IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JUSTIN HEATH THOMAS,
Defendant and Appellant.
S161781
Riverside County Superior Court
RIF086792
January 26, 2023
Justice Cantil-Sakauye* authored the opinion of the Court, in
which Chief Justice Guerrero and Justices Corrigan, Liu,
Kruger, Groban, and Jenkins concurred.
*
Retired Chief Justice of California, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
PEOPLE v. THOMAS
S161781
Opinion of the Court by Cantil-Sakauye, J.
Defendant Justin Heath Thomas shot and killed Rafael
Noriega in Riverside County in September 1992. Defendant was
not immediately apprehended. He moved to Texas in 1994 and,
less than one year later, stabbed and killed Regina Hartwell. He
was convicted in a Texas court of Hartwell’s murder and
sentenced to life in prison. California law enforcement officials
later identified defendant as a suspect in Noriega’s death. In
2001, the Riverside County District Attorney filed an
information charging defendant with Noriega’s murder.
A Riverside County jury subsequently convicted
defendant of the first degree murder of Noriega (Pen. Code,
§ 187, subd. (a)),1 and found true the special circumstance
allegation that the murder was committed while defendant was
engaged in the commission of a robbery (§ 190.2, subd.
(a)(17)(A)). In a bifurcated proceeding, the jury also found true
the special circumstance allegation that defendant was
previously convicted of Hartwell’s murder. (§ 190.2, subd.
(a)(2).) The jury returned a verdict of death. Defendant moved
for modification of his sentence to life without the possibility of
parole. (§ 190.4, subd. (e).) The trial court denied the motion
1
All further statutory references are to the Penal Code
unless otherwise indicated.
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Opinion of the Court by Cantil-Sakauye, J.
and sentenced him to death. Defendant’s appeal is automatic.
(§ 1239, subd. (b).) We affirm the judgment in its entirety.
I. FACTS AND PROCEDURAL BACKGROUND
A. Guilt Phase Evidence
1. Prosecution evidence
a. The killing of Rafael Noriega
In 1992, defendant was involved in distributing crystal
methamphetamine in Moreno Valley, California. He obtained
the narcotics from Rafael Noriega and supplied them to Dorothy
Lee Brown, who in turn sold the drugs.2 Defendant’s uncle,
Andy Anchondo, managed a ranch outside Moreno Valley.
Defendant kept his methamphetamine supply at the ranch and
stayed there on occasion.
On September 14, 1992, Noriega received a call on his
pager when he was at home. After Noriega responded to the
page, he had a discussion with his roommates Robert Manzano
and Michelle Barajas. Both warned Noriega not to deal with the
person who paged him; Manzano suggested that Noriega bring
a revolver for protection. Barajas tried to stop defendant from
leaving. Noriega said he would return, and left.
Defendant planned to meet Noriega in the foothills of
Moreno Valley early the following morning. Defendant drove in
2
Brown testified during defendant’s Texas trial for
Hartwell’s murder. Brown was later shot and killed by police
during a vehicle pursuit in 2004. Brown’s testimony from the
Texas trial was read into the record during defendant’s
California trial.
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Opinion of the Court by Cantil-Sakauye, J.
a truck with Kelly Smith to the foothills around 3:00 a.m.3
Brown, driving her own car, met defendant there. Defendant
told Brown they were going to meet Noriega. He asked Brown
to follow defendant in her car to make sure defendant was not
ambushed. On a trail near Anchondo’s ranch, defendant told
Brown to park and wait; defendant drove further into the
foothills. As Brown was waiting, an older couple approached her
and told her it was dangerous for her to be there alone. Brown
informed the couple she was waiting for her boyfriend and that
she would be leaving soon.
After the couple left, Brown exited her car and ran to
where defendant had stopped his truck. Brown saw defendant’s
truck parked behind Noriega’s car, with the truck’s headlights
illuminating the rear of Noriega’s car. Brown watched as
defendant got out of his truck and yelled something in Spanish.
Noriega walked to the back of his car, opened his trunk, and
removed a green duffel bag. Defendant picked up a handgun
from the seat of his truck and shot at Noriega several times in
rapid succession. Brown saw that Noriega had been shot and
had fallen to the ground, but she could not tell how many times
he had been shot. Brown ran back to her car.
Defendant approached Brown and asked if she heard the
gunshots. Brown said she had. Defendant instructed Brown to
get out of her car and to follow him back to Noriega’s car. Brown
saw Noriega lying on the ground and saw Smith drive Noriega’s
car away. Defendant told Brown to get into his truck, and he
3
An investigator asserted Smith was the individual with
defendant, although no independent evidence was presented at
trial identifying Smith.
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threw Noriega’s body into the back of the truck. Brown also saw
the green duffel bag in the back of the truck. Defendant ordered
Brown to drive. To Brown, it seemed that he was directing her
to drive in a large circle. When she stopped, defendant told her
she was close to her car. Brown got out of defendant’s truck, ran
to her own car, and drove home.
About two hours later, defendant arrived at Brown’s
home, showered and clean-shaven. He returned a broken shovel
that he had taken from Brown without her knowledge. He also
gave Brown a large amount of methamphetamine and told her
that he was going to leave town.
Later that day, three individuals driving in the foothills
discovered Noriega’s car near Anchondo’s ranch. There was a
pile of burned debris on the driver’s side floorboard and a loaded
.22-caliber handgun under the driver’s seat.4
In mid-October 1992, a group of individuals horseback
riding in the foothills discovered Noriega’s body near where
Noriega’s car had been found. The body was positioned
facedown in the dirt under a wooden pallet and was in a state of
decomposition. Law enforcement officials who responded to the
scene believed the pallet had been moved onto the body from a
pile of dirt nearby.5
4
Authorities destroyed the gun in August 1996 because it
had not been claimed and they were not aware it was connected
to the investigation regarding Noriega’s killing.
5
Officers discovered a .45-caliber bullet casing under
Noriega’s body, although an investigator opined that the casing
did not appear connected to Noriega’s death and that it was
common for people to fire guns in the area.
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Opinion of the Court by Cantil-Sakauye, J.
Officials at the coroner’s office searched Noriega’s body
and found jewelry, a watch, and a jacket containing four small
baggies of methamphetamine. Dr. Robert Ditraglia, the forensic
pathologist who performed an autopsy on Noriega’s body,
described the body as “[s]everely decomposed” and “partially
skeletonized.” The autopsy revealed a hole in the center of
Noriega’s sternum, multiple holes in his chest, two fractured
ribs, and fractures to his sacrum and coccyx. Ditraglia opined
these injuries were consistent with gunshot wounds. Bullet
fragments collected from Noriega’s body were consistent with
medium caliber ammunition such as a nine-millimeter, .32-
caliber, or .38-caliber bullets. Although the trajectory of the
bullets could not be determined, the injuries were consistent
with Noriega being shot from the front. The wound to Noriega’s
sternum would have been potentially fatal on its own.
Defendant left town within weeks of Noriega’s killing. In
January 1993, law enforcement suspended the investigation
into Noriega’s death because they had no leads. Defendant
enlisted in the Army in February 1993. He was discharged in
September 1994 and returned to California. He then moved to
Austin, Texas, in late 1994, where he started dating Kimberley
Reeder. In May or June 1995, defendant told Reeder he had
killed a man in California named “Rafa” because Rafa was a
“narc.” Defendant told Reeder that he put the body in the back
of his truck and then hid it in or near some caves.6 He told
Reeder that when coworkers asked him about blood in the back
6
Three caves were located less than a mile from where
Noriega’s body was found.
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of his truck, he told them it came from deer hunting. Defendant
never told Reeder that he killed Rafa in self-defense.
John Sams, an acquaintance of Reeder’s, testified that he
overheard defendant stating that he shot someone in California
for drugs and took a bag of speed from the person. Sams heard
defendant say he was from California, where “we kill people for
things like” “[g]etting out of line, money, drugs, things of that
nature.” Sams believed defendant was bragging or trying to
impress people. Sams did not hear defendant assert he shot
anyone in self-defense.7
Investigator Martin Silva interviewed defendant in Texas
in January 2000.8 Silva told defendant that he believed
defendant killed Noriega. Silva confronted defendant with
statements from Brown and Reeder implicating defendant. He
said (apparently as a ruse) that Smith and defendant’s ex-wife
had implicated him as well. Silva suggested that defendant may
have shot Noriega in self-defense, and that the shooting
occurred after a drug transaction went poorly. Defendant
admitted to engaging in methamphetamine and firearm
transactions with Noriega but denied killing him. He also
claimed that he was not living in Moreno Valley when the killing
7
It was introduced at trial that Sams had been convicted of
two misdemeanor assaults in Texas and was previously arrested
for aggravated robbery but later released without being
charged. Sams’s brother supplied Regina Hartwell with cocaine
for drug transactions.
8
Defendant was advised of his rights under Miranda v.
Arizona (1966) 384 U.S. 436 and waived them prior to the
interview.
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took place. Defendant referred to Noriega as “Rafa” and said
they spoke Spanish to each other.
As the interview progressed, defendant told Silva that he
was getting nervous. He stated, “[W]hen I had left I thought
that shit was dead,” and he asked “how involved” Silva believed
that defendant was. Defendant claimed he was in Texas when
Noriega was killed, and that his family and former boss could
verify his alibi. Silva told defendant the District Attorney’s
Office was seeking to extradite defendant to California.
Defendant said, “See and in order for that, that means . . . you
guys pretty much know that I did this.” Defendant also asked
whether the others involved would be charged and whether
Smith “ever sa[id] he got something out of it.”
Silva again suggested that defendant killed Noriega in
self-defense or because defendant was high. Defendant
maintained that he knew nothing about Noriega’s killing, and
he claimed that Brown and Smith were lying about his
involvement.
b. Evidence of other acts
i. Threat to kill Mike Aguon and “Christine”
In 1991, defendant was living in California with
Maximillian Garcia, Mike Aguon, and a woman named
Christine. One day, defendant became paranoid that Aguon and
Christine were going to turn him in to the police. Defendant
placed a shotgun behind the front door and told Garcia he was
going to shoot Aguon and Christine when they returned. Garcia
warned Aguon and Christine to stay away from the residence
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Opinion of the Court by Cantil-Sakauye, J.
until defendant calmed down. Defendant eventually did calm
down, and no violence occurred.9
ii. Threat to shoot police officers
In 1992, defendant was living with his ex-wife in Norco,
California. The two argued when defendant came home drunk,
and she said she was going to call the police. Defendant said, “I
got something for them,” and went to his bedroom to retrieve
and load a shotgun. Defendant’s cousin tried to wrestle the gun
away from defendant, and the gun discharged into the wall.
Defendant eventually left the residence when police arrived. He
was not charged with any offense.
iii. Murder of Regina Hartwell
Defendant moved from California to Texas in late 1994,
and began dating Reeder in 1995. Through Reeder, defendant
met Hartwell; Hartwell and Reeder had previously dated.
Defendant and Hartwell had a contentious relationship.
In June 1995, Hartwell threatened to tell police that
defendant was selling drugs. In response, defendant stabbed
and killed Hartwell. He then placed Hartwell’s body in the back
of her car and drove it to a rural area, doused it in gasoline, and
set it on fire. Additional details regarding Hartwell’s murder
are discussed in section II.B.1., post.
2. Defense evidence
Defendant recalled Investigator Silva as a witness. Silva
had interviewed Reeder approximately three years after
9
At trial, Garcia claimed not to recall the incident, which
he had previously described to an investigator. Garcia had
informed another investigator that he was reluctant to testify
because he did not want to be labeled a snitch.
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Opinion of the Court by Cantil-Sakauye, J.
defendant’s 1996 trial in Texas and had interviewed Brown
when she was in prison in 1998. Silva testified that Reeder had
said that her statement to the Texas authorities had been taped,
and that defendant had told her he had hidden “Rafa” in some
caves. Reeder never told Silva that defendant threatened her,
hit her, or forced her to do anything.
Silva also recounted that Brown told him she was addicted
to methamphetamine at the time Noriega was killed and that
she was heavily intoxicated on methamphetamine at the time of
the shooting. Brown also told Silva that she and defendant had
used speed prior to the shooting, that defendant did not need
money, that defendant and Noriega were arguing in Spanish
prior to the shooting, that she was not certain what was in the
green duffel bag, that defendant used a 9-millimeter Glock to
shoot Noriega,10 and that she lied to another detective about the
shooting because she was on drugs.
B. Penalty Phase Evidence
1. Prosecution’s case in aggravation
The prosecution’s case in aggravation included evidence
presented during the guilt phase regarding the killing of
Noriega, the evidence underlying defendant’s conviction for
Hartwell’s murder, and the 1992 incident when defendant
threatened to shoot police.
The prosecution also presented victim impact evidence
from Armida R., Noriega’s sister who was approximately 13
10
Silva clarified that Brown told him that defendant brought
a Glock to Brown’s apartment on the morning of the shooting,
but that she never expressly said the Glock was used to shoot
Noriega.
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Opinion of the Court by Cantil-Sakauye, J.
years old when Noriega was killed. She described her warm and
affectionate relationship with Noriega and that he had taken
care of her. She recounted the suffering she and her parents
experienced when they learned of Noriega’s death.
The prosecution presented additional evidence regarding
several prior acts. A correctional officer testified that in
September 2005 he searched defendant’s cell and found a four-
inch metal shank. The officer testified the shank was capable of
cutting people in a “pretty brutal” way, and that he had seen
people seriously injured with similar weapons. Although he was
unaware of defendant stabbing anyone in prison, he knew of two
incidents when defendant had been stabbed.
Another correctional officer testified that he removed
defendant from his cell in December 2006, conducted a pat-down
search, and felt a hard object in defendant’s boxer shorts. The
officer found a broken plastic toothbrush with two razor blades
attached to the tip. He opined that the toothbrush was designed
to be a weapon.
Dawn Bothof, defendant’s ex-wife, testified concerning a
number of incidents with defendant, describing their marriage
as “on and off,” “volatile,” and “violent.” They often argued about
defendant’s drinking and drug use. Bothof described the
incident involving defendant’s threat to shoot police officers.
She stated that defendant had pushed her against the wall,
slapped her in the face, brandished a rifle, and told her that he
was going to make her “pay.” When Bothof called the police,
defendant pulled the phone cord from the wall.
Bothof described another incident several months later
when defendant confronted a bouncer who kicked him out of a
bar. Later that night when he was highly intoxicated, defendant
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Opinion of the Court by Cantil-Sakauye, J.
told Bothof that he was going to kill the bouncer and he left their
home with a gun. When defendant returned home the following
morning, he was still drunk and began arguing with Bothof
while she was in bed. Defendant got on top of Bothof and started
choking her. Bothof struggled with defendant and tried to kick
him away; she felt she was blacking out and was going to die.
Bothof’s sister came into the bedroom and yelled at defendant to
stop. Defendant released Bothof, who fled to a friend’s house.
When she returned, defendant was sitting on a toilet with a gun
to his own head. Bothof and her sister took the gun from
defendant and drove him to his uncle’s house. On the way there,
defendant jumped out of the car and ran, saying people were
watching him.
Bothof testified that defendant left California suddenly in
1992 and went to Texas. When defendant returned about one
month later, he told Bothof that he knew how to kill people and
where to dump bodies so they would not be found. He said he
would show her, that he had killed before, and that he could kill
her. He would tell Bothof he was just trying to scare her, and
he alternated between telling Bothof that a man named Kelly
murdered someone and that defendant had murdered someone.
Bothof and defendant separated in late 1992 because of
defendant’s drug use and erratic behavior. After defendant
joined the Army in 1993 his behavior improved, and Bothof
moved with him to Hawaii. However, defendant eventually
resumed using drugs and becoming violent again.
On one occasion in Hawaii, defendant took Bothof’s keys
and drove her car while he was intoxicated. Bothof was able to
get defendant to stop and tried to take the keys from the car.
Defendant grabbed the keys from her hand, threw her to the
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Opinion of the Court by Cantil-Sakauye, J.
ground, and drove away. Bothof’s neck and back hurt for several
days.
On another occasion, defendant became “hysterical” and
picked up a knife after Bothof told defendant she was going to
leave him. Bothof locked herself and their child inside a
bathroom. Defendant stabbed the door until the door broke.
Defendant forced Bothof to stay in their home for three days,
making her sit on the couch while he held her at knife point.
When Bothof asked to leave or got up, he pushed her down,
threatened to kill her, and ordered her not to move. On the third
day, defendant’s father called and defendant explained what
was happening. Defendant allowed Bothof to speak with his
father, who told Bothof to call the police. Bothof did so. When
she told defendant she had called the police, he came toward her
with the knife but began stabbing his own foot, which was in a
cast. Officers eventually arrived and the incident ended.
Bothof also testified that when she was pregnant with
their second child, defendant kicked her in the stomach and
threw her to the ground.
2. Defense case in mitigation
The defense case in mitigation included testimony from
defendant, defendant’s family members, and a drug and alcohol
addiction specialist.
Defendant testified about his upbringing. His parents
separated when he was three years old, but his extended family
took good care of him. He reported that he first drank alcohol
when he was three years old, and he was allowed to drink during
fishing trips and family get-togethers. When defendant was
seven years old, his father taught him how to smoke marijuana.
This led to defendant’s father showing him how to snort and
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inject methamphetamine. Defendant’s father would supply him
with drugs. When defendant was 13 years old, his drug use
included cocaine and LSD.
Defendant testified that he was not addicted to drugs and
that he stopped using them for a time when he was 16 years old,
although he continued to sell drugs to classmates. Defendant
did well in school but he did not go to college because Bothof was
pregnant. He played semi-professional football after high school
and began using methamphetamine. By the time he was 20
years old, he was addicted to methamphetamine and stopped
playing football.
Defendant testified that he would fight with Bothof when
he was high. He admitted that he “man-handled” Bothof during
arguments to get her off of him, and he admitted that he may
have slapped her once or twice. He denied harming her
otherwise, saying he was able to control himself even when
under the influence. He acknowledged that he had retrieved a
shotgun and threatened to shoot police after a fight with Bothof.
Defendant stated he met Noriega when selling drugs in
Riverside; he declined to say whether Noriega was a drug dealer.
Defendant denied any involvement in Noriega’s death, and he
clarified that he did not “physically commit” the killing. He said
he had agreed to facilitate one more drug transaction for Brown
before leaving Moreno Valley, although he later denied setting
up any transaction between Brown and Noriega.
Defendant acknowledged that he had previously claimed
he was enlisted in the Army and in Hawaii at the time Noriega
was killed. He admitted that his “recollection was misplaced,”
that he had received a traffic citation in Texas three days after
Noriega disappeared, and that he actually began serving in the
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Army in February 1993. He was discharged from the Army for
failure to rehabilitate and moved back to Southern California
where he resumed selling drugs before eventually moving to
Austin, Texas.
Defendant admitted that he was involved in Hartwell’s
murder but maintained that he did not kill her. He claimed
other individuals were involved but that he did not know who
killed Hartwell because he was not present when she died.
Defendant admitted that Hartwell had threatened to turn him
in to the police the night before she was killed, and that he told
Hartwell to leave him and Reeder alone. Defendant also
admitted that he had burned Hartwell’s body in the back of her
car. He denied telling Reeder, Sams, or Bothof that he had
killed someone in California.
Defendant conceded that he possessed shanks in prison,
but he asserted they were for protection only and that he had
never stabbed anyone while in custody. He stated that other
inmates paid him for protection, and that although he was
involved in many fights, some of which he instigated, he was
always acting in self-defense.
Defendant read a statement to the jury that he had chosen
a path for himself while in custody as that of a warrior who
“embraces death as part of the struggle.” He stated he made his
own life choices, and they had nothing to do with drugs, alcohol,
or any predisposition. He asserted he was no longer addicted to
drugs, and that he could have stopped his drug use at any point
except when he was about 20 years old. He also told the jury
that he refused his attorney’s requests that defendant submit to
an MRI or a mental health evaluation. Defendant did not
believe he suffered from brain damage or from any learning
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deficiencies, and he disagreed with a doctor who had opined that
he had an addictive personality and a predisposition to use
drugs. He said, “I chose the path that I lived and I’m here
because of it.”
Defendant further stated that his strategy during the guilt
phase was to be acquitted, but that at the penalty stage he
wanted to receive a death verdict, although he did not want to
be put to death. He said a death verdict would be in his best
interest because it “enriches and enhances certain areas of post-
conviction remedies that I’m definitely seeking.” He complained
about the court’s rulings, a lack of funds, and his attorney’s
refusal to follow defendant’s strategy.
Defendant maintained that he was framed for the
murders of Noriega and Hartwell. He said that he was reluctant
to answer certain questions about his drug use because it might
make the jury believe he deserved a sentence of life without the
possibility of parole. He told the jury he did not want any
mitigation evidence presented on his behalf, and that he had
insisted on testifying during the penalty phase against his
attorney’s advice.
Defendant’s uncle, Anchondo, also testified during the
penalty phase. He said that defendant’s mother drank wine
when she was pregnant with defendant, although she was never
“falling down” drunk. He related that defendant’s mother told
him she used drugs while pregnant. Anchondo stated that
defendant’s mother had boyfriends who were physically abusive
and that defendant’s mother attempted suicide four times,
although Anchondo did not believe defendant was aware of
those attempts. Anchondo surmised that defendant had a
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difficult childhood because of his parents’ drug and alcohol use
and his mother’s suicide attempts.
Anchondo’s wife, Cynthia, also testified. She stated she
never saw defendant engage in violence or drug use, and she
thought he was a very happy person. She believed his
relationship with his grandparents was a positive one.
Finally, Dr. Alex Stalcup, a drug and alcohol addiction
specialist, testified regarding addiction and its effect on an
individual’s behavior and ability to make decisions. He stated
that methamphetamine use can alter decision-making and
permanently damage the brain, and that alcohol use as a child
can also harm the brain’s development. Stalcup interviewed
defendant for about two hours and reviewed materials related
to the case (but not any materials related to Hartwell’s murder).
Defendant had denied killing Noriega or being present when
Noriega was killed, but he refused to discuss the incident
further. Defendant told Stalcup about his drug and alcohol use
as a child. Stalcup testified that defendant presented one of the
worst cases for genetic predisposition to addiction that he had
ever seen.
Stalcup
opined
that,
based
on
defendant’s
methamphetamine use, defendant was a “late-stage addict” by
the age of 14. Stalcup also believed defendant suffered damage
to his brain that inhibited his ability to make decisions. He
stated that defendant faced significant risk factors for fetal
alcohol syndrome and brain damage. He testified that it was
common for addicts to sell drugs to support their habit; he called
this “[p]art of the disease process driven by craving” rather than
a choice by the individual.
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3. Prosecution rebuttal evidence
A law enforcement deputy testified regarding an incident
that took place in March 2004 when he was delivering mail to
defendant’s cell. Defendant asked the deputy where some of his
magazines were. The deputy said they were being scanned for
offensive content. Defendant replied, “Don’t you know who I
am? I’m running things.” He added, “I’m running things here,
and that’s no secret.”
II. GUILT PHASE ISSUES
A. Adequacy of Court Funding
Defendant asserts the trial court effectively denied his
right to self-representation by denying him adequate funding
during the period of time when he represented himself. He
contends that, as a result of the court’s rulings, he was forced to
request appointed counsel. He alleges this amounted to a
violation of his Sixth and Fourteenth Amendment rights and his
rights under article I, section 15 of the California Constitution.
We conclude that the trial court did not err in ruling on
defendant’s funding requests, and thus it did not deny
defendant his right to represent himself.
1. Factual background
In February 2007, defendant was represented by
appointed counsel Darryl Exum and Peter Scalisi. That month,
defendant filed a motion to represent himself pursuant to
Faretta v. California (1975) 422 U.S. 806. During the Faretta
hearing, defendant explained that one reason he wanted to
represent himself was because he did not believe appointed
counsel had obtained sufficient funding to investigate his case.
Defendant stated he believed he would be more successful than
counsel at obtaining those funds. The trial court granted
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defendant’s motion and appointed Exum as stand-by counsel.
As of February 28, 2007, defendant (through appointed counsel
had received approval for $57,290 in investigation funds;
$1,647.95 of that remained available and the remainder had
been spent.
Following the grant of his Faretta motion, defendant
immediately filed a request for $2,500 in additional
investigation funds.11 The request stated the funds were
required for investigator services such as contacting witnesses,
reviewing discovery, preparing reports, and other general
investigation. Defendant did not list the witnesses or explain
their relevance to his case, nor did he explain the nature of the
investigation required. The court approved the request but
noted the funds could not be used to pay for a phone card, as
defendant had also requested.
In March 2007, defendant submitted a request for $6,000
in investigation funds to locate, interview, and subpoena 50
witnesses and for other investigation. Defendant did not list the
witnesses or explain their relevance to his case, nor did he
explain the nature of the investigation required. The court
denied the request, noting it was vague and that defendant’s
investigator needed to provide additional details.
Defendant filed another request in April 2007, seeking
$18,000 for general investigation funds. The request did not
refer to any witnesses or describe any areas of potential
investigation. At a hearing on the request, the court informed
defendant, “[Y]ou need to write a specific request . . . to us, to
11
The Riverside County Superior Court refers funding
requests made in capital cases to a panel of three judicial officers
to independently review and rule on the requests.
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this panel, identifying who these people are and why they’re
necessary to the defense of your case, whether it be guilt phase
or penalty phase.” The court further said that before funds
would be provided for the investigator to locate witnesses, “you
need to convince us that they’re relevant and important enough
that we’re going to expend the money to have him go track them
down.” Defendant’s investigator, Jerry Monahan, informed the
court he had approximately $700 of existing funds remaining at
the time of the hearing. The court approved $2,000 for
investigation expenses and informed defendant it would
reconsider his request if he submitted additional information.
Defendant’s next request, filed in May 2007, sought
$48,600, nearly $35,500 of which was related to investigation
expenses for Monahan. The request listed 54 potential
witnesses but did not describe their relevance beyond classifying
them as civilian or military. Monahan included a memorandum
with the request that provided some details regarding these
witnesses. The memorandum listed 30 potential witnesses —
including former teachers, coaches, coworkers, and correctional
staff — who “would be used in penalty phase litigation” or
“penalty phase mitigation.” The memorandum also listed 14
military personnel who “were all affiliated with [defendant] in
the Army at various locations and would be used in the penalty
phase mitigation. Also some of these same individuals might be
used in the guilt[] phase to confirm [defendant’s] whereabouts
during the years 1992 through 1994.” The request stated, “[I]t
is unknown what they might testify to.”
At a hearing, the court asked whether defendant had
obtained his military records “to prove where you were on a
certain date.” Defendant indicated he had obtained part of those
records, but he needed “specific information on the witnesses
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Opinion of the Court by Cantil-Sakauye, J.
that are involved in that.” The court stated, “you may want
other people to add to that [the records], and I understand that.”
The court noted, however, that “we have to know specifically
who [the investigator] is going to contact and what the relevance
is, what you expect them to testify to help or assist you in the
defense of your case.”
At the close of the hearing, defendant stated, “Is it my
understanding that we’re going to come back another day and
time with clarity on specific defense strategy for the witnesses.”
The court replied: “Right. We told you exactly what to do, and
it depends on how long it takes you to do that. [¶] It depends
on [the investigator] making a lot of calls and tracking down
people. [¶] Get started and as you find you need more, then you
can come back to us.” At the time the trial court denied the
motion, there were approximately $2,000 remaining in
investigator funds.
In June 2007, defendant filed a request for $4,200 to cover
additional investigator funds. The request noted that Monahan
had attempted to contact military personnel to support
defendant’s alibi defense and was informed “it might not be
possible to locate these soldiers.” Defendant also requested
funds to review and redact audiotapes provided by the
prosecution. The court did not hold a hearing regarding the
request. Two judges on the panel noted they did not wish to
approve the request, stating, “[I]t appears [the district attorney]
will redact the tapes” and “it seems that the defendant’s military
records can establish exactly where he was stationed in 1992–
1993, [and] so you don’t need any witnesses.”
Defendant did not subsequently seek additional funds or
provide the court any additional information regarding the
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Opinion of the Court by Cantil-Sakauye, J.
witnesses he intended to contact and what the relevance of their
testimony would be. Instead, in July 2007, he moved to
withdraw his self-representation and the court subsequently
reappointed Exum and Scalisi as counsel. It is not apparent
whether the court formally denied the June 2007 request for
funds before defendant withdrew his request to represent
himself, but it is clear the court did not grant the request.
2. Analysis
“ ‘[T]he right to counsel guaranteed by both the federal
and state Constitutions includes, and indeed presumes, the
right to effective counsel [citations], and thus also includes the
right to reasonably necessary defense services. [Citations.]’ ”
(People v. Blair (2005) 36 Cal.4th 686, 732; see also People v.
Clark (2016) 63 Cal.4th 522, 630.) “But ‘the right to ancillary
services arises only when a defendant demonstrates such funds
are “reasonably necessary” for his or her defense by reference to
the general lines of inquiry that he or she wishes to pursue.’ ”
(People v. Clark, supra, 63 Cal.4th at p. 630.) “[T]he crucial
question . . . is whether [defendant] had reasonable access to the
ancillary services that were reasonably necessary for his
defense.” (People v. Blair, supra, 36 Cal.4th at p. 734.
Requests for funds for an indigent defendant in a capital
case are governed by section 987.9. “ ‘ “Section 987.9 commits to
the sound discretion of the trial court the determination of the
reasonableness of an application for funds for ancillary
services.” . . . .’ ” (People v. Clark, supra, 63 Cal.4th at pp. 630–
631.) A court “should view a motion for assistance with
considerable liberality, but it should also order the requested
services only upon a showing they are reasonably necessary.”
(People v. Guerra (2006) 37 Cal.4th 1067, 1085.) Further,
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defendant “has the burden of demonstrating the need for the
requested services.” (Ibid.; see also People v. Hajek and Vo
(2014) 58 Cal.4th 1144, 1256; People v. Gonzales and Soliz
(2011) 52 Cal.4th 254, 286; § 987.9.) Defendant also must
establish a likelihood that the evidence sought to be procured by
the funds would be admissible, as “ ‘there is no point in spending
money to obtain inadmissible evidence.’ ” (People v. Clark,
supra, 63 Cal.4th at p. 631.) “ ‘An appellate court reviews a trial
court’s ruling on an application for authorization to incur
expenses to prepare or present a defense for abuse of
discretion.’ ” (Ibid.
We conclude the trial court did not abuse its discretion
when it determined defendant had not established a reasonable
necessity for the requested funds. Defendant broadly asserts
that the trial court’s funding decisions hampered his ability to:
“(1) secure exhibits; (2) obtain the attendance of witnesses at
trial; (3) dress properly during the trial; (4) obtain assistance
during the trial itself; (5) transcribe witness testimony during
the trial; and (6) assist with diagrams and exhibits during the
trial.” Beyond these general assertions, defendant focuses on
the denial of funds related to two issues: his alibi defense (that
he was serving in the Army in Hawaii at the time of Noriega’s
murder); and his preparation of mitigation evidence for the
penalty phase (through contacting former teachers and
coaches). He further contends that the denial of funds for his
investigator “was exacerbated by the trial court’s refusal to fund
phone card privileges so [he] could communicate with his
investigator.”
These contentions are unavailing. Despite several
directives from the court that defendant’s requests must include
specific information regarding the purpose of contacting the
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Opinion of the Court by Cantil-Sakauye, J.
listed witnesses and conducting the requested investigation,
defendant’s requests were vague and only generally identified
how the expenditures might contribute to the preparation of his
defense. For example, in listing more than 50 witnesses and
requesting nearly $35,000 for investigation, travel, and trial
preparation related to those witnesses, defendant conceded “it
is unknown what they might testify to.” Although defendant
identified several military personnel as potential witnesses, he
never identified which of those witnesses would serve as alibi
witnesses. Defendant’s June 2007 request for funds related to
his alibi defense asserted additional funds would be needed “if a
response is received” from the Army providing additional
information regarding those individuals.12 And, as defendant
conceded when he testified during the penalty phase, any such
additional investigation would have been fruitless because he
did not enter the Army until several months after Noriega’s
killing. Further, although defendant listed a number of
witnesses he stated would be used during the penalty phase, he
failed to describe their anticipated testimony in any detail.
These general assertions are not sufficient to meet the
statutory requirement for a showing of reasonable necessity
before funds are disbursed. The sparse nature of defendant’s
descriptions provided no basis for the court to determine
whether the potential testimony would be irrelevant,
12
Defendant emphasizes that the court denied his request
because it believed his military records obviated the need for any
witnesses. It is true one judge on the panel reviewing
defendant’s funding requests made that observation. But the
court also observed that it would be appropriate for defendant
to obtain witnesses to corroborate those records — and it simply
asked for more information regarding those alleged witnesses.
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Opinion of the Court by Cantil-Sakauye, J.
cumulative, or otherwise inadmissible. (See People v. Clark,
supra, 63 Cal.4th at p. 631.) And, as the court noted, there was
potential for duplicating earlier investigative efforts given that
defendant indicated he wanted the investigator to “reinterview”
certain witnesses. (See People v. Hajek and Vo, supra, 58
Cal.4th at p. 1256 [upholding denial of funds for counsel’s
request to “ ‘reinterview every witness’ ” for the penalty phase
when counsel’s stated reason was simply that “ ‘it’s a death
penalty case’ ”]; People v. Guerra, supra, 37 Cal.4th at pp. 1085–
1086.) The trial court did not abuse its discretion by requiring
a more detailed showing from defendant before providing funds.
Because the court did not err, we also reject defendant’s
claim that the court’s “refusal to fund phone card privileges”
exacerbated the alleged error. Notably, the court ordered the
sheriff to allow defendant to call his investigator, and defendant
has provided no evidence that his ability to direct his case was
otherwise hampered.
Finally, as defendant acknowledges, the court did not
withhold all requested funds. Before the court granted
defendant’s Faretta motion, the court had approved more than
$57,000 in funds for investigative purposes. During the time
defendant represented himself, he had access to $6,147.95 for
investigation: $1,647.95 that remained available when he
began representing himself, and $4,500 the court approved
when defendant was representing himself. Additionally, the
court granted defendant’s funding request for legal materials
and advisory counsel to investigate the validity of his Texas
conviction. Given the totality of the circumstances, the court’s
actions did not constitute an abuse of discretion, did not
effectively force defendant to withdraw his self-represented
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Opinion of the Court by Cantil-Sakauye, J.
status, and did not violate defendant’s state or federal
constitutional rights.
B. Claims Regarding Admission of Evidence
1. Hartwell’s murder
Defendant asserts the trial court erred by admitting
evidence of Hartwell’s murder. He asserts doing so ran afoul of
Evidence Code sections 350, 352, and 1101. Although we find
the question somewhat close, we conclude that the trial court
did not abuse its discretion in admitting this evidence.
a. Factual background
As discussed in section I.A.1.b.iii, ante, the prosecution
introduced evidence of defendant’s murder of Hartwell.
Additional facts regarding Hartwell’s murder are relevant to
defendant’s claim of error.
In May 1995, defendant met Reeder and they soon began
dating and using drugs together. When dating defendant,
Reeder continued to socialize with Hartwell, with whom Reeder
had a prior romantic relationship. Defendant was selling drugs
at the time, and Hartwell convinced defendant that he could sell
drugs through her at clubs. Reeder believed that Hartwell and
defendant did not like each other; she testified that the two
occasionally argued, that Hartwell was jealous of defendant,
and that the relationship between Hartwell and defendant was
“[o]dd” and “different.”
On June 28, 1995, Hartwell and Reeder argued at
Hartwell’s apartment over Reeder’s plan to move in with her
parents. Reeder eventually left, and Hartwell talked with her
friend, Jeremy Barnes, at his apartment. Hartwell told Barnes
that she still loved Reeder and asked Barnes whether she should
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Opinion of the Court by Cantil-Sakauye, J.
report defendant to the police so that defendant would be out of
their lives.
Later that evening, Hartwell called Reeder. Defendant
was sitting near Reeder during the call. Hartwell asked Reeder
to come back to Hartwell’s apartment. Reeder refused, which
made Hartwell angry. Hartwell asked to speak with defendant,
and Reeder gave him the phone. Defendant listened to Hartwell
for a few minutes; Reeder could hear that Hartwell’s voice
sounded upset.
Defendant “seemed very seriously upset” after the call.
Defendant said Hartwell had threatened to turn him in to the
police for selling drugs and told him that she had a contact with
the police. He told Reeder that he “wasn’t going to let anybody
send him to prison.” Reeder believed defendant was planning to
kill Hartwell.
Reeder drove defendant to a restaurant to meet a few
friends. Over dinner, defendant told his friends, including
Michael Mihills, that Hartwell was going to turn him in to the
police for selling drugs. Reeder picked defendant up at the
restaurant after about an hour, and the two returned to Reeder’s
apartment. Reeder took Valium and fell asleep. She stated she
did not know what defendant did or whether he got into bed with
her.13
Meanwhile, Hartwell called her friend Sylvia Leal. Leal
testified that Hartwell sounded furious and frightened.
Hartwell told Leal that defendant had been involved in a
13
Reeder had previously testified that she and defendant
both awoke the next morning, she saw defendant getting
dressed, and she fell back asleep.
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Opinion of the Court by Cantil-Sakauye, J.
murder and that he dealt firearms. Hartwell wanted to “bust”
defendant, explained that defendant would be receiving a
methamphetamine shipment, and she asked Leal to contact a
narcotics investigator. Leal told Hartwell she would get a phone
number for Hartwell.
The next morning, Reeder was awakened by defendant
knocking on her door. He “seemed upset, disturbed, anxious”
and was bleeding from a serious cut between the thumb and
index finger of his hand. Defendant undressed, put his clothes
in a garbage bag, and took a shower. Reeder noticed that
Hartwell’s wallet was in the apartment. Defendant told Reeder
that he was cut during a struggle with Hartwell, who he said
was much stronger than he had anticipated. Defendant said the
fight occurred when he walked into Hartwell’s apartment. He
told Reeder that he stabbed Hartwell when she was on her
couch, that he dragged Hartwell to the bathtub, and that he
wrapped her in a bed comforter. He then carried her downstairs
to the back of her jeep, which he drove to Reeder’s apartment.
Defendant discussed cutting Hartwell’s body into pieces
and buying cement, chains, and garbage cans to sink the body
parts into a river. Reeder and defendant drove to a hardware
store, where they purchased a garbage can, cement, a chain, and
a padlock using Hartwell’s ATM card. Defendant then drove to
his house in Hartwell’s jeep; Reeder followed in her own car.
Eventually, defendant told Reeder he could not cut up
Hartwell’s body because there were people who might see him.
Defendant’s father came home and told defendant to take
Hartwell’s jeep off the property. Defendant drove the jeep to a
rural area and parked it off the road in a wooded location;
Reeder again followed in her car. Reeder and defendant drove
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Opinion of the Court by Cantil-Sakauye, J.
to a gas station in Reeder’s car, filled a container with gasoline,
and returned to Hartwell’s jeep. Reeder parked her car some
distance away from the jeep and waited while defendant poured
gasoline on the jeep and lit it on fire. Defendant ran back to
Reeder’s car, and the two drove to a hotel in Austin, where
Reeder checked in using a former name. There, defendant dyed
and cut his hair. He told Reeder that he was going back to
California.
About 9:45 p.m., fire officials responded to the vehicle fire,
which they described as “[v]ery hot and very intense.” The jeep
was completely burned and the area smelled strongly of
gasoline. Hartwell’s remains were found in the back seat,
burned beyond recognition. She was identified using dental
records. A folding knife wrapped in a blue cloth was discovered
near the body.
Dr. Robert Bayardo, the medical examiner who performed
the autopsy on Hartwell’s body, described the body as “partially
cremated” with large portions burned to ash. Bayardo located a
stab wound above Hartwell’s collarbone, which perforated her
lung, extended into her back, and severed a large vein and
artery. He opined the wound would have been fatal, that the
knife found near Hartwell’s body was capable of inflicting such
a wound, and that there was an 80 percent chance that Hartwell
was in a seated position when she was stabbed. Because there
was no soot or smoke in Hartwell’s airways or carbon monoxide
in her blood, Bayardo concluded Hartwell was already dead
prior to being burned. He noted that he would not expect the
stab wound to cause extensive external bleeding.
Several days after the killing, Barnes and Leal filed a
missing person report regarding Hartwell. Reeder and
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Opinion of the Court by Cantil-Sakauye, J.
defendant were contacted by police and taken to the police
station. An officer observed the cut on defendant’s hand, which
was healing but still looked “[f]airly serious.” Officers took
photographs of the wound. Defendant was subsequently
arrested.
Reeder gave a sworn statement to police. At the time she
gave the statement she had used drugs about 12 hours earlier
and was either high or experiencing withdrawals. She
implicated herself in Hartwell’s killing but withheld some
details to protect defendant. Reeder was later charged with
Hartwell’s murder but the charges were dropped due to a
violation of her rights under Miranda v. Arizona, supra, 384
U.S. 436. Reeder later agreed to testify at defendant’s trial for
Hartwell’s murder under a grant of immunity.
Law enforcement searched defendant’s home and
Hartwell’s apartment. At defendant’s home, officers found the
receipt from the hardware store, the hotel receipt, Hartwell’s
ATM card, a chain, and a trash can. DNA from blood samples
taken at Hartwell’s apartment matched Hartwell and
defendant. Defendant was eventually convicted of Hartwell’s
murder.
b. Analysis
Only relevant evidence is admissible at trial. (Evid. Code,
§ 350.) “Relevant evidence is broadly defined as that having a
‘tendency in reason to prove or disprove any disputed fact that
is of consequence’ to resolving the case.” (People v. Bryant,
Smith and Wheeler (2014) 60 Cal.4th 335, 405 (Bryant), quoting
Evid. Code, § 210.) Evidence Code section 1101 states that
although evidence of a person’s character is inadmissible when
offered to prove conduct on a specific occasion, “evidence that a
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Opinion of the Court by Cantil-Sakauye, J.
person committed a crime, civil wrong, or other act [is
admissible] when relevant to prove some fact (such as motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident . . . ) other than his or her
disposition to commit such an act.” (Evid. Code, § 1101, subd.
(b).) In other words, the statute allows the admission of
evidence of criminal activity other than the charged offense
“ ‘when such evidence is relevant to establish some fact other
than the person’s character or disposition.’ ” (People v. Johnson
(2022) 12 Cal.5th 544, 610.
“When reviewing the admission of other crimes evidence
to show motive, ‘ “a court must consider: (1) the materiality of
the fact to be proved or disproved, (2) the probative value of the
other crime evidence to prove or disprove the fact, and (3) the
existence of any rule or policy requiring exclusion even if the
evidence is relevant.” ’ ” (People v. Johnson, supra, 12 Cal.5th
at p. 610.) We review a trial court’s decision to admit evidence
under Evidence Code sections 1101 and 352 for abuse of
discretion. (People v. Johnson, supra, 12 Cal.5th at p. 610; see
also People v. Fuiava (2012) 53 Cal.4th 622, 667–668.) We do
not disturb the trial court’s ruling unless it was arbitrary,
capricious, or made in a “ ‘patently absurd manner that resulted
in a manifest miscarriage of justice.’ ” (People v. Powell (2018
6 Cal.5th 136, 162.)14
14
Defendant asserts de novo review is appropriate because
“this Court can review the prosecutor’s offer of proof regarding
Hartwell’s death, and assess its relevance as well as the trial
court,” citing In re Jenkins (2010) 50 Cal.4th 1167. Jenkins
concerned the validity of a regulation from California’s
Department of Corrections and Rehabilitation governing work
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Opinion of the Court by Cantil-Sakauye, J.
Addressing the merits of defendant’s claim, we must
consider two issues. First, defendant asserts the trial court
admitted the challenged evidence only to demonstrate intent,
and therefore that our review should be limited to whether the
other acts evidence was properly admitted on that basis.
Second, defendant asserts that, regardless of the purpose for
which the trial court admitted the evidence, doing so was error
under Evidence Code sections 1101 and 352.
As discussed below, our analysis here relates to
defendant’s blanket challenge to the admission of any evidence
related to Hartwell’s murder. Because defendant did not raise
objections to specific pieces of evidence (with certain narrow
exceptions also discussed below) neither the trial court nor this
court is in a position to parse the record independently and
examine each piece of evidence under Evidence Code section
352. Undertaking an analysis of defendant’s blanket challenge,
we hold that the trial court did not abuse its discretion under
either Evidence Code sections 1101 or 352 by admitting the
evidence related to Hartwell’s murder.
i. Purpose of admission
The prosecution filed a pretrial motion seeking to admit
evidence of Hartwell’s murder “to demonstrate intent,
credits and is inapposite. (Id. at pp. 1171–1172.) We stated that
“we have ‘allowed parties to “ ‘advance new theories on appeal
when the issue posed is purely a question of law based on
undisputed facts, and involves important questions of public
policy.’ ” ’ ” (Id. at p. 1180.) Defendant provides no compelling
reason why Jenkins, which is entirely unrelated to the
admission of evidence under Evidence Code sections 352 and
1101, should override our consistent application of the abuse of
discretion standard to the evidentiary issues raised here.
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Opinion of the Court by Cantil-Sakauye, J.
premeditation and deliberation, motive, common plan or
scheme, and lack of self-defense.” In that motion, the
prosecution asserted the evidence was admissible because,
among other reasons, it supported the conclusion that defendant
had killed Noriega and Hartwell for the same motive — to avoid
going to prison because defendant thought Noriega was “a
snitch” and because Hartwell had threatened to report
defendant to police. Judge Luebs granted the motion when
defendant was representing himself. Judge Boren revisited the
motion when defendant was represented by counsel. At the
later hearing, defense counsel objected to the admission of
evidence regarding Hartwell’s murder. The court granted the
prosecution’s motion over defendant’s objection, finding “a
sufficient basis under 1101(b) for that to come in. It . . . seems
to me it has relevance to, and is probative on, the issue of the
defendant’s state of mind, his intent, and that . . . under 352 the
negative factors simply do not outweigh that probative value.
So I would allow the 1101(b) evidence in.”
Defendant asserts that the trial court’s ruling admitted
the evidence solely to prove intent, and that this court cannot
consider other reasons for admitting the evidence under
Evidence Code section 1101, subdivision (b). He contends that
“[t]he prosecutor’s failure to cite the theories of admissibility
now offered by [the People] deprived [defendant] of the
opportunity to argue to the trial court why the evidence was
either not admissible under those theories or should be excluded
under section 352.” This position is unavailing.
As described above, the prosecution expressly relied on
motive as one basis for admissibility in the trial court. Although
the trial court stated it found the evidence relevant to
defendant’s “state of mind” and “his intent,” the record does not
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Opinion of the Court by Cantil-Sakauye, J.
support defendant’s assertion that the trial court admitted the
evidence solely to show intent without any reference to motive.
Rather, the court’s discussion of the issue with counsel,
including its discussion of the jury instructions relevant to this
evidence, indicates the court understood its ruling to be more
broad than defendant contends. When Judge Boren considered
the prosecution’s motion to admit the evidence, defense counsel
requested clarification concerning the purpose for which the
evidence would be offered. The court asked the prosecution if it
wished to clarify, stating, “I think you did lay it out previously.”
The prosecution agreed that it had done so, and further stated,
“What I’d be happy to do is confer with counsel and let them
know precisely what I intend to use it for and answer any
questions they may have about what theories I intend to offer.”
Defense counsel agreed to that approach.
Later, after Reeder testified, the jury was instructed that
it could consider evidence of Hartwell’s murder for the limited
purpose of deciding, as relevant here, whether defendant
intended to kill Noriega, had a motive to kill Noriega, or killed
Noriega in self-defense or as the result of an accident. Although
defendant objected generally at that point to the admission of
the testimony under Evidence Code section 1101, subdivision
(b), he did not assert the instruction should be narrowed to refer
only to intent but agreed with the instruction as written. The
court stated it would admit the evidence “for the reasons as
previously stated.” The court also read the instruction to the
jury at the close of trial. The instruction informed the jury that
it could not consider evidence of uncharged conduct unless it
found by a preponderance of the evidence that defendant had
committed that conduct. It further instructed, “If you decide
that the defendant committed the uncharged act or acts, you
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Opinion of the Court by Cantil-Sakauye, J.
may, but are not required to, consider that evidence for the
limited purpose of deciding whether or not the defendant acted
with the intent to kill Rafael Noriega in this case, or the
defendant acted with the intent to permanently deprive Rafael
Noriega of property of some value in this case, or the defendant
had a motive to commit the offense alleged in this case, or the
defendant’s alleged actions were not the result of accident in this
case, or the defendant had a plan or scheme to commit the
offense alleged in this case, or the defendant’s alleged actions
were not the result of self-defense in this case, or the defendant
acted with premeditation and deliberation in this case.”
When discussing jury instructions, defendant did not
object to the instruction on the basis he now raises; that is, he
did not assert that the instruction should be limited to refer only
to intent. Thus, the combination of the colloquy between the
court and counsel regarding this evidence and the jury
instructions provided make clear that the court did not admit
the evidence of Hartwell’s murder solely to establish intent.
Rather, the jury was clearly told it could consider the other acts
evidence on the issue of motive.
Further, the prosecution relied on evidence of defendant’s
motive for killing Hartwell in order to establish defendant’s
motive and intent to kill Noriega. In this way, the evidence of
motive was offered to prove the ultimate fact of defendant’s
intent. (See People v. Demetrulias (2006) 39 Cal.4th 1, 14
[“Motive, though not itself an ultimate fact put at issue by the
charges or the defense in this case, was probative of two
ultimate facts, intent and lack of justification”].) We therefore
decline to limit our consideration of the admission of the
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Opinion of the Court by Cantil-Sakauye, J.
evidence under Evidence Code section 1101, subdivision (b) to
the issue of intent, as defendant asserts we must.15
ii. Abuse of discretion
As stated, we review a trial court’s decision to admit
evidence under Evidence Code sections 1101 and 352 for abuse
of discretion. (People v. Johnson, supra, 12 Cal.5th at p. 610.
We find there was no abuse of discretion. The prosecution’s
theory of the case was, in relevant part, that defendant killed
Noriega because defendant believed Noriega was a “narc” — i.e.,
that defendant believed Noriega was going to report him to the
police. The prosecution sought to introduce evidence that
defendant killed Hartwell because Hartwell threatened to have
15
The current instruction regarding uncharged offenses
directs the trial court to “select specific grounds of relevance and
delete all other options.” (CALCRIM No. 375.) The parties here
primarily focus on the role of intent and motive, but they do not
discuss the portion of the jury instruction referring to common
plan. Although the Attorney General does not assert the other
acts evidence was admissible to establish a common plan,
defendant does not challenge this portion of the instruction (and
in fact agreed at trial to the instruction as provided) and thus
has forfeited any such claim. (People v. Hillhouse (2002) 27
Cal.4th 469, 503.) Even if we were to consider the issue, we
would find any error harmless because, as we have concluded,
there existed an independent basis to admit the evidence under
Evidence Code section 1101, subdivision (b), and there is no
indication the jury relied on a common plan theory in reaching
the verdict here. It is thus not reasonably probable that the
outcome would have been different absent any error. (People v.
Beltran (2013) 56 Cal.4th 935, 955 [applying test for harmless
error articulated in People v. Watson (1956) 46 Cal.2d 818 —
that the error is harmless unless it is reasonably probable the
outcome would have been different in the absence of the error —
to incorrect jury instructions that do not amount to federal
constitutional error].
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Opinion of the Court by Cantil-Sakauye, J.
defendant arrested for selling drugs. This is a sufficient basis
to support the admission of the evidence under Evidence Code
section 1101, subdivision (b).
People v. Demetrulias, supra, 39 Cal.4th 1 is instructive.
There, we stated that “the probativeness of other-crimes
evidence on the issue of motive does not necessarily depend on
similarities between the charged and uncharged crimes, so long
as the offenses have a direct logical nexus.” (Id. at p. 15; see also
People v. Daniels (1991) 52 Cal.3d 815, 857, People v. Pertsoni
(1985) 172 Cal.App.3d 369, 374.) Thus, in Demetrulias we
upheld the admission of evidence of the defendant’s motives for
robbing and assaulting one individual in order to support the
prosecution’s theory that the defendant had the same motive
when he stabbed and killed the victim in the charged offense.
(People v. Demetrulias, supra, 39 Cal.4th at p. 15.) Similarly,
we have held that evidence that a defendant had previously
“stalked, bound, and assaulted” women and admitted that he
“found his attacks sexually stimulating” was “relevant and
admissible to prove his motive to sexually assault” a later
victim. (People v. Davis (2009) 46 Cal.4th 539, 604–605; see also
People v. Spector (2011) 194 Cal.App.4th 1335, 1381 [one theory
that supports admission is when “ ‘the uncharged act evidences
the existence of a motive, but the act does not supply the
motive . . . . [T]he motive is the cause, and both the charged and
uncharged acts are effects. Both crimes are explainable as a
result of the same motive’ ”], quoting 1 Imwinkelried, Uncharged
Misconduct Evidence (2009) § 3:18, pp. 128–129.
Here, too, the prosecution offered evidence of Hartwell’s
murder based on the theory that her murder and the killing of
Noriega were explainable as a result of the same motive:
defendant killed Hartwell because she threatened to report him
36
PEOPLE v. THOMAS
Opinion of the Court by Cantil-Sakauye, J.
to police, and defendant killed Noriega because he believed
Noriega was a “narc.” This conclusion was further supported by
additional evidence of other crimes presented at trial. The
prosecution introduced evidence that defendant planned to kill
Aguon and Christine because he believed they were going to
report him to police for dealing drugs. And the prosecution
introduced evidence that defendant armed himself with a
shotgun when he believed police had been called following an
incident of domestic violence. Each of these incidents involved
defendant reacting to a belief that he had been or would be
reported to police, and his committing or preparing to commit
violence in order to avoid arrest. As the prosecution argued in
its motion in limine, defendant “repeatedly planned to kill
people to avoid arrest, over a period of a few years, and under
the similar circumstances that the defendant believed his
targeted victims were going to turn him in to police for his
criminal behavior.” The trial court did not abuse its discretion
in admitting the evidence under Evidence Code section 1101,
subdivision (b) based on this theory.
We next turn to whether the trial court abused its
discretion when concluding that the probative value of evidence
related to Hartwell’s murder was not outweighed by any
potential for prejudice under Evidence Code section 352.
Although this presents a closer question, we conclude the trial
court did not abuse its discretion.
Prejudice under Evidence Code section 352 refers to
“ ‘ “evidence which uniquely tends to evoke an emotional bias
against the defendant as an individual and which has very little
effect on the issues.” ’ ” (People v. Williams (2013) 58 Cal.4th
197, 270.) In this context, “ ‘ “ ‘prejudicial’ is not synonymous
with ‘damaging.’ ” ’ ” (People v. Virgil (2011) 51 Cal.4th 1210,
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PEOPLE v. THOMAS
Opinion of the Court by Cantil-Sakauye, J.
1249.) “ ‘Evidence is not prejudicial, as that term is used in a
section 352 context, merely because it undermines the
opponent’s position or shores up that of the proponent. The
ability to do so is what makes evidence relevant. The code
speaks in terms of undue prejudice. Unless the dangers of
undue prejudice, confusion, or time consumption “ ‘substantially
outweigh’ ” the probative value of relevant evidence, a section
352 objection should fail.’ ” (People v. Doolin (2009) 45 Cal.4th
390, 438–439.
Defendant raises several arguments in support of his
claim that the evidence regarding Hartwell’s killing was unduly
prejudicial. First, he asserts the evidence “simply portrayed
[defendant] as an evil and out of control person” because “[t]here
was no relationship between the incidents.” Not so. As
explained above, Hartwell’s murder demonstrated defendant’s
motive to kill in order to avoid being arrested or “snitched” on.
It was directly connected to the prosecution’s theory of the case.
Further, any potential for undue prejudice was mitigated by the
instruction provided to the jury that specifically prohibited the
jury from concluding based on the other acts evidence that “the
defendant has a bad character or is disposed to commit crime.”
Additionally, the jury was informed that defendant had been
convicted of Hartwell’s murder. As the trial court here observed,
this reduced the potential for undue prejudice because it
ensured that “the jury was not tempted to convict defendant of
the charged offenses, regardless of his guilt, in order to assure
that he would be punished for” Hartwell’s murder. (People v.
Balcom (1994) 7 Cal.4th 414, 427.
Second, defendant contends the main issue with regard to
the killing of Noriega was the identity of the perpetrator, not the
perpetrator’s motive or intent. Thus, he claims, the Hartwell
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PEOPLE v. THOMAS
Opinion of the Court by Cantil-Sakauye, J.
evidence was irrelevant. Again, Hartwell’s murder was relevant
to establish motive under Evidence Code section 1101,
subdivision (b). Defendant pleaded not guilty, placing all
elements of the offense at issue. Defendant cannot now claim
that, because he did not contest intent or premeditation, the
prosecution was barred from introducing this evidence. (People
v. Bryant, supra, 60 Cal.4th at p. 407; see also People v. Scott
(2011) 52 Cal.4th 452, 470–471.
Third, defendant asserts the evidence of Hartwell’s
murder “required lengthy and prejudicial testimony.” The
Attorney General concedes that the testimony regarding
Hartwell’s murder “consumed a considerable amount of time.”
Indeed, the record demonstrates that a substantial portion of
the prosecution’s opening argument and about half of the trial
testimony related to Hartwell’s murder. And the details of
Hartwell’s murder included disturbing photographs and
testimony regarding her stabbing and the gruesome condition of
her body.16 The extent of evidence presented regarding the
uncharged offense, coupled with the graphic nature of some of
the evidence, is what makes this a close case. We nonetheless
conclude that defendant has not established error under the
highly deferential standard applicable here. (See People v. Miles
(2020) 9 Cal.5th 513, 587 [trial court’s decision to admit evidence
under Evidence Code section 352 will not be disturbed unless
the court exercised its discretion in an arbitrary, capricious or
patently absurd manner that resulted in a manifest miscarriage
of justice].
16
We discuss defendant’s specific objection to the
photographs and testimony related to Hartwell’s body in section
II.B.3, post.
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PEOPLE v. THOMAS
Opinion of the Court by Cantil-Sakauye, J.
The prosecution was required to prove by a preponderance
of the evidence that defendant murdered Hartwell in order for
that act to be considered under Evidence Code section 1101,
subdivision (b). (People v. Foster (2010) 50 Cal.4th 1301, 1346.
The prosecution’s testimony thus focused on defendant’s
behavior in Texas, including his statements made to other
individuals relevant to Noriega’s murder (i.e., statements to
Reeder that he had killed a “narc,” and statements overheard by
Sams that he killed someone in California for drugs),
defendant’s relationship with Hartwell that led to their falling
out, and defendant’s decision to kill Hartwell after she told
defendant she would report him to police.
The prosecution’s main witness implicating defendant in
Hartwell’s killing was Reeder. Reeder provided evidence that
defendant killed Noriega because he was a “narc,” and she
provided
additional
testimony
regarding
defendant’s
statements about killing Noriega (that he put Noriega’s body in
the back of a truck and hid the body in or near some caves). She
described defendant’s plan to kill Hartwell because Hartwell
had threatened to turn defendant in to the police, defendant’s
statements to Reeder about killing Hartwell, and their disposal
of Hartwell’s body. Reeder’s testimony thus not only supported
the prosecution’s state of mind argument but also was central to
its assertion that defendant killed Noriega.
Defendant vigorously cross-examined Reeder and
attacked her credibility. During closing arguments, defense
counsel pointed to alleged inconsistencies in Reeder’s testimony
and emphasized to the jury that Reeder had been given
immunity for her testimony. Counsel stated that Reeder “told
you she would be admitting to the murder, the murder of Regina
Hartwell without immunity. And why did she walk? Why did
40
PEOPLE v. THOMAS
Opinion of the Court by Cantil-Sakauye, J.
she skate? Some technical loophole, some technicality and she
walks. . . . Meanwhile she’s buying the gasoline to burn the
body.” At one point, defense counsel asserted Reeder’s
testimony that defendant had killed Noriega because he was a
“narc” was not supported by any other evidence. At another
point, counsel questioned whether it was Reeder who killed
Hartwell, saying, “Do I know if she killed Regina Hartwell? I
don’t know. She certainly had motive. She had way more
motive than Justin Thomas.”17
The prosecution bolstered Reeder’s credibility by
providing testimony from other witnesses. Leal, Barnes, and
Mihills all corroborated Reeder’s statement that Hartwell
planned to report defendant to the police. Law enforcement
officials described the chain of custody regarding relevant
evidence (including a knife consistent with the wound to
Hartwell’s body) and corroborated other details from Reeder’s
story including, for example, the cut to defendant’s hand and
that he had purchased a chain and a trash can when planning
to dispose of Hartwell’s body. The medical examiner described
the knife wound found during Hartwell’s autopsy as being
consistent with Reeder’s reported account that defendant had
stabbed Hartwell when she was in a seated position. The
prosecution emphasized to the jury that these other witnesses
corroborated Reeder’s testimony: “The real issue in the case is
the credibility of the People’s witnesses, right; Dorothy Brown,
17
When considering an objection to testimony from the
medical examiner during trial, the court observed that, “there
has been some cross-examination of some evidence that suggests
perhaps that someone other than Mr. Thomas did it [killed
Hartwell], or that Ms. Reeder had a greater role in it, perhaps,
than she announced.”
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Opinion of the Court by Cantil-Sakauye, J.
Kim [Reeder], Michael Mihills, John Sams, right. . . . [¶] Rather
than just saying, you know what, I choose to believe Kim
[Reeder], which you can do, you don’t have to, though. Because
you can look at all the other witnesses and all the other
evidence, and you’ll see that it corroborates them.”
Understood in this context, we cannot say that it was an
abuse of discretion for the trial court to admit the extensive
evidence regarding Hartwell’s murder, that the amount of time
necessary to present it was excessive, or that the nature of the
evidence was unduly prejudicial. Although another trial court
might have reasonably reached a different conclusion, that is
insufficient to demonstrate an abuse of discretion. (See Mercer
v. Perez (1968) 68 Cal.2d 104, 114 [abuse of discretion cannot be
found simply because a different decision “could have been
reached”].
Next, defendant contends the strength of the evidence
implicating him in Hartwell’s murder improperly bolstered the
comparatively weak evidence connecting him to Noriega’s
murder. We cannot agree with defendant’s characterization of
the evidence implicating him in Noriega’s killing as “weak.” The
jury heard testimony from Brown, who was an eyewitness to the
killing. Reeder’s testimony corroborated Brown’s by providing
details defendant conveyed to Reeder regarding his shooting of
“Rafa,” and that defendant put the body in the back of his truck
and then hid it in or near some caves. Sams also testified that
defendant admitted to killing someone in California. Although
defendant attacks the credibility of these witnesses and the
reliability of the evidence generally, it was for the jury to
determine whether they found the testimony credible and
reliable. Given this evidence, it was not an abuse of discretion
for the trial court to determine that the probative value of the
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PEOPLE v. THOMAS
Opinion of the Court by Cantil-Sakauye, J.
evidence related to Hartwell’s murder would outweigh the
potential for undue prejudice. (See People v. Ewoldt (1994
7 Cal.4th 380, 406.
Finally, defendant asserts that other evidence used by the
prosecution to connect him with Noriega’s death was unreliable.
He focuses on testimony from Barajas and her sister, Brown’s
testimony from the Texas trial, and defendant’s statements to
third parties that he had killed someone in California. Other
than the objections to Brown’s testimony discussed in section
II.B.4, post, defendant does not challenge the admission of this
other testimony. It was for the jury to evaluate the evidence and
to reach a conclusion regarding defendant’s guilt. To the extent
defendant asserts the admission of evidence related to
Hartwell’s murder was prejudicial given this other allegedly
unreliable evidence, that assertion is not compelling in light of
our above evaluation of the claim under Evidence Code section
352.
We find it significant that defendant’s challenges under
Evidence Code sections 1101, subdivision (b) and 352 are to the
admission of any evidence related to Hartwell’s murder; both in
the trial court and in this court, he did not raise any specific
objection to particular testimony or pieces of evidence (aside
from certain photographs and related testimony discussed in
section II.B.3, post). Thus, the trial court generally ruled that
evidence related to Hartwell’s murder was admissible. It did
not, however, parse the proffered testimony to determine the
potential for undue prejudice nor did it consider how particular
testimony might be tailored to avoid alleged undue prejudice.
Although a more nuanced analysis of the proffered
evidence might have been beneficial, it was not incumbent on
43
PEOPLE v. THOMAS
Opinion of the Court by Cantil-Sakauye, J.
the trial court to undertake such an endeavor absent a specific
objection and request from counsel. Evidence Code section 353,
subdivision (a) requires counsel to “make clear the specific
ground of the objection or motion.” Specific objections serve the
important purpose of “fairly inform[ing] the trial court, as well
as the party offering the evidence, of the specific reason or
reasons the objecting party believes the evidence should be
excluded, so the party offering the evidence can respond
appropriately and the court can make a fully informed ruling.”
(People v. Partida (2005) 37 Cal.4th 428, 435). “A party cannot
argue the court erred in failing to conduct an analysis it was not
asked to conduct.” (Ibid.
We have previously held the type of general objection
defendant made here is not sufficient to preserve a claim as to
specific pieces of evidence. (People v. Cowan (2010) 50 Cal.4th
401, 477.) In Cowan, the defendant objected before trial to the
introduction of any postmortem photographs of the victim. (Id.
at p. 476.) The court overruled the objection, but “left open the
possibility that, upon proper objection, it might later conclude
that any particular photograph was irrelevant.” (Id. at p. 477.
The defendant did not later renew his objection as to specific
photographs and we held that this failure to object “forfeited any
claim that the trial court erred by failing to weigh each
photograph’s individual probative value against its individual
prejudicial effect.” (Ibid.) For the same reason, we decline to
attempt to parse the evidence here given defendant’s lack of a
specific objection in the trial court or in this court to any
particular evidence related to Hartwell’s murder.
At oral argument in this court, defense counsel asserted
that objections to specific portions of the evidence at trial once
the trial court had made its initial ruling to admit evidence of
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PEOPLE v. THOMAS
Opinion of the Court by Cantil-Sakauye, J.
Hartwell’s murder were not required and would have served
only to annoy the trial court. To the extent this might be
understood as an assertion that specific objections would have
been futile, such an assertion is inconsistent with the record.
When ruling on the prosecution’s motion to admit the evidence,
the court stated, “I think that that very probative value as I
understand it from the offer of proof and the information
available is not substantially outweighed by any undue
prejudicial effect or any other negative aspect of [Evidence Code
section 352].” (Italics added.) As in Cowan, supra, 50 Cal.4th
at page 477, this indicated that the court’s ruling was based on
a preview of the evidentiary representations made by counsel at
the time it ruled on the pretrial motion and that the court was
not foreclosing further rulings as the evidence developed.
Indeed, the trial court did consider and rule on later objections
to specific evidence, including evidence related to Hartwell’s
murder. For example, after the trial court generally admitted
evidence of Hartwell’s murder it considered the prosecution’s
motion to admit photographs of Hartwell’s autopsy and
defendant’s related objections. The trial court conducted an
evaluation of the evidence in light of that specific objection and
admitted, excluded, or deferred ruling on photographs of
Hartwell’s autopsy. When defense counsel raised the objection
to the autopsy photographs and the pathologist’s testimony
again during trial, the trial court conducted another analysis of
the relevance and potential for prejudice before admitting the
evidence. This is precisely the process the Evidence Code calls
for in order to fairly present and preserve a challenge to
proffered evidence.
Considering, then, defendant’s objection to the admission
of any evidence related to Hartwell’s murder, we conclude that
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PEOPLE v. THOMAS
Opinion of the Court by Cantil-Sakauye, J.
the trial court did not abuse its discretion under Evidence Code
sections 1101, subdivision (b) or 352. Because there was no
statutory error, defendant’s constitutional claims likewise fail.
(See People v. Fuiava, supra, 53 Cal.4th at p. 670; People v.
Foster (2010) 50 Cal.4th 1301, 1335.
2. Defendant’s alleged plan to kill Aguon and
Christine
Defendant asserts the admission of evidence regarding his
alleged plan to kill Aguon and Christine also violated Evidence
Code sections 1101, subdivision (b), and 352. The Attorney
General contends the claim is forfeited and without merit. Even
if we were to find the claim was not forfeited, we agree with the
Attorney General that the trial court did not err in admitting
this evidence.
a. Forfeiture
The Attorney General contends defendant forfeited any
claim related to the admission of evidence of a plan to kill Aguon
and Christine by failing to object at trial. The prosecution
moved before trial to admit the evidence under Evidence Code
section 1101. The trial court considered the prosecution’s
motion on two occasions. First, Judge Luebs granted the
prosecution’s motion to admit the evidence at a hearing in April
2007 when defendant was representing himself. In October
2007, when defendant was represented by counsel, Judge Boren
allowed defendant to reargue motions that Judge Luebs had
previously ruled on, including the admission of other acts
evidence under Evidence Code section 1101, subdivision (b).
Defendant acknowledges that although defense counsel
objected at the October 2007 hearing to the introduction of
evidence regarding Hartwell’s murder, counsel did not raise any
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PEOPLE v. THOMAS
Opinion of the Court by Cantil-Sakauye, J.
objection regarding the plan to kill Aguon and Christine.
Defendant maintains, however, that he preserved the issue
when he was representing himself at the April 2007 hearing by
stating: “I believe that would be prejudicial because there is no
police reports [sic] indicating threats were made in that
manner.” The transcript of the hearing, however, reveals that
defendant did not raise a proper objection to preserve his claim.
During the April 2007 hearing, the court initially raised
the prosecution’s motion to admit evidence under Evidence Code
section 1101, subdivision (b) and asked defendant if he objected
to the motion. Defendant stated, “At this time no, your Honor.”
The prosecution and the court then discussed several incidents
that the prosecution sought to introduce at trial: the murder of
Hartwell; defendant’s threat to kill police officers; and
defendant’s plan to kill Aguon and Christine. Regarding the
threat to police, the prosecution stated that defendant told
Investigator Silva that “he got the gun because he thought the
police were coming and he was ready to use it with the police.”
Regarding the threat to Aguon and Christine, the prosecution
stated it would rely on testimony from Maximilian Garcia. After
further discussion, the court inquired again of defendant
whether he had any objections. The following exchange then
occurred:
“[Defendant]: Your Honor, I wasn’t aware. I haven’t
had a chance to review the tapes of the Silva
interview. I was not aware.
“[Court]: It was in the moving papers, essentially
the description of it. But do you want to — you
heard what he said, right?
“[Defendant]: Yes, sir.
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PEOPLE v. THOMAS
Opinion of the Court by Cantil-Sakauye, J.
“[Prosecution]: It is also in the transcripts that were
turned over.
“[Court]: Okay.
“[Defendant]: I believe that would be prejudicial
because there is no police reports [sic] indicating
threats were made in that manner.
“[Court]: This case — you apparently said it
yourself. You told Mr. Silva. He has it on tape,
apparently.
“[Defendant]: I haven’t agreed to that evidence.
“[Court]: So your only objection is you haven’t
reviewed the evidence. [¶] Assuming it is there, sir,
is there some reason I should not grant the motion
under 1101 of the Evidence Code? You have to give
me legal basis, because [the prosecution] made a
compelling argument.
“[Defendant]: I cannot, your Honor.”
This exchange makes clear that defendant’s objection was
related to his statements to Silva regarding the alleged threat
to police officers, and in any event was not made under Evidence
Code section 1101. Defendant’s objection thus was not sufficient
to preserve a challenge under Evidence Code sections 1101 and
352 to the evidence of a plan to kill Aguon and Christine. (People
v. Valdez (2012) 55 Cal.4th 82, 130 [objection must fairly inform
the court and the party offering the evidence of the specific
reasons the evidence should be excluded so the party offering
the evidence can respond and the court can make an informed
ruling]; Evid. Code, § 353 [verdict may not be set aside based on
erroneous admission of evidence absent a timely and specific
objection on the record, or the error resulted in a miscarriage of
justice].
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PEOPLE v. THOMAS
Opinion of the Court by Cantil-Sakauye, J.
b. Analysis
Even assuming defendant preserved his claim regarding
the admission of evidence related to his threat to kill Aguon and
Christine, we conclude there was no error in admitting that
evidence.
As stated above, we review the trial court’s decision to
admit evidence under Evidence Code sections 1101 and 352 for
abuse of discretion. (People v. Johnson, supra, 12 Cal.5th at
p. 610.) We find no abuse of discretion.
The evidence regarding the threat to kill Aguon and
Christine was admissible to establish motive under Evidence
Code section 1101, section (b). Like the evidence regarding
Hartwell’s murder, the threat to Aguon and Christine bolstered
the prosecution’s theory of the case by providing an additional
example of a situation when defendant planned lethal violence
when he believed he would be reported to police by Aguon and
Christine.
Neither did the admission of this evidence constitute an
abuse of discretion under Evidence Code section 352. Defendant
makes similar assertions regarding undue prejudice as he does
regarding the evidence of Hartwell’s murder, including that the
evidence of his threats to Aguon and Christine was irrelevant
and portrayed him as “an evil and out of control person.” Those
claims are no more availing in this context. Indeed, the
testimony regarding the threat to Aguon and Christine was
relatively brief and defendant points to no aspect of that
testimony that contained potentially inflammatory information
such that the evidence was more prejudicial than it was
probative. And, as with the evidence of Hartwell’s murder, the
relevant jury instruction specifically prohibited the jury from
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PEOPLE v. THOMAS
Opinion of the Court by Cantil-Sakauye, J.
considering the incident as evidence of defendant’s “bad
character.” We hold there was no statutory or constitutional
error. (See People v. Fuiava, supra, 53 Cal.4th at p. 670; People
v. Foster, supra, 50 Cal.4th at p. 1335.
3. Photographs of Hartwell and Noriega and related
testimony
Defendant challenges the admission of testimony related
to Hartwell’s autopsy as well as photographs of Noriega and
Hartwell as unduly prejudicial under Evidence Code section
352. He contends that the admission of this evidence deprived
him of his federal right to due process and a fair trial, and that
the admission of the photographs prejudiced him at the guilt
and penalty phases. We conclude that the trial court did not err
by admitting some of the challenged evidence. As to the
remaining evidence, we find that any error was harmless.
The prosecution sought to introduce a number of
photographs related to Noriega. The court admitted seven
photographs of the field where Noriega’s body was found; five of
those showed (entirely or in part) Noriega’s decomposed body.
The court also admitted two photographs of Noriega’s
decomposed body lying on a body bag in a laboratory setting.
The court excluded as cumulative two other similar
photographs. The court deferred a final ruling regarding a
photograph showing the sternum of Noriega’s body with an
apparent bullet hole, but it ultimately admitted the photo. The
prosecution also sought to introduce three photographs of
Noriega taken while he was alive. The court indicated it would
allow the prosecution to use one of those photographs for
witnesses to identify Noriega, and the prosecution selected a
photograph of Noriega taken at a restaurant where he worked.
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PEOPLE v. THOMAS
Opinion of the Court by Cantil-Sakauye, J.
The prosecution also moved to admit various photographs
related to Hartwell’s murder. The court admitted one
photograph of Hartwell talking on the telephone to be used for
witnesses to identify her. The prosecution also sought to admit
photographs of the burned car inside which Hartwell’s body was
found. The court admitted five such photographs (two of which
showed the area where the car was found, but not the car or
Hartwell’s body) and excluded another that depicted Hartwell’s
burned remains inside the car. Finally, the prosecution sought
to admit five photographs from Hartwell’s autopsy. The court
admitted two of those, both of which showed a probe pointing to
a stab wound in Hartwell’s torso. Bayardo, who performed the
autopsy of Hartwell’s body, testified that it had been “partially
cremated” and described the stab wound depicted in the
photographs.
Defendant objects to the admission of the photographs of
Noriega and Hartwell depicting them when they were alive,
asserting these photographs were irrelevant and evoked undue
emotional sympathy. We review the trial court’s decision to
admit the photographs for abuse of discretion. (People v. Scully
(2021) 11 Cal.5th 542, 590.) “ ‘To determine whether there was
an abuse of discretion, we address two factors: (1) whether the
photographs were relevant, and (2) whether the trial court
abused its discretion in finding that the probative value of each
photograph outweighed its prejudicial effect.’ ” (People v. Lewis
(2009) 46 Cal.4th 1255, 1282.) Although we have “repeatedly
cautioned against the admission of photographs of murder
victims while alive unless the prosecution can establish the
relevance of such items,” we have also held that such
photographs can be relevant “to establish the witnesses’ ability
to identify the victims as the people about whom they were
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PEOPLE v. THOMAS
Opinion of the Court by Cantil-Sakauye, J.
testifying.” (People v. DeSantis (1992) 2 Cal.4th 1198, 1230; see
also People v. Tully (2012) 54 Cal.4th 952, 1020; People v.
Martinez (2003) 31 Cal.4th 673, 692.) Here, the photographs of
Noriega and Hartwell were used in this permissible manner.
Moreover, the photographs were sufficiently neutral and
detached such that they were not likely to produce any
prejudicial impact. (People v. Suff (2014) 58 Cal.4th 1013, 1072–
1073.) The trial court did not err by admitting these
photographs.
Defendant also objects to the admission of photographs of
Noriega’s decomposed body and the field where Noriega’s body
was found. He asserts the photographs were unduly prejudicial,
irrelevant, and “unnecessary” because the prosecution could
have introduced details regarding Noriega’s autopsy by way of
testimony rather than photographic evidence. He notes, for
example, that it was not disputed at trial that Noriega was shot
and that the prosecution’s witness could have expressed an
opinion regarding the cause of death without showing the
photographs.
“ ‘This court is often asked to rule on the propriety of the
admission of allegedly gruesome photographs. [Citations.] At
base, the applicable rule is simply one of relevance, and the trial
court has broad discretion in determining such relevance.
[Citation.] “ ‘ [M]urder is seldom pretty, and pictures, testimony
and physical evidence in such a case are always unpleasant’ ”
[citation], and we rely on our trial courts to ensure that relevant,
otherwise admissible evidence is not more prejudicial than
probative [citation]. A trial court’s decision to admit
photographs under Evidence Code section 352 will be upheld on
appeal unless the prejudicial effect of such photographs clearly
outweighs their probative value.’ ” (People v. Scully, supra, 11
52
PEOPLE v. THOMAS
Opinion of the Court by Cantil-Sakauye, J.
Cal.5th at p. 590.) “In a prosecution for murder, photographs of
the murder victim and the crime scene are always relevant to
prove how the charged crime occurred . . . .” (People v. Pollock
(2004) 32 Cal.4th 1153, 1170.) “The prosecution is not obliged
to prove its case solely from the testimony of live witnesses; ‘the
jury is entitled to see details of the victims’ bodies to determine
if the evidence supports the prosecution’s theory of the case.’ ”
(People v. Scully, supra, 11 Cal.5th at p. 590.
The photographs of the field where Noriega’s body was
found were relevant to corroborate and illustrate the testimony
of the witnesses who discovered and recovered the body. (See
People v. Scully, supra, 11 Cal.5th at pp. 590–591; People v.
Heard (2003) 31 Cal.4th 946, 973–974.) The manner in which
defendant disposed of Noriega’s body — leaving it in a field
under a pallet where he would decompose over time — was
certainly callous. But it cannot be said that the photographs of
the field (one of which shows Noriega’s body in its entirety) were
unduly prejudicial.
We likewise conclude that the photographs of Noriega’s
decomposed body were not unduly prejudicial. We have stated
that “the absence of a defense challenge to particular aspects of
the prosecution’s case or its witnesses does not render victim
photographs irrelevant.” (People v. Lewis (2001) 25 Cal.4th 610,
641.) Defendant’s assertion that a witness could have testified
regarding Noriega’s cause of death without the photographs
does not alter our analysis. “That the challenged photographs
may not have been strictly necessary to prove the People’s case
does not require that we find the trial court abused its discretion
in admitting them.” (People v. Mills (2010) 48 Cal.4th 158, 191;
see also People v. Morales (2020) 10 Cal.5th 76, 104; People v.
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Opinion of the Court by Cantil-Sakauye, J.
Pride (1992) 3 Cal.4th 195, 243 [prosecution need not “accept
antiseptic stipulations in lieu of photographic evidence”].
The photographs of Noriega’s remains were relevant to
prove the circumstances of his death and to support the
prosecution’s case. Further, the photographs assisted the jury
in understanding the testimony regarding the manner of death.
Ditraglia testified that the hole in Noriega’s sternum was
consistent with a gunshot wound, corroborating Brown’s
testimony that defendant shot Noriega. It is true that these
photographs and the related testimony are unpleasant and
gruesome. But, as we have often said, such photographs are
“ ‘ “ ‘seldom pretty’ ” ’ ” and “ ‘ “ ‘always unpleasant’ ” ’ ” (People
v. Scully, supra, 11 Cal.5th at p. 590.) In light of their relevance
to the issues here, we cannot say that the photographs were so
unduly gruesome or inflammatory such that the trial court
abused its discretion in admitting them. (Id. at pp. 591–592; see
also People v. Morales, supra, 10 Cal.5th at p. 103; People v.
Montes (2014) 58 Cal.4th 809, 862; People v. Howard (2010) 51
Cal.4th 15, 33.
Finally, defendant objects to the admission of photographs
of Hartwell’s burned car, photographs of Hartwell’s body, and
Bayardo’s testimony regarding Hartwell’s autopsy. We
acknowledge that this evidence, perhaps even more than the
photographs of Noriega’s body, was unpleasant and gruesome.
However, even assuming the trial court abused its discretion by
admitting the photographs and related testimony, we find any
error harmless under People v. Watson, supra, 46 Cal.2d 818.
(See People v. Carter (2005) 36 Cal.4th 1114, 1170 [applying
Watson to alleged error under Evidence Code section 352 in
admitting photographs of victim].) “Under the Watson
standard, the erroneous admission of a photograph warrants
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reversal of a conviction only if the appellate court concludes that
it is reasonably probable the jury would have reached a different
result had the photograph been excluded.” (People v. Scheid
(1997) 16 Cal.4th 1, 21.) We find no such reasonable probability
here. Evidence and testimony — including Reeder’s testimony
and defendant’s DNA found in Hartwell’s apartment — directly
implicated defendant in Hartwell’s murder. And, although the
challenged photographs corroborated the incriminating
evidence, the photographs were not central to the prosecution’s
case or the jury’s ultimate determination of the issues. Thus,
even were we to assume there was error in admitting the
autopsy photographs and related testimony, we would conclude
that there is no reasonable probability that the exclusion of this
evidence would have led to a different result at either the guilt
or penalty stage.
4. Brown’s testimony from defendant’s Texas trial
Defendant contends the trial court erred when it admitted
into evidence Brown’s testimony from defendant’s Texas trial for
Hartwell’s murder. He maintains the testimony was not
admissible under Evidence Code section 1291 because his
interest and motive in cross-examining Brown at the Texas trial
was not similar to that which he had at his California trial, and
that the admission of the testimony violated his rights to
confront witnesses, to due process, to an accurate jury
determination, and to the protection against cruel and unusual
punishment. We conclude the trial court did not err, and that
defendant’s constitutional rights were not violated.
a. Factual background
Before defendant’s trial for the killing of Noriega, the
prosecution moved to admit Brown’s testimony from defendant’s
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Texas trial for Hartwell’s murder, citing Evidence Code section
1291. The Texas trial consisted of a guilt phase and a penalty
phase; during the penalty phase a jury considered evidence and
made a sentencing recommendation to the court. Brown
testified under oath first outside the presence of the jury at a
hearing to determine whether her testimony would be
admissible during the penalty phase and later in front of the
jury during the penalty phase. Defendant’s Texas counsel cross-
examined Brown during those proceedings, questioning her
about her criminal history, drug use, and prior inconsistent
statements to law enforcement about Noriega’s death. The
prosecution in the Texas case relied on Brown’s testimony as a
factor in aggravation that warranted a life sentence. Brown
died in 2004, before defendant’s trial in California.
Defendant objected at his California trial to the admission
of Brown’s testimony on hearsay and constitutional grounds,
asserting that defense counsel in the Texas trial did not have a
similar interest and motive to cross-examine Brown. The trial
court admitted Brown’s testimony, finding that “the motive was
actually more than similar. It seemed to me it was darn near
identical to what is at issue here, that is, proving that — or at
least indicating to the trier of fact there that this witness was
not believable.” A transcript of Brown’s testimony from the
Texas case was read to the California jury. Defendant asserts
this was error.
b. Analysis
Evidence Code section 1291 provides an exception to the
hearsay rule and permits the admission of evidence of former
testimony if the declarant is unavailable as a witness and, as
relevant here, “[t]he party against whom the former testimony
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is offered was a party to the action or proceeding in which the
testimony was given and had the right and opportunity to cross-
examine the declarant with an interest and motive similar to
that which he has at the hearing.” (Evid. Code, § 1291, subd.
(a)(2).) The interest and motive for cross-examining the witness
required under the Evidence Code “ ‘ “need not be identical, only
‘similar.’ ” ’ ” (People v. Harris (2005) 37 Cal.4th 310, 333.)18 We
review the trial court’s decision to admit Brown’s prior
testimony for abuse of discretion. (People v. Sanders (1995) 11
Cal. 4th 475, 525.)19
Defendant does not contest that Brown was unavailable
as required by the statute. His sole contention is that the
motives and interests concerning cross-examination at the
Texas trial and the California trial were not sufficiently similar.
He bases his claim on two points, neither of which is persuasive.
First, defendant asserts that counsel in his Texas case did
not vigorously cross-examine Brown because defendant had
already been convicted of Hartwell’s murder, and Brown’s
testimony likely would have had a “minimal” impact on
defendant’s sentence. This assertion is unavailing. We have
described a defendant’s interest and motive in cross-examining
18
We recently considered the scope of the interest and
motive exception in the civil context. (Berroteran v. Superior
Court (2022) 12 Cal.5th 867.) That decision, however, expressly
notes that it has no application to criminal cases. (Id. at p. 897,
fn. 25.
19
Defendant asserts de novo review is appropriate because
we are applying the law to undisputed facts. However,
defendant acknowledges our precedent requires application of
an abuse of discretion standard in this context and he provides
no reason for us to revisit that determination.
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a witness during a preliminary hearing to discredit the witness’s
testimony establishing the defendant’s guilt as “identical” to
that which he would have had to cross-examine the witness
during trial. (People v. Zapien, supra, 4 Cal.4th at p. 975; see
also People v. Carter (2005) 36 Cal.4th 1114, 1173; People v.
Wharton (1991) 53 Cal.3d 522, 590.) Here, too, defendant had
an interest at both proceedings in discrediting Brown’s
testimony because it implicated him in Noriega’s death. In the
Texas proceeding, Noriega’s death was used as a factor in
aggravation during sentencing; the prosecution in the Texas
case urged the jury to impose a life sentence, whereas
defendant’s counsel sought probation. Thus, defendant had a
sufficiently similar interest and motive in cross-examining
Brown during the Texas trial: to discredit her testimony in
order to avoid a life sentence. The trial court did not abuse its
discretion in reaching this conclusion.
Second, defendant contends counsel likely wanted to avoid
a lengthy cross-examination of Brown in the Texas proceeding
to avoid inflaming the jury, and that the alleged brevity of cross-
examination supports that position. But the requirement that
a defendant have a similar interest and motive to cross-examine
is satisfied even when the cross-examination that actually
occurred “might have been more effective.” (People v. Samayoa
(1997) 15 Cal.4th 795, 851; People v. Carter, supra, 36 Cal.4th
at pp. 1173–1174.) As explained below, the cross-examination
that took place in defendant’s Texas prosecution further
supports the conclusion that there was no error here.
In an attempt to avoid a term of life in prison, defendant’s
counsel in Texas cross-examined Brown by attacking her
credibility and seeking to impeach her testimony. Counsel
probed Brown’s criminal history, her admitted involvement in
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selling narcotics, and her status on parole. Counsel elicited
testimony from Brown that she had made prior inconsistent
statements about Noriega’s death, and that she was likely under
the influence of methamphetamine when Noriega was killed.
Counsel attempted to impeach Brown by asking whether she
received any promises of leniency from law enforcement in
exchange for her testimony, and elicited an admission from
Brown that she lied to one detective to “beef up the story
enough” to avoid jail and that she “conjured up some of” her prior
statements. Although defendant contends the amount of time
counsel spent cross-examining Brown was “meager,” counsel’s
areas of inquiry illustrate that the interest and motive in cross-
examining Brown was sufficiently similar to support the
admission of Brown’s testimony at the California trial.
Defendant’s constitutional claims fare no better. He
asserts the admission of Brown’s testimony violated his state
and federal right to due process and rendered his trial
fundamentally unfair, violated his right to an accurate jury
determination under the Sixth and Fourteenth Amendments,
resulted in cruel and unusual punishment, and violated his
right to confrontation under the Sixth and Fourteenth
Amendments. Having concluded that the trial court properly
admitted Brown’s testimony, we cannot say there was any
violation of defendant’s constitutional rights. (See People v.
Fuiava, supra, 53 Cal.4th at p. 670 [proper admission of
evidence under state law does not violate constitutional right to
fair trial]; People v. Lindberg (2008) 45 Cal.4th 1, 26 [application
of rules of evidence generally does not impermissibly infringe on
a defendant’s constitutional rights]; People v. Wilson (2005) 36
Cal.4th 309, 340 [Evidence Code section 1291 codifies the
traditional exception to the Sixth Amendment regarding
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Opinion of the Court by Cantil-Sakauye, J.
unavailable witnesses when the defendant has had a prior
opportunity to cross-examine]; People v. Carter, supra, 36
Cal.4th at p. 1172, citing United States v. Owens (1988) 484 U.S.
554, 559.
C. Claims Regarding Special Circumstance
Allegations
1. Robbery-murder special circumstance
Defendant contends the robbery-murder special
circumstance, and therefore the guilt and penalty phase
judgments, must be reversed because there was insufficient
evidence to support the jury’s finding that defendant harbored
an independent felonious purpose to rob Noriega. We conclude
there was sufficient evidence to support the jury’s finding.
“ ‘To determine whether sufficient evidence supports a
jury verdict, a reviewing court reviews the entire record in the
light most favorable to the judgment to determine whether it
discloses evidence that is reasonable, credible, and of solid value
such that a reasonable jury could find the defendant guilty
beyond a reasonable doubt.’ ” (People v. Hardy (2018) 5 Cal.5th
56, 89.) “ ‘This standard of review applies when the evidence is
largely circumstantial and to review of special circumstance
findings.’ ” (Ibid.
“When reviewing the sufficiency of evidence to support a
special circumstance, the relevant inquiry is ‘ “whether, after
viewing the evidence in the light most favorable to the People,
any rational trier of fact could have found the essential elements
of the allegation beyond a reasonable doubt.” ’ [Citation.] We
presume in support of the judgment the existence of every fact
the trier of fact reasonably could infer from the evidence.”
(People v. Lindberg, supra, 45 Cal.4th at p. 27.) “ ‘ “ ‘If the
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circumstances reasonably justify the trier of fact’s findings, the
opinion of the reviewing court that the circumstances might also
be reasonably reconciled with a contrary finding does not
warrant a reversal of the judgment.’ ” ’ ” (People v. Valdez (2004
32 Cal.4th 73, 104.) “A reviewing court neither reweighs the
evidence nor reevaluates a witness’s credibility.” (People v.
Lindberg, supra, 45 Cal.4th at p. 27.) Reversal is not warranted
“unless it appears ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction.]’ ”
(People v. Bolin (1998) 18 Cal.4th 297, 331.
A robbery-murder special circumstance requires a finding
that the “murder was committed while the defendant was
engaged in, or was an accomplice in, the commission of,
attempted commission of, or the immediate flight after
committing, or attempting to commit” a “[r]obbery in violation
of Section 211 or 212.5.” (§ 190.2, subd. (a)(17), (a)(17)(A).) “[I]f
the murder furthers the robbery or attempted robbery, the
special circumstance is satisfied. But, if the robbery or
attempted robbery simply furthers or facilitates the murder, it
is not, because the robbery’s ‘sole object is to facilitate or conceal
the primary crime.’ ” (People v. Mora and Rangel (2018) 5
Cal.5th 442, 490–491.) “[T]he special circumstance . . . requires
that the murder be committed ‘in order to advance [the]
independent felonious purpose’ of robbery . . . .” (People v.
Burney (2009) 47 Cal.4th 203, 253.) In other words, “[t]he
robbery must not be ‘merely incidental’ to the commission of the
murder.” (People v. Clark (2011) 52 Cal.4th 856, 947.) A
concurrent intent to rob and to kill will support the special
circumstance allegation: “The question is ‘whether the
defendant had a “purpose for the [robbery] apart from
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murder.” ’ ” (People v. Hardy, supra, 5 Cal.5th at p. 89; see also
People v. Davis, supra, 46 Cal.4th at p. 609.
“ ‘ “[W]hen one kills another and takes substantial
property from the victim, it is ordinarily reasonable to presume
the killing was for purposes of robbery.” [Citation.] And,
significantly, we have observed that “[i]f a person commits a
murder, and after doing so takes the victim’s wallet, the jury may
reasonably infer that the murder was committed for the purpose
of obtaining the wallet, because murders are commonly
committed to obtain money.” ’ ” (People v. Hardy, supra, 5
Cal.5th at p. 91; see also People v. Thompson (2010) 49 Cal.4th
79, 126 [upholding robbery murder special circumstance when
defendant planned to rob victim “as part of a larger plan to
obtain his possessions after killing him”].
Applying these principles here, we conclude that sufficient
evidence supports the jury’s true finding concerning the
robbery-murder special circumstance. Brown’s testimony
revealed that defendant and Noriega exchanged words in
Spanish, Noriega retrieved a green bag from the trunk of his car,
and defendant shot Noriega. Defendant retrieved the green bag,
and then he hid Noriega’s body. Sams testified that, when
defendant lived in Texas years later, defendant bragged that he
had shot someone in California “[f]or drugs,” and that he had
taken a “bag” of speed.
In short, defendant and Noriega spoke before Noriega
retrieved the drugs from his trunk; defendant then shot him and
took the drugs. The jury could reasonably infer from this series
of events that defendant intended to rob Noriega independent of
any intent to kill him. Unlike in People v. Green, when the
defendant “took his victim’s clothing for the purpose of burning
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it later to prevent identification,” and we held the “sole object [of
the robbery was] to facilitate or conceal the primary crime”
(People v. Green (1980) 27 Cal.3d 1, 61), there is no evidence here
that defendant took the drugs to facilitate or conceal Noriega’s
murder.
Defendant asserts that sufficient evidence does not
support the robbery-murder special circumstance because the
prosecutor argued, and the evidence supported, that defendant
killed Noriega because he believed Noriega was a “narc, a
snitch.” Defendant emphasizes that Brown denied that the
purpose of meeting Noriega was to rob and kill him, and that
Reeder testified that defendant said he killed Noriega because
Noriega was a “narc.” Thus, defendant contends, “[t]he
overwhelming weight of the evidence established that
[defendant] shot Noriega to silence him. The motive for the
crime was clearly not robbery.”
As defendant acknowledges, the prosecution argued both
that defendant killed Noriega because defendant believed
Noriega was a “narc” and that defendant had “dual motives,
murder and robbery, pain and profit, freedom and financial
gain.” If defendant harbored a concurrent intent to rob Noriega
and to kill him because he was a narc, that is sufficient to
support the robbery-murder special circumstance. (People v.
Clark, supra, 52 Cal.4th at pp. 947–948 [“evidence that
defendant harbored concurrent intents to rape and kill [does
not] render the robbery merely incidental to the murder”];
People v. Michaels (2002) 28 Cal.4th 486, 518 [upholding
robbery-murder special circumstance when defendant killed
victim to protect defendant’s girlfriend from abuse and for
independent purpose of stealing victim’s property].) It is true
that Brown denied that the purpose of meeting Noriega was to
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rob and kill him. But the jury could have concluded from the
evidence that defendant intended to rob and kill Noriega even if
the jury concluded Brown did not intend to do so. And, in any
event, the jury was free to evaluate Brown’s testimony and to
deem it credible or not. As a reviewing court, our role is not to
reweigh the evidence. (People v. Lindberg, supra, 45 Cal.4th at
p. 27.) And although defendant asserts the motive “was clearly
not robbery,” Brown’s description of the murder — including
that defendant waited to shoot Noriega until after Noriega had
produced the bag of drugs, and then defendant took the drugs —
and defendant’s later statements recounted by Sams that he
shot someone “for drugs” provided ample evidence to support the
jury’s verdict. We therefore conclude sufficient evidence
supported the jury’s true finding.
2. Use of Texas conviction to support prior murder
conviction special circumstance
Defendant contends the special circumstance finding
based on his prior murder conviction must be reversed because
the Texas conviction did not meet the requirements of section
190.2, subdivision (a)(2). That statute requires a defendant to
have been “convicted previously of murder in the first or second
degree.” (§ 190.2, subd. (a)(2).) A conviction from another
jurisdiction meets the requirements for the prior murder
conviction special circumstance if the offense would be
punishable in California as first or second degree murder.
(Ibid.) Defendant was convicted of murder in Texas. The jury
in that case returned a general verdict of guilty on an indictment
charging defendant with murder under a theory that he either
“intentionally or knowingly cause[d] the death of an individual”
or “intend[ed] to cause serious bodily injury and commit[ted] an
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act clearly dangerous to human life that cause[d] the death of
an individual.” (Tex. Pen. Code Ann. § 19.02(b)(1), (b)(2).
Defendant asserts that because the Texas jury was
instructed on both theories, the California special circumstance
statute demands that the least adjudicated elements of the
Texas conviction required a showing equal to California’s
implied malice second degree murder. He claims that burden
has not been met here because he could have been convicted
under the Texas murder statute if the jury believed he had
intended to cause serious bodily injury without also finding he
subjectively knew he was committing an act dangerous to
human life, whereas under California law implied malice
requires a showing that a defendant acted with conscious
disregard of the danger to human life. Although we have held
that a conviction under Texas Penal Code section 19.02(b)(1
constitutes at least implied malice second degree murder under
California law and thus satisfies the prior murder special
circumstance (People v. Martinez, supra, 31 Cal.4th at pp. 687–
688), we have not previously addressed Texas Penal Code
section 19.02(b)(2).
We decline to address the merits of defendant’s claim
because it is apparent that any error was undoubtedly
harmless.20 Defendant asserts that the California jury would
not have returned a death verdict absent evidence he had been
20
One Court of Appeal has held that a conviction under
Texas Penal Code section 19.02(b)(2) does not necessarily
require a subjective awareness of the risk of death, whereas a
conviction under California law for implied malice murder does.
(People v. Carothers (2017) 13 Cal.App.5th 459, 467–468.) We
express no view regarding whether Carothers was correctly
decided.
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convicted of murder in Texas. But defendant’s prior murder
conviction would have been admissible during the penalty phase
as a factor in aggravation, even if the prior conviction could not
support a prior murder special circumstance. (§ 190.3, factor (b
[“criminal activity by the defendant which involved the use or
attempted use of force or violence”].) That is because defendant
does not challenge the admissibility of his prior conviction
generally, nor does he challenge the fact that he was convicted
of murder under Texas law. Rather, he contends that the Texas
conviction would not have amounted to first or second degree
murder in California, and therefore it could not support the
prior murder conviction special circumstance. “As the United
State Supreme Court recognized in Brown v. Sanders (2006) 546
U.S. 212, the invalidation of a special circumstance does not
require reversal of the death sentence under California’s
statutory scheme if ‘one of the other sentencing factors enables
the sentencer to give aggravating weight to the same facts and
circumstances.’ ” (People v. Hajek and Vo, supra, 58 Cal.4th at
p. 1186.
The prosecution here relied on the prior murder conviction
during the penalty phase not simply to show that defendant had
been convicted of a murder that would have been classified as a
murder in California, but also to explain and give context to the
underlying nature of defendant’s behavior when he stabbed
Hartwell. “Because the [allegedly] invalid [prior murder]
special circumstances ‘did not alter the universe of facts and
circumstances to which the jury could accord . . . weight’
[citation], and because ‘[t]here is no likelihood that the jury’s
consideration of the mere existence of the [prior murder] special
circumstance tipped the balance toward death’ [citation], the
invalidity of the [prior murder] special circumstances does not
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warrant reversal of the death sentence.” (People v. Hajek and
Vo, supra, 58 Cal.4th at pp. 1186–1187, fn. omitted.
Further, even if we were to set aside the prior murder
conviction special circumstance finding, the error would not
require reversal of defendant’s guilt verdict or penalty
determination. The jury also found true the robbery-murder
special circumstance, which (as discussed in section II.C.1, ante
was supported by sufficient evidence and provides an
independent basis to support defendant’s guilt verdict and death
judgment. (See People v. Hajek and Vo, supra, 58 Cal.4th at
p. 1186 [reversal of lying-in-wait special circumstance did not
require reversal of judgment when, as relevant here, a valid
special circumstance for torture murder remained].
D. Claims Regarding Jury Instructions
1. Instruction regarding second degree murder
Defendant contends the trial court erred when instructing
the jury by failing to adequately define second degree murder.
He asserts the provided instructions did not tell the jury that an
intentional killing committed with express malice could
constitute second degree murder, and that the provided
instructions thus were “the functional equivalent of failing to
instruct at all on second degree murder.” We conclude there was
no error.
As an initial matter, the Attorney General asserts
defendant’s claim is forfeited because he did not object to the
instructions at trial nor did he request that the instructions be
modified. (See People v. Hillhouse, supra, 27 Cal.4th at p. 503
[“A party may not argue on appeal that an instruction correct in
law was too general or incomplete, and thus needed clarification,
without first requesting such clarification at trial”].) A failure
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to object, however, does not prevent a defendant from
challenging an instruction on appeal if the asserted error
affected the defendant’s substantial rights. (People v. Ramirez
(2021) 10 Cal.5th 983, 1000, citing § 1259.) Assuming the claim
was preserved, we conclude that it fails on its merits.
We review a claim of instructional error de novo. (People
v. Posey (2004) 32 Cal.4th 193, 218.) Defendant’s claim requires
an evaluation of “ ‘ “the entire charge of the court, not from a
consideration of parts of an instruction or from a particular
instruction.” ’ [Citations.]” (People v. Solomon (2010) 49 Cal.4th
792, 822.) “ ‘A defendant challenging an instruction as being
subject to erroneous interpretation by the jury must
demonstrate a reasonable likelihood that the jury understood
the instruction in the way asserted by the defendant.
[Citations.]’ ” (Ibid.) “Jurors are presumed able to understand
and correlate instructions and are further presumed to have
followed the court’s instructions.” (People v. Sanchez (2001) 26
Cal.4th 834, 852.) Applying these principles, we hold that the
instructions provided an adequate instruction concerning
second degree murder and that there was no error.
The prosecution did not pursue a theory of implied malice
murder. Accordingly, the jury was instructed on only express
malice and felony murder theories. The instruction defining
murder provided that defendant was guilty of murder if he acted
with “express malice aforethought,” requiring that defendant
“unlawfully intended to kill.” The jury thus was told that
defendant committed murder if he acted with express malice —
an unlawful intent to kill. The instructions further defined the
degrees of murder, stating that first degree murder required
“that [defendant] acted willfully, deliberately, and with
premeditation.” And, crucially, the jury was instructed that
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“[a]ll other murders except felony murder are of the second
degree.”
Defendant’s position — that the jury would not have
understood that if defendant acted with express malice and
intended to kill Noriega he could be guilty of second degree
murder as well as first degree murder — is unavailing in light
of the instructions provided. The jury was told that express
malice and intent to kill were required to support a murder
conviction, and if the jury concluded murder had occurred it
must also consider whether the murder was first or second
degree. This was sufficient to inform the jury that if it found
defendant acted with express malice it could convict him of first
degree murder (if it also concluded he acted willfully,
deliberately, and with premeditation) or second degree murder
(if the jury concluded he did not act willfully, deliberately, and
with premeditation).
Defendant’s reliance on People v. Rogers (2006) 39 Cal.4th
826 is misplaced. In Rogers, the jury was instructed on first
degree murder, second degree murder, and voluntary
manslaughter. (Id. at p. 866.) The instructions explained that
murder could be supported by express or implied malice, that
first degree murder required the defendant to act willfully,
deliberately, and with premeditation, and that murder with
implied malice could “also” constitute second degree murder.
(Ibid.; see id. at pp. 866–867.) The trial court did not, however,
explain that a murder committed with express malice could
constitute second degree murder. (Id. at p. 867.) We held this
to be error because it “created an obvious gap in the instructions
that was not filled by any of the other instructions given.” (Ibid.
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No such gap exists here. Unlike Rogers, the jury in
defendant’s case was not instructed on implied malice as a
theory of murder generally, or on implied malice as a theory of
second degree murder specifically. The jury was therefore not
presented with instructions that explained one theory of
liability for second degree murder but not another. Considering
the instructions as a whole, there is no basis to conclude that
the jury misunderstood or misapplied these instructions, let
alone a reasonable likelihood that any error occurred. We
conclude that the trial court did not err in providing the given
instructions.
2. Instruction on provocation
Defendant contends the trial court erred by failing to
instruct the jury, on its own motion, that provocation is relevant
to determine whether a murder is committed willfully,
deliberately, and with premeditation. He asserts that Brown’s
testimony that defendant and Noriega had a “heated argument”
preceding the shooting would support a finding of provocation
here that would reduce defendant’s culpability from first degree
murder to second degree murder.
Defendant is correct that provocation may reduce murder
from first degree to second degree. (People v. Rivera (2019) 7
Cal.5th 306, 328.) As we have stated, however, “an instruction
that provocation may be sufficient to raise reasonable doubt
about premeditation or deliberation, such as CALJIC No. 8.73
or CALCRIM No. 522, is a pinpoint instruction to which a
defendant is entitled only upon request where evidence supports
the theory.” (People v. Rivera, supra, 7 Cal.5th at p. 328.
Crucially, a “trial court is not required to give such an
instruction sua sponte.” (Ibid.) Here, as defendant
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acknowledges, he did not request such an instruction. Thus, like
in Rivera, the trial court did not err by failing to instruct the
jury concerning provocation. (Id. at p. 329.
Defendant acknowledges our precedent on this point but
asserts we should overrule Rogers and hold that there is a duty
to instruct on provocation because the absence of provocation is
effectively an element of first degree murder. He contends
Rogers is inconsistent with the high court’s decision in Mullaney
v. Wilbur (1975) 421 U.S. 684, a case that he characterizes as
holding that one element of first degree murder is a lack of
provocation.
Defendant misreads Mullaney. That decision held that a
defendant’s due process rights are violated when the jury is
instructed that, if the prosecution established a homicide was
intentional and unlawful, malice would be implied unless the
defendant proved by a preponderance of the evidence that he or
she “acted in the heat of passion on sudden provocation.”
(Mullaney, supra, 421 U.S. at p. 686, fn. omitted.) But Mullaney
did not hold that there is a duty to instruct on provocation in all
cases. Rather, the high court held the error in that case occurred
because the jury instructions shifted the burden of proof to the
defendant to prove that the killing occurred in the heat of
passion. (Id. at p. 701; see also Francis v. Franklin (1985) 471
U.S. 307, 317 [Mullaney “held unconstitutional a mandatory
rebuttable presumption that shifted to the defendant a burden
of persuasion on the question of intent”]; Patterson v. New York
(1977) 432 U.S. 197, 215 [“Mullaney surely held that a State
must prove every ingredient of an offense beyond a reasonable
doubt, and that it may not shift the burden of proof to the
defendant by presuming that ingredient upon proof of the other
elements of the offense”].
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Mullaney thus is not inconsistent with Rogers or our
subsequent cases holding that instructions on issues such as
provocation or accident amount to pinpoint instructions that are
“ ‘required to be given upon request when there is evidence
supportive of the theory, but they are not required to be given
sua sponte.’ ” (People v. Jennings (2010) 50 Cal.4th 616, 675.
We therefore hold, consistent with Rogers and Rivera, that the
trial court here did not err by failing to provide an instruction
on provocation when one was not requested by defendant at
trial.
3. Instruction on self-defense, heat of passion, and
unreasonable self-defense
Defendant contends the trial court erred by denying his
requests to instruct the jury on perfect self-defense, imperfect
self-defense, and voluntary manslaughter based on heat of
passion. He asserts this error violated his state and federal
constitutional rights to due process, as well as the Eighth and
Fourteenth Amendments. We conclude the trial court did not
err by refusing to give the requested instructions because there
was not substantial evidence to support a theory of self-defense
or heat of passion.
Defendant requested instructions on self-defense,
imperfect self-defense, and voluntary manslaughter based on
heat of passion. He asserted: “One possible interpretation in
Dorothy Brown’s testimony could be sort of that there was some
provocation, there was . . . either a drug deal gone bad, or
[Noriega] pulled a firearm, something like that. There’s an
insinuation of the statements of [defendant] and Mr. Silva.
They’re primarily from Mr. Silva, obviously.” The court declined
to give the instructions, noting that the evidence in the record
did not support them. The court also stated that it would
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reconsider its ruling if defendant presented additional evidence
to support his theory.
“[A] trial court must instruct on general principles of law
relevant to the issues raised by the evidence and necessary for
the jury’s understanding of the case.” (People v. Martinez (2010
47 Cal.4th 911, 953.) “ ‘To justify a lesser included offense
instruction, the evidence supporting the instruction must be
substantial — that is, it must be evidence from which a jury
composed of reasonable persons could conclude that the facts
underlying the particular instruction exist.’ ” (People v. Burney,
supra, 47 Cal.4th at p. 250.) “Speculative, minimal, or
insubstantial evidence is insufficient to require an instruction
on a lesser included offense.” (People v. Simon (2016) 1 Cal.5th
98, 132.) “We review independently whether the trial court
erred in rejecting an instruction on a lesser included offense.”
(People v. Steskal (2021) 11 Cal.5th 332, 345.
Murder is the unlawful killing of a human being with
malice aforethought. (§ 187, subd. (a).) A killing in perfect self-
defense is justifiable homicide. (People v. Randle (2005) 35
Cal.4th 987, 994, disapproved on another ground in People v.
Chun (2009) 45 Cal.4th 1172, 1201.) Perfect self-defense
requires that “one must actually and reasonably believe in the
necessity of defending oneself from imminent danger of death or
great bodily injury.” (People v. Randle, supra, 35 Cal.4th at
p. 994; see also People v. Simon, supra, 1 Cal.5th at p. 132.) “To
satisfy the imminence requirement, ‘[f]ear of future harm — no
matter how great the fear and no matter how great the
likelihood of the harm — will not suffice. The defendant’s fear
must be of imminent danger to life or great bodily injury.’ ”
(People v. Trujeque (2005) 61 Cal.4th 227, 270.) “ ‘ “[T]he peril
must appear to the defendant as immediate and present and not
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prospective or even in the near future. An imminent peril is one
that, from appearances, must be instantly dealt with.” ’ ” (In re
Christian S. (1994) 7 Cal.4th 768, 783.
Imperfect self-defense, on the other hand, “occurs when a
defendant acts in the actual but unreasonable belief that he or
she is in imminent danger of great bodily injury or death.”
(People v. Simon, supra, 1 Cal.5th at p. 132.) Imperfect self-
defense reduces an intentional, unlawful killing to voluntary
manslaughter, a lesser included offense of murder, by negating
a defendant’s malice. (Ibid.
Finally, “ ‘[h]eat of passion is a mental state that precludes
the formation of malice and reduces an unlawful killing from
murder to manslaughter.’ [Citation.] Heat of passion killing is
distinct from malice murder because thought in some form is
necessary ‘to form either an intent to kill or a conscious
disregard for human life.’ [Citation.] A heat of passion killing,
we have explained, is one caused by an unconsidered reaction to
provocation rather than the result of rational thought. If reason
‘ “ ‘was obscured or disturbed by passion’ ” ’ to so great a degree
that an ordinary person would ‘ “ ‘act rashly and without
deliberation and reflection,’ ” ’ we have concluded that killing
arose from ‘ “ ‘passion rather than from judgment.’ ” ’ ” (People
v. Vargas (2020) 9 Cal.5th 793, 827–828.
Defendant focuses on three facts to support his position
that self-defense and manslaughter instructions were required:
a loaded gun was found in Noriega’s vehicle; Noriega was a drug
dealer known to be armed; and Investigator Silva testified that
Brown told him there was a “heated argument” between Noriega
and defendant before the shooting. None of these circumstances
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nor any others in the record amount to substantial evidence
requiring the instructions.
As an initial matter, defendant errs in relying on Brown’s
statement to Silva that there was a heated argument between
Noriega and defendant prior to the shooting. As discussed in
section II.D.6, post, the jury was instructed that it could use
Brown’s statements to Silva only “in deciding whether to believe
the testimony of Dorothy Brown that was read here at trial.”
The jury was instructed it “may not use those other statements
as proof that the information contained in them is true, nor may
you use them for any other reason.” Defendant therefore cannot
rely on Brown’s statements to Silva to establish the requisite
substantial evidence to support the requested instructions.
Further, Brown’s testimony in the Texas trial did not describe
any argument between defendant and Noriega. Rather, she
testified at various points that: defendant got out of his truck
and “yelled something over to” Noriega; that defendant “said
something to him”; that “[Noriega] got out and moved to the
back of the vehicle and opened the trunk”; and that defendant
and Noriega were “speaking in Spanish” and “exchanged words
in Spanish.”
There was no evidence defendant actually believed —
reasonably or unreasonably — that he was in imminent fear of
death or great bodily injury. Although Noriega carried a loaded
firearm in his car, there is no evidence Noriega reached for the
gun at any point or that defendant knew about the gun or
believed Noriega had a gun on his person. Nor is there evidence
defendant believed Noriega was an imminent threat that he
needed instantly to deal with. Defendant did not testify and
“there is no evidence he ever told anyone that he had acted out
of fear.” (People v. Simon, supra, 1 Cal.5th at p. 134; see also
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People v. Steskal, supra, 11 Cal.5th at p. 346.) Simply put, there
was not substantial evidence to support instructions on self-
defense.
Nor is there evidence that defendant shot Noriega in the
heat of passion. Again, defendant relies on Brown’s statement
to Silva that a “heated argument” preceded the shooting. But
Brown’s statements, at most, established that after the verbal
exchange Noriega went to the trunk of his car and produced a
duffel bag of narcotics. Only then did defendant retrieve his
firearm and shoot Noriega. This does not constitute substantial
evidence that defendant acted in the heat of passion when he
shot Noriega.
We rejected a similar claim in People v. Landry (2016
2 Cal.5th 52. There, the defendant stabbed and killed another
inmate at a prison. (Id. at p. 63.) The trial court denied the
defendant’s request for instructions on imperfect self-defense
and heat of passion. (Id. at p. 97.) In support of the instructions,
the defendant pointed to a witness’s testimony that the
defendant and victim were “ ‘having words’ just before” the
attack. (Id. at p. 98.) We noted, however, that the witness’s
belief that the defendant and victim were arguing was “based
solely on the tone of defendant’s voice, which ‘sounded angry.’ ”
(Ibid.) The witness “did not hear what the two men were saying
to each other.” (Ibid.) And although the defendant relied on a
letter he had written stating the victim had threatened him,
that letter “did not identify when the alleged threat occurred.”
(Ibid.) We held that “[t]his evidence, even if credited, does not
begin to demonstrate either provocation for purposes of heat of
passion voluntary manslaughter or imminence of danger of
death for purposes of imperfect self-defense voluntary
manslaughter.” (Ibid.
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Like in Landry, the only evidence supporting a self-
defense or heat of passion theory was Brown’s statement that
an argument occurred between defendant and Noriega. But
that evidence was inadmissible for the truth of the matter.
Further, Brown’s characterization of the exchange was based
solely on the tone of voices involved; Brown did not testify that
she understood Spanish, and she did not testify further about
the content of the exchange. Although the verbal exchange in
Landry occurred “just before” the attack (People v. Landry,
supra, 2 Cal.5th at p. 98), the conversation and the shooting in
this case were separated somewhat by Noriega retrieving the
bag from his trunk. The evidence of provocation here is thus
even weaker than the facts we considered in Landry.
We therefore conclude the trial court did not err when it
denied defendant’s requests to instruct the jury on self-defense,
imperfect self-defense, or voluntary manslaughter in heat of
passion.
4. Failure to instruct on theft as a lesser included
offense of robbery
Defendant contends the robbery-murder special
circumstance allegation and his murder conviction based on a
theory of felony murder must be reversed because the trial court
failed to instruct the jury that theft was a lesser included offense
of robbery. He asserts the trial court had a duty to instruct the
jury on theft as a lesser included offense even though robbery
was not charged as a separate offense. We have repeatedly
rejected similar claims, and we do so again here.
Defendant was charged with first degree murder. A
robbery-murder special circumstance was alleged. The
prosecution argued that the murder was premeditated and that
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it also constituted felony murder. Although both the felony
murder theory and the robbery-murder special circumstance
were based on the theory that defendant robbed Noriega,
robbery was not charged as a separate felony offense. Defendant
did not request any instruction at trial related to theft. He
contends on appeal that the trial court had a sua sponte duty to
instruct the jury that theft was a lesser included offense of
robbery.
As defendant acknowledges, we have repeatedly rejected
his position. A trial court has a duty to instruct on lesser
included offenses that “find substantial support in the
evidence.” (People v. Breverman (1998) 19 Cal.4th 142, 162.
However, we have held that a court’s duty to instruct on lesser
included offenses “does not extend to uncharged offenses
relevant only as predicate offenses under the felony-murder
doctrine.” (People v. Silva (2001) 25 Cal.4th 345, 371.) In
Valdez, we stated that “when robbery is not a charged offense
but merely forms the basis for a felony-murder charge and a
special circumstance allegation, a trial court does not have a sua
sponte duty to instruct the jury on theft.” (People v. Valdez,
supra, 32 Cal.4th at pp. 110–111; see also People v. Gonzalez
(2018) 5 Cal.5th 186, 204–205 [same]; People v. Brooks (2017) 3
Cal.5th 1, 77 [same]; People v. Kelly (2007) 42 Cal.4th 763, 792
[same].
Defendant acknowledges these precedents but asserts
that the United States Supreme Court’s decision in Beck v.
Alabama (1980) 447 U.S. 625 requires a different result. At
issue in Beck was Alabama’s death penalty statute, which
prohibited a trial court from providing an instruction regarding
a lesser included offense, thus allowing a jury only to impose the
death penalty or to acquit the defendant. (Beck, supra, 477 U.S.
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Opinion of the Court by Cantil-Sakauye, J.
at pp. 627–628.) The high court held that instructing the jury
on a lesser included offense is required if the failure to do so
would leave the jury without a third option (i.e., to convict the
defendant of a lesser offense), enhancing the risk of an
unwarranted conviction as a result. (Id. at p. 645.) The Court
explained that “if the unavailability of a lesser included offense
instruction enhances the risk of an unwarranted conviction,
Alabama is constitutionally prohibited from withdrawing that
option from the jury in a capital case.” (Id. at p. 638, fn.
omitted.
We have previously held that Beck does not require the
instruction defendant now seeks. (People v. Valdez, supra, 32
Cal.4th at pp. 118–119.) Unlike the Alabama statute at issue in
Beck, “California does not preclude a trial court from giving
instructions on lesser included offenses in capital cases.” (Ibid.
Thus, Beck is not implicated “because the ‘jury was not forced
into an all-or-nothing choice between a conviction of murder
that would legally compel it to fix the penalty at death, on the
one side, and innocence, on the other: Even if it found [the
defendant] guilty of [felony murder under the special
circumstance allegations], it was not legally compelled to fix the
penalty at death, but could fix it instead at a term of
imprisonment for life without possibility of parole.’ ” (People v.
Valdez, supra, 32 Cal.4th at p. 119; see also People v. Cash
(2002) 28 Cal.4th 703, 738.) Defendant presents no compelling
reason to revisit these decisions.
Defendant further alleges that a lesser included offense
instruction for an uncharged felony used as the basis for a
felony-murder charge and a special circumstance allegation is
required by Alleyne v. United States (2013) 570 U.S. 99,
Apprendi v. New Jersey (2000) 530 U.S. 466, and related cases.
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In Alleyne, the high court stated that “[w]hen a finding of fact
alters the legally prescribed punishment so as to aggravate it,
the fact necessarily forms a constituent part of a new offense
and must be submitted to the jury.” (Alleyne, supra, 570 U.S. at
pp. 114–115.) Essentially, defendant asserts that these cases
stand for the proposition that facts which increase a defendant’s
punishment must be found by a jury, that special circumstance
allegations which make a defendant eligible for the death
penalty are elements of a capital murder charge, and therefore
that a special circumstance allegation should be treated as the
“functional equivalent” of an aggravating factor. Thus,
defendant asserts, because a court is required to provide a lesser
included offense instruction on a charged offense it should also
be required to provide a lesser included offense instruction on
an uncharged offense supporting a felony murder charge or
special circumstance allegation. Stated differently, defendant’s
position is that: (1) charged offenses require the provision of
lesser included offense instructions; (2) Alleyne held that a fact
which aggravates punishment forms “a constituent part of a new
offense”; (3) a special circumstance aggravates punishment and
thus forms a constituent part of a charged offense (even if the
offense itself is uncharged); and (4) therefore a special
circumstance allegation requires the provision of a lesser
included offense instruction.
Defendant overreads the high court’s decisions in this
area. The court explained in Alleyne that the Sixth Amendment
“provides that those ‘accused’ of a crime have the right to a trial
‘by an impartial jury,’ ” and “[t]his right, in conjunction with the
Due Process Clause, requires that each element of a crime be
proved to the jury beyond a reasonable doubt.” (Alleyne, supra,
570 U.S. at p. 104.) “Other than the fact of a prior conviction,
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any fact that increases the penalty for a crime beyond the
prescribed statutory maximum” constitutes an element of the
crime that “must be submitted to a jury, and proved beyond a
reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490.
Alleyne went further, holding that any fact which increases a
mandatory minimum also “constitutes an ‘element’ or
‘ingredient’ of the charged offense” and thus must be submitted
to the jury and proved beyond a reasonable doubt. (Alleyne,
supra, 570 U.S. at p. 107.
Consistent with Alleyne, the question of whether
defendant committed robbery was submitted to the jury and
found true by the jury beyond a reasonable doubt. But neither
Apprendi, Alleyne, nor any of the cases defendant cites require
a trial court to instruct on a lesser included offense in these
circumstances. Nor does such a conclusion logically follow from
Alleyne. Defendant cites to no authority that has extended or
applied Alleyne in this manner, and we decline to do so in the
first instance.
Finally, defendant contends the equal protection clause
required the trial court to instruct the jury on the lesser included
offense of theft. He asserts that a trial court has a sua sponte
duty to instruct on a lesser included offense in a non-capital
prosecution, and therefore that the same requirement should
extend to defendants in capital trials. He is mistaken. As we
stated in Cash, “California requires a sua sponte instruction on
lesser included charged offenses regardless of whether the case
is a capital, or a noncapital, one.” (People v. Cash, supra,
28 Cal.4th at p. 738.) Similarly, there is no equal protection
violation resulting from the rule that a lesser included offense
instruction need not be provided when an uncharged offense
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forms the basis for a felony-murder charge and a special
circumstance allegation. (Id. at pp. 737–738.
5. Instruction regarding corroboration of accomplice
testimony
Defendant contends the instruction regarding accomplice
testimony (a modified version of CALCRIM No. 334) improperly
lowered the prosecution’s burden of proof in violation of his right
to due process and a fair jury trial. The instruction directed the
jury that if it determined Brown was an accomplice, her
testimony could be used to convict defendant only if: it was
“supported by other evidence that you believe”; that the
“supporting evidence is independent of the accomplice’s
testimony”; and the “supporting evidence tends to connect the
defendant to the commission of the crime.” The instruction
further provided:
Supporting evidence, however, may be slight. It
does not need to be enough, by itself, to prove that
the defendant is guilty of the charged crime, and it
does not need to support every fact about which the
accomplice testified. On the other hand, it is not
enough if the supporting evidence merely shows that
a crime was committed or the circumstances of its
commission. The supporting evidence must tend to
connect the defendant to the commission of the
crime.
Defendant contends the language in the instruction
indicating that “slight” evidence which “tend[s] to connect the
defendant to the commission of the crime” impermissibly
undermined the general reasonable doubt instruction and
allowed for the jury to convict him based on a standard lower
than proof beyond a reasonable doubt.
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As defendant acknowledges, we have consistently rejected
his position. In Bryant, we stated that a similar instruction “did
not convey to the jury that it ‘could convict if there was slight
corroboration.’ Instead, the instruction properly explained the
corroboration requirement as it related to the jury’s
consideration of accomplice testimony. The challenged
instruction in no way lowered the prosecution’s burden of proof.”
(People v. Bryant, supra, 60 Cal.4th at p. 434; see also People v.
Frye (1998) 18 Cal.4th 894, 968.) Here, too, the jury was
instructed that it was required to find defendant guilty beyond
a reasonable doubt. The accomplice testimony instruction
described for the jury how it was to evaluate Brown’s testimony
but it did not address, modify, or undermine the general
instruction regarding reasonable doubt. Defendant presents no
compelling reason for us to revisit the issue.
6. Instructions regarding Brown’s extrajudicial
statements
Defendant contends the trial court erred when instructing
the jury regarding how to evaluate Brown’s prior testimony and
her statements to Silva. He asserts CALCRIM No. 318, which
instructed the jury it could use a witness’s prior statements to
evaluate their subsequent testimony, failed to tell the jury it was
free to disbelieve Brown’s prior testimony. He further asserts
CALCRIM No. 319, which instructed the jury it could consider
Brown’s statements to Silva only to evaluate Brown’s prior
testimony, improperly precluded the jury from considering
Brown’s statements to Silva as true. We conclude there was no
error in providing the instructions.
As an initial matter, the Attorney General asserts
defendant’s claim is forfeited because he did not object to either
instruction at trial nor did he request the instructions be
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modified. As observed above, however, failure to object does not
prevent a defendant from challenging an instruction on appeal
if the asserted error affected the defendant’s substantial rights.
(People v. Ramirez, supra, 10 Cal.5th at p. 1000; § 1259.
Assuming the claim was preserved, we conclude that it fails on
its merits.
As previously noted, Brown was deceased at the time of
defendant’s trial. Her testimony from defendant’s Texas murder
trial was read into the record during defendant’s trial in
California. Defendant also introduced testimony from Silva
regarding statements Brown made to him during a custodial
interview in 1998.
The trial court instructed the jury with CALCRIM No. 318
and No. 319. As modified by the court with agreement of the
parties, CALCRIM No. 318 provided:
“You have heard evidence of statements that a
witness made before trial. Except as otherwise
instructed, if you decide that the witness made those
statements, you may use those statements in two
ways:
1.
To evaluate whether the witness’s testimony
in court is believable;
AND
2.
As evidence that the information in those
earlier statements is true.”21
21
The agreed upon modification added the phrase “except as
otherwise instructed.”
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The trial court also instructed the jury with a modified
version of CALCRIM No. 319. As modified and agreed upon by
the parties, the instruction stated:
“Dorothy Brown did not testify in this trial, but her
testimony, taken at another time, was read for you.
In addition to this testimony, you have heard
evidence that Dorothy Brown made other
statements. I am referring to the statements about
which Martin Silva testified.
“If you conclude that Dorothy Brown made those
other statements, you may only consider them in a
limited way. You may only use them in deciding
whether to believe the testimony of Dorothy Brown
that was read here at trial.
“You may not use those other statements as proof
that the information contained in them is true, nor
may you use them for any other reason.”
Defendant asserts there is a reasonable likelihood the jury
interpreted these instructions to mean that it was compelled to
accept Brown’s out-of-court statements as true. He maintains
that CALCRIM No. 318 was “one sided” and effectively deprived
him of a fair trial because it directed the jury to accept Brown’s
testimony from the Texas trial as fact. At the same time, he
contends the instructions were confusing and contradictory
because CALCRIM No. 318 allowed the jury to consider Brown’s
statements to Silva for their truth, but CALCRIM No. 319 told
the jury it could not consider Brown’s statements to Silva for
their truth. Further, defendant claims the instructions
prevented the jury from considering Brown’s statements to Silva
that defendant and Noriega were arguing in Spanish before the
shooting occurred. This limitation, he insists, prevented the
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jury from fairly considering defendant’s claim that the killing
occurred out of provocation and thus constituted second degree
murder.
Defendant’s contentions are unpersuasive. As a
preliminary matter, CALCRIM No. 318 did not pertain to
Brown’s statements to Silva. As the prosecutor noted, the
language “[e]xcept as otherwise instructed” was added to
CALCRIM No. 318 to avoid implying that the instruction
referred to Brown’s statements to Silva: “The only thing I might
suggest is adding at the very beginning, ‘except as otherwise
instructed,’ because the next instruction is going to give
different information concerning Dorothy Brown.” CALCRIM
No. 319 was specific to Brown’s statements to Silva, and it
instructed the jury how it was to consider those statements;
CALCRIM No. 318 dealt with prior statements given by other
witnesses, and the court instructed the jury that Brown’s
testimony from the Texas trial was to be evaluated by the same
standards applied to other witnesses. CALCRIM No. 317
provided: “The testimony that Dorothy Brown has given under
oath was read to you because she is not available. You must
evaluate this testimony by the same standards that you apply
to a witness who testified here in court.”
We have previously rejected claims that an instruction
informing the jury it may consider whether testimony is true is
improper if it does not also tell the jury it may consider whether
the testimony is false. (See People v. Friend (2009) 47 Cal.4th
1, 41–42.) This is equally true in the context of CALCRIM No.
318, and particularly so when the jury was instructed, as it was
here with CALCRIM No. 226, to consider factors indicating that
testimony was not trustworthy and instructed that it could
“believe all, part, or none of any witness’s testimony.” Moreover,
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as previously noted, the jury was instructed in CALCRIM No.
317 to consider Brown’s prior testimony from Texas “by the
same standards” applicable to other witnesses. We evaluate the
jury instructions as a whole, “not from a consideration of parts
of an instruction or from a particular instruction.” (People v.
Burgener (1986) 41 Cal.3d 505, 538, disapproved on another
ground in People v. Reyes (1998) 19 Cal.4th 743, 753–756.
Considering the totality of the instructions provided to the jury,
we conclude that defendant has not established error or a
reasonable likelihood that the jury applied CALCRIM No. 318
in an improper manner.
We further hold that CALCRIM No. 319 properly limited
the jury’s consideration of Brown’s statements to Silva. That
instruction informed the jury that it could consider those
statements to evaluate Brown’s testimony at the Texas trial but
it could not consider those statements for their truth. Defendant
asserts Brown’s statements to Silva should have been
considered for their truth. He acknowledges, however, that
defense counsel indicated to the court that Silva would testify
“on some impeachment issues.” This makes sense, given that
Brown’s statements to Silva amounted to hearsay and were thus
governed by Evidence Code section 1202. That statute states:
“Evidence of a statement or other conduct by a declarant that is
inconsistent with a statement by such declarant received in
evidence as hearsay evidence is not inadmissible for the purpose
of attacking the credibility of the declarant though he is not
given and has not had an opportunity to explain or to deny such
inconsistent statement or other conduct.” (Evid. Code, § 1202.
Accordingly, Brown’s hearsay statements to Silva could not be
considered for their truth.
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Defendant identifies no plausible basis for admitting
Brown’s statements for their truth. He simply asserts, quoting
People v. Chism (2014) 58 Cal.4th 1266, 1305: “ ‘Unless
evidence is admitted for a limited purpose, or against a specific
party, evidence admitted at trial may generally be considered
for any purpose.’ ” As noted, however, counsel stated Silva’s
testimony would serve as impeachment. As such, defendant
cannot now assert it was admitted for its truth, particularly in
light of the rules limiting hearsay. CALCRIM No. 319 was
therefore a correct instruction.
III. PENALTY PHASE ISSUES
A. Defendant’s Request to Represent Himself
During the Penalty Phase
One day before the penalty phase was scheduled to
proceed, defendant filed a Faretta motion seeking to represent
himself. The trial court found the motion to be untimely,
reviewed it using the factors articulated in People v. Hardy
(1992) 2 Cal.4th 86, and denied the motion. Defendant contends
this amounted to reversible error. We hold the trial court’s
ruling was a proper exercise of its discretion to deny an untimely
Faretta motion.
1. Factual background
The Faretta motion at issue was the culmination of a long
history of defendant’s attempts to replace his attorneys. In
November 2006, well before trial began in October 2007,
defendant submitted a document the court deemed a motion to
appoint new counsel pursuant to People v. Marsden (1970) 2
Cal.3d 118. Defendant ultimately withdrew the motion, and he
instead moved to be appointed as co-counsel for purposes of
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challenging the validity of his Texas conviction if advisory
counsel was appointed for that issue.
In February 2007, defendant filed a Marsden motion and
a Faretta motion. As discussed in section II.A, ante, the court
granted defendant’s Faretta motion and appointed Exum as
stand-by counsel. Defendant withdrew his Marsden motion.
In May 2007, defendant requested advisory counsel for
purposes of assisting him in attacking the validity of his Texas
murder conviction. In considering the motion, the court stated,
“this all looks like just an effort of delay.”
In July 2007, defendant filed a motion to withdraw his
waiver of counsel and asked the court to reappoint counsel. The
court granted defendant’s motion and reappointed Scalisi and
Exum as counsel.
In September 2007, defendant filed another Marsden
motion. During a closed proceeding, defendant asserted he
needed the assistance of an attorney barred in Texas; counsel
also noted that defendant and counsel were having
disagreements regarding trial strategy. The court denied the
Marsden motion.
In October 2007, defendant filed a fourth Marsden motion.
He asserted irreconcilable differences with counsel and asked
the court to replace Scalisi. At the Marsden hearing, Scalisi and
Exum asked to withdraw as counsel, stating defendant insisted
they present an alibi defense that “would be a subordination of
perjury and at a minimum fraud.” The trial court denied the
Marsden motion as well counsel’s requests to withdraw.
In November 2007, counsel informed the court (and
defendant confirmed) that defendant was instructing counsel
not to argue for life without the possibility of parole during the
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penalty phase. Instead, defendant wished to testify that he
sought a death verdict in order to obtain additional resources on
appeal.
Later that month, and prior to the closing arguments in
the guilt phase, defendant filed another Marsden motion — his
fifth. Defendant asserted that trial counsel had failed to
interview alibi witnesses and had not sufficiently attacked his
Texas conviction. The court denied the Marsden motion, noting
that counsel’s representation had been “more than adequate.”
In December 2007, after the guilt phase had concluded and
on the date of the bifurcated hearing on the prior-murder special
circumstance, defendant indicated that he intended to file
Marsden and Faretta motions if counsel did not move for a new
trial following the penalty phase. Defense counsel also
discussed with the court defendant’s request that counsel not
present any evidence in mitigation during the penalty phase.
Defendant again stated that he intended to request that the jury
impose the death penalty. Earlier that day, defendant had,
despite counsel’s advice, refused to dress in civilian clothes when
appearing in front of the jury.
After the jury returned its verdict in the bifurcated
hearing — and one day before the penalty phase was scheduled
to begin — defendant asserted he wanted to represent himself.
The court directed defendant to complete a standard form
describing the disadvantages of representing himself, his
understanding of the charges against him, and the court’s advice
against self-representation. The court then held a hearing to
consider defendant’s request.
Defendant informed the court he wished to represent
himself for “the enrichment of appellate resources. I do not
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agree with the defense counsel’s strategy in the penalty phase,
as I did not agree with them in the [guilt] trial phase. I feel that
what I’m seeking to do in the penalty phase is in my best
interest. I’m not seeking any delays or continuances. If this is
granted we can move forward as scheduled.” The trial court
concluded the motion was untimely, considered the relevant
factors, and denied the motion.
2. Analysis
A defendant has a federal constitutional right to self-
representation if he or she voluntarily and intelligently so
chooses. (Faretta, supra, 422 U.S. at pp. 835–836.) When a
defendant makes a timely and unequivocal request for self-
representation, and does so knowingly, voluntarily, and
intelligently, a trial court must grant the defendant’s request.
(People v. Windham (1977) 19 Cal.3d 121, 127–128.) When a
defendant’s motion is untimely, the motion is “based on
nonconstitutional grounds” (id. at p. 129, fn. 6) and it is “within
the sound discretion of the trial court to determine whether such
a defendant may dismiss counsel and proceed pro se” (id. at
p. 124; see also People v. Bloom (1989) 48 Cal.3d 1194, 1220
[stating a “midtrial motion for self-representation did not have
a constitutional basis”].
“We have long held that a Faretta motion is timely if it is
made ‘within a reasonable time prior to the commencement of
trial.’ ” (People v. Johnson (2019) 8 Cal.5th 475, 499.) In
evaluating whether a Faretta motion is timely, we have
contrasted motions “made long before trial” with motions
“ ‘made on the eve of trial.’ ” (Ibid.) The former are timely; the
latter are not. (See id. at pp. 499–500.) When a motion falls
“outside these two extreme time periods,” a trial court must
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evaluate whether it is timely based on “pertinent considerations
[that] may extend beyond a mere counting of the days between
the motion and the scheduled trial date.” (People v. Lynch
(2010) 50 Cal.4th 693, 723.) In the context of a capital case, we
have held that a Faretta motion made after the guilt phase
verdicts have been returned is untimely. (People v. Hardy,
supra, 2 Cal.4th at pp. 193–195 [motion made seven days prior
to commencement of penalty phase]; see People v. Bradford
(1997) 15 Cal.4th 1229, 1365 [“a motion made between trial of
the two phases [of a capital trial] is untimely”]; People v.
Hamilton (1988) 45 Cal.3d 351, 369 [“the penalty phase has no
separate formal existence but is merely a stage in a unitary
capital trial”].
Here, defendant filed his Faretta motion after the guilt
phase verdicts had been returned and the day before the penalty
phase was scheduled to begin. The motion falls squarely into
the category of motions we have deemed to be untimely. (People
v. Lynch, supra, 50 Cal.4th at p. 722; People v. Hardy, supra,
2 Cal.4th at pp. 193–194.)22
Nevertheless, defendant asserts his motion was timely
because he did not request a continuance and was prepared to
22
The parties do not address what standard a reviewing
court should apply in evaluating a trial court’s determination
that a defendant’s Faretta motion was untimely. We have not
directly addressed the issue. (See People v. Johnson, supra, 8
Cal.5th at p. 501.) As was the case in Johnson, “[w]e need not
decide whether de novo review or a more deferential standard is
appropriate, however, because defendant’s claim fails under
either standard.” (Ibid.
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proceed with the penalty phase as scheduled. He contends that
we have never explicitly held that a Faretta motion filed
between the guilt and penalty phases is necessarily untimely,
and he asks us to adopt a rule that a self-representation request
is assumed to be timely if the defendant does not request a
continuance or cause future delay.
We do not agree. The mere fact that a defendant does not
request a continuance when filing a Faretta motion does not
render the motion timely. We recently rejected the assertion
that “even a belated [Faretta] request must be granted unless it
would entail undue delay or interfere with the orderly
administration of justice.” (People v. Bloom (2022) 12 Cal.5th
1008, 1057.) We have repeatedly held that a Faretta motion
made on the eve of trial or after commencement of the guilt
phase is untimely, without regard to whether the defendant
requested a continuance. (See, e.g., People v. Wright (2021) 12
Cal.5th 419, 280; People v. Johnson, supra, 8 Cal.5th at p. 499;
People v. Lynch, supra, 50 Cal.4th at p. 722; People v. Valdez,
supra, 32 Cal.4th at p. 102; People v. Horton (1995) 11 Cal.4th
1068, 1110; People v. Clark (1992) 3 Cal.4th 41, 99–100; People
v. Frierson (1991) 53 Cal.3d 730, 742.)23
23
Defendant cites People v. Nicholson (1994) 24 Cal.App.4th
584 for the proposition that his motion was timely. The Court
of Appeal stated in Nicholson that it had found “only two
reported decisions in which the trial courts denied Faretta
motions when the defendants were ready to proceed without a
continuance,” and that in both cases “the denials resulted in
reversals.” (People v. Nicholson, supra, 24 Cal.App.4th at
p. 593.) Nicholson is readily distinguishable. There, the
appellate court concluded that the Faretta motion in that case
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Having concluded that defendant’s Faretta motion was
untimely, we evaluate the trial court’s decision to deny
defendant’s motion for abuse of discretion. (People v. Buenrostro
(2018) 6 Cal.5th 367, 427; see People v. Hamilton, supra,
45 Cal.3d at p. 369.) In exercising its discretion, “the trial court
should inquire into the defendant’s reasons for the requests” and
should consider factors including “ ‘the quality of counsel’s
representation of the defendant, the defendant’s prior proclivity
to substitute counsel, the reasons for the request, the length and
stage of the proceedings, and the disruption or delay which
might reasonably be expected to follow the granting of such a
motion.’ ” (People v. Hardy, supra, 2 Cal.4th at p. 195.) “A court
abuses its discretion if it acts ‘in an arbitrary, capricious, or
patently absurd manner’ ” (People v. Boyce (2014) 59 Cal. 4th
672, 687) or “when its ruling ‘falls outside the bounds of reason’ ”
(People v. Osband (1996) 13 Cal. 4th 622, 666).
The trial court here properly considered the relevant
factors when it denied defendant’s untimely Faretta motion.
The court found defendant’s reasons for wanting to represent
himself — to ask the jury to impose the death penalty in order
to gain additional resources for his appeal — were not
“compelling[,] . . . overwhelming or clearly pivotal.” The court
further found that counsel’s representation of defendant was
“excellent” and “well above the norm.” It noted regarding
was untimely but that the trial court abused its discretion in
denying the untimely motion because the defendants had not
“asked for a continuance or otherwise suggested or expressed an
intent to delay the proceedings . . . .” (People v. Nicholson,
supra, 24 Cal.App.4th at p. 592.) Nicholson thus does not
support defendant’s assertion that a Faretta motion is timely so
long as a defendant does not request a continuance.
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defendant’s “prior proclivity to substitute counsel” that he had
represented himself during the proceeding “only one time
previous, but it did last for quite some time.”24 It also found that
the stage of the proceeding weighed against self-representation
because although it was “not an overwhelming length, it’s
certainly a pivotal stage of the proceedings as far as, obviously,
the penalty that the jury will impose.” Finally, the court stated
that it was “not a huge concern” but that if defendant needed to
move or use exhibits there would be a “minor disruption” of the
proceedings because defendant was restrained. The court
acknowledged defendant’s claim that there would be no
disruption to the proceedings because he would not offer
witnesses or exhibits or cross-examine any prosecution
witnesses. Still, the court found there was “the portent of some
disruption simply because of where we are in the nature of the
proceedings.” Taking all of these factors into account, the court
denied defendant’s Faretta motion.
We conclude the trial court did not abuse its discretion in
denying defendant’s untimely Faretta motion. The court
considered the pertinent factors and reasonably concluded that
they weighed against granting defendant’s request. Defendant
again asserts that the court abused its discretion because he did
not request a continuance when he moved to represent himself.
24
As the Attorney General points out, and as described
above, defendant had filed Marsden motions on five prior
occasions, and he threatened to do so on another. Defendant’s
“proclivity to substitute counsel” was thus an even stronger
factor in support of denying his Faretta motion than the trial
court appears to have believed. (See People v. Hardy, supra,
2 Cal.4th at p. 195.
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But although “the potential for delay and disruption is an
important factor in the analysis,” it is not “the only factor the
court may consider. We see no reason why a court may not also
consider, for example, whether the potential disruption is likely
to be aggravated, mitigated, or justified by the surrounding
circumstances, including the quality of counsel’s representation
to that point, the reasons the defendant gives for his request,
and the defendant’s proclivity for substituting counsel.” (People
v. Buenrostro, supra, 6 Cal.5th at p. 426; see also People v. Smith
(2018) 4 Cal.5th 1134, 1182–1183.) Those are the precise factors
the trial court considered here.
Although the court acknowledged defendant was not
requesting a continuance, it also observed that defendant’s
counsel was “excellent,” that defendant had some proclivity to
substitute counsel (indeed, more of a proclivity than the trial
court expressly acknowledged), that defendant’s stated reason
for representing himself — to seek the death penalty — was not
“overwhelming,” and that defendant’s self-representation
carried with it some potential for disruption based on the stage
of the proceedings. We therefore conclude that the trial court’s
determination was not arbitrary, capricious, or so outside the
bounds of reason as to render its ruling an abuse of discretion.
B. Claims Regarding Jury Deliberations
1. Trial court’s direction to jury to continue
deliberations
Defendant asserts the trial court erred when it instructed
the jury to continue deliberating during the penalty phase after
the jury indicated it was deadlocked. Defendant contends the
court’s actions coerced a death verdict and violated section 1140
and his state and federal constitutional rights to due process, a
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fair trial, and against cruel and unusual punishment. We hold
the trial court did not err.
a. Factual background
The jury retired to begin penalty phase deliberations on
December 19, 2007, at about 2:30 p.m. Shortly after 3:00 p.m.,
the jury requested that Stalcup’s direct examination and
defendant’s personal statement be read back. The jury was
dismissed for the remainder of the day. The reading was
provided the following day from 10:10 a.m. until shortly after
11:00 a.m. The jury resumed deliberations but recessed for the
day at 12:05 p.m. due to a juror’s illness. The next day, the jury
deliberated from 9:30 a.m. until noon, at which time it broke for
lunch and submitted a note stating, “We are deadlocked 11 to 1.
What do we do from here?”
Outside of the jury’s presence, the trial court stated it
intended to bring the jury into the courtroom and inquire as to
the number of ballots taken and the numerical breakdown of
each ballot without referring to the verdicts represented.
Defense counsel asked the court if it would inquire of the jurors
whether they believed further deliberations would be
productive. The court agreed, noting the jury had not
deliberated very long.
The jury was brought into the courtroom and the judge
inquired about the reported deadlock. The foreperson stated the
jury had taken four ballots with splits of six-to-six, eight-to-four,
ten-to-two, and eleven-to-one. The foreperson also reported that
deliberations were “thick and heated.” The court asked each
juror whether further deliberations would be productive. The
foreperson said, “I really don’t think so.” Six jurors responded
“no.” Another said “absolutely not.” Three stated “probably
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not.” One juror answered “maybe.” The court then excused the
jury from the courtroom.
Defense counsel requested a mistrial, arguing the jury was
deadlocked. The prosecutor requested that deliberations
continue because the jury had not been deliberating long, and
because some jurors indicated they believed that continued
deliberations would “maybe” (or “probably not”) be productive.
The court denied defense counsel’s mistrial motion, stating the
jury had not spent sufficient time deliberating, especially
compared to the one week it took the jury to reach a verdict in
the guilt phase. Accordingly, the court ordered the jury to
return on January 3, 2008.
The jury resumed deliberations on January 3. After
deliberating for about two hours, the jury returned a verdict of
death.
b. Analysis
Defendant asserts the trial court violated section 1140 and
coerced the jury into returning a death verdict when it directed
the jury to continue deliberating. Neither contention has merit.
i. Section 1140
Section 1140 states: “Except as provided by law, the jury
cannot be discharged after the cause is submitted to them until
they have agreed upon their verdict and rendered it in open
court, unless by consent of both parties, entered upon the
minutes, or unless, at the expiration of such time as the court
may deem proper, it satisfactorily appears that there is no
reasonable probability that the jury can agree.” Defendant
contends the trial court violated section 1140 by instructing the
jury to continue deliberations after the jury reported a deadlock,
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by ignoring the poll of the jurors indicating a deadlock, and by
inquiring into the numerical division of the jury.
Whether there is reasonable probability under section
1140 that the jury can agree upon a verdict is left to the
discretion of the trial court, which may consider the length of
the trial, the amount of evidence, and the complexity of the
issues. (People v. Rodriguez (1986) 42 Cal. 3d 730, 775; see
People v. Rojas (1975) 15 Cal. 3d 540, 546.) A trial court “abuses
its discretion if it acts ‘in an arbitrary, capricious, or patently
absurd manner’ ” (People v. Boyce, supra, 59 Cal. 4th at p. 687
or “when its ruling ‘falls outside the bounds of reason’ ” (People
v. Osband, supra, 13 Cal. 4th at p. 666).
None of the factors defendant relies on indicate the trial
court abused its discretion here. In People v. Sandoval (1992
4 Cal.4th 155, the jury spent “about three full days” deliberating
before indicating that it believed it was deadlocked. (Id. at
p. 195.) When the trial court asked whether it was possible for
the jury to reach a verdict, each juror replied “no.” (Ibid.) The
jury also informed the trial court, at the court’s request, that it
had divided six-to-six on two counts and five-to-seven on a third
count. (Ibid.) The court directed the jury to continue
deliberating, noting that “a little more time would not be
unreasonable in light of the fact that the trial had lasted five
months.” (Ibid.) The defendant argued on appeal that the trial
court had abused its discretion when it instructed the jury to
continue deliberations. (Id. at p. 197.) We rejected that
contention in light of the amount of time the jury had spent
deliberating. (Id. at p. 198.
Here, the trial court directed the jury to continue
deliberating, noting that the jury had “not put in sufficient
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time.” Indeed, the record indicates the jury had deliberated for
only about four hours over three days before it indicated it
believed it was deadlocked. In light of the circumstances of this
case, the trial court did not abuse its discretion by ordering the
jury to continue deliberating after such a brief period. (See, e.g.,
People v. Sandoval, supra, 4 Cal.4th at pp. 194–197 [no abuse of
discretion after jury deliberated for about three days]; People v.
Sheldon (1989) 48 Cal.3d 935, 958–959 [no abuse of discretion
after jury deliberated for about two days]; People v. Rodriguez,
supra, 42 Cal.3d at pp. 774–777 [no abuse of discretion after jury
deliberated for about 18 days].
Nor do the jurors’ responses to the trial court’s inquiry
about the utility of additional deliberations indicate the court
abused its discretion. When asked whether they believed
further deliberations could help to reach a verdict, six jurors
answered “no,” one said “probably not,” one said “I really don’t
think so,” three answered “probably not,” and one answered
“maybe.” These responses did not foreclose the possibility of
reaching a verdict, which was sufficient under section 1140 to
support the trial court’s direction to the jury that it continue
deliberating. (People v. Brooks, supra, 3 Cal.5th at p. 89 [seven
jurors indicating additional assistance from the court regarding
deliberations “would, or might, be helpful” provided “an ample
basis” to support court’s determination under section 1140];
People v. Sheldon, supra, 48 Cal.3d at p. 959 [no abuse of
discretion under section 1140 when “several” jurors “expressed
the hope that further instructions from the court might assist in
bringing about a verdict”].) Indeed, we have held that a trial
court does not necessarily abuse its discretion in directing
further deliberations even when all of the jurors believed further
deliberations would not be productive. (People v. Sandoval,
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supra, 4 Cal.4th at p. 196; People v. Breaux, supra, 1 Cal. 4th at
pp. 317–320.) Considering the circumstances here, we cannot
say the trial court abused its discretion under section 1140 when
it directed the jury to continue deliberations.
Defendant’s additional assertion — that the trial court ran
afoul of section 1140 by inquiring into the numerical division of
the jury — similarly fails. A trial court does not violate section
1140 by inquiring of the jury as to its numerical division. (People
v. Carter (1968) 68 Cal.2d 810, 815.
ii. Coercion
Apart from his claim under section 1140, defendant
contends the trial court coerced a verdict by requiring
deliberations to continue. He points to the length of time the
jury deliberated, the trial court having required the jury to
return to deliberate after the Christmas and New Year holidays,
the jurors’ responses concerning whether they believed
additional deliberations would be productive, and the court’s
inquiry into the numerical division of the jury deadlock. Such
coercion, defendant alleges, violated his state and federal
constitutional right to due process, right to a fair trial, and the
prohibition against cruel and unusual punishment.
Whether a trial court has improperly coerced a jury is a
separate, albeit related inquiry from whether the court abused
its discretion under section 1140. A court must exercise its
power without coercion of the jury so as to avoid displacing the
jury’s independent judgment “ ‘in favor of considerations of
compromise and expediency.’ ” (People v. Rodriguez, supra,
42 Cal. 3d at p. 775; see People v. Carter, supra, 68 Cal. 2d at
p. 817.) Whether coercion occurred depends on the facts and
circumstances of each case. (People v. Breaux, supra, 1 Cal. 4th
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at p. 320.) Coercion involves “ ‘a judicial attempt to inject
illegitimate considerations into the jury debates [and] . . . appeal
to dissenting jurors to abandon their own independent judgment
of the case against the accused,’ ” by exerting “ ‘excessive
pressure on the dissenting jurors to acquiesce in a verdict.’ ”
(People v. Bryant, supra, 60 Cal. 4th at p. 462.
There was no coercion here. The court did not exert undue
pressure on the jurors to reach a verdict or make any remarks
that could be interpreted as coercive. Rather, the court properly
inquired of the jurors concerning their numerical division
(People v. Brooks, supra, 3 Cal.5th at p. 92; People v. Carter,
supra, 68 Cal.2d at p. 815) and whether further deliberations
would be productive (People v. Brooks, supra, 3 Cal.5th at p. 89).
The court determined the deliberations should continue given
the amount of time that had elapsed and the individual jurors’
responses regarding the potential that further deliberations
would be productive. As noted above, the jury had deliberated
for the equivalent of only about four hours before declaring it
was deadlocked. It was not coercive for the trial court to require
additional deliberations after such a brief period. (See, e.g.,
People v. Sandoval, supra, 4 Cal.4th at pp. 194–197; People v.
Sheldon, supra, 48 Cal.3d at pp. 958–959; People v. Rodriguez,
supra, 2 Cal.3d at pp. 774–777.
Defendant asserts the trial court’s direction to the jury to
continue deliberating effectively told the jury the court would
compel it to deliberate until a unanimous verdict was reached.
Relying on a decision by the United States Court of Appeals for
the Ninth Circuit, Jiminez v. Meyers (9th Cir. 1993) 40 F.3d 976,
defendant contends the jury would have been pressured to reach
a verdict in light of the trial court’s directions. He argues it was
“especially coercive” for the court to continue deliberations, thus
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forcing the jury to return after the Christmas and New Year
holidays.
Federal appellate court decisions are not binding on this
court, although we may consider them for any persuasive value.
(People v. Brooks, supra, 3 Cal.5th at pp. 90–91.) In any event,
Jiminez is distinguishable from the facts of this case. In
Jiminez, the Ninth Circuit held the trial court had
impermissibly coerced the jury “by expressing approval of the
‘ “movement” ’ toward juror unanimity.” (People v. Brooks,
supra, 3 Cal.5th at p. 91, quoting Jiminez, supra, 40 F.3d at
pp. 980–981.) The trial court below did not communicate to the
jury any approval of the jury’s progression toward unanimity.
Nor was there anything inherently coercive about the trial
court’s decision to adjourn deliberations over the holidays and
have the jury return on January 3. The court advised the jury
during voir dire that the case would recess over the holidays if
it had not concluded — and counsel agreed with this approach.
If anything, the court’s decision to have the jury return rather
than pressuring it to reach a verdict immediately likely reduced
the potential for any coercion. (Cf. People v. Anderson (1990) 52
Cal.3d 453, 469.) Finally, as defendant acknowledges, we have
held it is not improperly coercive for a trial court to inquire into
the numerical division of a jury. (People v. Valdez, supra,
55 Cal.4th at p. 160; People v. Carter, supra, 68 Cal.2d at p. 815.
We therefore conclude that the court’s directive to the jury
that it continue deliberations did not coerce the jury’s verdict.
For the same reasons, we also reject defendant’s claim that the
trial court erred in denying defendant’s request for a mistrial
when the jury declared it was deadlocked. (People v. Clark,
supra, 52 Cal.4th at p. 990 [motion for mistrial should be
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granted “ ‘only when a party’s chances of receiving a fair trial
have been irreparably damaged’ ”]; People v. Valdez, supra,
32 Cal.4th at p. 128 [trial court’s denial of mistrial motion is
reviewed for abuse of discretion].
2. Trial court’s inquiry into jury’s numerical division
during deliberations
In addition to asserting that the trial court’s inquiry into
the numerical division of the jury amounted to improper
coercion and violated section 1140, addressed above, defendant
further contends the court’s inquiry itself requires reversal of
the death judgment.
As described, after a few hours of deliberations the jury
sent the court a note that it was deadlocked; the note indicated
the division was 11 to 1. The trial court stated that it intended
to bring the jurors into the courtroom to “[f]ind out how many
ballots they’ve taken over what time, and perhaps what the
numbers are without asking them, of course, what number
represents which side of the possible verdicts.” Defense counsel
asked whether the court would also ask the jurors if they
thought further deliberation would be beneficial, stating, “We
were just wondering if it’s a hopeless situation, if they’re
hopelessly deadlocked, if we can, kind of, get a read on that.”
After an exchange with the prosecutor, the court stated, “[W]hy
don’t I plan on getting the information, and then I’ll tell them to
go back while I discuss it with the attorneys, and then we’ll have
them come back in for whatever direction I give them. Is that
agreeable?” Defense counsel responded, “Yeah. That’s fine.” As
described above, the jury then entered the courtroom and the
trial court asked the foreperson how many ballots the jury had
taken and for the number of votes at each ballot.
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Defendant acknowledges that we have approved of a trial
court’s inquiry into the numerical division of a jury. (People v.
Valdez, supra, 55 Cal.4th at p. 100, People v. Carter, supra,
68 Cal.2d at p. 815.) He asserts, however, that we should
reconsider our precedent in light of the high court’s decision to
forbid the practice in federal courts pursuant to its supervisory
powers, citing Lowenfield v. Phelps (1988) 484 U.S. 231 at pages
239 to 240 and Brasfield v. United States (1926) 272 U.S. 448 at
page 450.
The Attorney General asserts the claim is forfeited
because defense counsel failed to object. Defendant contends an
objection was not required because it would have been futile
given the case authority approving an inquiry into the
numerical division of a deliberating jury. (People v. Hill (1998
17 Cal.4th 800, 820.) The claim does appear to have been
forfeited. Defense counsel not only failed to object to the trial
court’s inquiry of the jury, but affirmatively agreed with the
court’s approach. (See People v. Lewis and Oliver (2006) 39
Cal.4th 970, 1038 [finding defendant’s state and federal claims
related to trial court’s scheduling of jury deliberations were
forfeited because “[c]ounsel did not object to the court’s
approach. Counsel on both sides said they had ‘no problem’ with
it”].
Even assuming the claim was preserved, however, we
reject it on the merits. As noted, we have previously considered
and rejected the argument that it is error for a trial court to
inquire into a jury’s numerical split during deliberations. (See,
e.g., People v. Bryant, supra, 60 Cal.4th 335, 462–463; People v.
Valdez, supra, 55 Cal.4th at p. 100; People v. Johnson (1992) 3
Cal.4th 1183, 1254; People v. Breaux, supra, 1 Cal.4th at p. 319;
People v. Carter, supra, 68 Cal.2d at p. 815.) Indeed, our
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decisions have squarely addressed and rejected the federal cases
on which defendant now relies. (People v. Valdez, supra, 55
Cal.4th at p. 100 [discussing and rejecting similar claim in light
of Brasfield v. United States, supra, 272 U.S. 448]; People v.
Johnson, supra, 3 Cal.4th at p. 1254 [discussing and rejecting
similar claim in light of Brasfield and Lowenfield v. Phelps,
supra, 484 U.S. 231].) Defendant provides no compelling reason
for this court to revisit the issue.
C. Instructions on Mercy and Lingering Doubt
Defendant asserts his state and federal rights to due
process and the prohibition against cruel and unusual
punishment were violated when the trial court denied defense
counsel’s request to instruct the jury on the role of mercy and
lingering doubt in its penalty phase deliberations. We find no
error.
The requested mercy instruction stated, “In deciding the
appropriate punishment, the jury may consider mercy for the
defendant in weighing the factors in aggravation and
mitigation.” The jury was instructed with CALCRIM No. 763,
which incorporates section 190.3, factor (k) and directs the jury
to consider “[a]ny other circumstance, whether related to these
charges or not, that lessens the gravity of the crime even though
the circumstance is not a legal excuse or justification. These
circumstances include sympathy or compassion for the
defendant or anything you consider to be a mitigating factor,
regardless of whether it is one of the factors listed above.”
No additional instruction was required. Defendant’s
assertion that “mercy” is a distinct concept from “sympathy” or
“compassion” is unavailing. (See People v. Boyce, supra,
59 Cal.4th at p. 707.) “ ‘[W]e have repeatedly rejected the claim
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that omission of “mercy” from the jury instructions constitutes
error.’ ” (People v. Scully, supra, 11 Cal.5th at p. 609; see also
People v. Silveria (2020) 10 Cal.5th 195, 301.) The instruction
allowing for consideration of sympathy and compassion
permitted the jury to consider mercy. (People v. Brown (2003
31 Cal.4th 518, 570; People v. Stanley (1995) 10 Cal.4th 764, 840
[“a jury told it may sympathetically consider all mitigating
evidence need not also be expressly instructed it may exercise
‘mercy’ ”].) Defendant asks us to reconsider our prior decisions
on this point. He offers no persuasive reason for doing so.
We also hold that the trial court did not err in declining to
give defendant’s requested instruction concerning lingering
doubt. The proposed instruction stated:
“Each individual juror may consider as a mitigating
factor residual or lingering doubt as to whether the
defendant killed the victim. Lingering or residual
doubt is defined as the state of mind between beyond
a reasonable doubt and beyond all possible doubts.
“Thus if any individual juror has a lingering or
residual doubt about whether the defendant killed
the victim, he or she must consider this as a
mitigating factor and assign it to the weight you
deem appropriate.”
We have repeatedly held that a trial court is not required
under state or federal law to give such an instruction. (People
v. Ramirez, supra, 10 Cal.5th at p. 1030.) And “no such
instruction is necessary when — as here — the court instructed
the jury on section 190.3, factors (a) and (k) and defense counsel
urged the jury to consider residual doubt in closing argument.”
(Ibid.
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Defendant’s assertion that People v. Gay (2008) 42 Cal.4th
1195 compels a contrary result is unavailing. In that case, this
court reversed a death judgment when the trial court instructed
the penalty phase jury on lingering doubt but limited evidence
the defense could offer during the penalty phase. (Id. at
p. 1224.) We held that “[t]he combination of the evidentiary and
instructional errors present[ed] an intolerable risk that the jury
did not consider all or a substantial portion of the penalty phase
defense, which was lingering doubt.” (Id. at p. 1226.
Here, the trial court refused to instruct the jury
specifically on lingering doubt but allowed counsel to argue
lingering doubt. We have previously found no error occurred on
similar facts. (People v. Gonzales and Soliz, supra, 52 Cal.4th
at p. 326 [“In Gay, the trial court instructed the jury on lingering
doubt, but precluded the defendant from presenting that
defense; in the present case, the trial court allowed defendants
to present and argue their lingering doubt defenses, but refused
to specifically instruct on lingering doubt. As we stated in Gay,
our holding there was not based on any state or federal
constitutional right to a lingering doubt instruction; rather, it
was based on California’s death penalty statute, which
authorizes the admission of evidence of innocence at a penalty
retrial”].) Consistent with our prior approach, we find no error
here.
D. Whether the Jury was Required to Find
Aggravating Factors Outweighed Mitigating
Factors Beyond a Reasonable Doubt
Defendant asserts his state and federal right to due
process, right to an accurate jury determination, and the
prohibition against cruel and unusual punishment were violated
when the trial court denied defense counsel’s request to instruct
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the jury that it had to find the aggravating circumstances
outweighed the mitigating circumstances beyond a reasonable
doubt. In support, he relies on Apprendi v. New Jersey, supra,
530 U.S. 466 and Ring v. Arizona (2002) 536 U.S. 584.
As defendant acknowledges, we have consistently rejected
the argument that Apprendi and its progeny require the jury to
find that aggravating factors outweighed mitigating factors
beyond a reasonable doubt. (See, e.g., People v. Merriman (2014
60 Cal.4th 1, 106; People v. Duff, supra, 58 Cal.4th at p. 569;
People v. Griffin (2004) 33 Cal.4th 536, 595.) Defendant offers
no persuasive reason for us to reconsider these precedents, and
we decline to do so.
E. Constitutionality of California’s Death Penalty
Law
Defendant advances several challenges to the
constitutionality of California’s death penalty law that, he
acknowledges, this court has previously considered and rejected.
We decline his request to reconsider our prior precedent
regarding the following holdings.
“Section 190.2 provides a list of the special circumstances
. . . which render a defendant eligible for the death penalty.
These factors are not so numerous and broadly interpreted that
they fail to narrow the class of death-eligible first degree
murders as required by the Eighth and Fourteenth
Amendments.” (People v. Schultz (2020) 10 Cal.5th 623, 682.
“Section 190.3, factor (a), directs the jury to consider as
evidence in aggravation the circumstances of the capital crime.
This has not resulted in the wanton imposition of the death
penalty in violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments by permitting prosecutors to argue that the
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various features of the murder, even features that are the
converse of those in other cases, are aggravating factors.”
(People v. Schultz, supra, 10 Cal.5th at p. 683.
Instructing the jury that a death verdict is “warrant[ed]”
if the aggravating factors are “ ‘so substantial’ ” in comparison
with the mitigating factors is not impermissibly broad or vague.
(People v. Scully, supra, 11 Cal.5th at p. 611.
“Use of adjectives such as ‘extreme’ and ‘substantial’ in
section 190.3, factors (d) and (g), respectively, does not create a
constitutionally impermissible
barrier to the jury’s
consideration of a defendant’s mitigating evidence.” (People v.
Johnson, supra, 62 Cal.4th at p. 656.
“Directing the jury to consider ‘ “whether or not” ’ certain
mitigating factors were present does not invite the jury to use
the absence of such factors as a factor in aggravation.” (People
v. Schultz, supra, 10 Cal.5th at p. 684.
“There is no federal constitutional requirement, either
under the Fifth, Sixth, Eighth, or Fourteenth Amendments, that
the jury make unanimous findings regarding the aggravating
factors . . . .” (People v. Schultz, supra, 10 Cal.5th at p. 683; see
also People v. Scully, supra, 11 Cal.5th at p. 611.
The trial court need not instruct the jury during the
penalty phase that it must impose life without the possibility of
parole if it determines that mitigating factors outweigh
aggravating factors. (People v. Scully, supra, 11 Cal.5th at
p. 611; People v. Frederickson, supra, 8 Cal.5th at p. 1027;
People v. Jones, supra, 54 Cal.4h at p. 78.
“Jurors need not make written findings on the
aggravating factors found.” (People v. Scully, supra, 11 Cal.5th
at p. 612.
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“Comparative intercase proportionality review by the trial
or appellate courts is not constitutionally required.” (People v.
Snow (2003) 30 Cal.4th 43, 126.
“The imposition of the death penalty under California’s
law does not violate international law or prevailing norms of
decency.” (People v. Krebs (2019) 8 Cal.5th 265, 351.
Defendant acknowledges that this court has previously
rejected the challenges to California’s death penalty scheme
that he presents here. He asserts, however, that our analysis of
these issues is constitutionally defective because we have failed
to consider their cumulative impact or to address the capital
sentencing scheme as a whole. We have considered and rejected
this identical cumulative impact argument in prior cases, and
we do again here. (See, e.g., People v. Amezcua and Flores (2019
6 Cal. 5th 886, 928; People v. Johnson, supra, 62 Cal.4th at
pp. 657–658.
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VI. CONCLUSION
We affirm the judgment in its entirety.
CANTIL-SAKAUYE, J.*
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
*
Retired Chief Justice of California, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
112
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Thomas
Procedural Posture (see XX below
Original Appeal XX
Original Proceeding
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted
Opinion No. S161781
Date Filed: January 26, 2023
Court: Superior
County: Riverside
Judge: Terrance R. Boren
Counsel:
John L. Staley, under appointment by the Supreme Court, for
Defendant and Appellant.
Kamala D. Harris and Rob Bonta, Attorneys General, Gerald A.
Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Holly D. Wilkens, Robin Urbanski, Ronald A. Jakob
and Michael D. Butera, Deputy Attorneys General, for Plaintiff and
Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
John L. Staley
Attorney at Law
12463 Rancho Bernardo Road, No. 372
San Diego, CA 92128
(858) 613-1047
Michael D. Butera
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9054
Opinion Information
| Date: | Docket Number: |
| Thu, 01/26/2023 | S161781 |
