IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
Defendant and Appellant.
A jury convicted defendant Alfredo Valencia of the first degree murder of
Roberto Cruz under the special circumstance of robbery murder and with personal
use of a knife. (Pen. Code, §§ 187, 190.2, subd. (a)(17), 12022, subd. (b).)1 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 that sentence. This appeal is
automatic. (§ 1239, subd. (b).) We affirm the judgment.
A. Guilt Phase
During the evening of December 15, 1993, defendant stabbed Roberto Cruz
to death in Cruz’s red Camaro. This is undisputed. The prosecution theory at trial
was that defendant murdered Cruz while robbing him of money Cruz had obtained
earlier that day when he cashed a paycheck. The defense theory at trial was that
All further statutory references are to the Penal Code unless otherwise
defendant did not rob Cruz and that, due to the ingestion of methamphetamine, he
acted in “imperfect self-defense”; he killed Cruz in the actual but unreasonable
belief he had to do so in self-defense. (See In re Christian S. (1994) 7 Cal.4th
1. Prosecution Evidence
Ana Mendoza testified that she worked at 825 North Cypress, an industrial
complex in Orange, California. On December 15, 1993, around 9:30 to 9:40 p.m.,
while she was arriving at work, a man wearing black shorts, a cap, and a black
jacket approached her car and said something in English. The man appeared
normal, and Mendoza could not see him carrying anything. He pointed to a
nearby red car. Mendoza, who does not speak English, could not understand what
he said. The man then left. Although Mendoza could not identify anyone as the
man she encountered, other evidence showed that he was the defendant, and he
had just stabbed Cruz in the red car.
In the early morning hours of December 16, 1993, the police were called to
the same industrial complex. They arrived around 1:45 a.m. and observed Cruz’s
body in the driver’s seat of a red Camaro. The back of the driver’s seat was
broken and swiveled to the right. The seat belt was wrapped around Cruz’s neck
and then went down between his feet. Cruz’s head and left shoulder were on the
rear seat, with his legs and knees on the floorboard. Cruz had bled to death from
multiple knife wounds to his chest, left leg, and neck. One of the wounds entered
the heart. He also had defensive wounds on his hands and arms.
The Camaro’s keys were in the ignition, and a “for sale” sign was displayed
on the front passenger window. The interior of the car was in disarray. Blood was
found throughout the interior, including on the victim’s clothes. A knife with a
three-inch blade was found on the floor. It had belonged to one of defendant’s
neighbors, whose house defendant frequently visited. The knife could have
inflicted the wounds. A wallet, containing the victim’s identification and $52, was
found under the body. The bulb from the car’s dome light was on the rear right
floorboard. Defendant’s left thumbprint was on the bulb. It had been left after the
thumb had come into contact with blood. On the rear floor was a pair of
bloodstained blue jeans containing a watch with “Fred” and “Big C” scratched on
it and a set of keys that opened the garage door of defendant’s home.
Cruz had worked at McKibbon Screenprinting. December 15, 1993, was a
payday. Company records showed that Cruz worked until 3:34 p.m. that day and
received a payroll check for $686.46. Bank records showed that Cruz cashed the
check at 4:10 the same afternoon. Cruz received cash and did not deposit the
money into his account. The balance in his account at that time was $38.
Guillermo Padilla, Cruz’s neighbor, who lived on Oak Street in Orange,
testified that Cruz owned a red Camaro. Between 8:15 and 8:45 the evening that
Cruz was killed, Padilla observed Cruz working on the car. Defendant, known to
him as “Chino,” was with Cruz. Padilla had seen defendant in the neighborhood
several times previously.
Norma Pulido lived with Cruz and others in an apartment on North Oak
Street in Orange. She testified that Cruz owned a red Camaro like the one in
which his body was found. He also always carried a blue backpack to and from
work and routinely wore a pair of gloves. On December 15, 1993, she observed
Cruz working on his car between 7:00 and 9:00 p.m. She saw him again in his
bedroom writing around 9:30 p.m. That was the last time she saw him alive. She
never saw Cruz’s backpack or a large amount of money after that night.
On the seat of the red Camaro, the police found a pair of gloves matching
the description Pulido gave of the gloves Cruz wore. They never found the
backpack or a large sum of money despite searching the car, Cruz’s home, and
defendant’s home. A search of Cruz’s room uncovered no documents or anything
else indicating that Cruz had spent the money from the payroll check.
Defendant and Cruz lived about two-tenths of a mile from each other and
approximately a mile and a half from where Cruz’s body was found. Cruz was 22
years old when he died, was five feet six inches tall, and weighed 144 pounds.
After his death, his blood was examined and found to contain no alcohol,
marijuana, or other drugs. A sample of defendant’s blood was drawn at 10:40
p.m. on December 16, 1993. It contained 240 nanograms of methamphetamine
Defendant was arrested in this matter at 3:10 p.m. on December 16, 1993.
Detective Jorge De Souza of the Orange Police Department and another detective
spoke with him beginning at 5:27 p.m. A long and rambling tape-recorded
interview ensued. During the interview, Detective De Souza observed no unusual
or bizarre behavior on defendant’s part. Defendant was uninjured.
After waiving his constitutional rights and agreeing to talk to the police,
defendant said he knew the victim. He did not know his name but knew he lived
on Oak Street. He called him “Paisan,” which was like a “border brother” or
someone who came from a ranch. Defendant was with Cruz the night Cruz died
because he was interested in buying Cruz’s car. Cruz was asking $700 for it. At
one point, defendant said that he and Cruz had “smoked a joint.” Later, he said he
had smoked one or two joints but took nothing else. He specifically said he did
not “do speed” that night. While being interviewed, defendant said he was
missing his wallet, the key to his garage door, and his watch. Detective De Souza
told him they had found the key and watch, although not the wallet, inside a pair
of pants. Defendant said the pants found in the car were his and identified the
watch and keys as his. He said that the “Big C” scratched on the watch stood for
Chino. At first, he denied knowing anything about a backpack. Later, he said that
“Octavio,” an acquaintance, might have had a backpack in his car, although he did
not know where it was at the time of the interview. Still later, he again denied
knowledge of a backpack.
Defendant admitted driving with Cruz in Cruz’s car that evening but at first
denied stabbing him. Later, after the police confronted him with some of the
evidence, he admitted the stabbing, although even after that he would sometimes
deny it. He agreed that he was uninjured and stated that no one had attacked him
the night before, and he had had no need to defend himself. He said he stabbed
Cruz while alone in Cruz’s car. When asked why he stabbed Cruz, defendant gave
varying accounts. He said that Cruz was a “queer man” and a “faggot” and he,
defendant, “got hypnotized.” He said, “The queer is dead.” Later he said that
Cruz “tried to kill me . . . and I killed him.” He also said that he used “the knife
that he tried to kill me with.” When asked how many times he stabbed Cruz,
defendant responded that he did not know. “I just went off.” He also said, “I
killed him [because] we got to survive.”
At first defendant said that Cruz had produced the knife, but then he said
that he had brought it himself. He said he got the knife from a house near
“Orangegrove and Handy” (presumably defendant’s neighbor whose house
defendant frequently visited). He said, “I’ve been hypnotized now . . . to kill and
that was my first victim last night.” He also said that “there was some . . . girl had
the light the video light right there on the street.” She was “shooting a video.” He
denied taking Cruz’s wallet or any other property. He also said “we have to take
our stand in America . . . [a]gainst the dope pushers against the fags against the
diseases.” That, he said, was what he had done the night before.
Defendant said he talked to a woman on Cypress (presumably Ana
Mendoza). At that point, he was running from someone “who was attacking me.”
“I was running for my life.” He knocked on the woman’s car window and asked
for a ride. She said no, so he “took off.” He left in his shorts, leaving his pants
behind. The pants were covered with Cruz’s blood. Defendant reiterated that he
had stabbed Cruz but at this point said he did not know why. He said there had
been no sex act between him and Cruz, and that one was not going to happen.
When asked why he called Cruz a “queer,” defendant replied it was because “he
was gonna attack me.” Defendant said he had brought the knife with him to stab
Cruz, but he had no plan. He did it just “[b]y impulse.” When asked how it could
just be an impulse, he responded that he did not know because “it was telling me
to do it.” Voices were telling him to do it.
Towards the end of the interview, defendant summarized what had
happened. He possessed the knife intending to stab or kill Cruz. He got into the
car with Cruz and they drove to Cypress Street, where he stabbed Cruz. He took
off his pants because they were bloody and left wearing his jogging shorts. At this
point, defendant said that Cruz “didn’t attack me.” He agreed that Cruz did not do
anything to him. He said he stabbed Cruz “to survive,” and it was his “duty.”
2. Defense Evidence
Defendant presented evidence suggesting that Cruz might have sent the
money from his paycheck to his family in Mexico and suggesting other reasons
the money might have disappeared. He also presented evidence that Cruz did not
routinely carry the backpack.
Max Schneider, an expert on chemical dependency, testified regarding the
effect methamphetamine use might have on a person. Among other things, it can
cause paranoia. Defendant presented evidence that he had often used heroin and
methamphetamine. Several witnesses testified regarding defendant’s strange
behavior during the time period leading up to Cruz’s killing. Jerry Valencia,
defendant’s brother, testified that the night of the killing, defendant and he smoked
a joint of marijuana and drank beer with Cruz. Jerry did not see Cruz smoke
B. Penalty Phase
1. Prosecution Evidence
The prosecution presented evidence that defendant committed the following
crimes, some of which resulted in felony convictions.
On December 20, 1978, defendant and others kicked in an apartment door
in Orange, robbed three men of their wallets at gunpoint, and hit one of the victims
in the head with a gun. Defendant confessed to his involvement. He said he took
the wallets but did not personally hit anyone or kick in the door.
On March 9, 1979, defendant and three or four others assaulted two men in
Orange who were sitting in one of the victim’s 1965 Mustang. They stole a
paycheck and the car. For this incident, defendant was convicted of aggravated
On June 29, 1981, defendant, wielding a gun, robbed a man who was
standing at a bar bathroom urinal in Santa Ana of money from his wallet.
On September 3, 1982, defendant robbed a gas station attendant at gunpoint
in Fullerton, taking over $1,000 from a safe. For this incident, defendant was
convicted of robbery with use of a firearm.
On September 22, 1982, defendant robbed a man and a woman at gunpoint
in a liquor store in Garden Grove. He took about $300 to $500 from a cash
register. For this incident, defendant was convicted of robbery with use of a
In rebuttal, the prosecution presented evidence that when defendant was
arrested he had no drugs on his person, and a search of his home the same day
uncovered no evidence of drug usage.
On September 23, 1982, defendant robbed a gas station attendant in Garden
Grove at gunpoint of more than $100.
On September 26, 1982, defendant robbed a grocery store clerk in
Anaheim. As he was leaving the area, he threatened to kill or shoot a man who
had witnessed the crime. For this incident, defendant was convicted of robbery.
On September 27, 1982, defendant robbed a gas station attendant in
Anaheim at gunpoint of around $500. For this incident, defendant was convicted
of robbery with use of a firearm.
On October 1, 1982, defendant robbed a gas station attendant in Anaheim at
gunpoint of around $200. For this incident, defendant was convicted of robbery
with use of a firearm.
On October 2, 1982, defendant robbed a liquor store manager in Orange at
gunpoint of around $500. For this incident, defendant was convicted of robbery
with use of a firearm.
On October 9, 1982, defendant robbed a gas station attendant in Anaheim at
gunpoint of around $600. For this incident, defendant was convicted of robbery
with use of a firearm.
On October 21, 1982, defendant robbed a clerk at a 7-Eleven store in
Orange at gunpoint of money from a cash register.
Defendant was convicted of robbing Kenneth Eckman on October 29, 1982.
Defendant was convicted of grand theft from the person committed on
August 7, 1988.
On August 13, 1988, defendant assaulted two men in a residential hotel
with an aluminum baseball bat, injuring both men.
On August 25, 1988, defendant robbed a man in Santa Ana at knifepoint of
money and stole his car.
On October 9, 1991, defendant, holding a baseball bat, and another person,
holding a gun, approached a man in a truck in Santa Ana and forced him to drive
to a nearby house, where they robbed him of his wallet, which contained $252.
Roberto Cruz’s parents, Juana and Martin Cruz, testified about their son
and his background, and the impact his death had on them.
2. Defense Evidence
Defendant presented evidence in mitigation from many lay witnesses and
one expert. As defendant summarizes in his appellate brief, “the layperson
testimony ranged from generalized testimony from [defendant’s] Little League
coach, neighbors, young niece and nephew and brother-in-law regarding his good
natured demeanor, team spirit, generosity and love for others to testimony from his
family and former girlfriend regarding his descent into drug addiction.
[Defendant’s] mother, sister and brother provided additional details to supplement
their guilt phase testimony regarding [defendant’s] mental deterioration after he
became addicted to methamphetamine. The Valencia family members also
described their painful recollections of physical abuse inflicted upon them, and
[defendant], by [defendant’s] father.”
Dr. George Woods, a psychiatrist specializing in chemical dependency
treatment and forensic psychiatry, testified generally regarding defendant’s drug
addiction. In Dr. Woods’s professional opinion, defendant “was suffering from an
amphetamine psychosis at the time of the crime.”
A. Guilt Issues
1. Alleged Prosecutorial Misconduct
Defendant contends the prosecutor engaged in prejudicial misconduct
“from the starting gate to the finish line” of the trial.3
He first contends that the prosecutor improperly “cast aspersions upon
defense counsel and witnesses.” The first act allegedly doing so occurred during
jury voir dire. In questioning the prospective jurors about the death penalty,
defense counsel stated, “The law says you do not have to return a verdict for the
death penalty unless you feel that that’s necessary and appropriate.” The
prosecutor objected that the statement misstated the law. The court overruled the
objection even though it noted that the statement “wasn’t exactly precise.” Later,
when it was the prosecutor’s turn to question the jurors, he said, “I’m not saying
Mr. Chaparro [defense counsel] would intentionally misstate anything, but
obviously his view of the facts and his view of the law differs from mine or we
With respect to this and most other claims on appeal, defendant argues that
the asserted error or misconduct infringed various of his constitutional rights. He
generally failed to assert some or all of the constitutional arguments he now
advances. “In each instance, unless otherwise indicated, it appears that either
(1) the appellate claim is of a kind (e.g., failure to instruct sua sponte; erroneous
instruction affecting defendant’s substantial rights) that required no trial court
action by the defendant to preserve it, or (2) the new arguments do not invoke
facts or legal standards different from those the trial court itself was asked to
apply, but merely assert that the trial court’s act or omission, insofar as wrong for
the reasons actually presented to that court, had the additional legal consequence
of violating the Constitution. To that extent, defendant’s new constitutional
arguments are not forfeited on appeal. [Citations.]
“In the latter instance, of course, rejection, on the merits, of a claim that the
trial court erred on the issue actually before that court necessarily leads to
rejection of the newly applied constitutional ‘gloss’ as well. No separate
constitutional discussion is required in such cases, and we therefore provide
none.” (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.)
wouldn’t be here. . . . Mr. Chaparro, and maybe mistakenly, said it’s up to you to
determine whether or not the death penalty is necessary and appropriate. That’s
not what the law says. The law says in weighing the various circumstances, you
determine under the relevant evidence which penalty is justified and appropriate.
Which penalty is justified. Not necessary. It’s never necessary to execute anyone.
We would never be able to prove it’s necessary to impose the death penalty. The
question is whether that penalty is justified under the evidence, whether the
aggravating factors substantially outweigh the mitigating factors so that the
appropriate penalty is the death penalty.” Defense counsel objected that the
statement “does misstate — it’s incomplete.” The court overruled the objection.
Defendant contends that the prosecutor “cleverly engaged in the ‘rhetorical
device’ of ‘paraleipsis’ — stating one thing but ‘suggesting exactly the opposite’
. . . to plant the first suggestion that defense counsel would be deceptive.” (See
People v. Wrest (1992) 3 Cal.4th 1088, 1107.) However, he did not object on that
basis at trial. “As a general rule a defendant may not complain on appeal of
prosecutorial misconduct unless in a timely fashion — and on the same ground —
the defendant made an assignment of misconduct and requested that the jury be
admonished to disregard the impropriety.” (People v. Samayoa (1997) 15 Cal.4th
795, 841.) Defendant’s only objection to these comments was that the prosecutor
misstated the law. Accordingly, only that objection is cognizable on appeal.
Defendant does not now argue that the prosecutor misstated the applicable law. In
fact, the prosecutor’s statement of the law was more accurate than defense
counsel’s. (See People v. Brown (1985) 40 Cal.3d 512, 541-544.) As the
prosecutor properly noted, no requirement exists that the death penalty be
“necessary.” Even if the issue regarding paraleipsis were cognizable, in the
context in which the prosecutor’s comments arose, we see no impropriety. It was
appropriate for the prosecutor to correct defense counsel’s inaccurate description
of the law while emphasizing he was not accusing counsel of being deliberately
Next, defendant complains that, during the direct examination of a
prosecution witness, the prosecutor stated in front of the jury, “Your honor, I had
one other area I wanted to go in, but I think the defense wants a 402 hearing before
I ask the questions.” Defense counsel asked to approach the bench, and a
conference outside the jury’s presence ensued. Defense counsel objected that the
prosecutor’s reference to a “402 hearing” was “basically telling the jurors that he
wants to put in some evidence but the defense is trying to keep it out. That’s
improper, that’s unethical.” He moved for a mistrial. The court denied a mistrial
but instructed the attorneys “not to indicate that one party or the other is objecting
to the next line of questioning.” The prosecutor agreed not to do so in future. He
also explained that he made the comment because defense counsel had told him he
would object to certain evidence and would want the hearing. He had decided not
to ask questions and elicit an objection but instead to explain to the court that a
hearing would be needed before he could continue. The court and parties then
held the hearing that defense counsel had wanted.
Defendant argues that using the term “402 hearing” — obviously a
reference to Evidence Code section 402, which provides for a hearing outside the
jury’s presence on the admissibility of evidence — was another example of the
prosecutor’s denigrating of defense counsel. We disagree. As the prosecutor
noted, it is unlikely the jurors knew what a “402 hearing” was. Additionally, what
the prosecutor said was accurate, for defense counsel did want a hearing, and the
comment cast no aspersion on defense counsel. It is not, and should not be, a
secret to juries that rules exist for the presentation of evidence, and that parties
sometimes object to the admission of evidence. If the prosecutor had simply asked
the questions and defense counsel had objected, the jury would know the
defendant was trying to exclude evidence. The reverse occurs when the defense
asks questions and the prosecutor objects. This process is not inherently
prejudicial. The prosecutor did not again suggest that the defense would be
objecting to evidence after the court instructed him not to do so. We see no
Defendant next complains of some of the prosecutor’s cross-examination of
defense witnesses, especially of defendant’s siblings. The prosecutor questioned
some of these witnesses in detail regarding how many times they had spoken with
members of the defense team. Defendant complains that this cross-examination
“improperly created the illusion that the defense had scripted and rehearsed their
witnesses and that the witnesses had as a result fabricated new information for
their testimony.” The Attorney General argues that some of the current
complaints are not cognizable on appeal because defendant did not object at trial.
We disagree. After reading the entire record, we believe defendant adequately
objected to the comments on the ground asserted on appeal.
But we also we see no misconduct. The prosecutor asked legitimate
questions going to the witnesses’ credibility. As he did at trial, defendant
complains that asking about conversations is different from asking about
substantive interviews regarding the case. He claims that the prosecutor’s
“strategy intentionally blurred the distinctions between contacts during which the
witness’s personal testimony was discussed, and contacts that were nothing more
than a reminder call about an appointment or court appearance.” However, as the
trial court repeatedly noted in response to the argument at trial, this is what
redirect examination is for. If one party believes that questions on cross-
examination leave the jury with an incorrect impression, it can ask clarifying
questions on redirect examination. In the same way, if an attorney believes
questions on direct examination may have been incomplete or misleading, the
attorney can explore the topic on cross-examination. That process occurred here.
On redirect examination, defense counsel questioned the witnesses further about
the nature of their conversations with the defense team. Defendant asserts that the
trial court “barred defense counsel from using redirect examination to clarify the
nature of each contact with the challenged witnesses,” but the record does not
support the assertion. We have examined all of defendant’s specific complaints
regarding the prosecutor’s cross-examination of the witnesses and find no
impropriety.4 Sometimes the prosecutor cross-examined witnesses vigorously, but
the trial court maintained control and permitted defendant to ask clarifying
questions on redirect examination.
Defendant contends the prosecutor committed misconduct during his guilt
phase argument to the jury. First, he complains that the prosecutor continued to
cast aspersions on defense counsel and witnesses. Essentially, he complains that
the prosecutor argued, over objection, that the number of times the witnesses
spoke with members of the defense team meant that the witnesses must have been
coached. We have reviewed the comments complained of and see no impropriety.
The prosecutor was entitled to argue his interpretation of the evidence, just as
defendant was entitled to argue his interpretation of that same evidence. “[T]he
prosecutor has a wide-ranging right to discuss the case in closing argument. He
has the right to fully state his views as to what the evidence shows and to urge
whatever conclusions he deems proper. Opposing counsel may not complain on
appeal if the reasoning is faulty or the deductions are illogical because these are
For example, the prosecutor began his cross-examination of one of
defendant’s brothers by asking, “Mr. Valencia, sir, isn’t it true that you’re lying
here today in order to assist your brother in the defense of his case?” The witness
responded that it was not true. Although the question was vigorous, it was
directed to explore possible bias in the witness, a proper topic of cross-
matters for the jury to determine. [Citation.] The prosecutor may not, however,
argue facts or inferences not based on the evidence presented.” (People v. Lewis
(1990) 50 Cal.3d 262, 283; see also People v. Cash (2002) 28 Cal.4th 703, 732.)
The comments complained of come within this wide range of permissible
Defendant also complains that the prosecutor stated at one point that the
defendant “has had a fair trial. He has had two competent attorneys who were
representing him. They were entitled to present any witnesses they wanted over
the course of the last month.” Defendant objected and later moved for a mistrial
due to these comments. The court overruled the objection and denied the mistrial
motion. As he did at trial, defendant argues the argument was incorrect because
the defense was not allowed to present any witnesses they wanted due to certain
evidentiary rulings. Although the prosecutor’s statement was not literally correct,
its significant gist — that defendant had received a fair trial represented by
competent counsel who were allowed to present their case — was correct.
Reasonably implicit in the statement was that the defense was entitled to present
any witnesses it wanted consistent with the rules of evidence. The jury was not
misled in any significant way that prejudiced defendant.
On another occasion, over objection, the prosecutor argued that “it seems
like the mental defense that they’re using is either intoxication, that he was under
the influence of methamphetamine, which they haven’t really shown us, or,
number two, that he was paranoid, that he had some type of mental disease, mental
defect, or mental disorder, which, again, they haven’t shown us.” Defendant
claims that this argument misstated the evidence. He notes that the evidence
showed that blood drawn from him after his arrest tested positive for
methamphetamine and thus claims there was evidence he was under the influence
of methamphetamine. He also argues that other evidence supported the defense
case. However, defendant was arrested some 17 hours or so after the killing. The
evidence showed that he took methamphetamine some time before he was
arrested. But the prosecutor could at least argue that there was no evidence he was
under the influence of methamphetamine at the time of the killing, which is what
matters. Indeed, although defendant told the police that he smoked marijuana the
night of the killing, he specifically denied using methamphetamine. The overall
evidence was fully consistent with the prosecutor’s theory of the case, which was
that defendant murdered Cruz to obtain money to support his drug habit, then used
the money to buy and consume the methamphetamine that was in his system when
arrested. Whether or not defendant had shown that he was under the influence of
methamphetamine or was paranoid when he killed Cruz was certainly open to
debate. The prosecutor was entitled to argue defendant had not shown these facts;
defense counsel was entitled to argue the opposite. The comments came within
the wide range of permissible discussion of the evidence.
Defendant also contends the court erred in denying his new trial motion due
to the alleged misconduct. We disagree. Because the prosecutor engaged in no
misconduct, the court acted within its discretion in denying the new trial motion.
(People v. Seaton (2001) 26 Cal.4th 598, 693.)
2. Exclusion of Defense Evidence
Defendant sought to elicit testimony from three witnesses that on the day he
died, Cruz said that he wanted to have sex that night. Specifically, defense
counsel offered testimony from defendant’s brother, Jerry Valencia, that Cruz used
the Spanish word “cojer,” meaning “getting some,” i.e., sex; and from two of
Cruz’s coworkers who would testify that at work that day Cruz said to them
something like “esta noche come pancho,” which, defense counsel stated, meant
“in the vernacular that this night he was going to score with a woman.”
Defendant argued that the evidence was relevant to show that Cruz might
have made similar comments to defendant before defendant stabbed him and that
“if [defendant] was on methamphetamine or was on a methamphetamine
psychosis, he could easily misinterpret the information given to him and react
accordingly.” The evidence, defendant argued, “would tend to prove
circumstantially that [defendant] possibly misunderstood Roberto Cruz’s
statement and that’s why he panicked and that’s why the killing occurred.” He
also argued the testimony from Jerry Valencia was relevant to rebut suggestions
the prosecutor made in cross-examination that the witness had not spoken with
Cruz. The prosecutor objected on hearsay grounds and on the ground that the
evidence was more prejudicial than probative under Evidence Code section 352.
After hearing arguments from both sides and reviewing a trial brief defendant
submitted on the question, the court sustained the objection.
Defendant contends the court erred in excluding the evidence. He argues it
was admissible for a nonhearsay purpose — as circumstantial evidence that Cruz
made similar comments to him later that same day — or under the state-of-mind
exception to the hearsay rule. (Evid. Code, § 1250.) We may assume for present
purposes that the hearsay rule did not preclude admission of this evidence, for the
court had discretion to exclude the evidence for another reason. Its prejudicial
effect substantially outweighed its probative value. “In general, the trial court is
vested with wide discretion in determining relevance and in weighing the
prejudicial effect of proffered evidence against its probative value. Its rulings will
not be overturned on appeal in the absence of an abuse of that discretion.
[Citations.] This discretion is not, however, unlimited, especially when its
exercise hampers the ability of the defense to present evidence.” (People v.
Cooper (1991) 53 Cal.3d 771, 816.) We see no abuse of discretion in this case.
In light of the rest of the evidence, admitting this evidence could have
confused the jury regarding how to consider it. Neither defendant’s statement to
the police nor other evidence supported the inference defendant urged at trial.
Defense counsel’s offer of proof said that Cruz was interested in sex with a
woman, not with a man. Although defendant occasionally said to the police that
Cruz was a “queer” or a “fag,” he never said that Cruz had made any sexual
overtures towards him or that he stabbed Cruz in response to any such overtures.
Indeed, he specifically denied that any sex act had occurred between himself and
Cruz and said one was not going to happen. Defense counsel argued that the
evidence would circumstantially prove that defendant may have “misunderstood
Roberto Cruz’s statement,” but defendant never claimed to the police that Cruz
had made any statement regarding sex that he could have misunderstood.
Additionally, although one who kills in the unreasonable but actual belief in the
need for self-defense is guilty of manslaughter rather than murder (People v.
Blakeley (2000) 23 Cal.4th 82, 92),5 the belief must be in the need to defend
against imminent danger “to life or great bodily injury.” (In re Christian S., supra,
7 Cal.4th at p. 783; see People v. Humphrey (1996) 13 Cal.4th 1073, 1082.)
Defendant did not testify at trial, choosing instead to rely on his statement to the
police and other evidence. But his statement said little suggesting he believed he
had to stab Cruz to death to defend against imminent death or great bodily injury.
More importantly regarding the issue here, mere sexual overtures would not alone
suffice to support a perfect or imperfect self-defense claim.
In Blakeley, we held that in future cases, the crime would be voluntary
manslaughter, but for killings like this one that predated the decision, the crime
would be involuntary manslaughter. (People v. Blakeley, supra, 23 Cal.4th at p.
Under the circumstances, the trial court had discretion to conclude that the
prejudicial effect of the proffered evidence — primarily by confusing the issues —
substantially outweighed any probative value it may have had. We see no error.
3. Jury Instructions
Defendant contends the court made several instructional errors.
First, defendant contends the court erred in instructing the jury on perfect as
well as imperfect self-defense. His theory at trial was that he killed Cruz in the
unreasonable belief he had to do so in self-defense. This theory is called
“imperfect self-defense,” which makes the crime manslaughter because in that
situation the defendant is deemed to have acted without malice. (In re Christian
S., supra, 7 Cal.4th at p. 771.) Because defendant did not claim his belief was
reasonable, he did not assert perfect self-defense, which would have been
completely exonerating. For this reason, he asked the trial court to instruct the
jury on imperfect but not perfect self-defense. After considerable discussion
among the court and parties as to how the court should do this, the court ultimately
instructed the jury on the elements of both perfect and imperfect self-defense. It
also explained the difference between the two theories.
The instructions included that a “person who kills another person in the
actual but unreasonable belief in the necessity to defend against imminent peril to
life or great bodily injury kills unlawfully but does not harbor malice aforethought
and is not guilty of murder. This would be so even though a reasonable person in
the same situation, seeing and knowing the same facts, would not have had the
same belief. Such an actual but unreasonable belief is not a defense to the crime
of voluntary or involuntary manslaughter.” (Italics added.) Later, the court
explained, “It is lawful for a person who is being assaulted to defend himself from
attack if, as a reasonable person, he has grounds for believing and does believe
that bodily injury is about to be inflicted upon him.” It went on to explain when
and how much force a person may use in such circumstances.
After reading all of the instructions, the court reiterated the difference
between perfect and imperfect self-defense. It explained that “[i]t is lawful for a
person who is assaulted by deadly force or by force likely to inflict great bodily
injury to defend himself by the use of deadly force. If a jury finds that this
instruction applies, then the taking of life is lawful or justifiable.” It explained
which of the written instructions the jury would receive governed “this type of
self-defense.” It then said, “there is a second type of self-defense. Actual but
unreasonable belief self-defense.” It explained which of the written instructions
governed this second type of self-defense. It want on to state, “If a jury finds that
this instruction applies, the taking of life is deemed unlawful; however, since
malice aforethought is negated, the unlawful killing cannot be murder. That’s the
distinction between those two types of self-defense.” It pointed to differences in
the written instructions between the two types of self-defense, and specifically
noted that perfect self-defense used a reasonable person standard and imperfect
self-defense involved an “unreasonable belief.” It also explained, “By making this
effort to clarify this area, I am not trying to highlight the instructions or to tell you
that these instructions are applicable or not applicable. It is for you, the jury, to
determine the facts and apply the appropriate laws.”
Defendant claims the court should not have said anything to the jury
regarding perfect self-defense because he was not relying on this theory and no
evidence supported it. He notes that “ ‘[i]t is error to give an instruction which,
while correctly stating a principle of law, has no application to the facts of the
case’ ” (quoting People v. Guiton (1993) 4 Cal.4th 1116, 1129), and asserts the
jury might have “misunders[tood] the combined instructions as requiring a finding
that [his] actions would have been lawful under standards of objective
reasonableness before they could accept his theory of defense against first degree
malice murder — i.e., his honest but unreasonable belief in his need to exercise
self-defense.” We disagree.
The concepts of perfect and imperfect self-defense are not entirely separate,
but are intertwined. We have explained that “the ordinary self-defense doctrine —
applicable when a defendant reasonably believes that his safety is endangered —
may not be invoked by a defendant who, through his own wrongful conduct (e.g.,
the initiation of a physical attack or the commission of a felony), has created
circumstances under which his adversary’s attack or pursuit is legally justified.
[Citations.] It follows, a fortiori, that the imperfect self-defense doctrine cannot be
invoked in such circumstances.” (In re Christian S., supra, 7 Cal.4th at p. 773, fn.
1.) As applied to this case, this means that if defendant had first assaulted Cruz,
then unreasonably believed Cruz was assaulting him, a claim of imperfect self-
defense would be unavailable because a claim of perfect self-defense would have
been unavailable had the belief been reasonable. To make the observation in In re
Christian S. more general, not every unreasonable belief will support a claim of
imperfect self-defense but only one that, if reasonable, would support a claim of
perfect self-defense.6 The trial court reasonably concluded that instructing the
jury on perfect self-defense would help it to understand fully the law of imperfect
self-defense. Thus, even if the evidence did not support a finding of perfect self-
defense, instructing the jury on both theories was appropriate as long as the court
made sure the jury was aware of the differences between the two theories, as it
did. We see no error.
As another example, if defendant had unreasonably believed Cruz was
going to punch him in the arm and stabbed him to death in response, this belief
would not support a claim of imperfect self-defense for the reason that the belief,
even if reasonable, would not permit the use of deadly force.
The trial court instructed the jury on both premeditated first degree murder
and first degree felony murder. Defendant contends the court erred in not
requiring the jury to agree unanimously which of these theories applies. We
disagree. (People v. Morgan (2007) 42 Cal.4th 593, 617; People v. Nakahara
(2003) 30 Cal.4th 705, 712-713.) Moreover, the jury found true the robbery-
murder special circumstance, showing that it unanimously agreed he was guilty of
first degree murder on at least a felony-murder theory. (People v. Seaton, supra,
26 Cal.4th at p. 671.)
Defendant contends the court erred in instructing the jury on first degree
murder because the information charged him only with malice murder under
section 187. We disagree. (People v. Morgan, supra, 42 Cal.4th at p. 616.) The
information in this case alleged that the murder was committed under the special
circumstance of murder in the course of a robbery, thus providing notice that the
prosecutor would proceed under a felony-murder theory. (Id. at pp. 616-617.)
4. Sufficiency of the Evidence
Defendant contends the evidence was insufficient to support a first degree
murder verdict on either a felony-murder or a premeditation theory and the
robbery-murder special circumstance. As we explain, the evidence supports the
felony-murder theory and the robbery special circumstance. The special
circumstance finding shows the jury relied at least on a felony-murder theory in
finding defendant guilty of first degree murder. Accordingly, we need not
consider whether the evidence would also support a finding of premeditation.
(See People v. Kelly (2007) 42 Cal.4th 763, 789; People v. Guiton, supra, 4
Cal.4th at p. 1130.)
The applicable law is settled. As we explained in a recent case also
involving a challenge to the sufficiency of the evidence to support a robbery
felony-murder conviction and related special circumstance finding, “ ‘ “To
determine the sufficiency of the evidence to support a conviction, an appellate
court reviews the entire record in the light most favorable to the prosecution to
determine whether it contains evidence that is reasonable, credible, and of solid
value, from which a rationale trier of fact could find the defendant guilty beyond a
reasonable doubt.” ’ [Citations.] ‘ “ ‘If the circumstances reasonably justify the
trier of fact’s findings, the opinion of the reviewing court that the circumstances
might also be reasonably reconciled with a contrary finding does not warrant a
reversal of the judgment.’ ” ’ [Citations.] The standard of review is the same
when the prosecution relies mainly on circumstantial evidence. [Citation.]”
(People v. Valdez (2004) 32 Cal.4th 73, 104.) The same standard of review
applies to the special circumstance finding. (Id. at p. 105.)
Whether defendant killed Cruz with the intent to rob him or due to a drug-
induced paranoia was a hotly contested issue at trial, indeed, essentially the only
contested guilt issue. But the evidence supports the jury’s resolution of this issue.
A mere few hours before defendant stabbed him to death, Cruz cashed a payroll
check for almost $700, receiving cash that he did not deposit into his account. The
money was never found. Norma Pulido, a woman who lived with Cruz, testified
that he always carried a backpack to and from work and routinely wore a pair of
gloves. The gloves were found in the car after the stabbing, but the backpack was
never located. A backpack would not normally simply disappear. Defendant took
with him into Cruz’s car a knife he had taken from a neighbor, suggesting his
actions were planned and not, as he claimed at trial, caused by a sudden belief he
had to kill. If, as the evidence suggests, his actions were planned, robbery was the
most likely purpose. “Murders are commonly committed to obtain money or other
property.” (People v. Horning (2004) 34 Cal.4th 871, 903.)
In his rambling statement to the police, defendant clearly was trying to
minimize his culpability as much as possible consistent with the evidence. At first
he denied stabbing Cruz, then he admitted it. At first he claimed Cruz produced
the knife, then he admitted he brought it from a neighbor’s house (as other
evidence showed). At times he claimed Cruz had attacked him, at other times he
admitted Cruz had not done so. Ultimately, he admitted he possessed the knife
intending to stab or kill Cruz, although he also said he had no plan and stabbed
Cruz “[b]y impulse.” He consistently denied taking any of Cruz’s property, but
eventually he said that an acquaintance, “Octavio,” might have had a backpack in
his car. He also specifically denied using methamphetamine before the killing,
although he said he smoked some marijuana. Defendant was uninjured at the time
of the interview and, as far as the police could tell, acting normal.
This evidence supports the prosecution’s theory that defendant robbed and
killed Cruz to support his drug habit, then used the money to buy and consume the
methamphetamine that was found in his system after his arrest. A reasonable jury,
considering this same evidence, could reject defendant’s explanation at trial as
unreasonable. It was not required to believe defendant’s claim to the police that
he had not taken any of Cruz’s property.
Defendant argues the habit evidence alone — here, the evidence that Cruz
habitually carried the backpack — would not support a robbery finding. But it
was not the sole evidence. For example, the evidence that Cruz received several
hundred dollars in cash a few hours before defendant killed him, money that was
never found, was not habit evidence. The evidence that Cruz habitually carried a
backpack was probative (see People v. Webb (1993) 6 Cal.4th 494, 529) in light of
the additional evidence that the backpack was never seen again after the killing.
Defendant also argues the trial court erred in not granting his motion,
pursuant to section 1118.1, to dismiss the special circumstance allegation at the
end of the prosecution case. The argument fails for the same reason his primary
sufficiency-of-the-evidence argument fails. The evidence was sufficient to permit
a reasonable jury to find that defendant stabbed Cruz to death in the course of
B. Penalty Issues
1. Admission of Preliminary Hearing Testimony
The prosecution presented evidence showing that on October 9, 1991,
defendant, holding a baseball bat, and Vincent Valdez, holding a gun, forced
Hernan Sanchez to drive his truck to a nearby house, where they robbed him of his
wallet. Over objection, the court ruled that Sanchez was unavailable to testify and
admitted his testimony to this effect, given at the preliminary hearing on the felony
charges arising from the 1991 incident. In addition to Sanchez’s preliminary
hearing testimony, the arresting officer for the 1991 incident testified in the instant
trial that he had found defendant, appearing “shocked and . . . sweating,” in one of
the back rooms of the house, and Valdez hiding in the bathroom. The officer also
found a baseball bat in one of the bedrooms. The officer testified that Sanchez had
identified defendant as one of his assailants.
Defendant contends that, for several reasons, the court erred in admitting
Sanchez’s preliminary hearing testimony. We disagree. “A defendant has a
constitutional right to confront witnesses, but this right is not absolute. If a
witness is unavailable at trial and has testified at a previous judicial proceeding
against the same defendant and was subject to cross-examination by that
defendant, the previous testimony may be admitted at trial. [Citations.] The
constitutional right to confront witnesses mandates that, before a witness can be
found unavailable, the prosecution must ‘have made a good-faith effort to obtain
his presence at trial.’ ” (People v. Smith (2003) 30 Cal.4th 581, 609, quoting
Barber v. Page (1968) 390 U.S. 719, 725.) California law and federal
constitutional requirements are the same in this regard. (People v. Smith, supra, at
p. 609.) Moreover, for the prior testimony to be admissible, the defendant must
have had the opportunity to cross-examine the witness at that hearing with an
interest and motive similar to that of the hearing at which the testimony is
admitted. (Evid. Code, § 1291, subd. (a)(2); People v. Smith, supra, at p. 611.)
“The proponent of the evidence has the burden of showing by competent evidence
that the witness is unavailable.” (People v. Smith, supra, at p. 609.)
Defendant contends the court incorrectly found Sanchez was unavailable to
testify. The court held a hearing outside the presence of the jury regarding the
efforts the prosecution made to find Sanchez. John Santy, an investigator for the
district attorney’s office, testified that he began trying to locate Sanchez in August
1994. He called the telephone number that Sanchez had given in the police report
regarding the incident, but the number had been reissued. He attempted to get a
new telephone number for him through the telephone company but did not
succeed. He also tried to get a new telephone number for Sanchez’s address but
did not succeed. He went to the home address Sanchez had given, but Sanchez no
longer lived there. He checked with the Department of Motor Vehicles (DMV),
using the driver’s license number Sanchez had given. The driver’s license number
was correct, and he obtained an address for Sanchez at two different apartments at
the same street address. He went to both apartments, but Sanchez no longer lived
at either one. He spoke with five or six persons who lived in the apartment but
received no leads. He received no information from the DMV regarding any
vehicles Sanchez owned and no other relevant information. Using Sanchez’s
name and date of birth, he ran a “CII rap sheet” on him but found nothing. He also
“ran a check through TRW,” i.e., checked Sanchez’s credit information, and
checked various real estate holdings and information but found nothing. He also
“ran through civil and public court proceedings” to see if Sanchez had any cases in
court but found nothing. He rechecked these various sources of information the
morning of his testimony in July 1995 but received no new information.
After the hearing, the court determined that the prosecution had used due
diligence in trying to find Sanchez. When, as here, the relevant facts are
undisputed, we review this determination independently. (People v. Cromer
(2001) 24 Cal.4th 889, 901.) After independent review, we agree with the trial
court that the prosecution satisfied its burden of showing due diligence. The term
“due diligence” “ ‘connotes persevering application, untiring efforts in good
earnest, efforts of a substantial character.’ ” (Id. at p. 904.) “Relevant
considerations include ‘ “whether the search was timely begun” ’ [citation], the
importance of the witness’s testimony [citation], and whether leads were
competently explored [citation].” (Ibid.) The investigator began his efforts to
locate Sanchez several months before trial. Although Sanchez’s testimony was
critical to establish this prior crime, his testimony was not particularly important to
the trial as a whole. Defendant’s crime against Sanchez was only one of many
prior crimes the prosecution presented at the penalty phase, many accompanied by
felony convictions. Investigator Santy competently explored his leads. During
cross-examination of the investigator, argument to the trial court, and in this court,
defendant has suggested other things the prosecution might have done. But these
suggestions do “not change our conclusion that the prosecution exercised
reasonable diligence. ‘That additional efforts might have been made or other lines
of inquiry pursued does not affect this conclusion. [Citation.] It is enough that the
People used reasonable efforts to locate the witness.’ (People v. Cummings (1993)
4 Cal.4th 1233, 1298.) Thus, the trial court did not err in determining that
[Sanchez] was ‘unavailable as a witness.’ (Evid. Code, § 240.)” (People v.
Wilson (2005) 36 Cal.4th 309, 342.)
Defendant also argues that he did not have adequate opportunity to cross-
examine Sanchez at the preliminary hearing. The record shows that after Sanchez
testified, an investigator for Valdez (defendant’s cohort, according to Sanchez)
uncovered evidence impeaching that testimony. Essentially, some witnesses
impeached some of Sanchez’s testimony regarding his exact movements before
defendant and Valdez confronted him and after the incident, and two persons, one
a cousin of Valdez’s, impeached other parts of Sanchez’s testimony. This
information suggested that Sanchez went to the house with a prostitute. After this
information was uncovered, on the day trial for this crime was scheduled to
commence, the charges were dismissed in the interest of justice on the district
attorney’s motion. Defendant infers that the charges were dismissed due to the
discovery of this information, but the record does not reflect the reason the district
attorney moved to dismiss the charges.
After hearing argument and reading Sanchez’s preliminary hearing
testimony, the trial court ruled that defendant had had adequate opportunity to
confront defendant at the preliminary hearing and admitted the prior testimony. It
also invited defendant to present his impeaching evidence, and defendant did so.
Defendant argues that his cross-examination of Sanchez would have been different
had the impeaching information been known at the time he testified. This
circumstance does not render the prior testimony inadmissible. Preliminary
hearing testimony is generally admissible to show a prior crime at the penalty
phase of a capital crime. (People v. Smith, supra, 30 Cal.4th at pp. 624-625.)
“Moreover, a defendant’s interest and motive at a second proceeding is not
dissimilar to his interest at a first proceeding within the meaning of Evidence Code
section 1291, subdivision (a)(2), simply because events occurring after the first
proceeding might have led counsel to alter the nature and scope of cross-
examination of the witness in certain particulars. (People v. Alcala (1992) 4
Cal.4th 742, 784.) The ‘ “motives need not be identical, only ‘similar’ ” ’ (People
v. Samayoa[,supra,] 15 Cal.4th 795, 850.) ‘Both the United States Supreme Court
and this court have concluded that “when a defendant has had an opportunity to
cross-examine a witness at the time of his or her prior testimony, that testimony is
deemed sufficiently reliable to satisfy the confrontation requirement [citation],
regardless whether subsequent circumstances bring into question the accuracy or
the completeness of the earlier testimony.” ’ (People v. Wilson (2005) 36 Cal.4th
309, 343; see California v. Green (1970) 399 U.S. 149.)” (People v. Harris
(2005) 37 Cal.4th 310, 333.) Additionally, the fact the previous charges had been
dismissed does not prevent their being proved at the penalty phase. (People v.
Stitely (2005) 35 Cal.4th 514, 563.)
At the preliminary hearing, the court sustained a few objections on
relevance grounds to defendant’s cross-examination of Sanchez concerning
Sanchez’s actions after he left the house where, he said, he had been robbed.
Defense counsel had argued he wanted to ask Sanchez regarding when and under
what circumstances he had reported the crime to the police. Defendant argues, as
he did at trial, that these rulings denied him an adequate opportunity to confront
Sanchez. After reviewing the transcript of Sanchez’s testimony, the trial court
found that defendant had received adequate opportunity to cross-examine Sanchez.
We agree that these minor rulings at the preliminary hearing did not make the
previous testimony inadmissible. We have recognized that in an extraordinary
case, it might be “ ‘necessary to explore the character of the actual cross-
examination to ensure that an adequate opportunity for full cross-examination had
been afforded to the defendant.’ ” (People v. Wilson, supra, 36 Cal.4th at pp. 346-
347, quoting Ohio v. Roberts (1980) 448 U.S. 56, 73, fn. 12.)7 This is no such
extraordinary case. The few relevance objections the court sustained did not
deprive defendant of a reasonably full opportunity to cross-examine. Indeed, as
the district attorney pointed out at trial, the attorney for codefendant Valdez had
been permitted to ask Sanchez regarding how long it was after he left the house
before he called the police.
Finally, defendant argues that all of these circumstances rendered the
evidence of this incident too unreliable to be admissible. We disagree. As the
district attorney noted in his argument to the jury, the subsequently discovered
impeaching evidence that the defense presented at this trial may have shown that
Sanchez went to the house to obtain the services of a prostitute, and that he
changed some of the details of the actual events to hide this fact, but none of the
impeaching evidence directly challenged the basic core of Sanchez’s testimony —
that defendant and Valdez robbed him at that house. This was the testimony that
mattered. The trial court properly admitted the preliminary hearing testimony and
the rest of the prosecution’s evidence, and permitted defendant to present his
impeaching evidence, and then let the jury decide whether the prosecution had
proven this crime beyond a reasonable doubt so that it could consider it in
aggravation. The reliability of this evidence “was a jury question, and went to the
weight of the evidence, not its admissibility.” (People v. Anderson (2001) 25
Cal.4th 543, 587.)
2. Admission of Hearsay Evidence to Prove Corpus Delicti
The prosecution presented evidence that on December 20, 1978, defendant
and three others kicked in an apartment door, robbed three men of their wallets,
In Crawford v. Washington (2004) 541 U.S. 36, the high court overruled
Ohio v. Roberts, supra, 448 U.S. 56, on other grounds. (See People v. Wilson,
supra, 36 Cal.4th at p. 343.)
and hit one of the victims in the head with a gun. The victims were not available
to testify. Instead, the prosecution presented the testimony of two police officers
who responded to the scene and evidence of defendant’s confession to the crime.
Armando Marrujo and D.C. Ogan, who were police officers in 1978,
testified that they responded to the apartment in question on December 20, 1978.
They observed that “the door frame at the point where the lock engages was
shattered, had been forced open.” Officer Marrujo observed that one of the
occupants “was holding a cloth to his forehead and it was saturated with blood.”
He appeared to have received a recent injury that was still bleeding. Defendant
admitted his involvement in the crime. He said that one of his cohorts kicked in
the door. Then, when one of his cohorts said to pass the money, the persons inside
“handed me their wallets. I got the money and . . . I ran outside.” He said that
when he was running, one of his group hit one of the victims with his gun. Later,
the group met to divide the money. They had gotten $109 dollars, which was
“split up three ways.” Defendant received “thirty some odd dollars,” as did the
other two. Over objection, the court also permitted Officer Marrujo to testify that
the victim who was bleeding told him that one of the suspects told him, “Give me
the money.” The court admitted the statement to satisfy the corpus delicti rule,
finding that it qualified as an exception to the hearsay rule as a spontaneous
Defendant argues the court erred in admitting the victim’s hearsay
statement that one of the suspects said, “[g]ive me the money,” and that the error
violated his Sixth Amendment right to confront witnesses. He also argues that
without this statement, there was no evidence to establish the corpus delicti of the
crime and, accordingly, his confession should not have been admitted. We
conclude that, even without this hearsay statement, the prosecution adequately
proved the necessary corpus delicti, and defendant’s confession was properly
admitted. We also conclude that any error in admitting the hearsay statement was
harmless beyond a reasonable doubt.
The corpus delicti “rule generally requires the prosecution to prove ‘the
body of the crime itself’ independent of a defendant’s extrajudicial statements.”
(People v. Sapp (2003) 31 Cal.4th 240, 303.) We have never decided whether the
rule applies to unadjudicated crimes admitted in aggravation at the penalty phase
of a capital trial under the current death penalty law. (Ibid. [assuming without
deciding that the rule does apply].) In People v. McClellan (1969) 71 Cal.2d 793,
805-806, and People v. Hamilton (1963) 60 Cal.2d 105, 129-130, concerning an
earlier death penalty law, we held that the corpus delicti rule does apply to
evidence of other crimes at the penalty phase. We relied on McClellan when we
held that, under the current law, the prosecution must prove other crimes at the
penalty phase beyond a reasonable doubt before the jury may consider them.
(People v. Robertson (1982) 33 Cal.3d 21, 54.) We have also cited McClellan and
other older cases in concluding that “the rule requiring corroboration of
accomplice testimony applies at the penalty phase of a capital trial.” (People v.
Miranda (1987) 44 Cal.3d 57, 100.) The corpus delicti “rule is intended to ensure
that one will not be falsely convicted, by his or her untested words alone, of a
crime that never happened.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1169.)
Although a jury does not convict the defendant of other crimes at a penalty phase
(People v. Visciotti (1992) 2 Cal.4th 1, 71), given “the overriding importance of
‘other crimes’ evidence to the jury’s life-or-death determination” (People v.
Robertson, supra, at p. 54), this general purpose applies here. Accordingly, we
conclude that the corpus delicti rule does apply to unadjudicated crimes offered in
aggravation at the penalty phase of a capital trial under current law.
But we must decide exactly what crime must be shown. The crime for
which there must be a corpus delicti is the same as the crime that must be proven.
Section 190.3, factor (b), permits the jury to consider in aggravation any “criminal
activity by the defendant which involved the use or attempted use of force or
violence or the express or implied threat to use force or violence.” (See People v.
Boyd (1985) 38 Cal.3d 762, 776-777.) This statute “refers to ‘criminal activity,’
not specific crimes.” (People v. Cooper, supra, 53 Cal.3d at p. 840.) “No specific
‘elements’ are at issue except that some violent criminal offense must exist.”
(People v. Melton (1988) 44 Cal.3d 713, 754.) Accordingly, at the penalty phase
of a capital trial, as to each unadjudicated crime, the prosecution need only
establish, independently of the defendant’s statements, the corpus delicti of a
crime admissible in aggravation under section 190.3, factor (b) — that is, a crime
involving the use or attempted use, or threat to use, force or violence. Once that
corpus delicti is established, “the defendant’s extrajudicial statements may then be
considered for their full value to strengthen the case on all issues.” (People v.
Alvarez, supra, 27 Cal.4th at p. 1171.)
In this case, the prosecution established the corpus delicti of a crime of
violence — robbery or assault. The corpus delicti consists of (1) the fact of injury,
loss or harm, and (2) the existence of a criminal agency as its cause. (People v.
Alvarez, supra, 27 Cal.4th at p. 1168.) The identity of the defendant as the
perpetrator is not part of the corpus delicti; identity may be established by the
defendant’s words alone. (People v. Wright (1990) 52 Cal.3d 367, 404.)
Moreover, “the modicum of necessary independent evidence of the corpus delicti,
and thus the jury’s duty to find such independent proof, is not great. The
independent evidence may be circumstantial, and need only be ‘a slight or prima
facie showing’ permitting an inference of injury, loss, or harm from a criminal
agency, after which the defendant’s statements may be considered to strengthen
the case on all issues.” (People v. Alvarez, supra, at p. 1181.)
Here, the prosecution established, through the testimony of the responding
officers, that the apartment door had been broken open, and one of the persons
inside was bleeding from a recent head injury. This evidence permits an inference
of a crime of violence. Doors do not normally get forced open without a criminal
agency, and that circumstance combined with the head injury strongly suggests the
crime involved violence. The evidence also permits an inference of robbery. A
broken open apartment door and a man inside with a bleeding head wound
suggests robbery, a very common purpose for a home invasion. Indeed, few other
possible explanations for these events come to mind, and none so likely as
robbery. These might not be the only possible inferences, but they are certainly
reasonable inferences, which is sufficient. (People v. Jones (1998) 17 Cal.4th
279, 301-302.) Even disregarding the victim’s hearsay statement, little chance
exists that defendant confessed to a violent crime that never occurred.
Moreover, in People v. Alvarez, supra, 27 Cal.4th 1161, we considered the
corpus delicti rule in light of the adoption by passage of Proposition 8 in 1982 of
article I, section 28, subdivision (d) of the California Constitution (section 28(d)).
We held that “insofar as the corpus delicti rule restricts the admissibility of
incriminatory extrajudicial statements by the accused, section 28(d) abrogates it.”
(People v. Alvarez, supra, at p. 1174; see People v. Sapp, supra, 31 Cal.4th at p.
303.) Accordingly, the corpus delicti rule no longer prevents admission of the
Defendant argues that the prior crime at issue occurred in 1978, and
therefore Proposition 8, allowing defendant’s out-of-court statements, does not
apply. We disagree. In People v. Smith (1983) 34 Cal.3d 251, 258, we held “that
Proposition 8 applies only to prosecutions for crimes committed on or after its
effective date.” The only crime for which defendant was prosecuted in this trial
was the 1993 murder of Roberto Cruz, which occurred long after Proposition 8’s
effective date. A capital defendant “is not on trial for the past offense, [and] is not
subject to conviction or punishment for the past offense . . . .” (People v. Visciotti,
supra, 2 Cal.4th at p. 71; see also People v. Melton, supra, 44 Cal.3d at pp. 754-
755.) “Rather, the evidence of criminality . . . is simply one factor the penalty jury
is to consider in deciding the appropriate punishment for the capital offense.”
(People v. Balderas (1985) 41 Cal.3d 144, 205, fn. omitted.) Accordingly,
because the crime for which defendant is being prosecuted occurred in 1993,
Proposition 8 and our holding in People v. Alvarez, supra, 27 Cal.4th 1161, apply
here. (See also People v. Mickle (1991) 54 Cal.3d 140, 171 & fn. 14 [Proposition
8 applies to impeachment with a prior conviction if the charged crime postdated its
enactment even if the prior conviction predated its enactment]; People v. Jackson
(1985) 37 Cal.3d 826, 833 [an enhancement for a serious felony conviction under
Proposition 8 may be imposed if the charged crime postdated its enactment even if
the prior crime predated its enactment].)8
Defendant’s confession was therefore admissible both because the
prosecution presented sufficient evidence to establish the corpus delicti of a crime
of violence under section 190.3, factor (b), and under our holding in People v.
Alvarez, supra, 27 Cal.4th 1161. Alvarez additionally held that, notwithstanding
Proposition 8, the court must “instruct the jury that [the defendant’s extrajudicial]
statements cannot be the sole proof the crime occurred.” (People v. Alvarez,
supra, at p. 1181; see People v. Sapp, supra, 31 Cal.4th at p. 304.) The trial court
so instructed the jury.
In People v. Sapp, supra, 31 Cal.4th at pages 303-304, we said that
Proposition 8 applied because the unadjudicated prior crime had occurred after its
adoption. Any implication in this statement that Proposition 8 would not apply if
the prior crime had predated its adoption would be dicta because the issue was not
presented. For the reasons stated, we conclude that Proposition 8 applies to this
For these reasons, the trial court properly admitted defendant’s confession
and correctly instructed the jury regarding the corpus delicti rule. Admitting the
hearsay statement of one of the victims, which added nothing to defendant’s own
confession, was harmless beyond a reasonable doubt. Accordingly, we need not
decide whether admitting the statement was error.
3. Admission of Evidence of a Photographic Lineup
Defendant contends the court erred in admitting evidence regarding the
unadjudicated robbery of October 21, 1982. The record indicates that the victim
had had brain surgery between the time of the crime and his testimony in July
1995 that might have affected his ability to recall the events of 1982. He testified
about the robbery but did not identify defendant as the robber at trial. He did not
remember going to the police station to make a photographic identification.
However, he identified his signature and his handwriting on the identification
document. He also testified that in his dealings with the police regarding the
crime and the identify of the robber, he tried to be truthful and as accurate as he
After the victim testified, defendant objected to admission of evidence of
his extrajudicial identification of defendant as the robber. Defense counsel stated,
and the prosecutor did not deny, that no copy of the photographic lineup still
existed. After discussion and hearing the prosecutor’s offer of proof regarding the
police officer’s proffered testimony, the court overruled the objection. Thereafter,
Detective Curtis McMillan testified that on November 5, 1982, the victim came to
the police station to view a photographic lineup. He testified that the victim wrote
on the identification form, “I looked at six photographs and number 5 was closest
to the man robbed me. His hair is short as he was — And his face look the same,
but his nose was smaller.” Detective McMillan signed the form indicating that he
had witnessed the identification. Photograph number 5 was a photograph of
As he did at trial, defendant challenges the admissibility of the extrajudicial
identification on numerous grounds. We need not decide whether the court erred
in admitting the evidence, for any error was harmless. The criminal incident at
issue here was merely one of a long series of prior crimes the prosecution proved
at the penalty phase, and not a particularly remarkable one at that. The
prosecution proved that defendant had suffered 10 prior felony convictions for
crimes committed on 10 separate occasions. It also presented evidence of the facts
and circumstances of the crimes committed on eight of those occasions, as well as
seven unadjudicated prior crimes of violence. This totals 17 prior separate
criminal episodes, all but one of which involved force or violence (the exception
being defendant’s conviction of grand theft from the person). In his argument to
the jury, the prosecutor mentioned the robbery at issue here only briefly, and even
then he recognized that the identification “wasn’t positive, that it looked like
number five, and number five was [defendant].” We see no reasonable possibility
(the functional equivalent of the reasonable doubt test; see People v. Gonzalez
(2006) 38 Cal.4th 932, 961) the penalty determination turned on whether the jury
found defendant had committed 17 previous crimes or only 16. (See People v.
Smith, supra, 30 Cal.4th at p. 625; People v. Barnett (1998) 17 Cal.4th 1044,
4. Admission of Victim Impact Evidence
Over defendant’s objection, the trial court permitted the victim’s parents to
testify regarding their son and the impact his murder had on them.
Juana Cruz testified that she and her husband lived in the town of San Juan
Dapida in the state of Oaxaca in Mexico. Roberto was 22 years old when he was
killed. He went to the United States in 1989, when he was 18 years old, to help
them financially because they were very poor. She described the poverty in which
the family had lived in Mexico. Roberto graduated from high school, which made
her very proud because she had never learned to read or write. He sent money and
clothes to his parents “so we could sustain ourselves.” She missed her son greatly.
Martin Cruz testified that his son Roberto was a “very good person” who
loved his parents and siblings very much. He was a good son, and Martin loved
him very much. Martin testified about the poverty in which they lived in Mexico.
Roberto sent them money and clothes from the United States. He was the most
intelligent and dependable of his children. The family relied on the money he
would send. Martin thinks continually about Roberto and misses him badly. He
identified a photograph of Roberto and read to the jury the last letter Roberto sent
Defendant contends the court erred in permitting this testimony. However,
we have upheld victim impact evidence in many cases. “Unless it invites a purely
irrational response from the jury, the devastating effect of a capital crime on loved
ones and the community is relevant and admissible as a circumstance of the crime
under section 190.3, factor (a).” (People v. Lewis and Oliver (2006) 39 Cal.4th
970, 1056-1057.) “The federal Constitution bars victim impact evidence only if it
is ‘so unduly prejudicial’ as to render the trial ‘fundamentally unfair.’ ” (Id. at p.
1056, quoting Payne v. Tennessee (1991) 501 U.S. 808, 825.) The evidence here
came well within permissible limits and, indeed, was very typical of the victim
impact evidence we routinely permit. (See People v. Lewis and Oliver, supra, at
p. 1057.) Contrary to defendant’s argument, testimony regarding the
circumstances in which the victim and his family lived in Mexico and the victim’s
actions in the United States to ameliorate his family’s poverty was relevant to
show the impact the murder had on his family. We see no error.
5. Alleged Prosecutorial Misconduct
Defendant contends the prosecutor committed numerous acts of misconduct
at the penalty phase. We disagree. The prosecutor represented his client
vigorously, as the defense attorneys did theirs. Vigorous representation, however,
is not misconduct.
Defendant first complains that, in his opening statement to the jury, the
prosecutor stated over objection that as to some of defendant’s prior crimes, the
victims originally did not appear at the preliminary hearing, which caused the case
to be dismissed and, as a result, defendant “did not suffer any consequences from
that.” We see no impropriety.
Defendant next complains of the prosecutor’s examination of two
prosecution witnesses, the victims of the March 9, 1979, assault. The prosecutor
asked the first witness if he had told the police whether or not he was willing to
cooperate at trial. Defendant’s objection was overruled, and the witness answered,
“Yes.” The prosecutor then asked, “Did you ever express any fear to the police
officer?” The court sustained defendant’s relevance objection, and the witness did
not answer the question. The prosecutor asked the second witness on redirect
examination whether he had expressed to the police concern for his safety. The
witness said yes, and that because he used to see some of the individuals in his
neighborhood, he was afraid. Defendant did not object to this questioning of the
second witness. Instead, on recross-examination, defense counsel questioned the
witness whether he had made an identification only because he was afraid.
Later, defendant moved the court to strike these answers and order a
mistrial, arguing that questions regarding fear were a “nonstatutory aggravating
factor,” and that the prosecution had not proven that defendant had done anything
to cause the fear. The prosecutor responded that the witnesses’ fear was relevant
to the strength of their identification of defendant. He noted that “no one ever said
he was threatened by anyone not to testify.” The court denied the mistrial motion.
Regarding defendant’s concern that the jury might misconstrue the testimony as
suggesting that defendant had threatened the witnesses, the court offered to
consider giving a special instruction if defendant wanted one. Defendant never
requested such an instruction.
Defendant contends the questions regarding whether the witnesses felt fear
improperly suggested defendant had threatened the witnesses or otherwise caused
the fear. The contention is forfeited regarding the second witness because
defendant did not object to the questioning. (People v. Samayoa, supra, 15
Cal.4th at p. 841.) Instead, he questioned the witness himself regarding how this
fear may have affected his identification. In any event, we see no misconduct.
Although the court sustained defendant’s objection to the question regarding fear
asked of the first witness, it did not have to do so. Evidence of fear is relevant to
the witness’s credibility. (People v. Burgener (2003) 29 Cal.4th 833, 869.) It was
appropriate for the prosecutor to ask these questions, just as it was appropriate for
defense counsel to ask whether the witness had made an identification only
because he was afraid. The court said it would consider giving a special
instruction if defendant were really concerned the jury might read into the
evidence more than was warranted. Defendant did not request such an instruction.
It does not appear any was needed because there was no evidence or suggestion
that defendant had caused any such fear. Because there was no misconduct, the
court properly denied the mistrial motion.
Defendant next complains of the prosecutor’s cross-examination of a
defense penalty-phase witness. Eliseo Rosales testified regarding the contents in
the victim’s backpack the day he died. On cross-examination, the prosecutor
established that the witness had spoken with an investigator from the public
defender’s office three times and had been shown a photograph. He then asked
whether, having talked to the public defender’s office three times, he was certain
regarding his memory of the backpack’s contents. The court overruled
defendant’s numerous objections that the questioning was argumentative. Later,
defense counsel expressed concern that the prosecutor implied that the public
defender’s office had done something improper. The court offered to give an
instruction that the jury’s decision “is to be based on the evidence, not on any
perceptions or impressions of misconduct by the investigator or the attorney
assigned to represent the defendant.”
Defendant contends that in this questioning, as well as the previous acts he
complains of, “[t]he prosecutor committed egregious misconduct by insinuating
that defense counsel, [defendant] and defense witnesses fabricated a defense.” It
is “improper for the prosecutor to imply that defense counsel has fabricated
evidence or otherwise to portray defense counsel as the villain in the case.”
(People v. Thompson (1988) 45 Cal.3d 86, 112.) But the prosecutor here did not
do so. He merely asked proper questions testing the reliability of the witness’s
credibility. Asking the witness whether his current testimony, which occurred
nearly two years after the crime, was based on his actual memory or his
discussions with the public defender’s office was a proper way to test the
Defendant next complains of the prosecutor’s cross-examination of his
penalty phase mental health expert, Dr. George Woods. He first complains about
how the prosecutor began the cross-examination. The prosecutor said, “We are
going to start off on good terms, right?” to which the witness responded, “We’re
always on good terms.” The prosecutor said, “You probably realize that you are in
for a long afternoon,” to which the witness responded, “Yes.” The prosecutor
said, “You have been down this road before?” to which the witness responded,
“Yes.” Defendant complains this beginning “subtly but intentionally
communicated to the jury that he had a history with this witness, and therefore had
a basis for making him endure a ‘long afternoon.’ ” The claim is not cognizable
because defendant did not object. Moreover, this little bit of bantering seems like
a harmless way to begin what both participants apparently anticipated would be a
At one point, the prosecutor questioned Dr. Woods regarding the
information defense counsel had provided him. He asked to “approach [the
witness] with documents which have been marked for discovery.” Defense
counsel objected and a bench conference ensued. Defense counsel claimed the
prosecutor had committed misconduct and moved for mistrial. They argued that
many of the documents the prosecutor was holding were irrelevant to the case, and
the prosecutor was improperly trying “to say the doctor didn’t see all of that
information and therefore the doctor’s information is incomplete and therefore his
opinion is invalid.” They estimated that the stack of materials the prosecutor was
holding was about 18 inches high. The prosecutor responded that he could “ask an
expert witness about things he did not consider. It goes to the weight the jury
gives to his opinion. . . . If the defense has chosen to give him certain items and
not give him others, the jury is entitled to know that the weight of his testimony
should be given little credibility.” The court overruled the objection.9 In front of
the jury, the prosecutor questioned the witness extensively regarding what
information he did and did not consider in forming his opinion. Later, defendant
renewed his motion for a mistrial “based on the district attorney’s showmanship,
the theatricalship of putting that big stack of papers of front of Dr. Woods.” The
court denied the motion and found no misconduct. To the extent the defense was
One of the attorneys also complained the prosecutor was talking so loud
that the jury could hear. The court appeared to disagree. To the extent defendant
claims misconduct on this basis, the record does not support the claim.
concerned that the prosecutor’s actions, in addition to testing the credibility of the
witness, tended to suggest the defense had acted improperly in withholding
information, the court offered to admonish the jury not to consider such matters.
Defendant argues, as he did at trial, that the prosecutor committed
misconduct in showing the stack of materials to the jury. We see no misconduct
and certainly no prejudice. The prosecutor was fully entitled to question the
witness regarding what materials he did and did not consider in forming his
opinion. To the extent defendant claims some, or even most, of the materials the
prosecutor showed the witness was irrelevant, he was entitled to bring this out on
redirect examination. The important point was that the witness had considered
some materials and not other materials. This was relevant to the jury’s judging
what weight to give the opinion. The court offered to admonish the jury not to
consider any claims of defense misconduct that these actions may have implied.
Defendant describes this and similar offers to give an admonition should the
defense so wish as “meaningless.” The offers were not meaningless. Although
defense counsel did not accept the court’s offers to admonish the jury, we have no
reason to doubt that the court would have given the admonitions had defendant so
requested. We also believe that any such admonitions would have been sufficient
to forestall any prejudice.
Defendant claims that the prosecutor’s cross-examination of Dr. Woods
was “unduly argumentative.” We have read the record and disagree. The cross-
examination was vigorous, as it was entitled to be, but it did not cross the line into
misconduct. Defendant notes, correctly, that defense counsel made many
objections at trial; indeed, on appeal he states, rather colorfully but somewhat
accurately, that his “trial counsel were up and down like jack-in-the-boxes,
making objections to the substance, tone and form of the prosecutor’s questions.”
But the existence of many objections by one party does not establish misconduct
by the other. The court was in control. It generally sustained defense objections
when appropriate and otherwise properly allowed the prosecutor to conduct his
cross-examination within permissible limits. On one occasion, after the witness
prefaced one of his answers by saying, “[t]o be honest with you,” the prosecutor
asked whether that meant he had not been honest regarding other questions. To
the extent this specific question might have been unduly argumentative, it was
Defendant also claims the prosecutor committed misconduct during his
penalty argument to the jury. We have reviewed the entire argument, as we must.
“Although defendant singles out words and phrases, or at most a few sentences, to
demonstrate misconduct, we must view the statements in the context of the
arguments as a whole.” (People v. Dennis (1998) 17 Cal.4th 468, 522.) As a
whole, the prosecutor engaged in a reasoned and fair discussion of the law and
facts and made a proper argument why the jury should return a death verdict. He
went out of his way to tell the jury that defense counsel had done a good job, had
“acted ethically,” and had “done nothing wrong whatsoever.” He told the jury his
view that only factors (a), (b), and (c) of section 190.3 (respectively,
circumstances of the crime, criminal activity involving force or violence, and prior
felony convictions) could be considered in aggravation. He discussed these
aggravating circumstances in detail, then discussed the applicability of the factors
in mitigation. Naturally, he generally argued that the various statutory mitigating
factors either did not apply or were not significant compared to the aggravating
factors. As he explained to the jury, he had to try to anticipate later defense
arguments because he would have no opportunity to rebut the defense argument.
He then argued against what he anticipated would be the defense arguments in
mitigation. In discussing the mitigating factors, he carefully explained to the jury
that the “absence of a mitigating factor does not equal aggravation.” He also
impressed on the jury the importance of its decision by stating, “you must assume
that whatever decision you make will be carried out.” To the extent the prosecutor
occasionally misspoke, it was a minor mistake that was generally corrected on
objection. As a whole, the argument came well within the range of permissible
Defendant first claims the prosecutor continued to cast aspersions on
defense counsel and witnesses. The prosecutor certainly cast aspersions on some
of the defense witnesses. He argued that some were not credible, and permissibly
so. “Harsh and vivid attacks on the credibility of opposing witnesses are
permitted, and counsel can argue from the evidence that a witness’s testimony is
unsound, unbelievable, or even a patent lie.” (People v. Dennis, supra, 17 Cal.4th
at p. 522.) Contrary to defendant’s argument, the prosecutor did not denigrate
defense counsel; rather, he vigorously denigrated the defense case, as was his right
as an advocate. In a contention akin to a comparable guilt phase argument,
defendant argues that on one occasion, the prosecutor used paraleipsis. (See pt. II.
A. 1, ante.) Defendant did not object, so the issue is not cognizable. The
comment was also insignificant.
Defendant also claims the prosecutor misstated the law and the evidence.
The prosecutor argued in aggravation that defendant had killed for money, which
was appropriate given the evidence. He also suggested defendant had committed a
carjacking, a suggestion he agreed was mistaken when the court expressed concern
about it. Given the prosecutor’s withdrawal of the suggestion, we see no
misconduct. Regarding the law, defendant claims the prosecutor improperly
argued the absence of certain mitigating factors. We disagree. As noted, the
prosecutor never suggested the absence of a mitigating factor was itself
aggravating. But he was certainly entitled to point out the absence of mitigation.
Moreover, although the prosecution may not argue that the jury is not permitted to
consider mitigating evidence, it may argue that certain evidence does not in fact
mitigate or at least attempt to minimize the mitigating effect of the evidence.
(People v. Cleveland (2004) 32 Cal.4th 704, 764.) The prosecutor here did no
Defendant also claims the prosecutor improperly referred to matters not in
evidence. At one point, in arguing against the defense that defendant acted in a
belief that he was defending himself, the prosecutor noted that defendant had
stabbed Cruz many times, which would not have been necessary had he merely
believed he was defending himself. The prosecutor continued, “And that is an
aggravating factor because he kept stabbing him until he was dead. Had he not
made that choice, Mr. Cruz possibly could have survived that attack. He could
have possibly received medical aid and maybe survived.” Defendant claims there
was no evidence regarding the victim’s chances for survival. The claim is not
cognizable because defendant did not object at trial. In any event, it requires no
specific evidence to argue that if defendant had merely defended himself rather
than continue to stab the victim and had sought prompt medical help, the victim
might have survived. At another point, the prosecutor stated his view of what life
in prison meant. The court sustained defendant’s objection. To the extent this
comment was improper, it could not have been prejudicial, especially in light of
the fact the court sustained the objection.
Defendant also claims the prosecutor improperly appealed to the jurors’
passions or prejudices and committed error under Caldwell v. Mississippi (1985)
472 U.S. 320, which prohibits the prosecutor from arguing to the jury that the
responsibility for determining the appropriateness of the death penalty lies
elsewhere. (See People v. Cleveland, supra, 32 Cal.4th at p. 762.) We have
reviewed the comments defendant cites and find no impropriety. The argument
was not unduly emotional. Moreover, rather than suggest the responsibility for
determining the appropriateness of the death lies elsewhere, the prosecutor
emphasized the seriousness of the decision, noting that it would take “courage” to
reach a “just verdict.” Indeed, he specifically stated that the jury was to assume its
“decision will be carried out. Whether it be life without parole or the death
6. Limiting Defense Counsel’s Jury Argument
Before the parties presented their penalty arguments to the jury, the court
held hearings regarding the boundaries of possible argument. One topic was the
extent to which either party could comment on defendant’s demeanor during the
trial. The prosecutor expressed the belief it would be improper for him to
comment on defendant’s demeanor because defendant had not testified. Defense
counsel, however, stated that they wanted to discuss defendant’s apparent reaction
to the testimony of some of the defense witnesses. The court asked the parties to
provide authorities to help it make a ruling and continued the matter.
At the next hearing, the court stated that it interpreted the cases cited to it as
allowing comment on a defendant’s demeanor only if he testified or put his
character into evidence. It believed defendant had not placed his character into
evidence and, indeed, had “studiously avoided” doing so. Defense counsel agreed
that they had not placed defendant’s general character into evidence, but they
argued that they had narrowly presented evidence of defendant’s “emotional
feelings for his family and their feelings for him.” They stated they were “not
seeking to argue demeanor other than what appeared obviously in the courtroom.”
For example, they wanted to comment that when defendant’s niece and nephew
testified, the jury could see “that there was genuine love on behalf of our client
toward those children . . . .” Additionally, they wanted to comment that when a
witness named Charles Burwell testified that he and defendant were like brothers,
defendant “actually broke down significantly and cried,” thus showing his love
The court ruled that defense counsel could argue about the feelings the
witnesses had for defendant “and that there must be some redeeming aspect of the
defendant that would trigger those expressions by those witnesses.” But it
disallowed comment on defendant’s demeanor. It expressed concern about
permitting comment on a nontestifying defendant’s demeanor: “You mention the
defendant’s demeanor in a positive frame, but this has been a long trial. What I’m
afraid will happen is one of the jurors may have seen some different aspect of his
demeanor. And if I let either one of you start talking about demeanor when the
defendant has not testified and character is not an issue, then they go back and
deliberate about that, I just think that we’re asking for some major difficulties.”
Defendant argues the court erred in not permitting his attorneys to comment
on his demeanor in reacting to the testimony of some of the defense witnesses.
We agree. As the trial court noted, a number of cases have stated that the
prosecutor may comment on defendant’s demeanor when the defendant has
testified or placed his character into evidence. (People v. Cunningham (2001) 25
Cal.4th 926, 1023 [“It is proper for a prosecutor, at the penalty phase at which the
defendant has placed his or her character in issue as a mitigating factor, to make
references to the defendant’s facial demeanor apparent during the court
proceedings.”]; People v. Wharton (1991) 53 Cal.3d 522, 596; People v. Jackson
(1989) 49 Cal.3d 1170, 1205-1206; People v. Heishman (1988) 45 Cal.3d 147,
197.) But we have not limited comment on demeanor to those situations. In
People v. Navarette (2003) 30 Cal.4th 458, 516, we simply stated that “a
prosecutor may comment during closing argument on a defendant’s demeanor.”
(See also People v. Beardslee (1991) 53 Cal.3d 68, 114 [the prosecutor was
entitled “to comment on defendant’s facial demeanor as he sat in the courtroom”];
People v. Haskett (1990) 52 Cal.3d 210, 247 [“Reference to courtroom demeanor
is not improper during the penalty phase.”].) Indeed, in People v. Duncan (1991)
53 Cal.3d 955, 977, we said that the “prosecutor was entitled to point out that
modest behavior in the courtroom was not inconsistent with violent conduct under
other less structured and controlled circumstances.”
In People v. Williams (1988) 44 Cal.3d 883, as one reason for denying the
automatic motion to modify the death judgment, the trial court stated that the
defendant “was emotionally calm during the entire trial.” (Id. at p. 970, fn. 50.)
We found the comment proper for reasons that apply here: “A defendant’s
demeanor may reflect remorse, or otherwise arouse sympathy in either jury or
judge. Because the jury, and the judge in deciding whether to modify a verdict of
death, must be permitted to consider any evidence that is relevant and potentially
mitigating [citation], this is relevant to appropriate consideration.” (Id. at pp. 971-
Just as negative comment on a defendant’s demeanor is permissible, so too
is favorable comment. Moreover, the trial court interpreted character evidence too
narrowly. Although defendant avoided broad character evidence, he did present
evidence of the love between him and some of the witnesses. The court erred in
prohibiting defense counsel from arguing that defendant’s demeanor during the
testimony reflected the love he felt.
But the error was harmless. As evidenced by the fact that all cases on point
involve defendants challenging the propriety of prosecutorial comments on
demeanor, comment on demeanor can be very risky for the defense. The court
prohibited both parties from commenting on demeanor. Although legally
incorrect in its ruling, it was reasonably concerned that, on balance, comment on
demeanor could harm defendant. Moreover, the court did not preclude the jury
from considering anything it believed relevant, including defendant’s courtroom
demeanor. The jury could observe defendant and draw its own conclusions. The
court merely limited defense counsel’s jury argument in a very narrow fashion.
The defense penalty phase argument to the jury was thorough, broad based,
and wide ranging. Among many other things, the defense attorney who made the
penalty argument urged that the jury should consider in mitigation the evidence
from defendant’s family and friends about their feelings for defendant and their
love for him. She argued that defendant cares about those who love him and
discussed how he protected his mother even as a young child. She discussed
defendant’s brother’s testimony that defendant cared about his relatives. She
discussed his sister’s testimony that defendant sometimes cried when confronted
with some of his family’s problems. She argued that to others, defendant’s “life
has value,” and that even persons not related to him love him. She noted that one
witness testified that defendant “show[ed] he cared about” her and her children,
and that another witness testified about a time when defendant was “moved to
tears” after the witness’s wife had suffered a stroke. Discussing another witness,
she argued that defendant “loved her, she loved him.”
The attorney discussed the testimony of defendant’s niece and nephew.
Although she was not permitted to comment on defendant’s visible reaction to that
testimony, she did argue, while apparently referring to a photograph of him with
the children that defendant had placed into evidence, that defendant’s face and
smile unmistakably indicated “his love for those children.” She discussed in detail
Charles Burwell’s testimony. She noted that Burwell “says that Fred [defendant]
calls every other week,” that he always talked about others, not about himself, and
that he was supportive of other people’s problems. She stressed Burwell’s
testimony that if defendant were executed, it would affect his children and his
wife, “and it will have a very major impact on me. . . . And he [Burwell] says, this
man [apparently referring to defendant] started to fill that void. And if I lose him,
I am losing my brother all over again, and I don’t want that to happen.”
In light of all of these circumstances, we see no reasonable possibility the
verdict would have been different if, additionally, defense counsel had commented
on defendant’s visible reaction to the testimony of his niece, nephew, and Burwell.
(People v. Gonzalez, supra, 38 Cal.4th at pp. 960-961.) Stated equivalently (id. at
p. 961), the error is harmless beyond a reasonable doubt.
7. Jury Instructions and Challenges to California’s Death Penalty Law
Defendant contends the court erred in refusing to give special instructions
the defense requested that would have told the jury that the guilt and special
circumstance verdicts are not themselves aggravating, and that they must
reconsider the guilt phase evidence during their penalty deliberations. However,
the standard jury instructions the court gave “are adequate to inform the jurors of
their sentencing responsibilities in compliance with federal and state constitutional
standards.” (People v. Barnett, supra, 17 Cal.4th at pp. 1176-1177.) No
additional instructions were required. Similarly, defendant contends the court
erred in refusing to modify CALJIC No. 8.85 in various respects. We have
rejected similar arguments. CALJIC No. 8.85 is both correct and adequate.
(People v. Musselwhite (1998) 17 Cal.4th 1216, 1266-1268; see also People v.
Moon (2005) 37 Cal.4th 1, 40-41; People v. Carter (2003) 30 Cal.4th 1166, 1229-
1231.) The court need not give pinpoint instructions regarding what mitigating
evidence the jury may consider or special instructions regarding mercy and
compassion. (People v. Panah (2005) 35 Cal.4th 395, 497; People v. Noguera
(1992) 4 Cal.4th 599, 647-648.) Contrary to defendant’s argument, CALJIC No.
8.88 properly instructs the jury on its sentencing discretion and the nature of its
deliberative process. (People v. Smith (2005) 35 Cal.4th 334, 369-371.)
Defendant contends the court had a sua sponte duty to instruct on how the
jury could consider the victim impact evidence. Specifically, he argues the court
had to instruct the jury that the evidence “had been introduced for the specific and
limited purpose of showing the specific harm caused by the [defendant’s] actions
or the nature of the unique loss felt by each witness, and that the victim, like the
defendant, was a unique individual; that it would be improper for the jurors to
assess the comparable worth of [defendant] and Mr. Cruz and his survivors; that
their deliberations on the victim impact evidence must be limited to an
unemotional, rational inquiry into [defendant’s] moral culpability; and that it
would be improper for [defendant’s] sentence to be solely based upon the victim
impact evidence.” We disagree. Because the standard instructions adequately
inform the jury of its duty, the court was not required to instruct on how the jury
may consider victim-impact evidence. (People v. Ochoa (2001) 26 Cal.4th 398,
455.) Defendant points out that in People v. Harris, supra, 37 Cal.4th at pages
358-359, we rejected the defendant’s argument that the trial court erred in giving a
prosecution-requested instruction on victim-impact evidence. But we never
suggested the court was obligated to give any such instruction. Moreover, the
instruction we upheld in that case was quite different from the one defendant
argues the court should have given here.10 We see no need to elaborate on the
standard instructions regarding how the jury should consider any particular type of
penalty phase evidence.
In Harris, the trial court instructed that “ ‘[i]f supported by the evidence, it
is proper to consider the impact of the murder on the victim’s family (including
their pain and suffering) when determining the appropriate penalty. You are
further instructed that such evidence is to be included within the meaning of factor
(a), the circumstances of the offenses, in the preceding instruction (CALJIC No.
8.85) and is not a separate factor in aggravation.’ ” (People v. Harris, supra, 37
Cal.4th at p. 358.)
Defendant reiterates a number of challenges to California’s death penalty
law that we have repeatedly rejected. The sentencing factor of “circumstances of
the crime” (§ 190.3, factor (a)) is not unconstitutionally vague and does not result
in the arbitrary and capricious imposition of the death penalty. (People v. Lewis
(2001) 26 Cal.4th 334, 394.) The death penalty law is not invalid for failure to
provide for intercase proportionality review. (Pulley v. Harris (1984) 465 U.S. 37;
People v. Mincey (1992) 2 Cal.4th 408, 476.) (We do provide intracase
proportionality review. Defendant does not specifically request such review, but
given the crime and his long criminal record leading up to it, it is inconceivable
that it would aid him. (People v. Steele (2002) 27 Cal.4th 1230, 1269.)) “The jury
need not make written findings, or achieve unanimity as to specific aggravating
circumstances, or find beyond a reasonable doubt that an aggravating
circumstance is proved (except for other crimes), that aggravating circumstances
outweigh mitigating circumstances, or that death is the appropriate penalty.
[Citations.] The death penalty statute is not unconstitutional for failing to provide
the jury with instructions of the burden of proof and the standard of proof for
finding aggravating and mitigating circumstances in reaching a penalty
determination.” (People v. Morrison (2004) 34 Cal.4th 698, 730-731.) The jury’s
consideration of unadjudicated criminal activity in aggravation (§ 190.3, factor
(b)) is constitutional, and jury unanimity regarding such conduct is not required.
(People v. Brown (2004) 33 Cal.4th 382, 402; People v. Anderson, supra, 25
Cal.4th at pp. 584-585.) Recent United States Supreme Court decisions do not
undermine these conclusions. (People v. Stevens (2007) 41 Cal.4th 182, 212;
People v. Morrison, supra, at p. 731.) The court need not instruct that the jury can
consider certain statutory factors only in mitigation. (People v. Brown, supra, at p.
402.) Use of the adjectives “extreme” and “substantial” in the sentencing factors
(§ 190.3, factors (d) & (g)) is constitutional. (People v. Avila (2006) 38 Cal.4th
491, 614-615.) The death penalty law does not violate equal protection principles.
(People v. Moon, supra, 37 Cal.4th at p. 48; People v. Smith, supra, 35 Cal.4th at
8. International Law
Contrary to defendant’s contention, a sentence of death that complies with
state and federal constitutional and statutory requirements does not violate
international law. (People v. Tafoya (2007) 42 Cal.4th 147, 199.)
9. Cumulative Effect of Alleged Errors
Defendant contends that the cumulative effect of the alleged errors was
prejudicial. We disagree. The errors we have found or assumed were
insignificant in light of the trial as a whole. Considered either separately or in
combination, we find no reasonable possibility they affected the verdicts.
We affirm the judgment.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Valencia
Original Appeal XXX
Opinion No. S051451
Date Filed: April 14, 2008
Judge: Francisco P. Briseno
Attorneys for Appellant:
Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Donald J. Ayoob,
Chief Assistant State Public Defender, and Jamilla Moore, Deputy State Public Defender, for Defendant
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens, Bradley A. Weinreb and Ivy B.
Fitzpatrick, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Donald J. Ayoob
Chief Assistant State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
Ivy B. Fitzpatrick
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92101
Automatic appeal from a judgment of death.
|Date:||Citation:||Docket Number:||Category:||Status:||Cross Referenced Cases:|
|Mon, 04/14/2008||43 Cal. 4th 268, 180 P.3d 351, 74 Cal. Rptr. 3d 605||S051451||Automatic Appeal||closed; remittitur issued|| |
VALENCIA (ALFREDO) ON HC (S167195)
|1||The People (Respondent)|
Represented by Attorney General - San Diego Office
Bradley A. Weinreb, Deputy Attorney General
P.O. Box 85266
San Diego, CA
|2||The People (Respondent)|
Represented by Ivy Bridgett Fitzpatrick
Attorney General's Office
P.O. Box 85266
San Diego, CA
|3||Valencia, Alfredo (Appellant)|
San Quentin State Prison
Represented by Habeas Corpus Resource Center
Michael Laurence, Executive Director
303 Second Street, Suite 400 South
San Francisco, CA
|4||Valencia, Alfredo (Appellant)|
San Quentin State Prison
Represented by Office Of The State Public Defender-Sf
Jamilla Moore, deputy
221 Main Street, 10th Floor
San Francisco, CA
|5||Valencia, Alfredo (Appellant)|
San Quentin State Prison
Represented by Donald J. Ayoob
Office of the State Public Defender
221 Main Street, 10th Floor
San Francisco, CA
|Apr 14 2008||Opinion: Affirmed|
|Jan 23 1996||Judgment of death|
|Jan 29 1996||Filed certified copy of Judgment of Death Rendered|
|Feb 9 1996||Received:|
appellant's application for appointment of counsel (IFP form)
|Sep 22 2000||Order appointing State Public Defender filed|
to represent applt for the direct appeal.
|Oct 11 2000||Received letter from:|
Superior court dated 10/5/2000; re record was sent to applt counsel on 9/25/2000.
|Nov 22 2000||Counsel's status report received (confidential)|
from State P.D.
|Dec 21 2000||Application for Extension of Time filed|
By applt to request correction of the record. (1st request)
|Jan 2 2001||Extension of Time application Granted|
To 2/27/2001 to applt to request corr. of the record.
|Jan 22 2001||Counsel's status report received (confidential)|
from State P.D.
|Feb 21 2001||Application for Extension of Time filed|
By applt to request corr. of the record. (2nd request)
|Feb 26 2001||Extension of Time application Granted|
To 4/30/2001 to applt to request corr. of the record.
|Mar 20 2001||Counsel's status report received (confidential)|
from State P.D.
|Apr 25 2001||Application for Extension of Time filed|
By applt. to request corr. of the record. (3rd request)
|Apr 27 2001||Extension of Time application Granted|
To 6/29/2001 to applt. to request corr. of the record.
|May 21 2001||Counsel's status report received (confidential)|
from State P.D.
|Jun 27 2001||Application for Extension of Time filed|
to request record correction. (4th request)
|Jul 9 2001||Extension of Time application Granted|
To 8/28/2001 to applt. to request corr. of the record.
|Jul 17 2001||Counsel's status report received (confidential)|
from State P.D.
|Aug 24 2001||Application for Extension of Time filed|
by applt. to request corr. of the record. (5th request)
|Aug 29 2001||Extension of Time application Granted|
To 10/29/2001 to applt. to request corr. of the record. No further extensions of time are contemplated.
|Sep 14 2001||Counsel's status report received (confidential)|
from State P.D.
|Oct 22 2001||Application for Extension of Time filed|
by applt. to request corr. of the record. (6th request)
|Oct 26 2001||Extension of Time application Granted|
To 12/28/2001 to applt. to request corr. of the record. No further extensions of time will be granted.
|Nov 13 2001||Counsel's status report received (confidential)|
from State P.D.
|Jan 11 2002||Counsel's status report received (confidential)|
from State P.D.
|Jan 11 2002||Received copy of appellant's record correction motion|
applt's motion to correct, augment and settle the record on appeal. (44 pp.)
|Mar 15 2002||Counsel's status report received (confidential)|
from State P.D.
|May 14 2002||Counsel's status report received (confidential)|
from State P.D.
|Jul 11 2002||Counsel's status report received (confidential)|
from State P.D.
|Sep 13 2002||Counsel's status report received (confidential)|
from State P.D.
|Nov 12 2002||Counsel's status report received (confidential)|
from State P.D.
|Jan 15 2003||Counsel's status report received (confidential)|
from State P.D.
|Mar 20 2003||Counsel's status report received (confidential)|
from State P.D.
|May 20 2003||Counsel's status report received (confidential)|
from State P.D.
|Jun 3 2003||Record on appeal filed|
31 vols. of clerk's transcript (7,157 pp.) and 36 vols. of reporter's transcript (7,058 pp.), including material under seal and 3,338 pp. of juror questionnaires.
|Jun 3 2003||Appellant's opening brief letter sent, due:|
|Jun 25 2003||Motion filed|
by appellant to vacate certification, or, in the alternative, to correct, augment and settle the record.
|Jul 11 2003||Request for extension of time filed|
to file AOB. (1st request)
|Jul 16 2003||Extension of time granted|
to 9-12-2003 to file AOB. The court anticipates that after that date, only four further extensions totaling 240 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
|Jul 22 2003||Counsel's status report received (confidential)|
from State P.D.
|Jul 22 2003||Opposition filed|
by respondent to motion to vacate certification of the record.
|Aug 8 2003||Filed:|
"Appellant's Reply to Respondent's Opposition to Motion to Vacate Certification of the Record."
|Aug 13 2003||Record correction denied|
Appellant's "Motion to Vacate Certification, or, in the Alternative, to Correct, Augment and Settle the Record," filed June 25, 2003, is denied.
|Sep 10 2003||Request for extension of time filed|
to file appellant's opening brief. (2nd request)
|Sep 17 2003||Extension of time granted|
to 11/12/2003 to file appellant's opening brief. The court anticipates that after that date, only three further extensions totaling 180 additional days will be granted. Counsel is ordered to inform or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel fo record, of this schedule, and to take all steps necessary to meet it.
|Sep 25 2003||Counsel's status report received (confidential)|
from State P.D.
|Nov 5 2003||Request for extension of time filed|
to file appellant's opening brief. (3rd request)
|Nov 12 2003||Extension of time granted|
to 1/12/2004 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
|Dec 3 2003||Counsel's status report received (confidential)|
from State P.D.
|Jan 12 2004||Request for extension of time filed|
to file appellant's opening brief. (4th request)
|Jan 12 2004||Counsel's status report received (confidential)|
from State P.D.
|Jan 14 2004||Extension of time granted|
to 3/12/2004 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 90 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
|Mar 10 2004||Request for extension of time filed|
to file appellant's opening brief. (5th request)
|Mar 10 2004||Counsel's status report received (confidential)|
from State P.D.
|Mar 12 2004||Extension of time granted|
to 5/11/2004 to file the appellant's opening brief.After that date, only two further extensions totaling 120 additional days will be granted. Extension is granted based upon Deputy State Public Defender Jamilla Moore's representation that she anticipates filing that document by 9/2004.
|May 10 2004||Request for extension of time filed|
to file appellant's opening brief. (6th request)
|May 10 2004||Counsel's status report received (confidential)|
from State P.D.
|May 13 2004||Extension of time granted|
to 7/12/2004 to file appellant's opening brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon Deputy State Public Defender Jamilla Moore's representation that she anticipates filing that brief by 9/2004.
|Jul 6 2004||Request for extension of time filed|
to file appellant's opening brief. (7th request)
|Jul 6 2004||Counsel's status report received (confidential)|
from State P.D.
|Jul 9 2004||Extension of time granted|
to 9-13-2004 to file AOB. After that date, only one further extension totaling about 60 additional days will be granted. Extension granted based upon Deputy SPD Jamilla Moore's representation that she anticipates filing the brief by 11-2004.
|Sep 8 2004||Request for extension of time filed|
to file appellant's opening brief. (8th request)
|Sep 8 2004||Counsel's status report received (confidential)|
from State P.D.
|Sep 13 2004||Extension of time granted|
to 11/12/2004 to file appellant's opening brief. After that date, only one further extension totaling about 45 additional days will be granted. Extension is granted based upon Deputy State Public Defender Jamilla Moore's representation that she anticipates filing that brief by the end of 12/2004.
|Nov 5 2004||Request for extension of time filed|
to file appellant's opening brief. (9th request)
|Nov 10 2004||Extension of time granted|
to 1/11/2005 to file appellant's opening brief. Extension is granted ased upon Deputy State Public Defender Jamilla Moore's representation that she anticipates filing that brief by 1/11/2005. After that date, no further extension will be granted.
|Dec 30 2004||Request for extension of time filed|
to file AOB. (10th request)
|Jan 4 2005||Counsel's status report received (confidential)|
from State P.D.
|Jan 5 2005||Extension of time granted|
to 2-10-2005 to file AOB. After that date, no further extension will be granted. Extension is granted based upon Deputy SPD Jamilla Moore's representation that she anticipates filing the brief by 2-10-2005.
|Feb 7 2005||Request for extension of time filed|
to file appellant's opening brief. (11th request)
|Feb 10 2005||Extension of time granted|
to 4/11/2005 to file appellant's opening brief. After that date, only one further extension totaling about 60 additional days will be granted. Extensionis granted ased upon Assistant State Public Defender Donald J. Ayoob's representation that he anticipates filing that brief by 6/13/2005.
|Mar 16 2005||Counsel's status report received (confidential)|
from State P.D.
|Mar 30 2005||Request for extension of time filed|
to file appellant's opening brief. (12th request)
|Apr 7 2005||Extension of time granted|
to 5/11/2005 to file appellant's opening brief. After that date, only one further extension totaling about 30 additional days is contemplated. Extension is granted based upon Assistant State Public Defender Donald J. Ayoob's representations regarding the status of preparation of the appellant's opening brief.
|May 4 2005||Request for extension of time filed|
to file appellant's opening brief. (13th request)
|May 4 2005||Counsel's status report received (confidential)|
from State P.D.
|May 4 2005||Counsel's status report received (confidential)|
(supplement) from State P.D.
|May 10 2005||Extension of time granted|
to 6/10/2005 to file appellant's opening brief. After that date, only one further extension totaling about 30 additional days is contemplated. Extension is granted based upon Deputy State Public Defender Jamilla Moore's representation that she anticipates filing that brief by 7/12/2005.
|Jun 6 2005||Counsel's status report received (confidential)|
from State P.D.
|Jun 6 2005||Request for extension of time filed|
to file appellant's opening brief. (14th request)
|Jun 13 2005||Extension of time granted|
to 8-10-2005 to file AOB. After that date, no further extension will be granted. Extension granted based upon Deputy SPD Jamilla Moore's representation that she anticipates filing the brief by 8-10-2005.
|Aug 5 2005||Request for extension of time filed|
to file appellant's opening brief. (15th request)
|Aug 11 2005||Extension of time granted|
to 8/25/2005 to file appellant's opening brief. Extension is granted based upon Deputy State Public Defender Jamilla Moore's representation that she anticipates filing that brief by 8/25/2005. After that date, no further extension will be granted.
|Aug 25 2005||Application to file over-length brief filed|
to file appellant's opening brief. (129,530 word brief submitted under separate cover)
|Aug 25 2005||Request for judicial notice filed (AA)|
|Aug 26 2005||Order filed|
appellant's application for leave to file oversize opening brief is granted.
|Aug 26 2005||Appellant's opening brief filed|
(129,530 words; 455 pp.)
|Sep 23 2005||Request for extension of time filed|
to file respondent's brief. (1st request)
|Sep 26 2005||Extension of time granted|
to 11/28/2005 to file respondent's brief.
|Nov 18 2005||Request for extension of time filed|
to file respondent's brief. (2nd request)
|Nov 28 2005||Extension of time granted|
to 1/27/2006 to file respondent's brief.
|Jan 23 2006||Request for extension of time filed|
to file respondent's brief. (3rd request)
|Jan 25 2006||Extension of time granted|
to 3/1/2006 to file respondent's brief. Extension is granted based upon Deputy Attorney General Brad A. Weinreb's representation that he anticipates filing that brief by 3/1/2006. After that date, no further extension is contemplated.
|Feb 17 2006||Request for extension of time filed|
to file respondent's brief. (4th request)
|Feb 23 2006||Extension of time granted|
to April 3, 2006 to file the respondent's brief. After that date, no further extension will be granted. Extension is granted based upon Deputy Attorney General Brad A. Weinreb's representation that he anticipates filing that brief by April 3, 2006.
|Apr 3 2006||Respondent's brief filed|
(40,079 words; 131 pp.)
|Apr 14 2006||Request for extension of time filed|
to file appellant's reply brief. (1st request)
|Apr 19 2006||Extension of time granted|
to June 22, 2006 to file appellant's reply brief.
|Jun 16 2006||Request for extension of time filed|
to file appellant's reply brief. (2nd request)
|Jun 21 2006||Extension of time granted|
to August 21, 2006 to file appellant's reply brief.
|Aug 14 2006||Request for extension of time filed|
to file appellant's reply brief. (3rd request)
|Aug 21 2006||Extension of time granted|
to October 20, 2007 to file the appellant's reply brief. After that date, only four further extensions totaling about 210 additional days will be granted. Extension is granted based upon Deputy State Public Defender Jamilla Moore's representation that she anticipates filing that brief by March 2007.
|Aug 24 2006||Order filed|
The order filed on August 21, 2006, is amended to read as follows: Good cause appearing, and based upon Deputy State Public Defender Jamilla Moore's representation that she anticipates filing the appellant's reply brief by March 2007, counsel's request for an extension of time in which to file that brief is granted to October 20, 2006. After that date, only four further extensions totaling about 210 additional days will be granted.
|Oct 16 2006||Request for extension of time filed|
to file appellant's reply brief. (4th request)
|Oct 20 2006||Extension of time granted|
to December 19, 2006 to file the appellant's reply brief. After that date, only three further extensions totaling about 150 additional days will be granted. Extension is granted based upon Deputy State Public Defender Jamilla Moore's representation that she anticipates filing that brief by May 2007.
|Dec 14 2006||Request for extension of time filed|
to file appellant's reply brief. (5th request)
|Dec 21 2006||Extension of time granted|
to February 20, 2007 to file the appellant's reply brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted based upon Deputy State Public Defender Jamilla Moore's representation that she anticipates filing that brief by May 2007.
|Feb 9 2007||Request for extension of time filed|
to file appellant's reply brief. (6th request)
|Feb 15 2007||Extension of time granted|
to April 23, 2007 to file appellant's reply brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted based upon Deputy State Public Defender Jamilla Moore's representation that she anticipates filing that brief by July 2007.
|Apr 17 2007||Request for extension of time filed|
to file appellant's reply brief. (7th request)
|Apr 23 2007||Extension of time granted|
to June 22, 2007 to file the reply brief. After that date, only two further extensions totaling about 120 additional days will be granted. Extension is granted based upon Deputy State Public Defender Jamilla Moore's representation that she anticipates filing that brief by October 2007.
|Jun 18 2007||Request for extension of time filed|
to file appellant's reply brief. (8th request)
|Jun 22 2007||Extension of time granted|
Good cause appearing, counsel's request for an extension of time in which to file the appellant's reply brief is granted to August 21, 2007. The court anticipates that after that date, only one further extension totaling about 60 additional days will be granted. Counsel is ordered to inform his or her supervising attorney, if any, of this schedule, and to take all steps necessary to meet it.
|Aug 15 2007||Request for extension of time filed|
to file appellant's reply brief. (9th request)
|Aug 21 2007||Extension of time granted|
Good cause appearing, and based upon counsel Deputy State Public Defender Jamilla Moore's representation that she anticipates filing the appellant's reply brief by November 30, 2007, counsel's request for an extension of time in which to file that brief is granted to October 22, 2007. After that date, no further extension will be granted.
|Aug 24 2007||Order filed|
The order filed on August 21, 2007, is amended to read as follows: Good cause appearing, counsel's request for an extension of time in which to file appellant's reply brief is granted to October 22, 2007. After that date, no further extension will be granted. Counsel is ordered to inform his or her supervising attorney, if any, of this schedule, and to take all steps necessary to meet it.
|Oct 22 2007||Appellant's reply brief filed|
(35, 237 words, 134 pp)
|Oct 30 2007||Oral argument letter sent|
advising counsel that the court could schedule this case for argument as early as the January 2008 calendar, to be held the week of January 7, 2008, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
|Nov 7 2007||Received:|
letter from Chief Assistant State Public Defender Donald Ayoob, dated November 7, 2007, requesting that the case be scheduled for argument somtime after January 2008. Case has been reassigned to him for oral argument.
|Nov 19 2007||Received:|
letter from Deputy Attorney General Ivy Fitzpatrick, dated November 19, 2007, advising that she will be arguing the case for respondent.
|Dec 5 2007||Letter sent to:|
counsel advising that this case will be scheduled for oral argument during the February session, to be held the week of February 4, 2008, in Sacramento.
|Jan 3 2008||Case ordered on calendar|
to be argued on Tuesday, February 5, 2008, at 2:00 p.m., in Sacramento
|Jan 14 2008||Received:|
appearance sheet from Deputy State Public Defender Donald J. Ayoob, indicating 45 minutes for oral argument for appellant.
|Jan 14 2008||Filed:|
appellant's focus issues letter dated January 14, 2008.
|Jan 15 2008||Request for Extended Media coverage Filed|
The California Channel, BY James Gualtieri, operations manager.
|Jan 22 2008||Request for Extended Media coverage Granted|
The request for extended media coverage, filed by The California Channel on January 15, 2008, is granted, subject to the conditions set forth in rule 1.150, California Rules of Court.
|Jan 25 2008||Received:|
Appellant's list of additional authorities for oral argument.
|Jan 29 2008||Filed:|
letter from appellant, dated January 28, 2008. (3 pp. plus attachments)
|Feb 1 2008||Exhibit(s) lodged|
People's Exhibits: 14, 23, 24, 27, 28, 30, 32, 37, 40, 41, 42, 44, 45, 46, 64, 79. (photos)
|Feb 5 2008||Cause argued and submitted|
|Apr 11 2008||Notice of forthcoming opinion posted|
|Apr 14 2008||Opinion filed: Judgment affirmed in full|
opinion by Chin, J. -----joined by George, C.J., Kennard, Baxter, Werdegar, Moreno, Corrigan, JJ
|Apr 29 2008||Rehearing petition filed|
by appellant (2,977 words; 15 pp.)
|Apr 30 2008||Time extended to consider modification or rehearing|
The time for granting or denying rehearing in the above-entitled case is hereby extended to and including July 11, 2008, or the date upon which rehearing is either granted or denied, whichever occurs first.
|Jun 25 2008||Rehearing denied|
George, C.J., was absent and did not participate. Corrigan, J., was absent and did not participate.
|Jun 25 2008||Remittitur issued (AA)|
|Jun 30 2008||Received:|
from appellant, copy of motion for leave to proceed in forma pauperis on petition for writ of certiorari. (20 pp. excluding appendices)
|Jul 1 2008||Exhibit(s) returned|
to superior court.
|Jul 7 2008||Received:|
acknowledgment for receipt of exhibits from superior court.
|Jul 7 2008||Received:|
receipt for remittitur.
|Aug 18 2008||Received:|
appellant's "Reply to Respondent's Brief in Opposition to Petition for Writ of Certiorari."
|Oct 2 2008||Related habeas corpus petition filed (post-judgment)|
|Oct 6 2008||Certiorari denied by U.S. Supreme Court|
|Aug 26 2009||Order appointing Habeas Corpus Resource Center filed|
Appellant: Valencia, Alfredo Upon request of condemned prisoner Alfredo Valencia for appointment of counsel, the Habeas Corpus Resource Center is hereby appointed to represent Alfredo Valencia for habeas corpus/executive clemency proceedings related to the above automatic appeal now final in this court. Any "petition for writ of habeas corpus will be presumed to be filed without substantial delay if it is filed . . . within 36 months" of this date (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, timeliness std. 1-1.1), and it will be presumed that any successive petition filed within that period is justified or excused (see In re Clark (1993) 5 Cal.4th 750, 774-782), in light of this court's delay in appointing habeas corpus/executive clemency counsel on behalf of condemned prisoner Alfredo Valencia.
|Aug 26 2005||Appellant's opening brief filed|
|Apr 3 2006||Respondent's brief filed|
|Oct 22 2007||Appellant's reply brief filed|