IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
IGNACIO A. TAFOYA,
Defendant and Appellant.
Super. Ct. No. 93WF0692
A jury found defendant Ignacio Tafoya and codefendant Timothy
Wynglarz guilty of the first degree murders (Pen. Code, § 187) of Gerald Lee
Skillman and Steven Francis Rita, of the robbery (§§ 211/212.5) of Skillman, and
of burglary (§ 459/former § 460.1 [now § 460, subd. (a)]). For each crime, the
jury found that defendant personally used a firearm (§ 12022.5, subd. (a)), and that
Wynglarz was personally armed with a firearm (§ 12022, subd. (a)(1)). For each
murder, as to both defendant and Wynglarz, the jury found to be true special
circumstance allegations of murder in the commission or attempted commission of
robbery (§ 190.2, subd. (a)(17)(A)) and murder in the commission or attempted
commission of burglary (§ 190.2, subd. (a)(17)(G)). In addition, the jury found
true one special circumstance allegation of multiple murder (§ 190.2, subd. (a)(3)).
All further statutory references are to the Penal Code unless otherwise
The prosecution did not seek the death penalty against codefendant
Wynglarz, who was sentenced to life imprisonment without possibility of parole.
At defendant’s penalty trial the jury returned a verdict of death. The trial court
denied defendant’s motion for a new trial (§ 1181) and automatic motion for
modification of the penalty verdict (§ 190.4, subd. (e)), and it sentenced defendant
to death. Applying section 654, the court stayed defendant’s robbery and burglary
sentences; for each enhancement based on defendant’s personal use of a firearm,
the court imposed a four-year prison term.
This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in
I. FACTS AND PROCEEDINGS
A. Prosecution’s Guilt Phase Case
1. Background evidence
On February 10, 1992, defendant bought a red Chevrolet dual-wheel2
pickup truck and financed the purchase through GMAC Credit Corporation. From
October 1992 to March 1993, GMAC sent defendant letters notifying him that he
was in default on the loan. Thereafter, GMAC began collection proceedings to
repossess defendant’s truck.
2. The murders of Gerald Skillman and Steven Rita
Douglas Gattenby had been friends with murder victims Gerald Skillman
and Steven Rita for years and previously had used drugs with them. Skillman was
a small-time marijuana and methamphetamine dealer, and Gattenby had worked
with him in distributing methamphetamine. Skillman lived with his mother and
A dual-wheel pickup truck has double wheels on each side of the rear axle.
brother on Bannock Road in the City of Westminster, in Orange County. He
typically delivered drugs to his customers but occasionally sold them directly from
his home to friends. Gattenby had known codefendant Timothy Wynglarz for
about 18 years but had not socialized or used drugs with him. A few months
before the two murders, Gattenby saw defendant and codefendant Wynglarz at the
house of one John Benno, known to Gattenby as a methamphetamine user.
On May 4, 1993, around noon, Joseph Burkhart was working in his front
yard on Bannock Road, two houses from Skillman’s, when he saw codefendant
Wynglarz drive up in a red dual-wheel pickup truck and park in front of
Skillman’s house. At that time, Gattenby was repairing a lawn mower in
Skillman’s front yard. Wynglarz asked Gattenby where Skillman was. Gattenby
said Skillman was inside the house and told Wynglarz to just go in. Wynglarz
went inside but came out a few minutes later. He asked Gattenby to tell Skillman
he was going to a store and would return shortly. Gattenby went inside and
relayed the message to Skillman, who was upstairs with Rita. Burkhart saw
Wynglarz drive away and return in the same red truck about 10 minutes later.
Around this same time, Michael Johnson, a street sweeping supervisor with
the Westminster Department of Public Works, saw two men sitting in a red dual-
wheel pickup truck parked under a freeway overpass, less than a minute’s drive
from murder victim Skillman’s house. Johnson saw the passenger bend forward
as if to reach for something and then lean back in his seat. The driver and the
passenger then both looked in the area of the center console, after which they
drove off toward Bannock Road (where Skillman lived). Johnson later identified
codefendant Wynglarz from a photo lineup as the man he had seen in the driver’s
seat, and his description of the passenger matched defendant’s.
Around the time codefendant Wynglarz returned in the red truck to
Skillman’s house on Bannock Road, Harold Hamilton, who lived across the street,
saw defendant walking on the sidewalk near Skillman’s house. Defendant nodded
at Hamilton, who noticed a red dual-wheel pickup truck parked in front of
While Skillman, Gattenby, and Rita were upstairs in Skillman’s house,
Gattenby heard a knock on the front door. Rita went downstairs to answer it. At
that point, Hamilton saw Rita and codefendant Wynglarz on Skillman’s front
porch and then saw defendant step onto the porch. Defendant and Wynglarz
grabbed Rita by the back of his shirt and pushed him into the house, slamming the
door shut behind them. Hamilton heard sounds like someone inside the house was
being thrown around, and he told his mother, Nikki Pillon, to call 911. She did so
at 12:15 p.m.
Meanwhile, Gattenby, who was upstairs with Skillman, heard a scuffle
downstairs. Skillman ran downstairs. A few seconds later, Gattenby came
halfway down the stairs and saw Skillman lying on his side on the living room
floor near the front door. Defendant was straddling Skillman and pointing a
handgun at Rita, who was on the sofa about five or six feet away. Codefendant
Wynglarz was standing near the front door. He did not have a weapon and did not
appear to be frightened. Neither Skillman nor Rita had a weapon, and neither was
threatening Wynglarz or defendant in any way.
When Gattenby saw defendant’s gun, he turned around and ran up the
stairs. As he did, he heard Skillman say, “This is my mother’s house. You don’t
have to do this, guys.” Defendant replied, “I ain’t taking your shit.” Gattenby
then heard three or four gunshots. Across the street, Hamilton heard gunshots and
estimated they had been fired about 45 seconds after he saw defendant and
codefendant Wynglarz push Rita into the house.
Codefendant Wynglarz ran upstairs after Gattenby, telling him to “get back,
get back.” Gattenby ran into Skillman’s bedroom and escaped by jumping
through the bedroom window. He ran to Burkhart’s yard and from there saw
defendant and codefendant Wynglarz leave Skillman’s house. Defendant was
carrying a bag made of canvas or paper. From across the street, Hamilton saw
Wynglarz drive off in the red pickup truck, together with defendant. Hamilton’s
mother, Pillon, saw Wynglarz leave the house with defendant and drop something
into a small, nylon-like bag that caused the bag to “bow” under the object’s
weight. She described the object as having “the length of a gun.”
After defendant and codefendant Wynglarz had left, Gattenby returned to
Skillman’s house to check on Skillman and Rita. Skillman was lying on his side
in a puddle of blood near the front door, bleeding profusely from the right side of
his head. Rita was lying on his back, making gurgling sounds and murmuring.
3. The autopsies, crime scene, and forensic investigations
Skillman and Rita died from their gunshot wounds. Skillman had a bullet
wound to his left interior thigh and another to the top of his head. Black soot
surrounded the entry wound on his head, indicating the gun was only inches from
his head when fired. Blood-spatter analysis established that Skillman’s head was
approximately three inches above the floor when he was shot. Rita had suffered
two bullet wounds. One bullet entered his left thigh and exited through his right
upper back. A second bullet entered Rita’s left arm, went through his shoulder,
and entered the base of his skull, lodging behind the left ear lobe. Rita was shot
from four to five feet away. Both Skillman and Rita had substantial amounts of
methamphetamine in their systems at the time of death.
The Orange County Sheriff’s Department and Westminster Police
Department investigated the crime scene. Recovered from victim Skillman’s
pockets were a little over $1,300 in cash, two pipes that could be used to smoke
drugs, and a closed pocketknife. A briefcase in Skillman’s bedroom contained
small bags of marijuana and marijuana seeds. Also in the bedroom were several
firearms, including a loaded .22 rifle. Victim Rita had no money in his
Also recovered from the scene were four bullet casings, all 10-millimeter
automatic, an unusual caliber. Three of the casings were of the Federal brand and
one of the Starline brand. All four had been fired from the same gun. Three of the
four bullets recovered from the two bodies and the crime scene were fired from a
single gun. The fourth bullet was extensively damaged, and thus it could not be
definitively established as having been fired from that same gun.
4. Events after the crimes
About 1:30 p.m. on the day of the murders, an unidentified woman
telephoned GMAC and said the company could repossess defendant’s truck.
GMAC picked up the truck at defendant’s house around 4:00 p.m.
Three days later, on May 7, 1993, law enforcement authorities arrested
defendant and codefendant Wynglarz. Neither man had any visible injuries.
Found in defendant’s bedroom was an empty Federal brand 10-millimeter
automatic ammunition box, the same brand and caliber of casings and bullets
recovered from the crime scene.
On July 23, 1993, defendant’s wife gave police a 10-millimeter automatic
live round of ammunition. It did not match the three Federal brand casings found
at the crime scene, but was similar to the Starline 10-millimeter automatic casing
that was also recovered.
B. Guilt Phase Evidence Presented by Defendant and Codefendant
1. Defendant’s evidence
In May 1993, defendant was employed at the Valencia Nursery in
Anaheim, in Orange County. Defendant’s mother and stepfather owned the
nursery, which bought mature palm trees and resold them to contractors and new
Defendant testified at the guilt phase of the trial. He admitted killing the
victims but claimed self-defense. On the morning of May 4, 1993, defendant, his
wife, and their three children drove with codefendant Wynglarz to Anaheim in
defendant’s red dual-wheel pickup truck. Defendant took with him a 10-
millimeter Colt pistol because he expected to carry a lot of cash that day. He put
the gun under the driver’s seat. Defendant dropped off one child at school, his
wife at the hospital where she worked, and the other two children at his mother’s
house. When defendant stopped to have his truck washed, Wynglarz telephoned
murder victim Skillman regarding some weapons and speakers he had left with
Skillman. Wynglarz told defendant he wanted to pick up those items from
Skillman’s house, and that Skillman had agreed to give him back money for drugs
Wynglarz had bought from Skillman that were “no good.” Wynglarz described
Skillman as “a very dangerous person,” adding that if defendant “ever bumped
into him,” defendant “would be killed.”
Around 11:45 a.m., defendant and Wynglarz drove toward Skillman’s
house. Before they reached the house, Wynglarz said that Skillman was
suspicious of strangers and that he wanted to drive defendant’s truck alone to the
house. Defendant agreed and waited at a nearby liquor store while Wynglarz
drove off in defendant’s truck.
About 10 minutes later, Wynglarz returned saying he needed more time
with Skillman because Skillman was busy. Defendant took his gun from under the
driver’s seat and tucked it in his waistband under his shirt. Wynglarz left again in
defendant’s truck for Skillman’s house.
Concerned about being late in picking up his children, defendant started
walking in the direction in which codefendant Wynglarz had left in defendant’s
red truck. When defendant saw the truck parked in front of a house, he headed
towards it. Upon reaching the house, defendant saw Wynglarz and murder victim
Rita on the front porch, arguing about being “burned  with some dope.”
Defendant went up to the front porch and stood by Wynglarz. Rita and Skillman
then attacked defendant from inside the front door. Inside the house, Skillman
grabbed defendant’s shirt, exposing defendant’s gun. Defendant and Skillman
both reached for the gun. One shot was fired, hitting Skillman, who went down on
his left knee but kept his grip on defendant’s shirt. Defendant fired a second shot
at Skillman, who hit the floor. Defendant continued to struggle with Rita,
shooting him twice, and watching him fall to the floor.
Defendant dropped the gun, but Wynglarz said, “Don’t leave the gun
there.” Wynglarz then put the gun in a small black bag full of papers and
magazines, and he took it with him when he and defendant left in defendant’s
Later that day, when defendant stopped at a McDonald’s restaurant near his
house and bought some hamburgers, he had three $100 bills, which he had since
that morning, and a $20 bill, which his mother had given him. Defendant
exchanged one of his $100 bills for $5 bills and gave $50 to Wynglarz. After
defendant returned to his house, he threw the bag with the gun in a trash bin.
2. Codefendant’s Wynglarz’s evidence
Wynglarz testified that he and murder victim Skillman used
methamphetamine, which they also bought and sold along with other drugs.
On the day of the murders, Wynglarz arranged a meeting at Skillman’s
house to discuss paying off a debt Wynglarz owed to a pawnshop. Wynglarz had
no plan to steal from Skillman and was unaware that defendant had such a plan.
When defendant shot Skillman and Rita, Wynglarz ran upstairs, fearing for his
life. Defendant followed, telling him, “Let’s get out of here.” Defendant ordered
Wynglarz to grab a duffel bag, which Wynglarz later learned contained papers.
Wynglarz took the bag, and they left in defendant’s truck.
C. Prosecution’s Penalty Phase Case
Susan M. testified that on January 27, 1980, in Anaheim, two men raped
her at gunpoint. After working as a prostitute that evening, she had accepted a
ride home from two men, who offered her a seat in the back of the car. Defendant
was the driver. The passenger pointed a gun at her, got into the back seat, and
forced her to engage in sexual intercourse while defendant drove the car. After a
while, defendant stopped the car, moved to the back seat, and forced Susan M. to
have sexual intercourse with him while the other man drove.
Defendant’s wife, Grace Tafoya, testified she married defendant in 1984.
They had three children together, aged nine, seven, and three years. In April 1989,
defendant hit and slapped Grace in the face and twisted her arm. On October 11,
1989, when defendant became enraged because he could not find the keys to his
truck, he lifted two mattresses into the air, punched a wall, and threw Grace’s
clothes around the bedroom. On another occasion, defendant punched Grace in
the arm, causing pain and bruising.
Defendant had a son, Edward A., with another woman. In 1991, when
Edward was about eight years old, he came to live with defendant and Grace.
Once, defendant beat Edward in a barn behind the house. Another time, defendant
beat Edward with a belt.
On October 19, 1991, Riverside County Deputy Sheriff Phillip Matheny
investigated a claim of child abuse involving Edward. The child had red and blue
marks on his lower back, arm, and right thigh, consistent with having been beaten
with a rope or belt. The parties stipulated that on April l6, 1992, defendant pled
guilty to two misdemeanor counts of committing corporal injury on Edward
(§ 273d), and he was placed on three years’ probation.
Oscar Reyes repossessed motor vehicles for Interstate Recovery Service.
On March 4, 1993 (two months before the two murders in this case), GMAC
retained Reyes to repossess defendant’s red dual-wheel pickup truck. Reyes found
the truck at the nursery where defendant worked. He got in on the driver’s side
and tried to start the ignition. At that point, defendant opened the passenger door
and pulled a handgun from under the seat, pointing it at Reyes. When Reyes said
he was there to repossess the truck, defendant replied, “Fuck, if you think you are
going to take my truck, I am going to shoot your fucking ass.” Reyes left and
reported the assault to the Anaheim police.
The prosecution presented victim impact evidence through the testimony of
Skillman’s mother, Coleen Skillman, and Rita’s mother, Sandra Zide. Coleen’s
life was torn apart by her son’s death. Zide was devastated by the loss of her son,
who was planning to marry. When told of Rita’s death, his fiancée became
hysterical. Rita’s murder also deeply affected Rita’s brothers, sister, grandparents,
D. Defense Penalty Phase Case
In the mid-1980’s, defendant was a devoted Christian, had trained as a
minister, and worked in church ministries in Puerto Rico, the Dominican
Republic, and throughout the United States. Defendant used his own money to
buy food and clothing for needy people and gave them shelter in his home.
For about 10 years, defendant attended the Apostolic Church in Huntington
Beach, where he participated in Bible studies and other church activities. During
trial, the wife of the pastor of the Apostolic Church, visited defendant in jail. He
cried when she tried to read to him.
Defendant’s mother, Eva Cancino, testified defendant’s father left the
family when defendant was five years old. The father drank a lot, was very strict,
and hit defendant with a rope and a belt. Defendant’s mother left Mexico and
brought her children to the United States, supporting them by picking fruits and
vegetables and selling burritos. She later met and married defendant’s stepfather,
who owned a gardening business. When the mother of defendant’s son, Edward,
abandoned him, defendant took care of Edward. Defendant had many animals,
including a pony and several lambs, which he liked to take to church fairs so that
children could ride or pet them. Defendant cried when his mother spoke to him
about the murder victims.
II. PRETRIAL ISSUES
A. Severance Motion
Before and during trial, defendant unsuccessfully moved to sever his trial
from codefendant Wynglarz’s. He now contends the trial court abused its
discretion in denying his severance motions, thereby violating his rights under the
Fifth, Sixth, and Fourteenth Amendments to the federal Constitution and under
article I, sections 15 and 16 of the California Constitution.
Before trial, defendant moved for severance based on his expectation that
the trial court would admit statements codefendant Wynglarz had made to the
police that implicated defendant in the offenses.3 (See Bruton v. United States
(1968) 391 U.S. 123, 137; People v. Aranda (1965) 63 Cal.2d 518, 526-527.) The
trial court denied the motion without prejudice because the prosecution had yet to
As an offer of proof, defendant asserted that codefendant Wynglarz told the
police that defendant ran up to murder victim Skillman’s house with a gun in his
hand, pushed Wynglarz and Gattenby inside, pushed and shot Skillman, and that
when Wynglarz asked defendant why he had shot Skillman, defendant said he
thought Skillman had money.
determine whether it would use Wynglarz’s statements. Defendant twice renewed
the motion; on both occasions, the trial court denied it. After the prosecution’s
case-in-chief, defendant asserted as an additional ground for severance that
Wynglarz’s defense would conflict with his own. The trial court again denied the
motion. In his motion for a new trial, defendant again asserted his trial should
have been severed from Wynglarz’s.
We note that codefendant Wynglarz’s statements to the police were never
introduced at trial.4 Further, we assume without deciding that defendant’s motion
for severance on the basis of conflicting defenses brought after the prosecution’s
case-in-chief was nonetheless timely. (See People v. Simms (1970) 10 Cal.App.3d
Section 1098 provides in pertinent part: “When two or more defendants are
jointly charged with any public offense, whether felony or misdemeanor, they
must be tried jointly, unless the court order[s] separate trials.” (See People v.
Boyde (1988) 46 Cal.3d 212, 231 [recognizing legislative preference for joint
trials].) Defendants “charged with common crimes involving common events and
victims” present a “ ‘classic case’ ” for a joint trial. (People v. Keenan (1988) 46
Cal.3d 478, 499-500.) Nonetheless, a trial court, in its discretion, may order
separate trials “ ‘in the face of an incriminating confession, prejudicial association
On cross-examination by the prosecutor, codefendant Wynglarz denied that
defendant had ever made a comment about Skillman’s having money and further
denied that defendant was looking for money at Skillman’s house. On appeal,
defendant complains that the prosecutor’s questions conveyed to the jury that
defendant had said that he was looking for money. The trial court, however,
instructed the jury that questions by counsel were not evidence, that no fact
implied by a question could be assumed to be true, and to disregard any question
to which an objection was sustained. We assume the jury followed these
instructions. (People v. Stitely (2005) 35 Cal.4th 514, 559.)
with codefendants, likely confusion resulting from evidence on multiple counts,
conflicting defenses, or the possibility that at a separate trial a codefendant would
give exonerating testimony.’ [Citations.]” (People v. Avila (2006) 38 Cal.4th 491,
574-575, italics added.)
A trial court’s denial of a severance motion is reviewed “for abuse of
discretion based on the facts as they appeared at the time the court ruled on the
motion.” (People v. Avila, supra, 38 Cal.4th at p. 575; People v. Hardy (1992) 2
Cal.4th 86, 167.) A trial court’s erroneous refusal to sever a defendant’s trial from
a codefendant’s requires reversal if the defendant shows, to a reasonable
probability, that separate trials would have produced a more favorable result
(People v. Avila, supra, 38 Cal.4th at p. 575; People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 41), or if joinder was so grossly unfair that it deprived the
defendant of a fair trial (People v. Avila, supra, 38 Cal.4th at p. 575; People v.
Ervin (2000) 22 Cal.4th 48, 69).
At the guilt phase, codefendant Wynglarz’s defense was that defendant had
acted entirely alone. Defendant asserts this conflicted with his own defense that
he shot Skillman and Rita in self-defense, thus requiring severance. We do not
agree that severance was required. “ ‘[A]ntagonistic defenses do not per se
require severance, even if the defendants are hostile or attempt to cast the blame
on each other.’ [Citation.] ‘Rather, to obtain severance on the ground of
conflicting defenses, it must be demonstrated that the conflict is so prejudicial that
[the] defenses are irreconcilable, and the jury will unjustifiably infer that this
conflict alone demonstrates that both are guilty.’ [Citation.]” (People v. Hardy,
supra, 2 Cal.4th at p. 168; see also Zafiro v. United States (1993) 506 U.S. 534,
538 [“Mutually antagonistic defenses are not prejudicial per se”].) That is not the
situation here. As we recently observed in People v. Coffman and Marlow, supra,
34 Cal.4th at page 41, “[w]hen . . . there exists sufficient independent evidence
against the moving defendant, it is not the conflict alone that demonstrates his or
her guilt, and antagonistic defenses do not compel severance.”
Here, the prosecution presented strong evidence of defendant’s guilt
independent of the evidence codefendant Wynglarz offered in his own defense.
Murder victim Skillman was a marijuana and methamphetamine dealer and had
worked with prosecution witness Gattenby distributing methamphetamine.
Gattenby had seen defendant at the home of John Benno, a known
methamphetamine user. Defendant was apparently in need of money as he was in
default on his truck loan, and GMAC had begun collection proceedings against
him. And prosecution witness Hamilton, a neighbor of Skillman’s, saw defendant
and codefendant Wynglarz enter Skillman’s house after shoving murder victim
Rita inside. Gattenby, who was at the house, saw defendant wave a gun over
Skillman, who was lying on the floor, and at Rita, who was on the sofa a few feet
away. Gattenby heard Skillman plead for his life moments before hearing several
shots. All four bullet casings found at the crime scene were 10-millimeter and
fired from the same gun. Three of the four casings were Federal brand 10-
millimeter, thus matching the description on an empty ammunition box recovered
from defendant’s house. Both victims were shot twice. Because this evidence
independently established defendant’s guilt of the two murders, demonstration of
his guilt was not dependent on codefendant Wynglarz’s defense. Thus, the trial
court did not abuse its discretion in denying defendant’s severance motion.
Nonetheless, defendant maintains that the joint trial deprived him of his
rights to due process and a fair trial under both the state and federal Constitutions,
asserting that a statement murder victim Skillman made to witness Gattenby about
a prior drug deal between Skillman and codefendant Wynglarz (“[Wynglarz]
burned me for a quarter ounce of meth”) that was excluded in the joint trial would
have been admitted in support of defendant’s self-defense theory in a separate
trial. As a preliminary matter, defendant has forfeited this issue on appeal because
he failed to assert this ground at the time his severance motion was heard by the
trial court. (People v. Ervin, supra, 22 Cal.4th at p. 68; People v. Hardy, supra, 2
Cal.4th at p. 167.) In any event, as later discussed (see part III.B., post), because
defendant suffered no possible prejudice from the exclusion of Skillman’s
statement, he has not demonstrated that the joint trial with codefendant Wynglarz
deprived him of his rights to a fair trial or due process. (See People v. Box (2000)
23 Cal.4th 1153, 1197; People v. Turner (1984) 37 Cal.3d 302, 313.)
Defendant argues that the joint trial deprived him of his right to a fair trial
because the trial court told prospective jurors during voir dire that the prosecution
was seeking the death penalty against defendant only and not against codefendant
Wynglarz. Because defendant failed to raise this issue in the trial court at the time
of his severance motion, he has not preserved it for appeal. (People v. Ervin,
supra, 22 Cal.4th at p. 68.) In any event, the claim lacks merit. Both this court
and the United States Supreme Court have upheld the practice of conducting joint
trials of defendants eligible for the death penalty with those who are not. (See,
e.g., People v. Box, supra, 23 Cal.4th at pp. 1195-1197 [joint trial in capital case
with only one defendant facing the death penalty did not violate the federal
constitutional rights to due process, an impartial jury, a fair trial, and a reliable
death verdict of the death-eligible defendant]; People v. Freeman (1994) 8 Cal.4th
450, 483, 496 [no error in denying capital defendant’s motion to sever trial from
codefendant who did not face capital charges]; People v. Pinholster (1992) 1
Cal.4th 865, 903, fn. 2, 932-934 [capital defendant was not deprived of his rights
to a fair trial and due process by joint trial with codefendant who did not face the
death penalty]; People v. Mitcham (1992) 1 Cal.4th 1027, 1048-1049 [no abuse of
discretion in denying capital defendant’s motion to sever joint trial]; see also
Buchanan v. Kentucky (1987) 483 U.S. 402, 420 [defendant who did not face the
death penalty in a capital case suffered no violation of his right to an impartial jury
by joint trial].)
Finally, defendant contends the joint trial denied him the right to a jury
drawn from a representative cross-section of the community based on codefendant
Wynglarz’s use of peremptory challenges against prospective jurors with Hispanic
names. But defendant never objected when Wynglarz exercised those peremptory
challenges, nor did he raise this ground in his severance motion. Defendant also
failed to make an adequate record of the ethnicity of prospective jurors, making it
difficult for a reviewing court to determine which prospective jurors were
Hispanic. Therefore, he has not preserved this issue for appellate review. (People
v. Ervin, supra, 22 Cal.4th at p. 68.)
B. Evidence About Prosecution Witness Gattenby
Before trial, defendant sought a ruling from the trial court on the
admissibility of certain statements purportedly contained in a search warrant
affidavit pertaining to prosecution witness Gattenby. According to defendant’s
attorney, the affiant stated that police believed Gattenby was in possession of
explosives and had a reputation for dangerousness. Counsel asserted that this
information would support defendant’s theory of self-defense by showing
defendant feared Skillman and Rita at the time of the murders based on their
association with Gattenby. Counsel further argued the statements were generally
relevant to impeach Gattenby. Counsel made no offer of proof, however, that
defendant knew of Gattenby’s reputation for being dangerous.
The trial court found that the affidavit information regarding Gattenby was
irrelevant absent a showing that defendant had reason to fear that Gattenby was
dangerous, and that in any event it was inadmissible to show that Gattenby was in
fact dangerous. Absent such a showing, the trial court ruled, defendant could not
cross-examine Gattenby about whether he had possessed dynamite or weapons, or
whether he had a reputation for dangerousness.
Defendant now challenges that ruling as violating his rights to due process
and to a fair trial under both the state and federal Constitutions.5 We disagree.
When, as here, the relevance of proffered evidence depends upon the
existence of a foundational fact, the proffered evidence is inadmissible unless the
trial court determines it “is sufficient to permit the jury to find the preliminary fact
true by a preponderance of the evidence.” (People v. Marshall (1996) 13 Cal.4th
799, 832; Evid. Code, § 403, subd. (a)(1).) We review a trial court’s ruling on the
sufficiency of the foundational evidence under an abuse of discretion standard.
(People v. Marshall, supra, 13 Cal.4th at p. 833.)
As the trial court indicated, evidence that Gattenby was dangerous was
relevant to defendant’s claim of self-defense only if defendant knew of Gattenby’s
In this and a number of the arguments we later address, defendant contends
that the error he is asserting infringed his constitutional rights to due process and a
fair trial. Our recent observation in People v. Boyer (2006) 38 Cal.4th 412, 441,
footnote 17, applies here: “In most instances, insofar as defendant raised the issue
at all in the trial court, he failed explicitly to make some or all of the constitutional
arguments he now advances. In each instance, unless otherwise indicated, it
appears that either (1) the appellate claim is of a kind . . . that required no trial
court action by the defendant to preserve it, or (2) the new arguments do not
invoke facts or legal standards different from those the trial court itself was asked
to apply, but merely assert that the trial court’s act or omission, insofar as wrong
for the reasons actually presented to that court, had the additional legal
consequence of violating the Constitution. To that extent, defendant’s new
constitutional arguments are not forfeited on appeal. [Citations.] [¶] In the latter
instance, of course, rejection, on the merits, of a claim that the trial court erred on
the issue actually before that court necessarily leads to rejection of the newly
applied constitutional ‘gloss’ as well. No separate constitutional discussion is
required in such cases, and we therefore provide none.” (See also People v.
Partida (2005) 37 Cal.4th 428, 433-439.)
reputation for dangerousness and was afraid of him. (See, e.g., People v.
Minifie (1996) 13 Cal.4th 1055, 1065-1069 [evidence of group’s reputation for
violence and prior threats against the defendant was relevant to the defendant’s
state of mind in claiming self-defense for assault because the defendant reasonably
associated the victim with the threats].) Defendant, however, presented no
evidence that he knew of Gattenby’s reputation for dangerousness or of
Gattenby’s association with murder victims Skillman or Rita. Indeed, defendant
never testified he had even seen Gattenby at Skillman’s house on the day of the
murders. Thus, Gattenby’s presence at the house was not part of defendant’s
claim of self-defense. Gattenby, moreover, testified that, before the day of the
murders, he had seen defendant only once and did not know his name. No
evidence was presented at trial that Gattenby acted in an aggressive manner
toward defendant or codefendant Wynglarz. Under these circumstances, evidence
of Gattenby’s reputation for being dangerous was not relevant to defendant’s
claim of self-defense.
Finally, defendant asserts the trial court’s ruling precluding cross-
examination of Gattenby regarding his reputation for dangerousness violated
defendant’s constitutional rights under the confrontation clauses of the federal and
state Constitutions (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15), and
compelled him to testify in violation of his constitutional rights against self-
incrimination (U.S. Const., 5th Amend.; Cal. Const., art. I, § 15). Defendant did
not rely on these grounds at trial; thus he has forfeited them on appeal. (See
People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19 [defendants
forfeited confrontation clause claim by failing to raise it at trial].)
C. Request for Telephone Privileges
Before trial, at defendant’s request, the presiding criminal judge ordered
that defendant be allowed to meet with the defense investigators. But the
presiding judge denied defendant’s request for toll-free telephone calls to defense
counsel, noting that defense counsel and the defense investigators all accepted
collect calls. Thereafter, the presiding judge issued three successive orders
permitting defendant to make toll-free telephone calls to persons other than his
attorneys and investigators to gather information for his defense. Each of these
orders was in effect for about 45 days, and each had expired before trial.
In the trial court, defense counsel sought an order permitting defendant to
make telephone calls to the defense team after the start of his trial. The court
declined to rule on the request, informing counsel that court policy required that
such motions be presented to the presiding criminal judge. Nothing further
regarding this matter appears in the record. Notably, defense counsel never sought
an order from the presiding judge granting defendant telephone access after trial
Defendant now contends the trial court’s “refusal” to issue an order
permitting him to telephone his attorneys and investigators after the start of the
trial interfered with his right to counsel and deprived him of due process under the
Fifth, Sixth, and Fourteenth Amendments to the federal Constitution and under
article I, sections 15 and 16 of the California Constitution. We disagree.
Defendant had ample opportunity to consult with his attorneys in court
during his trial. Nothing suggests defendant’s appointed counsel lacked
“resources for investigation and the means to present a defense.” (People v.
Jenkins (2000) 22 Cal.4th 900, 1001.) Under these circumstances, defendant has
not shown any deprivation of his right to assist counsel in preparing his defense.
D. Voir Dire Procedures
Hovey v. Superior Court (1980) 28 Cal.3d 1, 80 (Hovey), held that
prospective jurors in capital cases should be sequestered and questioned
individually regarding their views on the death penalty. In 1990, the voters
adopted Proposition 115, which as relevant here, abrogated Hovey by adding to
the Code of Civil Procedure a provision stating that “where practicable, [voir dire
shall] occur in the presence of the other [prospective] jurors in all criminal cases,
including death penalty cases.” (Code Civ. Proc., § 223.) Defendant’s trial
occurred in 1995.
Before trial, defendant requested that each juror be questioned individually.
In denying this request, the trial court explained that it would conduct the death-
qualification portion of voir dire in groups of 16 to 18 prospective jurors. After
the court had proceeded in this manner, defense counsel, citing Hovey, supra, 28
Cal.3d 1, asked the court to individually question the remaining prospective jurors.
Counsel asserted that Hovey was still good law, noting it had been cited by this
court in cases decided after the June 5, 1990, effective date of Proposition 115.6
The trial court denied counsel’s request, noting that although it did not
individually question every prospective juror, it had, at the request of any party,
individually questioned those prospective jurors who had expressed some
reluctance at deciding between life without possibility of parole or the death
penalty in a capital case. The court resumed the group voir dire for the death
Defense counsel was apparently referring to this court’s decisions in capital
cases filed after Proposition 115’s June 5, 1990, effective date (Tapia v. Superior
Court (1991) 53 Cal.3d 282, 299-300), reflecting the application of Hovey in cases
in which the trial took place before that date. (See, e.g., People v. Schmeck (2005)
37 Cal.4th 240, 257, fn. 4 [1989 trial]; People v. Bemore (2000) 22 Cal.4th 809,
834-835, fn. 14 [same].)
qualification of the remaining prospective jurors, and it ruled on challenges for
cause. Thereafter, the prosecutor and the attorneys for defendant and codefendant
Wynglarz were each given one hour to question the prospective jurors. After the
parties made their peremptory challenges, the court indicated that jury selection
was complete, and counsel accepted the jury without objection.
On appeal, defendant faults the trial court for denying his request for
individualized, sequestered voir dire of each prospective juror. He asserts
violations of his federal constitutional rights to due process and an impartial jury
under the Fifth, Sixth, and Fourteenth Amendments to the federal Constitution and
under article I, sections 7, 15, and 16 of the California Constitution.
Under Code of Civil Procedure section 223, the question of whether
individual, sequestered voir dire should take place is entrusted to the trial court’s
discretion. (People v. San Nicolas (2004) 34 Cal.4th 614, 632, fn. 3; People v.
Waidla (2000) 22 Cal.4th 690, 713.) Discretion is abused when the questioning is
not reasonably sufficient to test prospective jurors for bias or partiality. (People v.
Box, supra, 23 Cal.4th at p. 1179.)
The trial court here did not abuse its discretion in questioning prospective
jurors in small groups of 16 to 18 about their death penalty views. (Code Civ.
Proc., § 223; People v. Box, supra, 23 Cal.4th at p. 1178.) The court
acknowledged it had the discretion to question prospective jurors individually, but
it reasoned that questioning in small groups would yield more candid responses.
Moreover, on several occasions, the court conducted individual, sequestered voir
dire at the request of either the prosecutor or defense counsel when a prospective
juror expressed concerns with the death penalty.
Finally, defendant complains that the parties were limited to one hour of
general voir dire on a day different from the trial court’s death-qualification voir
dire and that the court conducted “most of voir dire.”7 Because defendant did not
raise these issues in the trial court, he has not preserved them for appeal. (People
v. Vieira (2005) 35 Cal.4th 264, 289.)
In any event, those contentions lack merit. “ ‘The Constitution . . . does not
dictate a catechism for voir dire, but only that the defendant be afforded an
impartial jury.’ ” (People v. Box, supra, 23 Cal.4th at p. 1179, quoting Morgan v.
Illinois (1992) 504 U.S. 719, 729.) “[T]he trial court is given wide latitude to
determine how best to conduct the voir dire . . . .” (People v. Chaney (1991) 234
Cal.App.3d 853, 861, citing Rosales-Lopez v. United States (1981) 451 U.S. 182,
189.) Whether the prospective jurors are required to complete a written
questionnaire is a matter within the trial court’s discretion. (See People v. Box,
supra, 23 Cal.4th at p. 1180 [trial court used a questionnaire proposed by the
defense in formulating questions it asked during voir dire and provided the parties
an opportunity to supplement questions]; see also § 1044 [the trial judge has the
duty to control all trial proceedings “with a view to the expeditious and effective
ascertainment of the truth regarding the matters involved”].) Defendant here has
failed to show any abuse of discretion by the trial court.
E. Trial Court’s Comments About Hardship Exclusions
Defendant accuses the trial court of misconduct in explaining to the jury
panel the circumstances of hardship that would warrant being excused from jury
Defendant also criticizes the trial court for not requiring prospective jurors
to complete juror questionnaires. The parties, however, stipulated not to use
This is what the trial court said: “With respect to hardship, there are certain
individuals that fall into a category where serving on a case such as this would be
an extraordinary hardship. If you are the sole support of your family or you are—
you share the responsibility for the support of the family or your own sole support
and you work for someone who will not pay you to serve on jury duty or will only
pay you for five days or 10 days and at that point you will be losing salary and
will be unable to support yourself or your family, that would be an extraordinary
“If you have a medical condition that would prevent you from being able to
serve over the period of time that I have suggested, and there may be other unique
situations where it would be an extraordinary hardship. [¶] What is not a hardship
is ‘my employer really needs me at work right now. This is really a busy time.’ In
the law there are specific criteria that I apply to hardship. ‘I would rather sit on a
shorter case. I don’t mind serving, but I just can’t serve on a long case.’ Those
kinds of personal preferences I am not permitted by the law to excuse you based
upon that kind of hardship. [¶] But if it is an undue hardship based upon
financial, medical or some other situation that you think is unique to you that
would cause the Court to excuse you, I will consider all of those requests today.”
Defendant made no objection to the trial court’s statement. But he now
contends the statement deprived him of a fair cross-section of the community
because it “may have” resulted in excluding prospective jurors in lower economic
groups. By failing to make a contemporaneous objection to the trial court’s
statement, defendant has not preserved this issue for appeal. (People v. Champion
(1995) 9 Cal.4th 879, 906-907.)
In any event, the claim lacks merit. In reviewing that claim, the pertinent
inquiry is whether a cognizable class has been excluded. (People v. Johnson
(1989) 47 Cal.3d 1194, 1214.) On point here is this statement from Johnson:
“Even assuming that only poor persons were given hardship exclusions, a fact not
proven here, persons with low incomes do not constitute a cognizable class.”
III. GUILT PHASE ISSUES
A. Sufficiency of the Evidence of the Robbery, Burglary, and Murders
1. Robbery, burglary, and first degree felony-murder
Defendant contends the evidence is insufficient to support his robbery
conviction and the robbery-murder special circumstance finding because the
prosecution failed to present substantial evidence that he formed the intent to steal
before or during, rather than after, the fatal shootings of Skillman and Rita. The
absence of this evidence, defendant argues, infects the burglary conviction, the
burglary-murder special circumstance, and the convictions for first degree murder
to the extent they are based on a theory of felony murder. We conclude sufficient
evidence supports the convictions and special circumstance findings.
“To determine the sufficiency of the evidence to support a conviction, an
appellate court reviews the entire record in the light most favorable to the
prosecution to determine whether it contains evidence that is reasonable, credible,
and of solid value, from which a rational trier of fact could find the defendant
guilty beyond a reasonable doubt.” (People v. Kipp (2001) 26 Cal.4th 1100, 1128;
see also People v. Mayfield (1997) 14 Cal.4th 668, 790-791 [same standard of
review applies to determine the sufficiency of the evidence to support a special
circumstance finding].) “Where, as here, the jury’s findings rest to some degree
upon circumstantial evidence, we must decide whether the circumstances
reasonably justify those findings, ‘but our opinion that the circumstances also
might reasonably be reconciled with a contrary finding’ does not render the
evidence insubstantial.” (People v. Earp (1999) 20 Cal.4th 826, 887-888.)
Robbery is “the felonious taking of personal property in the possession of
another, from his person or immediate presence, and against his will,
accomplished by means of force or fear.” (§ 211.) If the other elements are
satisfied, the crime of robbery is complete without regard to the value of the
property taken. (People v. Simmons (1946) 28 Cal.2d 699, 705; People v.
Coleman (1970) 8 Cal.App.3d 722, 728.) The intent to steal must be formed
either before or during the commission of the act of force. (People v. Kipp, supra,
26 Cal.4th at p. 1128; see also People v. Koontz (2002) 27 Cal.4th 1041, 1080;
People v. Frye (1998) 18 Cal.4th 894, 956.) With respect to burglary, that crime
requires an entry into a specified structure with the intent to commit theft or any
felony. (People v. Horning (2004) 34 Cal.4th 871, 903; People v. Davis (1998) 18
Cal.4th 712, 723-724, fn. 7; § 459.)
Under the felony-murder rule, a murder “committed in the perpetration of,
or attempt to perpetrate” one of several enumerated felonies, including robbery
and burglary, is first degree murder. (§ 189.) The robbery-murder and burglary-
murder special circumstances apply to a murder “committed while the defendant
was engaged in . . . the commission of, [or] attempted commission of” robbery and
burglary, respectively. (§ 190.2, subd. (a)(17)(A), (G).) “[T]o prove a felony-
murder special-circumstance allegation, the prosecution must show that the
defendant had an independent purpose for the commission of the felony, that is,
the commission of the felony was not merely incidental to an intended murder.”
(People v. Mendoza (2000) 24 Cal.4th 130, 182.)
Here, the prosecution’s theory was that defendant and codefendant
Wynglarz planned to steal drugs or money from Skillman, a known drug dealer, at
his house; once there, defendant killed Skillman and Rita during that planned
burglary and robbery. The prosecution presented evidence that on the day of the
murders defendant needed money because he was behind on his truck payments.
Defendant armed himself with a loaded gun and followed Wynglarz to Skillman’s
house. Defendant and Wynglarz fought with Rita on the front porch and pushed
him into the house. Moments after defendant and Wynglarz entered the house,
they subdued Skillman and Rita, who were both unarmed. Defendant shot
Skillman and Rita, each twice. Skillman was shot at close range; Rita was shot
from just a few feet away. When defendant and Wynglarz left the house, they
were calm, smiling as they walked over to defendant’s truck. From a neighbor’s
yard, to which he had escaped, Gattenby saw defendant carry a paper or canvas
bag in his hand. From across the street, another neighbor saw Wynglarz carry a
nylon-like bag that “bowed down” under the weight of its contents.
Based on this evidence, a rational jury could find beyond a reasonable
doubt that defendant had gone into Skillman’s house with the intent to steal, thus
committing burglary. For the same reason, the evidence is sufficient to support
not only defendant’s first degree murder convictions based on the theory that they
occurred in the commission of a burglary, but also the jury’s burglary-murder
Based on this same evidence, a rational jury could find beyond a reasonable
doubt that before he murdered Skillman and Rita, defendant had formed the intent
to take their property—drugs or money or both—and that defendant committed the
murders to facilitate the taking of that property. A rational jury could also find
beyond a reasonable doubt that defendant took property from Skillman and Rita.
When defendant and codefendant Wynglarz left the house after the murders, they
took with them a bag and the bag’s contents, which a rational jury could infer
consisted of stolen money or drugs, or both, together with the murder weapon.
Therefore, we conclude that substantial evidence supports not only defendant’s
convictions of robbery and first degree murder based on the theory that the
murders of Skillman and Rita occurred in the commission of a robbery, but also
the jury’s robbery-murder special-circumstance findings that each murder
occurred during the commission of robbery. (See People v. Horning, supra, 34
Cal.4th 871, 904; People v. Bolden (2002) 29 Cal.4th 515, 554; People v. Frye,
supra, 18 Cal.4th at p. 956.)
2. Premeditated and deliberate murder
With respect to the killings of Skillman and Rita, the trial court instructed
the jury on felony murder based on burglary and robbery and also on premeditated
and deliberate murder.
Defendant contends his murder convictions must be reduced to second
degree murder because the evidence was insufficient to establish the murders were
premeditated and deliberate and thus first degree murders. As we just concluded,
the evidence was sufficient for the jury to have found defendant guilty of first
degree murder based on the theory that the murders occurred in the commission of
two felonies: burglary and robbery. As discussed below, we also conclude the
evidence was sufficient for the jury to have found the murders were premeditated
In People v. Anderson (1968) 70 Cal.2d 15, we said that “generally first
degree murder convictions are affirmed when (1) there is evidence of planning,
motive, and a method of killing that tends to establish a preconceived design;
(2) extremely strong evidence of planning; or (3) evidence of motive in
conjunction with either planning or a method of killing that indicates a
preconceived design to kill.” (People v. Mincey (1992) 2 Cal.4th 408, 434-435.)
These factors are not the exclusive means, however, to establish premeditation and
deliberation; for instance, “an execution-style killing may be committed with such
calculation that the manner of killing will support a jury finding of premeditation
and deliberation, despite little or no evidence of planning and motive.” (People v.
Lenart (2004) 32 Cal.4th 1107, 1127.)
Here, based on the evidence, a rational jury could find beyond a reasonable
doubt that defendant and codefendant Wynglarz went to Skillman’s house to rob
Skillman of drugs or money. They arrived at Skillman’s house separately to avoid
any suspicion, and defendant carried a loaded gun. Within seconds of entering the
house, defendant was waving a loaded gun above Skillman, who was lying on the
floor near the front door, and at Rita, who was on the sofa a few feet away. Both
men were unarmed, and Skillman pleaded for his life. Defendant replied, “I ain’t
taking your shit,” and then shot Skillman and Rita. This evidence amply supports
a finding of premeditation and deliberation.
B. Skillman’s Statement to Gattenby
Defendant contends the trial court erred by excluding a statement Skillman
made to Gattenby shortly before defendant shot Skillman and Rita.
These are the relevant facts: At the preliminary hearing, on cross-
examination by defendant’s counsel, Gattenby testified that about 12:15 p.m. on
the day of the murders, after codefendant Wynglarz had first left Skillman’s house,
Gattenby was upstairs with murder victims Skillman and Rita when he heard a
knock at Skillman’s front door. Skillman said, “[Wynglarz] burned me over a
quarter ounce of meth. I don’t know what [he] is up to. Stay up here.” During his
defense case, defendant sought to introduce this statement by Skillman to impeach
Gattenby’s testimony (on cross-examination by counsel for codefendant
Wynglarz) and Wynglarz’s testimony (on direct examination) that Skillman was
friendly with Wynglarz on the day of the murders.
The trial court ruled that Skillman’s statement was probative of his
relationship with codefendant Wynglarz and was also relevant to explain
Skillman’s state of mind and conduct when he encountered defendant and
Wynglarz at his front door.8 The court admitted the portion of Skillman’s
statement that impeached Wynglarz’s description of his relationship with Skillman
as friendly (“I don’t know what [he] is up to. Stay up here”), but it excluded the
portion of Skillman’s statement that mentioned that “[Wynglarz] burned me over a
quarter ounce of meth” as more prejudicial than probative under Evidence Code
On appeal, defendant contends the trial court’s redaction of Skillman’s
statement that “[Wynglarz] burned me over a quarter ounce of meth” violated
article I, section 28, subdivision (d) of the California Constitution, which prohibits
the exclusion of relevant evidence in any criminal trial except as provided by
statute. Defendant argues the trial court’s reason for disallowing the introduction
of the statement—its prejudicial nature—did not apply to defendant because
admission of the entire statement was crucial to defendant’s self-defense theory
that Skillman was the aggressor and attacked defendant as defendant came in the
Under Evidence Code section 352, which is an express exception to article
I, section 28, subdivision (d) of the California Constitution, a trial court has
discretion to exclude evidence when its probative value is outweighed by concerns
of undue prejudice, confusion, or consumption of time. On appeal, we review a
The trial court, on its own motion, considered the admissibility of
Skillman’s statement under the state of mind exception to the hearsay rule and
ruled the statement was admissible on that basis. (Evid. Code, § 1250, subd.
(a)(2).) That ruling is not at issue here.
trial court’s ruling under Evidence Code section 352 for abuse of discretion.
(People v. Pollock (2004) 32 Cal.4th 1153, 1171.)
Even if we assume the trial court abused its discretion in not admitting
Skillman’s comment that “[Wynglarz] burned me over a quarter ounce of meth,”
defendant suffered no possible prejudice. Admission of the redacted portion of
Skillman’s statement would have added little to defendant’s theory at trial that
Skillman was the aggressor and attacked defendant at the front door. On the day
of the murders, Skillman had a loaded .22 rifle in his bedroom. Yet he did not
take that weapon with him when confronting defendant and codefendant Wynglarz
at the front door. This alone undercuts defendant’s theory that Skillman was the
aggressor. Finally, the prosecution presented overwhelming evidence that
defendant entered the house with a loaded weapon and almost immediately
subdued Skillman and Rita and shot them execution style. Admission of the
excluded statement would not have resulted in a more favorable verdict for
defendant. (People v. Watson (1956) 46 Cal.2d 818, 836.) Even if we were to
assume error implicating defendant’s rights under the federal Constitution, the
error was harmless beyond a reasonable doubt under Chapman v. California
(1967) 386 U.S. 18, 24.
C. Further Cross-examination of Defendant by the Prosecutor
Defendant contends the trial court erred in allowing the prosecution to re-
open its cross-examination of defendant. These are the relevant facts: After
defendant’s arrest, the Westminster police interviewed him and advised him of his
rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Defendant
signed a consent form indicating that he had read his rights and understood them.
During the interview, defendant denied any involvement in the two murders. He
also denied that his pickup truck had been at the scene. After a few minutes,
defendant asked for an attorney, and the officers stopped their questioning. The
police tape-recorded the interview and defendant’s request for an attorney.
At trial, defendant testified on his own behalf. He admitted that he was at
the murder scene and that he had shot Skillman and Rita, but he claimed he was
acting in self-defense. The prosecution then cross-examined defendant but did not
ask him about his interview with the police. Thereafter, codefendant Wynglarz’s
counsel, in cross-examining defendant, sought to impeach him with statements he
had made to the Westminster police. Defendant admitted he had lied to the police
but claimed he had done so because he was confused, explaining that he asked to
speak with an attorney because of this confusion.
Defendant’s counsel conducted no redirect examination of defendant. The
trial court then asked whether the prosecution wanted to question defendant
regarding the issues raised by Wynglarz’s counsel’s cross-examination; the
prosecutor said he did. Counsel for defendant objected, asserting that further
cross-examination by the prosecution would be improper because defense counsel
had conducted no redirect examination. The trial court overruled the objection,
stating that defendant’s comments to the police were a significant issue on which
the prosecutor could properly cross-examine defendant. The prosecution then
questioned defendant about his interview with the police, bringing out additional
inconsistent statements and eliciting defendant’s admissions that he had lied to the
On appeal, defendant contends the trial court abused its discretion by
permitting the prosecution to “recross-examine” defendant. “As a general matter,
an appellate court reviews a trial court’s ruling as to the order of proof for abuse of
discretion. That is because, as a general matter, the trial court has authority to
‘regulate the order of proof’ in the exercise of ‘its discretion.’ (Evid. Code,
§ 320.)” (People v. Alvarez (1996) 14 Cal.4th 155, 207; see § 1044 [the trial court
has the duty to conduct a criminal trial in an orderly and expeditious manner];
Evid. Code, § 765 [the trial court has broad discretion to regulate witness
examinations].) Under Evidence Code section 774, the trial court may permit
reexamination of a witness on any new matter on which another party has
examined the witness. The Law Revision Commission Comment to this provision
states that Evidence Code section 774 applies to direct, cross-, redirect, and
We discern no abuse of discretion. Here, on cross-examination of
defendant, counsel for codefendant Wynglarz raised the issue of defendant’s prior
inconsistent statements to the police. Defendant admitted he had lied to the police
but claimed he was confused at that time, indicating he had requested an attorney
during the interview. Because defendant’s responses raised new issues about
defendant’s credibility, the prosecution was entitled to explore these issues. (Evid.
Code, § 774; see also People v. Chatman (2006) 38 Cal.4th 344, 382 [when a
defendant voluntarily testifies, the district attorney may introduce evidence
through cross-examination that explains or refutes his statements or the inferences
that may reasonably be drawn from them].) Under these circumstances, we
conclude the trial court did not abuse its discretion in allowing the prosecutor to
reopen cross-examination of defendant.
Defendant argues that because the trial court allowed the prosecution to
further cross-examine him, he was “forced” to play the entire audiotape of the
police interview, which included his invocation of his right to counsel, and thus he
was denied the opportunity to put on the “defense of his choice.” We address this
contention in our discussion of defendant’s related claim of prosecutorial
misconduct, where we more fully discuss the facts under which the audiotape of
the police interview was played to the jury. (See part III.D.2, post.)
D. Alleged Prosecutorial Misconduct
Defendant claims several instances of prejudicial misconduct by the
prosecutor in violation of both the Fifth Amendment of the United States
Constitution and article I, section 15 of the California Constitution. We conclude
no prejudicial misconduct occurred.
“A prosecutor’s conduct violates the Fourteenth Amendment to the federal
Constitution when it infects the trial with such unfairness as to make the
conviction a denial of due process.” (People v. Morales (2001) 25 Cal.4th 34, 44;
accord, Darden v. Wainwright (1986) 477 U.S. 168, 181; Donnelly v.
DeChristoforo (1974) 416 U.S. 637, 643.) “Conduct by a prosecutor that does not
render a criminal trial fundamentally unfair is prosecutorial misconduct under
[California] law only if it involves the use of deceptive or reprehensible methods
to attempt to persuade either the trial court or the jury.” (People v. Morales,
supra, 25 Cal.4th at p. 44.)
Generally, a claim of prosecutorial misconduct is not reviewable on appeal
unless the defendant makes a timely objection and asks the trial court to admonish
the jury to disregard the prosecutor’s improper remarks. (People v. Earp, supra,
20 Cal.4th at p. 858.) In the absence of an objection, “the point is reviewable only
if an admonition would not have cured the harm caused by the misconduct.”
(Ibid.) Here, defendant did not object to any of the instances of purported
prosecutorial misconduct. Because an admonition would have cured any possible
harm from the claimed instances of misconduct, defendant has not preserved his
claims of misconduct. In any event, defendant’s contentions lack merit, as
1. Questioning defendant about the credibility of other witnesses
Defendant asserts the prosecutor improperly cross-examined defendant on
whether codefendant Wynglarz and witness Gattenby presented false testimony.
The following exchange is an example of the prosecutor’s “were they lying” line
“[Prosecutor:] You heard Mr. Wynglarz tell in his version about how you
encouraged him to get the [audio] speakers [from Skillman]; is that the way it
“[Defendant:] No, sir, it is not.
“[Prosecutor:] Was that just a fabrication from Mr. Wynglarz in your
“[Defendant:] Yes, sir, it was a fascinating story. [¶] . . . . [¶]
“[Prosecutor:] And, in fact, when you came into the house with the gun
you heard Gerald Skillman come down the stairs and say, ‘You guys don’t have to
do this. This is my mother’s house’; you heard him say that?
“[Defendant:] No, sir, I didn’t.
“[Prosecutor:] You heard Douglas Gattenby testify to that?
“[Defendant:] Yes, sir, I heard, but that was never said.
“[Prosecutor:] And you heard Douglas Gattenby tell this court and this
jury that he heard you say, ‘I ain’t taking your shit,’ and that is when you shot
“[Defendant:] No, sir.
“[Prosecutor:] And you are saying Douglas Gattenby is lying about that,
“[Defendant:] Yes, sir, he is lying about that. [¶] . . . . [¶]
“[Prosecutor:] Now, you heard Mr. Wynglarz say that after the shootings
you came upstairs to Gerald Skillman’s bedroom; you heard him say that?
“[Defendant:] Yes, sir, I heard.
“[Prosecutor:] And you are saying that is a lie?
“[Defendant:] Yes, sir, it is a lie.
“[Prosecutor:] He is lying about that?
“[Defendant:] Yes, sir. [¶] . . . . [¶]
“[Prosecutor:] As you sit here right now do you know of any reason that
Mr. Wynglarz would lie about that fact?
“[Defendant:] I think he is just trying to save his own neck.
“[Prosecutor:] Now, he said that when you came up to the bedroom, that it
was you who told him to take a bag, a duffel bag that was in the bedroom, to take
it off the doorknob. Are you saying that that is a lie?
“[Defendant:] Yes, sir, it is a lie. [¶] . . . . [¶]
“[Prosecutor:] And Mr. Wynglarz says that you took the gun with you and
the bag and that he never saw them again?
“[Defendant:] No, sir, that is not correct.
“[Prosecutor:] He is lying about that?
“[Defendant:] Yes, sir, he is.”
Recently, in People v. Chatman, supra, 38 Cal.4th at page 384, we made
these observations about “were they lying” questions by a prosecutor: “[C]ourts
should carefully scrutinize [a prosecutor’s] ‘were they lying’ questions in context.
They should not be permitted when argumentative, or when designed to elicit
testimony that is irrelevant or speculative. However, in its discretion, a court may
permit such questions if the witness to whom they are addressed has personal
knowledge that allows him to provide competent testimony that may legitimately
assist the trier of fact in resolving credibility questions.” With respect to asking
such questions of a defendant, we stated: “A defendant who is a percipient
witness to the events at issue has personal knowledge whether other witnesses
who describe those events are testifying truthfully and accurately. As a result, he
might also be able to provide insight on whether witnesses whose testimony
differs from his own are intentionally lying or are merely mistaken.” (Id. at p.
Here, by choosing to testify, defendant put his own veracity in issue.
Defendant claimed that murder victims Skillman and Rita attacked him at the front
door of Skillman’s house, that he shot them both in self-defense, and that
codefendant Wynglarz concealed defendant’s gun in a bag as they left Skillman’s
house. Wynglarz denied that he planned to rob or shoot anyone, and testified he
was shocked when defendant pulled out his gun, ordered Wynglarz into the house,
and then shot Skillman and Rita. Gattenby testified that he saw defendant
pointing a gun at Skillman and Rita, who had not threatened either defendant or
Wynglarz. The prosecution’s questions allowed defendant to clarify his position
and to explain why codefendant Wynglarz or eyewitness Gattenby might have a
reason to testify falsely. The jury properly could consider any such reason
defendant provided; if defendant had no explanation, the jury could consider that
fact in determining whether to credit defendant’s testimony. (People v. Chatman,
supra, 38 Cal.4th at p. 383.) Thus, the prosecution’s questions in this case
“sought to elicit testimony that would properly assist the trier of fact in
ascertaining whom to believe.” (Ibid.) There was no prosecutorial misconduct.
2. Asserted violation of a trial court order
Defendant contends the prosecution violated an order of the trial court
limiting the scope of questioning of defendant regarding the statements he made
during a police interview. As noted earlier, defendant initially waived his
Miranda rights and agreed to talk with Westminster police officers about the
murders of Skillman and Rita. After the officers had briefly questioned him,
defendant said he wanted an attorney, and all questioning stopped. Police tape-
recorded the entire interview, including defendant’s invocation of his right to
At trial and outside the presence of the jury, the parties discussed the
admissibility of defendant’s statements to police. The trial court and the parties
agreed that defendant’s statements to the police were obtained in compliance with
Miranda. The trial court ruled that defendant’s statements were made voluntarily
and could be introduced as prior inconsistent statements.
The prosecution said it had prepared an edited version of the recorded
interview that redacted defendant’s invocation of his right to counsel. The trial
court agreed the jury should not hear the invocation. The court then stated: “[The
prosecutor] can confront [defendant] with the [edited tape of the interview], and
then [defendant] can explain it.” The court indicated, however, that in questioning
defendant about the taped interview, the parties should not “get into the Miranda
During the prosecution’s re-opening of cross-examination of defendant, it
asked this question: “You had already said that you were willing to talk without
an attorney, didn’t you?,” to which defendant responded, “Sir, I was confused.”
The trial court interrupted, stating that the prosecution had violated the court’s
admonition not to question defendant “about the Miranda advisement.” The court
asked whether defendant’s counsel wanted the court to give a limiting instruction,
strike defendant’s testimony, or play the entire taped interview. Defendant’s
counsel chose the latter. The tape recording was played to the jury and the
prosecution resumed its cross-examination of defendant. On appeal, defendant
contends the prosecution committed misconduct when it asked defendant whether
he had told the police officers that he would talk to them without an attorney.
Assuming for the sake of argument that the trial court prohibited the
prosecutor from questioning defendant about his willingness to speak to the police
without an attorney when it said, “I don’t think we need to get into the Miranda
issues,” defendant suffered no possible prejudice from the prosecution’s question.
The jury was already aware from the cross-examination of defendant by
codefendant Wynglarz’s counsel that defendant’s statements to police were
inconsistent with the version of events defendant testified to at trial. Defendant
told the police he was not present when Skillman and Rita were shot; at trial, he
admitted shooting them. Moreover, the prosecution’s question to defendant
whether he had agreed to speak to the police without an attorney being present
was fully consistent with the prosecution’s redacted version of the recorded police
interview of defendant, which included the Miranda advisements. Defendant not
only agreed that this redacted version of the recording should be played to the jury
but also expressly requested that the jury hear the entire unredacted recording as a
remedy for what the trial court perceived as the prosecutor’s improper reference to
defendant’s initial waiver of his right to counsel.
For the same reasons, we reject defendant’s contention that, as a result of
the prosecutor’s violation of the trial court’s order not to question defendant about
his Miranda advisements, defendant was prejudiced because he was “forced” to
agree to the jury’s hearing the entire taped police interview. Defendant, however,
was not “forced” to agree to the playing of the tape-recorded statement for the
jury. He could instead have asked the trial court to admonish the jury not to
consider whether he had invoked his right to counsel. Such an admonition would
have been more than adequate to eliminate any prejudicial effect arising from the
prosecution’s allegedly improper question. The question had little or no
prejudicial effect because the prosecution made no mention of defendant’s
invocation of his right to counsel (from which the jury might have drawn an
inappropriate inference of guilt), and mentioned only defendant’s waiver of his
Miranda rights, from which the jury could not have drawn any adverse inferences.
3. Asserted misstatement of evidence
The prosecution presented evidence that at 12:24 p.m. on the day of the
murders, the Westminster Police Department notified officers to be on the lookout
for two male suspects in a red dual-wheel pickup truck. Westminster Police
Officer Steve Moore, then on motorcycle patrol, saw a truck matching this
description, and followed it for about one mile. Moore noticed that codefendant
Wynglarz, who was driving the truck, turned around several times and looked at
The prosecution’s guilt phase closing argument included the following:
“After the killings, [Wynglarz] drives the getaway car. Is that an accident?
Remember, I was asking, ‘Well, Mr. Tafoya, if it’s your car and you don’t want
other people driving it, why didn’t you ask for the keys?’ [¶] The reason, I would
submit, is Mr. Tafoya was the one with the gun. So if there would be a problem, if
there would be a police officer who pulls them over, Mr. Wynglarz needs both
hands on the wheel. He needs to drive. Mr. Tafoya has the gun free if he needs to
use it. That is why Mr. Wynglarz is driving Mr. Tafoya’s truck. He’s the getaway
driver. It allows the gun to be used if need be. Fortunately for all of us,  Officer
Moore did not try to pull them over, because who knows what would have
happened to Officer Moore.”
Defendant complains the prosecutor misstated the evidence by arguing that
defendant had the gun on his person while he and codefendant Wynglarz escaped
in defendant’s truck and by suggesting that defendant would have shot Officer
Moore had he tried to stop them. We disagree.
“While counsel is accorded ‘great latitude at argument to urge whatever
conclusions counsel believes can properly be drawn from the evidence,’ counsel
may not assume or state facts not in evidence [citation] or mischaracterize the
evidence.” (People v. Valdez (2004) 32 Cal.4th 73, 133.) Whether the inferences
drawn by the prosecutor are reasonable is a question for the jury. (People v.
Dennis (1998) 17 Cal.4th 468, 522.) Here, the prosecution neither
mischaracterized the evidence nor assumed facts not in evidence, but merely drew
permissible inferences from it. Although defendant testified that he put the gun in
a bag, and threw the bag in the back of his truck, no other witness so testified to
his version of events. Moreover, according to codefendant Wynglarz, defendant
had the gun on his lap as they drove away from Skillman’s house. Thus, the
prosecution’s argument that defendant was armed during the getaway was
consistent with the evidence and not improper.
Furthermore, the prosecution could reasonably infer from the evidence that
defendant, a passenger in the getaway truck, might have used the gun he held to
shoot Officer Moore had the latter stopped defendant’s truck. The evidence
showed that defendant had just shot two unarmed men, Skillman and Rita, almost
immediately after he entered Skillman’s house.
4. Claim that the prosecutor improperly advised the jury of his
Defendant faults the prosecutor for stating during closing argument that
defendant was lying and characterizing defendant’s testimony as “obviously
fabricated” and “not based upon the truth.” Codefendant Wynglarz objected that
the prosecutor was improperly expressing his own opinion, and the trial court
admonished the jury: “Ladies and gentlemen, that is correct. It isn’t appropriate
for—it isn’t for the lawyers to decide who is telling the truth or not telling the
truth. It is not their opinion that is important. It is your opinion. So it is, the
lawyer’s remarks are intended to suggest to you what they believe the evidence
supports, not what they personally believe.” Assuming Wynglarz’s objection
properly preserved this issue for defendant, we discern no prosecutorial
“The prosecutor is permitted to urge, in colorful terms, that defense
witnesses are not entitled to credence, . . . [and] to argue on the basis of inference
from the evidence that a defense is fabricated . . . .” (People v. Pinholster, supra,
1 Cal.4th at p. 948; accord, People v. Wilson (2005) 36 Cal.4th 309, 338 [no
impropriety in asserting that the defendant, who had provided conflicting versions
of the events, was lying].) Here, the prosecution properly based its argument on
the evidence admitted at trial or reasonable inferences drawn from it. A
reasonable juror would have understood the prosecution’s reference to defendant’s
lying during his testimony as describing the trial evidence rather than as a
statement of the prosecution’s personal opinion.
E. Defendant’s Requested Jury Instructions
Defendant contends the trial court erred in refusing to give defendant’s
proposed special instructions G and H, thus depriving him of his rights under the
Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and
under article I, sections 15 and 17 of the California Constitution. Not so.
Special instruction G read: “In considering the burglary special
circumstance, a necessary element is that the burglary must have been done for
some purpose other than the commission of the homicide itself. If the evidence
shows only that the defendant committed a burglary in order to facilitate the
homicide, you must find that there was no independent felonious purpose. [¶] If
from all the evidence you have a reasonable doubt that the defendant committed
burglary for such independent felonious purpose, you must find the defendant not
guilty of the burglary special circumstance.” Special instruction H was identical
to special instruction G except that it substituted the crime of “robbery” for
These two instructions proposed by the defense merely duplicated standard
jury instructions that the trial court gave, which told the jury that the special
circumstances of murder in the commission of robbery and burglary are not
established if the robbery or burglary was “merely incidental to the murder.”9
Accordingly, the trial court did not err in refusing to give these instructions.
(People v. Earp, supra, 20 Cal.4th at pp. 902-903.)
IV. PENALTY PHASE ISSUES
A. Alleged Prosecutorial Misconduct
At the penalty phase of the trial, the prosecutor’s closing argument urged
the jury to consider all of the evidence admitted during both the guilt and penalty
phases of the trial, the aggravating evidence of criminal conduct presented in the
penalty phase and proven beyond a reasonable doubt, and the mitigating evidence
such as sympathy for defendant. After stressing that the jury had to follow the
trial court’s instructions, the prosecutor said: “What you may not consider.
Number one, you may not consider the defendant not testifying in this phase of the
trial. You are going to be instructed in this phase that that is not a fact that should
even enter into your decision in any way. You cannot speculate as to the reasons
why or why not. It is a fact that is not entitled to enter into your decision in any
way, the fact that he did not testify in this phase of the trial. Certainly you can
The trial court gave this version of CALJIC No. 8.81.17: “To find that the
special circumstance referred to in these instructions as murder in the commission
of burglary or robbery is true, it must be proved, one, the murder was committed
while a defendant was engaged in the commission or attempted commission of a
burglary or robbery [or] . . . [¶] two, the murder was committed in order to carry
out or advance the commission of the crime or burglary or robbery or to facilitate
the escape therefrom or to avoid detection, in other words, the special
circumstance referred to in these instructions is not established if the attempted
burglary or robbery was merely incidental to the commission of the murder.”
include all evidence from the last phase. You can discuss his testimony from the
last phase of the trial. That is part of the evidence you have heard. But you
cannot speculate or consider a defendant not testifying in this phase of the trial.”
Defendant made no objection to these remarks during the prosecutor’s argument.
The next day, defendant asserted the prosecutor’s comment was an
improper reference to his failure to testify at the penalty phase. (See Griffin v.
California (1965) 380 U.S. 609 (Griffin).) The trial court made no ruling on the
matter. Defendant raised the issue again in a motion for a new trial. The trial
court ruled that the prosecutor’s comment was improper but that it had not
prejudiced defendant. The court noted that the comment was brief and only a
small part of the prosecutor’s penalty phase argument. The court thus concluded it
was not likely the jury gave much weight to the comment.
Defendant now contends that the prosecutor’s reference to defendant’s
failure to testify at the penalty phase requires reversal of the death judgment.
Defendant concedes that he did not object to the comment when made, stating that
he did not want to draw the jury’s attention to it. We note that at the hearing on
defendant’s motion for a new trial, the trial court agreed with the defense that the
prosecutor’s remark was improper. Thus, it seems likely that had defendant
objected to the remark when it was made, the court would have sustained the
objection, stricken the prosecutor’s comment, and admonished the jury not to
consider it. Because an admonition would have cured any possible harm from the
prosecutor’s remark, defendant failed to preserve his claim of misconduct by
failing to object. Even assuming defendant has preserved this issue for appeal, the
claim lacks merit, as discussed below.
“Under the Fifth Amendment of the federal Constitution, a prosecutor is
prohibited from commenting directly or indirectly on an accused’s invocation of
the constitutional right to silence.” (People v. Lewis (2001) 25 Cal.4th 610, 670,
citing Griffin, supra, 380 U.S. at pp. 614-615.) This rule applies to the penalty
phase of a capital case. (Mitchell v. United States (1999) 526 U.S. 314, 327-328;
People v. Carter (2005) 36 Cal.4th 1215, 1277; People v. Crittenden (1994) 9
Cal.4th 83, 147.)
Here, the prosecutor’s comment echoed standard jury instruction CALJIC
No. 2.60: “A defendant in a criminal trial has a constitutional right not to be
compelled to testify. You must not draw any inference from the fact that a
defendant does not testify. . . .” The prosecutor’s comment also repeated
defendant’s special instruction J, which was given to the jury: “In deciding
whether or not to testify at the penalty phase, the defendant may choose to rely on
the state of the evidence and upon the failure, if any, of the People to prove
beyond a reasonable doubt every essential element of the crimes and conduct
proffered as evidence in aggravation. No lack of testimony on defendant’s part
will make up for a failure of proof by the People so as to support a finding against
him on any such essential element.” Under these circumstances, we conclude no
B. Unadjudicated Criminal Activity
The prosecution at the penalty phase of the trial sought to present, as
evidence of defendant’s criminal conduct involving force or violence (§ 190.3,
factor (b)), the rape of Susan M., which occurred in Anaheim some 15 years
before defendant’s capital trial. The Orange County District Attorney had charged
defendant with the rape but was unable to proceed when Susan M. failed to appear
for the preliminary hearing. Defendant objected to the evidence of the Susan M.
rape as being more prejudicial than probative (Evid. Code, § 352), claiming it was
too remote and thus unreliable. He also asserted that because the prosecution’s
records and most of the court records in that rape case had been destroyed in the
normal course of business five years after the case was dismissed, his right to due
process was violated by having to confront evidence of the rape allegations
without possible exculpatory evidence that might have been contained in those
destroyed records. The trial court overruled defendant’s objection and allowed the
prosecution to introduce the evidence.
Susan M. testified that two men, one Hispanic and one African-American,
had raped her on January 27, 1980. That evening she had been working as a
street-walking prostitute when she accepted a ride from defendant and a second
man as she walked home on Katella Avenue in Anaheim. Defendant drove the
car, and the second man sat in the front passenger seat. Susan M. got into the back
seat. Almost immediately, the second man pointed a gun at Susan M., climbed
into the back seat with her, and forced her to have sexual intercourse with him.
Defendant then stopped the car, got into the back seat and forced Susan M. to have
sexual intercourse with him. After these events, while still in the car with these
two men, Susan M. saw police officers at a traffic accident and yelled for help
through the car’s back seat window. The police gave chase, following the car into
a dead-end street, where Susan M. was able to get out of the car just before the
police surrounded it and arrested defendant and the other man. At the penalty
phase in this capital case, Susan M. did not recognize defendant, but she identified
him from the booking photographs taken of him on the night she was raped. She
admitted she had been convicted of a number of offenses, including robbery and
attempted robbery, but she said that she had not been involved in any criminal
conduct for more than 14 years.
Defendant further contends that section 190.3, factor (b), violates
constitutionally protected rights to due process, a fair and speedy jury trial,
confrontation of witnesses, and a reliable penalty verdict because it permits the use
of unadjudicated criminal activity such as the Susan M. rape for which either the
statute of limitations has run or the charges have been dismissed. We have
repeatedly rejected such facial challenges to this statutory provision. (See People
v. Anderson (2001) 25 Cal.4th 543, 584-585; People v. Jenkins, supra, 22 Cal.4th
at p. 1054; People v. Rodrigues (1994) 8 Cal.4th 1060, 1157-1163; People v.
Balderas (1985) 41 Cal.3d 144, 204-205.) Defendant fails to persuade us to
reconsider these decisions.
Defendant claims violations of his rights under the federal Constitution’s
Fifth, Sixth, Eighth, and Fourteenth Amendments based on the trial court’s
admission of the Susan M. rape evidence. Specifically, he asserts the evidence
was unreliable because some 15 years had passed between the incident and his
trial in this case, and because the unavailability of police reports and court records
interfered with his investigation of the incident and prevented him from
adequately defending against Susan M.’s account of the rape.
“[T]he state has a legitimate interest in allowing a jury to weigh and
consider a defendant’s prior criminal conduct in determining the appropriate
penalty, so long as reasonable steps are taken to assure a fair and impartial penalty
trial.” (People v. Rodrigues, supra, 8 Cal.4th 1060, 1161.) Remoteness of the
prior criminal conduct affects the weight of the evidence, not its admissibility.
(Ibid.) Here, although defendant’s rape of Susan M. occurred 15 years before
defendant’s capital trial and some of the records of the incident were no longer
available, defendant had ample information from which to prepare his defense,
including copies of the municipal court records, the prosecution’s report of its
interview of Susan M. in preparation for this trial, and Susan M.’s rap sheet.
Moreover, in this case, defendant conducted a vigorous cross-examination of
Susan M., focusing on her extensive criminal history. He also was able to
interview the other man involved in the raping of Susan M., as well as the
prosecutor in the rape case. Further, the trial court here instructed the jury that
before it could rely on this prior crime evidence, it had to find beyond a reasonable
doubt that Susan M.’s rape allegation was true. (People v. Sapp (2003) 31 Cal.4th
240, 314.) Under these circumstances, admission of the 1980 rape evidence did
not deprive defendant of due process or otherwise violate his constitutional rights.
(See People v. Rodrigues, supra, 8 Cal.4th at pp. 1157-1158.)
Also without merit is defendant’s contention that the rape evidence was
irrelevant to the issues in the penalty phase. Under section 190.3, factor (b), a
penalty jury can consider “[t]he presence or absence of criminal activity by the
defendant which involved the use or attempted use of force or violence or the
express or implied threat to use force or violence.” To be relevant under this
factor, the prosecutor’s evidence must establish that defendant committed a crime
involving force or violence. (People v. Combs (2004) 34 Cal.4th 821, 859.) This
relevancy requirement was met by Susan M.’s testimony at the penalty phase that,
late in the evening on January 27, 1980, defendant and another man raped her at
gunpoint in the back seat of a car.
Defendant further argues that the prosecutor in the rape case failed to
preserve “potentially useful” evidence, in violation of Arizona v. Youngblood
(1988) 488 U.S. 51. That case holds that “unless a criminal defendant can show
bad faith on the part of the [government], failure to preserve potentially useful
evidence does not constitute a denial of due process of law.” (Id. at p. 58, italics
added.) Here, defendant merely speculates that the police files contained
information that would have been “potentially useful” to his defense of the rape
allegations. Furthermore, the prosecution did not act in bad faith, because the
prosecution records were destroyed in the normal course of business as defense
counsel conceded in the trial court. We agree with the Attorney General that a law
enforcement agency cannot be expected to preserve criminal records for possible
use at future capital trials as it has no way to foresee which arrestees or suspects
will commit capital crimes in the future.
C. Penalty Phase Instruction
1. Defendant’s requested jury instructions
Defendant claims error in the trial court’s refusal to give certain special
instructions requested by the defense. He contends the absence of these
instructions deprived him of a penalty phase verdict that was fair and not arbitrary
as required under Fifth, Eighth, and Fourteenth Amendments to the federal
Defendant requested special instruction C, which stated: “You are entitled
to consider as a mitigating factor any aspect of the defendant’s character or record
and any of the circumstances of the offense that the defendant proffers as a basis
for a sentence less than death. You may not refuse to consider or be precluded
from considering any relevant mitigating evidence.”
Defendant’s proposed special instruction D stated: “A jury has a ‘. . .
constitutional duty to consider “any [sympathetic] aspect of the defendant’s
character or record” whether or not related to the offense for which he is on trial,
in deciding the appropriate penalty.’ ”
Defendant’s proposed special instruction E would have told the jury: “You
are permitted to spare defendant’s life ‘for any reason or reasons you deem
satisfactory, including humanitarian consideration, or for no reason, if you choose
to do so.’ ”
The trial court properly refused to give these instructions because they were
duplicative of the language of section 190.3’s factor (k), as expanded in People v.
Easley (1983) 34 Cal.3d 858, and as set forth in CALJIC No. 8.85 and given to the
jury, as follows: “You shall consider, take into account, and be guided by the
following factors, if applicable: . . . [¶] (k) Any other circumstance which
extenuates or lessens 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.”
2. CALJIC No. 8.85
Defendant makes several contentions regarding CALJIC No. 8.85,
mentioned above, which identifies the aggravating and mitigating factors the jury
may consider in deciding penalty. We have in earlier cases rejected these same
contentions, and defendant offers no persuasive reason for us to reconsider them
here. Below we summarize the holdings of those cases.
The trial court is not required “to instruct the jury not to ‘double count’ the
same facts as circumstances of the crime and as special circumstances.” (People v.
Cain (1995) 10 Cal.4th 1, 68.) “The jury’s use during the penalty phase of
unadjudicated criminal activity, as permitted by section 190.3, factor (b), does not
render a sentence unreliable.” (People v. Koontz, supra, 27 Cal.4th at p. 1095.)
CALJIC No. 8.85 “is [not] constitutionally flawed because it fails to inform the jury
that factors (d) (‘extreme mental or emotional disturbance’) and (h) (‘mental disease
or defect or the effects of intoxication’) can only be utilized as mitigating factors.”
(People v. Stanley (2006) 39 Cal.4th 913, 962.) The trial court is not required to
instruct the jury that the absence of any mitigating factor may not be considered
aggravating. (People v. Coddington (2000) 23 Cal.4th 529, 639.) The trial court need
not delete irrelevant factors from CALJIC No. 8.85. (People v. Box, supra, 23 Cal.4th
at p. 1217.) The trial court need not advise the jury “which statutory factors are
relevant solely as mitigating circumstances and which are relevant solely as
aggravating circumstances.” (People v. Farnam (2002) 28 Cal.4th 107, 191.)
3. CALJIC No. 8.88
CALJIC No. 8.88 is a standard instruction regarding the jury’s
consideration of the aggravating and mitigating evidence offered at the penalty
phase.10 Defendant contends this instruction violated his rights under the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the federal Constitution and
corresponding provisions of the California Constitution. Defendant challenges the
instruction on several grounds, each of which, as defendant concedes, this court
has previously rejected.
Thus, we conclude here that use of the phrase “so substantial” in CALJIC
No. 8.88 does not render the instruction unconstitutionally vague. (People v.
The trial court instructed the jury in the language of CALJIC No. 8.88 as
follows: “[I]t is now your duty to determine which of the two penalties, death or
confinement in the state prison for life without possibility of parole, shall be
imposed on the defendant. [¶] After having heard all of the evidence and after
having heard and considered the arguments of counsel, you shall consider, take
into account, and be guided by the applicable factors of aggravating and mitigating
circumstances upon which you will be instructed. [¶] An aggravating factor is
any fact, condition or event attending the commission of a crime which increases
its guilt or enormity, or adds to its injurious consequences which is above and
beyond the elements of the crime itself. A mitigating circumstance is any fact,
condition or event which as such, does not constitute a justification or excuse for
the crime in question, but may be considered as an extenuating circumstance in
determining the appropriateness of the death penalty. [¶] 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.” (Italics
Crew (2003) 31 Cal.4th 822, 858.) CALJIC No. 8.88 properly instructs the jury to
“consider, take into account and be guided by the applicable factors of aggravating
and mitigating circumstances” and cautions against a “ ‘mere mechanical counting
of factors.’ ” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1161.) The trial court
need not instruct the jury that a single mitigating circumstance may outweigh all
of the aggravating circumstances. (See People v. Prieto (2003) 30 Cal.4th 226,
263-264.) Nor was the trial court required to define the meaning of life
imprisonment without possibility of parole (People v. Moon (2005) 37 Cal.4th 1,
43) or otherwise instruct the jury that a defendant receiving such a sentence will
never be paroled. (People v. Dunkle (2005) 36 Cal.4th 861, 940.) The trial court
has no obligation to define on its own motion the terms “aggravating” and
“mitigating.”11 (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1018.) Contrary to
defendant’s assertion, these conclusions are not affected by the high court’s
decisions in Ring v. Arizona (2002) 536 U.S. 584 and Apprendi v. New Jersey
(2000) 530 U.S. 466. (People v. Chatman, supra, 38 Cal.4th at p. 410.)
D. New Trial Motion
After the jury returned its penalty verdict, defendant unsuccessfully moved
for a new trial based on two claims of jury misconduct. He first asserted that
during the guilt phase, a juror talked with a priest about the Catholic Church’s
position on the death penalty. Defendant also claimed that during the penalty
phase deliberations, another juror had a conversation with her employer about the
death penalty. On appeal, defendant contends the trial court erred in denying his
motion for a new trial, thereby depriving him of his rights to counsel, an impartial
As noted on page 50, footnote 10, ante, the trial court in this case defined
the terms “aggravating” and “mitigating.”
jury, and due process under both the federal and state Constitutions. We reject his
1. Juror T.’s conversation with a priest
a. The facts
During penalty phase jury deliberations, the foreperson, Juror H., sent a
note to the trial court that read: “We have knowledge that one juror, after the guilt
phase, spoke with a priest regarding the church’s opinion about the death penalty.”
Upon questioning by the trial court outside the presence of the other jurors, Juror
H. stated that Juror T. during penalty phase deliberations told another juror that he
had briefly spoken with a priest about the death penalty. Thereafter, Juror T.
described to all of the jurors the views of the priest and those of the Catholic
Church regarding the death penalty. Juror H. could not recall either the priest’s
views or the Catholic Church’s views on the death penalty, but remembered that
one opposed the death penalty while the other supported it. When describing this
conversation with the priest, Juror T. spoke loud enough for all of the jurors to
Under questioning by the trial court, Juror T. said that two or three weeks
earlier, he had a brief conversation with a friend who was a retired priest. Juror T.
thought the conversation might have occurred during the guilt phase. The trial
court took judicial notice that the jury returned its guilt phase verdict on February
8, 1995, three weeks before the trial court’s questioning of Juror T. Juror T. said
he met with the priest for personal reasons and not to seek advice on how to vote
at the penalty phase of defendant’s trial. During the conversation, Juror T. told
the priest he was on a jury and inquired about the Catholic Church’s position on
the death penalty. The priest stated that he personally “ ‘probably would be
against it’ ” but that “ ‘the Church approves the law of the land’ ” and thus that a
person would “ ‘not [be] breaking any law or any church law’ ” by voting in favor
of the death penalty. Juror T. denied discussing the details of this case with the
The trial court inquired whether Juror T. had asked the priest about the
Catholic Church’s position on the death penalty because Juror T. thought his
penalty decision might conflict with church law. Juror T. replied: “No, when I
was asked—when I first . . . was selected to become a juror, I was asked that
question, if it bothered me, at that time I probably would have been honest and
open, you know, up front about it. I went ahead and agreed to it. . . . [¶] And I—
and when I say, I agreed to it, I agreed that—that I—that I—you know, if it meant
the death penalty, it was justified, that—that I would uphold whatever I felt the
law was. [¶] This was just a comment that was on my mind and I thought—well,
maybe I can—I just throw it out there. That’s all. I just threw it out there. [¶] I
didn’t—it wasn’t for the purpose of [the priest] telling me what I could do and
what I can’t do. It was nothing like that, your honor.” Juror T. explained that
during the penalty phase deliberations, when the jurors were generally discussing
the death penalty, he had mentioned his conversation with the priest, telling them:
“I was told that you could follow the law of the land. And—and if it came down
to that, you could follow the law of the land. He said it’s permissible.”
The trial court found that Juror T. had engaged in misconduct first by
talking to the priest about the Catholic Church’s position on the death penalty,
possibly during the guilt phase, and second by relaying the contents of that
conversation to the other jurors during penalty phase deliberations. The court
removed Juror T. from the jury and individually asked the remaining jurors
whether they could disregard Juror T.’s comments. All jurors except Juror V. said
they would disregard Juror T.’s comments; Juror V. initially was uncertain
whether she could disregard the comments but ultimately said that she would.
After admonishing the 11 remaining jurors to disregard Juror T.’s comments about
the priest’s and the Catholic Church’s views on the death penalty, the court
selected an alternate juror, and it then instructed the jury to deliberate anew.
Defendant did not move for a mistrial.
After the jury returned its penalty verdict, defendant sought a new trial,
asserting that Juror T.’s misconduct entitled him to a new trial on issues of guilt.
The trial court, for reasons discussed earlier, assumed that Juror T.’s conversation
with the priest occurred during the guilt phase. The court reiterated its earlier
finding that Juror T. committed misconduct first by talking to the priest about the
Catholic Church’s position on the death penalty and second by describing that
conversation to the other jurors during penalty phase deliberations. The trial court
found Juror T. to be truthful when he said during voir dire that he had no religious
convictions about the death penalty that would affect his ability to be fair and
impartial. The trial court further found, based on his examination of Juror T., that
the conversation with the priest had not influenced Juror T.’s guilt phase vote and
that the conversation could not have affected the guilt phase votes of other jurors
because Juror T. had not mentioned the conversation to his fellow jurors until the
penalty phase. The court concluded that any misconduct by Juror T. based on his
conversation with the priest was harmless “beyond any question.”
Defendant contends the trial court erred in denying his new trial motion by
finding that Juror T.’s conversation with the priest did not affect the guilt phase
verdict. Defendant also argues that Juror T.’s information about the Catholic
Church’s view on the death penalty, which he conveyed to the other jurors,
prejudiced penalty phase deliberations. We disagree.
“[W]here a verdict is attacked for juror taint, the focus is on whether there
is any overt event or circumstance . . . which suggests a likelihood that one or
more members of the jury were influenced by improper bias.” (In re Hamilton
(1999) 20 Cal.4th 273, 294.) A juror who “consciously receives outside
information, discusses the case with nonjurors, or shares improper information
with other jurors” commits misconduct. (Ibid.) Jury misconduct “raises a
rebuttable ‘presumption’ of prejudice.” (Id. at p. 295.)
On appeal, the determination whether jury misconduct was prejudicial
presents a mixed question of law and fact “subject to an appellate court’s
independent determination.” (People v. Danks (2004) 32 Cal.4th 269, 303.) We
accept the trial court’s factual findings and credibility determinations if supported
by substantial evidence. (Id. at p. 304.)
We assess prejudice by a review of the entire record. “The verdict will be
set aside only if there appears a substantial likelihood of juror bias. Such bias can
appear in two different ways. First, we will find bias if the extraneous material,
judged objectively, is inherently and substantially likely to have influenced the
juror. [Citations.] Second, we look to the nature of the misconduct and the
surrounding circumstances to determine whether it is substantially likely the juror
was actually biased against the defendant. [Citation.] The judgment must be set
aside if the court finds prejudice under either test.” (In re Carpenter (1995) 9
Cal.4th 634, 653.) In general, when the evidence of guilt is overwhelming, the
risk that exposure to extraneous information will prejudicially influence a juror is
minimized. (In re Hamilton, supra, 20 Cal.4th at p. 301, fn. 21.) An admonition
by the trial court may also dispel the presumption of prejudice arising from any
misconduct. (People v. Zapien (1993) 4 Cal.4th 929, 996.)
Here, the trial court found that Juror T. engaged in misconduct by
discussing the Catholic Church’s position on the death penalty with a retired priest
and by describing this conversation to the penalty phase jury. Substantial
evidence supports these findings.
We conclude, however, that the presumption of prejudice arising from the
misconduct was rebutted. The trial court removed Juror T. from the jury and
admonished the remaining jurors to disregard Juror T.’s improper comments. All
remaining jurors agreed to do so. Substantial evidence supports the trial court’s
findings that Juror T.’s vote on guilt was not influenced by his conversation with
the priest and that Juror T. did not share the content of this conversation with the
other jurors during the guilt phase. We therefore conclude there is no inherent or
substantial likelihood that the extraneous information influenced the jury’s guilt
phase verdict or that any juror was, on account of the extraneous information,
actually biased against defendant. (In re Carpenter, supra, 9 Cal.4th at p. 653.)
Moreover, defendant suffered no possible prejudice at the penalty phase.
The Catholic Church’s position on the death penalty did not weigh in favor of a
death verdict as it was a neutral position that encouraged the jury to follow the law
of the land. The priest’s opinion that he “probably would be against [the death
penalty]” weighed in favor of leniency toward defendant. Further, in advising his
fellow jurors of these views, Juror T. did not advocate for one view or the other.
Under these circumstances, there is no inherent and substantial likelihood that the
extraneous information influenced the other jurors or resulted in any juror’s actual
bias in rendering the penalty phase verdict. (In re Carpenter, supra, 9 Cal.4th at
2. Juror V.’s conversation with her employer
In seeking a new trial, defendant asserted that Juror V. had engaged in
misconduct. At the hearing on the motion, defendant presented the following
evidence: Susan Arganda testified she was an employee at Allstate Insurance in
the City of Orange and was a close friend of defendant’s sister, Sylvia Tafoya. On
March 21, 1995, William Cole, house counsel for Allstate Insurance, came to the
regional office where Arganda worked, and Arganda overheard him telling
another person that one of his employees, Juror V., was on jury duty. Cole said
the case involved two men who went into a “crack house” and killed two other
men. He said his employee was very depressed over the death penalty, had been
on jury duty for two months, and then went back for the penalty phase. Cole,
Arganda testified, told the other person that Juror V. had spoken with Cole about
death row inmates and that Juror V. felt better after Cole told her “not all men that
are sentenced to death row actually get the death penalty.”
Cole testified that his employee, Juror V., was on jury duty during March
and April 1995. Although he remembered speaking to Juror V. about her jury
duty, he could not remember when this conversation took place. He recalled
having a conversation about the death penalty with some employee but was unsure
which one. Cole talked with Juror V. on several occasions because she was “very
emotionally distressed” but had never discussed the particulars of the case. His
concern in talking with Juror V. was “to try to calm her down and make her—
allow her to make it through this whole process of being a juror on this case.”
Cole told Juror V. to listen to the judge and to follow the evidence. He recalled
having only a single conversation with Juror V. that focused on the death penalty.
At that time, Cole told Juror V. that many people on death row do not get
executed. Cole assumed that this conversation occurred before the jury had
returned its penalty phase verdict but he had no information to support his
Juror V. testified that she had spoken about the case with her employer,
Cole, but she was certain she had done so after the penalty verdict because it was
after the trial judge said the jurors were free to discuss the case. According to
Juror V., Cole said she should follow the judge’s instructions. Cole also stated
that many people on death row are never executed. During this conversation,
Juror V. thought Cole assumed that defendant’s trial was still going on and that the
jury had not yet reached a verdict; she did not correct this erroneous assumption.
After the conclusion of the guilt phase, Juror V. asked Cole for more time off for
the penalty phase. She denied telling Cole that she was depressed about the case
but thought that her distress “probably showed [in her] face.” Juror V. also denied
discussing the facts of the case with Cole or anyone else before the jury had
reached its penalty phase verdict.
The trial court took judicial notice that the jury returned the penalty phase
verdict on March 3, 1995, almost three weeks before Arganda, on March 21, 1995,
overheard a conversation between Cole and another person in which Cole said his
employee, Juror V., was serving on a jury. The court found the evidence did not
support a finding of juror misconduct and denied defendant’s motion for new trial.
On appeal, defendant contends this ruling was erroneous.
As earlier explained, we uphold a trial court’s findings of fact and
determinations of credibility when supported by substantial evidence. (People v.
Danks, supra, 32 Cal.4th at p. 304.) Here, in concluding that no misconduct
occurred, the trial court found that Juror V.’s conversation with Cole, during
which Cole said some death row inmates are never executed, took place after the
conclusion of the penalty phase deliberations at which the jury returned the death
verdict. Evidence supporting that finding came from Juror V., who testified she
did not discuss the case with Cole until after completion of the trial, when the trial
court told the jurors they could talk about the case. Cole could not remember
when he spoke with Juror V. Arganda recalled that it was March 21, 1995 (some
three weeks after the conclusion of penalty phase in this case) that she overheard
Cole telling someone about his conversation with Juror V. Thus, substantial
evidence supports the trial court’s finding.
3. Inquiry into Juror V.’s mental processes
Defendant contends the trial court violated his rights to due process and an
impartial jury under the state and federal Constitutions when, at the hearing on
defendant’s new trial motion, it disallowed questioning of Juror V. regarding her
possible reluctance to vote for the death penalty before the juror’s conversation
with Cole, her employer.
Here are the relevant facts: During questioning of Juror V., defendant’s
counsel asked her, “[A]fter the conversation with Mr. Cole, did you feel better?”
Juror V. responded, “Yes.” Counsel then inquired, “And that was because you
were—you were reluctant to be responsible for a death penalty verdict; isn’t that
true?” The prosecutor objected to this question as contrary to Evidence Code
section 1150, subdivision (a), which precludes the introduction of evidence “to
show the effect of [any] statement, conduct, condition, or event upon a juror either
in influencing [the juror’s] assent to or dissent from the verdict or concerning the
mental processes by which it was determined.” The trial court sustained the
objection. We perceive no error.
As we explained earlier, substantial evidence supports the trial court’s
finding that Juror V.’s conversation with Cole took place after the jury returned
the death penalty verdict in this case. But even if the conversation had occurred
before or during the penalty phase deliberations, we would not disturb the trial
court’s ruling. Evidence Code section 1150, as a matter of policy, “excludes
evidence of the subjective reasoning processes of jurors to impeach their verdicts.”
(People v. Steele (2002) 27 Cal.4th 1230, 1264.) Here, the question defendant’s
counsel posed to Juror V., to which the trial court sustained the prosecutor’s
objection, impermissibly intruded into the juror’s penalty phase deliberative
process by inquiring whether Cole’s comment to the juror, that not all death row
inmates are executed, relieved Juror V. of responsibility when voting on the death
E. Automatic Application for Modification of the Judgment
Defendant contends the trial court erred when, in denying his automatic
application for modification of the death judgment (§ 190.4, subd. (e)), it did not
independently review the evidence, thus depriving him of a reliable penalty
determination and of due process of law under the Eighth and Fourteenth
Amendments to the United States Constitution. Defendant, however, failed to
make this assertion when the trial court ruled on the motion, and therefore he
forfeited this issue. (See People v. Riel (2000) 22 Cal.4th 1153, 1220 [the
contemporaneous objection rule applies to cases in which the modification hearing
was conducted after this court’s decision in People v. Hill (1992) 3 Cal.4th 959,
1013, became final].)12 In any event, defendant’s claim is without merit.
“Under section 190.4, subdivision (e), a capital defendant is deemed to
have automatically applied for a sentence modification. In ruling on the
application, the trial judge must independently reweigh the evidence of
In his reply brief, defendant suggests that if we deem this issue forfeited by
counsel’s failure to object to the trial court’s ruling, we should treat the claim as
one of ineffective assistance of counsel. Because defendant has not developed the
merits of such a claim, we do not address it. Furthermore, as we have said in the
past, a claim of ineffective assistance of counsel is more appropriately raised in a
petition for writ of habeas corpus (see, e.g., People v. Mendoza Tello (1997) 15
Cal.4th 264, 266-267), where “relevant facts and circumstances not reflected in
the record on appeal, such as counsel’s reasons for pursuing or not pursuing a
particular trial strategy, can be brought to light to inform the two-pronged inquiry
of whether counsel’s ‘representation fell below an objective standard of
reasonableness,’ and whether ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’ (Strickland v. Washington (1984) 466 U.S. 668, 688, 694.)” (People v.
Snow (2003) 30 Cal.4th 43, 111.)
aggravating and mitigating circumstances and determine whether, in the judge’s
independent judgment, the weight of the evidence supports the jury verdict.”
(People v. Mincey, supra, 2 Cal.4th at p. 477.)
Here, in denying the automatic application for modification, the trial court
stated, in relevant part: “[T]he circumstances of the present crime were
substantially aggravating” based on defendant’s having “intentionally shot and
killed two people.” The court further explained that the circumstances of the
crime were sufficient to outweigh defendant’s evidence and that based upon its
“independent review [of the evidence], the court does not disagree with the jury
decision.” (Italics added.) There was no error.
F. Miscellaneous Constitutional Issues
Defendant asserts California’s death penalty law is unconstitutional on
several grounds, requesting that we reconsider our prior decisions rejecting these
same arguments. We decline to do so. We summarize below the holdings of
The trial court need not instruct on a “ ‘presumption of life’ ” at the penalty
phase of trial. (People v. Perry (2006) 38 Cal.4th 302, 321.) The federal
Constitution does not require the penalty phase jury’s written findings or
unanimous agreement on the existence of aggravating circumstances (People v.
Kennedy (2005) 36 Cal.4th 595, 641), and the absence of these requirements in
California’s death penalty law does not deprive a capital defendant of meaningful
appellate review (People v. Dunkle, supra, 36 Cal.4th at p. 939).
California’s death penalty law comports with the Eighth Amendment’s
requirement of “narrowing” because the special circumstances narrowly define the
class of defendants eligible for the death penalty. (People v. Earp, supra, 20
Cal.4th at pp. 904-905; People v. Bacigalupo (1993) 6 Cal.4th 457, 467-468.)
Section 190.3, factor (a), allowing the penalty phase jury to take into
account the circumstances of the offense and the existence of any special
circumstances found true, is not unconstitutionally vague. (People v. Mendoza,
supra, 24 Cal.4th at p. 192.)
California’s death penalty law is not unconstitutional in not requiring proof
beyond a reasonable doubt or a preponderance of the evidence “as to the existence
of aggravating circumstances, the greater weight of aggravating circumstances
over mitigating circumstances, or the appropriateness of a death sentence.”
(People v. Brown (2004) 33 Cal.4th 382, 401.) Therefore, it follows that the trial
court here did not err in not instructing on the burden of proof. (See People v.
Perry, supra, 38 Cal.4th at p. 321.)
“Intercase proportionality review is not constitutionally required.
[Citation.] Nor does equal protection require that capital defendants be afforded
the same sentence review afforded other felons under the determinate sentencing
law.” (People v. Dunkle, supra, 36 Cal.4th at p. 940.)
The terms “extreme” and “substantial” as used in section 190.3 have
commonsense meanings that the jury may be expected to use in applying the
instructions. (People v. Arias (1996) 13 Cal.4th 92, 189.) “The use of the word
‘extreme’ in section 190.3, factor (d) (‘extreme mental or emotional disturbance’)
does not preclude consideration of mitigating evidence in violation of the
Constitution.” (People v. Kraft (2000) 23 Cal.4th 978, 1078; see also People v.
Arias, supra, 13 Cal.4th at pp. 188-189 [factor (g) (“ ‘extreme duress or . . .
substantial domination of another person’ ”)].)
The use of the phrase “whether or not” in certain factors (e.g., section
190.3, factor (d), “[w]hether or not the offense was committed while the defendant
was under the influence of extreme mental or emotional disturbance”) does not
suggest “that the absence of such factors amount[s] to aggravation.” (People v.
Kraft, supra, 23 Cal.4th at pp. 1078-1079.)
“ ‘[P]rosecutorial discretion to select those eligible cases in which the death
penalty will actually be sought does not in and of itself evidence an arbitrary and
capricious capital punishment system or offend principles of equal protection, due
process, or cruel and/or unusual punishment.’ ” (People v. Kirkpatrick, supra, 7
Cal.4th at p. 1024, quoting People v. Keenan, supra, 46 Cal.3d at p. 505.) And
“the [California] death penalty law does not violate the constitutional principle of
separation of powers by delegating sentencing authority to the prosecutor.
Ultimate sentencing power remains at all times with the judicial branch.” (Ibid.)
Our rejection of defendant’s arguments is not affected by the United States
Supreme Court’s decisions in Ring v. Arizona, supra, 536 U.S. 584 and Apprendi
v. New Jersey, supra, 530 U.S. 466. (See People v. Davis (2005) 36 Cal.4th 510,
571-572; People v. Smith (2003) 30 Cal.4th 581, 642; People v. Ochoa (2001) 26
Cal.4th 398, 453-454.)
G. Proportionality Review
Defendant asks this court to vacate his death sentence as disproportionate to
his moral culpability. In support, he cites the Eighth Amendment to the United
States Constitution and article I, section 17 of the California Constitution.
“To determine whether defendant’s sentence is disproportionate to his
individual culpability, we examine the circumstances of the offense, including its
motive, the extent of defendant’s involvement, the manner in which the crime was
committed, the consequences of defendant’s acts, and defendant’s personal
characteristics including age, prior criminality, and mental capabilities.” (People
v. Rogers (2006) 39 Cal.4th 826, 895.) Here, as part of a planned robbery and
burglary, defendant deliberately and callously shot and killed two unarmed men in
the home of one of the victims. Defendant had a prior conviction for infliction of
corporal injury on a child. We conclude that on these facts defendant’s sentence
of death is not disproportionate to his “personal responsibility and moral guilt.”
(People v. Marshall (1990) 50 Cal.3d 907, 938.)
H. International Law
Defendant contends he was denied the right to a fair and impartial trial by
an independent tribunal in violation of customary international law as well as
international treaties to which the United States is a party. He also claims he
suffered racial discrimination in violation of international law at both the guilt and
penalty phases of his trial. Because defendant has failed to establish his premise
that he suffered violations of state or federal constitutional law, or that his rights to
due process of law and to be free from racial discrimination were violated, we
need not consider the applicability of those international treaties and laws to his
appeal. (People v. Jenkins, supra, 22 Cal.4th at p. 1055.) In any event,
“ ‘[i]nternational law does not prohibit a sentence of death rendered in accordance
with state and federal constitutional and statutory requirements.’ ” (People v.
Carey (2007) 41 Cal.4th 109, 135; People v. Cook (2006) 39 Cal.4th 566, 620.)
I. Method of Execution
Defendant argues that California’s execution procedures are
unconstitutional in two respects. First, he contends the Department of Corrections
and Rehabilitation has not adopted standards for the administration of lethal
injection as required under section 3604 and the California Administrative
Procedures Act, and its failure to do so violates his right to procedural due process
under the Fourteenth Amendment to the federal Constitution. Second, he claims
California’s lethal injection procedures violate the Eighth Amendment ban against
cruel and unusual punishment. Defendant’s claims are not cognizable on appeal
because they do not affect the validity of the judgment itself and do not provide a
basis for reversal of the judgment on appeal. (People v. Demetrulias (2006) 39
Cal.4th 1, 45; People v. Rogers, supra, 39 Cal.4th at p. 911; People v. Cornwell
(2005) 37 Cal.4th 50, 105-106.)
J. Cumulative Error
Defendant argues that the cumulative effect of the guilt and penalty phase
errors requires reversal of his conviction and death sentence even if no single error
compels reversal. Having found no prejudicial error, we reject this contention.
The judgment is affirmed in its entirety.
GEORGE, C. J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Tafoya
Original Appeal XXX
Opinion No. S047056
Date Filed: August 20, 2007
Judge: Anthony J. Rackauckas, Jr.
Attorneys for Appellant:
Michael R. Totaro, under appointment by the Supreme Court, for Defendant and Appellant.
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, William M. Wood and Meagan J. Beale, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Michael R. Totaro
Totaro & Shananhan
P.O. Box 789
Pacific Palisades, CA 90272
Meagan J. Beale
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92101
|1||The People (Respondent)|
Represented by Attorney General - San Diego Office
Meagan J. Beale, Deputy Attorney General
P.O. Box 85266
San Diego, CA
|2||Tafoya, Ignacio Arriola (Appellant)|
San Quentin State Prison
Represented by Habeas Corpus Resource Center
303 Second Street, Suite 400 South
303 Second Street, Suite 400 South
San Francisco, CA
|3||Tafoya, Ignacio Arriola (Appellant)|
San Quentin State Prison
Represented by Michael R. Totaro
Totaro & Shanahan
P.O. Box 789
Pacific Palisades, CA
|Aug 20 2007||Opinion: Affirmed|
|Jun 6 1995||Judgment of death|
|Jun 12 1995||Filed cert. copy of Judgement of Death Rendered|
|Sep 22 1999||Filed:|
Applt's Applic. for appointment of Counsel (Ifp Form).
|Sep 24 1999||Counsel appointment order filed|
Upon request of appellant for appointment of counsel, Michael R. Totaro is hereby appointed to represent appellant Ignacio Arriola Tafoya for the direct appeal in the above automatic appeal now pending in this court.
|Oct 4 1999||Received letter from:|
Superor Court, dated 9/27/99, Advising Record Was mailed to Applt's Counsel on 9/27/99.
|Dec 13 1999||Application for Extension of Time filed|
By Applt to request Corr. of the Record.
|Dec 15 1999||Extension of Time application Granted|
To 3/6/2000 To Applt To request Corr. of the Record.
|Mar 1 2000||Compensation awarded counsel|
|Mar 20 2000||Received:|
Copy of Applt's request to Augment Record with Sealed Transcripts (5 Pp.)
|Apr 14 2000||Received:|
Copy of Applt's request to certify Record as True, Corrrected and Complete.
|Apr 17 2000||Compensation awarded counsel|
|Apr 18 2000||Record on appeal filed|
C-7 (1,433 Pp.) and R-27 (4,280 Pp.) Including Material Under Seal; Clerk's Transcript includes 412 pages of Juror Questionnaires.
|Apr 18 2000||Appellant's opening brief letter sent, due:|
|May 26 2000||Application for Extension of Time filed|
To file Aob.
|May 31 2000||Extension of Time application Granted|
To 7/31/2000 To file Aob.
|Aug 2 2000||Application for Extension of Time filed|
to file AOB. (second request)
|Aug 3 2000||Extension of Time application Granted|
to 9-29-2000 to file AOB.
|Sep 1 2000||Counsel's status report received (confidential)|
from atty Totaro.
|Oct 2 2000||Application for Extension of Time filed|
To file AOB. (3rd request)
|Oct 10 2000||Filed:|
Supplemental declaration to ext. of time request
|Oct 17 2000||Extension of Time application Granted|
To 10/30/2000 to file AOB.
|Oct 20 2000||Order filed appointing H.C. Resource Center|
Upon request of appellant for appointment of counsel, the Habeas Corpus Resource Center is hereby appointed to represent appellant Ignacio Arriola Tafoya for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court.
|Nov 2 2000||Application for Extension of Time filed|
To file AOB. (4th request)
|Nov 3 2000||Counsel's status report received (confidential)|
|Nov 3 2000||Extension of Time application Granted|
To 11/29/2000 to file AOB.
|Dec 5 2000||Application for Extension of Time filed|
To file AOB. (5th request)
|Dec 12 2000||Extension of Time application Granted|
To 12/29/2000 to file AOB.
|Dec 18 2000||Counsel's status report received (confidential)|
from atty Totaro.
|Jan 5 2001||Application for Extension of Time filed|
To file AOB. (6th request)
|Jan 8 2001||Counsel's status report received (confidential)|
|Jan 10 2001||Extension of Time application Granted|
To 1/29/2001 to file AOB.
|Jan 31 2001||Application for Extension of Time filed|
To file AOB. (7th request)
|Feb 5 2001||Extension of Time application Granted|
To 4/2/2001 to file AOB.
|Feb 21 2001||Counsel's status report received (confidential)|
from atty Totaro.
|Feb 21 2001||Counsel's status report received (confidential)|
|Feb 28 2001||Application for Extension of Time filed|
to file AOB. (8th request)
|Mar 2 2001||Filed:|
Suppl decl to 8th request for ext to file AOB
|Apr 3 2001||Application for Extension of Time filed|
To file AOB. (9th request)
|Apr 6 2001||Extension of Time application Granted|
To 5/2/2001 to file AOB.
|Apr 24 2001||Counsel's status report received (confidential)|
|May 2 2001||Counsel's status report received (confidential)|
|May 2 2001||Application for Extension of Time filed|
To file AOB. (10th request)
|May 8 2001||Extension of Time application Granted|
To 6/1/2001 to file AOB.
|Jun 5 2001||Application for Extension of Time filed|
To file AOB. (11th request)
|Jun 11 2001||Extension of Time application Granted|
To 7/2/2001 to file AOB.
|Jun 28 2001||Application for Extension of Time filed|
|Jul 2 2001||Counsel's status report received (confidential)|
from atty Totaro.
|Jul 2 2001||Application for Extension of Time filed|
to file AOB. (12th request)
|Jul 6 2001||Extension of Time application Granted|
to 8-1-2001 to file AOB.
|Aug 2 2001||Application for Extension of Time filed|
To file AOB. (13th request)
|Aug 16 2001||Extension of Time application Granted|
To 8/31/2001 to file AOB.
|Aug 20 2001||Counsel's status report received (confidential)|
|Aug 29 2001||Application for Extension of Time filed|
to file AOB.
|Sep 4 2001||Extension of Time application Granted|
To 10/1/2001 to file AOB. No further extensions of time are contemplated.
|Sep 27 2001||Application for Extension of Time filed|
To file AOB. (15th request)
|Oct 9 2001||Filed:|
Resp.'s opposition to fifteenth request for extension of time to file AOB.
|Oct 10 2001||Extension of Time application Granted|
To 10/31/2001 to file AOB. No further extensions of time will be granted.
|Oct 31 2001||Counsel's status report received (confidential)|
|Oct 31 2001||Application to file over-length brief filed|
AOB. (534 pp. AOB submitted under separate cover)
|Nov 13 2001||Compensation awarded counsel|
|Nov 14 2001||Order filed:|
Application of applt. to file AOB in excess of page limit is granted.
|Nov 14 2001||Appellant's opening brief filed|
(534 pp. - 4 vols.)
|Dec 13 2001||Request for extension of time filed|
To file resp.'s brief. (1st request)
|Dec 13 2001||Counsel's status report received (confidential)|
(supplemental) from HCRC.
|Dec 19 2001||Extension of time granted|
To 2/13/2002 to file resp.'s brief.
|Jan 16 2002||Compensation awarded counsel|
|Feb 13 2002||Counsel's status report received (confidential)|
|Feb 13 2002||Request for extension of time filed|
To file resp.'s brief. (2nd request)
|Feb 20 2002||Filed:|
Suppl. application for second extension of time to file resp.'s brief.
|Feb 21 2002||Extension of time granted|
To 4/15/2002 to file resp.'s brief. Dep. AG Beale anticipates filing the brief by 6/30/2002. Only two further extensions totaling 90 additional days are contemplated.
|Apr 10 2002||Counsel's status report received (confidential)|
|Apr 12 2002||Request for extension of time filed|
To file resp.'s brief. (3rd request)
|Apr 16 2002||Extension of time granted|
To 6/14/2002 to file resp.'s brief. Dep. Atty. General Beale anticipates filing the brief by 6/30/2002. Only one further extension totaling 30 additional days is contmeplated.
|Jun 10 2002||Counsel's status report received (confidential)|
|Jun 12 2002||Request for extension of time filed|
To file resp.'s brief. (4th request)
|Jun 21 2002||Extension of time granted|
to 7-15-2002 to file resp's brief. After that date, only one further extension totaling 46 additional days is contemplated. Extension granted based upon Suv. Deputy AG Meagan J. Beale's representation that she anticipates filing the brief by 8-30-2002.
|Jul 15 2002||Request for extension of time filed|
To file resp.'s brief. (5th request)
|Jul 19 2002||Extension of time granted|
To 8/30/002 to file resp.'s brief. Supv. Dep. AG Beale anticipates filing that brief by 8/30/2002. No further extension is contemplated.
|Aug 12 2002||Counsel's status report received (confidential)|
|Aug 28 2002||Request for extension of time filed|
to file respondent's brief. (6th request)
|Aug 29 2002||Extension of time granted|
to 9-30-2002 to file respondent's brief. After that date, no further extension will be granted. Extension granted based upon Deputy AG Beale's representation that she anticipates filing the brief by 9-30-2002.
|Sep 26 2002||Request for extension of time filed|
To file respondent's brief. (7th request)
|Oct 1 2002||Extension of time granted|
To 10/7/2002 to file respondent's brief. Extension is granted based upon Supervising Deputy Attorney General Meagan J. Beale's representation that she anticipates filing that brief by 10/7/2002. After that date, no further extension will be granted.
|Oct 7 2002||Respondent's brief filed|
|Oct 11 2002||Counsel's status report received (confidential)|
|Oct 25 2002||Request for extension of time filed|
To file appellant's reply brief. (1st request)
|Oct 29 2002||Extension of time granted|
To 12/27/2002 to file appellant's reply brief.
|Dec 16 2002||Counsel's status report received (confidential)|
|Dec 30 2002||Request for extension of time filed|
to file appellant's reply brief. (2nd request)
|Jan 3 2003||Filed:|
Supplemental declaration in support of request for extension of time to file appellant's reply brief.
|Jan 8 2003||Extension of time granted|
To 2/28/2003 to file appellant's reply brief. Extension is granted based upon counsel Michael R. Totaro's representation that he anticiaptes filing that brief by 2/28/2003. After that date, no further extension is contemplated.
|Feb 11 2003||Counsel's status report received (confidential)|
|Feb 13 2003||Request for extension of time filed|
to file appellant's reply brief. (3rd request)
|Feb 19 2003||Extension of time granted|
to 4/1/2003 to file appellant's reply brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon counsel Michael R. Totaro's representation that he anticipates filing that brief by 4/30/2003.
|Apr 2 2003||Request for extension of time filed|
to file appellant's reply brief. (4th request)
|Apr 4 2003||Extension of time granted|
to 4/30/2003 to file appellant's reply brief. The court anticipates that after that date, no further extension will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
|Apr 14 2003||Counsel's status report received (confidential)|
|Apr 30 2003||Appellant's reply brief filed|
|May 6 2003||Compensation awarded counsel|
|Jun 9 2003||Counsel's status report received (confidential)|
|Jun 13 2003||Compensation awarded counsel|
|Aug 11 2003||Counsel's status report received (confidential)|
|Oct 27 2003||Related habeas corpus petition filed (concurrent)|
|Nov 1 2006||Exhibit(s) lodged|
People's 93 and 94.
|Mar 26 2007||Oral argument letter sent|
advising counsel that case could be scheduled for oral argument as early as the May calendars, to be held the first week and last week of May 2007, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
|May 2 2007||Case ordered on calendar|
to be argued on Wednesday, May 30, at 1:30 p.m., in San Francisco
|May 14 2007||Filed:|
appellant's "Specification of Appellant's Focus Issues."
|May 14 2007||Filed letter from:|
respondent, dated May 10, 2007, re focus issues for oral argument.
|May 30 2007||Cause argued and submitted|
|Jun 20 2007||Compensation awarded counsel|
|Jul 11 2007||Compensation awarded counsel|
|Aug 15 2007||Compensation awarded counsel|
|Aug 17 2007||Notice of forthcoming opinion posted|
|Aug 20 2007||Opinion filed: Judgment affirmed in full|
opinion by Kennard, J. ----- joined by George, C.J., Baxter, Werdegar, Chin, Moreno, Corrigan, JJ.
|Aug 23 2007||Change of contact information filed for:|
|Sep 4 2007||Rehearing petition filed|
Atty Totaro. (14,137 words)
|Sep 7 2007||Time extended to consider modification or rehearing|
The time for granting or denying rehearing in the above-entitled case is hereby extended to and including November 16, 2007, or the date upon which rehearing is either granted or denied, whichever occurs first.
|Sep 7 2007||Compensation awarded counsel|
|Oct 15 2007||Compensation awarded counsel|
|Oct 31 2007||Rehearing denied|
The petition for rehearing is denied.
|Oct 31 2007||Remittitur issued (AA)|
|Nov 13 2007||Received:|
receipt for remittitur acknowledged by superior court.
|Jan 25 2008||Received:|
copy of appellant's petition for writ of certiorari.
|Jan 31 2008||Compensation awarded counsel|
|Feb 14 2008||Compensation awarded counsel|
|Feb 25 2008||Received:|
Letter from U.S.S.C., dated February 20, 2008, indicating that the petition for writ of certiorari was filed on January 22, 2008, no. 07-9400.
|Apr 14 2008||Certiorari denied by U.S. Supreme Court|
|Apr 22 2008||Exhibit(s) returned|
|Apr 28 2008||Received:|
acknowledgment for receipt of exhibits.
|Nov 14 2001||Appellant's opening brief filed|
|Oct 7 2002||Respondent's brief filed|
|Apr 30 2003||Appellant's reply brief filed|