Supreme Court of California Justia
Docket No. S083594
People v. Trujeque

Filed 5/28/15



Plaintiff and Respondent,




Los Angeles County

Defendant and Appellant.

Super. Ct. No. VA048531

In 1999, a jury convicted defendant Tommy Adrian Trujeque of first degree

murder of Max Facundo (Pen. Code, § 187, subd. (a)),1 second degree murder of

Raul Luis Apodaca (§ 187, subd. (a)), and second degree robbery of Ronni

Mandujano and Spartan Burgers restaurant (§ 211). As to all three counts, it found

that defendant personally used a deadly and dangerous weapon, respectively, a

knife, a screwdriver, and a handgun. (Former §§ 12022, 12022.5, subd. (a)(1),

12022.53, subd. (b).) Waiving a jury trial, defendant stipulated to a 1971 prior

second degree murder conviction alleged as a special circumstance, and admitted

other prior convictions alleged in the information. As to both murder counts, the

jury found true the special-circumstance allegation of multiple murder


All further statutory references are to the Penal Code unless otherwise


(§ 190.2, subd. (a)(3)), while the trial court found true the prior murder special-

circumstance allegation (§ 190.2, subd. (a)(2)). After a penalty trial, the jury

returned a verdict of death. The court denied the automatic motion to modify the

verdict (§ 190.4), and imposed a sentence of death, along with an additional

consecutive term of 25 years to life in prison for the robbery count. The trial court

also sentenced defendant to various consecutive sentence enhancements, all of

which were stayed pending imposition of the death judgment. This appeal is

automatic. (§ 1239, subd. (b).)

Defendant‟s 1999 trial took place more than a decade after the murders of

Facundo and Apodaca, and the delay in prosecution is the subject of various

claims defendant raises on appeal. For reasons that follow, we reverse the

judgment of conviction for the second degree murder of Apodaca, and reverse the

penalty judgment based on our setting aside both the prior murder and multiple

murder special-circumstance findings. (See post, at p 67.) Although we must

reverse the penalty judgment, we have included additional factual background as

necessary to provide context.


A. Guilt Phase

1. Prosecution evidence

a. Murder of Max Facundo

The prosecution presented evidence that on June 21, 1986, defendant

stabbed and killed Max Facundo, the abusive boyfriend of defendant‟s cousin,

Charlene Trujeque.2


To avoid confusion, we have used first names when necessary.


When Charlene was 16 or 17 years old, defendant began writing letters to

her while he was incarcerated. In the letters, defendant asked about his family and

told Charlene to stay out of trouble. Charlene‟s mother, Elena Trujeque, read the

letters defendant had sent and became concerned. In particular, Elena thought one

of the letters read more like a “love letter” than a “cousinly” letter because

defendant said he would protect Charlene if anybody hurt her, and that she

“mean[t] the world to” him. He also wrote “you‟ll always be mine and you‟ll

always be close to my heart.” Elena also discovered that Charlene was accepting

collect telephone calls from defendant, who was still incarcerated. Elena and

Charlene‟s father, Charlie Trujeque, tried to stop Charlene from getting “too

friendly” with defendant, but Charlene continued to write to him.

In 1984, when Charlene was about 20 years old, she began dating Facundo

and often stayed at his house. Though their relationship appeared fine at first,

during the final months of their relationship, Facundo began to beat up Charlene

when she refused to do drugs with him. She did not tell her parents (defendant‟s

uncle and aunt) about the beatings, but they would see her bruised face when she

came home. Elena recalled seeing injuries on Charlene, including black eyes and

bruises, on 15 to 20 separate occasions. Though Charlene lied to her parents about

how she got her injuries, Elena said “everybody knew” that Facundo beat up their

daughter. While Charlene‟s parents were upset and afraid for her life, they voiced

their concerns only to Charlene, and repeatedly asked Charlene to end her

relationship with Facundo. Although Charlie did not verbally threaten Facundo,

he told Elena that he was going to beat up Facundo and once ran after him with a

baseball bat. On one visit, after Facundo refused to let them see their daughter,

Charlie and Elena went to the police to report the domestic violence. However,

the parents were told that the police could not do anything unless Charlene

reported it herself.


After defendant was released from prison in May 1986, he and Charlene

met for the first time at her parents‟ house. Charlene did not mention Facundo to

defendant and she did not have any visible injuries. According to Elena, the two

talked all night.

On the evening of June 21, 1986, the day Facundo was killed, Charlene was

at her parents‟ house and sported a black eye. Defendant came over with another

cousin, Raymond Guzman. Almost as soon as they got there, defendant and

Raymond called Charlie outside to talk. They spoke for about five minutes.

When Elena asked Charlie what they had talked about, Charlie would not respond;

he seemed nervous and afraid. However, sometime earlier, Charlie had asked

defendant to break Facundo‟s leg or arm to teach him a lesson, but not to hurt him

too badly.

When defendant asked Charlene how she got her black eye and if her

boyfriend did it, she would not say. Defendant repeatedly asked Charlene whether

Facundo would be coming by later because defendant wanted to “meet him and

talk to him.” Charlene could tell defendant was angry about her black eye, so she

asked him to promise not to hurt Facundo. He replied that promises were made to

be broken, but that she need not worry because nothing would happen.

When Facundo came to Charlie and Elena‟s house to pick up Charlene,

defendant asked Charlene if they would drop off both defendant and Raymond at

the home of Raymond‟s sister, Pat Perez, in South Gate. Facundo agreed to do so,

and the four left in Facundo‟s car. Defendant and Raymond were seated in the

back, Charlene was in the front passenger seat, and Facundo was driving.

Facundo pulled out a cigarette dipped in PCP, began smoking it, and shared it with

Charlene and Raymond. At some point, Facundo pulled over to let Charlene

drive. They arrived at Pat‟s house around 10:45 p.m. Charlene exited the car to

let Raymond out of the backseat. She and Raymond walked towards Pat‟s home,


and waited for Facundo and defendant to follow. When she heard yelling,

Charlene turned around and saw Facundo and defendant struggling. She ran

towards them and screamed for them to stop. Charlene held Facundo, who was

covered in blood, and they fell onto the ground. Defendant fled the scene.

Facundo died of multiple stab wounds to the chest.

When the police arrived at the scene of the stabbing, Charlene was still

screaming. The police handcuffed her hands and feet and placed her on her

stomach in a patrol car. They eventually transported her to the police station.

Charlene‟s blouse was ripped and she had cuts on her chest and right forearm.

Detective Terry McWeeney of the South Gate Police Department interviewed both

Charlene and Raymond while they were in custody. Charlene told the detective

she saw Facundo lying in the street, but did not see defendant or Raymond. She

never told the police that defendant had killed Facundo.

Pat called Charlie and Elena and told them that defendant had killed

Facundo and that the police had already taken Charlene and Raymond to the

station. They tried calling the police station, but could not get any information.

They returned home. Defendant later called Charlie and Elena‟s house and asked

for a ride. According to Elena, they picked defendant up at a 7-Eleven

convenience store on the corner of Firestone and Atlantic in South Gate. He asked

to be dropped off at his mother‟s house in El Sereno. During the drive, defendant

told Charlie and Elena that he killed Facundo. Charlie yelled at him, “ „[W]hy did

you do it,‟ ” and told defendant he never wanted him to kill Facundo. Elena

testified defendant told her, “ „Tia [meaning “aunt” in Spanish], you don‟t have to

worry anything more about this anymore.‟ ” Elena also testified defendant told

her he “had no remorse. He did it like — like it was nothing. He didn‟t know the

guy, like I didn‟t know him. He had no feelings for him, so he just done [sic] him



Hours after the murder, around 2 or 3 a.m., Sergeant Russell Beecher of the

South Gate Police Department received a call from a man identifying himself as

defendant. The caller said that he was the one who murdered Facundo and that

Charlene and Raymond, who were in custody, should be released. On June 26,

1986, defendant was arrested at his mother‟s house in El Sereno for the murder of

Facundo. The charges, however, were dropped on July 2, 1986 for lack of

probable cause.

For over a decade, the case remained dormant until 1998 when defendant

— who at the time was serving a life sentence for an unrelated armed robbery —

contacted the Los Angeles County Sheriff‟s Department and confessed to

Facundo‟s murder, along with the murder of Raul Apodaca and another armed

robbery, in order to receive the death penalty. In June 1998, he was charged with

the 1986 murder of Facundo in a three-count complaint.

b. Murder of Raul Apodaca

At trial, the prosecution also presented evidence that on January 23, 1987,

defendant and Jesse Salazar3 killed Raul Luis Apodaca at an East Los Angeles

upholstery shop owned by Richard “Conejo” Rivera.4 Rivera dealt drugs from the

shop, which also served as a hangout for White Fence gang members.


Salazar was originally charged with defendant for Apodaca‟s murder. On

December 29, 1987, Salazar pleaded guilty to voluntary manslaughter and
received a sentence for time served and five years‟ probation. Though Salazar was
the main perpetrator, the original prosecutor explained that Salazar received
voluntary manslaughter “based on the fact that at that time we did not have our
witnesses, and I believe the public defender thought it was more prudent to take
the plea just in case we might find them.”

By the time of defendant‟s 1999 trial, Rivera had died and was therefore

“ „unavailable as a witness‟ ” (Evid. Code, § 240, subd. (a)(3)); thus, his testimony
from the April 8, 1987 preliminary hearing was read into the record.


During the 1999 trial, Robert De Alva testified that he was at the upholstery

shop drinking and doing drugs the evening of January 23, 1987. Given his

admitted drug use, De Alva explained he had a poor memory and could not recall

many details from that night except that he and six to eight other individuals had

walked to the upholstery shop from a nearby bar, the Quiet Cannon. At the shop,

De Alva had injected heroin and had passed out on a table. When the prosecution

asked about Apodaca being killed, he said: “All I remember is a guy laid on the

floor and taking him to the hospital and some guys around him and some guys

leaving, and that‟s all I remember.” Though he did see some “scuffling,” De Alva

was “not aware there was a fight” and did not know who was involved. De Alva

also did not recall much of the previous statement he had given to Detective Birl

Adams several days after the murder. When the prosecution pointed to defendant

at the defense table and asked if De Alva had seen him that night, De Alva replied:

“He don‟t look familiar.”

Responding to De Alva‟s prior inconsistent statements, Detective Adams

testified that when he interviewed De Alva on January 26, 1987, three days after

the killing, De Alva recounted many details about the night Apodaca was killed.

De Alva told Detective Adams that he was at the upholstery shop with Rivera,

Salazar, Apodaca, defendant, and several other individuals. They were playing

poker when a fight broke out. After the fight was broken up, two individuals left

the shop and De Alva lay down on top of a table in the middle of the shop to sleep.

Remaining at the shop with Rivera and De Alva were defendant, Salazar, and

Apodaca. De Alva woke up when he heard and saw defendant, Salazar, and

Apodaca fighting. Suddenly, Apodaca fell to the floor, and defendant and Salazar

ran out of the shop. After checking on Apodaca, Rivera told De Alva that

Apodaca had been stabbed. They tried to resuscitate Apodaca, and then took him

to East Los Angeles Doctors Hospital in a van. De Alva stayed at the hospital


about 15 minutes and then left. Apodaca later died from a stab wound to the chest.

De Alva first found out that Apodaca had died during the January 26 interview

with Detective Adams; he appeared upset. De Alva had no trouble describing

either defendant or Salazar to Detective Adams. Two days later, on January 28,

1987, De Alva identified defendant and Salazar from a 13-photo array Detective

Adams showed him.

The upholstery shop‟s owner Richard Rivera (whose testimony from

defendant‟s April 8, 1987 preliminary hearing was read into the trial record) gave

a similar account of the events. (See ante, at p. 6, fn. 4.) He testified that during

the poker game, Salazar and Frank Contreras got into a fist fight. In breaking up

the fight, Apodaca grabbed and restrained Salazar, and Luis Villalobos grabbed

Contreras. After the fight, everyone starting leaving one by one, except for

Rivera, defendant, Salazar, Apodaca, and De Alva. Except for De Alva, all had

been staying at the shop for the past few days. Rivera went to the bathroom.

When he came out “a couple minutes” later, Apodaca was lying on his back and

not breathing. Rivera and De Alva opened up his shirt and saw that he had a

puncture wound in his chest. Rivera did not see either defendant or Salazar in the

shop, but when he went outside, he saw them walking away quickly. After Rivera

and De Alva both tried to give Apodaca mouth-to-mouth resuscitation, they

dragged him into a van and drove him to a hospital. Rivera did not call the police

because he “figured Raul [Apodaca] was going to live, and he could deal with it if

they questioned him. I didn‟t think that Raul was going to die.” He lied to both

the nurse and Apodaca‟s stepfather, telling them that Apodaca had been stabbed at

the Quiet Cannon bar and not at his upholstery shop because “I just didn‟t want it

to go down at the shop, I guess.”

On February 5, 1987, defendant and Salazar were charged with the murder

of Apodaca. The case was dismissed a month later. The prosecution eventually


entered into a plea agreement with Salazar, who pleaded guilty to voluntary

manslaughter. On March 25, 1987, the prosecution refiled the first degree murder

charge against defendant, but after the preliminary hearing, he was held to answer

for only the lesser offense of manslaughter. On April 24, 1987, the prosecution

filed an information again charging defendant with the first degree murder of

Apodaca. After the prosecution informed the court that they could not find the

material witness, De Alva, the murder charge was dismissed on June 23, 1987.

The case lay dormant until 1998, when defendant confessed to the murder.

c. Robbery of Spartan Burgers restaurant

The prosecution presented evidence that on January 21, 1998, defendant

robbed Spartan Burgers restaurant in Huntington Park. According to the

restaurant‟s cashier, Ronni Mandujano, defendant came in around 8:00 p.m. and

first ordered food. When it came time to pay, defendant pulled out a small black

handgun and demanded money. The restaurant‟s owner (who was not identified

by name) approached Mandujano and defendant, opened the register, and placed

the cashbox on the counter. Pointing the gun at Mandujano the entire time,

defendant asked the owner if he had any other money in the restaurant. The owner

said there was additional money in the back. Defendant ordered Mandujano and

the owner to the back. Defendant pushed Mandujano, who could feel defendant

pressing the gun on her back and head. After the owner gave him more money,

defendant left. Mandujano called the police. A few months later, on April 29,

1998, Mandujano identified defendant from a six-pack photo array. She testified

that she was “positive” it was defendant and also identified him in the courtroom.


2. Defense evidence

a. Murder of Max Facundo

Against the advice of counsel, defendant testified on his own behalf. His

account of Facundo‟s killing and events surrounding it largely tracked the

evidence adduced at trial. (See ante, at pp. 2-6.) However, defendant‟s version

differed in these material respects: Defendant testified that Charlie had asked him

to kill Facundo not just hurt him, and that Elena was lying about Charlie asking

him only to break Facundo‟s arms and legs. On cross-examination, however,

defendant admitted Charlie never used the words “go kill him” but said to “take

care of it,” which defendant took to mean “killing Max and getting away with it.”

Though Charlie never told defendant why he wanted him to kill Facundo,

defendant thought it was “because he was beating up on my cousin.” Though

Elena sent him money while he was incarcerated, defendant did not kill Facundo

for the money. Elena also told defendant that Facundo beats up Charlene “just

about every day.” Elena also gave him $300 to buy a gun.

Defendant testified he intended to inflict a lethal wound on Facundo by

using a method of stabbing he learned in prison; he also hoped to inflict at least

100 stab wounds. He also admitted he “couldn‟t wait to kill him. I didn‟t want to

wait,” and that he “could have done it later if I wanted to.” Defendant stated he

had been thinking about killing Facundo since he was released from prison. When

Charlie and Elena picked defendant up after the killing, defendant said their

“troubles are over,” meaning “I don‟t have to watch my back for anyone coming

after me, and Charlene doesn‟t have to worry about getting any black eyes, so it‟s


b. Murder of Raul Apodaca

Defendant testified that both he and Rivera were members of the White

Fence gang, and that he and others used to frequent Rivera‟s upholstery shop.


Defendant‟s gang moniker was “Killer”; a piece of wood bearing that name was

found at the shop.

His account of the events leading up to the killing of Apodaca largely

tracked eyewitness De Alva‟s trial testimony and Rivera‟s testimony from the

preliminary hearing. As to the fight between Salazar and Apodaca, defendant

testified that he thought that Salazar was getting the worse of the fight, so

defendant stepped in to help his friend. Apodaca, who was on top of Salazar,

struck defendant in the face. Defendant picked up a screwdriver and stabbed

Apodaca two or three times. He saw Salazar stab Apodaca in the chest with

another screwdriver. Defendant recalled stabbing Apodaca on the left side, but did

not remember the exact location or number of stabbings. Defendant did not know

who was responsible for the lethal wound.

c. Robbery of Spartan Burgers restaurant

On cross-examination, defendant denied robbing Spartan Burgers and

claimed the main witness, Ronni Mandujano, was “wrong.” Defense counsel did

not cross-examine Mandujano.

3. Defendant’s confession to the murders and desire to be prosecuted

a. 1998 confession to Los Angeles County Sheriff’s deputies

The Facundo and Apodaca murder cases lay dormant for over 10 years. In

February 1998, Los Angeles County Sheriff‟s Deputy Frank Durazo received a

telephone call from another deputy regarding an inmate, defendant. Defendant

was in custody in the San Diego County Jail and claimed to have information

about two homicides and a robbery. Deputy Durazo and his partner, Los Angeles

County Sheriff‟s Deputy Jose Romero, drove to San Diego to interview defendant.

The February 20, 1998, tape-recorded interview, a transcript of which was

admitted as an exhibit, was played for the jury but was not simultaneously


transcribed into the record. Defendant‟s statement to the deputies about the

Facundo and Apodaca murders and the Spartan Burgers robbery was generally

consistent with his testimony at trial.

As to the Apodaca murder, however, defendant provided further context.

According to defendant, before heading to Rivera‟s upholstery shop from the

Quiet Cannon bar, Salazar had told defendant that he hated Apodaca and wanted

to kill him. Salazar said he was going to stab Apodaca and that he wanted

defendant “ „to have my back, and if — and if — if he starts getting the best of me

and everything just, you know, just back my play.‟ ” Later, when Apodaca and

Salazar started fighting at the upholstery shop and defendant intervened, Apodaca

hit defendant in the face. That is when, according to defendant, “automatically my

— the red light goes on and the alarm goes off and I get, you know, that did it, and

I said now fuck this mother fucker, I don‟t even know him, he ain‟t done nothing

to me, but I just don‟t like him, because of the way he is, you know.” As

defendant reached for a screwdriver, he saw Salazar on top of Apodaca, stabbing

him. Defendant then stabbed Apodaca two or three times on the left side of his

body. After defendant was arrested, he “gave [Salazar] up.”

Regarding the Spartan Burgers robbery, which at trial defendant denied

committing, defendant initially told the deputies that he had robbed the restaurant

with his cousin, Theodore “Teddy” Trujeque (Charlene‟s brother and Elena and

Charlie‟s son), because Teddy needed money. Defendant thought he “got about

close to $400,” of which he gave Teddy $150 and kept the rest. Defendant did not

tell authorities about Teddy‟s involvement for “personal reasons.”

b. Letter to Los Angeles County District Attorney

Over defense counsel‟s objection, the prosecution introduced a letter

defendant had written to then Los Angeles County District Attorney Gil Garcetti


(Garcetti letter). In the over-600-word letter, written shortly before his September

1998 preliminary hearing and while he was representing himself, defendant

admitted he murdered both Apodaca and Facundo while “fully aware of all of my

mental faculties” and urged Garcetti to seek the death penalty against him. The

Garcetti letter also stated that “both of those cowards deserved what they got:

death and an early expiration in life, to say the least!”; that if he “had the

opportunity to do it over I would cut off their heads and send „em both to their


B. Penalty Phase

1. Aggravating evidence

a. Murder of Allen Rothenberg

At trial, the prosecution presented evidence that on February 7, 1969, less

than a month after he turned 16 years old, defendant robbed and fatally stabbed

Allen Rothenberg.5 Rothenberg was delivering beer for Nate‟s Liquor Store to

defendant‟s home at 3302 Paola Avenue in Los Angeles. In a 1969 statement to

detectives, which was read to the jury, defendant said he called up Nate‟s Liquor

Store as “Mr. Martinez” and ordered a case of Colt 45 beer. Defendant stated he

was talking to a girl in the bedroom when his friend, Bert Gonzalez, told him

someone was at the door. Defendant told detectives: “I already had a knife with

me because I already had it planned that I was going to rob the guy when he got

there.” Defendant “got a knife and put it around [Rothenberg‟s] neck and threw


To show the nature and circumstances of defendant‟s prior violent conduct

(§ 190.3, factor (b)), the prosecution — over defense counsel‟s objection —
elicited testimony from Officer Sanchez, who knew and lived near the victim and
his family, that Rothenberg had a “handicap,” i.e., he was both “mentally slow”
and “physically slow” with one bad leg and a foot that he dragged.


him on the floor and told him this was a holdup. . . . [¶] . . . [¶] I just — I kept — I

just kept stabbing him.” He stated he did not remember how many times he

stabbed Rothenberg, but that Rothenberg “kept on giving me a hassle and finally

he settled down and he just laid there.” Defendant dragged Rothenberg‟s body

through the bedroom and down the stairs. Bert helped defendant throw his body

over the next yard. Defendant indicated he cut his hands because his hand “kept

sliding down the blade” when he was stabbing Rothenberg.

Former Los Angeles Police Officer Ruben Sanchez, who responded to the

call at 3302 Paola, testified that officers found Rothenberg‟s body in the yard next

door. Rothenberg had been stabbed multiple times in the chest and his pants

pockets were turned inside out. A trail of blood led back into the house where

detectives found blood in the dining room, a bloody door knob, and blood splats

on the wall. An investigator located a bloody 13-inch kitchen knife at the side of

the house. Officer Sanchez identified numerous photographs of the Rothenberg

crime scene, which were introduced into evidence. The trial court took judicial

notice of defendant‟s juvenile court files.

b. Other offenses

The prosecution presented evidence that defendant committed a number of

assaults and robberies from 1978 to 1998.

c. Garcetti letter

Over defense counsel‟s renewed objection, the trial court admitted the

Garcetti letter at the penalty phase. This version, which had fewer redactions than

the version admitted at the guilt phase, included defendant‟s statement that he did

not “regret my actions in any way, shape, or form” and his threat to kill someone

in prison if he did not get the death penalty.


2. Mitigating evidence

a. Family history

Through the testimony of defendant‟s half sister and several maternal aunts

and uncles, defendant presented evidence of his childhood and his mother‟s family

history. On defendant‟s behalf, his ex-wife and their daughter, along with his

former juvenile probation officer and parole officer, all testified. Defense counsel

also presented testimony from a psychiatrist who evaluated defendant as a juvenile

and from an expert witness on gangs.

b. Medical history

Dr. Marshall Cherkas, who examined defendant for the juvenile court in

November 1966 and shortly before defendant‟s 1999 trial, testified that he found

defendant emotionally unstable with borderline organic brain damage and a

history of treatment for psychomotor epilepsy.


A. Pretrial Issues

1. The invalidity of the second degree murder conviction underlying

the prior murder special-circumstance allegation

In support of the prior murder special circumstance (§ 190.2, subd. (a)(2)),

the prosecution alleged defendant‟s prior conviction for the second degree murder

of Allen Rothenberg. In 1971, defendant pleaded guilty to second degree murder

after he was deemed not fit to be tried in juvenile court and was prosecuted in

adult court. (See Welf. & Inst. Code, former § 707, as amended by Stats. 1967,

ch. 1357, § 1, p. 3197.) Before the 1999 trial in the instant matter, defendant

moved to strike the prior murder conviction and related special-circumstance

allegation based on the claim that his guilty plea was invalid under Boykin/Tahl

that is, he was not advised of, nor did he waive, his constitutional rights to a trial

and to confront and cross-examine witnesses, and his right against self-


incrimination. (See Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1

Cal.3d 122.) The trial court denied the motion.

On appeal, defendant raises only a double jeopardy challenge. He argues

that the high court‟s 1975 decision in Breed v. Jones (1975) 421 U.S. 519, 531

(Breed), which held that an adult prosecution after a juvenile adjudication for the

same offense violates double jeopardy, compels the conclusion that he was placed

at least twice6 in jeopardy. (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, §

15.) The Attorney General, however, counters that defendant has waived, or more

accurately, has forfeited this double jeopardy claim because he failed to raise it

below, and that in any event, he cannot collaterally challenge his prior conviction.

For reasons that follow, we conclude that defendant has not forfeited the issue nor

is he estopped from collaterally challenging his 1971 murder conviction.

a. Procedural background

The facts of Rothenberg‟s killing are discussed above. (See ante, at pp. 13-

14.) As relevant here, on February 11, 1969, a petition was filed in juvenile court

alleging that defendant, a 16-year-old minor, came within the then current

provisions of Welfare and Institutions Code section 602. (See Stats. 1961, ch.

1616, § 2, p. 3472; section 602 petition.) Paragraph I of the petition alleged that


Defendant argues that he was actually placed in jeopardy three times. As

discussed further below, he adds that jeopardy also attached at the April 7, 1969 de
novo rehearing where the juvenile court, after considering the March hearing
transcripts and additional evidence, abandoned the referee‟s findings and
concluded defendant should be prosecuted as an adult. (See Jesse W. v. Superior
(1979) 26 Cal.3d 41, 48 [“if petitioner is subjected to rehearing de novo
procedures . . . he would be exposed to jeopardy”].) For her part, the Attorney
General counters that Jesse W. may not be applied retroactively or used to
collaterally challenge the prior conviction. It is unnecessary to discuss this third
attachment of jeopardy because, as we explain below, defendant‟s claim that he
was placed twice in jeopardy has merit. (See post, at p. 26.)


defendant “did wilfully, unlawfully, and with malice aforethought murder Allen

Howard Rothenberg,” in violation of section 187, and paragraph II alleged that

defendant “did wilfully and unlawfully by means of force and fear” take from

Rothenberg money, in violation of section 211. At the request of the public

defender who was representing defendant, the court appointed a psychiatrist to

determine whether a plea of guilty by reason of insanity was appropriate or

whether defendant had diminished capacity. On February 13, 1969, defendant

denied all the allegations in the petition.

On March 6, 1969, a juvenile court referee conducted the adjudicatory

hearing at which the deputy district attorney called eight witnesses and introduced

numerous exhibits. Over codefendant Bert Gonzales‟s objection, the hearing was

treated as a civil rather than criminal matter, thus making the standard of beyond a

reasonable doubt inapplicable. The next day, defendant‟s counsel informed the

referee that defendant was willing to admit to a violation of former section 192,

subdivision 2 (involuntary manslaughter), in exchange for dismissal of paragraphs

I and II of the petition. (See Stats. 1945, ch. 1006, § 1, p. 1942.) Opposing the

dismissal of any allegations, the deputy district attorney proffered evidence that

defendant had confessed to stabbing Rothenberg repeatedly, to planning the

robbery in advance, and to taking money from Rothenberg. Ultimately, the

referee ruled that “justice would dictate under present circumstances” deleting the

malice aforethought allegation.

After defendant admitted he took part in the stabbing of Rothenberg, the

referee accepted defendant‟s admission, dismissed the more serious allegations of

paragraphs I and II, and amended the petition to allege involuntary manslaughter

as follows: “PARAGRAPH III: that said minor, on or about February 7, 1969, in

the commission of an unlawful act killed Allen Howard Rothenberg, thereby

violating Section 292.2 [sic —former section 192, subdivision 2, now section 192,


subdivision (b)] of the Penal Code.” In his March 7, 1969 “Findings and Order,”

the referee explained he relied on the probation officer‟s report that defendant had

a “history of mental and brain problems plus a long record of delinquent behavior

not highlighted by assaultive behavior,” and the fact that defendant had only

recently turned 16 when he committed the crime. In sustaining the petition, the

referee recommended that defendant be recommitted to the California Youth


Another juvenile court judge, however, ordered a de novo rehearing of the

referee‟s adjudication. (See Welf. & Inst. Code, former § 559, added by Stats.

1961, ch. 1616, § 2, p. 3467 and repealed by Stats. 1976, ch. 1068, § 17, p. 4781.)

At the April 7, 1969 rehearing before yet another judge, the court considered the

transcripts from the March 6 and March 7, 1969 hearings, and the parties

presented additional evidence, including defendant‟s testimony. This time around,

the court found the murder and robbery allegations in the petition to be true. On

May 14, 1969, defendant was found not fit for juvenile court, his section 602

petition was dismissed, and he was ordered prosecuted as an adult.

On February 1, 1971, almost two years after the section 602 petition was

first filed against defendant, he pleaded guilty to second degree murder in superior


b. Legal principles

Welfare and Institutions Code section 602 “extends juvenile court

jurisdiction to persons who are under 18 years of age when they violate any law

„defining crime.‟ (§ 602, subd. (a).)” (In re Eddie M. (2003) 31 Cal.4th 480, 486.)

Under present law, on the People‟s motion “made prior to the attachment of

jeopardy,” a juvenile court may in its discretion determine that the minor is unfit

for treatment in juvenile court and should be tried instead in criminal court. (Welf.


& Inst. Code, §707, subd. (a)(1) [referred to as a fitness or transfer hearing].) If a

minor is found fit for juvenile court treatment, the court next determines at an

adjudicatory or jurisdictional hearing whether a crime has been committed. (See

In re Greg F. (2012) 55 Cal.4th 393, 403; § 701.) Any offense alleged in the

section 602 petition must be proven true “beyond a reasonable doubt” and be

“supported by evidence, legally admissible in the trial of criminal cases.” (§ 701;

see In re Eddie M., supra, 31 Cal.4th at p. 487; In re Greg F., supra, 55 Cal.4th at

p. 403.) Once the court sustains a section 602 petition and finds jurisdiction, the

court conducts a dispositional hearing at which it considers the probation officer‟s

social study report and other evidence in determining the appropriate disposition

for the minor. (Welf. & Inst. Code, § 702; see In re Greg F., supra, 55 Cal.4th at

p. 404; In re Eddie M., supra, 31 Cal.4th at p. 487 [“Less exacting rules govern


As relevant here, at the time of defendant‟s 1969 juvenile adjudication,

Welfare and Institutions Code former section 707 provided that a juvenile court

could determine — “[a]t any time during” the hearing — that the minor is not fit

to be treated as a juvenile and should be transferred to an adult court. (Welf. &

Inst. Code, former § 707, as amended by Stats. 1967, ch. 1357, § 1, p. 3197; see

Barker v. Estelle (9th Cir. 1989) 913 F.2d 1433, 1439-1440.) In 1975, the high

court examined this statutory scheme and unanimously held that jeopardy attached

at the adjudicatory hearing, which it described as “a proceeding whose object is to

determine whether [the juvenile] has committed criminal acts that violate a

criminal law and whose potential consequences include both the stigma inherent in

such a determination and the deprivation of liberty for many years.” (Breed,

supra, 421 U.S. at p. 529; id. at p. 531 [“Jeopardy attached . . . when the Juvenile

Court, as the trier of the facts, began to hear evidence.”].)


Although a finding of unfitness and the ensuing transfer to an adult court

could occur not only after, but also before, an adjudication of guilt (see Welf. &

Inst. Code, former § 707, as amended by Stats. 1967, ch. 1357, § 1, p. 3197), the

risk of adjudication itself was enough for jeopardy to attach. (Breed, supra, 421

U.S. at p. 531 [analyzing an “aspect of the juvenile-court system in terms of the

kind of risk to which jeopardy refers”]; see Barker v. Estelle, supra, 913 F.2d at p.

1439.) As such, the high court emphasized that any decision to transfer a juvenile

to adult court should be made prior to an adjudicatory proceeding. (Breed, supra,

421 U.S. at pp. 536-538 & fn. 18.) In response, our Legislature repealed and

reenacted Welfare and Institutions Code section 707 to conform to the

requirements of the high court‟s decision. (See Stats. 1975, ch. 1266, § 4, p. 3325;

see Barker v. Estelle, supra, 913 F.2d at pp. 1439-1440.)

c. Forfeiture

At the outset, we address whether defendant has forfeited the double

jeopardy issue. As noted above, defendant‟s motion to strike the 1971 conviction

rested mainly on his Boykin/Tahl claim. However, at the August 10, 1999,

evidentiary hearing on defendant‟s motion, defense counsel asked the original

deputy district attorney, John Breault, who had prosecuted defendant in adult

court, whether he remembered if defendant‟s previous attorney had argued in 1971

that the proceeding in adult court was in violation of double jeopardy. Breault

testified that he did remember, and that he had countered that jeopardy did not

attach because it was a juvenile proceeding.

Despite initiating the questions on double jeopardy himself, defense

counsel did not move to strike the prior conviction on double jeopardy grounds,

and we see no possible tactical reason for counsel not to have done so. (See

People v. Jones (1994) 24 Cal.App.4th 1780, 1783, fn. 5.) We have previously


considered a double jeopardy issue on appeal that was technically not cognizable

because a meritorious double jeopardy defense relates to a defendant‟s claim of

ineffective assistance of counsel. (People v. Scott (1997) 15 Cal.4th 1188, 1201;

People v. Marshall (1996) 13 Cal.4th 799, 824, fn. 1.) We will therefore address

the merits of this claim. Before discussing the claim‟s substance, however, we

must consider possible procedural hurdles relating to the retroactivity of Breed,

supra, 421 U.S. 519, and the collateral challenge to a prior judgment.

d. Retroactivity

Defendant asserts that although Breed was decided after his 1971

conviction, its holding applies retroactively because he was subject to the very

statute that the high court effectively invalidated. We agree. As we explain, this

conclusion is compelled by two lines of cases — In re Bryan (1976) 16 Cal.3d

782, which dealt specifically with the retroactivity of Breed, and People v. Horton

(1995) 11 Cal.4th 1068, 1139-1140 (Horton), which involved striking a

constitutionally invalid prior conviction alleged as the basis for a special


In In re Bryan, the issue was whether the 1975 holding in Breed applied

retroactively to the defendant‟s juvenile adjudicatory hearing held in 1971. In

concluding that it did, we declined to apply the three-pronged analysis for

retroactivity of constitutional rules of criminal procedure under Linkletter v.

Walker (1965) 381 U.S. 618. We noted: “ „The guarantee against double

jeopardy is significantly different from procedural guarantees held in the Linkletter

line of cases to have prospective effect only. While this guarantee, like the others,

is a constitutional right of the criminal defendant, its practical result is to prevent a

trial from taking place at all, rather than to prescribe procedural rules that govern

the conduct of a trial.‟ ” (In re Bryan, supra, 16 Cal.3d at p. 786, quoting


Robinson v. Neil (1973) 409 U.S. 505, 509 [applying new rule retroactively

because old rule violated double jeopardy; court lacked authority to try

defendant].) We found it unnecessary to apply the Linkletter test “in the case of a

decision compelled by constitutional prohibitions against multiple jeopardy.” (In

re Bryan, supra, 16 Cal.3d at p. 787.) “Breed is thus to be given retrospective

application.” (Ibid.)

The Attorney General‟s attempt to distinguish In re Bryan is unpersuasive.

She primarily relies on Griffith v. Kentucky (1987) 479 U.S. 314, 328, in which the

high court held that “a new rule for the conduct of criminal prosecutions is to be

applied retroactively to all cases, state or federal, pending on direct review or not

yet final, with no exception for cases in which the new rule constitutes a „clear

break‟ with the past.” (Italics added.) The Attorney General evidently reasons

that the phrase “not yet final” embraces an implied holding or negative inference

that such rules do not apply retroactively to decisions that are final. Based on this

reading of Griffith v. Kentucky, the Attorney General argues that because

defendant‟s 1971 conviction was already final at the time the high court decided

Breed, the “new rule” in Breed could not be applied retroactively to defendant‟s

case. Her reliance on Griffith v. Kentucky is misplaced.

In Griffith v. Kentucky, the high court held that new rules of criminal

procedure always apply to cases that are not yet final. It “rejected as unprincipled

and inequitable the Linkletter standard for cases pending on direct review at the

time a new rule is announced.” (Teague v. Lane (1989) 489 U.S. 288, 304.)

Contrary to the Attorney General‟s contention, the court expressed no view in

Griffith v. Kentucky on whether such rules apply retroactively to cases that are

already final. (Griffith v. Kentucky, supra, 479 U.S. at p. 329 (conc. opn. of

Powell, J.) [retroactivity question regarding habeas corpus petitions is “carefully


left open”].) It addressed that question of collateral review in Teague v. Lane,

supra, 489 U.S. 288.

In Teague v. Lane, the high court concluded that new rules of criminal

procedure do not ordinarily apply retroactively to cases “which have become final

before the new rules are announced.” (Teague v. Lane, supra, 489 U.S. at p. 310.)

However, a new rule may be given retroactive effect if: (1) the rule is, in fact,

“substantive,” or (2) it is “ „a watershed rule[] of criminal procedure‟ implicating

the fundamental fairness and accuracy of the criminal proceeding.” (Schriro v.

Summerlin (2004) 542 U.S. 348, 351-352, italics omitted; Teague v. Lane, supra,

489 U.S. at p. 311.) The Attorney General did not refer to Teague v. Lane‟s

nonretroactivity principle, and, as such, she did not address whether the rule

announced in Breed falls within either exception. We conclude that Breed‟s

double jeopardy rule is substantive in nature, and that Teague v. Lane poses no bar

to applying Breed retroactively to cases on collateral review. (Schriro v.

Summerlin, supra, 542 U.S. at p. 352, fn. 4 [rules falling under Teague v. Lane‟s

first exception “are more accurately characterized as substantive rules not subject

to the bar”].)

As noted above, the “ „practical result‟ ” of the guarantee against double

jeopardy “ „is to prevent a trial from taking place at all, rather than to prescribe

procedural rules that govern the conduct of a trial.‟ ” (In re Bryan, supra, 16

Cal.3d at p. 786, quoting Robinson v. Neil, supra, 409 U.S. at p. 509; see United

States v. Johnson (1982) 457 U.S. 537, 550 [“the Court has recognized full

retroactivity as a necessary adjunct to a ruling that a trial court lacked authority to

convict or punish a criminal defendant in the first place”].) Using the high court‟s

rationale, it seems fair to characterize Breed‟s double jeopardy rule as more

substantive than procedural because without the rule‟s retroactive application, a

defendant would otherwise “face[] a punishment that the law cannot impose upon


him.” (Schriro v. Summerlin, supra, 542 U.S. at p. 352.) In short, we reject the

Attorney General‟s argument that the retroactivity rule set out In re Bryan must be

reconsidered in light of relevant high court decisions.

Nevertheless, the Attorney General maintains that even if In re Bryan

remains good law, a violation of the constitutional double jeopardy protection may

not form the basis of a motion to strike a prior murder conviction in a capital case.

Such a motion, according to the Attorney General, may only be based on certain

fundamental constitutional flaws.” (Horton, supra, 11 Cal.4th at p. 1135.) She

suggests that In re Reno (2012) 55 Cal.4th 428, in which the defendant failed to

show his double jeopardy challenge involved a fundamental constitutional error,

compels us to conclude that a double jeopardy violation is not the type of

fundamental constitutional violation that may be asserted in such a motion. Not


In re Reno dealt with specific procedural issues when a habeas corpus

petitioner collaterally attacks his final conviction and “has reraised all prior

appellate claims en masse.” (In re Reno, supra, 55 Cal.4th at p. 485.) Regarding

the petitioner‟s double jeopardy claim which was resolved against him on direct

appeal, we concluded it was procedurally barred under In re Waltreus (1965) 62

Cal.2d 218, 225. The petitioner, we found, failed “to allege any facts suggesting

the double jeopardy issue falls within” Waltreus‟s narrow exception that the issue

“involves a fundamental constitutional error.” (In re Reno, supra, 55 Cal.4th at p.

481, italics added; id. at p. 486 [“we ascribe no weight to these assertions,

unadorned as they are by factual allegations or legal argument”].) We also pointed

out that the petitioner failed to allege facts or present argument on why his

“renewed double jeopardy claim” constituted a structural defect not susceptible to

harmless error review. (Id. at p. 487.) Thus, contrary to the Attorney General‟s

assertion, our holding in In re Reno, which dealt specifically with the deficient


allegations in that case, did not suggest that a double jeopardy violation does not

qualify as a fundamental constitutional flaw as a matter of law. (See id. at pp.

486-487; see People v. Sumstine (1984) 36 Cal.3d 909, 917 [suggesting defendant

“may bring any challenge that undermines the constitutional basis of his prior

conviction” (italics added)].)

We recognize that unlike In re Bryan, where the defendant sought relief by

writ of habeas corpus, defendant here collaterally attacks his prior conviction by

way of a pretrial motion to strike. This distinction, however, strengthens our

conclusion that defendant was permitted to make such a challenge here. Unlike a

writ of habeas corpus, a motion to strike does not seek to vacate or extinguish the

underlying conviction, which would in turn trigger procedural bars. (Horton,

supra, 11 Cal.4th at p. 1138.) “The purpose of a motion to strike is to challenge

only the present effect of the prior conviction.” (People v. Sumstine, supra, 36

Cal.3d at p. 921.) Significantly, the collateral challenge here is to a prior

conviction alleged as a basis for a death-qualifying special circumstance. (See

Horton, supra, 11 Cal.4th at pp. 1137-1138 [procedural bars do not apply to

collateral attacks on prior convictions underlying special-circumstance

allegations].) “In the capital context, a defendant almost invariably will face much

graver consequences from the use of the prior conviction, as a predicate for a

special-circumstance finding, than he or she faced in the earlier criminal

proceeding; it is because of those grave consequences, of course, that a defendant

has been accorded special procedural protections and assistance in a capital case.

In many instances, it may be unfair — and inconsistent with the special need for

reliability — to deprive a defendant of the right to demonstrate the invalidity of

the prior conviction in the subsequent capital prosecution simply because in the

prior proceeding, when much less may have been at stake and the defendant may


not have been accorded the same procedural protections, defendant did not prevail

on the issue.” (Id. at p. 1138.)

For all these reasons, we conclude that defendant may collaterally challenge

his 1971 second degree murder conviction.

e. Merits

Turning to the substance of this claim, it is clear that based on Breed‟s

retroactive application, defendant‟s 1971 second degree murder conviction was

obtained in violation of the double jeopardy clause. (U.S. Const., 5th, 14th

Amends.; Cal. Const., art. I, § 15.) Defendant was placed once in jeopardy at the

adjudicatory juvenile hearing before the referee, and once again, when he was

prosecuted for the same offense in adult court where he pleaded guilty. (Breed,

supra, 421 U.S. at p. 541 [“We hold that the prosecution of respondent in Superior

Court, after an adjudicatory proceeding in Juvenile Court, violated the Double

Jeopardy Clause . . . .”].) Because the prior conviction‟s constitutional deficiency

is apparent from the record, thus making it unnecessary for us to remand for a

hearing, we must set aside this special-circumstance finding (§ 190.2, subd.

(a)(2)). (See Horton, supra, 11 Cal.4th at pp. 1139-1140 [declining to remand for

new hearing on motion to strike prior conviction].)7

Nonetheless, we will not disturb the death judgment unless defendant can

show prejudice. (See Horton, supra, 11 Cal.4th at p. 1140.) Although the death

judgment here was also supported by the multiple murder special-circumstance

finding, we conclude below that special-circumstance-allegation finding must also


In a separate claim, which is addressed below, defendant also argues that

this 1971 conviction was improperly used to impeach his trial testimony and, as
such, his conviction for the Facundo murder should be overturned as well.


be set aside. (See post, at p. 34.) Consequently, without either special-

circumstance finding, we must reverse the penalty judgment.

2. The prosecution’s refiling of the Apodaca murder charge

Defendant argues that the trial court erred by allowing the prosecution to

refile the Apodaca murder charge, which he contends had been previously

dismissed three times. (See § 1387 [two-dismissal rule for refiling charges of

certain violent felonies].) He asserts that even if the murder charge had been

dismissed only twice, the court retroactively applied section 1387.1 — which

became effective January 1, 1988 to allow for a third filing in the case of

excusable neglect — in violation of the ex post facto clauses of both the state and

federal Constitutions. (See U.S. Const., art. I, § 10; Cal. Const., art. I, § 9; see

John L. v. Superior Court (2004) 33 Cal.4th 158, 171-172 (John L.) [federal and

state ex post facto clauses are similarly construed].) He further argues that the

multiple murder special circumstance should be vacated because it is based in part

on the invalid second degree murder conviction for the death of Apodaca. For

reasons that follow, we agree with defendant.

a. Procedural history

The facts of Apodaca‟s killing are discussed above. (See ante, at pp. 6-9.)

As relevant here, Apodaca was killed on January 23, 1987. On February 5, 1987,

the People charged both defendant and Jesse Salazar for the first degree murder of

Apodaca (case No. A795989). (§ 187, subd. (a).) As to defendant, the felony

complaint alleged a prior murder special circumstance (§ 190.2, subd. (a)(2)),

based on his 1971 conviction for the second degree murder of Allen Rothenberg.

As to Salazar, the complaint also charged him with the September 1985 murder of

another man, Ronald Eugene Diaz. In light of the prosecution‟s inability to locate


crucial witnesses, the warrant was recalled and the case was dismissed as to

defendant on March 13, 1987.

On March 25, 1987, the People refiled the first degree murder charge with

the prior murder special-circumstance allegation against defendant (case No.

A798706). At the April 8, 1987, preliminary hearing, the only eyewitness to

Apodaca‟s stabbing death, Robert De Alva, failed to appear. He had apparently

not been properly served with a subpoena necessary to procure an arrest warrant.

The magistrate declined to find good cause for a continuance, but permitted the

prosecution to proceed while it looked for De Alva. The prosecution next called

Richard Rivera, the owner of the upholstery shop where Apodaca was killed, who

testified he did not see the stabbing happen, but only saw Apodaca lying on the

floor afterwards. Later at the hearing, the pathologist who performed the autopsy

of Apodaca, Dr. Sara Reddy, testified that the cause of death was a stab wound to

the chest. She also opined that Apodaca suffered from a superficial neck wound

that was “most likely” caused by a different instrument.

The following day, April 9, the prosecution advised the court that it could

not locate De Alva. After questioning whether there was a showing of malice to

support the murder charge against defendant, the magistrate held defendant to

answer for the lesser offense of manslaughter. On April 24, 1987, the prosecution

refiled the information under section 739, charging defendant with murder under

the previous case number, A798706, but the information did not include a special-

circumstance allegation. Ultimately, on June 23, 1987, the trial court granted

defendant‟s motion to dismiss the information under section 1382 after the

prosecution advised that it still could not locate De Alva.

More than a decade later, on June 1, 1998, the prosecution filed a three-

count felony complaint, charging defendant in count 2 with the first degree murder

of Apodaca and alleging special circumstances of multiple murder and prior


murder. The following year, on July 27, 1999, defendant filed a motion to dismiss

the Apodaca murder charge, contending that the prosecution had exceeded the

number of refilings permitted under section 1387. The prosecution conceded that

there were two dismissals of the Apodaca murder charge. However, it argued that

the third refiling was permissible under section 1387.1, and that there was a

showing of excusable neglect. Defendant, however, countered that because

section 1387.1 became effective after the Apodaca murder charge was dismissed

for a second time in June 1987, section 1387‟s two-dismissal rule governed and

precluded any additional refiling. Otherwise, to allow the prosecution to refile the

murder charge a decade later in 1998 would amount to a retroactive application of

section 1387.1 in violation of the ex post facto clause.

Before ruling on these issues, the trial court held a hearing in August 1999

to determine whether the prior dismissals were due to the prosecution‟s “excusable

neglect.” (§ 1387.1.) The original prosecutor, detective, and investigator on the

Apodaca murder case each testified that despite their efforts, they could not locate

eyewitness De Alva in 1987. The trial court found that the prosecution had shown

excusable neglect under section 1387.1. Defendant alternatively argued that

section 1387.1 was not applicable in the first place because there had been three

prior dismissals of the Apodaca murder charge: the dismissal of the February 5,

1987, complaint on March 13, 1987; the reduction of the murder charge to

manslaughter in the March 25, 1987, complaint on April 9, 1987; and the

dismissal of the April 24, 1987, complaint on June 23, 1987. The trial court,

however, agreed with the prosecution that because defendant was held over on the

lesser necessarily included offense of manslaughter, the magistrate‟s refusal to

hold defendant for murder did not count as a dismissal for purposes of section

1387. In denying defendant‟s motion to dismiss, the trial court noted that its


ruling included an implicit finding that section 1387.1 applied retroactively and

did not violate the ex post facto clause.

Both the Court of Appeal and this court, respectively, denied defendant‟s

writ of prohibition and petition for review. The jury subsequently convicted

defendant of second degree murder. Defendant renews these claims on appeal.

b. Legal principles

Under section 1387, felony prosecutions are generally “subject to a two-

dismissal rule; two previous dismissals of charges for the same offense will bar a

new felony charge.” (Burris v. Superior Court (2005) 34 Cal.4th 1012, 1019.)

Put another way, section 1387 allows for only one previous termination or

dismissal of a felony. (People v. Superior Court (Martinez) (1993) 19

Cal.App.4th 738, 745.) The Attorney General does not dispute that section 1387

would have prohibited the 1998 refiling of the Apodaca murder charge, which was

dismissed twice in 1987. The point of contention involves section 1387.1, which

was enacted in 1987 and became effective January 1, 1988. It provides an

exception to the “two-dismissal rule”: it permits the prosecution to file a violent

felony charge a third time if either of the prior dismissals were due to “excusable

neglect,” and the prosecution did not act in “bad faith.” (Ibid.; see Miller v.

Superior Court (2002) 101 Cal.App.4th 728, 739.) The question here is whether

by allowing the third filing of Apodaca‟s murder charge, the trial court applied

section 1387.1 retroactively in violation of the ex post facto clause.

Although the Latin term “ex post facto” literally extends to any statute

passed “ „after the fact‟ ” (Collins v. Youngblood (1990) 497 U.S. 37, 41), “no

statute falls within the ex post facto prohibition unless „two critical elements‟

exist.” (John L., supra, 33 Cal.4th at p. 172.) The statute must be retroactive, and

must implicate at least one of the four categories described in Calder v. Bull


(1798) 3 U.S. (3 Dall.) 386, 390. (John L., supra, 33 Cal.4th at p. 172.) To be

considered retroactive, the law must “ „change[] the legal consequences of an act

completed before [the law‟s] effective date,‟ namely the defendant‟s criminal

behavior.” (Tapia v. Superior Court (1991) 53 Cal.3d 282, 288; accord, John L.,

supra, 33 Cal.4th at p. 172.) “In other words, the operative event for retroactivity

purposes, and the necessary reference point for any ex post facto analysis, is

criminal conduct committed before the disputed law took effect.” (Ibid.) As to

the second element, the four Calder categories encompass laws that

(1) criminalize conduct that was innocent when done; (2) aggravate or make

greater a crime than when committed; (3) change and increase the punishment;

and (4) alter the rules of evidence to reduce the legal sufficiency necessary to

support a finding of guilt. (See Calder, supra, 3 U.S. (3 Dall.) at p. 390; People v.

Brown (2004) 33 Cal.4th 382, 391.)

c. Application

As discussed, the parties agree that after the Apodaca murder charge was

dismissed a second time in June 1987, section 1387‟s two-dismissal rule barred

any additional refiling. The Attorney General, however, argues that the

subsequent enactment of section 1387.1 permitted defendant‟s prosecution for the

same offense 10 years later. Defendant counters that this third refiling in 1998

would amount to a retroactive application of section 1387.1 in violation of the

federal Constitution‟s ex post facto clause. Relying on Stogner v. California

(2003) 539 U.S. 607 (Stogner), defendant argues that section 1387 “operates

precisely like a statute of limitations,” and that by allowing the prosecution to

refile a third time under section 1387.1, the trial court unconstitutionally revived

an otherwise barred prosecution. We conclude that because a retroactive

construction of section 1387.1 would violate the ex post facto clause, the statute


does not apply to cases that were twice dismissed before it was enacted. (Rust v.

Sullivan (1991) 500 U.S. 173, 190 [a statute “ „ought not be construed to violate

the Constitution if any other possible construction remains available‟ ”].)

In Stogner, the high court majority held that a California statute extending

the limitations period for previously time-barred prosecutions “falls within the

literal terms” of the second Calder category, i.e., a “ „law that aggravates a crime,

or makes it greater than it was, when committed.‟ ” (Stogner, supra, 530 U.S. at

pp. 615, 613, italics omitted.) First explaining that this category‟s alternate

description refers to a statute “that „inflicts punishments where the party was not,

by law, liable to any punishment,‟ ” the high court articulated why this second

category fit: “After (but not before) the original statute of limitations had expired,

a party such as Stogner was not „liable to any punishment.‟ California‟s new

statute therefore „aggravated‟ Stogner‟s alleged crime, or made it „greater than it

was, when committed,‟ in the sense that, and to the extent that, it „inflicted

punishment‟ for past criminal conduct that (when the new law was enacted) did

not trigger any such liability.” (Id. at p. 613, italics omitted.) Likewise, because

defendant here was not by law liable for the twice-dismissed murder charges when

section 1387.1 became effective, any application of section 1387.1 would make

his crime “ „greater than it was, when committed‟ ” in violation of the ex post

facto clause. (Stogner, supra, 539 U.S. at p. 613; id. at pp. 613-614 [second

Calder category applies “where a new law inflicts a punishment upon a person not

then subject to that punishment, to any degree”].)

Seeking to distinguish Stogner, the Attorney General emphasizes that there

is no statute of limitations on murder and an action “may be commenced at any

time.” (§ 799; see People v. Nelson (2008) 43 Cal.4th 1242, 1250.) Because

section 1387 cannot provide a defendant charged with murder “amnesty” or a

“complete defense to prosecution” (Stogner, supra, 539 U.S. at p. 632), the


passage of section 1387.1 as an exception to section 1387 would not

unconstitutionally “revive a long-forbidden prosecution.” (Stogner, supra, 539

U.S. at p. 632.) The Attorney General adds that the application of section 1387.1

is not contingent on time and is thus “completely unrelated” to a statute of

limitations; it merely provides a procedural remedial tool to avoid releasing

dangerous felons. (See People v. Massey (2000) 79 Cal.App.4th 204, 211.) We

are not persuaded. (See Collins v. Youngblood, supra, 497 U.S. at p. 46 [“by

simply labeling a law „procedural,‟ a legislature does not thereby immunize it

from scrutiny under the Ex Post Facto Clause”].)

Though the twice-dismissed action against defendant was not time-barred

under section 1387, it was nevertheless barred when section 1387.1 was enacted.

Under Stogner, what matters is the government‟s attempt “to revive a long-

forbidden prosecution,” which the high court described as implicating a

“predominating constitutional interest.” (Stogner, supra, 539 U.S. at p. 632, italics

added; id. at p. 611 [unfairness where “government has refused „to play by its own

rules‟ ”].) If section 1387.1 permitted a third refiling of the Apodaca murder

charge, it would “retroactively withdraw[] a complete defense to prosecution after

it ha[d] already attached, and it [would do] so in a manner that allow[ed] the State

to withdraw this defense at will and with respect to individuals already identified.

[Citation.] „Unfair‟ seems to us a fair characterization.” (Stogner, supra, 539 U.S.

at p. 632.) We therefore construe section 1387.1 as not applying retroactively to

revive prosecutions that were barred by section 1387 when it was enacted. As a

result, the 1998 refiling of the Apodaca murder charge was improper.8


Given this conclusion, it is unnecessary to decide whether the Apodaca

murder charge was dismissed twice, as the Attorney General suggests, or three

(footnote continued on next page)


Given that defendant was improperly charged and subsequently convicted

of Apodaca‟s murder, we must reverse the judgment of conviction for second

degree murder, set aside the jury‟s true finding regarding the multiple murder

special circumstance, and, finally, reverse the judgment of death. Nevertheless,

we will discuss defendant‟s additional arguments to the extent they challenge the

validity of his convictions for robbery and the first degree murder of Facundo.

(See People v. Brents (2012) 53 Cal.4th 599, 614.)

3. Trial court’s refusal to sever the murder charges from the robbery


Before trial, defendant also moved to sever the two murder charges (count 1

[victim Facundo]; count 2 [victim Apodaca]) from the unrelated robbery charge

(count 3 [Spartan Burgers restaurant]). Defendant alleged that the robbery, which

occurred more than a decade after the murders of Facundo and Apodaca, had

nothing in common with them. Further, while the evidence that defendant

committed the robbery was “overwhelming,” the evidence that he committed the

two murders, in particular, the murder of Apodaca, was not. Although the

prosecution conceded that the evidence regarding the robbery would not otherwise

be cross-admissible in either murder trial, it argued there was “no real prejudice” if

the robbery count were not severed. The trial court denied defendant‟s motion to

sever, finding that joinder “would not rise to the level of serious prejudice.” On

appeal, defendant argues that the trial court‟s refusal to sever the unrelated robbery

charge denied him a fair trial by improperly bolstering the prosecution‟s weak

(footnote continued from previous page)

times, as defendant argues, or whether the prosecution made the requisite showing
of “excusable neglect” under section 1387.1.


evidence of intent on both murder charges. (U.S. Const., 5th, 8th and 14th

Amends.; Cal. Const., art. I, §§ 15, 16.) For reasons that follow, we disagree.

As relevant here, section 954 permits the joinder of “two or more different

offenses of the same class of crimes or offenses.” (§ 954; see People v. Soper

(2009) 45 Cal.4th 759, 771.) “[B]ecause consolidation or joinder of charged

offenses ordinarily promotes efficiency, that is the course of action preferred by

law.” (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220.) However, a trial

court in its discretion may order the offenses to be severed “in the interests of

justice and for good cause shown.” (§ 954.)

The often-cited factors for severance are: “(1) whether the evidence

relating to the various charges would be cross-admissible in separate trials, (2)

whether some of the charges are unusually likely to inflame the jury against the

defendant, (3) whether a weak case has been joined with a strong case or with

another weak case, and (4) whether one of the charges is a capital offense or the

joinder of the charges converts the matter into a capital case.” (People v. Elliott

(2012) 53 Cal.4th 535, 551.) If cross-admissibility of the evidence is present, that

is normally enough to justify the trial court‟s refusal to sever the charged offenses.

(Alcala v. Superior Court, supra, 43 Cal.4th at p. 1227.) However, the lack of

cross-admissibility is not necessarily dispositive for purposes of severance.

(People v. Ramirez (2006) 39 Cal.4th 398, 440; see § 954.1.) If there is no cross-

admissibility of the evidence, we evaluate the three remaining factors to determine

whether they demonstrate the trial court‟s abuse of discretion. (Alcala v. Superior

Court, supra, 43 Cal.4th at p. 1227.)

For purposes of section 954, “[r]obbery and murder are the same class of

crime [because] both involve a common element of assault on the victim.”

(People v. Musselwhite (1998) 17 Cal.4th 1216, 1243.) Because the statutory

requirement for joinder was met, defendant can only establish error based on the


trial court‟s abuse of discretion, in other words, defendant must make a “ „clear

showing of prejudice.‟ ” (People v. Ramirez, supra, 39 Cal.4th at p. 439; Alcala v.

Superior Court, supra, 43 Cal.4th at p. 1220 [abuse of discretion if the court‟s

ruling falls outside the bounds of reason].) “We review the trial court‟s exercise

of discretion in light of the record before it when it ruled.” (People v. Elliott,

supra, 53 Cal.4th at p. 552.) In the end, even if a trial court‟s ruling on a motion

to sever was proper at the time it was made, we must still determine whether the

joinder of charges resulted in “ „gross unfairness depriving the defendant of due

process of law.‟ ” (People v. Soper, supra, 45 Cal.4th at p. 783.)

As the prosecution conceded at trial, evidence of the robbery would not

have been cross-admissible with evidence of either murder. However, we

conclude that consideration of the other three factors do not demonstrate a

“ „clear showing of prejudice‟ ” based on the joinder of the robbery charge and the

Facundo murder charge, of which defendant stands convicted. (People v.

Ramirez, supra, 39 Cal.4th at p. 439.)

In support of severance, defendant argues that the robbery of Spartan

Burgers was more inflammatory than the Facundo murder because the robbery

involved the use of a gun against a stranger. We disagree. Though it is debatable

whether a gun or a knife is a more dangerous weapon or whether the perpetrator

being a stranger or an acquaintance engenders more fear, defendant‟s robbery of

Spartan Burgers, significantly, did not involve any bodily injury. In stark contrast,

defendant brutally stabbed Facundo during his attack. Also, contrary to

defendant‟s contention, evidence of the robbery did not bolster the “weak”

Facundo murder case with respect to the issue of defendant‟s intent. Evidence that

defendant committed the murder was anything but weak. Though defendant flatly

denied robbing Spartan Burgers at trial, he confessed both before trial and on the

stand to killing Facundo. (See ante, at pp. 11-12.) As to the forensic evidence, the


pathologist testified that all of Facundo‟s major stab wounds were “lethal.” As the

Attorney General contends, the location and number of wounds support

defendant‟s intent to kill his victim.. (See People v. Silva (1953) 41 Cal.2d 778,

782 [“The extent and location of a knife wound are pertinent to a determination of

the intent with which it was inflicted.”].)

Because we are reversing the penalty judgment, the factor whether joinder

of the charges converted defendant‟s case from a noncapital case to a capital one is

no longer relevant in determining whether defendant suffered prejudice. Based on

the foregoing, we conclude that defendant has not made a clear showing of

prejudice based on the trial court‟s refusal to sever.

In the end, nothing suggests that the joinder of the robbery charge to the

murder charges resulted in “ „gross unfairness‟ ” depriving defendant of due

process of the law. (People v. Soper, supra, 45 Cal.4th at p. 783.) Contrary to

defendant‟s suggestion, with respect to this severance issue, “a heightened analysis

is no longer called for” in capital cases. (Alcala v. Superior Court, supra, 43

Cal.4th at p. 1229, fn. 19; see § 790, subd. (b).)

4. Trial court’s “revocation” of defendant’s pro. per. status

Defendant claims that the trial court improperly terminated his in propria

persona status by relying on defendant‟s loss of library privileges in jail and the

seriousness of the charges against him as grounds for revocation. Alternatively, he

maintains that he did not “validly” sign the substitution of attorney form because

he misunderstood that the loss of library privileges would inevitably lead to such

revocation, and the trial court should have corrected his misapprehension of the

law. For reasons that follow, we find this claim meritless.

After appearing in propria persona at his September 1998 preliminary

hearing, defendant informed the trial court at his arraignment that he wished to


continue in propria persona. In reviewing his formal request, the trial court noted

that defendant had represented himself in three 1976 cases involving robbery,

attempted robbery, and assault with deadly weapon charges, and that he had been

convicted in two cases and acquitted in one. After the trial court explained the

difficulties and dangers of defendant representing himself, defendant confirmed he

wished to proceed in propria persona despite facing the death penalty. He,

however, requested that the court appoint advisory or standby counsel.9 The trial

court granted defendant‟s petition for in propria persona status at the October 13,

1998, arraignment hearing. The written petition included the statement, “I

understand that misconduct occurring outside of court may result in restriction or

termination of Pro Per privileges or my Pro Per status,” which defendant initialed.

With Attorney Andrew Stein as advisory counsel, defendant continued to

represent himself at pretrial hearings until November 1998, when his in-custody in

propria persona privileges at the Los Angeles County jail were revoked. A search

of defendant‟s cell had yielded items from the law library, 750 milligrams of the

drug methocarbamol, and a black ballpoint pen, the possession of which violated

jail rules. On December 3, 1998, defendant appeared in court with Attorney Stein

after signing a substitution of attorney form. Stein informed the court that

defendant told him he was willing to relinquish his in propria persona status.

Defendant added: “Involuntarily, by the way.” Defendant explained that he said


The roles of advisory counsel and standby counsel are distinct. (See People

v. Blair (2005) 36 Cal.4th 686, 725.) The parties and the court used both terms to
describe Attorney Stein, though it appears Stein was to serve as advisory counsel.
(Ibid. [advisory counsel “is appointed to assist the self-represented defendant if
and when the defendant requests help”].) In any event, the distinction between
advisory and standby counsel is not crucial to this issue. (See People v. Butler
(2009) 47 Cal.4th 814, 828, fn. 6 [defense counsel served in both advisory and
standby capacities].)


“involuntarily because I‟ve been told by numerous people that today my pro per

status was going to be revoked regardless of what transpires today.” Alleging that

the Sheriff‟s Department was not treating him fairly, defendant claimed he would

not get a fair trial representing himself and that “my only recourse is to give up my

pro per status and go with Mr. Stein.”

Insisting on making an appropriate record, the prosecution emphasized that

even though defendant had lost his library privileges, this did not mean he could

not remain in propria persona and that Stein, as advisory counsel, could supply

any needed research material. The prosecution, however, added: “Obviously,

obviously, the appropriate choice to make on behalf of the defendant is to have a

lawyer represent him because it is a death penalty case.” When the trial court

asked defendant if he had signed the substitution form voluntarily and if he

understood what the form meant, defendant replied yes to both questions.

Attorney Stein agreed with the prosecution that it was in defendant‟s best

interest to be represented by counsel and asserted that “without me as his attorney

or without an attorney, Mr. Trujeque would try to do what Penal Code section

1018 prohibits him from doing, which is tantamount to pleading guilty to the death

penalty.” He added: “Even with advisory counsel, in a death penalty case when

you don‟t have access to the law library, you‟re really not in a very good

position.” Attorney Stein informed the court he had talked to defendant at length

about the substitution of attorney form and believed defendant signed it

“intelligently, knowingly, and voluntarily.”

However, when the prosecution later asked defendant what he wanted to

do, he said: “I want to represent myself and have access and be allowed to have

access to the law library.” After defendant conferred with Attorney Stein off the

record, Stein said “I think the court already said they‟ve accepted the substitution

of attorney.” The prosecution, who was “not happy with the record,” asked that


the court make a ruling on the substitution of attorney, noting that documents

submitted “indicate that his pro per status should be, in fact, withdrawn from

privileges at the county jail.” After recounting why defendant‟s in-custody in

propria persona privileges had been revoked for cause, the court noted it had

inquired and confirmed that defendant did not sign the substitution of attorney

form out of duress or force. It accepted the form “[b]ased on the seriousness of

the charges, [and] the fact that a substitution of attorney was voluntarily and

willingly signed.” On appeal, defendant claims the trial court erroneously revoked

his in propria persona status in violation of the Sixth and Fourteenth Amendments.

(U.S. Const., 6th & 14th Amends; see Faretta v. California (1975) 422 U.S. 806


Under Faretta, a defendant “must be free personally to decide whether in

his particular case counsel is to his advantage,” even though “he may conduct his

own defense ultimately to his own detriment.” (Faretta, supra, 422 U.S. at p.

834.) This right to self-representation extends to capital prosecutions. (People v.

Elliott, supra, 53 Cal.4th at p. 592.) However, the right “once asserted, may be

waived or abandoned.” (People v. Dunkle (2005) 36 Cal.4th 861, 909; see Indiana

v. Edwards (2008) 554 U.S. 164, 171 [self-representation right is not absolute].)

A defendant‟s waiver or abandonment of this constitutional right should be

voluntary, knowing, and intelligent (People v. D’Arcy (2010) 48 Cal.4th 257,

284); such waiver or abandonment may be inferred from a defendant‟s conduct.

(Id. at pp. 284-285; People v. Stanley (2006) 39 Cal.4th 913, 929; People v.

Dunkle, supra, 36 Cal.4th at p. 909.) A trial court may also revoke a defendant‟s

right to represent himself if he “deliberately engages in serious and obstructionist

misconduct.” (Faretta, supra, 422 U.S. at p. 834, fn. 46; see People v. Carson

(2005) 35 Cal.4th 1, 8-9 [misconduct not limited to in-courtroom behavior].)


We first point out that, contrary to defendant‟s assertion, the trial court did

not in fact revoke defendant‟s in propria persona status.10 Before it accepted

defendant‟s substitution of attorney form, the court noted only that defendant‟s in

propria persona privileges had already been revoked at an administrative hearing.

Defendant‟s chief complaint rather is that he mistakenly believed his loss of

library privileges would necessarily lead to the revocation of his in propria persona

status, a misapprehension the trial court failed to correct. (See People v. D’Arcy,

supra, 48 Cal.4th at pp. 286-287 [defendant allegedly relied on court‟s

misadvisement when relinquishing his Faretta right]; cf. People v. Carter (1967)

66 Cal.2d 666, 670 [defendant ineffectively waived right to counsel based on

mistaken belief reinforced by the court that he would have access to library].)

Thus, notwithstanding the fact he signed the substitution form and told the court

he understood what this meant, he argues he did not “validly” waive his right to

self-representation. At the very least, defendant claims it did not “ „reasonably

appear[]‟ ” that he wished to abandon his self-representation, and that the trial

court should have had a “ „personal dialogue‟ ” with defendant to determine

whether there was a waiver. (People v. Kenner (1990) 223 Cal.App.3d 56, 61.)

We disagree.


Defendant‟s reliance on People v. Butler, supra, 47 Cal.4th 814, is

therefore misplaced. In Butler, a trial court terminated a capital defendant‟s self-
representation after concluding the defendant‟s trial preparation and his ability to
marshal discovery materials in his defense would be limited. A jury subsequently
convicted the defendant of murder and sentenced him to death. We reversed the
jury‟s judgment and sentence, concluding that under Faretta “inmates still have
the right to represent themselves even when their ability to prepare is restricted in
custody.” (Id. at p. 827.) In that regard, defendant‟s claim that the trial court
erroneously relied on the seriousness of the charges to revoke his in propria
persona status also fails.


Assuming that defendant actually misunderstood the consequences of

losing his library privileges, any misunderstanding he had was sufficiently

clarified. (See People v. D’Arcy, supra, 48 Cal.4th at pp. 286-287 [no error where

trial court corrected itself after misadvising defendant he could insist counsel

present a certain defense if he relinquished right to self-representation].) The

prosecution explained to defendant several times that he had “choices,” i.e., either

he could remain in propria persona because Stein, as advisory counsel, could

provide him the necessary materials and research, or he could have Stein represent

him. Stein also informed the court that he spoke to defendant for “a good 45

minutes about what it meant” to sign the substitution form and he believed

defendant signed it “with an intelligent mind, voluntarily and knowingly.”

Although the prosecution and Attorney Stein both made statements

suggesting defendant would be better off represented by counsel (see ante, at p.

39), these statements simply recognize the obvious challenges defendant would

face as a capital defendant proceeding in propria persona. We conclude they do

not demonstrate that defendant was compelled to waive his right to self-

representation. In isolation, defendant‟s own assertions that his “only recourse”

was to give up his status “involuntarily” may appear troubling; however, our

review of the record supports that defendant voluntarily and intelligently

relinquished his right. There is “no suggestion that defendant did not understand

what he was giving up in confirming that he wished to be represented by counsel,

or that he might in fact have wished to represent himself notwithstanding his

statements to the contrary . . . .” (People v. Dunkle, supra, 36 Cal.4th at p. 910.)

Contrary to defendant‟s contention, the trial court was not required to

question defendant further, especially after it had already asked defendant if he

voluntarily signed the substitution form and if he understood what that meant.

Defendant was familiar not only with the criminal justice system but with his


rights under Faretta, having represented himself several times and having even

obtained an acquittal. Indeed, the record portrays defendant as articulate,

assertive, and intelligent, capable of arguing fine points relating to investigative

funds and discovery matters. Rather than unequivocally expressing a desire to

represent himself, defendant‟s main concern appeared to be restoring his library

privileges: “I want to represent myself and have access and be allowed to have

access to the law library.” (See People v. Stanley, supra, 39 Cal.4th at p. 932

[Faretta right waived unless defendants “ „ “ „articulately and unmistakably

demand to proceed pro se‟ ” ‟ ”].) After it became evident that defendant‟s library

privileges would not be restored, the record does not indicate, nor does defendant

contend, that he raised the Faretta issue at trial again. Based on the circumstance

that defendant accepted Stein as counsel and that he did not renew his request for

self-representation, “we conclude he must further be found to have ultimately

abandoned his desire to invoke his Faretta rights in these capital murder

proceedings.” (People v. Stanley, supra, 39 Cal.4th at p. 933.)

B. Guilt Phase

1. Trial court’s ruling sustaining Charlie and Elena Trujeque’s

assertions of the Fifth Amendment privilege

Defendant claims that the trial court erred by allowing Charlie Trujeque to

make a blanket assertion of his Fifth Amendment right against self-incrimination

at both the guilt and penalty phases without making any inquiry into the validity of

the asserted right, and without considering defendant‟s constitutional rights to

present a defense, to compel the presence of witnesses and to present a case in

mitigation of the death penalty. (U.S. Const., 5th, 6th, 8th & 14th Amends.) He

adds the trial court also erred in permitting Elena Trujeque to assert her own Fifth

Amendment right at the penalty phase because she had waived the privilege by

testifying at the guilt phase. In light of our decision to reverse the penalty phase


judgment, we will address only Charlie‟s assertion of the Fifth Amendment

privilege at the guilt phase.

a. Factual background

1) Guilt phase

At trial, in support of its argument that defendant had falsely implicated

Charlie and Elena Trujeque in the Facundo murder and was trying to shift the

blame to them, the prosecution intended to call both Charlie and Elena as

witnesses. Before they testified, the prosecution informed the trial court that the

Trujeques might need attorneys because “there may be Fifth Amendment issues.”

The trial court appointed attorneys, Hattie Harris and Anthony Garcia, for Elena

and Charlie, respectively. Harris confirmed that she had spoken to Elena and had

advised her client to take the stand.

At the guilt phase, Elena testified about Charlene‟s relationship with

Facundo and her relationship with defendant. Though first denying that she and

Charlie had asked defendant to hurt Facundo, she admitted on cross-examination

that Charlie had told defendant to break Facundo‟s arms and legs. Elena conceded

she was “on board for that,” but did not think defendant would “stick a knife in his

chest.” She denied promising defendant any money for killing Facundo.

After Elena testified, Charlie‟s appointed attorney, Anthony Garcia,

informed the court that he had advised his client to assert his Fifth Amendment

right against self-incrimination. On the stand, Charlie confirmed he was asserting

this right. Though it initially allowed the defense to ask Charlie about his

concerns for Charlene and her relationship with Facundo, and to ask about the

letters defendant wrote to Charlene, the trial court eventually ruled that it would

not force Charlie to testify at all in the guilt phase because any questions “taken in

context with everything that Mrs. Trujeque has said, can incriminate him.”


Defense counsel, however, indicated they wished to call Charlie to the stand

during the penalty phase as a “family historian” to testify about defendant‟s family

history. The trial court reserved the issue.

2) Penalty phase

As expected, defense counsel called Charlie to the stand at the penalty

phase and attempted to ask him questions about his siblings, including his

deceased brother (defendant‟s father), Manuel Trujeque. Charlie invoked the Fifth

Amendment privilege through his counsel, and refused to answer any questions.

The trial court declined defense counsel‟s request to order Charlie to answer

because it reasoned the questions would “lead to what the prosecution‟s contention

is, namely, that because of familial relationships, your client did what he did at the

behest of this witness and his wife.” The court did, however, allow defense

counsel to ask Charlie whether the prosecution had offered him immunity in the

Facundo case for asserting his Fifth Amendment rights. Both Charlie and the

prosecutor denied there was any such agreement.

After defense counsel proffered the type of questions they would ask

Charlie (such as questions about defendant‟s father‟s temper, drug use, and history

of physical violence toward defendant‟s mother when she was pregnant with

defendant), Charlie reiterated his intent to assert the Fifth Amendment on all these

questions. Defense counsel, however, asserted the jury was entitled to hear this

information from Charlie about “how Tommy Trujeque got here today. It‟s

violence breeds violence. It‟s drug addicts breed drug addicts. It all fits in with

what the expert witnesses would testify, and he is the family historian from the

Trujeque side.” Rejecting defendant‟s claim that information on the Trujeque

family could not have any factual nexus to the Facundo murder, the trial court

sustained Charlie‟s assertion of the privilege at the penalty phase as well.


As an alternative to Charlie testifying about defendant‟s family history,

defense counsel proposed to call Elena to the stand as a family historian under

Evidence Code sections 1310 and 1311. However, her appointed attorney, Hattie

Harris, was “hit with the bombshell” that defense counsel had suggested Elena had

perjured herself by denying that she ever visited defendant in prison. Based on the

possibility that Elena could “incriminate herself for a new and different charge” of

perjury, Harris indicated she would advise her client to assert her Fifth

Amendment privilege to any questions regarding familial relationships at the

penalty phase. On the stand, Elena confirmed she would refuse to answer any

questions about her husband‟s family or defendant‟s childhood.

On appeal, defendant claims the trial court erred in permitting Charlie to

assert his Fifth Amendment privilege at both the guilt and penalty phases, and in

allowing Elena to assert her privilege at the penalty phase. He contends that the

Trujeques‟ assertions of the privilege excluded “critical mitigating evidence”

about defendant‟s father and his father‟s family history. In deciding whether the

trial court erred in sustaining the privileges of these witnesses, we apply an

independent standard of review. (People v. Seijas (2005) 36 Cal.4th 291, 304

(Seijas).) For reasons that follow, we find no error with respect to Charlie‟s

assertion of the Fifth Amendment privilege at the guilt phase. As noted, given our

reversal of the penalty judgment, we do not address defendant‟s challenges to

Charlie‟s and Elena‟s assertions of the privilege at the penalty phase.

b. Legal principles

“It is a bedrock principle of American (and California) law, embedded in

various state and federal constitutional and statutory provisions, that witnesses

may not be compelled to incriminate themselves. In an oft-cited case, the high

court stated that this privilege „must be accorded liberal construction in favor of


the right it was intended to secure.‟ ” (Seijas, supra, 36 Cal.4th at p. 304, quoting

Hoffman v. United States (1951) 341 U.S. 479, 486 (Hoffman).) The test from

Hoffman provides that “[t]o sustain the privilege, it need only be evident from the

implications of the question, in the setting in which it is asked, that a responsive

answer to the question or an explanation of why it cannot be answered might be

dangerous because injurious disclosure could result.” (Id. at pp. 486-487.) In that

regard, a witness‟s answers need not in themselves support a conviction under a

criminal statute, but may “furnish a link in the chain of evidence” needed to

prosecute the witness for a crime. (Id. at p. 486.) Ultimately, a trial court may

reject an assertion of the privilege only when it appears to the court “ „perfectly

clear, from a careful consideration of all the circumstances in the case, that the

witness is mistaken, and that the answer[s] cannot possibly have such tendency‟ to

incriminate.” (Id. at p. 488; Seijas, supra, 36 Cal.4th at p. 305 [Evid. Code, §

40411 incorporates the Hoffman test construed “broadly in favor of the


A witness, however, may not make a blanket assertion of the privilege

against self-incrimination. (See U.S. v. Goodwin (5th Cir. 1980) 625 F.2d 693,

701.) A witness‟s “say-so does not itself establish the hazard of incrimination. It

is for the court to say whether his silence is justified . . . .” (Hoffman, supra, 341

U.S. at p. 486.) In other words, a trial court “must make „a particularized inquiry,

deciding, in connection with each specific area that the questioning party wishes to


The provision states: “Whenever the proffered evidence is claimed to be

privileged under Section 940 [the privilege against self-incrimination], the person
claiming the privilege has the burden of showing that the proffered evidence might
tend to incriminate him; and the proffered evidence is inadmissible unless it
clearly appears to the court that the proffered evidence cannot possibly have a
to incriminate the person claiming the privilege.” (Evid. Code, § 404,
italics added.)


explore, whether or not the privilege is well-founded.‟ [Citation.] Although the

witness may have a valid claim to the privilege with respect to some questions, the

scope of that privilege may not extend to all relevant questions. The witness may

be totally excused only if the court finds that he could „legitimately refuse to

answer essentially all relevant questions.‟ [Citation.] ” (U.S. v. Goodwin, supra,

625 F.2d at p. 701.) This has long been the rule in California in both criminal and

civil proceedings. (Wadford v. Medeiros (1984) 160 Cal.App.3d 1035, 1045.)

c. Application

With respect to Charlie‟s privilege, basic questions about his family

background and his relationship to defendant, though seemingly innocuous, could

have exposed Charlie to prosecution for solicitation of murder or as an accessory

to murder. Defendant testified that Charlie had paid him to kill Facundo, and

Charlie‟s wife, Elena, confirmed that Charlie had asked defendant to break

Facundo‟s arms and legs. As the prosecution explained, the defense theory was

that Charlie “knew by saying to [defendant], go take care of it, take care of the

problem, that as a family member, he would do that. He would do the killing, he

would take care of the problem for the family. . . . The mere fact that this witness

is related to [defendant] in any way is incriminating to this witness in the context

of those facts.” The trial court added that defendant‟s proposed question, for

instance, about when Charlie‟s parents died “by itself perhaps can‟t incriminate

him, but following that question there will be other questions” that will ultimately

lead to the conclusion that defendant killed Facundo at Charlie‟s request. The

existence of this family relationship, in other words, provided a “link in the chain

of evidence” supporting defendant‟s motive in the Facundo murder. (Hoffman,

supra, 341 U.S. at p. 486.) Under these circumstances, it does not clearly appear


that the proffered testimony could not possibly have a tendency to incriminate

Charlie. (See Evid. Code, § 404; Seijas, supra, 36 Cal.4th at p. 307.)

Nevertheless, defendant contends that there were other subjects that Charlie

could have safely testified to, but that the trial court “made no inquiry at all” as to

the proper scope of the questioning. The record belies this assertion. At the guilt

phase, the trial court explored other possible areas for questioning, specifically

asking defense counsel, “Other than your desire to question this witness about

whether or not he read the contents of the letter, what other areas do you want to

go into with this witness?” The court initially allowed counsel to ask Charlie

about Charlene‟s relationship with Facundo. The court, however, later determined

that any questions, in light of Elena‟s testimony that Charlie had enlisted

defendant to hurt Facundo, could incriminate Charlie. In sum, the record supports

that the trial court made a particularized inquiry about Charlie‟s assertion of the

privilege before determining Charlie “could „legitimately refuse to answer

essentially all relevant questions‟ ” at the guilt phase. (U.S. v. Goodwin, supra,

625 F.2d at p. 701.)

Based on the foregoing, we conclude the trial court did not err in sustaining

Charlie‟s assertion of the Fifth Amendment privilege. Even assuming that the trial

court erred, we conclude any error was harmless beyond a reasonable doubt.

(Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) Defendant asserts

that any error was not harmless because Charlie‟s assertion of the privilege

prevented the jury from hearing evidence that would have reduced the charge or

acquitted defendant of first degree murder. Specifically, defendant claims that had

Charlie testified, defense counsel could have questioned him on how the murder of


Charlene‟s cousin, Vicki, by an abusive boyfriend12 intensified the concerns

Charlie and defendant had for Charlene, which in turn would have supported

defendant‟s claim of imperfect defense of others. Defendant also sought to elicit

testimony that Charlie did not believe defendant‟s letters to Charlene were

inappropriate, thus undercutting the prosecution‟s theory that defendant killed

Facundo because defendant had feelings for Charlene.

Much of the evidence defendant sought to elicit from Charlie was already

before the jury. Elena testified not only that she and Charlie were concerned about

Charlene‟s abusive relationship with Facundo, but that Charlie had specifically

asked defendant to hurt Facundo. The trial court, in excluding evidence of Vicki‟s

murder under Evidence Code section 352, told defense counsel “you‟ve described

Mr. Facundo as the despicable, cowardly wife beater that he was, and I think that‟s

enough.” Charlie‟s testimony would have simply added to the evidence the jury

already heard. (People v. Brown (2003) 31 Cal.4th 518, 576 [Evid. Code, § 352

“permits the exclusion of evidence on the ground that it is cumulative”].) As such,

any error in excluding the testimony of Charlie was harmless beyond a reasonable

doubt. (Chapman, supra, 386 U.S. at p. 24.)

2. Trial court’s refusal to instruct on imperfect defense of another or

necessity relating to the Facundo murder

Defendant‟s main argument with respect to the Facundo murder was that he

acted to protect his cousin, Charlene, from Facundo‟s further abuse and possibly

from death. Based on this argument, defense counsel requested that the trial court

instruct the jury with a series of instructions relating to the imperfect defense of

another. (CALJIC Nos. 5.13, 5.14, 5.15, 5.16, 5.17.) Alternatively, the defense


The evidentiary issue regarding Vicki‟s murder is discussed separately

below. (See post, at pp. 56-57.)


also sought jury instructions on mistake of fact and necessity. (CALJIC Nos. 4.35,

4.43.) When the trial court stated that “based on the evidence that I heard” there

was no threat of imminent harm, defense counsel repeatedly argued that it was up

to the jury to decide whether there was imminent harm or not. However, the trial

court refused to give any of the requested instructions because it found that based

on “the totality of the evidence that has been presented” there was no threat of

imminent danger, and that “[i]f that fear was present, it certainly did not extend to

the degree of committing a homicide.” Further, the court also pointed out that

these instructions were, in fact, “negate[d]” by the evidence, including defendant‟s

statement to Los Angeles County Sheriff‟s Deputy Frank Durazo.

On appeal, defendant argues that the trial court‟s failure to give these

instructions denied him his right to present a defense, his right to a jury trial, and

his right to a reliable penalty determination in violation of the Fifth, Sixth, Eighth,

and Fourteenth Amendments to the federal Constitution and analogous provisions

of the state Constitution. He reiterates that it was up to the jury, not the court, to

determine the credibility and validity of the imperfect defense of others. In

particular, he maintains that it was the jury‟s province to determine whether he had

an unreasonable belief that Charlene was in peril. With respect to his request for

an instruction on the necessity defense, defendant similarly posits that the factual

dispute regarding the immediacy of the danger Facundo posed, i.e., whether

Charlene was injured weeks before the murder or shortly before, should have been

resolved by a properly instructed jury and not the court. For reasons that follow,

we conclude this claim lacks merit.

a. Imperfect defense of others

“[O]ne who kills in imperfect defense of others — in the actual but

unreasonable belief he must defend another from imminent danger of death or


great bodily injury — is guilty only of manslaughter.” (People v. Randle (2005)

35 Cal.4th 987, 997 (Randle) [recognizing imperfect defense of others].) 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.

„ “[T]he peril must appear to the defendant as immediate and present and not

prospective or even in the near future. An imminent peril is one that, from

appearances, must be instantly dealt with.‟ . . . Put simply, the trier of fact must

find an actual fear of an imminent harm.” (In re Christian S. (1994) 7 Cal.4th 768,

783.) Because the reasonableness (or unreasonableness) of this claim is tested

from the defendant‟s perspective, however, a trier of fact may consider a victim‟s

prior threats and violence to corroborate the defendant‟s testimony that he feared

for his or another‟s life. (Randle, supra, 35 Cal.4th at pp. 999-1000; see People v.

Davis (1965) 63 Cal.2d 648, 656 [“The immediate issue was not the truth of the

matters reported to him but whether he had cause to believe them and, if so,

whether it was reasonable for him to predicate a fear thereon.”].)

Imperfect defense of others, like imperfect self-defense, is not a true

defense, but a shorthand description for a form of voluntary manslaughter. (See

People v. Elmore (2014) 59 Cal.4th 121, 134; Randle, supra, 35 Cal.4th at p. 997

[defendant lacked malice required for murder].) It follows that voluntary

manslaughter arising from the imperfect defense of another is a lesser included

offense of the crime of murder. (See Randle, supra, 35 Cal.4th at p. 1003; see also

People v. Barton (1995) 12 Cal.4th 186, 200-201.) If supported by substantial

evidence, a trial court has the duty to instruct on a lesser included offense.

(People v. Duff (2014) 58 Cal.4th 527, 561.) “The duty applies whenever there is

evidence in the record from which a reasonable jury could conclude the defendant

is guilty of the lesser, but not the greater, offense. [Citations.] That voluntary


manslaughter is a lesser included offense of murder is undisputed.” (Ibid.)

Ultimately, “[i]t is for the court alone to decide whether the evidence supports

instruction on a lesser included offense.” (People v. Prince (2007) 40 Cal.4th

1179, 1264.)

On appeal, we independently review whether a trial court erroneously failed

to instruct on a lesser included offense. (People v. Avila (2009) 46 Cal.4th 680,

705.) We conclude that the trial court did not err in refusing this instruction

because there was no evidence that defendant actually, but unreasonably, believed

Facundo presented an imminent threat of physical harm to Charlene when

defendant killed him. (See Randle, supra, 35 Cal.4th at p. 997.)

By defendant‟s own account (established through both his trial testimony

and the recorded statement), he was paid by Charlie and Elena to “take care of the

problem” and kill Facundo, leading to the inescapable conclusion that he had

planned all along to kill him regardless of any imminent danger or threat Facundo

posed. This conclusion is bolstered by evidence that on the day of the murder,

defendant appeared angry because of Charlene‟s black eye and repeatedly asked

Charlene whether Facundo would be coming by later because defendant wanted to

“meet him and talk to him.” When Facundo came to Charlie and Elena‟s house to

pick up Charlene, defendant asked if they would drop off him and their cousin,

Raymond Guzman, at the house of Raymond‟s sister, Pat Perez, which they did.

Rather than showing any apprehension, much less fear, of Facundo, defendant‟s

actions demonstrated he wanted to be physically near Facundo and have access to

him. Moreover, shortly before defendant struggled with Facundo and fatally


stabbed him, there was no evidence suggesting that the victim had acted in any

threatening manner.13

Even without considering whether defendant was paid to kill Facundo, the

evidence strongly supports that defendant killed him mainly because of Facundo‟s

past physical abuse of Charlene. Defendant testified that Facundo “deserved it.

He had it coming . . . [¶] For beating up my cousin.” He also admitted he

“couldn‟t wait to kill him. I didn‟t want to wait,” and that he “could have done it

later if I wanted to.” Defendant‟s plan was “to stab him in the heart.” “The only

plan I had was to kill him. It didn‟t matter where.” Facundo‟s past abuse of

Charlene and his threats to her were unaccompanied by any intention or ability to

carry them out at the time he was killed; thus, they are insufficient to show an

imminent threat justifying an instruction on manslaughter as a lesser included

offense. (See People v. Humphrey (1996) 13 Cal.4th 1073, 1094-1095.)

Indeed, the record is replete with defendant‟s admissions revealing his

brazen and single-minded determination to kill Facundo for physically abusing

Charlene. In defendant‟s own words, “[t]he only plan I had was to kill him” and

he “could have done it later if I wanted to.” In short, there was no evidence that

defendant actually believed — whether reasonably or unreasonably — that he

faced an imminent peril that he had to “ „ “instantly deal[] with” ‟ ” when he killed

Facundo. (In re Christian S., supra, 7 Cal.4th at p. 783; see People v. Michaels

(2002) 28 Cal.4th 486, 530-531.) Thus, his claim based on imperfect defense of

another necessarily fails.


Though Facundo apparently smoked PCP both before picking up Charlene

and on the drive to Pat‟s house, there is no indication that he either became
violent, as defendant suggests, or was incapacitated, as the People assert, due to
his smoking PCP that day.


Even if defendant exaggerated his own culpability in order to receive the

death penalty, there is no other evidence suggesting that the imperfect defense of

another was otherwise plausible. There is nothing to suggest his so-called

“misguided effort” to protect Charlene from Facundo was based on anything other

than his desire to punish Facundo for his past abuse. (See People v. Mendoza

(2000) 24 Cal.4th 130, 174 [“Speculation is insufficient to require the giving of an

instruction on a lesser included offense.”].)

b. Necessity

Defendant‟s related claim that the trial court erred in refusing to instruct on

the defense of necessity (CALJIC No. 4.43) is equally meritless. “The defense of

necessity generally recognizes that „ “the harm or evil sought to be avoided by [the

defendant‟s] conduct is greater than that sought to be prevented by the law

defining the offense charged.” ‟ [Citation.] The defendant, who must have

possessed a reasonable belief that his or her action was justified, bears the burden

of proffering evidence of the existence of an emergency situation involving the

imminence of greater harm that the illegal act seeks to prevent. [Citations.]”

(People v. Coffman & Marlow (2004) 34 Cal.4th 1, 100.) “To justify an

instruction on the defense of necessity, there must be evidence sufficient to

establish that defendant violated the law (1) to prevent a significant evil, (2) with

no adequate alternative, (3) without creating a greater danger than the one avoided,

(4) with a good faith belief in the necessity, (5) with such belief being objectively

reasonable, and (6) under circumstances in which he did not substantially

contribute to the emergency.” (People v. Pepper (1996) 41 Cal.App.4th 1029,

1035 [deciding factual predicate of defendant‟s necessity defense “insufficient as a

matter of law”]; People v. Verlinde (2002) 100 Cal.App.4th 1146, 1164 [necessity

defense is “ „very limited‟ ” and “ „represents a policy decision not to punish an


individual despite proof of the crime‟ ”].) There was no evidence that defendant

sought to prevent any imminent harm or that he faced any emergency situation

when he killed Facundo.14

3. Trial court’s refusal to admit evidence that defendant’s cousin had

been killed by an abusive boyfriend

During the cross-examination of Elena at the guilt phase, defense counsel

tried to elicit testimony about the murder of Charlie‟s niece (and Charlene and

defendant‟s cousin), Vicki, who was reportedly stabbed and killed by an abusive

boyfriend. Counsel asserted that because of Vicki‟s murder, Elena and Charlie

were afraid that Facundo would kill Charlene and talked to defendant about their

fears, which in turn affected defendant‟s state of mind about the threat he

perceived Facundo posed to Charlene. The trial court, however, responded that

Elena had already admitted that she felt Charlene‟s life was in danger because of

Facundo. Further, the prosecution maintained that because Elena was not present

when Vicki was killed, she lacked personal knowledge about how or why Vicki

was killed.

Though the trial court sustained the prosecution‟s objections based on lack

of foundation and hearsay, defense counsel repeatedly tried to question Elena

about Vicki‟s murder, prompting the court to say: “I think you‟re plowing the

same ground until it‟s now very fine sand. . . . [¶] . . . [Y]ou‟ve described Mr.

Facundo as the despicable, cowardly wife beater that he was, and I think that‟s

enough.” While recognizing defendant‟s argument about the relevance of Elena‟s

state of mind, the trial court ultimately prohibited further questions about Vicki‟s


Defendant makes similar claims regarding the imperfect defense of others

and the necessity defense with respect to the Apodaca murder, which we do not
discuss given our reversal of the judgment of conviction.


murder under Evidence Code section 352. On appeal, defendant claims that the

trial court‟s exclusion of this evidence violated his constitutional right to present a

defense, i.e., the imperfect defense of another. (See U.S. Const., 5th, 6th, 8th, 14th


We conclude the trial court did not abuse its discretion in limiting the

questioning about Vicki‟s murder. (See People v. Minifie (1996) 13 Cal.4th 1055,

1070 [exclusion of evidence under Evid. Code § 352 subject to abuse of discretion

standard].) As noted above, Elena testified that she did not know how or why

Vicki was killed. Further, she stated defendant never brought up Vicki at any

time, including when he admitted to Elena that he had stabbed Facundo with a

knife. In other words, as the Attorney General argues, Elena “was not the

appropriate witness to discuss Vicki‟s death, and the details of Vicki‟s death were

irrelevant and prejudicial because there was no evidence at all that they factored

into Facundo‟s murder.” We conclude that the trial court properly excluded

evidence of Vicki‟s murder under Evidence Code section 352. (See People v.

Minifie, supra, 13 Cal.4th at p. 1071.)

Contrary to defendant‟s suggestion, by prohibiting questions to Elena about

Vicki‟s killing, the trial court did not thereby prevent defendant from presenting a

defense that he had a heightened anxiety that Facundo would kill Charlene. In

fact, the jury heard from defendant himself that Vicki‟s boyfriend had stabbed and

killed her. Though defendant admitted Facundo “deserved to die because he was

beating up” Charlene, defendant did not know whether Charlene and Facundo had

the same kind of relationship as Vicki and her boyfriend. Thus, by his own

admission, defendant made no connection between Facundo‟s murder and Vicki‟s



4. Trial court’s admission of expert testimony from a pathologist who

did not perform autopsies of victims

Relying on Crawford v. Washington (2004) 541 U.S. 36, and its progeny,

defendant claims that the forensic pathologist‟s testimony on the two autopsies

performed by nontestifying pathologists violated his confrontation rights under the

Sixth Amendment. Specifically, defendant maintains that the conclusions in the

autopsy reports were testimonial hearsay, and that the prosecution made no

showing that the two pathologists who conducted the autopsies were unavailable

to testify. He adds that the pathologist‟s surrogate testimony precluded him from

meaningfully testing the nontestifying pathologist‟s “honesty, proficiency, and

methodology.” (Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 321.) We

conclude that we need not decide this claim on the merits because any error was

harmless beyond a reasonable doubt. (See Chapman, supra, 386 U.S. at p. 24.)

At trial, Dr. Eugene Carpenter, Jr., a forensic pathologist who had worked

for the Los Angeles County coroner‟s office for 11 years and had performed over

4,000 autopsies, testified about the autopsies of both Max Facundo and Raul

Apodaca. Dr. Carpenter did not perform or attend either autopsy. Rather, Dr. Eva

Heuser performed the autopsy on Facundo on June 23, 1986, and Dr. Sara Reddy

performed the autopsy on Apodaca on January 25, 1987. Dr. Reddy also testified

and was cross-examined at the preliminary hearings of both defendant and his

codefendant at the time, Jesse Salazar, in 1987. Dr. Heuser and Dr. Reddy had

both retired from the Los Angeles County coroner‟s office at the time of

defendant‟s trial in 1999.

Before testifying, Dr. Carpenter reviewed the autopsy reports on Facundo

and Apodaca, the reports‟ attachments, and related photographs. (The record does

not reflect that either autopsy report was admitted into evidence.) Dr. Carpenter

testified that Facundo suffered at least eight stab wounds, mostly to the chest area


and the lungs. He explained that Facundo‟s pulmonary artery, aorta, and liver

were all injured and that “[e]ach of these injuries is a lethal wound. Each one is

capable of causing death to a body within a minute or so.” After reviewing the

autopsy report, photographs, and items contained in the report, Dr. Carpenter

testified he was “in agreement” with Dr. Heuser‟s conclusion that Facundo‟s cause

of death was stab wounds.

As an initial matter, we note that defendant has not forfeited this issue by

failing to object at trial to Dr. Carpenter‟s testimony, and the Attorney General

does not argue otherwise. (See People v. Harris (2013) 57 Cal.4th 804, 839-840.)

In Crawford, the high court held that a criminal defendant has the Sixth

Amendment right to confront and cross-examine any witness who offers a

testimonial out-of-court statement against the defendant. (Crawford, supra, 541

U.S. at pp. 50-56.) Thereafter, with certain exceptions, the high court extended

Crawford‟s holding to forensic reports available for use at trial (Melendez-Diaz v.

Massachusetts, supra, 557 U.S. 305), and laboratory reports (Bullcoming v. New

Mexico (2011) 564 U.S. __ [131 S.Ct. 2705]). (See People v. Dungo (2012) 55

Cal.4th 608, 617-619 (Dungo) [identifying two critical components — formality

and primary purpose — of testimonial out-of-court statements].)

In Dungo, we explained that statements in an autopsy report describing a

nontestifying pathologist‟s observations about the condition of the victim‟s body

are not testimonial because the “primary purpose” of recording such facts does not

relate to a criminal investigation. (Dungo, supra, 55 Cal.4th at p. 621, italics

omitted.) We also described these statements, which “merely record objective

facts,” as being “less formal than statements setting forth a pathologist‟s expert

conclusions” about the victim‟s cause of death. (Id. at p. 619.) In Dungo, it was

unclear whether the pathologist‟s description of the victim‟s body was based

solely on the autopsy photographs, solely on the nontestifying pathologist‟s


autopsy report, or on a combination of both. (Id. at pp. 615.) Nonetheless,

because the pathologist did not describe the conclusions of the nontestifying

pathologist, we had no occasion to decide “whether such testimony, if it had been

given, would have violated the defendant‟s right to confront” the nontestifying

pathologist. (Id. at p. 619; but see People v. Edwards (2013) 57 Cal.4th 658, 704-


In the present case, Dr. Carpenter gave his own opinions about the causes

of death of Facundo and Apodaca. He testified he “made up my own mind” after

reviewing both the autopsy reports and photographs. Dr. Carpenter underscored

that he “never said that I told the jury what [Drs. Heuser and Reddy] saw and what

they thought. I just read their autopsy report, not their minds.” At the same time,

he also described to the jury these nontestifying pathologists‟ conclusions

regarding Facundo‟s cause of death, including expressing whether he agreed with

these conclusions. (See People v. Edwards, supra, 57 Cal.4th at p. 707.) Dr.

Carpenter explained that he was “in agreement” with “the conclusion by Dr.

Heuser that the cause of death [of Facundo] was as a result of stab wounds.”

Even assuming error, we conclude it was harmless beyond a reasonable

doubt under Chapman, supra, 386 U.S. at page 24. (See People v. Edwards,

supra, 57 Cal.4th at p. 707 [even if testifying pathologist‟s statements about

another pathologist‟s conclusion violated confrontation clause, there was no

prejudice]; see also People v. Capistrano (2014) 59 Cal.4th 830, 874.) Regarding

victim Facundo, because Dr. Carpenter independently agreed with Dr. Heuser‟s

opinions and because neither the cause of death, i.e., stab wounds, nor the source

of the wounds, i.e., a knife, was in dispute at trial, “no prejudice was possible

under any standard.” (People v. Edwards, supra, 57 Cal.4th at p. 707.)

Because we are reversing defendant‟s conviction for the second degree

murder of Apodaca (see, ante, at p. 34), we do not discuss whether Dr. Carpenter‟s


testimony regarding Dr. Reddy‟s findings on Apodaca‟s death was harmless error

with respect to this murder conviction. However, with respect to Facundo‟s

murder and the Spartan Burgers robbery, convictions we are affirming, we

conclude that any error from the admission of Dr. Carpenter‟s testimony was

harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. p. 24.) Dr.

Reddy‟s findings, to which Dr. Carpenter testified, concerned only Apodaca‟s

autopsy. For that reason, the jury‟s guilty verdicts on the Facundo murder and

robbery counts were “ „ “surely unattributable to the error.” ‟ ” (People v. Pearson

(2013) 56 Cal.4th 393, 463.)

5. Trial court’s admission of defendant’s redacted letter to the Los

Angeles County District Attorney

Over defendant‟s objections at both the guilt and penalty phases, the trial

court granted the prosecution‟s request to admit a letter defendant wrote to then

Los Angeles County District Attorney Gil Garcetti in September 1998. In the

letter, defendant admitted he murdered both Apodaca and Facundo while “fully

aware of all of my mental faculties” and urged Garcetti to seek the death penalty

against him.

In moving to exclude this letter under Evidence Code section 352, defense

counsel claimed the letter had little to no probative value and was prejudicial and

cumulative to other admitted evidence. The trial court, however, agreed with the

prosecution‟s assertion that the letter “scream[ed] premeditation and deliberation”

and spoke “volumes to his mental state.” It also found defendant‟s letter to be

“probably one of the most literal and coherent letters and eloquent letter, in its

own way, that I‟ve read in a long time.” In the end, although the trial court

concluded the letter was admissible, it granted defense counsel‟s request to redact

certain portions for the jury. At the guilt phase, the trial court redacted those

portions that discussed defendant‟s lack of remorse for the murders, two other


murders defendant allegedly committed in prison and got away with, his intent to

kill in prison if he did not get the death penalty, and defendant‟s self-

representation. Over defendant‟s renewed objection at the penalty phase, the court

also admitted the letter into evidence, but redacted only that portion discussing

defendant‟s two other murders that he “didn‟t get caught for.”

Despite the redactions, defense counsel argued the letter still contained

objectionable statements, most notably the following: “If I had the opportunity to

do it over I would cut off their heads and send „em both to their family!”; “both of

those cowards deserved what they got: death and an early expiration in life, to say

the least!”; “the two (2) cowards that I am proud of taking out”; characterizing the

murders as “all a big game, and the only reason I lost part of the game, is because I

got caught, that‟s all”; referring to his gang moniker “El Killer De Varrio White

Fence.” Ultimately, the trial court agreed with the prosecution‟s argument that

statements that the victims got what they deserved and that defendant would do it

again, were relevant to undercut defendant‟s claim that the killings were based on

provocation or imperfect defense of others. The court later agreed with the

prosecution that the “cut off their heads” statement was relevant to prove

premeditation and to rebut any argument that either murder was voluntary


On appeal, defendant renews his claim that this “highly inflammatory”

letter to Garcetti should have been excluded altogether under Evidence Code

section 352 and that the trial court abused its discretion in failing to so. In arguing

that the letter was “riddled with hyperbole, untruths, and deliberately provocative

and offensive statements designed to appeal to jurors‟ fears and emotions,”

defendant claims that his expressed desire to receive the death penalty made the

letter unreliable and thus diminished its probative value. (See People v. Coleman

(1985) 38 Cal.3d 69, 85 [victim‟s letter deemed unreliable because she had “a


motive to misrepresent or exaggerate the conduct of the accused”]; see also People

v. Maury (2003) 30 Cal.4th 342, 433 [polygraph evidence‟s doubtful reliability

outweighed any probative value].) He asserts that the admission of this letter

violated his constitutional rights to a fair trial and to a fair and reliable sentencing.

(U.S. Const., 5th, 6th, 8th & 14th Amends.)

A trial court‟s ruling under Evidence Code section 352 is reviewed under

the deferential abuse of discretion standard. (People v. Kipp (2001) 26 Cal.4th

1100, 1121.) “[A] court need not expressly weigh prejudice against probative

value or even expressly state that it has done so,” if the record shows the court was

aware of its duty and undertook such Evidence Code section 352 balancing.

(People v. Taylor (2001) 26 Cal.4th 1155, 1169.) We conclude that even if the

court abused its discretion in admitting the letter, any error was harmless. With

regard to the Facundo murder and Spartan Burgers robbery, both convictions that

we shall affirm, there was overwhelming evidence — apart from this letter — that

defendant committed these crimes. (See ante, pp. 2-6, 9.)

6. Prosecution’s impeachment of defendant with the Rothenberg

murder conviction

As discussed earlier, we conclude that defendant‟s 1971 conviction for the

Rothenberg murder was obtained in violation of the double jeopardy clause,

requiring us to set aside the prior murder special-circumstance finding. (See ante,

at p. 26.) In a separate claim, defendant asserts that because this constitutionally

invalid conviction was also used to impeach defendant‟s trial testimony, his

murder convictions should be reversed as well. Defendant talks globally about

reversals of his “convictions,” which include robbery, but he focuses mainly on

the impeachment‟s impact on his convictions for murder.

After the trial court confirmed with defendant that he wished to testify in

his defense against the advice of counsel, defense counsel moved to “sanitize the


30-year-old murder conviction” of Rothenberg right after defendant took the

stand. Defense counsel argued that the 1971 murder was extremely remote in time

(and committed when defendant was just 16 years old), not probative of a

witness‟s credibility, and highly prejudicial because defendant was on trial for two

other murders. Based on these reasons, counsel urged the court to preclude this

impeachment evidence under Evidence Code section 352. Defense counsel also

added that there were other “numerous crimes where they can show [defendant‟s]

readiness to do evil without having to say he has a prior murder conviction.” In

denying defendant‟s request to exclude the prior conviction, the trial court

explained, among other things, that murder is a crime of moral turpitude, and that

the prior murder was not remote in time because of defendant‟s “pattern of

continued criminal conduct.” On cross-examination, the prosecution impeached

defendant with the 1971 second degree murder conviction, along with a number of

other felony convictions.

On appeal, defendant claims the prosecution improperly used this

constitutionally invalid murder conviction to impeach his credibility, and that, in

any event, the conviction should have been excluded under Evidence Code section

352. As with defendant‟s claim regarding the prior murder special circumstance,

the Attorney General asserts that defendant has forfeited the double jeopardy issue

by failing to object to the prior conviction specifically on that ground. As before,

we reach the merits of this claim.

Turning to the merits, we agree with defendant that there was error: “We

are convinced that the use of a constitutionally invalid prior conviction to impeach

testimonial credibility is improper, and that to allow such impeachment is error

under California law. . . . We think it equally clear that the utilization of such a

conviction, at the trial of a subsequent offense, for any purpose leading to a

conviction for such subsequent offense, is violative of the due process clause of


the Fourteenth Amendment.” (People v. Coffey (1967) 67 Cal.2d 204, 218-219.)

To determine whether we should reverse the remaining murder conviction,

the issue is what, if any, prejudice defendant suffered as a result of the error.

Because this error is of “federal constitutional dimension” (People v. Coffey,

supra, 67 Cal.2d at p. 218), the beyond a reasonable doubt standard of prejudice

under Chapman, supra, 386 U.S. 18, applies. (People v. Coffey, supra, 67 Cal.2d

at pp. 218-219 [error is not “per se prejudicial”].) In this context, the Chapman

“rule requires reversal if, upon an examination of the entire record, it appears

reasonably possible that the error might have materially influenced the jury in

arriving at its verdict, and the error must be considered harmless if the likelihood

of material influence is not within the realm of reasonable possibility. In the

circumstances of the instant case, the application of the indicated standard requires

that we direct our attention to defendant‟s courtroom testimony.” (People v.

Coffey, supra, 67 Cal.2d at pp. 219-220.) For reasons that follow, we conclude the

error was harmless.

As noted above, in addition to the invalid Rothenberg murder conviction,

the prosecution impeached defendant with other felony convictions, which

defendant testified consisted of “robberies, murder, burglary and assault with a

deadly weapon.” Specifically, he admitted on the stand — without reference to

any specific underlying facts of the crimes — to the following: a 1977 conviction

for two counts of assault with a deadly weapon; a 1979 conviction for attempted

murder; a 1989 conviction for four counts of robbery; and a 1998 conviction for

robbery. With respect to the Facundo murder charge he was facing, defendant

testified (sometimes emphatically) that he killed the victim. Given defendant‟s

courtroom admissions and his extensive criminal history, we conclude it does not

appear “reasonably possible” that the jury‟s consideration of the additional second


degree murder conviction “materially affected” its decision to convict defendant of

the first degree murder of Facundo. (People v. Coffey, supra, 67 Cal.2d at p. 220.)

Although defendant argues that the prosecution improperly used the

Rothenberg murder conviction to establish his propensity to commit murder, the

trial court instructed the jury to consider defendant‟s prior convictions “only for

the purpose of determining the believability of that witness.” (CALJIC 2.23.) We

presume the jury understood and followed this instruction. (See People v. Homick

(2012) 55 Cal.4th 816, 873.) Likewise, defendant‟s Evidence Code section 352

claim, which is reviewed under the reasonable probability standard for prejudice

(People v. Watson (1956) 46 Cal.2d 818, 836), affords him no relief. Because we

conclude there was no prejudice under the stricter Chapman standard, there can be

no prejudice under the Watson standard.

7. Correction to the abstract of judgment

Defendant contends that the abstract of judgment erroneously lists his

sentence for the Apodaca murder as 25 years to life under the three strikes

sentencing law. This contention (though accurate) is moot because we are

reversing the judgment of conviction. Nonetheless, the abstract of judgment also

indicates that defendant has no credit for time served, which contradicts the

minute order from that sentencing hearing stating defendant was given total credit

for 576 days in custody. On remand, the trial court should make any necessary

corrections regarding defendant‟s custody credits.



For the foregoing reasons, we reverse the judgment of conviction for the

second degree murder of Apodaca, set aside the prior murder and multiple murder

special-circumstance findings, reverse the judgment of death, and remand to the

trial court for resentencing in accordance with this opinion. On remand, the trial

court should consider whether to impose any sentence enhancements that were

originally stayed pending imposition of the death judgment.

In all other respects, the judgment is affirmed.





See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Trujeque

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: May 28, 2015

County: Los Angeles
Judge: Patrick Couwenberg



Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Christina A.
Spaulding, Deputy State Public Defender, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Jaime L. Fuster, Joseph P. Lee and Eric J. Kohm, Deputy Attorneys General,
for Plaintiff and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Christina A. Spaulding
Deputy State Public Defender
1111 Broadway, 10th Floor
Oakland, CA 94607
(510) 267-3300

Eric J. Kohm
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2273


Opinion Information
Date:Docket Number:
Thu, 05/28/2015S083594