torture murder;

and (3) murder by lying in wait. Defendant contends that the evidence was

insufficient to support the first degree murder conviction on any of these theories.

He makes the same contention as to the special-circumstance findings. For the

same reason, he also claims that the trial court improperly instructed the jury on

each of the three theories of first degree murder. As explained below, we

conclude that there was substantial evidence to support all three theories and the

special-circumstance findings. Because we conclude substantial evidence

supports a conviction of first degree murder based on theories of premeditation

and deliberation, torture murder, and lying-in-wait, we necessarily reject

defendant‘s additional claim that instructions on these theories were not justified

by the evidence.

44



1) Deliberate, Premeditated Murder

Defendant contends that the prosecution presented insufficient evidence of

premeditation and deliberation because none of the categories of evidence set forth

in People v. Anderson (1968) 70 Cal.2d 15 were met in this case. In Anderson, we

―identified three categories of evidence relevant to resolving the issue of

premeditation and deliberation: planning activity, motive, and manner of killing.‖

(People v. Bolin (1998) 18 Cal.4th 297, 331.) ―However, these factors are not

exclusive, nor are they invariably determinative.‖ (People v. Combs, supra, 34

Cal.4th at p. 850.) ― ‗Anderson was simply intended to guide an appellate court's

assessment whether the evidence supports an inference that the killing occurred as

the result of preexisting reflection rather than unconsidered or rash impulse.

[Citation.]‘ ‖ (People v. Bolin, supra, 18 Cal.4th at pp. 331-332.)

As to planning and motive, defendant argues that although he was

distraught about his failed relationship with Yolanda, the evidence showed only

that he planned to meet with Yolanda, visit with his son, Little Howie, and try to

win her back. He contends it does not show that he intended to kill her. As to the

manner of killing, defendant argues that the evidence showed the killing was a

rash, impulsive explosion of violence brought on by his having to wait for

Yolanda, who was late. In so arguing, defendant primarily relies on his own

testimony, and asks us to reject any incriminating inferences that the jury could

have reasonably deduced from the prosecution‘s evidence.

The evidence in all three categories was overwhelming. The prosecution‘s

evidence showed that defendant was controlling toward Yolanda, that he

repeatedly physically abused Yolanda, and that Yolanda was afraid of him to the

extent that she sought a restraining order against him and secretly left him and hid

in a hotel instead of staying at her sister‘s house. When he was trying to find

Yolanda and Little Howie, defendant went to the houses of Yolanda‘s siblings and

45



broke the window of a van, and threatened to kill members of Yolanda‘s family if

they did not reveal her whereabouts. Victor Buttler testified that when defendant

came to his house, he had a gun. Thus, defendant was furious with Yolanda for

taking Little Howie and leaving, and was prepared to use violence to find her.

Indeed, the evidence showed that defendant planned to use violence against

Yolanda. The police found a note written by defendant to his parents in the glove

compartment of his car. In the note, defendant apologized for his death and asked

his parents to raise his son, Little Howie, to tell him that he was ―sorry‖ for what

he did to Yolanda, and to warn him to ―never fall in love‖ with a woman. He

admitted that he knew what he did to Yolanda was wrong, but that she did not

deserve ―to live like me.‖

As he testified at trial, defendant argues that the note was simply a suicide

note and that the reference to Yolanda did not mean that she did not deserve to

live, but that she did not deserve to live the same lifestyle as defendant. However,

the jury was entitled to reject defendant‘s explanation. Instead, it could have

reasonably understood the note as expressing his belief that Yolanda did not

deserve to live. In other words, it could have understood it as a murder-suicide

note. Given the note‘s many grammatical and spelling errors, the jury could have

reasonably believed that defendant omitted a comma and meant to state that

Yolanda did not deserve ―to live, like me.‖

As he testified at trial, defendant also argues that the statement, ―I know

what I did to Yolanda is wrong‖ referred to the earlier December 30, 1996

incident, not to an intent to hurt Yolanda in the future. Although defendant

actually wrote the note several days earlier, the note was dated April 27, 1997, the

day defendant burned Yolanda. Thus, the jury could have reasonably concluded

that defendant intended the note to be discovered after he burned Yolanda, and

46



after he and Yolanda were dead, and that was why defendant asked his parents to

care for Little Howie.

Moreover, the jury could have reasonably concluded that defendant planned

the precise manner of killing. Defendant stated that he arrived on time at 4:00

p.m. to meet Yolanda and the children and became angry and frustrated because

they were late. However, the jury could have reasonably rejected his testimony

that they were late, since the 911 call reporting Yolanda on fire was received at

3:21 p.m. Yolanda‘s son, Patrick, stated that defendant appeared nervous as they

drove up to the Chuck E. Cheese restaurant. The police found that the gas cap

from defendant‘s car was on the car‘s bumper and that the car‘s steering wheel

was locked by a Club device. Thus, the jury could have reasonably concluded that

defendant came early, before Yolanda‘s arrival, and siphoned gasoline out of his

gas tank to fill the plastic container he intended to use to pour gasoline on

Yolanda. Further, it could have reasonably rejected defendant‘s testimony that he

only intended to take his son on a drive. Instead, it could have reasonably

concluded that defendant placed Little Howie in his car for his safety, so that he

could then beat and incapacitate Yolanda to enable him to pour gasoline on her

and her car, and set her on fire.

Finally, the manner of killing itself demonstrates premeditation and

deliberation. The evidence revealed that defendant was still angry at Yolanda for

leaving him and taking his son. Edward Jasso testified that, while beating

Yolanda, defendant looked angry and called her a ―fucking bitch.‖ Moreover, the

evidence showed that defendant‘s acts occurred in stages. Defendant beat and

kicked Yolanda repeatedly, then stopped to retrieve the plastic container from his

car. He returned to Yolanda and poured gasoline on her. He dragged Yolanda to

his car, but then released her to retrieve a cigarette lighter from his car. He then

chased her and set her on fire. Thus, the jury could have reasonably concluded

47



that defendant had many opportunities to consider and reflect on his actions, but

chose to continue with his plan to set Yolanda on fire and kill her. (See People v.

Mayfield (1997) 14 Cal.4th 668, 767 [premeditation and deliberation does not

require extended period of time; ― ‗[t]houghts may follow each other with great

rapidity and cold, calculated judgment may be arrived at quickly‘ ‖].) As the

prosecutor argued, no one intentionally throws gasoline on a person and sets them

on fire if he or she does not intend to kill that person.

The evidence shows that defendant had a motive and committed the killing

in the manner he had planned. We find ample evidence of premeditation and

deliberation.

2) Torture Murder; Torture Special-circumstance Finding

Defendant contends that the prosecution presented insufficient evidence to

support the first degree murder conviction based on a torture-murder theory and

the torture special-circumstance finding.

First degree murder includes a murder perpetuated by means of torture.

(§ 189.) ― ‗The elements of torture murder are: (1) acts causing death that involve

a high degree of probability of the victim's death; and (2) a willful, deliberate, and

premeditated intent to cause extreme pain or suffering for the purpose of revenge,

extortion, persuasion, or another sadistic purpose.‘ [Citation.]‖ (People v.

DArcy, supra, 48 Cal.4th at p. 293.) Murder by torture does not require that a

defendant have an intent to kill or that the victim be aware of the pain. (People v.

Cook (2004) 39 Cal.4th 566, 602.) The jury may infer the intent to inflict extreme

pain from the circumstances of the crime, the nature of the killing, and the

condition of the victim's body. (People v. Chatman, supra, 38 Cal.4th at p. 390.)

We also have ― ‗cautioned against giving undue weight to the severity of the

victim's wounds, as horrible wounds may be as consistent with a killing in the heat

48



of passion, in an ―explosion of violence,‖ as with the intent to inflict cruel

suffering.‘ ‖ (People v. Cole, supra, 33 Cal.4th at pp. 1213-1214.)

Defendant argues that the only reasonable interpretation of the evidence is

that the acts of pouring gasoline on Yolanda and setting her on fire was simply an

unplanned, impulsive explosion of violence resulting from a fight that spun out of

control. Again, defendant relies primarily on his own testimony at trial, while

ignoring the prosecution‘s evidence and the reasonable inferences to be drawn

therefrom. Given defendant‘s prior physical abuse of Yolanda, his attempts to

control her by preventing communication with her family, his anger with Yolanda

for leaving him and taking his child, and concealing her whereabouts, and the

repeated threats against Yolanda‘s family, the jury could have reasonably

concluded that when defendant intentionally set Yolanda on fire as he had

planned, he intended to cause Yolanda extreme pain and suffering as punishment

or for revenge. (See e.g., People v. Cole, supra, 33 Cal.4th at p. 1214 [torture-

murder conviction supported by evidence of prior tumultuous domestic

relationship, victim‘s plan to leave defendant, threats against victim, and manner

of killing victim by burning her with flammable liquid].) As the prosecutor

argued, someone who sets a person on fire with gasoline clearly intends to inflict

extreme and prolonged pain on that person. Moreover, after defendant set

Yolanda on fire, he fled from the scene and failed to aid in rescue attempts. (See

People v. Martinez (1952) 38 Cal.2d 556, 561 [defendant burned wife with

gasoline and failed to aid in and hindered rescue attempts].) Such evidence,

together with the resulting condition of Yolanda‘s body and her painful, prolonged

death 10 days later ―permitted an inference that defendant set [the victim] on fire

with the intent to inflict extreme pain for the purpose of revenge.‖ (People v.

DArcy, supra, 48 Cal.4th at p. 294; see also People v. Whisenhunt, supra, 44

Cal.4th at p. 201 [victim‘s wounds inflicted by defendant‘s attack and

49



incapacitation of victim, and methodical burn wounds inflicted with hot cooking

oil on victim‘s body supported jury‘s finding defendant had willful, deliberate, and

premeditated intent to cause extreme pain or suffering for sadistic purpose].) The

nature of Yolanda‘s wounds and the circumstances surrounding the killing provide

sufficient support for a first degree murder conviction premised on a torture-

murder theory. The jury could reasonably reject defendant‘s testimony to the

contrary.

We further conclude sufficient evidence supported the jury‘s true finding

on the torture-murder special-circumstance allegation. The special circumstance

requires that a murder be ―intentional‖ and ―involv[e] the infliction of torture,‖

which includes a torturous intent. (§ 190.2, subd. (a)(18); People v. Whisenhunt,

supra, 44 Cal.4th at p. 202; People v. Elliot, supra, 37 Cal.4th at pp. 469, 479.)

As reflected above, the evidence supports the jury‘s conclusion that defendant

intended to kill Yolanda, and that the murder involved the infliction of torture.

3) Murder by Lying In Wait; Lying-in-wait Special-

circumstance Finding

Defendant contends that the evidence was insufficient to support the lying-

in-wait special-circumstance finding because the murder was not committed

―while‖ lying in wait and his true concealed purpose was to take Yolanda‘s son

and not to murder her. He is wrong.

At the time of defendant‘s crime, the special circumstance required that the

murder be committed ―while lying in wait.‖7 (§ 190.2, former subd. (a)(15);

People v. Lewis, supra, 43 Cal.4th at pp. 511-512.) Also, at that time, ―the


7

In March 2000, the language of the lying-in-wait special circumstance was

changed to delete the word ―while‖ and substitute the phrase ―by means of.‖
(Stats. 1998, ch. 629, § 2, p. 4165; see People v. Lewis (2008) 43 Cal.4th 415, 512,
fn. 25.)

50



requirements of the lying-in-wait special circumstance were slightly different

from, and more stringent than, the requirements for lying-in-wait first degree

murder. [Citation.] Whereas lying-in-wait first degree murder required only that

the murder be perpetrated ‗by means of‘ lying in wait (§ 189), the lying-in-wait

special circumstance applied to murder committed ‗while lying in wait‘ (§ 190.2,

former subd. (a)(15), italics added).‖ (People v. Lewis, supra, 43 Cal.4th at pp.

511-512.) Further, the lying-in-wait special circumstance requires intent to kill,

while lying-in-wait murder requires only a wanton and reckless intent to inflict

injury likely to cause death. (People v. Moon (2005) 37 Cal.4th 1, 24, fn. 1.) As

shown below, because the evidence supports the special circumstance, it

necessarily supports the theory of lying-in-wait first degree murder.

― ‗ ―The lying-in-wait special circumstance requires ‗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 . . . .‘ [Citations.] ‗The element of concealment is satisfied by a

showing ― ‗that a defendant's true intent and purpose were concealed by his

actions or conduct. It is not required that he be literally concealed from view

before he attacks the victim.‘ ‖ ‘ [Citation.]‖ [Citation.]‘ [Citation.]‖ (People v.

Combs, supra, 34 Cal.4th at p. 853.)

First, the evidence established that defendant concealed his intent to kill

Yolanda. From the note to his parents, the jury could have reasonably concluded

that defendant intended to kill Yolanda. He concealed his purpose by luring

Yolanda to the restaurant under the pretext of an attempted reconciliation and a

familial visit. Patrick testified that defendant had been calling Yolanda, claiming

he wanted to reconcile with her. Defendant testified that he had convinced

Yolanda to bring the children to meet him once before, and that the meeting had

51



occurred without incident. Defendant further testified that he told Yolanda he

wanted to get back together with her, and when she refused he told her he might

do something to himself. She then agreed to meet him at the Chuck E. Cheese

restaurant. (See People v. Sims (1993) 5 Cal.4th 405, 433 [defendant lured victim

to motel room on pretext of ordering pizza, concealing true intent to rob and

murder him].) Moreover, from the removed gas cap from defendant‘s car, the jury

could have reasonably concluded that defendant prepared the instruments of her

killing before Yolanda‘s arrival at the restaurant.

Defendant claims that there is no evidence his concealed purpose was a

murderous one. Instead, he argues the evidence shows that his pretextual request

to see Yolanda concealed his true purpose of taking his son from her. Again,

defendant focuses solely on his own testimony. In contrast, the prosecution‘s

evidence revealed that before Yolanda arrived, defendant locked his steering

wheel, which was not conducive to a quick getaway with his son. Moreover,

defendant had the opportunity to leave after he secured Little Howie in his car, but

did not. Indeed, as the Attorney General points out, the defense did not even argue

to the jury that defendant‘s true concealed purpose was to take his son from

Yolanda. The evidence supports the jury‘s finding that defendant concealed his

intent to kill Yolanda.

Second, the evidence showed that defendant engaged in a substantial period

of watching and waiting for an opportune time to act. ―Watchful‖ does not require

actual watching; it can include being ―alert and vigilant‖ in anticipation of the

victim‘s arrival to take him or her by surprise. (People v. Sims, supra, 5 Cal.4th at

p. 433.) The jury could have reasonably concluded that defendant was at the

restaurant long enough to secure his car with the Club locking device and remove

gasoline from his gas tank to fill up the plastic container in his trunk. Defendant

testified that he waited for Yolanda for 30 to 40 minutes. Although defendant

52



testified that he and Yolanda planned to meet at 4:00 p.m., the 911 call reporting

Yolanda on fire was received at 3:21 p.m. The jury could have reasonably

concluded that if Yolanda was early for the meeting, defendant arrived even

earlier and waited to take her by surprise. According to Patrick, defendant was

clapping his hands and appeared nervous when they arrived at the restaurant.

Thus, the evidence reflects that defendant was waiting nervously for Yolanda‘s

arrival to set his deadly plan in motion.

Finally, the evidence reflects that immediately after the period of watching

and waiting, defendant launched a surprise attack on the unsuspecting victim from

a position of advantage. Immediately after Yolanda‘s arrival, defendant grabbed

Little Howie and placed him in his car. From this evidence, the jury could have

reasonably inferred that defendant placed his son there for safety purposes, to

protect him from the fire defendant intended to start. When Yolanda attempted to

retrieve her son, she and defendant began to argue and push each other. Defendant

beat and kicked Yolanda and returned to his car to retrieve the gasoline, which he

then poured on Yolanda‘s car and on Yolanda. He then beat her again and

grabbed her by the hair and attempted to drag her back to his car to get something

with which to ignite the gasoline. Finally, defendant let Yolanda go and went to

his car for the lighter. Yolanda tried to get away, but defendant caught her and set

her on fire.

Defendant argues that there was insufficient evidence the killing took place

―while lying in wait‖ (§ 190.2, former subd. (a)(15)), i.e., ― ‗during the period of

concealment and watchful waiting.‘ ‖ (People v. Lewis, supra, 43 Cal.4th at p.

512.) ―Although we have not defined the parameters of a murder committed

‗during the period of concealment and watchful waiting,‘ the language of

[CALJIC No. 8.81.15 (1989 rev.)] supplies meaning to that phrase. That

instruction stated: ‗Thus, for a killing to be perpetrated while lying in wait, both

53



the concealment and watchful waiting as well as the killing must occur during the

same time period, or in an uninterrupted attack commencing no later than the

moment concealment ends. [¶] If there is a clear interruption separating the

period of lying in wait from the period during which the killing takes place, so that

there is neither an immediate killing nor a continuous flow of the uninterrupted

lethal events, the special circumstance is not proved.‘ ‖ (People v. Lewis, supra,

43 Cal.4th at p. 512.) Here, the trial court instructed the jury in the language of

CALJIC No. 8.81.15.

Yolanda met with defendant under the belief he wanted a reconciliation and

to visit with Little Howie. Instead, defendant launched a surprise attack with the

intent to set her on fire. It began with the preparatory step of taking Little Howie

away from his mother, and was followed immediately with the beating of Yolanda

when she attempted to retrieve her son and the lethal acts of dousing Yolanda with

gasoline and igniting it. Although there were discrete events during which

defendant beat Yolanda, went to his car to retrieve gasoline and the lighter, and

poured gasoline on Yolanda and lit it, the time between each event took only

minutes or seconds. Thus, contrary to defendant‘s claim, ―no ‗cognizable

interruption‘ occurred between the period of watchful waiting and the

commencement of the murderous and continuous assault which ultimately caused

her death.‖ (People v. Morales (1989) 48 Cal.3d 527, 558; People v. Carpenter

(1997) 15 Cal.4th 312, 389 [end of lying in wait, attempted rape, and killing

occurred within minutes]); compare with People v. Lewis, supra, 43 Cal.4th at pp.

511, 514-515 [cognizable interruption occurred between period of watchful

waiting and killings, when defendant and accomplices kidnapped victims and

proceeded to drive them to ATM machines from which he withdrew their funds

before killing them]; Domino v. Superior Court (1982) 129 Cal.App.3d 1000,

1011-1012 [cognizable interruption when defendant killed victim hours after

54



kidnapping that was preceded by period of lying in wait].) Moreover, the jury

could reasonably find no lapse in defendant‘s culpable mental state between the

homicide and the period of watchful waiting. (People v. Lewis, supra, 43 Cal.4th

at p. 514, quoting People v. Carpenter, supra, 15 Cal.4th at p. 389 [no cognizable

interruption where no lapse in defendant‘s culpable mental state].)

Defendant argues that Yolanda was not surprised as evidenced by her

attempt to flee when defendant retrieved the plastic container. However, the

attack on her had already begun. Initially, on seeing defendant as planned and on

having had a prior, peaceful meeting with defendant, Yolanda would not

immediately have suspected she was in danger and could not have anticipated

defendant‘s deadly intentions. (See e.g., People v. Moon, supra, 37 Cal.4th at pp.

22, 24 [being well acquainted with defendant, victim would not immediately

suspect danger].) Also, because it appeared that the prior domestic assaults on

Yolanda occurred within the privacy of their home, the jury could reasonably infer

that she could not have anticipated that defendant would beat her in public and

certainly not set her on fire there. (See e.g., People v. Stevens (2007) 41 Cal.4th

182, 203 [defendant lured victim into vulnerable position by creating or exploiting

false sense of security].)

Because we find that substantial evidence supports the lying-in-wait special

circumstance, we also conclude there was substantial evidence to support the

lying-in-wait theory of first degree murder.

Defendant contends that if we conclude the evidence is sufficient to support

the lying-in-wait special-circumstance finding here, then the special circumstance

is unconstitutional as applied to this case. In essence, defendant argues that the

lying-in-wait special circumstance is too broad if the facts of this case fall within

it. ―That is simply another way to state his facial attack on the statute, which we

have rejected [below]. [Citation.]‖ (People v. Lewis, supra, 43 Cal.4th at p. 517.)

55



4. Unconstitutionality of the Torture Special-circumstance and Murder

by Torture Instructions

The trial court instructed the jury with CALJIC No. 8.81.18, directing that a

true finding as to the torture special circumstance required proof that defendant

intended to kill a human being; that defendant ―intended to inflict extreme cruel

physical pain and suffering upon a living human being for the purpose of revenge,

extortion, persuasion or for any sadistic purpose;‖ and that defendant ―did, in fact,

inflict extreme cruel physical pain and suffering upon a living human being no

matter how long its duration.‖

Defendant contends that the language ―extreme cruel physical pain‖ and

―any sadistic purpose‖ renders the instruction unconstitutionally vague and

overbroad. He further claims that the trial court‘s giving of CALJIC No. 8.24,

which used similar language (―extreme and prolonged pain . . . for . . . any sadistic

purpose‖) regarding first degree murder by torture, is also too vague. We have

previously rejected such claims and do so again here. (People v. Whisenhunt,

supra, 44 Cal.4th at p. 223; People v. Cook, supra, 39 Cal.4th at p. 602; People v.

Chatman, supra, 38 Cal.4th at pp. 394-395; People v. Raley (1992) 2 Cal.4th 879,

898-902.)

Defendant further claims that the giving of CALJIC No. 8.81.18 confused

the jury by stating that defendant must have inflicted pain, but the victim‘s

awareness of pain was not required. We have rejected this contention before and

continue to do so. (People v. Chatman, supra, 38 Cal.4th at p. 394; People v.

Cole, supra, 33 Cal.4th at p. 1228.) Moreover, although the instruction included

the requirement involving the infliction of extreme cruel physical pain on a living

victim, that requirement was eliminated by the enactment of Proposition 115 in

1990. (People v. Elliot, supra, 37 Cal.4th at pp. 453, 476-477.) Because the 1990

amendment governs this case, the required finding of an additional but

56



unnecessary ―element‖ could redound only to defendant‘s benefit. (See People v.

Cole, supra, 33 Cal.4th at p. 1228.)

Finally, contrary to defendant‘s claim, the special circumstance of

intentional murder involving the infliction of torture does not violate the Eighth

Amendment by failing to narrow the class of persons eligible for the death penalty.

(People v. Jennings (2010) 50 Cal.4th 616, 649; People v. Bemore (2000) 22

Cal.4th 809, 843; People Barnett (1998) 17 Cal.4th 1044, 1162-1163; see People

v. Davenport (1985) 41 Cal.3d 247, 271 [torture special circumstance

distinguished from murder by torture by requiring intent to kill].)

5. Unconstitutionality of Lying-in-wait Special Circumstance and

Instructions

Defendant claims that CALJIC No. 8.81.15, the lying-in-wait special-

circumstance instruction given in this case, omitted key elements. First, he

contends that the standard instruction failed to explain to the jury that the

concealed purpose must be an intent to kill and that the watchful waiting had to be

for a time to launch a lethal attack. He argues that because the evidence supported

a finding that his true concealed intent was to take his son, the instructions would

have permitted the jury to find that the concealment and watchful waiting elements

were satisfied based only on such a nonlethal intent. He is wrong.

CALJIC No. 8.81.15 instructed that ―for a killing to be perpetuated while

lying in wait‖: (1) the killing must be intentional and (2) ―both the concealment

and watchful waiting as well as the killing must occur during the same time

period, or in an uninterrupted attack commencing no later than the moment

concealment ends.‖ In addition, the instruction required an immediate killing or a

continuous flow of the uninterrupted lethal events from the period of lying in wait.

(Ibid.) Finally, the instruction stated that, ―[W]hen a defendant intentionally

murders another person, under circumstances which include (1) a concealment of

57



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, the special circumstance of murder while lying in

wait has been established.‖ (Ibid.) Because the instruction required an intentional

killing and an uninterrupted connection between the lethal acts and the period of

lying in wait, a reasonable jury would not have believed that the nonlethal act and

intent of taking Little Howie would have satisfied the requirements of

concealment of purpose and watchful waiting to act.

Second, defendant contends that the special instructions given by the court

at the prosecutor‘s request, together with CALJIC No. 8.81.15, failed to instruct

on an intent to kill and eliminated the immediacy of attack requirement. Again, he

is wrong.

The prosecutor requested three special instructions on lying in wait.

Although defendant objected to special instructions 1 and 3, the trial court gave all

three special instructions. Special instruction 1 emphasized that the special

circumstance of lying in wait — unlike lying-in-wait murder — required that the

killing be committed ―while‖ lying in wait. Elaborating on the distinction, special

instruction 3 explained: ―Use of the word ‗while‘ in the special circumstance of

lying in wait means that the killing must take place during the period of

concealment and watchful waiting or the lethal acts must begin at and flow

continuously from the moment the concealment and watchful waiting ends. If a

cognizable interruption separates the period of lying in wait from the period during

which the killing takes place, the special circumstance does not exist. A brief

interval of time between the killer‘s first appearance and the acts inflicted which

cause the killing do not necessarily negate a surprise attack, so long as there is a

continuous flow in the culpable state of mind between the period of watchful

waiting and the homicide.‖

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Focusing on the last sentence of special instruction 3, defendant claims that

because ―it is not clear to what culpable state of mind the instruction refers,‖ the

jury ―could equate culpable mental state with one that is non-lethal or merely

deceitful,‖ i.e., that defendant‘s intent was to take his son from Yolanda by a ruse.

However, when considered with CALJIC No. 8.81.15, it is clear that the necessary

―culpable state of mind‖ was the intent to kill. Moreover, during closing

argument, the prosecutor emphasized the requirement of intent to kill. Thus, there

is no reasonable likelihood the jury misapplied the instruction in the manner

defendant claims. (People v. Huggins (2006) 38 Cal.4th 175, 192.)

Defendant further claims that the last sentence of special instruction 3 told

the jury that ― ‗the continuous flow‘ only need be ‗the culpable state of mind‘

regardless of the actual events that had occurred‖ and that a continuous flow of

the lethal events was not required. Again, defendant focuses on an isolated

sentence rather than the full context. The first sentence of special instruction 3

told the jury that ―the lethal acts must begin at and flow continuously from the

moment the concealment and watchful waiting ends.‖ CALJIC No. 8.81.15 also

told the jury that ―If there is a clear interruption separating the period of lying in

wait from the period during which the killing takes place, so that there is neither

an immediate killing nor a continuous flow of the uninterrupted lethal events, the

special circumstance is not proved.‖ (Italics added.) The instruction further stated

that the surprise attack must occur immediately after the period of watching and

waiting. Considered as a whole, the instructions clearly conveyed the immediacy

requirement regarding the lethal acts.

Finally, defendant contends that the lying-in-wait special circumstance is

unconstitutional because there is no meaningful distinction between the special

circumstance, and premeditated, deliberate murder and murder by means of lying

in wait. He also argues the special circumstance does not meaningfully

59



distinguish death eligible defendants from those not death eligible. We have

rejected these contentions before and continue to do so. (People v. Stevens, supra,

41 Cal.4th at pp. 203-204; People v. Nakahara (2003) 30 Cal.4th 705, 721; People

v. Gutierrez (2009) 28 Cal.4th 1083, 1148-1149.)

6. Unconstitutionality of Jury Instructions Assertedly Affecting

Reasonable Doubt Standard

Without objection, the trial court gave the standard instructions on (1)

circumstantial evidence (CALJIC Nos. 2.01 [sufficiency of circumstantial

evidence-generally], 2.02 [sufficiency of circumstantial evidence to prove specific

intent], 8.83 [sufficiency of circumstantial evidence to prove the special

circumstance], and 8.83.1 [sufficiency of circumstantial evidence to prove mental

state]); (2) the definition of reasonable doubt (CALJIC Nos. 2.90); (3) motive

(CALJIC Nos. 2.51); and (4) other general principles (CALJIC Nos. 1.00

[respective duties of judge and jury], 2.21.1 [discrepancies in testimony], 2.21.2

[witness willfully false], 2.22 [weighing conflicting testimony], 2.27 [sufficiency

of testimony of one witness], 8.20 [deliberate and premeditated murder]).

Defendant claims that those instructions, singly and collectively, impermissibly

diluted the reasonable doubt standard.

We have repeatedly rejected the same challenges to all of these instructions.

(People v. Parson (2008) 44 Cal.4th 332, 358; People v. Whisenhunt, supra, 44

Cal.4th at pp. 220-221; People v. Howard (2008) 42 Cal.4th 1000, 1025-1026 &

fn. 14; People v. Kelly (2007) 42 Cal.4th 763, 792.) Each of these instructions ―

‗is unobjectionable when, as here, it is accompanied by the usual instructions on

reasonable doubt, the presumption of innocence, and the People‘s burden of

proof.‘ ‖ (People v. Kelly, supra, 42 Cal.4th at p. 792.)

60



7. Flight instruction

The trial court instructed the jury, pursuant to CALJIC No. 2.52, that a

person‘s flight immediately after a crime, or after he or she is accused of a crime,

cannot alone establish guilt, but may be considered together with other proven

facts in deciding the defendant‘s guilt or innocence. Defendant does not contend

that the instruction was not supported by the evidence. Rather, he claims that the

giving of this instruction violated his constitutional rights because it unnecessarily

duplicated the circumstantial evidence instructions, was impermissibly

argumentative, and improperly permitted the jury to draw irrational inferences

concerning defendant‘s mental state before or during the killing.

Contrary to defendant‘s claim, CALJIC No. 2.52 is not a duplicate

instruction. CALJIC Nos. 2.00, 2.01, and 2.02 instructed on the definition of

circumstantial evidence and its sufficiency in establishing facts to establish guilt.

On the other hand, CALJIC No. 2.52 was a cautionary instruction that benefitted

the defense by ―admonishing the jury to circumspection regarding evidence that

might otherwise be considered decisively inculpatory.‖ (People v. Jackson (1996)

13 Cal.4th 1164, 1224.)

Regarding the remaining claims, we repeatedly have rejected these

challenges to the instruction. (People v. Loker (2008) 44 Cal.4th 691, 706-707;

People v. Howard, supra, 42 Cal.4th at p. 1021; People v. Morgan (2007) 42

Cal.4th 593, 621; People v. Zambrano (2007) 41 Cal.4th 1082, 1160; People v.

Thornton (2007) 41 Cal.4th 391, 438; People v. Jurado (2006) 38 Cal.4th 72, 125-

126.)

8. Failure to instruct that jurors must agree unanimously on theory of

first degree murder

The trial court instructed the jury on first degree premeditated murder, first

degree murder by torture, and first degree murder perpetuated by means of lying in

61



wait. The court did not instruct the jury that it must agree unanimously on a

theory of first degree murder to find him guilty of that charge. Defendant argues

that this instructional omission was prejudicial error. We rejected the identical

claim in People v. Cole, supra, 33 Cal.4th 1158, where the jury was instructed on

the same theories of first degree murder as in this case. (Id. at p. 1221; see also

People v. Whisenhunt, supra, 44 Cal.4th at p. 222.) In any event, the jury

unanimously found true the torture-murder and lying-in-wait special-circumstance

allegations. Therefore, the jury unanimously agreed that defendant committed the

crime of first degree murder on both theories of torture murder and lying-in-wait

murder. (People v. Moon, supra, 37 Cal.4th at p. 22; People v. Cole, supra, 33

Cal.4th at pp. 1226-1227; see People v. Hawthorne, supra, 46 Cal.4th at pp. 89-

90.)

D. Penalty Phase Issues

1. Failure to give CALJIC No. 8.88

Defendant claims that the trial court‘s failure to instruct the jury on the

process of weighing the aggravating and mitigating factors to determine the

appropriate penalty, in the language of CALJIC No. 8.88, requires reversal of the

penalty judgment. We conclude that based on the whole record including the

instructions given, arguments of counsel, and the court‘s response to the jury‘s

note during deliberations, the failure to instruct on the procedure used in

determining penalty, though error, was harmless in this case.

After defining the meaning of aggravating and mitigating factors,8 CALJIC

No. 8.88 instructs the jury on the procedure used in weighing the aggravating and


8

Because the words ―aggravating‖ and ―mitigating‖ are commonly

understood terms, a definitional instruction is not required. (People v. Brasure,
supra, 42 Cal.4th at p. 1066.)

62



mitigating circumstances in determining the appropriate penalty. It states, in

relevant part:

―The weighing of aggravating and mitigating circumstances does not mean

a mere mechanical counting of factors on each side of an imaginary scale, or the

arbitrary assignment of weights to any of them. You are free to assign whatever

moral or sympathetic value you deem appropriate to each and all of the various

factors you are permitted to consider. In weighing the various circumstances, you

determine under the relevant evidence which penalty is justified and appropriate

by considering the totality of the aggravating circumstances with the totality of the

mitigating circumstances. To return a judgment of death, each of you must be

persuaded that the aggravating circumstances are so substantial in comparison

with the mitigating circumstances that it warrants death instead of life without

parole.‖

It appears that the trial court intended to give CALJIC No. 8.88, but

inadvertently omitted part of the instruction, including the above paragraph. The

record indicates that the trial court meant to divide the instruction into two parts

and to give each part separately. It gave a modified version of the second part of

CALJIC No. 8.88 as the concluding instruction, but inexplicably failed to give the

first part of the instruction.9

CALJIC No. 8.88 was drafted in response to People v. Brown (1985) 40

Cal.3d 512 (Brown). Former CALJIC No. 8.84.2 (the predecessor to CALJIC No.

9

The trial court instructed: ―You shall now retire and select one of your

number to act as foreperson. He or she will preside over your deliberations. In
order to make a determination as to the penalty, all twelve jurors must agree. As
soon as you have agreed upon a verdict so that, when polled, each may state
truthfully that the verdict expresses his or her vote, have it dated and signed by
your foreperson and then return it to this courtroom. Return any unsigned verdict
forms.‖

63



8.88) instructed, in the unadorned language of section 190.3, that the jury ―shall‖

impose a sentence of death if it concludes that the aggravating circumstances

outweigh the mitigating circumstances. Conversely, it instructed that the jury

―shall‖ impose a sentence of confinement in state prison for life without possibility

of parole if it concludes that the aggravating circumstances do not outweigh the

mitigating circumstances. (People v. Myers (1987) 43 Cal.3d 250, 273; People v.

Allen (1986) 42 Cal.3d 1222, 1276.) In Brown, we held that an instruction using

this language could confuse and mislead the jury regarding the manner in which

penalty should be determined. (Brown, supra, 40 Cal.3d at p. 544, fn. 17.) ―One

danger is that the jury will perform the weighing process in a mechanical fashion

by comparing the number of factors in aggravation with the number in mitigation,

or by the arbitrary assignment of weights to the factors. [Citation.] The other

danger is that the jury will fail to understand that our statutory scheme does not

require any juror to vote for the death penalty unless, as a result of the weighing

process, the juror personally determines that death is the appropriate penalty under

all the circumstances. [Citations.]‖ (People v. Edelbacher (1989) 47 Cal.3d 983,

1035 (Edelbacher).)

Regarding pre-Brown cases, in which the trial court instructed in the

unadorned language of section 190.3, we stated we would examine each prior case

―on its own merits to determine whether, in context, the sentencer may have been

misled to defendant‘s prejudice about the scope of its sentencing discretion under

the 1978 law.‖ (Brown, supra, 40 Cal.3d at p. 544, fn. 17.)

Consequently, in such pre-Brown cases, we reviewed the whole record,

including the arguments of counsel, to determine whether instructing in the

unadorned statutory language and omitting clarifying language, may have mislead

the jury to defendant‘s prejudice concerning the proper scope of its sentencing

discretion. (See e.g., Edelbacher, supra, 47 Cal.3d at p. 1037; People v. Myers,

64



supra, 43 Cal.3d at p. 275 (Myers); People v. Allen, supra, 42 Cal.3d at pp. 1277-

1280 (Allen).)

In Allen, we held that it was not likely the jury was misled about the scope

of its sentencing discretion. In making that determination, we emphasized that the

prosecutor, during argument, did nothing to mislead the jury about the weighing

process and its weighing discretion, but that ―he in fact left it with the

understanding that the value to be assigned to the aggravating and mitigating

factors was a matter to be decided by each individual juror.‖ (Allen, supra, 42

Cal.3d at p. 1278.) Also, we noted that during argument, the prosecutor never

misled the jury about its sole responsibility of determining the appropriate penalty

based on its individualized weighing discretion, but instead focused on the

appropriateness of the death penalty under all the circumstances of the case. (Id.

at pp. 1278-1280.)

In Myers, we held that it was unlikely the jury was misled regarding the

first source of potential confusion — the nature of the weighing process —

identified in Brown. We relied on the fact that the prosecutor and defense counsel

correctly argued that the jury was free to ― ‗attach whatever weight is appropriate‘

to each of the relevant factors.‖ (Myers, supra, 43 Cal.3d at p. 275.) Regarding

the second source of potential confusion — the discretionary nature of the penalty

determination — identified in Brown, we concluded that there ―seem[ed] no

question but that the jury may well have been misled to defendant‘s prejudice.‖

(Ibid.) We noted that the prosecutor incorrectly argued that the penalty

determination was simply a weighing process, that the determination of penalty

was mandatory based on whether the aggravating or mitigating circumstances

preponderated, and that when the weighing process was completed, the jury could

not return a penalty verdict based on its personal preference. (Ibid.) In reversing

the death judgment, we further noted that ―the prosecutor‘s characterization of the

65



jury‘s function . . . was not refuted or corrected by the court‘s instructions.‖ (Id. at

p. 276.)

As in Allen and Myers, the trial court in Edelbacher instructed in the

unadorned language of section 190.3. In determining whether there was

substantial danger that the jury was misled with respect to the two sources of

potential confusion identified in Brown, we looked to the instructions given, the

arguments of counsel, and the trial court‘s failure to instruct on crucial aspects of

the penalty process. (Edelbacher, supra, 47 Cal.3d at pp. 1036-1041.)

Regarding the nature of the weighing process, we noted that the court gave

a supplemental explanatory instruction that told the jury it was not to determine

the ultimate punishment by simply counting the number of aggravating and

mitigating circumstances on each side, but to determine their weight by their

relative convincing force. On the other hand, the court refused to instruct that the

weight to be given any factor was to be decided by each juror individually. We

concluded that ―on the whole,‖ the arguments of counsel were ―not seriously

misleading‖ because the prosecutor and defense counsel correctly stated in

argument that the weighing process was qualitative and that the sheer number of

factors in aggravation or mitigation was not determinative. (Edelbacher, supra, 47

Cal.3d at p.1036.)

Regarding the discretionary nature of the penalty determination within the

context of the weighing process, we noted that the trial court did not inform the

jury that its responsibility, based on its individualized weighing discretion, was to

determine the appropriate penalty or that the weight to be given any factor was to

be decided by each juror individually. (Edelbacher, supra, 47 Cal.3d at pp. 1036-

1037.) We stated that, ―The failure to give any sufficient clarifying instruction on

this crucial aspect of the penalty determination process requires us to examine the

whole record, including the arguments of counsel, to determine whether the jury

66



may have been misled to defendant‘s prejudice concerning the proper scope of its

sentencing discretion.‖ (Edelbacher, supra, 47 Cal.3d at p. 1037.)

We noted that during argument, the prosecutor repeatedly emphasized that

the determination was simply a weighing process and that a death sentence was

mandatory if aggravating circumstances preponderated, without reference to the

jury‘s view of the appropriateness of the penalty. Although defense counsel

stressed the individualized and moral or normative nature of the penalty decision

(Edelbacher, supra, 47 Cal.3d at pp. 1037-1040), we reasoned that ―[t]he

prosecutor and defense counsel, through their arguments, constructed starkly

different models of the sentencing process‖ and there was ―no way of knowing

which model the jurors adopted in reaching their penalty verdict.‖ (Id. at p. 1040.)

Thus, there was a substantial danger the jury was misled with respect to the proper

context of the weighing process and the discretionary nature of the penalty

determination. (Id. at p. 1036.)

In People v. Brasure, supra, 42 Cal.4th 1037 (a post-Brown case), the trial

court substituted its own instruction for CALJIC No. 8.88. It told the jury it

― ‗shall impose a sentence of death if the jury concludes that the aggravating

circumstances outweigh the mitigating circumstances‘ ‖ and ―omitted the

language of CALJIC No. 8.88 providing that to return a death verdict each juror

‗must be persuaded that the aggravating circumstances are so substantial in

comparison with the mitigating circumstances that it warrants death instead of life

without parole.‘ ‖ (People v. Brasure, supra, 42 Cal.4th at pp. 1060-1061.)

After considering the totality of the instructions and arguments, we

concluded that there was no reasonable likelihood the trial court's failure to

instruct as directed in Brown misled the jurors as to the scope of their sentencing

discretion or responsibility. (People v. Brasure, supra, 42 Cal.4th at pp. 1062,

1064-1065.)

67



Unlike the above cases, the trial court here did not give a confusing or

misleading instruction, but failed to instruct the jury at all on the procedure used in

determining penalty. (See Henderson v. Kibbe (1977) 431 U.S. 145, 155 [―[a]n

omission, or an incomplete instruction, is less likely to be prejudicial than a

misstatement of the law‖].) However, after considering the instructions given, the

arguments of counsel, and the court‘s response to the jury‘s note during

deliberations, we conclude that the court‘s failure to instruct in the pertinent

language of CALJIC No. 8.88 did not mislead the jury or leave it without adequate

guidance as to the scope of their sentencing discretion or responsibility. (People v.

Brasure, supra, 42 Cal.4th at pp. 1062, 1064-1065; cf. People v. Moon, supra, 37

Cal.4th at p. 39 [omission of evidentiary instructions at penalty phase, though

error, was harmless; defendant failed to demonstrate that instructions given, to a

reasonable likelihood, precluded jury from considering any constitutionally

relevant mitigating evidence].)

Before the court instructed the jury, the parties gave their closing

arguments. Neither party objected to the opposing party‘s comments on the

procedure used in determining the appropriate penalty. During argument, the

prosecutor never suggested that the weighing process was a mechanical,

quantitative process, but instead told the jury it involved a qualitative process,

allowing each juror the choice to assign any moral or sympathetic value to each of

the factors. In this regard, the prosecutor argued:

―In this phase, you must consider any sympathetic aspect of the defendant‘s

character or anything else that he has coming to him for mitigation. You must

consider that and weigh it. That‘s only fair. So go ahead and do that.‖

The prosecutor further stated:

―If [defendant] deserves any sympathy, again, then give it to him. If he is

sincere about finding God, then good for him. But what he has done is simply not

68



sufficient to override — I‘m sorry — what he feels about sympathy is simply not

sufficient to override all this horrible stuff he‘s done here. The aggravating factors

clearly and substantially outweigh any of that.

―And none of you, in your jury questionnaires, said ‗Well, you know, I

don‘t care what a guy‘s done or how bad it is, as long as he says he‘s sorry. If he

says he‘s sorry, then I‘ll give him a pass. I‘ll let him have LWOP.‘ None of you

said that. And you shouldn‘t, of course. I mean, you take it into account, but

you‘re supposed to weigh it. If the aggravating circumstances outweighs

mitigating, that‘s what you do.

―His soul may belong to God, but under our law, his life belongs to the

State because of our system of justice, which requires that you weigh and consider

both. And if the aggravating substantially outweighs the mitigating, death penalty.

That‘s the way our law is. And that‘s what you must follow.‖

Defense counsel reinforced that the weighing function was a qualitative

assessment, explaining: ―Now you are free to assign your own sympathetic or

moral value to each one of these factors. The law doesn‘t — doesn‘t require you

to set certain values. You do this on your own values.‖

Moreover, unlike Myers and Edelbacher, the prosecutor never suggested

that a death sentence was mandatory if aggravating circumstances simply

preponderated, but instead conveyed that the penalty determination was

discretionary and rested on the jury‘s view of the appropriateness of the penalty.

He stated:

―In this case we‘re asking a very serious decision be made here. And I‘m

fully aware of how serious it is and what I‘m asking you to do. I‘m asking you to

give [defendant] the death penalty. And the way I‘m asking you to arrive at that

decision, which I believe to be the just decision, is to engage in a weighing

process.

69



―The judge is going to instruct you that what you need to do is to weigh all

these various aggravating and mitigating factors that we kind of touched upon in

the first part of the trial. And the notion is that you must weigh all of this together.

And if the aggravating factors, particularly A, B, and C, which I‘ll get to in a

second, if they substantially outweigh the mitigating factors and you believe thats

the proper verdict, then you should vote for the death penalty. And that‘s what

we‘re asking you to do here.‖10 (Italics added.)

As with the prosecutor, defense counsel reiterated the applicable standard

as set forth in CALIC No. 8.88. He told the jury that ―to return a judgment of

death, each of you must be persuaded that the aggravating circumstances . . . are

so substantial in comparison to the mitigating circumstances it warrants death

instead of life without possibility of parole. So the factors in aggravation have to

be so substantial in your mind in comparison to the mitigating factors that you are

going to kill this man.‖

10

Defendant claims that the prosecutor improperly argued that if the

aggravating circumstances outweighed the mitigating circumstances, death was
mandatory. He points to the following passage in which the prosecutor argued:
―The law says we give the death penalty where the aggravating factors
substantially outweigh the mitigating factors in a given case. That means there‘s a
line, a line you just don‘t cross. And if you cross that line, if you go over that line,
you go too far, then you‘ve done a crime that requires the death penalty. [¶] And
you need to ask yourselves and ask your hearts, is this the kind of crime that is so
heinous, so wicked, so mean spirited that it requires the death penalty? Even if
you find some sympathy for [defendant] for one reason or another, your job is to
act as the conscience of the community and to exercise your own conscience and
say, ‗I‘m sorry, [defendant]. I might feel sorry for you for this reason or that, but
you crossed the line, you went too far. You committed this most heinous of
murders.‖


When taken in context, the prosecutor was simply arguing that once the

floor has been established, where the aggravating factors substantially outweigh
the mitigating ones, the death penalty was the appropriate penalty in light of the
circumstances of the crime.

70



Also, defense counsel clarified even further the individualized and moral or

normative nature of both the weighing process and the ultimate, penalty

determination. He emphasized that the jury could apply sympathy or moral values

to specifically designated factors, stating ―[y]ou could apply some value to it,

sympathy or moral value of your own. You own feelings, not somebody elses.‖

(Italics added.) Counsel further emphasized that the final decision regarding

penalty was an individual one: ―[y]ou have to decide whether or not he lives or

dies. That has to come from you. You have to apply your sympathetic and moral

values that you have on your own.‖

Defense counsel concluded his argument with the final remarks:

―When you go back there and decide and think of this and look at this,

remember that the letter of the law allows you as an individual, as a person, to

decide whether or not you are going to accept a factor or you are going to apply

some less value to one factor than you will the other factor. That is you, as

individuals, must do that in your own conscience, your own way.

―We need each and every one of your decisions, your judgment. We need

for you to go in there and talk and discuss it with each other and not get angry with

each other, and discuss it with each other, so that you can come to a reasonable

verdict. Whatever the law requires. We need for you to listen to the others when

the others are against you or for the people that are against one or two persons.

Listen. The one or two persons, maybe they might have something to offer. But

whatever it is, we need each and every one of you individually to come up with a

decision.‖

The trial court then instructed that the jury was to determine which penalty

to impose, death or confinement in the state prison for life without possibility of

parole, and that the ―law expressly states that it voices no opinion as to which

penalty is preferred.‖ It instructed, in the language of CALJIC No. 8.85, that ―[i]n

71



determining which penalty is to be imposed on defendant, you shall consider all of

the evidence which has been received during any part of the trial of this case.‖

The court further enumerated various factors in aggravation and mitigation and

instructed that the jury ―shall consider, take into account and be guided by [those]

factors, if applicable.‖ (Ibid.) One of those factors told the jury to consider ―[a]ny

other circumstance which extenuates the gravity of the crime even though it is not

a legal excuse for the crime and any sympathetic or other aspect of the defendant‘s

character or record that the defendant offers as a basis for a sentence less than

death, whether or not related to the offense for which he is on trial.‖ (Ibid.; see

§ 190.3, factor (k).)

Regarding another factor, other criminal activity involving the use of,

attempted use of, or threat to use force or violence (§ 190.3, factor (b)), the trial

court instructed in the language of CALJIC No. 8.87, that ―[i]t is not necessary for

all jurors to agree. If any individual juror is convinced beyond a reasonable doubt

that the criminal activity occurred, that juror may consider that activity as a fact in

aggravation. If a juror is not so convinced, that juror must not consider that

evidence for any purpose.‖ (Italics added.)

The trial court further instructed that the People and the defendant ―have a

right to expect that you will . . . exercise your discretion conscientiously, and reach

a just verdict,‖ and ―are entitled to the individual opinion of each juror,‖ and that

―[e]ach of you must decide the case for yourself.‖

Thus, the instructions informed the jurors that the penalty verdict was an

individual, discretionary decision, and that as to at least one factor, each juror was

to determine individually whether that factor was an aggravating circumstance.11


11

Defendant contends that the trial court erred in informing the jury there had

been a prior penalty phase trial because it was reasonably likely that the jurors


(footnote continued on next page)

72



Most telling were the events that occurred during deliberations. After

deliberating for approximately six and a half hours, the jury sent the following

note to the trial court:

―Assume the aggravating circumstances in the case, as stated in 8.85,

significantly outway [sic] the mitigating circumstances, may we still select life

without the possibility of parole?

―Is the opinion of the juror(s) that the circumstances presented in this case

do not meet the minimum standards for the sentence of death allowed as a

mitigating circumstance?‖

The trial court responded: ―Under the law you are permitted to reach any

verdict you wish as to the appropriate penalty.‖

The note‘s first question strongly indicates that despite the omission of the

portion of CALJIC No. 8.88 at issue, the jury understood its duty to engage in a

weighing process. It further indicates that the jury‘s deliberations were guided by

the ―so substantial‖ standard by which it was to weigh the aggravating and

mitigating circumstances. Indeed, because the word ―significantly‖ has a

qualitative connotation, the jury‘s use of that word further suggests it was aware of

the normative nature of the weighing process.

Defense counsel did not object to the trial court‘s response, indicating

counsel believed it was a correct statement of the law. Although the trial court



(footnote continued from previous page)

would believe another jury would decide the penalty after them and thus, lessen
their sense of responsibility. During voir dire, the trial court informed the
prospective jurors about the prior penalty trial to determine whether they had been
exposed to any publicity about that trial. Because the court explained that a
decision had not been made at the previous penalty trial, defendant‘s supposition
appears unlikely.

73



should have responded with the giving of CALJIC No. 8.88, nevertheless, it

reaffirmed that it was within the jury‘s discretion to arrive at the appropriate

penalty. The court‘s response correctly informed the jurors that even after they

engaged in the weighing process, they had the discretion to vote for life without

possibility of parole.

Defendant argues that the note‘s second question shows that certain jurors

did not believe that death was the appropriate penalty, but were unsure whether

this merely constituted a mitigating circumstance that should be weighed against

aggravating circumstances or whether their belief that death was not the

appropriate penalty was sufficient to vote for life even if aggravation outweighed

mitigation. However, as the Attorney General argues, defendant reads too much

into the question. The note could also be interpreted as asking whether the

absence of an aggravating circumstance is a mitigating circumstance. (Cf. People

v. Jackson, supra, 45 Cal.4th at p. 695 [trial court not required to instruct that the

absence of a mitigating factor is not aggravating].)

Twenty-two minutes after the trial court sent its response to the jury, the

jury sent another note stating, ―We cannot all come to a verdict. No unanimous

verdict.‖ The trial court informed the jurors that it would not be in session on

Friday or the following Monday and directed them to return the following Tuesday

after a four-day break. The jury resumed deliberations on Tuesday morning and

reached a verdict that afternoon.

As the Attorney General argues, the jury‘s deadlock indicates that the jury

understood they could vote for life without parole even under the circumstances

presented in the note, i.e., where the aggravating circumstances substantially

outweighed the mitigating circumstances or as defendant argues, where one or

more jurors felt the case did not meet the minimum standards for death. The

jury‘s deadlock further shows that at least one juror chose to exercise his or her

74



discretion to vote for life without parole, as permitted by the court‘s response to

the jury‘s note. It was only after further deliberations that the jury unanimously

agreed death was the appropriate verdict. When polled by the court, each juror

answered that the death verdict was his or her ―personal verdict.‖

Accordingly, after considering the instructions given, the arguments of

counsel, the jury‘s note and the trial court‘s response, and the subsequent events

suggesting the jury was aware of its proper role in weighing the aggravating and

mitigating circumstances, we conclude that there was no reasonable likelihood the

trial court's failure to instruct in the relevant language of CALJIC No. 8.88 misled

the jurors or left them without adequate guidance as to the scope of their

sentencing discretion or responsibility.12

2. Admission of Photographs and Tape Recording of Victim in the

Ambulance

Defendant claims that admission of two photographs showing injuries to

the victim and the tape recording of the victim‘s screams during the ambulance

ride to the hospital violated Evidence Code section 352 and his federal

constitutional rights. The trial court did not abuse its discretion in admitting the

evidence.


12

The trial court further erred in instructing, pursuant to CALJIC No. 1.00,

that ―[b]oth the People and the Defendant have a right to expect that you will
conscientiously consider and weigh the evidence, apply the law, and reach a just
verdict regardless of the consequences.‖ This instruction applies only to guilt and
should not be given in the penalty phase of trial because it has the potential to
diminish the jury‘s responsibility for the penalty decision. (People v. Ray (1996)
13 Cal.4th 313, 354; People v. Jennings (1988) 46 Cal.3d 963, 991.) For the same
reasons omission of CALJIC No. 8.88 was not prejudicial, there was no
reasonable likelihood the jurors would have understood that the single,
inapplicable phrase reduced their responsibility for choosing the appropriate
consequence of life without parole or death. (People v. Kipp (1998) 18 Cal.4th
349, 380; People v. Babbit (1988) 45 Cal.3d 660, 717-719.)

75



Before the penalty retrial, defense counsel moved to exclude photographs

of the victim‘s injuries and the ambulance recording as irrelevant. Counsel argued

that defendant had already been convicted of committing murder by torture at the

guilt phase and that the only purpose for admitting the photographs and ambulance

tape would be to inflame the jury. The prosecutor argued that the evidence was

relevant to show the circumstances of the crime (§ 190.3, factor (a)) and was

particularly important to the jury‘s understanding of the nature and extent of

Yolanda‘s injuries since this was not the same jury that had heard the guilt phase

evidence. The prosecutor further argued that the ambulance tape was relevant as

victim impact evidence. Defense counsel responded that the proffered evidence

did not show the circumstances of the crime, only occurrences ―after the fact.‖

The trial court admitted two of the photographs and the ambulance tape as factor

(a) evidence and as victim impact evidence. It expressly determined that the

probative value of the evidence outweighed its prejudicial effect.

As stated previously, the photographs and ambulance tape were highly

relevant to the issues relating to torture murder and the torture special

circumstance. (See ante, at pp. 34-40.) Thus, the trial court correctly admitted the

evidence to show the circumstances of the crime (§ 190.3, factor (a)). Also, the

court properly admitted the evidence as victim impact evidence to show the

immediate impact of the crime on the victim and on the children who witnessed

their mother or aunt burning and in pain. (See People v. Hawthorne, supra, 46

Cal.4th at pp. 101-103.)

Given the relevance of the photographs and the ambulance tape, the trial

court did not abuse its broad discretion in concluding the evidence was more

probative than prejudicial. (People v. Hawthorne, supra, 46 Cal.4th at p. 103.)

Having concluded there was no error and no prejudice, we also reject defendant‘s

federal constitutional claims. (Ibid.)

76



3. Lingering Doubt

Defendant claims the trial court: (1) improperly instructed that the jury

must accept the previous jury‘s verdicts as having been proved beyond a

reasonable doubt and (2) improperly refused his proposed instructions on the

elements of the crimes and the concept of lingering doubt. He contends that his

federal and state constitutional rights were violated because the court‘s rulings

removed his lingering doubt defense from the jury‘s consideration. There was no

error.

During the instructional conference, the trial court stated it intended to give

the prosecution‘s proposed instruction which stated: ―You must accept the

previous jury‘s verdicts as having been proved beyond a reasonable doubt.‖

Defendant asked the court to instruct on the elements of the offenses and special

circumstances, and on the concept of lingering doubt. The court refused to give

both requested instructions. It reasoned that those elements were not relevant

since the issue of defendant‘s guilt and the truth of the special circumstances had

already been determined by the previous jury. The court further reasoned that

lingering doubt was a proper subject for argument, but not for instruction and that

the proposed instruction was inappropriate because it was addressed to jurors who

voted for conviction at the guilt phase.

The trial court properly instructed the jury that the penalty phase jury must

conclusively accept the previous guilt phase jury‘s findings on defendant‘s guilt

and on the truth of the special-circumstance allegations. (People v. Harrison

(2005) 35 Cal.4th 208, 256; see also People v. Gay (2008) 42 Cal.4th 1195, 1223

[defendant may not contest legality of prior guilt phase jury‘s adjudication of

guilt]); People v. DeSantis (1992) 2 Cal.4th 1198, 1237-1238 [same].) The court‘s

instruction did not remove the question of lingering doubt from the jury, but only

told it the truth: that in the penalty phase defendant‘s guilt was conclusively

77



presumed as a matter of law. (People v. DeSantis, supra, 2 Cal.4th at p. 1238.)

Because the penalty jury could not relitigate defendant‘s guilt and the truth of the

special-circumstance allegations, the trial court correctly refused to instruct on the

elements of the offenses and special circumstances.

Although it is proper for the penalty jury to consider lingering doubt, there

is no constitutional right to instructions on lingering doubt. (People v. Hamilton

(2009) 45 Cal.4th 863, 948; People v. Brown (2003) 31 Cal.4th 518, 567.) ―

‗Instructions to consider the circumstances of the crime (§ 190.3, factor (a)) and

any other circumstance extenuating the gravity of the crime (id., factor (k)),

together with defense argument highlighting the question of lingering or residual

doubt, suffice to properly put the question before the penalty jury.‘ ‖ (People v.

Hamilton, supra, 45 Cal.4th at p. 948.)

The court here instructed the jury to consider the circumstances of the

crime and any other circumstances extenuating the gravity of the crime.

Defendant presented extensive evidence of lingering doubt as to his state of mind

at the time he committed the crime, which was the only disputed issue open to

lingering doubt. (Compare with People v. Gay, supra, 42 Cal.4th at pp. 1223-

1226 [prejudicial error to exclude lingering doubt evidence contesting defendant‘s

guilt as shooter when coupled with court‘s instruction to jury to disregard defense

counsel‘s opening statement that it would hear lingering doubt evidence and

instruction on conclusiveness of prior guilt jury‘s findings].) Defense counsel

extensively argued lingering doubt during opening and closing arguments, in

which he urged the jury to reconsider defendant‘s guilt and his state of mind.

Thus, contrary to defendant‘s claim, the trial court‘s rulings did not remove the

concept of lingering doubt from the jury‘s consideration.

78



4. CALJIC No. 8.87

In connection with defendant‘s threats against the victim‘s siblings during

his search for his family, the trial court instructed the jury with CALJIC No. 8.87,

the standard instruction for considering other criminal activity under section 190.3,

factor (b). Defendant argues that the instruction‘s reference to ―the criminal act

which involved the express or implied use of force or violence or the threats of

force or violence‖ removed from the jury the issue whether defendant‘s acts

involved the use or threat of force or violence and improperly directed the jury to

find that the other crimes involved force or violence.

Initially, we reject the Attorney General‘s argument that the issue is

forfeited because defendant failed to object at trial to the instruction. (People v.

DArcy, supra, 48 Cal.4th at p. 302; People v. Gray (2005) 37 Cal.4th 168, 235.)

On the merits, we have repeatedly rejected defendant‘s claim. CALJIC No.

8.87‘s ― ‗characterization of other crimes as involving express or implied use of

force or violence, or the threat thereof, is a legal question properly decided by the

court.‘ ‖ People v. Burney (2009) 47 Cal.4th 203, 259; People v. Loker, supra, 44

Cal.4th at p. 745.)

5. Misdemeanor Conviction as an Aggravating Circumstance

Defendant contends that the trial court committed prejudicial error in

instructing the jury it could consider his prior misdemeanor conviction under

section 190.3, factor (c). Although we agree that the instruction was error, we find

that it was not prejudicial.

The jury was instructed that: ―Evidence has been introduced for the purpose

of showing that the defendant has been convicted of the crimes of assault with a

firearm, a violation of Penal Code section 245(a)(2), and shooting at an inhabited

dwelling, Penal Code section 246, a misdemeanor, prior to the offense of murder

in the first degree of which he has been found guilty in this case. [¶] Before you

79



may consider any of such crimes as an aggravating circumstance in this case, you

must first be satisfied beyond a reasonable doubt that the defendant was, in fact,

convicted of the prior crimes.‖ (CALJIC No. 8.86.)

A misdemeanor conviction may not be introduced in aggravation. (People

v. Osband (1996) 13 Cal.4th 622, 735; People v. Montiel (1993) 5 Cal.4th 877,

936.) Despite the erroneous instruction, the prosecutor and defense counsel,

during argument, correctly referred only to the prior felony assault conviction as

section 190.3, factor (c) evidence. Here, the error was harmless because the jury

could properly consider under section 190.3, factor (b), the violent criminal

conduct underlying the misdemeanor offense, i.e., shooting into a house with

adults and children inside. (People v. Bunyard (2009) 45 Cal.4th 836, 857

[§ 190.3, factor (b) applies to misdemeanor violent activity as well as felony

activity]; People v. Ashmus (1991) 54 Cal.3d 932, 983-984 [evidentiary and

instructional error allowing jury to consider subsequent felony conviction under

§ 190.3, factor (c) harmless; underlying violent criminal conduct properly

admitted under § 190.3, factor (b)].) The danger that the jury would assign

significant additional aggravating weight to the fact of conviction was minimal.

(People v. Montiel, supra, 5 Cal.4th at p. 936.)

6. Challenges to the Death Penalty Law

Defendant challenges California‘s death penalty law for reasons previously

rejected by this court in other cases. He raises no basis for reconsideration of

these rulings.

―Specifically, the death penalty law adequately narrows the class of death-

eligible defendants.‖ (People v. Hawthorne, supra, 46 Cal.4th at p. 104.) Section

190.3, factor (a), is not applied in such a ―wanton and freakish‖ manner that it

results in the arbitrary and capricious imposition of the death penalty in violation

80



of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States

Constitution. (People v. Mendoza (2011) 52 Cal.4th 1056, 1096.) ― ‗ ―The jury

need not make written findings, or achieve unanimity as to specific aggravating

circumstances, or find beyond a reasonable doubt that an aggravating

circumstance is proved (except for other crimes), that aggravating circumstances

outweigh mitigating circumstances, or that death is the appropriate penalty.

[Citations.] The death penalty statute is not unconstitutional for failing to provide

the jury with instructions of the burden of proof and standard of proof for finding

aggravating and mitigating circumstances in reaching a penalty determination.‖ ‘ ‖

(People v. Hawthorne, supra, 46 Cal.4th at p. 104.) Moreover, jury unanimity is

not required with regard to unadjudicated criminal activity. (People v. Dykes

(2009) 46 Cal.4th 731, 799.) The trial court was not required to instruct the jury

that there is no burden of proof at the penalty phase, and that the beyond-a-

reasonable-doubt standard and requirement of jury unanimity do not apply to

mitigating factors. (People v. Mendoza, supra, 52 Cal.4th at pp. 1096-1097.)

Defendant was not entitled to an instruction regarding a presumption of life.

(People v. McKinnon (2011) 52 Cal.4th 610, 698.) The use of such adjectives in

the sentencing factors statute as ―extreme‖ (§ 190.3, factors (d) & (g)), and

―substantial‖ (§ 190.3, factor (g)) is constitutional. (People v. Mendoza, supra, 52

Cal.4th at p. 1098.) A trial court is not required to delete inapplicable sentencing

factors or to instruct that statutory mitigating factors are relevant solely as

potential mitigators. (Id. at p.1097.) Intercase proportionality review is not

constitutionally required. (People v. McKinnon, supra, 52 Cal.4th at p. 698.)

Equal protection principles do not require the same procedural safeguards that

apply to sentencing determinations in noncapital trials. (People v. Clark, supra,

52 Cal.4th at p. 1008.) Finally, defendant‘s sentence does not violate international

law, ―as no authority ‗prohibit[s] a sentence of death rendered in accordance with

81



state and federal constitutional and statutory requirements.‘ ‖ (People v.

McKinnon, supra, 52 Cal.4th at p. 698.)

7. Cumulative Prejudice in Guilt and Penalty Phases

Defendant contends that the cumulative prejudicial effect of the errors in

both the guilt and penalty phases mandates reversal of his conviction and sentence

of death. We have rejected nearly all of defendant‘s claims of error. Where we

have found error, we have determined defendant was not prejudiced. Whether

such claims are considered individually or together, we find no prejudicial error at

either phase of the proceedings.

DISPOSITION

We affirm the judgment.

CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CORRIGAN, J.
LIU, J.


82



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Streeter
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S078027
Date Filed: June 7, 2012
__________________________________________________________________________________

Court:
Superior
County: San Bernardino
Judge: Bob N. Krug

__________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Andrew S. Love,
Deputy State Public Defender, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala G. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Gary S. Schons, Assistant Attorney General, Annie Featherman Fraser and Melissa
Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
















Counsel who argued in Supreme Court (not intended for publication with opinion):

Andrew S. Love
Deputy State Public Defender
221 Main street, 10th Floor
San Francisco, CA 94105
(415) 904-5600

Melissa Mandel
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2211




Opinion Information
Date:Citation:Docket Number:
Thu, 06/07/201254 Cal. 4th 205, 278 P.3d 754, 142 Cal. Rptr. 3d 481S078027