Filed 8/2/10
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S083904
v.
NATHAN VERDUGO,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. BA105622
Defendant Nathan Verdugo was convicted of the first degree murders of
Yolanda Navarro and Richard Rodriguez. (Pen. Code, §§ 187, 189.)1 The jury
also found true the multiple-murder special-circumstance allegation, as well as
allegations that defendant personally used a firearm, i.e., a shotgun, in each crime.
(§§ 190.2, subd. (a)(3), 12022.5, former subd. (a).) At the penalty phase, it
returned a death verdict, and the trial court entered a judgment of death. This
appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); Pen. Code, § 1239,
subd. (b).) We affirm the judgment.
1
All further statutory references are to the Penal Code unless otherwise
indicated.
1
I. FACTUAL BACKGROUND
A. Guilt Phase
1. Prosecution evidence
a. Events on October 22 and 23, 1994
On October 22, 1994, defendant went to a Halloween party at the home of
Hector Casas in the Glassell Park neighborhood of Los Angeles. The party was
well attended, and guests included Lisa Ruvalcaba, Raymond Muro, Paul Escoto,
defendant‟s friend Michael (Mike) Arevalo, and victims Rodriguez and Navarro.
Defendant wore wire-rimmed glasses and drove a black Honda CRX, which had
tinted windows and a loud exhaust system.
At one point Lisa Ruvalcaba — who resembled victim Yolanda Navarro —
attacked Michael Arevalo, hitting him in the face with a beer bottle. Arevalo, who
was bleeding and enraged, yelled, “Fucking bitch.” He had to be restrained from
retaliating by a group of approximately seven people. Someone in the group
yelled, “Shoot the bitch.” Arevalo was taken to the hospital, where he received
over 50 stitches.
After the attack, defendant left the party and ran to his car. Raymond Muro
followed. Defendant opened his trunk and showed Muro a pump-action shotgun
with a pistol grip. Defendant told Muro he was going to “get that girl” or “get
those people.” Muro responded, “just calm down, . . . there is no need for that.”
Defendant then put the shotgun away, and he and Muro returned to the party.
Rodriguez and Navarro left the party in Rodriguez‟s burgundy Honda Civic.
Another car, resembling defendant‟s black Honda CRX, pulled out and followed
them.
About 2:00 a.m., Alex Quintana of the Los Angeles Fire Department heard
voices and someone running outside the window of the fire station at Huntington
2
Drive and Monterey Road. Firefighter Donald Jones heard an argument.
Quintana then heard what sounded like a shotgun blast. About 10 seconds later he
heard a second shotgun blast, and three to five seconds after that a third blast.
Quintana then heard a woman “begging for her life.” She said: “No, no, please
don‟t do it. Please, please, don‟t.” Quintana heard another shotgun blast. He
looked out of the window and saw a man “standing over the girl holding a
shotgun” six to 12 inches from the woman‟s head. The woman was facedown,
lying on her side on the sidewalk. The man inserted another round into the
chamber of the shotgun, which Quintana identified by sound as a “pump action.”
The man then shot the woman in the head.
Firefighter Jones saw the gunman, who he said looked like defendant, run to
a car with a louvered rear window. Firefighter Quintana saw a black Honda with
tinted windows and a loud exhaust system “come out from around the fence and
head north.”
The firefighters left the station. They found two bodies: the woman whose
death Quintana had witnessed (later identified as Navarro) and a man (later
identified as Rodriguez). Rodriguez‟s car was parked, but it was still running,
with its lights on. It had sustained collision damage. About a car‟s length behind
this vehicle, Firefighter Jones found a pair of wire-rimmed eyeglasses on the
ground. The lenses in these glasses matched a prescription defendant had received
about a year earlier. Also found in the area were five 12-gauge Fiocchi shotgun
shells. There were skid marks behind the vehicle, and the distance between the
skid marks matched the wheelbase on defendant‟s Honda CRX. The marks had
been made by a front-wheel-drive car such as defendant‟s.
3
The firefighters blocked the streets with their fire engines. As they did so,
Jonathan Rodriguez2 arrived at the scene and told firefighters that he thought the
deceased woman on the sidewalk was his sister. Firefighter Quintana questioned
his identification because part of the woman‟s face was missing. Jonathan called
his mother from the fire station and asked her to page his sister. A pager lying
next to the woman began vibrating.
The autopsies showed that Navarro and Rodriguez died from gunshot
wounds to the head, inflicted by a weapon held two to four feet away. Navarro
suffered a single gunshot wound. Rodriguez suffered a gunshot wound to the head
and three gunshot wounds to his foot and leg; the latter were consistent with being
shot while attempting to run away. Toxicology analysis of Rodriguez‟s blood did
not show the presence of alcohol or drugs.
Michael Arevalo was discharged from the hospital between 2:20 and 2:40
a.m. on October 23. He was taken back to Hector Casas‟s house. Arevalo,
Arevalo‟s father, Arevalo‟s father‟s girlfriend, and Raymond Muro then drove to
Muro‟s house, which was located directly in front of Arevalo‟s father‟s house. As
they pulled into the carport, Muro saw defendant. Muro heard defendant tell
Arevalo that “the situation had been handled,” and Arevalo and defendant
embraced. Defendant spent the night at Muro‟s house.
In the morning, defendant, Arevalo, and Muro went out to breakfast.
Defendant was wearing sunglasses that were different from the wire-rimmed
glasses he had worn to the party the night before. While they were at the
restaurant, Arevalo‟s mother arrived and spoke with Arevalo privately, telling him
2
There is no indication in the record that Jonathan Rodriguez and murder
victim Richard Rodriguez were related.
4
about the double homicide. When Arevalo returned to the table, he relayed this
information to defendant and Muro.
b. Defendant’s statements
Donna Tucker, who was married to defendant‟s brother Michael, had known
defendant since he was three years old. In the summer or fall of 1993, defendant
told Tucker that he and Arevalo were like brothers and that they would do
anything for one another.
On October 23, 1994, in the morning of the murders, defendant called
Tucker, who lived about a quarter of a mile from the murder scene. Defendant
excitedly asked Tucker: “Did you hear the shots in the neighborhood? My friend
Mikey told me that there were shots fired in your neighborhood.” Sometime
between October 23 and November 2, Tucker asked defendant to help move items
out of storage to her house. Defendant refused, saying he could not “come into the
area” because “[i]t was too dangerous.”
Tucker testified that on November 2, 1994, defendant was working with
Tucker and his brother Michael Verdugo at a construction site in Van Nuys.
Tucker let defendant use the phone to return a page from his brother Paul. Paul
told defendant that the police wanted to speak with him about a fight at a party.
Defendant then called the police.
During this telephone conversation, Tucker heard defendant say that he had
left the party early and had not seen a fight. He said that he was calling from Las
Vegas, where he was working on a construction site, and that he could not give his
address or telephone number. Detective Andrew Teague of the Los Angeles
Police Department testified about the same telephone conversation. He said that
he received a call from defendant, who said he was living in Las Vegas and
5
working for “TG&E Construction Company.” Defendant sounded nervous during
the conversation and refused to give Teague his address or telephone number.
After defendant completed the telephone conversation, he told Tucker that on
his way to Magic Mountain he “killed two guys.” He said the homicides occurred
after he left a party. Gang members chased his car and crashed into him at
Huntington Drive and Monterey Road. Then a man with tattoos from “head to
toe” shot at him. Defendant said he shot the man because it “was him or me.” He
said there was “a girl” with the man, and he “shot her because she saw
everything.” Defendant said that the police would be after him and that he was
going to flee.
On November 9 or 10, 1994, Tucker and defendant met so she could return
some equipment from the November 2 construction job. Defendant told Tucker
that he could not go to her neighborhood, so they met in a Bank of America
parking lot in South Pasadena. At this meeting, defendant said that the police and
the Federal Bureau of Investigation were after him, and he kept looking around.
Tucker showed defendant a newspaper story about the murders. She asked him,
“Is this the one you were talking about?” Defendant read the article and replied,
“Yeah, that‟s the one,” but he added, “that‟s not the way it happened.” He then
gave a description of the killings that was similar to the one he had given on
November 2 and said about the killings that “he got a rush off of that, that it felt
really good.” During this conversation, defendant was smiling and seemed
excited. Defendant said that his brother Paul helped him get rid of his bloody
clothes and the shotgun.
At some point before defendant was arrested, Tucker showed him a different
newspaper article about the murders and asked him if he had committed them.
Defendant said he had. Tucker asked him whether he was sorry, and he said he
was not. Defendant said that the firefighters “in the upper floors saw him, that his
6
fingerprints were on the shotgun shells, [and that] they had his eyeglasses.” He
also said that, contrary to what the newspaper article said, there was no traffic at
the time of the murders. Defendant told Tucker that he had been in Mexico, but
was forced to return when a local newspaper “show[ed] him with a beard.”
Defendant then wrote a letter to his sister Pauline, which Tucker agreed to send.
Defendant, who was shaking, wrote that he was sorry for what he had done, that
things did not look good for him, and that he would wait to see her.
Tucker subsequently received another letter that defendant had written to
Pauline, postmarked April 14, 1995. In the letter, defendant said: “The [p]olice
have shotgun sh[e]lls that have my prints on them and a pair of glass[es] that I
have on in the photo.” He also enclosed a copy of a newspaper article about the
murders.
A relative of defendant‟s, Juan Carlos Enciso, made a tape-recorded
statement to police on December 15, 1994. This statement was played for the
jury. Enciso told police that defendant had told him during the first week of
November 1994 that he had recently “bl[o]w[n] away” two people. Defendant
claimed there had been a chase on the freeway, that the people chasing him were
shooting at him, and that he had to kill them or be killed.
In addition, Detective Teague and Detective Charles Markel of the Los
Angeles Police Department testified about an untaped interview with Enciso.
Enciso said that defendant had told him that his Honda CRX had “crashed” during
the shooting incident and that it needed to be repaired.
At the time of his arrest, defendant was carrying a letter he had written to his
sister Pauline, telling her to “[b]urn all paper from me.”
7
c. Other evidence linking defendant to the murders
In November or December 1994, defendant, defendant‟s uncle Daniel
Cuevas, and defendant‟s brother Paul Verdugo took defendant‟s Honda CRX to a
shop to be painted yellow. After the painting was completed, the shop called
Cuevas four or five times, and he in turn contacted defendant‟s brother Paul, but
the car was never picked up. On April 15, 1995, police located and impounded the
vehicle.
The murder weapon was not introduced at trial, but the prosecution
introduced evidence that on September 19, 1990, defendant purchased two
Mossberg 12-gauge shotguns from a Big 5 Sporting Goods store. On April 16,
1992, he reported them stolen to the police. On January 17, 1993, police
recovered one of the shotguns, which had a pump action, and on January 28, 1993,
they released it to defendant.
Defendant was arrested on April 27, 1995. He was found hiding in a secret
compartment behind the linen closet in his father‟s home.
2. Defense evidence
Defendant testified that he was born on September 5, 1972, and had no
criminal record. He completed the 10th grade in high school. He denied
murdering Navarro and Rodriguez and claimed that Raymond Muro and Paul
Escoto had committed the murders.
Defendant testified that in February 1994 he was stabbed, and his Honda
CRX was damaged. After this incident, he began carrying a shotgun in his car.
Defendant admitted that Arevalo was a good friend but, contrary to the
prosecutor‟s assertion, defendant denied Arevalo was as “close as being a brother”
or that defendant “would do anything for him.” Although defendant had known
Arevalo as a child, they had become friends less than a year before defendant was
stabbed.
8
Defendant testified that he and Arevalo attended the Halloween party on the
night of the murders, at which Arevalo was hit with a bottle. Defendant was in the
kitchen at the time, and Arevalo was outside. Defendant did not see Arevalo after
he was hit, and defendant left the party because he did not want to get involved.
He found the driver‟s door to his car open and noticed that his shotgun and a
jacket were missing. Also missing was a key to his vehicle, which he said he had
hidden under the fender. A pair of defendant‟s eyeglasses, similar to the ones he
had worn that night, were in the missing jacket. Defendant testified that he had
shown the hidden car key to several individuals, including Arevalo, Muro, and
Escoto.
Defendant stated that he returned to the party after discovering his car open
and the items missing. Defendant believed that Arevalo had taken the shotgun,
because Arevalo knew about the hidden key and had taken defendant‟s shotgun
out of the car on another occasion. In addition, he heard Arevalo shout at the
party: “Fuck you, bitch. You‟re going to get it.” Defendant could not locate
Arevalo at the party and went to Arevalo‟s father‟s house looking for him. On
cross-examination, defendant said that Arevalo arrived at the house shortly after
defendant,3 accompanied by his father, his father‟s girlfriend, and Muro. He said
that Muro was “jittery.” Defendant spent the night at Muro‟s house. He said that
Muro acted nervous, could not sleep, and drank heavily.
3
The prosecutor asked defendant if he had waited for Arevalo about 10
minutes, and defendant answered: “No. It was short.” On redirect examination
by defense counsel four days later, defendant stated he waited an hour to an hour
and a half. In response to the prosecutor‟s later inquiry about this discrepancy,
defendant said that he had “hurried” to answer the prosecutor‟s questions and “left
a lot of things out.”
9
Defendant testified that later the same morning, defendant, Arevalo, and
Muro went out to breakfast. Arevalo‟s mother arrived, and Arevalo left the
restaurant to speak with her. Defendant told Muro that he believed Arevalo had
taken defendant‟s shotgun, and Muro said: “No. Me and Paul did.” Muro also
said he and Escoto “took care of things.” Defendant asked Muro what he meant,
and Muro, who had been a Marine, said that “his training paid off.” Defendant
then said: “I don‟t care what you did. I just want my gun back.”
Defendant testified that he did not report the shotgun theft to law
enforcement officials because he was concerned about the risk to his family. He
lied to Detective Teague about being in Las Vegas, because he did not want to get
involved regarding the events that had taken place at the Halloween party. He said
that his family had to move after he was stabbed, implying that he lied because he
did not want to go through a similar situation again. Defendant said that he was
afraid Arevalo and his friends would hurt defendant and his family.
Defendant testified that he fled when he learned he was a suspect in the
murders. He changed his appearance, used aliases, and stayed in motels. He said
that he lost the wire-rimmed glasses he had worn to the Halloween party.
Defendant admitted that he lied to police during an interview after his arrest.
He testified: “I‟m a liar, a storyteller, but I‟m not no killer.”
Defendant also testified that he never got along with Donna Tucker. He said
that he never spoke with Tucker and that she had lied when she testified about
conversations between herself and defendant after the murders.
Defendant discussed defense exhibit B, which was a pair of eyeglasses. He
said that they resembled, but were not, the pair of eyeglasses that he wore to the
Halloween party. Defendant explained that he asked someone to purchase the
10
exhibit B eyeglasses while he was in jail and then falsely informed his attorney
that they were the glasses he had worn to the party.4 He said he lied about the
eyeglasses because others had lied. Defendant said: “I panicked, felt like I was
being framed, no one was going to believe me, that I lost the glasses, so I had
those purchased.”
Mary Alice Baldwin, defendant‟s sister, testified that defendant was born in
Pasadena. Their mother died in 1982, when defendant was a boy, and Baldwin,
who was 15 years older than defendant, assumed a maternal role in his life.
Baldwin testified that defendant had a learning disability that affected his
comprehension of English and his ability to spell.
Baldwin further testified that defendant told her around Thanksgiving 1994
that “Ray” and “Paul” had committed the murders after taking defendant‟s
shotgun. They had also threatened to kill defendant, and defendant feared they
would kill his family. Baldwin further testified that defendant‟s Honda CRX did
not have louvers on the back window.
The defense also presented expert testimony describing the effect to a human
head when it receives a shotgun wound at close range.
3. Prosecution rebuttal evidence
Mary Alice Baldwin, defendant‟s sister, testified about statements defendant
had made to her, which she had earlier related to detectives. Defendant had told
4
In his opening statement, defense counsel promised to show the jury the
eyeglasses defendant wore at the party, thereby undermining the prosecution‟s
argument that the eyeglasses found at the scene of the murders were defendant‟s
eyeglasses. Later, the prosecution introduced evidence indicating that, long after
the murders, defendant‟s brother and father purchased eyeglasses that resembled
the eyeglasses police had found at the murder scene.
11
her of a time when he was driving home on the Long Beach freeway and “they
were shooting at me.” Defendant had told her that he tried to get away.
Detective Markel testified about a telephone conversation he had with
Baldwin on May 23, 1995, in which she described the statements defendant had
made to her. Baldwin told Markel that she had seen defendant about a month
earlier. At that time, defendant told her about a time when he was going home on
the Long Beach freeway and certain individuals shot at him and it was either “him
or me.”
Detective Teague testified that louvers could be applied to the rear window
of a car, either by drilling holes into the metal of the vehicle or by using double-
sided adhesive. The latter method allowed the louvers to be easily removed, and
the glue also could be removed with a solvent.
B. Penalty Phase
1. Prosecution evidence
Relatives of the victims testified about the effect the murders had on their
lives. The jury heard testimony from Rodriguez‟s mother, two cousins, and his
aunt and uncle, and also from Navarro‟s mother, sister, and brother.
2. Defense evidence
William Wright testified that he and defendant had been friends for about 23
years. He met defendant when defendant was between five and seven years old, at
which time Wright was 17 or 18 years old. As a child, defendant was quiet, very
respectful, and industrious. He was also extremely close to his family. Wright
had never seen defendant bully anyone or known him to be violent. Wright did
not know any of the details of defendant‟s crimes. He offered his opinion that
prosecution witness Donna Tucker was not a credible person. He also testified
that, if defendant were allowed to live, he would be productive in prison.
12
Michael Verdugo, defendant‟s brother, testified that he was 12 to 13 years
older than defendant. He and defendant were close, as was defendant to other
family members. Michael stated that defendant worked for him on construction
sites. Defendant followed directions well and was good with his hands. Michael
also said that defendant avoided criminal street gangs.
Mary Alice Baldwin, defendant‟s sister, testified that she was 23 and
defendant was seven when their mother died. After his mother‟s death, defendant
became quieter and grew closer to Mary Alice. She testified that defendant had
difficulty understanding his school work and, in particular, learning to spell. She
also stated that defendant was always very helpful, loving, and friendly. She did
not believe he was guilty of the murders.
II. DISCUSSION
A. Guilt Phase Issues
1. Denial of Keenan counsel
Defendant, who was represented by retained counsel, contends that the trial
court erred under state law by refusing to appoint Keenan counsel and that the
error violated his rights under the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the federal Constitution, and article I, sections 7 and 15 through
17, of the California Constitution.5 (See Keenan v. Superior Court (1982) 31
5
What we said in People v. Loker (2008) 44 Cal.4th 691, 704, footnote 7
(Loker), is equally applicable here: “[A]s to this, and almost every other appellate
claim, defendant contends the alleged error infringed his constitutional rights. In
those instances where he did not present constitutional theories below, it appears
that either (1) the appellate claim is one that required no objection to preserve it, or
(2) the new arguments are based on factual or legal standards no different from
those the trial court was asked to apply, but raise the additional legal consequence
of violating the Constitution. „To that extent, defendant‟s new constitutional
arguments are not forfeited on appeal.‟ (People v. Boyer (2006) 38 Cal.4th 412,
(footnote continued on next page)
13
Cal.3d 424, 430 (Keenan) [trial court has discretion under statutes governing
appointment of counsel to appoint a second attorney to assist in the defense of a
capital case].) We disagree.
Defendant was represented by retained counsel George Hernandez. Before
trial, he filed a confidential application for Robert Beswick to be appointed as
second counsel under section 987, subdivision (d). The trial court denied the
motion for second counsel, stating (1) that “[t]here is nothing presented to this
Court that would indicate the agreement between defendant and counsel was for
anything less than full representation of the defendant during all proceedings,” and
(2) that Hernandez‟s declaration was “insufficient” in that “[t]here appear to be
neither specific facts nor complexity of issues that require such appointment.”
Section 987, subdivision (d), provides in relevant part: “In a capital case, the
court may appoint an additional attorney as a cocounsel upon a written request of
the first attorney appointed. The request shall be supported by an affidavit of the
first attorney setting forth in detail the reasons why a second attorney should be
appointed.” Even assuming without deciding that section 987, subdivision (d),
authorized the trial court here to appoint second counsel, the trial court did not
abuse its discretion in finding defense counsel Hernandez‟s declaration
insufficient to justify such an appointment.
“ „The initial burden . . . is on the defendant to present a specific factual
showing as to why the appointment of a second attorney is necessary to his
defense against the capital charges.‟ (People v. Lucky (1988) 45 Cal.3d 259, 279.)
(footnote continued from previous page)
441, fn. 17.) No separate constitutional discussion is required, or provided, when
rejection of a claim on the merits necessarily leads to rejection of any
constitutional theory or „gloss‟ raised for the first time here.”
14
An „abstract assertion‟ regarding the burden on defense counsel „cannot be used as
a substitute for a showing of genuine need.‟ (Id. at p. 280; People v. Jackson
(1980) 28 Cal.3d 264, 287 [no abuse of discretion in denying application for
second counsel when counsel merely relied on the circumstances surrounding the
case].)” (People v. Staten (2000) 24 Cal.4th 434, 447 (Staten).) In addition,
“ „[t]he appointment of a second counsel in a capital case is not an absolute right
protected by either the state or the federal Constitution.‟ ” (People v. Lancaster
(2007) 41 Cal.4th 50, 71.) We review the trial court‟s decision denying a request
to appoint second counsel for abuse of discretion. (People v. Roldan (2005) 35
Cal.4th 646, 688 (Roldan).)
Here, in his declaration, Hernandez stated that the “facts and issues involved
in this case are sufficiently complex to necessitate the appointment of second
counsel,” that counsel anticipated “many lengthy pre-trial motions, hearings and
writs,” that investigation of the guilt phase would cover “an extensive period
extending both before and after the date of the crime,” that the penalty issues were
“highly involved and complex” and that investigation into these issues should “be
commenced without delay.” Hernandez also specifically requested the
appointment of Robert Beswick, whose “defense talents compl[e]ment my
skills, . . . his strengths offset my weaknesses, and . . . his perceptions of evidence
and tactics are sufficiently divergent from my own to provide both a broader and
more objective viewpoint from which to make defense decisions and to formulate
trial strategy.”
Counsel‟s declaration did not, however, provide any specific information
justifying appointment of second counsel. Thus, unlike in Keenan, on which
defendant relies, counsel did not state that he needed to interview more than 100
witnesses, that the case involved complicated scientific and psychiatric testimony,
that trial would occur soon after counsel was appointed, or that other criminal
15
cases were pending against defendant and that the prosecution intended to rely on
evidence related to those cases here. (See Keenan, supra, 31 Cal.3d at pp. 432-
434.) Rather, counsel‟s declaration is comparable to those we have found
inadequate in other cases. (See, e.g., Staten, supra, 24 Cal.4th at p. 447 [the
defendant‟s application consisted of “little more than a bare assertion that second
counsel was necessary” and “presented no specific, compelling reasons”].) Nor
does our review of the record substantiate defendant‟s assertion that the case “was
extremely complex.”
Defendant further contends that he was prejudiced by the denial of his
application for appointment of second counsel, because “the instant case was trial
counsel‟s first capital trial” and counsel “lacked the ability to properly object or to
conform his conduct to that expected of capital counsel, as evidenced by the
innumerable reprimands and sanctions imposed by the trial court.” To the extent
defendant is arguing that the inexperience of retained counsel in trying capital
cases is a sufficient reason for appointment of second counsel, this argument was
not presented to the trial court, and hence cannot be raised on appeal. (Roldan,
supra, 35 Cal.4th at p. 688, fn. 13.)
2. Alleged failure to disclose Brady and section 1054.1 material
Defendant contends that the prosecution engaged in prejudicial misconduct
by failing to disclose material it was required to provide to the defense under
Brady v. Maryland (1963) 373 U.S. 83 (Brady) and section 1054.1. Defendant
asserts a violation of his rights under the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the federal Constitution, article I, sections 7 and 15 through 17, of
the California Constitution, and state statutory rights. We disagree.
“Pursuant to Brady, supra, 373 U.S. 83, the prosecution must disclose
material exculpatory evidence whether the defendant makes a specific request (id.
16
at p. 87), a general request, or none at all.” (In re Brown (1998) 17 Cal.4th 873,
879.) “For Brady purposes, evidence is favorable if it helps the defense or hurts
the prosecution, as by impeaching a prosecution witness. [Citations.] Evidence is
material if there is a reasonable probability its disclosure would have altered the
trial result. [Citation.] Materiality includes consideration of the effect of the
nondisclosure on defense investigations and trial strategies. [Citations.] Because
a constitutional violation occurs only if the suppressed evidence was material by
these standards, a finding that Brady was not satisfied is reversible without need
for further harmless-error review. [Citation.]” (People v. Zambrano (2007) 41
Cal.4th 1082, 1132-1133 (Zambrano); see also Cone v. Bell (2009) 556 U.S. __,
__ [129 S.Ct. 1769, 1782-1783].)
Section 1054.1 (the reciprocal-discovery statute) “independently requires
the prosecution to disclose to the defense, . . . certain categories of evidence „in the
possession of the prosecuting attorney or [known by] the prosecuting attorney . . .
to be in the possession of the investigating agencies.‟ ” (Zambrano, supra, 41
Cal.4th at p. 1133.) Evidence subject to disclosure includes “[s]tatements of all
defendants” (§ 1054.1, subd. (b)), “[a]ll relevant real evidence seized or obtained
as a part of the investigation of the offenses charged” (id., subd. (c)), any
“[r]elevant written or recorded statements of witnesses or reports of the statements
of witnesses whom the prosecutor intends to call at the trial, including any reports
or statements of experts” (id., subd. (f)), and “[a]ny exculpatory evidence” (id.,
subd. (e)). “Absent good cause, such evidence must be disclosed at least 30 days
before trial, or immediately if discovered or obtained within 30 days of trial.
(§ 1054.7.)” (Zambrano, at p. 1133.)
Upon a showing both that the defense complied with the informal discovery
procedures provided by the statute, and that the prosecutor has not complied with
section 1054.1, a trial court “may make any order necessary to enforce the
17
provisions” of the statute, “including, but not limited to, immediate disclosure, . . .
continuance of the matter, or any other lawful order.” (§ 1054.5, subd. (b).) The
court may also “advise the jury of any failure or refusal to disclose and of any
untimely disclosure.” (Ibid.) A violation of section 1054.1 is subject to the
harmless-error standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836.
(Zambrano, supra, 41 Cal.4th at p. 1135, fn. 13.)
a. Prosecutor’s notes regarding Raymond Muro interview
(1) Factual background
Raymond Muro testified that after the Halloween party, he went home with
Arevalo, Arevalo‟s father, and Arevalo‟s father‟s girlfriend. As they pulled into a
carport by Muro‟s house, Muro saw defendant. Arevalo and defendant had a
conversation. Without objection, Muro testified that defendant told Arevalo that
“the situation had been handled” and that Arevalo and defendant embraced.
After a recess, defense counsel informed the court that he had spoken to the
prosecutor about Muro‟s testimony, asking if defendant‟s statement “the situation
had been handled” was in a written report. The prosecutor told the court that his
interview with Muro had taken place a few months earlier and that he had told
defense counsel about the statement at that time, either in court or in a telephone
conversation. The prosecutor said, “I told him that the only thing different that I
recall from the interview was this new statement.” The prosecutor added that “the
only notes taken of the interview were notes that I took myself that I have
combined with questions that I have been asking the witness in court.” The trial
court ordered the prosecutor to give defense counsel a copy of these notes, after
redacting any attorney work product. The prosecutor agreed to do so.
Defense counsel suggested that the court had a “couple of remedies” for the
discovery violation, one of which was to strike the statement. The court said it did
18
not see any harm to defendant from failure to disclose the notes, because the
prosecutor had told defense counsel the substance of the statement. Defense
counsel said: “[H]e may have, your honor. . . . I don‟t know if he has anything in
his notes where he told me that.” The court found no discovery violation, but the
court offered to recess until the following afternoon, so that defense counsel would
have additional time to prepare for cross-examination. Trial counsel responded,
“Short of the court striking the testimony, I would appreciate that very much, your
honor.”
(2) Analysis
We first conclude that there was no Brady violation. As defendant
acknowledges, the statement by defendant that “the situation had been handled”
was “exceedingly damaging” to his case. Hence, it was not favorable to the
defense and did not fall within the scope of Brady, supra, 373 U.S. at page 87. In
addition, Muro testified to the statement. “[E]vidence that is presented at trial is
not considered suppressed, regardless of whether or not it had previously been
disclosed during discovery.” (People v. Morrison (2004) 34 Cal.4th 698, 715
(Morrison).)
Nor does defendant demonstrate prejudice from the prosecutor‟s violation of
section 1054.1. (See Thompson v. Superior Court (1997) 53 Cal.App.4th 480,
485-486, 488 [written notes of an interview with an intended trial witness, other
than attorney work product, are discoverable as “statements” within the meaning
of §§ 1054.1, subd. (f), 1054.3, subd. (a)]; § 1054.7.) The trial court found that the
prosecutor told defense counsel about the substance of the statement at the time
that it was made. In addition, the trial court stopped the prosecutor‟s direct
examination of Muro and granted a continuance in the proceedings, thus giving
defense counsel additional time to prepare for cross-examination. This
19
continuance appears to have been more than adequate to remedy the violation of
the discovery statute, and defendant does not attempt to demonstrate otherwise.
Defendant asserts that the “only appropriate sanction would have been to
strike the statement,” because “[b]y allowing the statement to remain, the trial
court perpetuated the great prejudice caused by the statement.” Without
elaboration, defendant also asserts that he “could not properly or effectively
prepare for cross-examination of witnesses,” that “his ability to impeach the
witness[] was adversely impacted,” and that “[t]imely disclosure of the
information would have enabled counsel to adjust his theory of the case to fit the
facts.” Such generalized statements are insufficient to demonstrate prejudice.
Defendant does not explain what counsel would have done differently if the notes
had been disclosed sooner.
b. Prosecutor’s notes regarding John Hernandez interview
(1) Factual background
John Hernandez testified that defendant visited his house in November or
December of 1994. After defendant left, Hernandez was stopped on the street by
the police and questioned. Hernandez also testified that, when he was interviewed
by the prosecutor, the prosecutor took notes. At a sidebar conference, the
prosecutor denied taking notes of the interview.
The morning after Hernandez‟s testimony, the prosecutor told defense
counsel that he had in fact taken notes of the Hernandez interview. The notes
referred to Hernandez‟s arrests for felony driving while under the influence and
assault on a police officer, his employer‟s telephone number, and a comment by
Hernandez that licensed professionals are liars. Hernandez had also told the
prosecutor that he had been not only arrested for driving under the influence, but
20
also convicted of that offense, but the prosecutor was not certain this additional
information was in the notes.
Defendant moved for a mistrial based on the prosecution‟s previous
representation that he had not taken notes of this interview. The court implicitly
denied the motion, stating that the proper sanction was to allow defendant to call
Hernandez back to testify further. Hernandez was not recalled.
(2) Analysis
First, we find no Brady violation. There was no reasonable probability that
disclosure of the information in the notes “would have altered the trial result”
(Zambrano, supra, 41 Cal.4th at p. 1132), and therefore the notes were not
“material” for purposes of Brady disclosure. The testimony that defendant was at
Hernandez‟s house was apparently introduced by the prosecution to demonstrate
that defendant had fled. Even assuming Hernandez could have been impeached
with the information in the notes, there was overwhelming evidence, including
defendant‟s own statements, that he fled. Moreover, the information was
disclosed at trial, and hence was not suppressed for Brady purposes. (Morrison,
supra, 34 Cal.4th at p. 715.)
Second, we reject defendant‟s assertion that the proper sanction for the
statutory discovery violation was a declaration of mistrial. Defendant fails to
demonstrate why the opportunity to re-call Hernandez for further cross-
examination did not cure any harm.
c. Donna Tucker’s oral statement that she was threatened
At a sidebar conference during the trial, the prosecutor represented that
Detective Teague would testify that the Verdugo family had threatened Donna
Tucker‟s life. Defendant objected that Tucker‟s oral statement to Teague should
have been disclosed to the defense. The trial court ruled that oral statements not
21
made by a defendant did not need to be disclosed. On hearsay grounds, the court
barred Detective Teague from testifying about Tucker‟s statement, but the court
permitted Tucker to testify about any threats made against her. Nearly a week
later, Tucker testified that Salvador Verdugo, defendant‟s father, had threatened
her, urging her to “keep quiet.”
To the extent defendant contends that failure to disclose Tucker‟s oral
statement to Detective Teague violated Brady, it is not clear such evidence was
favorable to the defense. The fact that defendant‟s family threatened Tucker
hardly proves defendant‟s innocence. Defendant argues that the evidence went to
Tucker‟s credibility, which is true, but it tended to show that Tucker might have a
reason to minimize defendant‟s culpability, not a reason to exaggerate his
culpability. It is hard to see how the defense could have used this evidence to its
advantage. In any event, the statement was disclosed at trial, and hence was not
suppressed for Brady purposes. (Morrison, supra, 34 Cal.4th at p. 715.)
We need not decide whether oral statements that are neither made by a
defendant nor exculpatory must be disclosed under section 1054.1, subdivision (f),
because, even assuming a discovery violation, defendant fails to demonstrate
prejudice. Tucker did not testify concerning any threat against her until nearly a
week later. Therefore, defense counsel had ample time to prepare a cross-
examination of Tucker on this point. Defendant does not state specifically what
counsel would have done differently if Tucker‟s oral statement had been disclosed
sooner.
d. Prosecutor’s notes regarding Donna Tucker’s statements
Firefighter Donald Jones testified that he saw the killer run to a car that had
louvers on the rear window. When defendant‟s Honda CRX was recovered by
police in April 1995, it did not have louvers. Donna Tucker testified that
22
defendant had past experience doing minor bodywork on cars and that before the
double homicide his Honda CRX had louvers on the rear window.
At a sidebar conference, defense counsel stated that the prosecution had not
met its disclosure obligations with respect to Tucker‟s statements. That morning,
the prosecutor had given defense counsel notes of an interview conducted with
Tucker about a week earlier. The notes included the phrase “louvers on
windows.” The trial court found the discovery violation “trivial,” although
“unprofessional.” It denied defendant‟s motion for a mistrial, but invited defense
counsel to file a motion for a continuance. It further observed that it would allow
Tucker to be recalled for further cross-examination regarding the louvers if
defendant‟s investigation uncovered additional evidence.
Defendant concedes the evidence was not favorable to the defense.
Therefore, he cannot establish a Brady violation. There was, however, a violation
of the reciprocal-discovery statute, under which the prosecutor was required to
immediately disclose his notes regarding Tucker‟s statement. (§§ 1054.1, subd.
(f), 1054.7.) Nevertheless, no prejudice is apparent. The trial court permitted
defendant to move for a continuance and, if necessary, to recall Tucker for further
cross-examination. Defendant does not explain why these remedies were
inadequate.
e. Disclosure of Donna Tucker’s relocation
After trial, the prosecutor disclosed that his office had assisted Donna Tucker
in relocating to a new home, including paying some of Tucker‟s rent. In a new
23
trial motion, defendant unsuccessfully argued that the prosecutor‟s posttrial
disclosure of this assistance violated Brady.6 He renews that contention here.
In January 1996, before trial began, Kevin McCormick, the former
prosecutor on the case, sought and received an ex parte order for relocation
expenses for Donna Tucker not to exceed $1,318.7 In a declaration in support of
the motion, McCormick stated that “Abe Verdugo, the defendant[‟s] uncle told
Ms. [Tucker], prior to the defendant being arrested, that he knew someone was
„snitching‟ and he would take care of it when he found out who it was.” The
declaration also stated that Abe Verdugo began carrying a handgun shortly after
defendant was profiled on a television program for wanted criminals. Tucker
testified at the preliminary hearing, which was attended by Abe Verdugo and other
members of the Verdugo family. McCormick‟s declaration further stated:
“[D]efendant maintains [an] alliance with a local criminal street gang.
Ms. [Tucker] is fearful of the associates of the defendant who know not only her,
but also her family and friends.” The declaration continued: “Donna [Tucker] has
sought to move out of town under an assumed name but has had difficulty due to
financial restraints, local job responsibilities and the reluctance of apartment
managers to permit relocation under a name other than her own. Ms. [Tucker]
remains fearful of being seriously injured by associates of the defendant or his
relatives as a result of coming forward with critical information in this case.” At
6
The deputy district attorney who tried the case, Michael Duarte, was
personally unaware of the relocation assistance until after the trial.
7
McCormick‟s declaration in support of the ex parte motion stated: “This
amount will cover first and last months[‟] rent ($1,098) plus security deposit
($0.00), activation of phone ($46.00), activation of water and power ($0.00) and
activation of gas ($25.00). This amount additionally would cover the reasonable
cost of relocating to a new residence ($149.00).”
24
the hearing on defendant‟s new trial motion, McCormick confirmed that Tucker
had told him she was fearful that defendant would have her killed if she did not
move to a new location.
No Brady error is apparent. Defendant contends the information was
favorable to the defense to the extent it could have been used to undermine
Tucker‟s credibility (by demonstrating the benefits she was receiving for her
cooperation with the prosecution). Whether the information, as a whole, was
favorable to defendant is far from clear. But even assuming some of the
information (such as the financial assistance Tucker received), in isolation, could
be considered favorable to defendant, there is no “reasonable probability its
disclosure would have altered the trial result.” (Zambrano, supra, 41 Cal.4th at
p. 1132.) If the defense had attempted to present this evidence at trial in an effort
to undermine Tucker‟s credibility, the prosecution would have been entitled to
present evidence explaining the reasons for Tucker‟s relocation, which were that a
member of the Verdugo family had threatened her, that she was fearful that
defendant would have her killed unless she moved, and that defendant had ties to a
criminal street gang. This rebuttal evidence would have effectively countered the
defense assertion that Tucker was benefiting from her cooperation with the
prosecution. In fact, Tucker‟s willingness to testify against defendant despite
justifiable concerns about her safety arguably would have enhanced her
credibility.
For the same reason, defendant fails to demonstrate prejudice from violation
of the reciprocal-discovery statute.
25
f. Disclosure of Detective Teague’s oral statement as to the
direction the shooter was facing
(1) Factual background
On cross-examination of Detective Teague at trial, defense counsel asked
what direction the assailant was facing when he shot Navarro. Teague replied, “I
believe that the shooter was standing near the curb facing the fire station.”
Counsel then asked if Teague had ever written a report that included that opinion.
Teague replied, “I don‟t believe I ever used those exact terms, no, sir.”
Nevertheless, Teague believed that he had orally informed the district attorney of
his opinion in December 1994.
Later, outside the presence of the jury, defense counsel asserted that before
Teague‟s testimony, “everything that we had before us” indicated “that the shooter
was facing away from” the firefighters. He further asserted that the prosecutor‟s
failure to disclose Teague‟s oral statement violated section 1054.1, and he sought a
mistrial based on prosecutorial misconduct. The trial court found no discovery
violation, but said that, “assuming there is some violation here,” he would allow
the defense to recall Teague for further cross-examination on the issue. The court
also observed that the defense would have three to four days, including a weekend,
to consult with an expert before the prosecution completed its case-in-chief. The
court said: “[I]f there is really a problem here, . . . then I‟ll let you revisit it.”
(2) Analysis
We find no Brady violation. Defendant does not explain how Teague‟s
opinion about the direction the shooter was facing was favorable to the defense.
(Zambrano, supra, 41 Cal.4th at p. 1132.) Moreover, Teague‟s opinion was
disclosed at trial, and hence was not suppressed for Brady purposes. (Morrison,
supra, 34 Cal.4th at p. 715.) Nor was there prejudice from any reciprocal-
discovery statute violation. Defendant does not explain why the trial court‟s
26
remedy of allowing the defense to recall Teague for further cross-examination was
inadequate.
g. Disclosure of notes recording the measurement of Paul Escoto’s
car
(1) Factual background
The defense contended that Paul Escoto, who had a car similar in certain
respects to defendant‟s car, could have been the shooter.
On June 6, 1997, Detective Teague testified that he believed marks on the
street at the murder scene were acceleration marks created by a front-wheel-drive
vehicle. Defendant‟s Honda CRX was a front-wheel-drive vehicle, but Teague
could not recall if he had ever examined Escoto‟s car to determine whether it also
was a front-wheel-drive vehicle.
On June 10, 1997, Detective Markel testified that the acceleration marks on
the street at the murder scene measured four feet nine inches apart, matching the
wheelbase of the front wheels on defendant‟s car. Detective Teague testified that
on June 7 he examined Escoto‟s car and determined that it was a rear-wheel-drive
vehicle with a wheelbase of four feet six inches. At a sidebar conference, the
defense argued that the prosecution had failed to disclose Teague‟s notes
recording the measurements of Escoto‟s car. The prosecutor said that he had
received Teague‟s notes that morning and had left a copy of the notes on defense
counsel‟s table in the courtroom “right when we walked in.” Defense counsel was
unaware the notes were there.
The court stated that it did not know how the prosecutor could have produced
the notes to the defense any sooner than he had, but the court further stated that
defendant would be permitted to defer cross-examination of Teague on this issue.
Defendant moved for a mistrial, which the trial court denied.
27
(2) Analysis
No Brady error occurred, because Teague‟s measurements of Escoto‟s car
were not favorable to the defense and were disclosed at trial. (Zambrano, supra,
41 Cal.4th at p. 1132; Morrison, supra, 34 Cal.4th at p. 715.)
Nor was there any violation of the reciprocal-discovery statute. The
prosecutor produced the notes to the defense the same morning that he received
them, which satisfies the statutory requirement of immediate disclosure of
materials that become known during trial. (§ 1054.7; see People v. DePriest
(2007) 42 Cal.4th 1, 37-38 [disclosure of evidence the morning after its discovery
was timely under § 1054.7].) Although defendant claims he was “taken by
surprise and . . . unable to effectively counter this new evidence,” the prosecution
had no duty to obtain the evidence sooner than it did. (Cf. In re Littlefield (1993)
5 Cal.4th 122, 135.)
h. Disclosure of Detective Walton’s opinion
(1) Factual background
On May 30, 1997, Los Angeles Police Detective Charles Walton (who had
been involved in the investigation of defendant‟s case) was sitting on a bench in
the hallway outside the courtroom. He was greeted by defense attorney George
Hernandez, with whom he was acquainted. Hernandez asked Walton about paint
transfer on the victim‟s car and said: “[I]t looks white so it would seem that it
came from a white car.” Walton replied that counsel‟s assessment “was possible,
but that it could have come from any color car or it could have just been the wax
or lacquer transfer from the outer coating, protective coating, of a vehicle or any
number of colors which may have changed color due to heat and friction of the
vehicles rubbing together during the traffic collision.”
On June 2, 1997, the court held a hearing outside the presence of the jury to
determine whether any discovery violation had occurred in connection with
28
Walton‟s opinion about paint transfer. Detective Walton testified to the
circumstances of his May 30 encounter with defense counsel recounted above.
Walton also testified that as part of the investigation of the case, he had examined
and made certain measurements of Rodriguez‟s burgundy Honda Civic and
defendant‟s Honda CRX. He noticed a “whitish color” mark on Rodriguez‟s Civic
and mentioned it to Detective Markel. Markel said: “Don‟t worry about any paint
transfer. We‟re not interested in that [because] the other car [was] painted after
the . . . alleged accident.” Walton testified that he wrote a report summarizing his
findings, but the report did not include any conclusions regarding the white mark.
Walton also testified that he was “not a paint expert.” He agreed with defense
counsel that the white mark he saw could have been a paint transfer, but he also
agreed with the court that he was not sure. The trial court found no discovery
violation, because Walton was not qualified to be a paint expert.
(2) Analysis
Defendant contends that if Detective Walton‟s opinion regarding the white
mark on Rodriguez‟s Civic had been disclosed in a timely manner, defendant
might have been able to locate an expert who would have testified that the mark
was white paint from a white car. This testimony would have undermined the
prosecution‟s assertion that there was a collision between defendant‟s car and the
victim‟s car shortly before the murders. We disagree.
Before Walton‟s discussion with defense counsel, the only statement Walton
made about the white mark (orally or in writing) was his comment to Detective
Markel that the mark existed. Defense counsel knew, however, long before his
hallway conversation with Walton that the mark existed. In his opening statement,
defense counsel mentioned the mark and argued that this mark was evidence that
defendant‟s car, which was black at the time of the murder, was not at the murder
29
scene. Nothing prevented defense counsel from retaining an expert to support this
argument.
Walton‟s later statement to defense counsel that the white mark might have
come from a car of any color did not prevent defense counsel from continuing to
argue the opposite. Walton was neither an expert regarding paint transfer, nor did
he testify before the jury regarding the source of the mark. And, in any case, the
prosecution cannot be faulted for failing to disclose Walton‟s nonexpert opinion
about the white mark, because there is no evidence that the prosecution knew
Walton‟s opinion. “ „Although the prosecution may not withhold favorable and
material evidence from the defense, neither does it have the duty to conduct the
defendant‟s investigation for him.‟ ” (Zambrano, supra, 41 Cal.4th at p. 1134.)
Accordingly, we conclude there was no Brady or reciprocal-discovery statute
violation.
i. Disclosure of expert opinion regarding alleged collision between
defendant’s and victim’s vehicles
In addition to testifying outside the presence of the jury, Detective Walton
also testified before the jury as an expert on accident reconstruction. He stated
that he had inspected both defendant‟s Honda CRX and Rodriguez‟s Honda Civic.
As relevant here, he concluded that body work had been performed on the CRX.
Defendant moved for a mistrial, contending that the prosecutor failed to
disclose Walton‟s opinion, and therefore his testimony caught the defense by
surprise. On the night before Walton‟s testimony the prosecutor discussed certain
photographs of defendant‟s car — which had years earlier been provided to the
defense — with Walton, and the next morning the prosecutor did not disclose
Walton‟s opinion regarding the photographs to the defense. On that limited basis,
the trial court found a discovery violation, but it implicitly denied defendant‟s
30
mistrial motion. Instead, it offered to allow the defense to defer cross-examination
of Walton so that the defense could consult an expert.
Defendant states that “Walton‟s opinions bolstered the prosecution‟s claim
that [defendant‟s] CRX was probably the vehicle with which the victim‟s red car
collided.” (Italics added.) Because defendant concedes that Walton‟s opinion was
not favorable to the defense, there was no violation of Brady. (Zambrano, supra,
41 Cal.4th at p. 1132.) In addition, the evidence was disclosed at trial, and hence
was not suppressed for Brady purposes. (Morrison, supra, 34 Cal.4th at p. 715.)
With regard to the reciprocal-discovery statute, the violation did not
prejudice defendant. Defendant makes no attempt to demonstrate, as he must,
why the trial court‟s remedy of deferring cross-examination of Walton was
inadequate.
j. Cumulative prejudice
Defendant contends that even if a single failure to disclose evidence does not
warrant reversal, the “cumulative prejudice resulting from the prosecution‟s
consistent course of withholding material evidence certainly does.” We have
concluded that the individual discovery violations were harmless or that any harm
could have been fully cured by the remedy the trial court offered. We are troubled
by the number of statutory discovery violations that occurred here, but because the
harm in each case was nonexistent or could have been fully avoided, we see no
possibility of cumulative prejudice.
3. Evidentiary issues
a. Exclusion of evidence regarding allegations that detectives had
fabricated evidence in a different case
Defendant contends that the trial court prejudicially erred by excluding
evidence that detectives involved in his case had been accused of fabricating
evidence in a different case. These detectives were exonerated, but defendant
31
asserts that this evidence would have established the motivation for his own
fabrication of evidence. Defendant claims violation of his rights under the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the federal Constitution, and article
I, sections 7, 15 through 17, and 28, of the California Constitution. We disagree.
About nine months before trial, the prosecutor informed the trial court and
defense counsel that, in a different case, Detectives Teague and Markel had been
exonerated of charges that they had fabricated evidence. At trial in this case,
defense counsel sought permission to present evidence regarding the investigation
of Detectives Teague and Markel. Counsel asserted that this evidence would
substantiate defendant‟s explanation for why he had arranged from jail to have a
pair of eyeglasses purchased that matched the eyeglasses he wore to the
Halloween party. Defendant claimed that he did so because he believed
Detectives Teague and Markel were falsely accusing him, and he wanted to refute
their false accusations with false evidence of his own. Defense counsel implied
that such a motivation would negate any argument that defendant arranged the
purchase of the eyeglasses because of a consciousness of guilt.
The trial court pointed out that, as of that time, the evidence related to the
purchase of the eyeglasses demonstrated only that defendant‟s brother and father
had fabricated evidence; no evidence tied defendant to their activity. The court
said it would instruct the jury that the evidence regarding the purchase of the
eyeglasses could not be considered against defendant and could only be used for
purposes of considering the credibility of Salvador and Paul Verdugo. The court
excluded the evidence regarding the investigation of Detectives Teague and
Markel, finding the probative value of that evidence substantially outweighed by
the consumption of time and the distraction of exploring a collateral issue. (Evid.
Code, § 352.)
32
No abuse of discretion appears. (People v. Farley (2009) 46 Cal.4th 1053,
1129 (Farley).) Even assuming that the evidence of the allegations against
Detectives Teague and Markel was relevant, the trial court reasonably excluded it
under Evidence Code section 352. This is especially so considering that the
detectives had been exonerated of fabricating evidence by the time defendant‟s
trial began and the prosecution would then have been entitled to bring that point to
the attention of the jury. The result would have been a lengthy evidentiary detour
into a matter that was only marginally relevant and might well have confused the
jury.
Defendant later testified that he lied to his attorney about the eyeglasses his
brother and father had obtained (claiming they were the same eyeglasses he had
worn to the Halloween party) to counter the lies of Donna Tucker and Detective
Teague. Defendant said: “I panicked, felt like I was being framed, no one was
going to believe me, that I lost the glasses, so I had those purchased.” Thus, the
jury heard defendant‟s explanation for why he arranged for the purchase of the
glasses; the additional evidence that Detectives Teague and Markel had been
accused of, and exonerated of, fabricating evidence in an unrelated case would
have done little to substantiate this explanation.
b. Exclusion of evidence of Donna Tucker’s need for psychiatric
care
Defendant contends the trial court erred when it precluded defendant from
presenting evidence that Donna Tucker had received psychiatric care. We
disagree.
(1) Factual background
As noted, Donna Tucker, who was married to defendant‟s brother Michael
Verdugo, testified for the prosecution. Between the time of the murders and the
time of trial, Tucker and Michael divorced. The defense case included an effort to
33
discredit Tucker. On direct examination, defendant‟s sister, Mary Alice Baldwin,
testified that she had known Tucker since 1973. Defense counsel asked, “Did you
ever think that Donna was not mentally stable?” The trial court sustained the
prosecutor‟s relevance objection. Defense counsel then inquired, “Well, from
your observations, did you ever see anything about her that you thought was
unusual?” The trial court again sustained the prosecutor‟s relevance objection.
At a sidebar conference, defense counsel asserted that Tucker had been
admitted to a psychiatric hospital approximately three months earlier. Counsel
said he had learned this information the night before from Michael Verdugo, who
said he was “paying the psychiatric bills and hospital bills as part of the divorce
settlement.” The prosecutor told the court that he had no knowledge regarding
these assertions.
The trial court observed that receipt of psychiatric care “does not necessarily
reflect on” credibility and that counseling is common for individuals who are
going through a divorce. Defense counsel sought permission to question Baldwin
as to whether Tucker had had any previous episodes of unusual laughing and
crying, noting that Tucker had laughed and cried during her testimony. The court
found the evidence would require a collateral inquiry into the circumstances under
which Tucker had previously laughed and cried. It also found the evidence
irrelevant, because Baldwin was not an expert on mental health and not qualified
to give an opinion as to whether the laughing and crying was an expression of
normal emotion or a sign of mental illness. The court noted that Tucker‟s hospital
bills “could be some kind of out-patient counseling for the stress of the divorce”
and concluded: “[A]s you present it to me right now, it‟s too vague and general.
You‟re going to have to get specific with a witness that‟s qualified. That‟s all I‟m
telling you.”
34
(2) Analysis
“[T]he mental illness or emotional instability of a witness can be relevant
on the issue of credibility . . . if such illness affects the witness‟s ability to
perceive, recall or describe the events in question.” (People v. Gurule (2002) 28
Cal.4th 557, 591-592.) Here, however, there was no evidence Baldwin was
familiar with any hospitalization or other treatment.
The trial court also acted within its discretion in precluding testimony with
regard to whether Tucker had had previous episodes of unusual laughing and
crying. This testimony would have required significant collateral inquiry into the
circumstances that gave rise in each case to the emotional reaction being
described. (Evid. Code, § 352; see Farley, supra, 46 Cal.4th at p. 1129.)
Defendant further contends that he should have been allowed to recall
Tucker as a witness. Although defense counsel made a fleeting reference to
bringing Tucker back for further cross-examination, the thrust of the sidebar
conference was whether defendant could ask Baldwin questions about Tucker‟s
mental state. Defense counsel did not recall Tucker, and he points to no place in
the record where he requested to do so and was refused permission.8 The trial
court did not abuse its discretion.
4. Alleged instructional error
a. Failure to instruct on voluntary manslaughter as to Richard
Rodriguez
There was evidence that the Halloween attack on Michael Arevalo by a
female party guest provoked defendant, and that when defendant killed Yolanda
Navarro, he erroneously believed he was killing Arevalo‟s attacker. There was no
8
At the posttrial hearing on defendant‟s motion for a new trial, the trial court
prohibited the defense from questioning Tucker about her psychiatric problems,
because defendant had not raised the issue in his motion.
35
evidence, however, that a male party guest was involved in the attack on Arevalo.
Therefore, with regard to Yolanda Navarro, the trial court instructed the jury on
voluntary manslaughter as a lesser included offense to murder, but the court gave
no similar instruction with regard to Richard Rodriguez. Defendant claims
violation of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments
to the federal Constitution, and article I, sections 7 and 15 through 17, of the
California Constitution. We find no error.
“ „ “The trial court is obligated to instruct the jury on all general principles of
law relevant to the issues raised by the evidence, whether or not the defendant
makes a formal request.” ‟ [Citation.] „Conversely, even on request, the court
“has no duty to instruct on any lesser offense unless there is substantial evidence
to support such instruction.” ‟ [Citation.] This substantial evidence requirement is
not satisfied by „ “any evidence . . . no matter how weak,” ‟ but rather by evidence
from which a jury composed of reasonable persons could conclude „that the lesser
offense, but not the greater, was committed.‟ [Citation.] „On appeal, we review
independently the question whether the trial court failed to instruct on a lesser
included offense.‟ [Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 704-705
(Avila).)
“ „Manslaughter, an unlawful killing without malice, is a lesser included
offense of murder.‟ [Citations.] „Although section 192, subdivision (a), refers to
“sudden quarrel or heat of passion,” the factor which distinguishes the “heat of
passion” form of voluntary manslaughter from murder is provocation.‟
[Citations.] „The provocation which incites the defendant to homicidal conduct in
the heat of passion must be caused by the victim [citation], or be conduct
reasonably believed by the defendant to have been engaged in by the victim.‟
[Citation.] „[T]he victim must taunt the defendant or otherwise initiate the
provocation.‟ [Citations.] The „ “heat of passion must be such a passion as would
36
naturally be aroused in the mind of an ordinarily reasonable person under the
given facts and circumstances . . . .” ‟ [Citation.]” (Avila, supra, 46 Cal.4th at
p. 705.)
Here, the jury was instructed on first and second degree murder for both
victims, and voluntary manslaughter as to Yolanda Navarro. Defendant requested
voluntary manslaughter instructions as to Richard Rodriguez, but the trial court
refused, stating: “I can‟t figure out any way [defendant] could have mistakenly
believed that the male victim was responsible for [the assault on Arevalo].” The
court continued: “I‟ve pointed out pretty slim evidence even on the female. . . .
But there is . . . absolutely nothing to lead me to see any kind of substantial
evidence supporting a mistaken belief about the male.”
On appeal, defendant contends that the alleged collision between his car and
the victim‟s car provides a sufficient basis for the voluntary manslaughter
instruction. Defendant asserts that Rodriguez may have run into defendant, and
“the jury readily could have found that the accident by itself, or coupled with
[defendant‟s] anger over the injury to Arevalo, constituted sufficient provocation
to reduce murder to voluntary manslaughter.” We disagree.
Although there is some evidence that there was a collision, there is no
evidence that Rodriguez was responsible for the collision or that defendant killed
Rodriguez in a heat of passion due to the collision. (See People v.
Holloway (2004) 33 Cal.4th 96, 140 [no evidence of consensual sexual encounter
on which claim of provocation was predicated]; cf. People v. Barton (1995) 12
Cal.4th 186, 191, 202 [victim nearly collided with, and spat on, the defendant‟s
daughter‟s car during traffic incident; an argument ensued between the defendant
and the victim; voluntary manslaughter instruction was appropriate].)
For the first time in his reply brief in this court, and relying on dictum in a
Court of Appeal case, defendant summarily asserts that the assistance Rodriguez
37
was giving to Navarro (whom defendant may have believed to be Arevalo‟s
female attacker) supported a voluntary manslaughter instruction. (See People v.
Spurlin (1984) 156 Cal.App.3d 119, 126 [voluntary manslaughter instruction may
be appropriate when “ „deceased was present aiding and abetting the person
causing the provocation‟ ”].) We have rejected this view: “ „The provocation
which incites the defendant to homicidal conduct in the heat of passion must be
caused by the victim [citation], or be conduct reasonably believed by the
defendant to have been engaged in by the victim.‟ [Citation.]” (Avila, supra, 46
Cal.4th at p. 705.) Defendant cites no persuasive basis for us to revisit this settled
principle.
We further reject defendant‟s contention that refusing the voluntary
manslaughter instruction as to Rodriguez violated defendant‟s due process rights
by requiring the jury to choose between capital murder and a complete acquittal.
(See Beck v. Alabama (1980) 447 U.S. 625, 637.) Beck was not violated because
no evidence warranted a voluntary manslaughter instruction. (See Hopper v.
Evans (1982) 456 U.S. 605, 611.) Moreover, the jury was instructed on the lesser
included offense of second degree murder, which satisfied the due process
requirement that an intermediate choice be given to the jury when supported by
the evidence. (See Schad v. Arizona (1991) 501 U.S. 624, 646-648.)
b. Failure to instruct on voluntary intoxication
Defendant contends the trial court erred in failing to instruct sua sponte on
the effect of voluntary intoxication on his ability to form the mental state
necessary for murder. Defendant claims that this error violated his rights under
the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution,
and article I, sections 7 and 15 through 17, of the California Constitution. We
disagree.
38
It is well settled that “[a]n instruction on the significance of voluntary
intoxication is a „pinpoint‟ instruction that the trial court is not required to give
unless requested by the defendant.” (People v. Rundle (2008) 43 Cal.4th 76, 145,
citing People v. Saille (1991) 54 Cal.3d 1103, 1120.) Defendant cites no
persuasive reason to revisit this conclusion.
Moreover, even if defendant had requested a voluntary intoxication
instruction, the trial court would properly have refused it because “[a] defendant is
entitled to such an instruction only when there is substantial evidence of the
defendant‟s voluntary intoxication and the intoxication affected the defendant‟s
„actual formation of specific intent.‟ ” (People v. Williams (1997) 16 Cal.4th 635,
677, quoting People v. Horton (1995) 11 Cal.4th 1068, 1119.) Indeed, such an
instruction would have been inconsistent with the defense of mistaken identity and
with defense counsel‟s statement during closing argument: “[W]hat makes you
think he‟s going to shoot this guy and this girl when he‟s not drunk, when they
haven‟t even done anything to him?”
c. Circumstantial evidence instructions
Defendant contends that the trial court‟s use of CALJIC No. 2.01 (which
addresses the use of circumstantial evidence to support a finding of guilt) and
CALJIC No. 8.83 (which addresses the use of circumstantial evidence to support a
special circumstance finding) undermined the requirement of proof beyond a
reasonable doubt, thus violating his federal and state constitutional rights to due
process of law, to a jury trial, and to a reliable determination of guilt and penalty.
He claims the instructions “operated as an impermissible mandatory, conclusive
presumption of guilt.” We have repeatedly rejected these arguments, and
defendant advances no persuasive reason to revisit our conclusion. (See, e.g.,
Zambrano, supra, 41 Cal.4th at p. 1159.)
39
B. Penalty Phase Issues
1. Victim impact evidence
Defendant contends the trial court failed to limit the prosecution‟s victim
impact evidence, in violation of his rights under the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the federal Constitution, and article I, sections 7 and
15 through 17, of the California Constitution. We disagree.
a. Factual background
Richard Rodriguez‟s mother, two cousins, aunt, and uncle, and Yolanda
Navarro‟s mother, sister, and brother described the effect of the murders on their
lives. At the time of their deaths, both victims were 18 years old and recent high
school graduates. Their funerals were well attended. At Yolanda‟s9 burial, her
brother Jonathan released two doves, which he testified represented Yolanda‟s and
Richard‟s “spirits going to heaven.” The high school that Yolanda and Richard
attended built a memorial to them on campus that included two trees surrounded
by flowers and a plaque bearing their names. In addition, a memorial service was
held in that location.
Richard grew up without a father, but he was close to his uncle Robert and
Robert‟s son. Richard was a straight “A” student in high school and played
football. At the time of his death, Richard was attending California State
University at Los Angeles on a scholarship, and he wanted to become an engineer.
Due to Richard‟s influence, his younger cousin Cynthia was successful in school
and hoped to go to a major university. At Richard‟s funeral, Richard‟s three-year-
9
Because the victims and many of the witnesses at the penalty phase have
the same surname, we will refer to the victims and witnesses by their first names
in this portion of the opinion.
40
old godson Nicholas pushed aside the roses from Richard‟s coffin so he could kiss
it.
Yolanda was a responsible, nurturing, and popular person. She was
interested in working as a nurse or with children. She had worked with children at
a preschool and was scheduled to start work in a hospital on the Monday after her
murder. Her brother Jonathan recalled: “[M]y mom had to clean out [Yolanda‟s]
closet, and she had already bought her uniforms for work, and I . . . remember my
mom sitting in Yolie‟s closet crying, holding onto the uniforms.”
Yolanda was a best friend to her older sister Ernestine (Tina), and the two
sisters were inseparable. They were born on the same day five years apart, and
celebrated their birthday together each year. Tina described the events that
occurred on the morning of October 23, when the family searched for Yolanda and
ultimately learned of her death. She told of the pain she experienced when
breaking the news to her mother and making funeral arrangements. Tina also
described visiting the crime scene with her father and seeing human remains in the
grass.
Yolanda‟s brother, Jonathan, testified that he had been very close to Yolanda.
Jonathan briefly described being outside on the morning of October 23, hearing
shots, seeing the bodies of a “boy” and a “girl,” and thinking, “Wow, they blew
her brains out.” He also described his feelings upon learning that the victim was
his sister Yolanda: “[W]hy my sister[?] She never hurt anybody in her life.” He
added: “[S]omeone that I held in my heart and . . . held her hand as a baby,
teaching her how to walk, to see her lying on the street like that.” Jonathan at
times wished he had arrived on the scene sooner and “maybe stopped something,
or maybe they could have killed me instead.”
Yolanda was very close to her father. On the day of the Halloween party,
Yolanda finished recording an approximately 40-minute cassette tape with
41
Mexican songs sung in Spanish. The tape was for her father, and she gave it to
him before leaving for the party. Some of the songs were played for the jury.
Yolanda‟s father died seven months after the murder.
Yolanda‟s mother, Armida, testified that all of the songs on the tape were
about “losing someone, leaving someone, [and] having to say goodbye.” When
Yolanda left for the party, she told Armida, “I love you, Mom.” Armida testified:
“I never saw her again. I couldn‟t even see her at the funeral because she had to
have a closed casket.”
Yolanda was the godmother of Tina‟s daughter Christine, who was four years
old at the time of Yolanda‟s death. Tina testified that after Yolanda‟s death,
Christine made statements such as “I saw Auntie Yolie in my room last night.”
Tina also described incidents that she and Christine believed to be signs that
“Yolie‟s spirit is still with us.”
The jury also saw photographs depicting events and accomplishments in each
victim‟s life, their funerals and memorial services, the observance of Yolanda‟s
19th birthday at the cemetery several months after her murder, and the condition
of Yolanda‟s body at the time Jonathan saw her on the morning of October 23,
1994.
b. Analysis
“In a capital trial, evidence showing the direct impact of the defendant‟s
acts on the victims‟ friends and family is not barred by the Eighth or Fourteenth
Amendments to the federal Constitution. (Payne v. Tennessee (1991) 501 U.S.
808, 825-827.) Under California law, victim impact evidence is admissible at the
penalty phase under section 190.3, factor (a), as a circumstance of the crime,
provided the evidence is not so inflammatory as to elicit from the jury an irrational
or emotional response untethered to the facts of the case.” (People v. Pollock
42
(2004) 32 Cal.4th 1153, 1180 (Pollock).) We conclude neither the federal nor the
state standard was violated here.
The testimony was similar to other victim impact testimony that we have
found admissible in the past. For example, in People v. Dykes (2009) 46 Cal.4th
731, 779-780, 782 (Dykes), we upheld the admission of (1) testimony of a child
victim‟s teacher, describing his popularity in school, (2) testimony of the victim‟s
older sister regarding her feelings of sorrow and unreality while making funeral
arrangements and her recollections of intimate interactions she had had with the
victim, (3) testimony of the victim‟s grandmother describing her profound sense of
loss and the effect the victim‟s death had on the victim‟s younger brother, and
(4) a videotape of a family trip to Disneyland.
As in other cases, the witnesses here described the “immediate effects” of
the murders, as well as their “residual and lasting impact.” (People v. Brown
(2004) 33 Cal.4th 382, 397-398.) Their recollections of past events involving
Yolanda and Richard “simply served to explain why they continued to be affected
by [the] loss and to show the „victim[s‟] “uniqueness as . . . individual human
being[s].” ‟ ” (Id. at p. 398, quoting Payne v. Tennessee, supra, 501 U.S. at
p. 823.) Contrary to defendant‟s assertion, the circumstance that Yolanda‟s
mother cried during her testimony does not render that testimony inflammatory.
Her tears reflected a normal human response to the loss of a child, a response that
the jury would reasonably expect a mother to experience.
In addition, the photographs of family events and other aspects of the victims‟
lives, including the family‟s postdeath observance of Yolanda‟s 19th birthday, were
“relevant to humanize the victim[s] and provide some sense of the loss suffered by
[their] famil[ies] and society.” (Dykes, supra, 46 Cal.4th at p. 785.)
43
Testimony regarding the cassette tape of Mexican songs that Yolanda gave
her father was also properly admitted. The tape was moving because it
demonstrated the close bond between Yolanda and her father, because it included
songs about the loss of a loved one, and because Yolanda presented it to her father
shortly before her death. It thus demonstrated the relationship lost as a result of
Yolanda‟s murder, and the impact her death had on her father. These were
circumstances of the crime appropriately considered by the jury. (Dykes, supra,
46 Cal.4th at pp. 780, 782 [testimony describing the child victim‟s intention on the
day he was murdered to buy a toy for his younger brother with money he had
saved from his allowance “plainly concerns the circumstances of the crime”].)
Victim impact evidence is emotionally moving by its very nature, but that fact
alone does not make it improper.
Nor, contrary to Justice Moreno‟s concurring opinion, did the trial court err
in admitting the tape and in allowing a portion to be played for the jury. (See
conc. opn., post, at p. 3.) Playing a “few” songs from the tape simply illustrated
the gift Armida had described in her testimony. Had Yolanda instead created a
collage of photographs of Mexico for her father, taken by individuals unrelated to
the family, the trial court would have likewise acted properly in allowing the jury
to view it. Simply because she gave her father music instead does not raise the
same concerns that arise in the context of a filmed tribute to the victim, set to
music. (See id. at p. 2.) In the latter case, the music may be irrelevant or serve
only to evoke an emotional response (People v. Kelly (2007) 42 Cal.4th 763, 798-
799); here, by contrast, the music was itself the relevant piece of evidence, being
the thing that Yolanda chose to present to her father as a gift.
44
Defendant further contends the victim impact evidence was improper because it
was not limited to the circumstances known to defendant at the time he committed the
crime. As defendant acknowledges, however, this court has rejected this argument in
past cases. (Dykes, supra, 46 Cal.4th at p. 783; People v. Lewis and Oliver (2006) 39
Cal.4th 970, 1057; Pollock, supra, 32 Cal.4th at p. 1183.)
Defendant also contends that admission of the victim impact testimony here
under section 190.3, factor (a), violated the ex post facto clause of the federal
Constitution because, as of the time of the crimes, no case law permitted such
evidence as a “circumstance[] of the crime.” Defendant is wrong. (See, e.g.,
People v. Edwards (1991) 54 Cal.3d 787, 833-836.)
Finally, defendant contends that the prosecutor‟s closing argument at the
penalty phase exacerbated the prejudicial nature of the victim impact evidence.
We have concluded the victim impact evidence was properly admitted, and
therefore the prosecutor was entitled to refer to this evidence in his argument.
2. Scope of cross-examination
Defendant contends the trial court erred in permitting the prosecutor to cross-
examine defense witness William Wright regarding a prior bad act of defendant,
without having a good faith belief that the incident actually occurred. Defendant
claims violation of his rights under the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the federal Constitution, and article I, sections 15 and 17, of the
California Constitution. We disagree.
45
a. Factual background
William Wright testified that he and defendant had been friends for about 23
years. He met defendant when defendant was between five and seven years old,
and Wright was 17 or 18 years old. As a child, defendant was quiet, very
respectful, and industrious. Wright had never seen him bully anyone or known
him to be violent.
At sidebar during cross-examination of Wright, the prosecutor informed
defense counsel and the court that he intended to ask Wright about an incident in
which defendant put a gun to his younger sister Pauline‟s head and “threatened to
blow her brains out.” He stated that Donna Tucker had mentioned this incident in
her taped interview, which occurred in May 1995. Defense counsel asserted that
the tape of the interview was incomprehensible, and the court recessed to listen to
the tape.
After the recess, and still outside the presence of the jury, the court inquired
what the prosecutor intended to ask Wright about. The prosecutor said he would
ask about defendant‟s desire “to kill one of Pauline‟s friends because the guy
knew too much about him.” He would also ask about defendant‟s alleged attack
on Pauline, “throwing [her] up against the wall, cutting the phone lines, and when
she ran out from the house, . . . chas[ing] after her and pull[ing] a gun on her.”
The court allowed the cross-examination, and Wright denied knowledge of the
incidents.
Later, on direct examination of defendant‟s older sister Mary Alice Baldwin,
defense counsel asked whether Pauline had ever told her that defendant “threw her
against the wall or put a gun to her?” Baldwin replied, “No . . . [t]hey were very
46
close.” Defense counsel asked, “As far as you know, [defendant] never was
hostile towards Pauline?” Baldwin answered, “No, no.”
b. Analysis
“When a defendant places his character at issue during the penalty phase, the
prosecution is entitled to respond with character evidence of its own. „The theory
for permitting such rebuttal evidence and argument is not that it proves a statutory
aggravating factor, but that it undermines defendant‟s claim that his good
character weighs in favor of mercy.‟ [Citation.] Once the defendant‟s „general
character [is] in issue, the prosecutor [is] entitled to rebut with evidence or
argument suggesting a more balanced picture of his personality.‟ [Citation.] The
prosecution need only have a good faith belief that the conduct or incidents about
which it inquires actually took place.” (Loker, supra, 44 Cal.4th at p. 709.)
Defendant contends that the prosecutor lacked the necessary “good faith
belief” to support the questions he posed to Wright about defendant‟s attack on
Pauline and the related threats. Relying on defense counsel‟s statement to the trial
court that the tape of Donna Tucker‟s interview was unintelligible, defendant
asserts that “[n]o evidence was ever introduced showing the incident occurred.”
We disagree. The trial court listened to the taped interview of Tucker and
implicitly found that Tucker‟s statements provided the “good faith belief”
necessary to support the prosecutor‟s questioning of Wright. We also have
reviewed the tape and conclude, with one possible exception, that the trial court‟s
implicit finding is supported by substantial evidence. The one exception is that we
can discern no reference on the tape to a threat by defendant to “blow [Pauline‟s]
brains out.”
47
Even assuming, however, that the prosecutor should not have been permitted
to ask Wright about a threat by defendant to “blow [Pauline‟s] brains out,” no
prejudice is evident under any standard. Tucker testified at the guilt phase that, for
a year after her marriage to defendant‟s brother, defendant threatened to kill her
and her husband, perhaps by a “shot in the back of the head.” Moreover, the jury
was instructed: “Do not assume to be true any insinuation suggested by a question
asked [of] a witness. A question is not evidence and may be considered only as it
helps you to understand the answer.” The jury was further instructed that
“[s]tatements made by the attorneys during the trial are not evidence.” We
presume the jury obeyed these instructions. (See, e.g., People v. Ledesma (2006)
39 Cal.4th 641, 684 (Ledesma).)
3. Alleged Griffin error
Defendant contends the prosecutor committed Griffin error when he said
during closing argument: “He can‟t even face you, this defendant, who commits
these two brutal, senseless murders.” (Griffin v. California (1965) 380 U.S. 609,
613, 615 [it is a U.S. Const., 5th Amend. violation for the prosecution to comment
on the defendant‟s failure to testify].) Defense counsel objected to the
prosecutor‟s argument at the next recess.
Assuming that the prosecution‟s statement constituted Griffin error, there was
no possible prejudice under any standard. When argument resumed after the
recess, the prosecutor told the jury: “When I talked about the defendant‟s
testimony in the guilt phase, . . . I was not commenting at all on his not testifying
in the penalty phase.” Moreover, the court instructed the jury at the close of the
penalty phase: “The defendant elected not to testify in the penalty phase of this
trial. It is the constitutional right of the defendant to elect to testify in the guilt
phase only, or in the penalty phase only, or in both, or in neither. You‟re
48
instructed not to consider or discuss the fact that the defendant elected not to
testify in the penalty phase. That is a matter that must not in any way affect your
verdict as to the penalty.” We presume it heeded these instructions. (See, e.g.,
Ledesma, supra, 39 Cal.4th at p. 684.)
4. Timing of defense closing argument
Defendant contends the trial court erred under the Fifth, Sixth, and
Fourteenth Amendments to the federal Constitution, and article I, sections 7 and
15 through 17, of the California Constitution, when it postponed defense counsel‟s
closing argument until the morning after the prosecutor‟s argument. We disagree.
Toward the end of the prosecutor‟s closing argument, the trial court inquired
how much longer the prosecutor was going to be, and the prosecutor answered,
“another 10 minutes.” The court then asked defense counsel how long his
argument would be. Counsel replied that he did not know, adding, “I thought 40,
50 minutes, but it looks like it may go longer.” The court then asked the jury how
it would feel about a 15-minute recess, followed by 10 more minutes of
prosecution argument and 45 minutes of defense argument. Defense counsel
interrupted, saying, “Maybe longer, your honor,” and the court said to the jury:
“I‟m sorry. Maybe longer. Say an hour. Do you want to quit for the day after
[the prosecutor], or do you want to go late?”
Juror No. 5 responded, “We‟d like a break right now.” The court suggested
the jury take a break, discuss scheduling, and then let the court clerk know
whether or not it wished to go late. The record does not indicate which, if any,
preference the jury communicated to the clerk. After the recess, however, the
court stated: “Bring out the jurors. We‟ll finish with your argument then and do
the defense argument [at] 8:45 in the morning.” The jury entered the room, the
49
prosecutor finished his argument, the jury was excused, and the court made a brief
statement to counsel before adjourning for the day.
The next morning, after the court conferred with counsel outside the presence
of the jury, defense counsel gave his closing argument. At no time did defendant
object to the scheduling of the closing argument.
Defendant‟s claim of error was forfeited. (Farley, supra, 46 Cal.4th at
p. 1130.) Defense counsel gave no indication to the court that he wanted to
proceed immediately after the prosecution‟s argument finished. Rather, the court
and counsel deferred to the jury‟s apparent preference to start the defense closing
argument the next day. Defendant asserts that “[c]ounsel should have been given
the opportunity to argue at least briefly” and stress “to the jury the importance of
keeping an open mind” overnight, but nothing in the record indicates that counsel
sought such an opportunity.
Even assuming the claim was not forfeited, scheduling the defense closing
argument for the following morning falls within the court‟s “great latitude in
controlling . . . summations.” (Herring v. New York (1975) 422 U.S. 853, 862.)
5. Alleged instructional error
Defendant contends that the trial court erred under the Fifth, Sixth, Eighth,
and Fourteenth Amendments to the federal Constitution, and article I, sections 7
and 15 through 17, of the California Constitution, when it failed to inform the jury
that a verdict of life imprisonment without the possibility of parole “means exactly
what that means.”
The court instructed the jury: “It is the law of this state that the penalty for a
defendant found guilty of murder in the first degree shall be death or confinement
in the state prison for life without the possib[ility] of parole in any case in which
the special circumstances alleged in this case [have] been specially found to be
50
true.” (Italics added.) The jury was also instructed: “It‟s now your duty to
determine which of these two penalties, death or confinement in the state prison
for life without possibility of parole, shall be imposed upon the defendant.”
(Italics added.) During deliberations, the jury sent the court a note asking, “In the
event the defendant is given life in prison without the possibility of parole, is he
still given a parole hearing and a chance of being released?” Over defendant‟s
objection, the court responded, “You were instructed on the applicable law and
should not consider or speculate about matters of law on which you were not
instructed in arriving at a verdict of death or life in prison without the possibility
of parole.”
The court‟s response was proper. “[W]e have consistently held that the
phrase „life without possibility of parole‟ as it appears in CALJIC No. 8.84
adequately informs the jury that a defendant sentenced to life imprisonment
without possibility of parole is ineligible for parole.” (People v. Wallace (2008)
44 Cal.4th 1032, 1091 (Wallace).) Nothing in Simmons v. South Carolina (1994)
512 U.S. 154 causes us to reconsider that conclusion. (See Wallace, at p. 1091.)
Moreover, as we have previously explained, any instruction that a sentence of life
imprisonment without the possibility of parole “guaranteed defendant‟s
incarceration until his death would be inaccurate, considering the Governor‟s
commutation and pardon powers.” (People v. Boyer, supra, 38 Cal.4th at p. 487.)
Defendant further contends that the trial court erred by failing to instruct the
jury that defendant‟s age (22 at the time of the crimes) could only be considered in
mitigation. We have repeatedly rejected similar contentions. (See e.g., People v.
Hawthorne (1992) 4 Cal.4th 43, 77-79; People v. Lucky, supra, 45 Cal.3d at
p. 302.) Nothing in Roper v. Simmons (2005) 543 U.S. 551, 555-556, 570-571,
which prohibits the imposition of the death penalty for crimes committed by
persons under the age of 18, changes our conclusions in this regard. (Cf.
51
Hawthorne, at pp. 77-78 [rejecting a similar argument based on Thompson v.
Oklahoma (1988) 487 U.S. 815 (plur. opn.), which prohibited the imposition of
the death penalty for crimes committed by persons under the age of 16].)
6. Challenges to California’s death penalty scheme
Defendant contends that sections 190.2 and 190.3 violate the Fifth, Sixth,
Eighth and Fourteenth Amendments to the federal Constitution in numerous
respects. We have repeatedly rejected similar claims.
“[T]he California death penalty statute is not impermissibly broad, whether
considered on its face or as interpreted by this court.” (Dykes, supra, 46 Cal.4th at
p. 813.) In particular, the multiple-murder special circumstance adequately
narrows the class of murderers subject to the death penalty. (People v. Box (2000)
23 Cal.4th 1153, 1217.) Likewise, “we reject the claim that section 190.3, factor
(a), on its face or as interpreted and applied, permits arbitrary and capricious
imposition of a sentence of death.” (Dykes, at p. 813; see Tuilaepa v. California
(1994) 512 U.S. 967, 975-976, 978-979.)
The federal Constitution is not violated by section 190.3‟s failure (1) to
designate factors as either mitigating or aggravating; (2) to require written findings
or unanimity on the existence of aggravating factors; or (3) to require findings
beyond a reasonable doubt that that an aggravating circumstance (other than factor
(b) and factor (c) evidence) has been proved, that the aggravating factors
outweighed the mitigating factors, or that death is the appropriate sentence.
(Dykes, supra, 46 Cal.4th at pp. 813-814; Avila, supra, 46 Cal.4th at p. 724.)
Nothing in Cunningham v. California (2007) 549 U.S. 270, Ring v. Arizona (2002)
536 U.S. 584, or Apprendi v. New Jersey (2000) 530 U.S. 466 affects our
conclusions in this regard. (People v. Valencia (2008) 43 Cal.4th 268, 311
(Valencia); Avila, at p. 724.)
52
The trial court “need not instruct that the jury can consider certain statutory
factors only in mitigation.” (Valencia, supra, 43 Cal.4th at p. 311.)
Use of the adjective “extreme” in section 190.3, factor (d), and the adjective
“impaired” in section 190.3, factor (h), is constitutional. (People v. Hawthorne
(2009) 46 Cal.4th 67, 104.)
“A prosecutor‟s discretion to select those eligible cases in which the death
penalty is sought does not offend the federal or state Constitution.” (Wallace,
supra, 44 Cal.4th at p. 1098.)
The failure of California‟s death penalty law to require intercase
proportionality does not violate the federal Constitution. (Pulley v. Harris (1984)
465 U.S. 37, 50-51; People v. Cox (2003) 30 Cal.4th 916, 970.) “Nor does the
circumstance that intercase proportionality review is conducted in noncapital cases
cause the death penalty statute to violate defendant‟s right to equal protection and
due process.” (Farley, supra, 46 Cal.4th at p. 1134.) “[C]apital and noncapital
defendants are not similarly situated and therefore may be treated differently
without violating constitutional guarantees of equal protection of the laws or due
process of law.” (People v. Manriquez (2005) 37 Cal.4th 547, 590.)
C. Posttrial Issues
1. Denial of new trial motion
Defendant contends the trial court erred under state law in denying his
motion for new trial (§ 1181) and that the error violated his rights under the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the federal Constitution, and article
I, sections 7 and 15 through 17, of the California Constitution. We disagree.
a. Factual background
The jury returned its penalty verdict on July 14, 1997. Defendant advised the
court he might be filing a motion for new trial, which after an extension of time
53
was due on October 31, 1997. In case defendant filed a new trial motion, a
hearing was set for November 14, 1997. Defendant did not file a new trial motion.
Instead, on November 13, 1997, he filed a motion to continue the hearing date. In
a supporting declaration, defense counsel stated that, on or about October 10,
1997, he had learned of letters Donna Tucker had written to defendant‟s sister
Pauline Verdugo that possibly impeached Tucker‟s credibility. Defendant
ultimately filed a new trial motion on August 13, 1998, and on March 12, 1999, he
filed a “summary of grounds” for the motion. He filed a second “summary of
grounds” on June 3, 1999.
The letters Tucker had written to Pauline Verdugo formed the basis for
several of defendant‟s arguments. Among other things, defendant contended that
Tucker was biased in her testimony against him because the letters revealed that
she was planning to or was having a romantic relationship with Detective
Markel,10 and also because she had been promised reward money. The court held
an extensive evidentiary hearing.
10
In her letters, Tucker made such statements as:
(1) “But my dreams are about this sweet cop. I‟ll be seeing him soon, but only
to prepare for trial. I know he still likes me a lot too, but gotta wait til after the trial to
ask me out. But he watches me from a distance sometimes. That‟s when I get out my
best short skirt or nice dress. Then he lets out a whistle that I can recognize! Ha!
Hooked him! I can‟t wait to start going out with him. He‟s so damned adorable and
sweet. . . . [¶] I can‟t go swimming for 2-1/2 weeks or so. But I'll find a real good
bikini to really reel in Chuck then! Ha!”
(2) “I‟m still nuts about C., but he can‟t come up to me — if he‟s even still
interested — until after the trial. He‟s the male version of me. I really believe he‟d
be perfect for me. We‟ll see.”
(3) “So guess who was across the way looking at me from another balcony[?]
Chuck! Hey! Still likes me! Guess I made the right choice. Besides I‟m still nuts
about that cutie. Although, I WANT my full privacy back. But when I‟ve talked to
him about it before, he acts like it‟s not happening. And he worries so damn much. If
I‟m upset or sick or angry, he checks on me from a distance. Boy! What a strange
(footnote continued on next page)
54
At the hearing, Tucker confirmed that the letters were written in her
handwriting. She testified that, although she admired Detective Markel and would
have liked a romantic relationship with him, “there was never anything going on
between [them].” She said she lied in her letters to Pauline about Markel watching
her because she wanted the Verdugo family to think she had police protection.
Tucker also said that she did not lie in court to attract Markel. Markel testified
that his relationship with Tucker had been merely professional. He said that he
became aware that Tucker was interested in him romantically only after he learned
of her letters to Pauline. Kevin McCormick, the former prosecutor on defendant‟s
case, testified that he had never witnessed any inappropriate behavior between
Tucker and Detective Markel, and Tucker had never told him that she was
infatuated with Markel. Detective Teague testified that he knew of no occasion on
which Markel and Tucker met alone.
Tucker further testified that she had falsely told Pauline that she was
promised reward money, hoping to convince Pauline that Tucker would take care
of her. Tucker considered Pauline to be like a daughter. She thought she was
entitled to the reward money, but it was not her decision who received it.
(footnote continued from previous page)
way to have to live, waiting until this trial is done. It‟s kinda w[ei]rd, kinda annoying,
kinda nice and sometimes i[t‟]s kinda like a hug. So strange! Why the hell did I fall
for someone during all this mess, when I had decided no on[e] is gonna get close to
me?”
(4) “My favorite detective is back on this case. He‟s such a sweetie. You
wouldn‟t believe how I was protected! By two police dep[uties] and sheriff[]s and
by [a Los Angeles Police Department] helicopter. Boy! And he says „What? Do
you feel like you‟re being followed?‟ . . . He really likes me so much and I‟m nuts
about me [sic]. But neither of us can do or say anything until this case is over. So
nothing‟s happening.”
55
Although she wanted to take care of Pauline, she also observed that “it would turn
[her] stomach [to receive the reward money] because someone I loved murdered
those two kids, and to profit from someone else‟s tragedy, I couldn‟t do.” She
testified that she had not received any reward in this case.
Detectives Ewing Kwock and Jerry Stephens testified that no claims had
been made on the reward money. Markel testified that he recalled at some point
telling Tucker that there was a reward, but he never promised her the reward
money. He described this conversation as being brief: “[Tucker] told me that she
was not the least bit interested in it and that was the end of the talk of the reward.”
Markel testified that he would not entice a witness with reward money. Likewise,
Detective Teague testified that he had never promised any reward money to
anyone in this case. Trial prosecutor Michael Duarte testified that the only
discussions he had regarding whether Tucker was promised reward money
occurred after trial, when the defense raised the issue.
In addition, Pauline Verdugo testified regarding the circumstances under
which she had disclosed the letters, and Detectives Kwock and Stephens testified
regarding investigative interviews they conducted with Tucker and Markel after
the revelation of the letters. Tucker told Kwock that she had a “crush” on
Detective Markel, but that it was only wishful thinking. Defendant‟s sister Mary
Alice Baldwin testified regarding Pauline‟s contact with other members of the
Verdugo family before and during the trial, and about her own contact with
defense counsel George Hernandez. Baldwin also testified that Tucker told her
before trial that she was “falling for Detective Markel.” Baldwin told defense
counsel Hernandez before trial that Tucker had said that Markel had offered her
the reward and that she intended to accept it.
56
The trial court denied the new trial motion. The court found credible
Tucker‟s and the “officer‟s”11 testimony at the hearing on the motion. Given what
the trial evidence had revealed about the Verdugo family, the court said that
Tucker‟s explanations made “a lot of sense.” With respect to the reward money,
the court credited Tucker‟s hearing testimony that she was not promised any
reward, and the court noted that other testimony corroborated Tucker‟s testimony.
The court also credited Tucker‟s explanation of her contradictory assertion to
Pauline that she had been promised the reward. Finally, the court stated that,
“even taking Donna [Tucker] out of the case,” the verdicts in both phases of the
trial would have been the same.
b. Analysis
“To grant a new trial on the basis of newly discovered evidence, the evidence
must make a different result probable on retrial.” (People v. Ochoa (1998) 19
Cal.4th 353, 473.) “[T]he trial court has broad discretion in ruling on a new trial
motion,” and its “ruling will be disturbed only for clear abuse of that discretion.”
(People v. Ault (2004) 33 Cal.4th 1250, 1260.) In addition, “[w]e accept the trial
court‟s credibility determinations and findings on questions of historical fact if
supported by substantial evidence.” (People v. Nesler (1997) 16 Cal.4th 561, 582
(lead opn. of George, C. J.).)
Several of the grounds defendant raises on appeal in challenging the trial
court‟s denial of his new trial motion have already been discussed in detail in this
opinion and rejected. Specifically, he asserts that he was entitled to a new trial
11
This reference was presumably to Detective Markel. The court may also
have meant “officers‟ ” (possessive plural). Although the court reporter chose the
word “officer‟s” (possessive singular) when preparing the written transcript, no
reason appears to assume that, when speaking the word, the court meant the
reference to be singular rather than plural.
57
because: (1) the prosecution had failed to disclose Tucker‟s receipt of witness
relocation funds, a fact that the defense could have used to impeach her; (2) the
trial court had excluded evidence related to Tucker‟s mental health problems; and
(3) the trial court had precluded defendant from using the investigation of
wrongdoing by Detectives Teague and Markel to substantiate his explanation for
why he had arranged for the purchase of eyeglasses that could be used as false
evidence. For the reasons already stated (see, ante, pts. II.A.2.e., II.A.3.a.,
II.A.3.b.), we find these arguments unpersuasive. (People v. Burgener (2003) 29
Cal.4th 833, 893.)
The trial court also did not err in concluding that the letters Donna Tucker
wrote to Pauline Verdugo did not provide a basis for granting a new trial.
Although certain statements in Tucker‟s letters are troubling, the court found her
explanations of those statements to be credible, and substantial evidence in the
form of her testimony and that of other witnesses supports this credibility
determination.
To the extent defendant claims that the letters represented newly discovered
evidence that Tucker had been in a psychiatric institution12 and that the new trial
motion should have been granted on that ground, he forfeited the claim by failing
to assert it below, either in his motion for a new trial or in his two statements of
grounds for the motion. In addition, the letters were not newly discovered
evidence of Tucker‟s hospitalization, because defendant was aware during trial of
the possibility that Tucker had been hospitalized in a psychiatric institution and
12
In a letter to Pauline, Tucker stated: “I had my med[ical] exams last
Sat[urday]. All because of my stay in the cookie factory at A.V. Hospital. Also, I
will have a hearing in a couple months from Victim/Witness Assistance to cover
my med[ical] expenses at the hospital, counseling, and lots of chiropractic visits
(since last Spring).”
58
could have investigated the matter at that time. (§ 1181.) Finally, defendant does
not identify what Tucker‟s psychiatric problems were or how they would have
affected her credibility.
“Defendant has shown no manifest and unmistakable abuse of discretion in
the trial court‟s ruling [on the new trial motion]. No basis for reversal appears.”
(Zambrano, supra, 41 Cal.4th at p. 1188.)
2. Denial of request to discharge retained counsel
Defendant contends the trial court erred under the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the federal Constitution and analogous provisions of
the California Constitution when, in the middle of the evidentiary hearing on the
new trial motion, the court denied defendant‟s request to discharge retained
counsel. We disagree.
a. Factual background
As noted above, the penalty verdict was rendered on July 14, 1997, and on
August 13, 1998, more than a year later, defendant filed a new trial motion. On
September 11, 1998, five witnesses, including Donna Tucker, testified at the
hearing on the new trial motion. The hearing was continued to September 25,
1998, at which time defense counsel George Hernandez did not appear, apparently
because of a miscommunication regarding the time of the hearing. The hearing
was then continued to October 23, 1998. Hernandez again failed to appear, this
time because he was ill, and the hearing was continued to November 20, 1998.
At the outset of proceedings on November 20, 1998, Hernandez stated that
defendant “would like to relieve me as counsel.” The court denied the motion as
untimely, observing that they were in the middle of a hearing in which
considerable evidence had already been introduced, the trial involved a lengthy
transcript, and replacing counsel would cause substantial delay.
59
Defendant attempted to bolster his request to discharge counsel by stating
that Hernandez did not visit or telephone him with sufficient frequency.
Hernandez also stated that he had a conflict of interest because of a “veiled threat”
that defendant‟s father, Salvador Verdugo, had made against him at the time of the
September 11, 1998 hearing. Salvador Verdugo allegedly told Hernandez: “[I]f
anything happens to my son . . . we‟ll see what happens to you,” or words to that
effect. Hernandez did not report the incident to the police, but he had no further
contact with Salvador until three or four days before the November 20 hearing,
when he spoke to Salvador on the telephone. In that conversation, Salvador said
he was angry and “don‟t forget.”
The trial court commented that the alleged threat against Hernandez did not
appear “serious and credible” and that Hernandez‟s representations sounded like
“another . . . last ditch effort to somehow derail these proceedings.” Out of
concern, however, that the circumstances might warrant counsel‟s removal, the
court continued the hearing so that Salvador Verdugo could be questioned, and it
also requested briefing on the applicable legal standards.
On December 4, 1998, Salvador Verdugo testified that after a recent court
session,13 he followed Hernandez into the parking lot to ask about the case, feeling
dissatisfied by Hernandez‟s lack of communication with him. When his attempt to
obtain more information was unsuccessful, Salvador told Hernandez: “[I]f my son
goes down, . . . because . . . you‟re not doing your job, . . . you‟re going to go
down, too. I‟m going to go before the board and see that you go down.” By
“board,” Salvador meant the State Bar. Salvador, who was on probation and who
13
Salvador testified that the encounter took place after a hearing in October
1998, but he must have been referring to the September 11, 1998 hearing, because
Mr. Hernandez did not appear at the October 23, 1998 hearing.
60
considered Hernandez to be a friend, said that he never threatened Hernandez with
physical violence.
The court denied the motion to relieve counsel. The court determined that no
threat had actually been made and that Hernandez had simply misunderstood the
situation. As to the other grounds raised in support of the motion, the court relied
on the circumstances that there had been a lengthy trial, the new trial motion had
been continued numerous times, and “to relieve Mr. Hernandez . . . at this time
would . . . severely disrupt the orderly processes of justice.” The court observed
that the events pertinent to the new trial motion were “still somewhat fresh in the
witness[es]‟ memory” and that examination of Donna Tucker had already begun.
b. Analysis
The right to retained counsel of choice is — subject to certain limitations —
guaranteed under the Sixth Amendment to the federal Constitution. (U.S. v.
Gonzalez-Lopez (2006) 548 U.S. 140, 144, 151-152; People v. Ramirez (2006) 39
Cal.4th 398, 422.) In California, this right “reflects not only a defendant‟s choice
of a particular attorney, but also his decision to discharge an attorney whom he
hired but no longer wishes to retain.” (People v. Ortiz (1990) 51 Cal.3d 975, 983
(Ortiz); see Code Civ. Proc., § 284.) The right to discharge a retained attorney is,
however, not absolute. (Ortiz, at p. 983.) The trial court has discretion to “deny
such a motion if discharge will result in „significant prejudice‟ to the defendant
[citation], or if it is not timely, i.e., if it will result in „disruption of the orderly
processes of justice‟ [citations].” (Ibid.; see U.S. v. Gonzalez-Lopez, at p. 152 [a
trial court has “wide latitude in balancing the right to counsel of choice against the
needs of fairness” and “against the demands of its calendar”].)
Defendant contends that the denial of his motion “forced him to proceed with
an attorney he did not want and with whom he had a conflict of interest.”
61
Defendant, however, does not identify any specific conflict of interest between
him and Hernandez, and he denies that the asserted threat against Hernandez was
the basis of his motion to relieve counsel. In the absence of any identified conflict
of interest, defendant‟s argument fails.
Defendant further asserts that the trial court erred because there was no
evidence that relieving counsel would have resulted in unreasonable disruption.
He points out that the request to relieve counsel was made on November 20, 1998,
the new trial motion was not ruled on until June 18, 1999, and sentencing did not
occur until November 19, 1999, and therefore new counsel would have had
enough time to become familiar with the case.
We conclude the trial court acted well within its discretion in denying
defendant‟s motion to relieve counsel. At the time the motion was made, the
parties were embroiled in a hearing on the new trial motion that focused on the
credibility of a major prosecution trial witness. Numerous witnesses had already
testified, and well over a year had passed since the penalty verdict. New counsel
would have had to become familiar with the specific matters at issue in the new
trial motion, but to understand the significance of those matters, new counsel
would also have had to study the entire lengthy trial record, resulting in significant
delays. Meanwhile, the witnesses‟ memories of events pertinent to the new trial
motion would naturally have faded over time, an event that the trial court stated
would undermine its ability to judge the witnesses‟ credibility. The trial court
reasonably found these circumstances to constitute “ „disruption of the orderly
processes of justice,‟ ” justifying denial of the motion to relieve counsel. (Ortiz,
supra, 51 Cal.3d at p. 983.)
62
3. Cumulative prejudice
Defendant contends that the cumulative effect of guilt and penalty phase
errors requires us to reverse the judgment. Where we have found or assumed
error, we have concluded that there was no prejudice under any standard. We also
find no cumulative prejudice.
4. Alleged violation of international law
Defendant contends that the violations of state and federal law in his case
also violate international law. We disagree. We have found no violations of state
or federal law that preclude imposition of death in this case. “International law
does not prohibit a sentence of death rendered in accordance with state and federal
constitutional and statutory requirements.” (People v. Hillhouse (2002) 27 Cal.4th
469, 511.)
III. DISPOSITION
We affirm the judgment.
KENNARD, J.
WE CONCUR:
GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
63
CONCURRING OPINION BY MORENO, J.
I concur in the judgment, but disagree with the majority in their analysis of
the admission of an audio cassette, consisting of several Mexican songs, that was
played to the jury and that was admitted under the aegis of “victim impact
evidence.” In my view, this cassette should not have been admitted.
“In a capital trial, Eighth Amendment principles ordinarily do not prevent
the sentencing authority from considering evidence of „the specific harm caused
by the crime in question.‟ (Payne v. Tennessee (1991) 501 U.S. 808, 825.) The
high court has explained that the prosecution has a legitimate interest in rebutting
the mitigating evidence that the defendant is entitled to introduce by introducing
aggravating evidence of the harm caused by the crime, „ “reminding the sentencer
that just as the murderer should be considered as an individual, so too the victim is
an individual whose death represents a unique loss to society and in particular to
his family.” ‟ (Ibid.) „[W]e also have found such evidence (and related “victim
character” evidence) admissible as a “circumstance of the crime” under section
190.3, factor (a).‟ [Citation.] We have cautioned, however, „that allowing such
evidence under factor (a) “does not mean that there are no limits on emotional
evidence and argument.” ‟ [Citations.] „ “ „The jury must face its obligation
soberly and rationally, and should not be given the impression that emotion may
reign over reason. [Citation.]‟ ” ‟ ” (People v. Prince (2007) 40 Cal.4th 1179,
1286-1287, fn. omitted.)
1
The use of music, an inherently emotional form of expression, in victim impact
evidence, has been a concern to a number of courts. In U.S. v. Sampson (D.Mass.
2004) 335 F.Supp.2d 166, 191-193, the court excluded a 27-minute videotape
containing 200 still photographs of the victim, in part because of the “evocative
accompanying music” by the Beatles, James Taylor and others. In Salazar v. State
(Tex.Crim.App. 2002) 90 S.W.3d 330, the Texas criminal court held inadmissible a
similar videotape in part because of the accompanying music by Enya and Celine
Dion singing “My Heart Will Go On.” And this court has cautioned against the use of
“stirring music” accompanying a filmed tribute to the victim. (Prince, supra, 40
Cal.4th at p. 804; see also (See Kelly v. California (2008) __ U.S. __ [129 S.Ct. 564,
567] (separate statement of Stevens, J. on denial of cert.) [noting the inherent risk of
prejudice of victim impact evidence “enhanced with music”]; id. at p. 568 (statement
of Breyer, J. dissenting from cert. denial); id. at p. 564 (noting Justice Souter‟s vote to
grant cert.).) Music rarely if ever has informational content that can contribute to a
capital jury‟s sober and rational decisionmaking. Its purpose and effect, generally, is
to evoke an emotional response from the jury. Such emotional evocation, while
suitable for a memorial tribute to the victim, is wholly inappropriate at the penalty
phase of a capital trial, where the purpose is not to honor the victim but to decide
whether the defendant should receive a death sentence. (See People v. Kelly (2007)
42 Cal.4th 763, 805 (conc. & dis. opn. of Moreno, J.).)
In the present case, Yolanda Navarro‟s mother Armida testified at length
about the close relationship Yolanda had with her father. She further testified that
Yolanda had made her father a cassette tape of Mexican songs on the theme of
loss and parting. The majority does not explain what additional information was
conveyed to the jury by playing the songs. That Yolanda‟s father, who was no
longer alive, was close to Yolanda and undoubtedly felt heart-wrenching loss at
her death was well established by Armida‟s testimony. Assuming arguendo that
2
the fact that Yolanda made a tape for her father was relevant for showing her
closeness to her father and therefore the great impact that her death had on him,
the majority does not explain how listening to her actual selection of songs
assisted the jury one iota. The contents of the cassette had nothing to do with
defendant‟s character, culpability, or the circumstances of the offense, which are
supposed to be the jury‟s sole concern during the penalty phase. (See People v.
Martinez (2010) 47 Cal.4th 911, 963.) The fact that she selected sad songs rather
than happy ones, Spanish songs rather than English ones, one genre rather than
another, did not make defendant more or less deserving of the death penalty. On
the other hand, these songs of loss, even if the jury did not understand Spanish
lyrics, had the distinct potential of being used to manipulate the juror‟s emotions.1
I nonetheless conclude on the present record that the trial court‟s error in
admitting the tape was not prejudicial. It can be reasonably inferred that only a
“few” of the songs were played (maj. opn., ante, at p. 44), the portion played was a
relatively small part of the prosecutor‟s penalty phase case, and, precisely because
its connection to victim impact or character evidence was so tenuous, the music
here was less likely to bias the jury than music accompanying victim impact
evidence found to be prejudicially admitted. (See, e.g., Salazar, supra, 118
S.W.3d at p. 885.)
MORENO, J.
1
The majority states: “Had Yolanda instead created a collage of photographs
of Mexico for her father, taken by individuals unrelated to the family, the trial
court would have likewise acted properly in allowing the jury to view it.” (Maj.
opn., ante, at p. 44.) Although this dictum is broadly stated, I do not understand it
to excuse trial courts from carefully weighing the probative value and potential
prejudicial impact of admitting artistic works by victims at the penalty phase.
3
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Verdugo
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S083904
Date Filed: August 2, 2010
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Curtis B. Rappé
__________________________________________________________________________________
Attorneys for Appellant:
John F. Schuck, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Sharlene A. Honnaka, John R. Gorey and David C. Cook, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
John F. Schuck
Law Offices of John F. Schuck
4083 Transport Street, Suite B
Palo Alto, CA 94303
(650) 856-7963
David C. Cook
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-4991
Automatic appeal from a judgment of death.
Opinion Information
| Date: | Docket Number: | Category: | Status: |
| Mon, 08/02/2010 | S083904 | Automatic Appeal | submitted/opinion due |
Parties
| 1 | The People (Respondent) Represented by Attorney General's Office David C. Cook, Deputy Attorney General 300 S. Spring Street, Suite 500 Los Angeles, CA |
| 2 | Verdugo, Nathan James (Appellant) San Quentin State Prison Represented by John F. Schuck Law Office of John F. Schuck 4083 Transport Street, Suite B Palo Alto, CA |
| Dockets | |
| Nov 19 1999 | Judgment of death |
| Nov 29 1999 | Filed certified copy of Judgment of Death Rendered 11/19/99 |
| Nov 29 1999 | Penal Code sections 190.6 et seq. apply to this case |
| Dec 10 1999 | Filed: appellant's application for appointment of counsel (IFP form). |
| Feb 16 2000 | Record certified for completeness |
| Nov 1 2004 | Counsel appointment order filed appointing John F. Schuck to represent appellant for the direct appeal. |
| Nov 9 2004 | Received: notice from superior court that record was transmitted to appellant's counsel on 11-4-2004. |
| Nov 9 2004 | Date trial court delivered record to appellant's counsel (10,462 pp. record) (see Calif. Rules of Court, rule 34(e)(1); the date of delivery is the date of mailing plus five days.) (Note: record was transmitted on 11-4-2004.) |
| Nov 10 2004 | Appellant's opening brief letter sent, due: June 7, 2005. |
| Dec 29 2004 | Counsel's status report received (confidential) from atty Schuck. |
| Jan 12 2005 | Compensation awarded counsel Atty Schuck |
| Feb 2 2005 | Compensation awarded counsel Atty Schuck |
| Feb 18 2005 | Received copy of appellant's record correction motion Request to correct and augment record on appeal. (20 pp.) |
| Feb 25 2005 | Counsel's status report received (confidential) from atty Schuck. |
| Mar 21 2005 | Record certified for accuracy |
| Apr 14 2005 | Note: record arrived from superior court. |
| Apr 29 2005 | Counsel's status report received (confidential) from atty Schuck. |
| May 31 2005 | Record on appeal filed clerks's transcript 3904 pp. (19 volumes) and reporter's transcript 7131 pp. (47 volumes), including material under seal; ASCII disks. Clerk's transcript includes 1960 pp. of juror questionnaires. |
| May 31 2005 | Letter sent to: counsel advising that the record certified for accuracy was filed this date. |
| Jun 9 2005 | Request for extension of time filed to file AOB. (1st request) |
| Jun 14 2005 | Extension of time granted to 8/8/2005 to file appellant's opening brief. |
| Jun 28 2005 | Counsel's status report received (confidential) from atty Schuck. |
| Aug 5 2005 | Request for extension of time filed to file appellant's opening brief. (2nd request) |
| Aug 9 2005 | Extension of time granted to 10/7/2005 to file appellant's opening brief. |
| Aug 29 2005 | Counsel's status report received (confidential) from atty Schuck. |
| Oct 4 2005 | Request for extension of time filed to file appellant's opening brief. (3rd request) |
| Oct 11 2005 | Extension of time granted to 12/6/2005 to file appellant's opening brief. Extension is granted based upon counsel John F. Schuck's representation that he anticipates filing that brief by 12/6/2005. After that date, no further extension is contemplated. |
| Oct 19 2005 | Compensation awarded counsel Atty Schuck |
| Oct 21 2005 | Counsel's status report received (confidential) from atty Schuck. |
| Dec 6 2005 | Received: appellant's 4th request for extension of time to file AOB. Not filed; declaration does not indicate where executed. |
| Dec 7 2005 | Request for extension of time filed to file appellant's opening brief. (4th request) |
| Dec 9 2005 | Extension of time granted to 2/6/2006 to file the appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon counsel John F. Schuck's representation that he anticipates filing that brief by 2/6/2006. |
| Dec 21 2005 | Counsel's status report received (confidential) from atty Schuck. |
| Feb 3 2006 | Extension of time granted to file appellant's opening brief. (5th request) |
| Feb 7 2006 | Extension of time granted to 4/7/2006 to file the appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon counsel John F. Schuck's representation that he anticipates filing that brief by 4/7/2006. |
| Feb 22 2006 | Counsel's status report received (confidential) from atty Schuck. |
| Apr 6 2006 | Request for extension of time filed to file AOB. (6th request) |
| Apr 13 2006 | Extension of time granted to June 6, 2006 to file the appellant's opening brief. After that date, no further extension is contemplated. Extension is granted based upon counsel John F. Schuck's representation that he anticipates filing that brief by June 6, 2006. |
| Apr 21 2006 | Counsel's status report received (confidential) from atty Schuck. |
| Jun 5 2006 | Request for extension of time filed to file appellant's opening brief. (7th request) |
| Jun 8 2006 | Extension of time granted to August 7, 2006 to file the appellant's opening brief. After that date, no further extension is contemplated. Extension is granted based upon counsel John F. Schuck's representation that he anticipates filing that brief by August 7, 2006. |
| Aug 1 2006 | Request for extension of time filed to file AOB. (8th request) |
| Aug 3 2006 | Extension of time granted to October 6, 2006 to file the appellant's opening brief. After that date, no further extension is contemplated. Extension is granted based upon counsel John F. Schuck's representation that he anticipates filing that brief by October 6, 2006. |
| Aug 30 2006 | Counsel's status report received (confidential) from atty Schuck. |
| Oct 6 2006 | Appellant's opening brief filed (76,179 words; 284 pp.) |
| Oct 6 2006 | Respondent's brief letter sent; due: February 20, 2007. (Pursuant to the California Rules of Court, rule 36(c)(1)(B)(C)) |
| Dec 8 2006 | Compensation awarded counsel Atty Schuck |
| Feb 15 2007 | Request for extension of time filed to file respondent's brief. (1st request) |
| Feb 20 2007 | Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to serve and file respondent's brief is extended to and including April 23, 2007. |
| Apr 12 2007 | Request for extension of time filed to file respondent's brief. (2nd request) |
| Apr 23 2007 | Extension of time granted to June 22, 2007 to file respondent's brief. Extension is granted based upon Deputy Attorney General David C. Cook's representation that he anticipates filing that brief by June 22, 2007. After that date, no further extension is contemplated. |
| Jun 22 2007 | Respondent's brief filed (59,864 words; 188 pp.) |
| Jun 25 2007 | Note: appellant's reply brief is due August 21, 2007. |
| Aug 9 2007 | Request for extension of time filed from atty Shuck. (1st request) |
| Aug 15 2007 | Extension of time granted Good cause appearing, and based upon counsel John F. Schuck's representation that he anticipates filing the appellant's reply brief by December 21, 2007, counsel's request for an extension of time in which to file that brief is granted to October 22, 2007. After that date, only one further extension totaling about 60 additional days is contemplated. |
| Oct 19 2007 | Request for extension of time filed to file appellant's reply brief. (2nd request) |
| Oct 22 2007 | Extension of time granted Good cause appearing, and based upon counsel John F. Schuck's representation that he anticipates filing the appellant's reply brief by December 21, 2007, counsel's request for an extension of time in which to file that brief is granted to December 21, 2007. After that date, no further extension is contemplated. |
| Dec 19 2007 | Request for extension of time filed to file appellant's reply brief. (3rd request) |
| Dec 31 2007 | Extension of time granted Good cause appearing, and based upon counsel John F. Schuck's representation that he anticipates filing the appellant's reply brief by February 20, 2008, counsel's request for an extension of time in which to file that brief is granted to February 20, 2008. After that date, no further extension is contemplated. |
| Feb 6 2008 | Appellant's reply brief filed (21,193 words; 88 pp.) |
| Feb 28 2008 | Compensation awarded counsel Atty Schuck |
| Aug 21 2009 | Exhibit(s) lodged from superior court: Court's no. 4; People's nos. 19, 31, 34E, 102, 119, 122; and Defendant's C. |
| Sep 30 2009 | Exhibit(s) lodged from superior court - people's exhibits: 26 A-D, 57, 60A-D, 61, 82, 82B, 86, 100, 102, 104 A-H, 105 A-H, 106 A-D, 107, 108 A-I, 109, 110 A-F, 111 A-H, 112 A-C, 113 A-D, 114 A-G, 115 A-E, 116, 117-118, 120, 121 A-G. |
| Oct 14 2009 | Letter sent to: appellant's counsel advising that the court is considering whether to unseal, on its own motion, sealed clerk's transcript pages 3028-3030 and 3060-3069. (See Cal. Rules of Court, rules 2.550(a)(2), (c), (d); 8.160(a), (f)(3), and (f)(4).) Counsel is invited to serve and file a response, if he wishes, on or before before October 26, 2009, addressing whether the transcript pages in question should remain sealed. |
| Oct 16 2009 | Filed: letter from appellant's counsel, John F. Schuck, dated October 15, 2009, in response to the court's letter of October 14, 2009. He has no objection to the unsealing of clerk's transcript pages 3028-3030 and 3060-3069. |
| Dec 2 2009 | Record ordered unsealed On the court's own motion, which appellant does not oppose, the Clerk is directed to unseal clerk's transcript pages 3028-3030, and 3060-3069 and make the unsealed transcript pages part of the public record. (See Cal. Rules of Court, rule 8.328.) The Clerk is further directed to provide a copy of these unsealed transcript pages to counsel for respondent. |
| Feb 25 2010 | Oral argument letter sent to counsel advising that the court could schedule this case for argument as early as the first May calendar, to be held the week of May 3, 2010, 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. |
| Mar 30 2010 | Case ordered on calendar to be argued on Tuesday, May 4, 2010, at 1:30 p.m., in San Francisco |
| Apr 12 2010 | Received: appearance sheet from Deputy Attorney General David C. Cook, indicating 30 minutes for oral argument for respondent. |
| Apr 12 2010 | Filed: respondent's focus issues letter, dated April 8, 2010. |
| Apr 12 2010 | Filed: appellant's focus issues letter, dated April 9, 2010. |
| Apr 13 2010 | Received: appearance sheet from Attorney at Law John F. Schuck, indicating 30 minutes for oral argument for appellant. |
| Apr 28 2010 | Letter sent to: each non-amicus party counsel appearing at oral argument, from the Clerk of the Court: "The court has asked me to inform counsel in cases that will be argued at the May 3-6, 2010, oral argument calendar in San Francisco that Justice Joyce L. Kennard will be unable to be present at argument due to unexpected surgery. Upon stipulation of all parties in a case, Justice Kennard will participate in the deliberations and decision in this matter by reviewing the complete videotape recording of the argument and considering all of the written materials in each case. In the absence of the court's receipt of a written stipulation by all parties in a case, the court will decide whether to continue the matter to a future oral argument calendar or to ask the Chief Justice to assign a justice pro tempore who will participate in place of Justice Kennard at the May 3-6, 2010, sessions. "Please telephonically inform Steve Rockwell, Senior Deputy Clerk, at (415) 865-7011 as soon as possible whether the party(ies) you represent will or will not stipulate to Justice Kennard's participation in the case, even though she will not be present at oral argument. Please execute the attached written stipulation and returning it by fax on or before Friday, April 30, 2010. Submit the original signed stipulation to the court either by overnight mail or by bringing the document to the court on the day of argument." |
| Apr 29 2010 | Stipulation filed Stipulation by counsel John F. Schuck, that appellant has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument. |
| Apr 29 2010 | Stipulation filed Stipulation by counsel David C. Cook, that respondent has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument. |
| May 4 2010 | Cause argued and submitted |
| May 12 2010 | Compensation awarded counsel Atty Schuck |
| Jul 30 2010 | Notice of forthcoming opinion posted To be filed on Monday, August 2, 2010. |
| Briefs | |
| Oct 6 2006 | Appellant's opening brief filed |
| Jun 22 2007 | Respondent's brief filed |
| Feb 6 2008 | Appellant's reply brief filed |
