People v. Parker ( 2022 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
CALVIN LAMONT PARKER,
Defendant and Appellant.
S113962
San Diego County Superior Court
SCD154640
May 19, 2022
Justice Groban authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,
Kruger, Jenkins, and Petrou* concurred.
*
Associate Justice of the Court of Appeal, First Appellate
District, Division Three, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
PEOPLE v. PARKER
S113962
Opinion of the Court by Groban, J.
This automatic appeal follows from defendant Calvin
Lamont Parker’s 2002 conviction and death sentence for the
murder of Patricia Gallego. Defendant was found guilty of first
degree murder in violation of Penal Code1 section 187,
subdivision (a), and the jury also found true the lying-in-wait
special circumstance (§ 190.2, subd. (a)(15)), as well as the
special circumstance allegations that defendant intentionally
killed Gallego for financial gain (§ 190.2, subd. (a)(1)), while
engaged in the commission or attempted commission of rape (§
190.2, subd. (a)(17)). After a penalty trial, the jury returned a
verdict of death. We affirm the judgment.
FACTUAL BACKGROUND
A. Guilt Phase
1. Prosecution’s Evidence
Defendant and Gallego were roommates who met while
she was dating his former roommate, Charles Ijames, in 1997.
Gallego was a Brazilian citizen and had moved to the United
States in 1996. In 1998, after Gallego had dated Ijames for some
time, defendant told Ijames that Gallego had offered to pay him
$5,000 if he would marry her. Ijames understood the offer to be
1
All further unspecified statutory references are to the
Penal Code.
PEOPLE v. PARKER
Opinion of the Court by Groban, J.
purely transactional, not romantic. Ijames got the impression
defendant was uneasy about Gallego’s request and that he
would turn her down.
Gallego and Ijames broke up in late 1998, and Gallego
went back to Brazil. She returned to the United States in late
1999. Ijames and defendant stopped living together in
November 1999, and about six months after that, defendant told
his friend Leilani Kaloha that he was moving in with Gallego.
Defendant told Kaloha that he had known Gallego previously,
that he planned to marry her in exchange for money, and that
they were moving in to make their marriage appear plausible.
A month or two after defendant told Kaloha he planned to marry
Gallego, Kaloha asked defendant if that was still the case, and
defendant said it was not. Marilyn Powell, defendant’s ex-
girlfriend, learned defendant and Gallego no longer planned to
marry some months after moving in together, and Powell
thought defendant was upset about the change in plans.
Gallego held two jobs while living with defendant. She
was a server at Yakimono restaurant and a supervisor at Café
Chloe. Several days before her disappearance, Gallego told
Eudes De Crecy, the owner of Café Chloe, that she wanted to
change her life and move out of the apartment she shared with
defendant. De Crecy observed that Gallego was stressed, tired,
and unhappy in the days immediately preceding her
disappearance.
Gallego was last seen after her shift at Café Chloe on
August 10, 2000; she did not return for her next scheduled shift
on Monday, August 14 or any time before that shift. Several
days after she was last seen, a man who identified himself as
Gallego’s roommate called both restaurants to tell them Gallego
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returned to Brazil temporarily and asked them not to terminate
Gallego’s employment.
In late July 2000, defendant wrote a letter to his
supervisor at work requesting time off in August. He explained
that his mother had terminal cancer, and despite the store’s
understaffing, his request for nearly a week of leave, from
August 7–12, was granted. In fact, pursuant to the parties’
stipulation, defendant’s foster mother, Eva Nunn, did not have
cancer or any other terminal illness, and he had not spoken with
her in over three years.
In the months leading up to Gallego’s disappearance,
defendant began calling Wells Fargo Bank, where Gallego did
her banking, to check on the status of her accounts. He called
on June 20 and 28, 2000, and on July 18, 2000.
On August 12, 2000, defendant rented a U-Haul truck,
which he parked overnight outside of his apartment. Later that
day, defendant bought a “45-gallon roughneck trash can with
wheels” and a hand drill at a Home Depot. He then went to a
Wells Fargo Bank branch, where he cashed a $300 check written
from Gallego’s account to him.
The next morning, defendant purchased bolt cutters from
a Home Depot store, where he also rented a Rug Doctor carpet
cleaning machine. That evening, around 5:00 p.m., a man was
seen parking a U-Haul next to dumpsters located outside a
PetSmart. The U-Haul held garbage bags and a Rug Doctor
carpet cleaning machine; the man was seen throwing two large
garbage bags into a dumpster, flicking an object — later
revealed to be a human fingertip — into the brush nearby, and
driving away. That night, Josh Dubois, defendant’s upstairs
neighbor, heard a great deal of noise coming from defendant’s
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apartment between 3:00 a.m. and 4:00 a.m. He testified he
heard duct tape being torn off of a roll numerous times, as well
as car doors opening and closing outside of the apartment’s
windows.
Around 11:30 a.m. on August 14, 2000, defendant visited
a Wells Fargo Bank branch and attempted to cash a $350 check
written from Gallego’s account to him. The bank’s computers
were unable to process the check, and defendant left the bank
without having completed the transaction.
That evening, defendant called Anna Ching, Yakimono’s
owner, to tell her Gallego’s mother had had an accident in
Brazil, and Gallego flew there temporarily. Defendant conveyed
that Gallego needed her job and asked that Ching not terminate
her employment. The next day defendant telephoned Loic
Vacher, a manager at Café Chloe, and told him a similar story:
that Gallego went to Brazil “because one of her parents was in
the hospital” and that she planned to return and “didn’t quit or
something like that.”
Early in the morning on August 14, 2000, Steve Gomez, a
maintenance worker for a PetSmart shopping center, was
looking through the dumpsters behind the PetSmart store, a
practice he engaged in routinely to search for discarded items he
could take home to his pet. That morning, as he looked through
some discarded trash bags, he saw several fingertips. Gomez
contacted his supervisor, Cauhtemoc Topete (“Temo”), who
called law enforcement. Temo noted the fingers appeared to be
burned, and Gomez believed the fingertips were feminine.
San Diego Police Officer Phillip Franchina responded to
the PetSmart parking lot and saw “severed fingers” among the
trash in the dumpsters. James Francis Hergenroeather, a
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Opinion of the Court by Groban, J.
homicide detective with the San Diego Police Department,
responded to the PetSmart scene, where he removed and
cataloged items found in and around the dumpsters. The items
found included: eight fingertips found in and around the
dumpsters;2 cigarettes and lighters; “two yellow rubber gloves
with red stains”; a razor blade; an empty bottle of “Tile Action”
cleaner; wet paper towels; duct tape packaging, tape, and bolt
cutters with a Home Depot sticker attached; and a separate bag
containing many items, among them a banana peel, a pair of
jeans, a hand drill, a wet washcloth, and empty perfume bottles
labeled “Bath and Body Works Splash Freesia” and “Dazzling
Gold Estee Lauder.”
Within the bag containing the banana peel, Detective
Hergenroeather also found two pieces of paper with writing on
them. The first paper read, “Please do not disturb. Sleeping.
Thanx [sic].” The second was a handwritten “to-do” list, which
included the following items and notations: “2-4am; M-Th;
shaver cord; dish wash gloves; Adidas jacket; knit cap inside-
out; long black nylon (Nike sweats); digi cam (scanner);
cucumber; get info → software for moving, altering, or enlarging
photos; burn palms + face thoroughly; (small hand truck &
drawer for extraction from apt.); 2 S.A.S.E. letters re: 11 day
hiatus to visit w/ grieveng [sic] relatives; need these checks; 5-
day hiatus for me; Su → Th & slave screams; Ads in Reader +
Internet Baby!!; on Aug. 2nd/10th/ & 15th; ensure 7,200.00
avail…; close all windows + kitchen; lock doors; on her stomach;
2
Detective Sergeant William Holmes returned to the
PetSmart parking lot the day after Detective Hergenroeather’s
search to investigate an allegation that a witness saw an item
being thrown or flicked away near the dumpsters. He found a
human thumb in the planters near the dumpsters.
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(shave + plug a virgin pussy & clenching ass cheeks pound ‘em);
(rub your nuts . . . lubed-up tits & lubed-up asshole!!!); (your
nuts . . .); (30 & afraid to take a dick — what a fuckin’ joke).”
The list also had a drawing on it showing two people lying on
top of each other with the caption, “um you got daddy all big n
wet, now let’s spank that tight lil asshole.”
On the morning of August 13, 2000, Dale Kaler noticed a
mattress left in the roadway along the fence line of his neighbor,
Scott Carroll’s, house. Their daughters, who had been running
a lemonade stand that day, noticed the mattress was
bloodstained. Kaler and Carroll notified the San Diego Police
Department, and officers responded.
On the evening of August 14, 2000, Debra Desrosiers was
walking with a friend in her Carlsbad neighborhood when they
noticed a duct-tape-wrapped trash can in a ditch off the road.
The trash can was out of place, particularly in the well-
manicured subdivision, so they decided to kick the trash can and
noted it was heavy. Desrosiers’s walking partner lifted the trash
can’s lid, and both women saw what appeared to be flesh and
dark hair in the can and immediately called the police. A body
was found in the trash can, ultimately identified as Gallego.
On August 15, 2000, defendant telephonically transferred
the $4,670.02 balance of Gallego’s savings account to her
checking account. Later that day, he was arrested at the
apartment he shared with Gallego.
Detectives Hergenroeather, Holmes, and Washington
searched the home. The apartment looked clean, the windows
were closed, and Gallego’s bedroom and bathroom appeared to
have been cleaned. In Gallego’s bedroom, a bed frame and
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mattress were propped against a wall, and there was a red stain
on the carpet.
A number of items were found in the apartment matching
what was listed on the note in the dumpster, including: a shaver
with its cord (found in defendant’s bathroom under the sink);
dishwashing gloves; an Adidas jacket (found in defendant’s
closet); a knit cap (found on defendant’s bed); and Nike pants
(found in defendant’s closet). A search of Gallego’s car and the
U-Haul revealed items listed on the handwritten note found in
the dumpster or similar to items located in the dumpster,
including a dust mask and bottle of Chanel perfume and a hand
cart. A Nash brand scarf was found in the living room closet.
Defendant’s apartment contained a number of cleaning
supplies, including a towel and a wet washcloth found in a
laundry basket in the living room, black garbage bags with red
pull tabs like those found in the dumpster, several used mops,
and assorted cleaning products found in the kitchen and
beneath the sink in defendant’s bathroom.
Gallego’s passport photos and other identification
documents were found in the living room in a manila envelope
on the living room floor with the letters “CAL” and “P.R.G.”
written on it. Check No. 201 from Gallego’s account, made
payable to “Cal,” was found in the kitchen trash. Gallego’s car
keys were located in the dining room, along with a notebook and
a note with instructions on how to drive a manual car.
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Several receipts3 and credit card applications4 were found
on the kitchen counter, along with a credit card in defendant’s
name, defendant’s driver’s license, $194.30, and a sheet of paper
listing names, phone numbers, social security numbers, and a
driver’s license number. The check defendant tried to cash at
the Wells Fargo in Mission Valley, No. 202, was also found on
the kitchen counter. More papers were located in defendant’s
bedroom, including: a Ralphs receipt for garbage bags and food
dated August 13, 2000 at 11:41 p.m.; an envelope with the words
“Patricia G.” on it, along with numbers and place names; a note
with no intended recipient that said, “I am sorry that I’m not
able to finish my shifts”; two shorter notes; and a letter.5
3
The receipts included: an August 13, 2000 receipt for a
Rug Doctor rental; an August 14, 2000 receipt for the return of
the U-Haul truck; a receipt from a Sav-On in Carlsbad dated
August 14, 2000 at 11:38 p.m.; and a receipt from a Togo’s in
Carlsbad dated August 15, 2000 at 11:40 a.m.
4
The credit card applications included: a J.C. Penney credit
card application made under the name “Pat R. Gallego”; a
Nordstrom FSB credit card application made under the name of
“Pat Ramos Gallego”; a Mervyn’s credit card application made
under the name of “Pat R. Gallego”; a Robinsons-May credit card
application made under the name of “Pat R. Gallego”; and a
Wells Fargo credit card application made under the name
“Patricia Ramos Gallego.”
5
The letter stated, in full: “I underline ‘true self,’ because
if that’s your thinking. [¶] I didn’t feel much like talking last
night, because all my life long, I’ve been lousy with any . . . of
verbal confrontation. So much so that you’d be left with the
impression that I’m the fuckin’ foreigner. [¶] Plus, I was pissed-
off about your agenda — just like a God damn Nazi!! Are you
the only men you’ll show your true self to, have to fit some
fuckin’ media mind controlling criteria of T.V. actor looks or
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Hundreds of pornographic images were recovered,
including hand-altered images depicting body parts from one
image pasted to another. Several of these images were collaged
photographs of Gallego’s face combined with body parts of
models from pornographic magazines. Pornographic
videotapes, pages from pornographic magazines, and hundreds
of altered images comprised the concededly large collection,
which the trial court described as “six to ten cubic feet” of
materials.
San Diego Police Department Criminalist Shawn
Montpetit saw drops of blood on the carpet in Gallego’s bedroom
and applied Luminol to parts of her bedroom and bathroom.
Luminol testing also revealed blood present on a bed frame that
was leaning against a wall. Samples from the carpet in
Gallego’s bedroom that had fluoresced following Luminol
application were DNA tested, and the blood in the carpet was
consistent with Gallego’s. Blood was seen at the threshold of
Gallego’s bathroom door along the metal strip and along the
door frame. Dirt patterns suggested a rug had been removed
from Gallego’s bathroom floor. Swabs were taken from the
fluoresced areas of Gallego’s bathroom floor underneath the
towel rack and near the shower door, but no blood could be
money or blond hair and blue eyes. You’re such a fucking
puppeted piece of shit at a whimsical society’s mercy. [¶] With
all that you’ve ever said I do you do your best and succeed at
making me feel completely insignificant — about half the
time — while in the early weeks of our cohabitation, I just
wanted to confront you. I call it feeling and acting like a human
being, by yielding, caring, respect, attention and notes and
flowers to perpetuate said intentions. [¶] Your brain can only
hope to aspire to be my liquid excrement!!”
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confirmed from those tests. Montpetit testified that cleaning the
bathroom could have removed all of the blood.
Deputy Medical Examiner Christopher I. Swalwell
performed an autopsy on Gallego’s body on August 15, 2000.
The body arrived in a plastic trash can, wrapped in plastic, and
without clothing save a Nash brand scarf looped and tied loosely
around Gallego’s head in a double knot. Her body emitted both
a foul odor and a sweet one, the latter smelling of Bath and Body
Works Freesia Body Splash or Estee Lauder Dazzling Gold
perfume, bottles of which were found in the PetSmart dumpster
and believed to have been used to mask the smell of
decomposition.
A number of external changes and injuries were visible
including: pre- and postmortem discoloration due to
decomposition; a shaved pubic area with no regrowth of hair;
missing fingers, eight of which and a thumb were later matched
to the body; blackened and wrinkled skin around her hands
suggesting postmortem burning; bruising and marks on her
arms, wrists, head, neck, back and ankle; and a postmortem
fracture of her thyroid cartilage, an injury common in asphyxia
by hanging or strangulation.
Swalwell did not definitively determine the time of
Gallego’s death, but estimated it occurred two or three days
before his examination. Gallego suffered blunt force trauma to
her head resulting in a skull fracture. Assuming she was not
already unconscious, Gallego’s contact with the object would
likely have caused her to lose consciousness. Her head injury,
caused by a sharp object like the corner of a desk or a rock, would
not have been fatal and likely occurred premortem because
there was bleeding. Gallego also suffered a cut — or sharp force
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trauma — to her neck, severing her internal jugular vein.
Gallego’s neck injury occurred premortem, and blood loss
resulting from her injuries was the cause of her death. Gallego’s
body contained no blood, and she had no blood on her body,
suggesting she lost blood somewhere other than the trash can
she was found in. Swalwell testified that submerging a wound
in water tends to keep it moist and prevents clotting, allowing
blood to flow. He testified that if Gallego was submerged in a
bathtub or if water was run over her neck injury, that could have
played a role in her total blood loss. Gallego’s death would not
have been immediate; it would have occurred between one
minute and one hour after suffering her injury.
Sergeant Holmes viewed postmortem photographs of
Gallego’s wrists and back and believed based on marks he
observed that handcuffs may have been used during the
homicide. Detective Hergenroeather likewise noted Gallego’s
left wrist was bruised or marked in a pattern similar to someone
who had been handcuffed for too long.6 Holmes sought the
assistance of Dr. Norman Sperber, a forensic dentist and expert
6
Defendant had been known to lock his bicycle using
handcuffs; he did so during the period he lived with Ijames.
Powell also testified she was aware of defendant using heavy
metallic silver handcuffs as a bike lock. Defendant rode his
bicycle to Powell’s house several times a week during their
relationship, and he would either lock it outside with the
handcuffs or bring the bicycle inside and keep the handcuffs in
his backpack. Powell described the handcuffs as similar to the
type police used, with a metal chain linking the two bracelet
portions of the cuffs. Following Gallego’s death, the property
from the shared apartment was moved to a storage facility,
including a bike that had been stored in a common area,
photographed both with and without a lock.
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in tool mark identification — that is, marks left by any object on
a soft or hard material, which includes marks left by teeth.
Sperber examined Gallego’s body in the medical examiner’s
office to assess whether a mark on her lower back could have
resulted from having had her hands cuffed behind her back.
Sperber compared the marks against several varieties of
handcuffs kept in the police department’s property room. To do
this, Sperber turned Gallego’s body facedown, positioned her
hands behind her back, and placed handcuffs on her wrists —
observing that the metal chain connecting the two rings of the
handcuffs was directly over the marked area on her back.
Sperber also noted Gallego’s right wrist bore a faint mark
consistent with having worn handcuffs.
Gallego’s body was examined for physical evidence of
sexual assault, and no injuries were seen. Montpetit found a
mixture of sperm and epithelial cells on vaginal swabs taken
from Gallego, of which defendant and Gallego were “possible
contributors.” The probability that someone other than
defendant and Gallego contributed to the DNA was “1 in 1200
for the Caucasian population, 1 in 2400 for the African-
American population, and 1 in 1800 for the Hispanic
population.”
Additional DNA evidence was collected from the bolt
cutters, which matched Gallego’s. The scarf found tied on
Gallego’s body was tested for the presence of saliva and blood,
with inclusive results for the former and positive results for the
latter. The mattress was tested for the presence of blood and
sperm, and Montpetit found DNA from blood consistent with
Gallego’s and DNA from sperm cells consistent with
defendant’s. Gallego’s DNA was also found in bloodstained
areas of the carpet in Gallego’s bedroom.
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Montpetit tested the rubber gloves with red stains, which
were negative for blood. A sperm cell was found on the banana
peel that had been discarded in the same trash bag as the to-do
list found in the PetSmart dumpster, but Montpetit was unable
to test it given the sample size. The U-Haul truck contained
several bloodstains and droplets, and testing of those suggested
Gallego was the most likely source.
Following his arrest, defendant met Edward Lee — who
had been arrested on drug-related charges — and made several
statements to him. Defendant told Lee he had been arrested for
murder, having initially planned to marry a woman from Brazil
for $2,000 but later deciding “to do another thing” because he
learned she had approximately $15,000 in the bank. Lee
understood defendant had been roommates with the woman he
planned to marry and that she intended to put money into a joint
bank account to make the marriage seem legitimate.
Defendant told Lee that after he killed the woman, he cut
off her fingers with bolt cutters, and it was more difficult to
accomplish that task than he had anticipated. Defendant “said
he had to just kind of jerk it around to get it to pop. The skin,
you know. He was cutting the knuckles.” Lee testified
defendant believed he would not be caught since the woman he
killed was from a different country. Lee testified that defendant
told him he drove a truck to Carlsbad to dispose of the body and
that he was startled by a light while in the process of disposal,
so he drove away. Defendant told Lee that he bagged up
Gallego’s fingers and threw away several bags — including the
one with her fingers — in a dumpster while an older woman
watched him doing so. Defendant allegedly told Lee he drained
the woman’s blood in a bathtub before disposing of her body.
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David Oleksow, an expert in handwriting, compared some
documents against defendant’s handwriting exemplars.
Oleksow concluded defendant was responsible for creating the
handwritten portions of six credit card applications in Gallego’s
name and a portion of Rug Doctor receipt.
2. Defense Evidence
Defendant presented evidence from Gallego’s friends and
former roommates, their neighbors, law enforcement officials, a
forensic pathologist, an acoustics expert, and the jailhouse
informant’s mother.
Gallego’s former roommate, Stephanie Ortiz, testified that
Gallego discussed marrying a United States citizen to gain
citizenship. Gallego told her former roommate, Kristina
Stepanof, that she was living with a friend to make it appear
they were in love.
San Diego Police Officer James Tomsovic testified that De
Crecy, the owner of Café Chloe, said Gallego seemed “normal”
and “upbeat” the last time he saw her and had relayed her plans
to get married on August 27, 2000. Defendant presented
testimony from Café Chloe customer and immigration attorney,
Giacomo Behar, who recalled speaking to several of the
Brazilian servers at the café and leaving his business card
should any of them need his assistance.
Gallego and defendant’s next door neighbor, Laura Balza,
heard an argument the week of August 6 that she thought was
coming from the apartment above her.
An acoustics expert, Jack Goldberg, testified that the
sound of a woman screaming in defendant’s apartment would be
loud enough to wake someone in the adjacent apartment and
would likely wake someone in the apartment above, particularly
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if their windows were open. No evidence of a scream being heard
was presented. Goldberg measured the decibel level of ripping
duct tape, determined it to be much lower than a scream, and
concluded that if a nearby apartment resident was able to hear
duct tape ripping, that resident would also likely be able to hear
a scream.
Powell testified that Gallego and her then boyfriend,
Ijames, had fights that involved cursing and raised voices.
Dr. William Brady, a forensic pathologist, testified Gallego
died as a result of the deep cut to her neck and resultant
bleeding. Brady believed Gallego’s head injury was not
necessarily fatal. Brady concluded Gallego was not gagged, was
not handcuffed while alive, and suffered no forcible sexual
contact.
Annie Lee, Edward Lee’s mother, provided impeachment
evidence against Lee. She testified Lee threatened to kill her
and her tenant. Although she was not afraid he would harm
her, she sought a restraining order against him because he was
addicted to drugs, and she wanted him to seek treatment.
B. Penalty Phase
1. Victim Impact Evidence
Gallego’s mother, father, and former roommate testified.
Gallego’s mother, Terezinha Ramos da Silva, testified Gallego
was a happy and hard-working young woman. Gallego’s mother
last spoke with her daughter a week or two prior to her death.
She learned of her daughter’s death after Gallego’s father
received phone calls he did not understand, and da Silva called
her daughter’s number and was told by the woman who
answered that her daughter was dead. Gallego’s mother
testified that Gallego was “everything to” her. Although da
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Silva learned her daughter was dead from the woman who
answered Gallego’s phone, she did not learn the circumstances
of her death until later; she testified Gallego died twice — once
when da Silva heard about her death and again in the courtroom
while testifying.
Gallego’s father, Rubens Gallego, also testified that
Gallego was “an enchanting girl. She was always happy. She
would just play. And she pleased everybody.” Her brothers were
distraught upon hearing the news of her death. Rubens had
planned to visit his daughter to celebrate her upcoming
birthday. He learned the news of his daughter’s death from his
family and then the consulate, and attending the trial and
learning the whole story is “much wors[e] than [he] had
thought.”
Gallego’s former roommate, Stepanof, also testified for the
prosecution, describing how she and Gallego became friendly
after Gallego temporarily moved in with her. Stepanof
described Gallego as warm, friendly, and energetic. Gallego
introduced Stepanof to some of her friends from Brazil, and
Gallego attended church services with Stepanof. Stepanof
learned of Gallego’s murder from Detective Keyser and
described its effect on her as “hard.”
2. Defense Evidence
Defendant’s mother, father, sister, aunt, foster mother,
foster brother, and social worker testified about his upbringing.
A pediatrician testified about the effects of child abuse and
neglect.
Defendant’s mother, Brenda Graves, appeared in court
accompanied by a social worker. She last saw defendant at one
of his foster homes and recalled that he was born in July, but
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she did not know which day. Defendant and his sister, J.G.,
were removed from her care at some point; both were initially
placed with her mother and then in foster homes. She visited
them in both placements. Graves was incarcerated in a state
hospital and treated for heroin and alcohol addiction; she denied
being physically violent toward her children. Ollie Lee, Graves’s
sister, testified defendant’s father was physically abusive to
Graves, and Graves was physically abusive with defendant.
Defendant’s father, Lawrence Parker, testified he did not
recall what day in July defendant was born. He described
injuries defendant suffered as a child. When defendant was one
year old, he swallowed some of Graves’s pills and was taken to
the hospital where his stomach was pumped; he recuperated
after a few days. One year later, Lawrence observed Graves
running angrily up the stairs, heard furniture moving and
defendant screaming, and saw a large cut on defendant’s head
that bled profusely. Lawrence called the police and defendant
was treated and removed from the home. After separating from
Graves, Lawrence saw defendant just twice more during his
childhood and once during his adulthood, each time for a period
of just a few hours.
Defendant was made a ward of the court. He and J.G.
were placed with their grandmother and aunt. Living
conditions at the home were found to be “deplorable” due to his
grandmother’s ill health and numerous other children living in
the home. Katherine Graves, defendant’s grandmother, also
cared for Ollie, two of her brothers, defendant, J.G., and 11 of
their cousins. J.G. testified that there was not always enough
to eat while living there.
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While defendant was living with Katherine and Ollie,
when he was about six years old, he contracted gonorrhea.
When doctors asked defendant who was “messing with him,” he
told Ollie that his uncle’s girlfriend had done so, and his uncle
responded to that information with pride. J.G. also suffered
physical and sexual abuse by her cousins and uncles while living
with Katherine and Ollie.
When defendant and J.G. were nine and seven,
respectively, they were placed with foster parents Eva Nunn
and her husband. They arrived at Nunn’s home with matted
hair and trash bags filled with adult-sized clothing that smelled
of urine. J.G. testified that the Nunns treated her well, and she
came to appreciate as an adult how much effort they expended
caring for her. Nunn described defendant as a quiet child who
liked to draw. Nunn also cared for an unrelated foster child,
eight-year-old John Breen. Breen testified that while he and
defendant lived with the Nunns, Breen mentally and physically
abused defendant for years, once slamming a ceramic piggy
bank against defendant’s head, and sometimes using a butcher
knife to threaten and scare him. J.G. testified that Breen was a
“horrible” brother and “bad kid.”
Graves wrote letters to defendant and J.G. while they
lived at the Nunn’s home, and she visited sometimes. Nunn
described Graves’s demeanor as childlike during those visits;
Graves mumbled to herself, spoke like a child, and talked about
her plans to marry Michael Jackson and other musicians.
Defendant also presented testimony from Dr. Marilyn
Kaufhold, a pediatrician expert in child abuse and neglect.
Kaufhold testified that a child who suffers trauma is often
“hyperaroused.” If such a child also suffers neglect, the person
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experiences difficulty forming relationships in adulthood.
Kaufhold explained that a parent with a mental illness may not
be able to provide a safe environment for a child because the
parent may be unable to discern what would be dangerous for
the child and because that parent may be unable to provide a
structured and predictable home.
Kaufhold reviewed defendant’s medical records, noting
that when defendant was 12 months old, Graves hit him to stop
him from crying, causing his lip to split and bleed. In March
1971, defendant ingested 118 prenatal iron tablets and was
admitted to the hospital, where he remained in critical condition
for five days. In July 1971, in an effort to stop defendant from
crying, Graves hit his head into a dresser causing a two-inch
laceration. While he was recuperating from his head injury,
defendant was again admitted to the hospital with abdominal
pain, and surgery revealed an abdominal abscess and intestinal
obstruction resulting from corrosion caused by his earlier
ingestion of iron pills. Kaufhold characterized these incidents
as abusive and neglectful. Defendant had a history of bed-
wetting, which persisted throughout his childhood and
adolescence.
3. Rebuttal Evidence
Defendant’s ex-girlfriend, Brenda Chamberlain, provided
rebuttal evidence. She testified that she and defendant met
through a mutual friend, and when he returned from a six-
month long deployment with the Navy, the two began dating.
They moved in together three months later, and for three years
enjoyed a normal relationship. In their third year of dating, they
broke up a few times; Chamberlain describes the final year of
their relationship as “on and off quite a bit.” Chamberlain loved
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Opinion of the Court by Groban, J.
defendant and believed he loved her, although once they broke
up, she did not maintain contact.
When they were dating, Chamberlain and defendant
would engage in various social activities and would take
photographs of one another while doing so. Chamberlain was
shown collaged images of her face and nude bodies or body parts
and testified that those images were not how the photographs
originally appeared. Chamberlain testified she never saw
anything like those images while she dated defendant, and he
treated her well, aside from their mutual arguments.
PRETRIAL
A. Defendant’s Competence To Stand Trial
Defendant argues the trial court abused its discretion by
failing to declare a doubt concerning his competence to stand
trial, suspend proceedings, and hold a competency trial. He
contends that the trial court was obligated to initiate
competency proceedings based on the evidence before it —
largely in the form of defendant’s conduct and in propria persona
filings — suggesting that due to a mental impairment,
defendant was unable to understand the proceedings and
rationally assist counsel in his defense. We disagree.
On several occasions during the course of pretrial
proceedings and at trial, defendant asked the trial court to
relieve counsel, permit him to represent himself, or appoint
different counsel. During pretrial proceedings, defendant
moved to represent himself, and the court held a Faretta7
hearing. At that hearing, defendant complained he was not
7
Faretta v. California (1975) 422 U.S. 806.
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being given “100 percent of everything” by his attorneys, and he
specifically sought autopsy photos to compare against the
medical examiner’s report. The trial court asked defense
counsel whether there were any concerns about defendant’s
competence. Counsel replied, “I don’t know of anything, your
honor, that would cause me to make a declaration under 1368.”
The court then asked whether counsel was aware of any
disability that would interfere with defendant’s ability to waive
his right to counsel, and his attorney responded in the negative.
The court also asked defendant directly for information related
to competence: After advising defendant about the nature of
self-representation in connection with a Faretta motion, it asked
defendant about his mental health history. Defendant denied
ever taking psychiatric medication or being treated for mental
illness. The court asked if defendant wished to convey anything
further, and defendant reiterated his request for copies of
autopsy photos. The court pointed out the significance of
waiving counsel, and defendant requested more time to consider
whether he wished to do so. The court did not suspend
proceedings then, or at any other time, to conduct a competency
hearing.
About six months after the Faretta hearing, defendant
twice sought the appointment of new counsel pursuant to People
v. Marsden (1970) 2 Cal.3d 118, claiming his attorneys were
dishonest when communicating with him and failed to give him
all discovery. Those motions were denied following in camera
proceedings.
At the first Marsden proceeding, conducted to consider his
request for new counsel, defendant alleged there was a general
conspiracy among the court and counsel, and that his attorneys
were lying to him. Defendant was especially concerned about
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Opinion of the Court by Groban, J.
the pathologist’s findings as to whether the victim was alive or
dead during the sexual assault and the extent to which that
mattered to substantiate a rape charge or special circumstance
finding. The court and counsel expressed concern that
defendant was wading into discussion of the cause of death,
which was an area that should remain attorney-client
privileged. Ignoring those warnings, defendant continued to
explain that he disagreed with the pathologist’s findings.
Shortly thereafter, defendant filed a second Marsden
motion, and the court again conducted an in camera hearing to
address it. At that hearing, counsel informed the court that
defendant was consistently making demands on counsel
concerning the investigation and defense strategy, explaining,
“[T]here isn’t any give-and-take with Mr. Parker. There’s
nothing that I can do that will . . . stop the torrent of marginally-
relevant requests and demands on our time that — that keep us
from preparing issues of unquestioned legal significance and
magnitude.” Cocounsel agreed that defendant was very engaged
in the investigation, asking a number of questions — sometimes
repetitively — despite having received answers to them during
previous communications.
After defense counsel expressed frustration to the court
concerning defendant’s “constant forays into marginally-
relevant areas; which, frankly, border on delusions sometimes,”
the court interrupted to ask whether counsel was “expressing
concerns that would cause a suspension of the proceedings.”
Counsel responded in the negative, and the court agreed, stating
it had “seen no[]” “basis on which to” suspend proceedings.
Counsel also explained to the court that the defense had
retained the services of a mental health expert to examine
defendant regarding “threshold issues [of] competency and
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sanity, Axis I diagnoses, mental health issues, to see if there
were any mental health issues . . . that might impact the guilt
phase or the penalty phase.” Counsel stated that although
defendant was not wholly cooperative with the expert’s
investigative efforts, the expert conveyed his belief that
defendant did not “suffer[] from any mental health condition
that would impact his competency or sanity” or that would rise
to the level of a potential defense at the guilt phase of this case.
The court ultimately denied the second Marsden motion.
Defendant filed no other Marsden motions and did not
again complain about counsel until the conclusion of the guilt
phase. Defendant “deliver[ed] a verbal Marsden” alleging his
attorneys sometimes provided him conflicting information,
colluded with opposing counsel, and counseled him against
testifying on his own behalf. The court conducted in camera
proceedings to address defendant’s concerns, after which it
denied his third Marsden request. These proceedings focused
on defendant’s desire to testify on his own behalf, counsel’s
conduct, and defendant’s relationship with counsel; the court did
not ask questions going specifically to defendant’s competence.
Following the penalty phase but before a verdict had been
reached, defendant submitted a lengthy handwritten motion
alleging trial counsel had been ineffective and had colluded with
the court and prosecution. In response, the trial court appointed
an attorney with the alternate public defender’s office to
investigate whether the claim was meritorious. After the
attorney concluded the claim lacked merit, the trial court heard
and denied defendant’s handwritten motion. At the hearing on
that motion, the court stated its belief, given the high quality of
advocacy provided by defense counsel and the alternate public
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Opinion of the Court by Groban, J.
defender’s office, that there was no attorney with whom
defendant would have been satisfied.
On February 24, 2003, defendant submitted two copies of
a second, lengthy handwritten document reiterating his
concerns that a conspiracy between the defense, prosecution,
and court existed. Appended to this filing were defendant’s
notes taken on various copies of pleadings and documents filed
in his case. In a few instances, defendant drew sexually graphic
sketches on these pages, all but one of which he made an effort
to redact before submitting the document to the court. That
document was initially filed under seal, but after defendant
requested it be publicly filed and began reading it aloud during
his sentencing hearing — during which he alleged collusion
between the court and counsel — the document was publicly
filed.
A defendant is incompetent to stand trial when “as a result
of a mental health disorder or developmental disability, the
defendant is unable to understand the nature of the criminal
proceedings or to assist counsel in the conduct of a defense in a
rational manner.” (§ 1367, subd. (a); see People v. Wycoff (2021)
12 Cal.5th 58, 81–82 (Wycoff).) The trial court’s “duty to assess
competence is a continuing one.” (People v. Rodas (2018)
6 Cal.5th 219, 236, fn. 5.) The obligation to suspend proceedings
and hold a competency trial is triggered whenever “ ‘the court is
presented with substantial evidence of incompetence, that is,
evidence that raises a reasonable or bona fide doubt concerning
the defendant’s competence to stand trial.’ ” (People v. Johnson
(2018) 6 Cal.5th 541, 575 (Johnson).) “The word ‘substantial’
does not mean that for a doubt to arise, there must be a large
quantity of evidence of a defendant’s incompetence; rather, it
means that there must be some evidence of sufficient substance
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that it cannot be dismissed as being inherently unpersuasive.”
(Wycoff, supra, at p. 83.)
The obligation to initiate formal competency proceedings
arises “even if the evidence . . . is presented by the defense or if
the sum of the evidence is in conflict.” (People v. Lightsey (2012)
54 Cal.4th 668, 691.) “When faced with conflicting evidence
regarding competence, the trial court’s role . . . is only to decide
whether the evidence of incompetence is substantial, not to
resolve the conflict. Resolution must await expert examination
and the opportunity for a full evidentiary hearing.” (People v.
Rodas, supra, 6 Cal.5th at p. 234.) “In other words, once a trial
court has before it substantial evidence that a defendant is not
mentally competent, its own observations of the defendant’s
competence cannot take the place of the formal competence
inquiry . . . .” (Wycoff, supra, 12 Cal.5th at p. 83.)
“The decision whether to order a competency hearing rests
within the trial court’s discretion, and may be disturbed upon
appeal ‘only where a doubt as to [mental competence] may be
said to appear as a matter of law or where there is an abuse of
discretion.’ ” (People v. Mickel (2016) 2 Cal.5th 181, 195.)
“[A]bsent a showing of ‘incompetence’ that is ‘substantial’ as a
matter of law, the trial judge’s decision not to order a
competency hearing is entitled to great deference, because the
trial court is in the best position to observe the defendant during
trial.” (People v. Mai (2013) 57 Cal.4th 986, 1033 (Mai).)
Defendant claims the trial court erred by failing to initiate
competency proceedings based on the evidence the court had
before it suggesting he may have been unable to rationally assist
his attorneys in the conduct of his defense, including evidence of
his “consistent mistrust of his counsel, his belief that there was
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Opinion of the Court by Groban, J.
a conspiracy against him . . . [and] his belief that evidence in his
case was fabricated.” We disagree. Defendant asserts that over
the course of his trial, he came to distrust his own attorneys, the
prosecution team, and the court, becoming convinced that all
“were joined in a conspiracy to fabricate evidence and secure a
death sentence.” As evidence that this distrust impaired his
ability to rationally assist his attorneys, he points to the fact
that he: submitted various documents to the court over
counsel’s objection, one of which contained a sexually graphic
drawing; repeatedly attempted — sometimes successfully —
against counsel’s wishes, to put evidence before the court that
could impair his defense; failed to cooperate with the mental
health expert retained to evaluate his competence and possible
defenses; and made a lengthy statement at his sentencing
hearing again alleging collusion and disclosing evidence that
could impair his defense. Defendant argues that although he
was never overtly disruptive, this conduct should have alerted
the court to the possibility that due to mental illness, he was
unable to rationally assist counsel in the conduct of his defense.
Nothing in defendant’s conduct suggests the court abused
its discretion by failing to suspend proceedings to assess
defendant’s competence. (See Johnson, supra, 6 Cal.5th at
p. 575.) An uncooperative defendant is not tantamount to an
incompetent one. (See Mai, supra, 57 Cal.4th at p. 1034 [“We
have frequently recognized . . . and have made clear that an
uncooperative attitude is not, in and of itself, substantial
evidence of incompetence”].) And here, although defendant was
distrustful of counsel, at times disagreed with the defense
strategy, and even publicly filed a document despite counsel’s
and the court’s attempts to maintain it under seal, he was
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Opinion of the Court by Groban, J.
actively engaged in his defense and generally cooperative with
proceedings, as he concedes.
We see no substantial evidence compelling us to conclude
that defendant’s behavior resulted from mental illness as
opposed to unwillingness to cooperate. (See Mai, supra,
57 Cal.4th at p. 1033.) Recently, in Wycoff, supra, 12 Cal.5th 58,
84, we concluded the trial court erred in failing to initiate
competency proceedings when the court had before it a
psychologist’s report that constituted substantial evidence of the
defendant’s incompetence to stand trial as a matter of law. In
the instant case, no mental health expert ever testified or
reported defendant was unable to assist counsel, nor was there
any other evidence before the court that constituted substantial
evidence of the defendant’s incompetence as a matter of law.
The court took steps to assure itself that defendant’s
mistrust of his counsel was not rooted in a mental impairment.
Indeed, the court twice inquired of counsel whether proceedings
should be suspended due to concerns about his competence, to
which counsel responded in the negative. During the Faretta
hearing, the court asked defendant’s attorneys whether there
were any concerns about his competence, to which they replied
no. And it separately asked defendant whether he had taken
psychiatric medications or been treated for mental illness, to
which he replied he had not. At a Marsden hearing held several
months later, when defense counsel noted defendant’s requests
“border[ed] on delusions sometimes,” the court interrupted to
ask whether counsel was concerned to a degree necessitating “a
suspension of the proceedings.” After defense counsel responded
in the negative, the court agreed it had “seen no[]” “basis on
which to” suspend proceedings. During defendant’s second
Marsden hearing, counsel told the court that an expert had
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examined defendant and concluded there was no basis to assert
he lacked competence. While an expert’s opinion is not required
to find a defendant incompetent, we have noted that “to discard
[expert] evidence” when it is available “for mere psychiatric
speculation” is “clearly outside our province.” (People v.
Laudermilk (1967) 67 Cal.2d 272, 288.) In the absence of
evidence of incompetence that is substantial as a matter of law,
we give great deference to the trial judge’s decision not to
initiate formal competency proceedings. (Mai, supra, 57 Cal.4th
at p. 1033.)
Defendant complains that in denying his second Marsden
motion, the court failed to acknowledge defendant’s paranoia
and delusions, because the court “viewed the motion only
through the lens of the conventional Marsden inquiry” rather
than more broadly assessing defendant’s competence. That does
not appear to be the case. When counsel mentioned defendant’s
requests seemed at times “delusional,” the court immediately
inquired after defendant’s competence and was reassured by
counsel that there were no issues of incompetence. “ ‘Although
trial counsel’s failure to seek a competency hearing is not
determinative [citation], it is significant because trial counsel
interacts with the defendant on a daily basis and is in the best
position to evaluate whether the defendant is able to participate
meaningfully in the proceedings.’ ” (People v. Ghobrial (2018)
5 Cal.5th 250, 273.) Particularly considering counsel’s
assurances, we cannot conclude that the trial court abused its
discretion in failing to initiate competency proceedings.
We likewise reject defendant’s assertion that his childhood
history and the nature of the crimes he stood accused of
committing constituted evidence of incompetence that would
have “ ‘raise[d] a reasonable or bona fide doubt concerning the
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Opinion of the Court by Groban, J.
defendant’s competence to stand trial.’ ” (Johnson, supra,6 Cal.5th at p. 575.) “In resolving the question of whether, as a
matter of law, the evidence raised a reasonable doubt as to
defendant’s mental competence, we may consider all the
relevant facts in the record.” (People v. Young (2005) 34 Cal.4th
1149, 1217.) Because they constitute “relevant facts,” we
certainly may assess the nature of the charges and any evidence
in the record regarding the defendant’s childhood history.
(Ibid.) As we have explained, however, “ ‘[w]hen the trial court’s
declaration of a doubt is discretionary, it is clear that “more is
required to raise a doubt than mere bizarre actions [citation] or
bizarre statements [citation] or . . . psychiatric testimony . . . [of
past] diagnos[e]s with little reference to defendant’s ability to
assist in his own defense.” ’ ” (Id. at p. 1218.) The facts of
defendant’s childhood history and the nature of the charges
against him are not enough alone for us to conclude the court
abused its discretion in failing to declare a doubt as to
defendant’s competence.
On this record, we cannot say as a matter of law that there
was substantial evidence that defendant was unable to consult
with his attorneys “with a reasonable degree of rational
understanding.” (Dusky v. United States (1960) 362 U.S. 402;
see Mai, supra, 57 Cal.4th at p. 1033.) And for the reasons given
above, we conclude the trial court did not abuse its discretion by
failing to initiate competency proceedings. (Mai, at p. 1033.)
B. Release of Television Production Company’s
Videotapes
Defendant argues his state and federal constitutional
rights were violated by the trial court’s pre- and posttrial rulings
to seal and prohibit disclosure to defendant of videotapes. The
videos, which were never broadcast, were prepared by a third
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Opinion of the Court by Groban, J.
party television production company filming a reality television
show and depict the prosecution team discussing defendant’s
case. He argues the trial court’s rulings constitute error
warranting reversal or, at a minimum, disclosure of the video
footage under seal to defendant to determine whether further
briefing is warranted. We conclude the trial court did not err.
Five months before the guilt phase began, defense counsel
issued a subpoena duces tecum to Trial & Error Productions
(TEP) seeking disclosure of video footage TEP had created of the
prosecution team. TEP had been filming a documentary-style
reality television show about district attorneys preparing for
and trying cases, and defendant sought to obtain all “outtakes”
of production related to his case, although no episode ever aired
related to his case. TEP moved to quash the subpoena, arguing
the footage was protected from disclosure by the California
reporter’s shield law (Cal. Const., art. I, § 2; Evid. Code, § 1070)
and the First Amendment to the federal Constitution.
Following a hearing on the motion, the trial court ordered
TEP to release the footage to the court so it could conduct an in
camera review. The trial court reviewed four tapes: a recording
of an interview with the victim’s mother, which had previously
been released to the defense; a recording of a meeting between
former District Attorney Paul Pfingst and two deputy district
attorneys discussing whether they would seek the death penalty
in defendant’s case; a recording of District Attorney Pfingst’s
announcement that the death penalty would be sought; and, a
recording of a discussion between Attorneys Daly and Thompson
concerning defendant’s case. The trial court evaluated the
factors outlined in Delaney v. Superior Court (1990) 50 Cal.3d
785 (Delaney) for when a defendant may overcome the shield
law. The court ruled that defendant would receive a copy of the
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Opinion of the Court by Groban, J.
first recording, but the other three videotapes would be sealed
and retained with the record.
During record correction proceedings, defendant’s
appellate counsel requested copies of the sealed videotapes, and
the trial court initially ordered the district attorney to make and
provide copies to counsel. The prosecution requested the court
withdraw its order after realizing the videotapes contained the
TEP footage, alerting the court that no notice had been provided
to the third party concerning the material’s dissemination. The
prosecution contacted NBC Universal Media, TEP’s parent
organization, which opposed in writing the dissemination of the
tapes. The trial court agreed with the prosecution and vacated
its earlier order to unseal the three videotapes, ordering the
videotape containing the interview with Gallego’s mother to be
copied and provided to counsel, and for the other three
videotapes to be resealed. Defendant filed a motion with this
court seeking limited disclosure of the videotapes for appellate
review, which we denied in an April 25, 2012 order.
Defendant argues, perfunctorily, that the trial court erred
by denying him access to the videotapes during trial but focuses
his argument before this court on the claim that his state and
federal constitutional rights were violated by denying appellate
counsel access to the tapes, asserting the appellate record is
incomplete. His arguments are without merit. The videotapes
are part of the record on appeal, but because they are sealed,
defendant lacks access to them. We review independently any
“records that remain sealed and to which defendant does not
have access,” keeping in mind that “ ‘[p]arties who challenge on
appeal trial court orders withholding information as privileged
or otherwise nondiscoverable “must do the best they can with
the information they have, and [we] will fill the gap by
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objectively reviewing the whole record.” ’ ” (People v. Avila
(2006) 38 Cal.4th 491, 606.) We have done so, and our
independent review of the videotapes reveals there was no error.
The trial court’s rulings — that trial counsel was not
permitted access to the videotapes during trial and that
appellate counsel was not entitled to them — were proper
because the recordings are subject to and protected by the state’s
shield law and by the First Amendment to the federal
Constitution. We review for abuse of discretion the trial court’s
application of the shield laws. (People v. Ramos (2004)
34 Cal.4th 494, 527.) As relevant here, the state’s shield laws
protect journalists from disclosing information acquired in the
course of making news. (See Cal. Const., art. I, § 2, subd. (b);
Evid. Code, § 1070.) The state’s shield law provides, in pertinent
part, that a journalist “shall not be adjudged in contempt by a
[court] for refusing to disclose the source of any information
procured while so connected or employed [as a news reporter],
or for refusing to disclose any unpublished information obtained
or prepared in gathering, receiving or processing of information
for communication to the public.” (Cal. Const., art. I, § 2, subd.
(b).) “Unpublished information” includes recorded footage not
shown to the public. (Ibid.; see also Evid. Code, § 1070
[statutory predecessor to Cal. Const., art. I, § 2, subd. (b)].) The
shield law applies whether or not the information was provided
in confidence. (Delaney, supra, 50 Cal.3d at p. 798.)
In Delaney, we explained that the shield law may be
overcome only “on a showing that nondisclosure would deprive
the defendant of his federal constitutional right to a fair trial.”
(Delaney, supra, 50 Cal.3d at p. 805.) A defendant must make a
threshold showing that there is a reasonable possibility the
information sought will materially assist with the defense. (Id.
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at p. 808.) The showing “need not be detailed or specific, but it
must rest on more than mere speculation.” (Id. at p. 809.) If the
defendant overcomes this threshold showing, the court then
balances four factors to evaluate disclosure, including: (1)
whether the unpublished information is confidential or
sensitive; (2) whether the interests sought to be protected by the
shield law will be thwarted by disclosure; (3) the importance of
the information to the defendant; and (4) whether there is an
alternative source for the information. (Id. at pp. 810–811.)
Defendant presents no argument supporting his assertion
that the court abused its discretion by failing to unseal the
records for trial counsel’s review, and we see none.
With respect to whether there was error in failing to
provide the videotapes to appellate counsel, as the Attorney
General argues, defendant cannot make the requisite threshold
showing because, as defendant concedes before this court, “his
appellate counsel stated [during record correction proceedings]
she did not necessarily plan to use the videotapes in her
pleadings and that she would let the court and prosecution know
if she decided to do so.” Defendant’s right to discovery was not
absolute, and when the court declined to provide the videotapes
to appellate counsel, it reasonably exercised its “ ‘ “wide
discretion to protect against the disclosure of information which
might unduly hamper the prosecution or violate some other
legitimate governmental interest.” [Citation.] This may be
particularly true when the information sought is not directly
related to the issue of a defendant’s guilt or innocence.’ ” (People
v. Avila, supra, 38 Cal.4th at p. 606.)
Defendant also fails to demonstrate any specific,
nonspeculative reason why the recordings would aid in his
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Opinion of the Court by Groban, J.
defense on appeal. He argues he is not required to demonstrate
that the information sought would go to the “ ‘heart of the case,’ ”
and claims the recordings would enable postconviction counsel
to evaluate whether to raise claims of error, misconduct at the
trial, or an unconstitutional charging decision. (Delaney, supra,
50 Cal.3d at p. 808.) These broad assertions fail to overcome the
threshold of demonstrating there was “a reasonable possibility
that the information sought [would] materially aid the defense.”
Defendant argues the trial court deprived him of due
process by basing its ruling on law that was not briefed.
Defendant claims the court’s pretrial analysis relied upon the
Delaney standard exclusively. In its posttrial order, the court
likewise ruled that “the factors outlined in Delaney are a
reasonable way to weigh the materiality of materials sought in”
subpoenas duces tecum to third parties. The court also
explained the decision to quash the subpoenas duces tecum was
discretionary and noted that using such subpoenas to conduct
fishing expeditions was disfavored. Defendant claims this non-
Delaney reason — that fishing expeditions are disfavored —
deprived him of due process because he was not provided an
opportunity to be heard on that subject. We disagree. The trial
court denied defendant’s request to unseal the recordings by
relying on Delaney and noted in its analysis that although much
of the state’s common law on discovery had been statutorily
superseded, “it appear[ed] that the legal aversion to ‘fishing
expeditions’ expressed in Pitchess” remained applicable “with
regard to subpoena’s [sic] duces tecum to third parties.” This
passing comment, which did not alter the trial court’s conclusion
that the Delaney factors constituted “a reasonable way to weigh
the materiality of materials sought in [third party] subpoenas”
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Opinion of the Court by Groban, J.
did not deprive defendant of notice or an opportunity to be
heard.
To the extent defendant’s appellate argument can be
construed as a request to unseal the videotapes, we note
defendant has presented that request already — and properly,
by way of separate motion — and we denied it. Defendant offers
no reason that decision warrants reconsideration.
GUILT PHASE
A. Introduction of Collaged Images
Defendant argues the trial court erred by permitting the
prosecution to introduce sexually graphic material at the guilt
and penalty phases. Defendant contends most of the material
introduced lacked relevance and was inflammatory and
prejudicial. Defendant’s claim lacks merit.
At defendant’s preliminary hearing on February 28, 2001,
Detective Hergenroeather testified that he found pornographic8
magazines in Gallego’s bedroom and a sexually explicit
videocassette in her videocassette recorder. In defendant’s
bedroom, Hergenroeather found over 1,000 pages of
pornographic materials, which included: images of Gallego with
cutout images of penises, breasts, and other body parts pasted
over her, or her head pasted over the naked bodies of other
people; images of men and women with cut-and-pasted or drawn
images of penises and vaginas over the underlying images; and
8
Defendant claims it was error to allow “the prosecution to
repeatedly refer to those materials as ‘porn’ or ‘pornography,’ ”
but failed to raise this argument before the trial court, forfeiting
it on appeal. (See People v. Mills (2010) 48 Cal.4th 158, 194.)
35
PEOPLE v. PARKER
Opinion of the Court by Groban, J.
an image of Gallego with a penis pasted over it and a
handwritten, sexually explicit statement.
The prosecution sought to introduce some of this evidence
at trial, arguing it was admissible to prove motive, intent, and
state of mind; defendant, in contrast, argued the sexually
graphic images, videos, and testimonial references were
irrelevant. At a hearing on the motions, the trial court noted
that “six to ten cubic feet of pornographic materials” were
recovered from defendant’s apartment. The prosecution
requested a small fraction of that be presented to the jury, a
three-to-four-inch stack, which materials would include
writings and images. Specifically, the prosecution sought to
introduce several examples of “morphed pornography,” which
included pictures of the body parts of multiple models cut and
pasted over each other, or parts pasted onto images of people
known to defendant, some of which had handwritten
descriptions of body parts or functions written over them. The
prosecution sought to introduce a subsection of the images that
included cut-and-pasted images of Gallego, of Marilyn Powell’s
daughters, of Chamberlain, and an image with a reference to
rape written on it.
During the hearing, the court described a few categories
into which the pornographic images fell: those depicting young
girls and women without pubic hair, those with sexually explicit
handwriting added, and those featuring handcuffs. The court
ruled that some of the material was relevant and admissible,
explaining that while the prosecution was
“obviously . . . entitled to show the jury the defendant’s sexual
content of his thoughts about the victim for intent, motive,” it
was concerned about “just the suffocating mass of it.” The
prosecutor sought to introduce images of Gallego to demonstrate
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PEOPLE v. PARKER
Opinion of the Court by Groban, J.
defendant’s sexual interest in her and argued the photos
involving Chamberlain, Powell, and Powell’s children were
relevant to demonstrate they were unaware of his interest in
and his creation of such imagery during their relationships with
him.
The trial court authorized admission of photographs
involving or depicting Gallego, a few photographs of Powell and
Powell’s “adult and adult-looking friends and children,” but
excluded photographs depicting Powell’s minor children and
initially excluded those with Chamberlain. The court offered
defense counsel the option of admitting just a sample of the
standard pornographic images — rather than the larger
collection of images — finding them admissible to demonstrate
the volume of images found and that the images overwhelmingly
featured women with shaved pubic hair. In admitting some
pornographic images depicting women with shaved pubic
hair — relevant in light of evidence that the victim was found
with freshly shaven pubic hair and that the to-do list made
reference to the shaving of pubic hair and to a “shaver cord” —
the court explained, “[T]he point would be to show that there’s
other pornography and a lot of it and that it tends to focus on
shaved women. [¶] And I would also then propose not
pictorially but testimonially to have the jury aware of the mass,
the quantity that there was, because I think that the quantity
and the effort that obviously went into it is relevant to the
threshold motive and intent issues.”
The court noted it had excluded most of the sexually
graphic evidence and had overruled defendant’s objections
based on Evidence Code section 352, due process, and relevance
that it was “disposition evidence.” Counsel argued he was
continuing to object to the introduction of any other sexually
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Opinion of the Court by Groban, J.
graphic images. The trial court suggested the prosecution
prepare a photo board of those images and at further hearings,
the parties continued to discuss the images to be included on the
prosecution’s photo boards, with defendant renewing objections
to the introduction of many of the images. Of the thousands of
images the trial court considered, a very small fraction was
introduced.
In addition to the pornographic images, the court
permitted the prosecution to introduce images of defendant’s
apartment, particularly those that depicted stacks of
pornographic images, so the jury could get a sense of the volume
of material found. The court also admitted a photograph of the
pornographic videocassettes found in defendant’s room.
At another hearing several weeks later, the parties
discussed the images of Powell and her children, and of
Chamberlain. The court excluded images depicting children,
concluding that there would be a great deal “of evidence that’s
going to cause the jury to feel — to have some negative views of
the defendant. I think the child porn risks demonizing him
beyond repair in front of the jury.” The court reasoned the
prosecution could elicit the testimony it wanted from Powell —
including her feelings upon learning defendant took and altered
images of her children in sexually graphic ways — without
introducing the images themselves. The court permitted some
images of Chamberlain to be introduced for the limited purpose
of determining whether she was aware of them during her
relationship with defendant and, if not, whether her opinion of
him was changed upon learning of the images’ existence.
In addition to the photos and photo boards introduced at
trial, and the prosecution’s opening and closing statements,
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Opinion of the Court by Groban, J.
Hergenroeather testified that he found hundreds of
pornographic magazines, photographs, and videocassettes in
defendant’s home. Powell testified that defendant was generally
interested in bondage and in “S&M” pornography, and she was
unaware defendant had removed photographs of her and her
family members from her home.
Defendant argues his state and federal constitutional
rights9 were violated by the admission of sexually graphic
images and materials and by the “drumbeat of alleged
‘pornography.’ ” He first contends the images were not obscene
within the meaning of the First Amendment and that even if
they were obscene, the First Amendment does not prohibit
possession of such materials within the privacy of one’s home.
He argues the images constituted protected speech, his creation
9
“With regard to this claim and virtually every other claim
raised on appeal, defendant asserts that the error violated his
rights to a fair trial and reliable penalty determination under
the Fifth, Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution and corresponding provisions of the
California Constitution. In most instances, defendant failed to
make these constitutional arguments in the trial court.
Nevertheless, unless otherwise indicated, we consider the
merits of these newly raised arguments because either (1) the
appellate claim is of a kind that required no objection to preserve
it, or (2) the claim invokes no facts or legal standards different
from those before the trial court, but merely asserts that an
error had the additional legal consequence of violating the
Constitution. [Citation.] In those circumstances, defendant’s
new constitutional arguments are not forfeited on appeal.
[Citations.] Where rejection of a claim of error on the merits
necessarily leads to a rejection of the newly asserted
constitutional objection, no separate constitutional analysis is
required and we have provided none.” (People v. Virgil (2011)
51 Cal.4th 1210, 1233‒1234, fn. 4.)
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Opinion of the Court by Groban, J.
of collaged imagery was protected activity under the First
Amendment, and “a criminal defendant’s First Amendment
activity is not admissible as evidence if it is wholly irrelevant to
the elements of the crimes of which he was charged.” As the
Attorney General properly points out, defendant is not being
punished for his possession of the materials, and he cannot
shelter under a free speech privilege when the sexually graphic
material was relevant to the charged offenses. (See Dawson v.
Delaware (1992) 503 U.S. 159, 160 [holding “the First and
Fourteenth Amendments prohibit the introduction in a capital
sentencing proceeding of the fact that the defendant” engaged in
protected associative activity if “the evidence has no relevance
to the issues being decided in the proceeding”]; cf. People v.
Bivert (2011) 52 Cal.4th 96, 118 [“Because evidence of
defendant’s associations and statements regarding race was
relevant to issues in question, it was not made inadmissible
merely by the fact it was also protected by the First
Amendment”].)
Defendant claims the admission of sexually graphic
images violated his state and federal due process rights because
the images were used as character evidence and to demonstrate
conduct on a specific occasion, in violation of Evidence Code
sections 352 and 1101. “ ‘In reviewing the ruling of the trial
court, we reiterate the well-established principle that “the
admissibility of this evidence has two components: (1) whether
the challenged evidence satisfied the ‘relevancy’ requirement set
forth in Evidence Code section 210, and (2) if the evidence was
relevant, whether the trial court abused its discretion under
Evidence Code section 352 in finding that the probative value of
the [evidence] was not substantially outweighed by the
probability that its admission would create a substantial danger
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Opinion of the Court by Groban, J.
of undue prejudice.” ’ ” (People v. Carter (2005) 36 Cal.4th 1114,
1166, quoting People v. Heard (2003) 31 Cal.4th 946, 972, in
turn quoting People v. Scheid (1997) 16 Cal.4th 1, 13.) As
defendant notes, evidence of a character trait is not admissible
to demonstrate conduct on a particular occasion, but such
evidence is admissible “when relevant to prove some fact (such
as motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake or accident, or whether a defendant
in a prosecution for an unlawful sexual act or attempted
unlawful sexual act did not reasonably and in good faith believe
that the victim consented) other than his or her disposition to
commit such an act.” (Evid. Code, § 1101, subd. (b).) “We review
the trial court’s rulings on relevance and the admission of
evidence under Evidence Code sections 352 and 1101 for abuse
of discretion.” (People v. Battle (2021) 11 Cal.5th 749, 799.)
Defendant argues that the trial court abused its discretion
by admitting the sexually graphic images because they were
more prejudicial than probative and lessened the state’s burden
of proof. We disagree. The images were relevant to intent and
motive to commit rape, highlighting defendant’s sexual interest
in Gallego. There were numerous images of women without
pubic hair and of women in handcuffs, which were of particular
relevance in light of the fact that Gallego’s body was found with
pubic hair removed and with an injury that could have been
caused by restraint with handcuffs. In People v. Memro (1995)
11 Cal.4th 786, the defendant was charged with the first degree
felony murder based upon the commission of lewd and lascivious
acts upon a child under age 14, and we concluded that the
defendant’s possession of pornographic images of young boys
“yielded evidence from which the jury could infer that [the
defendant] had a sexual attraction to young boys and intended
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Opinion of the Court by Groban, J.
to act on that attraction.” (Id. at p. 865.) Like Memro, a jury
could infer defendant was sexually attracted to and intended to
engage in specific sexual acts with Gallego based upon the
images he possessed. Indeed, defendant had not simply
collected pornographic images depicting women similar in
appearance to his victim. Instead, he spent significant time
collaging photographs and magazines to create morphed images
bearing his victim’s face and the bodies of nude models with
shaved pubic hair or wearing handcuffs. The images were
highly probative of both the degree of defendant’s sexual
interest in Gallego and his careful plans to fulfill a highly
specific rape fantasy in which he subdued her, handcuffed her,
and shaved her.
We likewise conclude the trial court did not abuse its
discretion by admitting the images of Powell, Powell’s adult
children, and Chamberlain. The court noted, as to these third
party images, that the issue of admissibility was closer, and we
agree. But our review is highly deferential, and we “will not
reverse a court’s ruling on such matters unless it is shown ‘ “the
trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage
of justice.” ’ ” (People v. Merriman (2014) 60 Cal.4th 1, 74
(Merriman).) The trial court’s decision to admit this evidence
does not meet this high standard.
As to relevance, some of the third party images depicted
women with shaved pubic hair, which — in light of the victim’s
lack of pubic hair — heightened their relevance. In addition, as
the Attorney General notes, testimony from Powell and
Chamberlain that they were unaware of defendant’s creation
and collection of these images allowed the jury to understand
how Gallego could have unwittingly continued to live with
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Opinion of the Court by Groban, J.
defendant while he created morphed pornographic images
depicting her. Powell’s relationship with defendant was close in
time to the murder, and Powell testified that his sexual interests
were “boring”; the images of Powell and her children countered
that testimony and showed defendant in fact harbored violent
fantasies about her and her children. Chamberlain’s testimony
that defendant was not the type of person to have created the
graphic images of her when the two dated countered defendant’s
penalty phase mitigation theory that his significant childhood
hardships were the root cause of defendant’s crimes. The
prosecution intended to suggest that defendant’s relatively
normal relationship with Chamberlain was proof that the
fantasies and obsessions leading to the murder developed later
and thus were caused by something other than his childhood
trauma.
As to prejudice, the court weighed the images’ prejudicial
impact carefully, admitting only a few of the many available
images. For example, to ensure the prejudicial impact was
limited, the court excluded images of Powell’s minor children.
Any prejudice was also limited by the relatively brief nature of
testimony regarding the images; Powell and Chamberlain
simply confirmed they recognized the individual depicted in the
collages and had not seen them previously.
We note that images of Powell, Chamberlain, and all of the
sexually graphic images were clearly damaging to defendant but
conclude the trial court did not abuse its discretion by admitting
them as the trial court took great care to ensure the prejudice
was limited. “ ‘As we have repeatedly explained: “ ‘In applying
[Evidence Code] section 352, “prejudicial” is not synonymous
with “damaging.” ’ ” ’ ” (People v. Chhoun (2021) 11 Cal.5th 1,
29.) For example, only a small sample of the “six to ten cubic
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Opinion of the Court by Groban, J.
feet of pornographic material[]” was admitted. The jury was
aware of the volume of material only via Hergenroeather’s
testimony and images of defendant’s bedroom. The court
carefully weighed the prejudicial impact of the images and
excluded most of them, allowing only a handful of images related
to Gallego, specifically; related to Powell and Chamberlain; and
related to defendant’s motive and intent. The court excluded as
unduly prejudicial most images — including those depicting
child pornography. And while the images that were admitted
may have been disturbing to jurors, as sexually graphic images
of young boys would have been to the jurors in People v. Memro,
we conclude here as we did in that case that the trial court did
not abuse its discretion by permitting the introduction of
upsetting and graphic images because their probative value was
not substantially outweighed by the potential for prejudice.
(People v. Memro, supra, 11 Cal.4th at p. 865; see also People v.
Mora and Rangel (2018) 5 Cal.5th 442, 480; Evid. Code, § 352.)
This decision was not patently absurd, nor a miscarriage of
justice. (Merriman, supra, 60 Cal.4th at p. 74; People v. Miles
(2020) 9 Cal.5th 513, 587 (Miles).)
B. Introduction of Victim and Crime Scene Photos
Defendant contends the trial court’s admission of “gory,
gruesome and inflammatory” crime scene and autopsy
photographs constituted error in violation of his state and
federal constitutional and statutory rights. We conclude the
photographs were properly admitted.
Defendant sought to exclude certain photographs he
claimed were irrelevant and inflammatory, including
photographs of the area where Gallego’s body was found, the
PetSmart dumpster where her fingertips were found, the area
where the bloodstained mattress was found, the apartment
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Opinion of the Court by Groban, J.
defendant and Gallego shared, autopsy photographs and X-rays
of Gallego’s hands and head, slides prepared by Sperber, and
defendant’s arrest photos. The motion was addressed at an
April 3, 2002 and June 13, 2002 hearing and over defense
objection, a limited selection of the challenged photographs were
admitted.
Defendant challenges the admission of these photographs
arguing they were cumulative and irrelevant. “ ‘The admission
of allegedly gruesome photographs is basically a question of
relevance over which the trial court has broad discretion.
[Citation.] “A trial court’s decision to admit photographs under
Evidence Code section 352 will be upheld on appeal unless the
prejudicial effect of such photographs clearly outweighs their
probative value.” ’ ” (People v. Brooks (2017) 3 Cal.5th 1, 54.)
Where probative value is minimal, photos are “inordinately
gruesome,” and the evidence is cumulative, admission may
constitute an abuse its discretion. (People v. Gurule (2002)
28 Cal.4th 557, 625.) Defendant argues that testimony about
the appearance of the crime scenes and diagrams of the relevant
areas were adequate, and the images introduced were
cumulative. We disagree.
Images like those depicting the interior of the U-Haul, the
exterior of defendant’s apartment, and the bloodstained
mattress, provided jurors with visual information beyond what
testimony could offer. The images of defendant’s apartment
complex bolstered testimony concerning the nature of the
offense, including what might have been overheard by
defendant’s neighbors, and images of the bloodstained mattress
and U-Haul bolstered testimony concerning the method of
killing and disposition of the victim’s remains. “[P]rosecutors, it
must be remembered, are not obliged to prove their case with
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Opinion of the Court by Groban, J.
evidence solely from live witnesses; the jury is entitled to see
details . . . to determine if the evidence supports the
prosecution’s theory of the case.” (Ibid.) These photographs
were not particularly graphic, nor were they cumulative simply
because testimony had also been offered addressing the subjects
they depicted. Diagrams alone would have been inadequate to
convey the full measure of information jurors were permitted to
consider.
Defendant’s claim largely centers on the admission of
autopsy photographs, alleging they were inflammatory,
cumulative, irrelevant, and unnecessary. Defendant’s claim
lacks merit. The images were relevant to show the nature of the
victim’s injuries, particularly her fatal neck wound, the shape
and nature of her head wound, and the fact that her fingertips
had been removed. Defendant argues that the photographs of
defendant’s hands and fingers were horrific and added little
beyond what witnesses had testified to concerning “the victim’s
appearance and injuries, including post-mortem injuries such as
removal of her fingertips.” “The trial court has broad discretion
over the admission of photographs that are alleged to include
disturbing details. [Citations.] We routinely uphold the
admission of autopsy photos to establish the placement of a
victim’s wounds and clarify the testimony of prosecution
witnesses. [Citation.] The prosecution is not limited to proving
its case ‘solely from live witnesses; the jury is entitled to see
details of the victims’ bodies to determine if the evidence
supports the prosecution’s theory of the case.’ ” (People v. Caro
(2019) 7 Cal.5th 463, 502.) While the images are upsetting, our
review of the photographs reveals they “were not so gruesome
as to have impermissibly swayed the jury.” (People v. Smithey
(1999) 20 Cal.4th 936, 974.) Indeed, any “ ‘revulsion they induce
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Opinion of the Court by Groban, J.
is attributable to the acts done, not to the photographs.’ ”
(People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1215–1216.)
Defendant argues the introduction of the photographs
constituted error because it permitted the prosecution to argue
the killing was planned and methodical, undermining his theory
that the crime occurred in the heat of passion. This argument
lacks merit. The jury is entitled to review the evidence,
including photographs, to ascertain whether the prosecution’s
theory is supported. (People v. Brooks, supra, 3 Cal.5th at p. 54.)
Defendant objects to the “large quantity” of images introduced,
claiming the court failed to conduct “individualized
consideration” as Evidence Code section 352 commands. The
record does not bear this out. Of the hundreds of images
available, very few photographs of those areas were actually
introduced. Moreover, the court was careful to clarify that the
images would only “be visible while there’s testimony about
them, and then they’re going to be put face to the wall.” The
court properly exercised its broad discretion in admitting the
crime scene and autopsy images.
C. Introduction of Photo of Victim and Her Dog
Defendant argues the trial court’s admission of a
photograph of Gallego with her dog improperly invoked jurors’
sympathy and lacked relevance. He claims the erroneous
admission violated his state and federal constitutional rights.
We conclude the trial court did not err.
At a pretrial hearing on the admission of various
photographs, defense counsel objected to the prosecution’s
planned use of a photograph of Gallego holding her dog, arguing
that because the image was never one of the photos used in the
collaged pornography, its use was not appropriate. Defense
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Opinion of the Court by Groban, J.
counsel conceded an unmodified image of Gallego had relevance
but argued the jury should view an enlarged version of one of
the photographs used in the collaged pornography. The
prosecutor explained none of the modified images could be
enlarged without distortion, and after requesting and receiving
photographs of Gallego from her family, this was among the only
images that could be enlarged to a useful size. The trial court
noted the image was somewhat sympathetic because the victim
was depicted with “an itty-bitty, cute dog,” but nothing about
the image seemed overly prejudicial to the court in a manner
violating Evidence Code section 352.
Defendant now contends that the trial court erred in
admitting the photograph because it was unnecessary to
identify the victim and because its probative value was
outweighed by the prejudicially sympathetic effect it had on the
jury. “We review the trial court’s decision to admit photographs
under Evidence Code section 352 for abuse of discretion.
[Citation.] ‘ “ ‘The court’s exercise of that discretion will not be
disturbed on appeal unless the probative value of the
photographs clearly is outweighed by their prejudicial effect.’ ” ’
[Citation.] ‘ “To determine whether there was an abuse of
discretion, we address two factors: (1) whether the photographs
were relevant, and (2) whether the trial court abused its
discretion in finding that the probative value of each photograph
outweighed its prejudicial effect.” ’ ” (People v. Peoples (2016)
62 Cal.4th 718, 748.)
Defendant claims before this court that the photograph
was not relevant to any contested issue. Were we to write on a
blank slate, defendant’s argument might be persuasive given
the absence of any factual dispute over the identity of the victim.
However, defense counsel conceded before the trial court that an
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Opinion of the Court by Groban, J.
unaltered or “before” image of Gallego was “relevant,”
“admissible,” and “clearly . . . ha[d] an evidentiary value to this
case” “given other photographs that have been admitted in
relationship to morphing,” and also “for, primarily,
identification at the guilt phase.” Thus, defendant conceded
relevance of a photo of the victim, and that is not at issue here.
Instead, defendant’s primary objection before the trial court was
that the jury not be shown this specific photograph of the victim
with her dog.
“We have long advised trial courts to exercise care when
deciding whether to admit during the guilt phase of trial
photographs of a capital murder victim while alive because of
the risk such evidence ‘will merely generate sympathy for the
victim[].’ ” (People v. Brooks, supra, 3 Cal.5th at p. 56.) An
“otherwise relevant” photograph of the victim in life need not be
excluded despite the possibility it could elicit a sympathetic
response from the jury. (Ibid.) As the prosecution argued and
defendant conceded at the hearing regarding the exhibit’s
admission, because there were numerous images of Gallego in
sexually graphic collages and those images could not be enlarged
without distortion, use of an unaltered image of Gallego was
necessary to allow jurors to clearly view the victim.
Gallego’s father briefly identified the victim in his
testimony from this photograph, and as defense counsel
conceded, a clear photograph was “relevant given other
photographs that have been admitted in relationship to
morphing.” Although defendant would have preferred to
enlarge the victim’s face from an image used in the sexually
graphic collages, that was not possible without the images
becoming “distort[ed]” or having “big red spots.” Gallego’s
family provided a few images to the prosecution from which this
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Opinion of the Court by Groban, J.
image was ultimately selected, and most of those also could not
be enlarged without distortion. Having conceded certain
photographs of the victim would have been relevant and
admissible, we cannot agree with defendant that using this
particular photograph was “calculated to ‘inflame’ and ‘enrage’
the jury.” The exhibit is a roughly 15-inch square posterboard
depicting Gallego’s placid face next to her dog, Julie. Gallego’s
face takes up approximately an eight by 10 inch portion of the
poster, with the dog’s face taking up a similar amount of space.
While an image of the victim with her dog “arguably posed some
risk it would elicit sympathy from the jury, nothing about the
manner in which [her] likeness was displayed or the
photograph’s background suggests it was ‘ “particularly
calculated” ’ to do so.” (People v. Brooks, supra, 3 Cal.5th at
pp. 56–57, quoting People v. Smithey, supra, 20 Cal.4th at
p. 975.) Indeed, the trial court was cognizant of both the general
principle that certain photographs of a victim could become “so
prejudicial,” but balanced that concern with the practical
restraints it faced here. And this was among the only images
available of the victim that could be enlarged without distortion.
The court did not abuse its discretion admitting the photograph.
(People v. Brooks, at pp. 56–57; see also People v. Tully (2012)
54 Cal.4th 952, 1020 [upholding trial court’s conclusion that
image of victim in life wearing her nursing uniform was relevant
and admissible].)
D. Introduction of Photo of Victim’s Handcuffed Body
Powell was shown a photograph of Gallego’s postmortem
body wearing handcuffs to provide testimony regarding whether
the handcuffs were similar to the type defendant used to lock
his bicycle. Defendant argues it was error to introduce the
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Opinion of the Court by Groban, J.
photograph and to have allowed Powell to view it. For the
reasons that follow, we conclude the trial court did not err.
Powell testified that when she dated defendant, he rode a
bicycle to her home several times a week and locked that bicycle
with handcuffs. She described the handcuffs as “big, heavy,
strong, silver, heavy ones” with a chain between the bracelet
portions of the cuffs. When Sperber examined Gallego’s body
following her autopsy, he placed standard-issue law
enforcement handcuffs on her wrists and positioned her arms
behind her back to determine if a mark left on her back could
have been made by handcuffs. Powell agreed the handcuffs in
that image looked like the type defendant used as a bicycle lock.
Before she testified, defense counsel objected on relevance
and Evidence Code section 352 grounds to allowing Powell to
view the photograph, arguing that the image had no
relationship to her expected testimony that she had seen
defendant with handcuffs. The prosecution replied that Powell
was expected to testify that defendant used handcuffs to lock his
bicycle and would describe their appearance and his method of
storing them. Defendant argued a courtroom bailiff’s handcuffs
could be shown to Powell, rather than the photograph. The
court rejected that suggestion, allowing the prosecution to show
the admittedly gruesome image to Powell and noting the jury
had already seen it. The court ensured Powell was shown the
photograph prior to testifying to avoid undue shock. It reasoned
that Powell should testify about the image, rather than a
bailiff’s handcuffs, because there had been extensive argument
about whether defendant owned handcuffs, what they looked
like, and the legitimacy of Sperber’s experiment using handcuffs
to assess whether the mark on Gallego’s back was made by a
similar pair.
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Opinion of the Court by Groban, J.
Defendant claims introducing the photograph and
showing it to Powell constituted error because it was irrelevant,
inflammatory, and cumulative. There was no error. As we
explained above, “ ‘The admission of allegedly gruesome
photographs is basically a question of relevance over which the
trial court has broad discretion.’ ” (People v. Brooks, supra,3 Cal.5th at p. 54.) We will uphold the trial court’s decision
unless we conclude “ ‘ “the prejudicial effect of such photographs
clearly outweighs their probative value.” ’ ” (Ibid.)
Although the photograph is upsetting, it was probative of
a central prosecution theory: that defendant handcuffed his
victim in the course of her murder. Accordingly, its introduction
generally did not constitute an abuse of the trial court’s
discretion. (See, e.g., People v. Booker (2011) 51 Cal.4th 141,
170–171 [no error in introduction of numerous autopsy photos
to demonstrate theory of offense].) Defendant argues that
because Powell was not a witness to the murder or Sperber’s
experiment with the handcuffs, showing the photo to Powell
constituted error because it did not advance the state’s case.
Defendant’s argument misapprehends the purpose of Powell’s
testimony. She was not providing evidence that the handcuffs
pictured were used in the murder; her testimony was instead
that defendant had owned handcuffs similar to the type
pictured: heavy, and with a chain connecting the bracelets.
Although Powell was not a witness to the homicide or
postmortem experiment, she was among the only witnesses to
testify she had seen defendant with handcuffs. The
prosecution’s theory of the case involved defendant subduing or
binding the victim with handcuffs, but no handcuffs were ever
located. Testimony was presented that marks on the victim’s
body were consistent with having been handcuffed by an object
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Opinion of the Court by Groban, J.
similar to police-issued handcuffs with a chain between the
bracelets, like the type Powell testified defendant had owned.
Defendant argues Powell could have been shown similar
handcuffs, and the only reason the photograph was shown to her
was to inflame the jurors and horrify the witness. This
argument lacks merit; the photograph Powell viewed had
already been introduced, and the jury had viewed it. The court
indicated it had no “basis to believe [Powell was] any less able
than the jurors to view” the photograph. Even so, the court took
care to ensure there would be no “undue shock” to Powell; she
had confirmed she was comfortable viewing the image and was
shown the image prior to testifying. The court committed no
error in permitting Powell to view the photograph.
E. Tool Mark Expert
Defendant argues his rights under the federal and state
Constitutions were violated by the introduction of tool mark
expert Sperber’s testimony that the marks on Gallego’s back
appeared to have been made by handcuffs.10 We see no error.
10
This court is familiar with Sperber from our decisions in
In re Richards (2012) 55 Cal.4th 948 (Richards I) and In re
Richards (2016) 63 Cal.4th 291 (Richards II). In Richards I,
“this court rejected [the petitioner’s] claim on habeas corpus that
his conviction should be overturned because the prosecution’s
dental expert,” Sperber, “had recanted his expert opinion
testimony at trial that a lesion on [the victim’s] hand was a
human bite mark matching petitioner’s unusual teeth.”
(Richards II, at p. 293.) After the Legislature amended the
relevant statute to provide that the definition of false evidence
included repudiated expert evidence, we concluded it was
“reasonably probable that the false evidence presented by Dr.
Sperber at petitioner’s 1997 jury trial affected the outcome of
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Defendant moved to exclude Sperber’s expert testimony
regarding tool markings made on Gallego’s body. At the
Evidence Code section 40211 hearing, the trial court
acknowledged that Sperber had testified as a bite and tool mark
expert in his courtroom on prior occasions, and it was likely
Sperber would again qualify as an expert. At that hearing,
Sperber explained that he served as a testifying tool mark
expert in roughly 20 previous cases. He received training in
dental school regarding the impact of tools and teeth on soft
tissue, including inflammatory and cellular changes. The court
asked him what specific training made him expert in tool mark
identification, such as handcuffs, as opposed to dental
identification, and he expanded on his dental and medical
coursework providing a background in that information. He
explained that while attending New York University’s dental
school, dental students and medical students attended some of
the same classes in subjects like “histology [and] cytology” —
i.e., cellular and tissue structure and function — because, “no
matter the part of the body” to be treated, the training is
“analogous.” Sperber told the court that he consulted with law
enforcement regarding a rectangular mark on Gallego’s back
and became suspicious that handcuffs caused the mark after
learning defendant possessed handcuffs at some point. He
examined Gallego’s body, applied handcuffs by bending her
arms behind her back in a natural position, and noted the mark
that proceeding” and granted the habeas corpus petition. (Id. at
p. 315.)
11
Evidence Code section 402 provides in pertinent part, “The
court may hear and determine the question of the admissibility
of evidence out of the presence or hearing of the jury . . . .” (Id.,
subd. (b).)
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was close to where the handcuffs fell and was approximately the
length of the ratchet portion of the handcuffs. Sperber noted
that marks on Gallego’s arms, in addition to the mark on her
back, caused him to think her injuries could have been made by
handcuffs.
The trial court ruled Sperber’s opinions could be helpful to
the jury, and the parties remained free to argue about the
weight of his opinions. It reasoned Sperber’s education and
experience informed his opinion and overruled defendant’s
objections to Sperber providing testimony about handcuffs
causing the marks Gallego’s body. The trial court reasoned
Sperber possessed “more than ample qualifications” to render
this opinion, and no specific, formal classroom education in
toolmark identification, as distinct from dentistry, was required
to be a qualified as an expert.
At trial, Sperber testified that he was a dentist and an
expert on tool markings, which included marks made by teeth
and other objects on hard and soft surfaces, including tissue.
Sperber consulted on high-profile matters like making
identifications at the World Trade Center, and on the Jeffrey
Dahmer and Ted Bundy cases, working all over the United
States and internationally. At the time of defendant’s trial, he
had over fifteen years of experience in assisting law enforcement
with identifying marks left by objects, including a watch imprint
on a victim’s forehead, a canine bite mark, a ligature mark made
by a telephone cord, and numerous others. He had experience
consulting in cases involving handcuff marks on two prior
occasions.
Sperber’s consultation in this matter involved him viewing
photographs and then, on August 24, 2000, examining Gallego’s
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body. He noted a mark on Gallego’s back, slightly smaller than
a finger, which he believed may “have been produced by
handcuffs in between the back of that individual, of the victim,
and whatever surface she had been on when the handcuffs had
been applied.” Sperber looked at Gallego’s back, at photographs,
and — using handcuffs that had been obtained from the police
department — manipulated Gallego’s hands behind her back
with handcuffs secured around them “the way people are
normally handcuffed when they’re seen on television or in
newspaper articles, things of that nature.” He observed that the
solid portion of the handcuffs, the ratchet, was “almost exactly
over” the mark on Gallego’s back.
Defendant argues before this court that the allegedly
minimal scientific value of bite mark identification rendered
introduction of Sperber’s testimony improper despite the fact
that Sperber addressed tool, not bite, marks. Defendant argues
the field of bite mark expertise is increasingly discredited and
contends that exaggerated claims made by forensic experts have
been a leading cause of wrongful convictions. He argues “the
unproven reliability” of bite mark analysis rendered the
analysis Sperber did perform in this case — tool mark
analysis — “exponentially worse.” However, unlike bite mark
analysis, tool mark analysis more generally identifies what
implement could have left a mark (i.e., this mark could have
been made by a handcuff), not what particular implement
actually did so (i.e., these were the actual handcuffs that were
used). In this way, the analysis performed here is very different
from the bite mark analysis upon which defendant relies,
whereby experts are asked to use bite marks to identify the
actual individual who would have left those marks. Here, the
aim was not to suggest the mark on Gallego’s back was made by
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defendant, but whether the mark could have been made by
handcuffs, generally.
Defendant claims that expertise in bite marks may not
satisfy the Kelly12 rule’s requirements of expert reliability and
specialized knowledge, but even if it did, Sperber’s testimony
should have been excluded because it was more prejudicial than
probative. We disagree. Because Sperber’s methodology in this
case “ ‘isolate[d] physical evidence whose existence, appearance,
nature, and meaning [were] obvious to the senses of a layperson,
the reliability of the process in producing that result is equally
apparent and need not be debated under’ the Kelly rule.”
(People v. Cowan (2010) 50 Cal.4th 401, 470.) Sperber observed
that marks on Gallego’s body were consistent with a type of
implement, an observation “jurors essentially [could] see for
themselves.” (People v. Venegas (1998) 18 Cal.4th 47, 81.)
Because his testimony involved no “ ‘new scientific technique,’ ”
it is not subject to the strictures of the Kelly rule. (Id. at p. 76.)
We will not disturb a trial court’s discretionary
determination that a witness qualifies as an expert absent
manifest abuse of that discretion. (People v. Morales (2020)
10 Cal.5th 76, 97.) Such abuse is found when a witness is clearly
unqualified to serve as an expert. (Ibid.) “ ‘ “ ‘ “Where a witness
has disclosed sufficient knowledge of the subject to entitle his
opinion to go to the jury, the question of the degree of his
knowledge goes more to the weight of the evidence than to its
admissibility.” ’ ” ’ ” (Ibid.) We also evaluate the trial court’s
decision to admit an expert’s evidence for abuse of discretion and
12
See People v. Kelly (1976) 17 Cal.3d 24.
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“will not disturb a trial court’s admissibility ruling ‘ “except on
a showing the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice.” ’ ” (Ibid.; see also People v.
Cooper (1991) 53 Cal.3d 771, 813.)
The trial court did not err by concluding Sperber was
qualified to serve as an expert. The evidence did not show
Sperber “ ‘ “ ‘ “clearly lack[ed] qualification as an expert.” ’ ” ’ ”
(People v. Morales, supra, 10 Cal.5th at p. 97.) To the contrary,
the trial court evaluated Sperber’s qualifications and
experience, reasoning that while there was no formal training
on tool mark analysis, Sperber would have been the type of
expert to have received such training if it existed. The trial
court noted that experience, rather than formal education, was
an adequate way to become an expert in certain circumstances,
that Sperber had more experience than anyone else the trial
court was aware of in the field of tool mark identification, and
he had a national reputation for being adept at such analysis.
Sperber had extensive experience identifying “handcuffs and
handcuff marks,” as well as years of experience “observing
postmortem examinations” and “questioning the medical
examiners.”
To the extent defendant argues that bite mark analysis is
an increasingly discredited method to establish identity, we note
the tool mark analysis performed here served a different
purpose: to show a mark on the victim was likely made by a
particular tool, not a particular person. We see no evidence to
support a conclusion that Sperber was “clearly” unqualified to
perform that analysis, particularly in light of the over 20 cases
in which he had previously testified as a tool mark expert, and
we conclude the court did not abuse its discretion in admitting
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Sperber’s expert testimony. (People v. Morales, supra,
10 Cal.5th at p. 97.) Indeed, Sperber’s knowledge exceeded the
common experience of jurors, as he identified that the
“circumferential” marks on Gallego’s wrists likely came from
handcuffs, noted the “fairly parallel and straight” marks on the
victim’s back matched certain parts of handcuffs, and
determined that a particular type of bruising, as distinct from
an abrasion, was likely caused by the “type of pressure, force, or
impact,” resulting from “one person on top of another person.”
Defendant argues that because Sperber examined
Gallego’s body days after it was found and autopsied, there was
postmortem distortion of the skin due to decomposition and
distortion due to excision and clamping of the relevant area.
This distortion, argues defendant, rendered Sperber’s opinion
that the mark on Gallego’s back matched a handcuff ratchet
incredible. We see no merit to this argument. Sperber’s
testimony was based on photographs as well as physical
examination, and he made clear that while the passage of time
may have eroded some evidence of abrasions on Gallego’s skin,
there was no slippage or extreme decomposition to the extent
the shape or location of the bruise could have been impacted.
Sperber’s credibility was a matter for the jury’s consideration,
and to the extent it was impacted by the timing of his
examination, the jury was free to consider that. (See People v.
Morales, supra, 10 Cal.5th at p. 97.)
Defendant claims Sperber’s testimony was merely that the
marks on Gallego’s back were “consistent with” being made by
handcuffs, which language constitutes “a weak estimate of
association” that juries typically misinterpret as conveying a
greater degree of certainty. Indeed, while the court admitted
Sperber’s testimony concluding it could be helpful to the jury, it
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also noted that the weight of his opinions were a matter for the
attorneys to argue. To the extent defendant claims the language
Sperber used was not sufficiently exacting, he was free to argue
before the jury — and did — that it should accord the opinion
little weight. Defense counsel elicited on cross-examination that
Sperber’s use of the equivocal word “could” in his report mean
Sperber believed it “might be handcuffs or it might not be.” The
trial judge noted that this “was probably the most effective,
destructive” cross-examination he had “ever seen in a
courtroom.” Defense counsel urged the jury in closing argument
to discredit Sperber’s testimony. And as the Attorney General
points out, the jury was instructed with CALJIC No. 2.80,
explaining that they were not bound by an expert witness’s
opinion and were free to disregard any opinion they found to be
unreasonable.
Defendant’s argument also fails because the portion of the
record defendant quotes as inexact relates to Sperber’s
testimony about the circumferential mark on Gallego’s wrist,
not the mark on her back. In fact, with regard to the more
particular marks on Gallego’s back, Sperber testified that the
solid portion of handcuffs was almost exactly over the mark
when her hands were bound behind her back, and a bruise
would be made by the pressure or weight of a body pressing
down on that area.
The trial court’s admission of Sperber’s testimony was not
arbitrary, capricious, or patently absurd, nor did it result in a
manifest miscarriage of justice. (People v. Morales, supra,
10 Cal.5th at p. 97.) Defendant claims that its admission
nonetheless ran afoul of Evidence Code section 352’s command
that the probative value of Sperber’s testimony be weighed
against its prejudicial effect. We disagree. Defendant claims
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that because the probative value of Sperber’s testimony was
“thoroughly unreliable,” its only impact was prejudice. To
violate Evidence Code section 352, there must be a substantial
risk of prejudice, confusion, or consumption of time. Defendant
claims that risk arose because Sperber was an expert, and he
opined about the manner of death. “A party cannot seek to
exclude evidence merely because it is helpful to the other side.”
(People v. Brown (2014) 59 Cal.4th 86, 102.) Defendant’s
allegation amounts to no more than a complaint that the
evidence was helpful to the prosecution’s theory of the case. We
conclude no error resulted from the admission of Sperber’s
expert testimony.
Even if we assume the trial court erred in admitting
Sperber’s expert testimony, the error was clearly harmless
under any standard. (People v. Watson (1956) 46 Cal.2d 818,
836 (Watson) [error in violation of state law is harmless if it is
not reasonably probable that a result more favorable to the
defendant would have occurred in its absence]; Chapman v.
California (1967) 386 U.S. 18, 24 [“before a federal
constitutional error can be held harmless, the court must be able
to declare a belief that it was harmless beyond a reasonable
doubt”].) Photographic evidence showed there were marks
around the victim’s wrists. Hergenroeather and Holmes both
testified those marks resembled handcuff bruising.
There was also ample evidence of defendant’s guilt of
murder and rape or intent to commit rape. Defendant and
Gallego were not engaged in an intimate, sexual relationship.
DNA evidence from blood in defendant’s apartment and in the
U-Haul truck he rented matched Gallego’s, and DNA evidence
from semen on Gallego’s mattress matched defendant.
Defendant made a to-do list describing sexual acts, items needed
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(such a shaver cord), and a note to “burn palms + face
thoroughly.” The autopsy revealed that Gallego’s hands were
indeed burned. On his to-do list, he also indicated that he
needed a five-day hiatus from work, which aligns with the time
off he requested. As indicated on his to-do list, at some point
after Gallego got home from work on August 10, 2000, defendant
locked and closed the apartment’s doors and windows, subdued
and gagged Gallego, sexually assaulted her, hit her over her
head, and cut her neck so deeply her jugular vein was severed.
Receipts for the U-Haul, bolt cutters, and trash bags were found
in defendant’s apartment. Defendant planned to take Gallego’s
money after killing her, which was evident from his early review
of her bank balances and his efforts to withdraw and transfer
funds from her account. Defendant told his cellmate in county
jail, Lee, that he killed his Brazilian roommate after learning he
could steal more money from her if she died than he would earn
by marrying her, drained her blood in a bathtub, and tried to
hide her identity by removing her fingertips with a bolt cutter.
Even if we were to conclude that the introduction of Sperber’s
testimony constituted error, we are convinced beyond a
reasonable doubt that the error would not have contributed to
the verdict.
F. Introduction of Sperm Cell in Banana Peel
Defendant argues the trial court erred in admitting
evidence of a single sperm cell found on a banana peel in a trash
bag recovered from the PetSmart dumpster. We find no error.
A swab taken from a banana peel found in the same trash
bag as defendant’s to-do list and “do not disturb” sign revealed
a single sperm cell. The bag was discarded in the dumpsters
where Gallego’s fingertips were found. The prosecution sought
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to introduce the evidence, arguing that because defendant’s to-
do list included a cucumber as well as sexual acts, the sperm cell
on the banana peel was relevant and admissible. Defendant
objected, arguing the cell — which could not be genetically
linked to defendant — was irrelevant and prejudicial. He
contended the evidence invited jurors to speculate defendant
sexually assaulted the victim with the banana and then ate it.
In evaluating the admissibility of the sperm cell, the court noted
that the peel’s location in the same bag as defendant’s to-do list
suggested the items shared a more “dramatic connection” than
if the banana peel had been found elsewhere in the dumpster.
The court admitted the evidence.
At trial, Montpetit testified he examined the banana peel
and found a single sperm cell from an unknown donor but found
no blood or epithelial cells from the victim on it. Had the peel
come in contact with the victim’s soft tissue, it was possible her
epithelial cells would have transferred onto the peel. As to the
single sperm cell, Montpetit explained that it was too small a
sample to test for DNA and that male ejaculate typically
contains approximately three billion sperm cells.
Defendant now argues the trial court’s admission of the
sperm cell evidence was erroneous because the evidence lacked
relevance, and its prejudicial impact “far outweighed” its
probative value. “ ‘A trial court has “considerable discretion” in
determining the relevance of evidence. [Citation.] Similarly,
the court has broad discretion under Evidence Code section
352 to exclude even relevant evidence if it determines the
probative value of the evidence is substantially outweighed by
its possible prejudicial effects.’ ” (Miles, supra, 9 Cal.5th at
p. 587.) Evidence is relevant when it “ ‘ “tends ‘logically,
naturally, and by reasonable inference’ to establish material
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facts such as identity, intent, or motive.” ’ ” (People v. Young
(2019) 7 Cal.5th 905, 931.) We review the trial court’s
evidentiary decision for abuse of discretion, disturbing it only if
we conclude that the trial “ ‘ “ ‘ “court exercised its discretion in
an arbitrary, capricious or patently absurd manner that
resulted in a manifest miscarriage of justice.” ’ ” ’ ” (Miles, at
pp. 587–588.)
We conclude the trial court very thoughtfully evaluated
the admissibility of the sperm cell evidence. It reasoned, “That
there is spermatozoa [sic] in the trash at all established some
microscopic relevance. And I use that both in terms of size and
significance of the issue. The fact that it’s on a banana peel adds
somewhat to its weight in an evidentiary way. In light of all
this — not just the reference to the cucumber, but all the totality
of the evidence relevant to intent and planning in this case, the
fact that there is a sperm on the banana peel is circumstantial
evidence” of sexual contact. The trial court acknowledged that
it may be “weak [evidence, but that] doesn’t make it irrelevant.”
Defendant argues the evidence lacks relevance because the
sperm cell’s source is unknown, and it could have transferred to
the banana peel from other, untested items in the same bag.
The trial court considered those arguments, concluding the
evidence was “not particularly” “powerful” and its credibility
was susceptible to multiple attacks. But the weakness of the
evidence does not undermine its relevance. Defendant was
given an opportunity to test the strength of the evidence on
cross-examination, during which Montpetit agreed there was no
“scientific evidence that the sperm [was] necessarily”
defendant’s, nor “scientific evidence that the banana peel was
ever in contact with” the victim. The trial court’s decision to
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admit it was certainly not arbitrary, capricious, or patently
absurd; accordingly, we will not disturb it.
Nor are we persuaded that the evidence was more
prejudicial than probative. Defendant argues admission of the
sperm cell evidence is equivalent to the improper admission of
character evidence to prove conduct on a specific occasion under
Evidence Code section 1101, and that it improperly reduced the
prosecution’s burden of proof. We disagree. Defendant’s to-do
list included a cucumber and a list of sexual acts. As the court
acknowledged, this evidence did not present a “pretty picture”
of defendant. But damaging evidence is not necessarily
prejudicial. (See People v. Chhoun, supra, 11 Cal.5th at p. 29.)
“ ‘The “prejudice” which [Evidence Code] section 352 seeks to
avoid is that which “ ‘ “uniquely tends to evoke an emotional bias
against the defendant as an individual and which has very little
effect on the issues.” ’ ” ’ ” (Ibid.) The sperm cell was found on a
banana peel, and the peel was discarded in the same trash bag
as defendant’s to-do list — which included a cucumber and a
number of sexual acts. While the image of defendant assaulting
the victim with a banana before eating and discarding it is
upsetting and evocative, the location of the discarded peel in the
same garbage bag as the to-do list and handwritten “do not
disturb” sign discarded from defendant’s home heightens its
relevance. The trial court did not abuse its discretion in
admitting a banana peel with a sperm cell found on it, recovered
in close proximity to a to-do list linked to defendant, that
described a number of sexual and other acts performed in
connection with Gallego’s murder. Defendant’s planning for his
crimes and his intent to sexually assault Gallego were central
issues in the case. The trial court did not abuse its discretion by
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concluding the sperm cell located on a banana peel was
admissible as potentially relevant to those issues.
As the Attorney General notes, the evidence of the sperm
cell, while relevant, was not nearly as prejudicial as some of the
other evidence against defendant, including the to-do list found
in the same trash bag. The court reasoned that while relevant,
the evidence was not especially powerful, and its credibility was
subject to attack. The trial court weighed the probative value of
the evidence carefully, as well as its potential to confuse jurors,
suggesting the jurors need not be “biochemist[s]” to understand
the “basic concept[s]” at issue. The court also suggested it would
not take an “inordinate amount of time” for the prosecution to
present the evidence but ensured the defense would be given
“every opportunity” to present the factual basis underpinning
its interpretation of the evidence. The court’s ruling was not
arbitrary, capricious, or absurd, and we conclude there is no
reason to disturb it. (Miles, supra, 9 Cal.5th at pp. 587–588.)
G. Impeachment Testimony of Jailhouse Informant
Defendant claims the trial court erred by limiting his
cross-examination and impeachment of Lee in violation of his
state and federal constitutional and statutory rights. We
conclude no error occurred.
Lee testified for the prosecution regarding defendant’s
jailhouse confession. Defendant confided his plans to steal from
Gallego and described how he killed her, cut off her fingertips,
and disposed of her body. Defense counsel sought to impeach
Lee with his prior criminal convictions, including: Lee’s 1967
robbery and burglary convictions; his 1990 conviction for
possession for sale; his 1993 conviction for willful infliction of
corporal punishment; his admission of using drugs in August
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2000; his 2002 admission of criminal threat; his admission of
using rock cocaine from 1975 to 2002; and his 2002 conviction
for false representation of identification to a peace officer.
The trial court ruled that the defense could impeach Lee
with the 2002 false representation conviction if he denied the
underlying conduct. The court also ruled defendant could
impeach Lee with violating his restraining order, the incident
that gave rise to his restraining order, his conviction for sale of
narcotics in 1990, and his misdemeanor conviction for willful
infliction of corporal injury in 1993. The court ruled that Lee’s
1967 convictions were too old to be relevant. Defendant
objected, contending that the 1967 robbery and burglary
convictions remained relevant because Lee was facing a life
sentence under the “Three Strikes” law, and he was hoping to
receive some relief by testifying. The court ruled the 1967
offenses were generally precluded but agreed that if Lee’s status
under the Three Strikes law was raised, defendant would be
permitted to address those convictions on cross-examination.
During Lee’s cross-examination, defense counsel
questioned Lee about his prior convictions and admissions.
Specifically, Lee agreed he pleaded guilty to the possession of
rock cocaine for sale in 1990, pleaded guilty to violating a
restraining order in August 2000, lied to police about his name
in January 2002, and used illegal drugs as recently as the day
before he was arrested and booked into county jail. Lee denied
that he was guilty of spousal abuse in 2000 and testified that he
might have been convicted of spousal abuse in 1993. Lee further
denied threatening his mother or her husband in March or June
2000.
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Defendant now claims the trial court’s limitation on his
cross-examination of Lee violated his rights to confrontation and
counsel, lessened the state’s burden of proof, and undermined
the heightened reliability requirement of capital trials. We
disagree. Defendant fails to support the bare assertion that his
right to confrontation was violated by the trial court’s order.
Although a witness may be impeached with any prior conduct
involving moral turpitude (People v. Clark (2011) 52 Cal.4th
856, 931), trial courts possess broad latitude to exclude
examination concerning a witness’s prior conviction if it finds
the prejudicial impact substantially outweighs its probative
value. (People v. Anderson (2018) 5 Cal.5th 372, 407.) One
factor a trial court considers when determining whether a prior
conviction is admissible for impeachment purposes is whether
that conviction “is near or remote in time.” (People v. Clark,
supra, 52 Cal.4th at p. 931.) The 33-year gap between Lee’s
1967 convictions and defendant’s trial is certainly “remote” in
time. (Ibid.; cf. People v. Edwards (2013) 57 Cal.4th 658, 722
[1994 murder and burglary convictions not remote in time to
1996 trial].) Moreover, the court would have permitted
defendant to question Lee concerning the 1967 convictions had
Lee’s status as a third strike offender been raised; it was not.
No error resulted from the lack of cross-examination on Lee’s
1967 offenses.
We note that additional considerations apply when the
impeachment evidence is something other than a prior
conviction because “ ‘such misconduct generally is less probative
of immoral character or dishonesty and may involve problems
involving proof, unfair surprise, and the evaluation of moral
turpitude.’ ” (People v. Clark, supra, 52 Cal.4th at pp. 931–932.)
Defendant argues he was not permitted to fully explore Lee’s
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drug history and related arrests, arguing the court’s ruling
prohibiting cross-examination on certain subjects falsely
inflated Lee’s credibility and reliability undermining the
heightened requirement of reliability in capital cases. Although
Lee was not cross-examined concerning his 33-year-old offenses,
defendant was able to cross-examine Lee concerning every other
item on his criminal record: his 1990 conviction for possession
of the sale of narcotics; his 1993 conviction for willful infliction
of corporal injury; his 2000 conviction for violating a restraining
order and the incident that gave rise to it; and his 2002
conviction for false representation of identification to a police
officer. The jury was fully apprised of Lee’s credibility and
reliability when determining how much weight it should accord
his testimony. Accordingly, the trial court did not abuse its
discretion by limiting the use of impeachment evidence against
Lee.
H. Defense Examination of Police Officer Procedures
Defendant claims the trial court erred by limiting his
cross-examination and impeachment of Detective Ott in
violation of his state and federal constitutional rights. We
conclude there was no error.
Defendant sought to cross-examine Ott regarding alleged
instances of variation from standard police practices, which the
trial court denied. Defendant argued he did not confess his
crime to Lee. He alleged that Ott met with Lee prior to
interviewing him, leading defendant to suspect the detective
“briefed” Lee prior to conducting the recorded interview.
Defense counsel confirmed he believed Ott would deny speaking
with Lee before the interview, that no other witness would
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testify to that conversation, and there was no gap in the
recording of Ott’s interview with Lee. 13
To undermine Ott’s credibility, defendant sought to
present evidence that Ott engaged in similar “briefing” behavior
with witnesses in three unrelated investigations. The
prosecution reviewed Ott’s file to determine whether any
information needed to be produced in discovery and found
nothing of note. Nevertheless, defendant claimed Ott once
urged a fellow officer to sign an affidavit attesting to a witness’s
positive identification of a suspect, once had been asked to
testify in a separate case regarding his deviations from
procedure, and once recorded an interview with a suspect, which
contained a 45-minute gap. As to the last allegation, the trial
court concluded it was irrelevant as the matter settled before
trial.
The prosecution objected to defendant’s proposed
examination regarding these topics on relevance and Evidence
Code section 352 grounds as speculative, irrelevant, and
prejudicial. The trial court agreed, explaining something more
than Lee’s uncorroborated “passing statement” that he saw Ott
before his recorded interview was needed to impugn Ott’s
character. The court precluded the proposed cross-examination,
reasoning it would be tantamount to introducing instances of
misconduct to prove a crime and the jury should not be invited
to speculate.
13
Defense counsel contended there was a gap in the
videotape of Ott’s interview of defendant, but the prosecution
did not intend to introduce that video recording into evidence in
the guilt phase.
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Defendant argues the trial court’s decision violated his
confrontation right and prevented his attorney from properly
defending him. We disagree. “ ‘ “ ‘[A] criminal defendant states
a violation of the Confrontation Clause by showing that he was
prohibited from engaging in otherwise appropriate cross-
examination designed to show a prototypical form of bias on the
part of the witness, and thereby, “to expose to the jury the facts
from which jurors . . . could appropriately draw inferences
relating to the reliability of the witness.” ’ [Citation.] However,
not every restriction on a defendant’s desired method of cross-
examination is a constitutional violation. Within the confines of
the confrontation clause, the trial court retains wide latitude in
restricting cross-examination that is repetitive, prejudicial,
confusing of the issues, or of marginal relevance. . . . Thus,
unless the defendant can show that the prohibited cross-
examination would have produced ‘a significantly different
impression of [the witnesses’] credibility’ [citation], the trial
court’s exercise of its discretion in this regard does not violate
the Sixth Amendment.” ’ ” (People v. Dalton (2019) 7 Cal.5th
166, 217, citations omitted.)
Defendant argues cross-examining Ott would have
revealed a pattern of practice outside the norm for police
officers. We disagree. Defendant claimed that because one of
Ott’s prior interviews with a suspect contained a 45-minute gap
in the recording and because Ott was alone with Lee and
controlled the audio recording of his interview, he had a practice
of manipulating interviews to prepare witnesses. As the trial
court concluded, such an argument is little more than rank
speculation; indeed, as the trial court explained, Lee told the
prosecution that Ott never provided him with information about
the case, and there was no gap in the audio recording of Lee’s
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interview. In the absence of affirmative evidence Ott engaged
in any misconduct in this or other cases, the trial court did not
abuse its discretion by concluding the probative value of the
evidence was outweighed by the consumption of time and
potential for confusion. (See People v. Doolin (2009) 45 Cal.4th
390, 438–439.)
I. Lying in Wait
Defendant argues insufficient evidence supported the
jury’s true finding of the lying-in-wait special circumstance or
first degree murder theory, and that the special circumstance,
as applied, is unconstitutional.
“[O]ur assessment of defendant’s various challenges to the
sufficiency of the evidence are well settled. We ‘ “ ‘must review
the whole record in the light most favorable to the judgment
below to determine whether it discloses substantial evidence —
that is, evidence which is reasonable, credible, and of solid
value — such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ ” ’ [Citation.] The
same standard applies when examining the sufficiency of the
evidence supporting a special circumstance finding.” (People v.
Brooks, supra, 3 Cal.5th at p. 57.)
The “ ‘lying-in-wait special circumstance requires “ ‘ “an
intentional murder, committed under circumstances which
include (1) a concealment of purpose, (2) a substantial period of
watching and waiting for an opportune time to act, and (3) . . . a
surprise attack on an unsuspecting victim from a position of
advantage . . . .” ’ ” ’ (People v. Johnson (2016) 62 Cal.4th 600,
629 [197 Cal.Rptr.3d 461, 364 P.3d 359] (Johnson).) The lying-
in-wait special circumstance (Pen. Code, § 190.2, subd. (a)(15))
includes the elements of first degree lying-in-wait murder (id., §
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189, subd. (a)) but requires the additional element that the
killing was intentional, not merely committed with implied
malice. [Citation.] Thus, we focus here on whether substantial
evidence supports the special circumstance, for if it does, it
necessarily supports the theory of first degree lying-in-wait
murder.” (People v. Flinner (2020) 10 Cal.5th 686, 748.)
Defendant unsuccessfully moved, pursuant to section 995,
to set aside the information charging him with Gallego’s murder
along with the rape-murder, sodomy-murder, and lying-in-wait
special circumstances. Defendant argued that there were
interruptions between the period of alleged watchful waiting
and the commission of lethal acts undermining the lying-in-wait
theory, and any efforts he made to conceal his lethal actions
after committing them could not support the special
circumstance. Defendant now claims insufficient evidence
supports his conviction, arguing it is based on scant evidence —
namely, that he and Gallego were roommates who could — and
did — come and go from their shared living space freely (as, for
example, when Gallego went to work on August 10); that he
requested time off of work beginning several days before
Gallego’s last day of work, but that his vacation request did not
suggest murderous intent; and that he took steps to conceal the
crime after its commission, which did not undermine his
assertion that the killing arose from a sudden heat of passion.
Our review is not limited to the selection of facts defendant
presents; rather, we consider the whole record. Having done so,
we conclude ample evidence supported the special circumstance
true finding, and therefore the theory of murder. (People v.
Brooks, supra, 3 Cal.5th at p. 57.) Defendant concealed his
purpose from Gallego and others, gathering Gallego’s personal
financial information over a period of time to steal her savings.
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He watched and waited before acting, as evinced by his taking
photographs from Gallego and creating “morphed” images of her
face or body combined with images of other women. He
requested time off of work for several days and concealed his
plans for that time, claiming to be visiting his terminally ill
relative. He intended to, and did, plan to mutilate and dispose
of Gallego’s body, as evinced by the notations on his to-do list to
“burn palms + face thoroughly” and reference to a “small hand
truck & drawer for extraction from apt.” Indeed, the medical
examiner noted that Gallego’s body showed blackened and
wrinkled skin around her hands suggesting post-mortem
burning. He methodically planned his attack, which began at
least as early as his creation of a to-do list to effectuate the
crime, which included steps such as closing the doors and
windows of the apartment to avoid any sound escaping.
The crime revealed ample evidence of his concealment of
purpose, watching and waiting, and surprise. As to evidence of
surprise, the head wound Gallego suffered, the marks on her
wrists and back consistent with handcuffing, and her lack of
defensive wounds all indicate defendant surprised Gallego
before inflicting the injury that killed her. Defendant’s
concealment of purpose to sexually assault Gallego and his
watchful waiting for an opportune time to act were evident in
the lengthy list of the sexual acts he drafted to perpetrate
against Gallego (which list included items he would need to
carry out those acts like a shaver cord); the collaged sexually
graphic images of Gallego; and evidence suggesting he carried
out his intentions, including the fact that Gallego was found
with recently shaved pubic hair.
Viewing this evidence in the light most favorable to the
prosecution, we conclude a trier of fact could have concluded
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that defendant intentionally killed Gallego following a period of
watchful waiting. We need not credit defendant’s contrary
claims — that several days passed between his last day of work
and the last time Gallego was seen, which he alleges
undermines the notion of watchful waiting, and that his
activities to conceal the murder after committing it suggests it
was committed in the heat of passion — because sufficient
evidence supports the trier of fact’s conclusions. (People v. Moon
(2005) 37 Cal.4th 1, 22–23 [upholding lying-in-wait special
circumstance finding where the defendant concealed his
purpose, but not his presence, from the victim before “suddenly
push[ing] her down the stairs and then strangl[ing] her”]; see
also People v. Nelson (2016) 1 Cal.5th 513, 550 (Nelson) [special
circumstance does not require a defendant “ ‘ “ ‘be literally
concealed from view before he attacks the victim’ ” ’ ”].)
Defendant also claims the special circumstance is
unconstitutionally vague and overbroad because it fails to
narrow the class of death-eligible offenders or provide a basis to
meaningfully distinguish between those who are and are not
eligible for the death penalty. We have repeatedly rejected this
claim, as defendant acknowledges, and defendant presents us
with no reason to reconsider our prior conclusion. (People v.
Flinner, supra, 10 Cal.5th at p. 751; People v. Johnson, supra,62 Cal.4th at pp. 634–637; People v. Casares (2016) 62 Cal.4th
808, 849 [“Contrary to defendant’s argument, the lying-in-wait
special circumstance is not coextensive with either theory of
first degree murder”].)
Defendant argues the jury was misled by the lying-in-wait
jury instructions and by the prosecution’s related opening and
closing arguments. We disagree. Before closing arguments,
defendant unsuccessfully moved for judgment of acquittal
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pursuant to section 1118.1, seeking to dismiss the special
circumstance allegation or to alternatively dismiss the murder
charge. The trial court noted that the motion in essence argued
the lying-in-wait theory was unconstitutionally vague and
denied the motion both because it found constitutional infirmity
was not an appropriate basis for a section 1118.1 challenge, and
because ample evidence supported the lying-in-wait special
circumstance allegation and theory of murder.
The jury was instructed with CALJIC No. 8.2514, that
murder by means of lying in wait requires watching and
waiting, taking the victim by surprise whether or not they are
“aware of the murderer’s presence,” and time enough to
premeditate and deliberate. The jury was instructed that the
special circumstance required a premediated, deliberate killing
14
The jury was instructed as follows: “Murder which is
immediately preceded by lying in wait is murder of the first
degree. This is a separate theory of first degree murder. [¶]
The term ‘lying in wait’ is defined as awaiting and watching for
an opportune time to act, together with a concealment by
ambush or some other discrete design to take the other person
by surprise even though the victim is aware of the murderer’s
presence. [¶] The lying in wait need not continue for any
particular period of time provided that its duration is such to
show a state of mind equivalent to premeditation or
deliberation. [¶] The word ‘premeditation,’ as I’ve instructed
you previously, means considering beforehand, and the word
‘deliberation’ means formed or arrived at or determined upon as
a result of careful thought and the weighing of considerations
for and against the proposed course of action.”
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“by means of lying in wait.”15 In her opening statement, the
prosecutor argued, “[D]efendant is not only guilty of murder, but
he’s guilty of slowly and methodically planning this crime, which
is to take Patricia Gallego by surprise, which is lying in wait.
He did this in order to rape her, and he did this in order to get
all her money.” In closing argument, she told the jury it could
find the lying-in-wait special circumstance and theory of murder
true whether or not Gallego knew defendant was present in
their apartment and explained that no particular duration of
waiting needed to have been established.
Defendant argues the instructions amounted to a
“constitutionally intolerable” violation of his state and federal
due process rights because the prosecution was not required to
prove the requisite mental state for first degree murder. That
is, he claims the lying-in-wait special circumstance and theory
of murder “amount[ed] to strict liability for [his] being present
prior to the offense, in the apartment that he shared with the
15
The jury was instructed on the special circumstance as
follows: “To find that the special circumstance referred to in
these instructions as murder by means of lying in wait is true,
each of the following facts must be proved: [¶] . . . [¶] One, the
defendant intentionally killed the victim; [¶] And, two, the
murder was committed by means of lying in wait. [¶] Murder
which is immediately preceded by lying in wait is a murder
committed by means of lying in wait. [¶] And the term ‘lying in
wait’ is defined as awaiting and watching for an opportune time
to act, together with a concealment by ambush or some other
secret design to take the other person by surprise, even though
the victim[ is] aware of the murderer’s presence. [¶] The lying
in wait need not continue for any particular period of time,
provided that its duration is such as to show a state of mind
equivalent to premeditation and deliberation. [¶] The words
‘premeditation’ and ‘deliberation’ have been defined for you
previously.”
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victim.” This contention lacks merit. “ ‘We have repeatedly held
that CALJIC No. 8.25 adequately conveys to a jury the elements
of lying-in-wait murder.’ ” (People v. Duong (2020) 10 Cal.5th
36, 68, quoting People v. Russell (2010) 50 Cal.4th 1228, 1244.)
One of those elements includes watchful waiting for a period of
time sufficient “to show a state of mind equivalent to
premeditation or deliberation.” (CALJIC No. 8.25.) We have
also held that “CALJIC No. 8.81.15 is not by its length or terms
‘ “impossible to understand and apply.” ’ ” (People v. Cage (2015)
62 Cal.4th 256, 281.) “It is not internally inconsistent in its
treatment of the temporal element of lying in wait, which
properly references the concepts of premeditation and
deliberation.” (Ibid.) Moreover, “the use of the same language
in both CALJIC No. 8.81.15 and CALJIC No. 8.25 concerning
the period of time necessary for lying in wait is appropriate. The
difference between lying-in-wait murder and the lying-in-wait
special circumstance does ‘not touch on th[is] durational
element of lying in wait.’ [Citations.] The difference lies in the
required mental states . . . .” (Ibid.) We recently affirmed that
the difference between the special circumstance of lying in wait
and “ ‘ “ordinary” premeditated murder’ ” is not simply intent,
but also the “elements of concealment, watching and waiting,
and a surprise attack from a position of advantage.” (People v.
Flinner, supra, 10 Cal.5th at p. 752; see People v. Sandoval
(2015) 62 Cal.4th 394, 416.) Accordingly, we conclude
defendant’s contentions that the prosecution was improperly
relieved of its burden of proof and the jury was inadequately
instructed on the requisite mental state are meritless. To the
extent defendant challenges the trial court’s denial of his section
1118.1 motion, we conclude defendant’s claim lacks merit. Such
denials are reviewed “using the same standard ‘employed in
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reviewing the sufficiency of the evidence to support a
conviction,’ ” and we conclude that ample evidence supported
the trier of fact’s conclusion. (People v. Veamatahau (2020)
9 Cal.5th 16, 35, quoting People v. Houston (2012) 54 Cal.4th
1186, 1215.)
J. Financial Gain Special Circumstance
Defendant argues insufficient evidence supported the
jury’s true finding on the financial gain special
circumstance. As noted above, we review these challenges for
“ ‘ “ ‘substantial evidence — that is, evidence which is
reasonable, credible, and of solid value.’ ” ’ ” (People v. Brooks,
supra, 3 Cal.5th at p. 57.) Before Gallego’s death, defendant
told Powell he planned to enter into a deal with Gallego to marry
her in exchange for money. Defendant left both Ijames and
Powell with the impression that the planned marriage was
transactional in nature. Two days after Gallego was last seen,
defendant cashed a $300 check written from Gallego to him.
Two days after that, on the day Gallego’s body was found,
defendant attempted to cash a $350 check written from Gallego
to defendant, but he was unable to do so because of an error at
the bank. The next day, defendant successfully transferred the
entire balance of Gallego’s savings, $4,670.02, into his checking
account. Defendant had written down all of Gallego’s personal
identifying and financial information, which he concedes he
used to submit credit card applications in her name, or
variations thereof. Following his arrest, defendant told Lee, his
county jail cellmate, that Gallego would have paid him $2,000 to
marry her for citizenship, but defendant determined he would
profit to a greater degree by killing her and obtaining her
savings (which he thought to be between $12,000 and $15,000).
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The evidence was sufficient to support the jury’s finding
true the financial gain special circumstance. “Under section
190.2, subdivision (a)(1), a defendant is subject to the special
circumstance if the ‘murder was intentional and carried out for
financial gain.’ ” (People v. Fayed (2020) 9 Cal.5th 147, 201.)
The financial gain does not need to be the “ ‘ “dominant,”
“substantial,” or “significant” motive for the murder.’ ” (People
v. Sapp (2003) 31 Cal.4th 240, 282; see also People v. Michaels
(2002) 28 Cal.4th 486, 519 [financial gain may be “secondary
purpose” of murder].) Nor does a defendant need to realize any
“pecuniary benefit from the murder” for the special
circumstance to apply. (People v. Sapp, at p. 282.) “ ‘ “[T]he
relevant inquiry is whether the defendant committed the
murder in the expectation that he would thereby obtain the
desired financial gain.” ’ ” (Ibid.)
Here, defendant acknowledged that he believed he would
receive greater financial benefit from killing Gallego than
marrying her. In the immediate aftermath of her
disappearance, he transferred Gallego’s savings into his bank
account and deposited checks from her account into his. This
conduct suffices to establish defendant’s expectation of financial
gain. (See People v. Crew (2003) 31 Cal.4th 822, 851 [a
reasonable jury could find that the defendant killed the victim
with an expectation of financial gain when victim closed out her
account and defendant deposited a portion into his own
account].)16
16
Because defendant was not charged with an overlapping
financial special circumstance, a “limiting construction of the
financial-gain special circumstance” is not applicable. (People v.
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Defendant’s reliance on People v. Adcox (1988) 47 Cal.3d
207 is misplaced. There, we held the financial gain special
circumstance inapplicable to murder that took place during the
course of robbery of the victim’s wallet and car. (Id. at p. 246.)
Defendant argues the crime he committed was more like robbery
than murder for hire. But a jury need not find a defendant
committed murder for hire to conclude the primary or secondary
purpose of murder was financial gain. Here, where defendant
told his cellmate following his arrest that he intended to kill
Gallego to steal all her money rather than accept a smaller
amount as payment in exchange for marrying her, he called her
bank for several days prior to murdering her to check her bank
balance, and then he methodically transferred funds from her
account to his after killing her, we conclude there was sufficient
evidence to support the finding that the murder was committed
with the “ ‘ “expectation that he would thereby obtain the
desired financial gain.” ’ ” (People v. Sapp, supra, 31 Cal.4th at
p. 282.)
K. Alleged Instructional Error
1. Prosecution’s Burden To Prove Charges Beyond a
Reasonable Doubt
Defendant contends that instructing the jury with
CALJIC No. 2.90, along with four related instructions,
undermined the constitutional requirement of proof beyond a
reasonable doubt. He acknowledges we have consistently
Crew, supra, 31 Cal.4th at p. 850; accord People v. Howard
(1988) 44 Cal.3d 375, 409.)
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concluded CALJIC No. 2.9017 suffers from no constitutional
defect but urges without elaboration that his claim is distinct
from those raised in other cases.
Defendant correctly notes that proof beyond a reasonable
doubt is constitutionally required to sustain a criminal
conviction. (See In re Winship (1970) 397 U.S. 358, 361–364
[holding that the due process clause protects defendants by
requiring proof beyond a reasonable doubt].) The federal
Constitution “ ‘does not require that any particular form of
words be used in advising the jury of the government’s burden
of proof.’ ” (People v. Potts (2019) 6 Cal.5th 1012, 1032.) Rather,
it requires that “ ‘ “taken as a whole, the
instructions . . . correctly conve[y] the concept of reasonable
doubt to the jury.” ’ ” (Id. at p. 1033.)
We have held CALJIC No. 2.90 “establishes the
prosecution’s burden of establishing the defendant’s guilt
‘beyond a reasonable doubt.’ ” (People v. Ghobrial, supra,
5 Cal.5th at p. 286.) The instruction is not confusing or
misleading, as defendant urges us to conclude. (People v.
17
The jury was instructed, “A defendant in a criminal action
is presumed to be innocent until the contrary is proved, and in
a case of a reasonable doubt whether his guilt is satisfactorily
shown, he is entitled to a verdict of not guilty. This presumption
places upon the State the burden of proving him guilty beyond
a reasonable doubt. [¶] Reasonable doubt is defined as follows:
It is not a mere possible doubt; because everything relating to
human affairs, and depending on moral evidence, is open to
some possible or imaginary doubt. It is that state of the case
which, after the entire comparison and consideration of all the
evidence, leaves the minds of the jurors in that condition that
they cannot say they feel an abiding conviction, to a moral
certainty, of the truth of the charge.” (See CALJIC No. 2.90.)
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Lucas (2014) 60 Cal.4th 153, 296.) Nor do we find that CALJIC
Nos. 2.01, 2.02, 8.83, or 8.83.1 undermined the requirement of
proof beyond a reasonable doubt. (People v. Dalton, supra,
7 Cal.5th at p. 263 [rejecting the defendant’s argument that
those four instructions diluted the constitutional requirement of
proof beyond a reasonable doubt].) We have repeatedly rejected
the argument that the phrase, “appears reasonable,” in the
instructions misleads jurors, and defendant advances no
persuasive reason to reconsider our prior holdings. (Ibid.; see
also Nelson, supra, 1 Cal.5th at pp. 553–554 [rejecting similar
challenges to CALJIC Nos. 2.01, 2.02, 8.83 and 8.83.1].)
Accordingly, we conclude CALJIC No. 2.90 and related
instructions did not undermine the requirement of proof beyond
a reasonable doubt.
2. Modification of CALJIC No. 2.70
Defendant contends the trial court erred by refusing to
modify CALJIC No. 2.70 to eliminate references to “confession”
in the instruction. Specifically, he claims that statements he
made to a fellow inmate in county jail were admissions and
refusing to remove the definition of confession from the
instruction permitted the jury to improperly construe
defendant’s statements as confessions, rather than mere
admissions. This argument lacks merit.
Lee testified that defendant told him that he was in jail
for killing a Brazilian woman. Defendant told Lee details of the
crime, including that he drained the victim’s blood, tried to
disguise her identity by cutting off her fingers with bolt cutters,
and transported her body to Carlsbad in a truck, where he was
startled by a bright light when dumping the body. Defendant
told Lee that he initially planned to marry the victim so she
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could become a citizen in exchange for $2,000, but after learning
she had around $12,000 or $14,000 in the bank, defendant
explained to Lee, “he figured why get the 2- when he could do
another thing and get it all, you know.” Lee testified that by “do
another thing,” defendant meant that he planned to “get rid of”
his victim.
Defense counsel requested CALJIC No. 2.70 — which
defined an admission and confession — be modified to remove
the paragraph defining confession. Counsel argued that
determining whether defendant’s statements to Lee constituted
an admission or confession was an issue to be decided by the
jury. The trial court declined to alter the instruction, noting
that “if [it] had some basis to conclude that this wasn’t a
confession,” modification would be warranted. “But,” the court
went on, “it looks like he pretty much confessed to everything.
Homicide, planning, motive, intent.” Accordingly, the jury was
instructed pursuant to an unmodified CALJIC No. 2.70.18
18
In full, as given, CALJIC No. 2.70 provides: “A confession
is a statement made by a defendant in which he has
acknowledged his guilt of the crime for which he is on trial. In
order to constitute a confession, the statement must
acknowledge participation in the crime as well as the required
criminal intent or state of mind. [¶] An admission is a
statement made by a defendant which does not by itself
acknowledge his guilt of the crime for which the defendant is on
trial, but which statement tends to prove his guilt when
considered with the rest of the evidence. [¶] You are the
exclusive judges as to whether the defendant made a confession
or an admission, and if so, whether that statement is true in
whole or in part. [¶] Evidence of an oral confession or an oral
admission of the defendant not made in court should be viewed
with caution.”
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Defendant claims that because his statements to Lee were
admissions not confessions, the trial court’s refusal to modify
CALJIC No. 2.70 was error. “We review a claim of instructional
error de novo.” (People v. Rivera (2019) 7 Cal.5th 306, 326.) A
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.” (People
v. Blair (2005) 36 Cal.4th 686, 744.) “ ‘ “On review even if an
erroneous instruction is included reversal is required only when
it appears the error was likely to have misled the jury.” ’ ”
(Nelson, supra, 1 Cal.5th at p. 546.)
In Nelson, we held that no error flowed from the trial
court’s inclusion of the “confession” language when instructing
the jury pursuant to CALJIC No. 2.70, although the trial court
acknowledged in that case that no confession was made.
(Nelson, supra, 1 Cal.5th at p. 546.) There, the trial court
reasoned that instructions on both admissions and confessions
“would clarify the distinction between them so that the jurors
would not ‘talk[] about confessions [when] really all they are
talking about is admissions.’ ” (Ibid.) We held there was no
reasonable likelihood the jury was misled by the instruction,
even assuming it should not have been given. (Id. at p. 547.)
Here, there is little ambiguity that defendant confessed.
Defendant told Lee his financial motive for killing the victim
and provided unusual details about the crime, including the fact
that he drained all Gallego’s blood and removed her fingertips
with bolt cutters. No opportunity for confusion arose from
giving an unmodified version of CALJIC No. 2.70. Even if
defendant is correct that his statement to Lee was an admission
and not a confession, the jury was free to make that
determination. As we concluded in Nelson, reversal is not
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warranted because any error would have been unlikely to have
misled the jury. (Nelson, at p. 547.)
Defendant also argues that by instructing the jury
pursuant to an unmodified CALJIC No. 2.70, the court implied
to the jury that there was a confession, an implication that
impermissibly relieved the prosecution of its burden of proof on
a substantive charge. Jury instructions that create a permissive
inference, even if erroneous, are unconstitutional only if the
inference is irrational. (People v. Moore (2011) 51 Cal.4th 1104,
1131–1132.) Even if we assume that CALJIC No. 2.70
permitted the jury to infer defendant confessed to Lee, that
inference is sensible, if not compelled, in light of the detail
defendant used when describing the murder to Lee, and it did
not relieve the prosecution of its burden of proof.
Finally, relying on Beck v. Alabama (1980) 447 U.S. 625,
defendant claims the alleged instructional error violated his
right to a reliable verdict. We have previously rejected this
claim, finding “no due process or other federal constitutional
error,” and defendant presents us with no reason to alter that
conclusion here. (Nelson, supra, 1 Cal.5th at p. 547.)
3. Denial of Defense Instruction on Evidence
Tampering
Defendant argues the trial court’s denial of his requested
instruction that the prosecution bears the burden of proof that
there was no evidence tampering constituted error. Defendant
requested the jury be instructed, “The prosecution has the
burden of proving to you beyond a reasonable doubt that none of
the evidence they have presented was tampered with or
contaminated. You may consider any breaks in the chain of
custody of any of the evidence collected, transported and
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thereafter evaluated in determining whether the prosecution
has met their burden.”
Defendant claimed there was a break or ambiguity in the
chain of custody of the banana peel, scarf, and vaginal swab.19
Defendant argued his proposed instruction was warranted
because Swalwell (a “non-police department scientist”) found no
spermatozoa on a smear made from a vaginal swab taken from
Gallego’s body, and Montpetit (“the police department scientist”)
tested the swab sometime later, finding enough sperm and
epithelial cells to conclude defendant and Gallego were
“possible” contributors. Defense counsel argued to the trial
court that this difference was “an interesting note” and was
“something that the jury should consider.” The prosecution
contended these evidentiary questions were matters for
argument, not instruction. Defense counsel also conceded, when
pressed by the trial court, that these differing test results did
not implicate the chain of custody. Finally, the trial court noted
that, contrary to the requested instruction’s language, the
prosecution’s burden was to prove guilt beyond a reasonable
doubt, not to prove a lack of evidence tampering or
contamination. Defense counsel agreed, suggesting the
instruction could be given without the “beyond a reasonable
doubt” language. The trial court denied the requested
instruction.
Defendant now claims, “[I]t was error to refuse the
instruction that would have informed jurors that they must
19
Defendant argued there were questions about the chain of
custody of the banana peel and scarf, but aside from this bare
assertion, the defense argument and ensuing colloquy were
limited to the vaginal swab evidence.
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determine that the prosecution showed the chain of custody was
intact.” “ ‘ “ ‘ “[I]t is settled that in criminal cases, even in the
absence of a request, the trial court must instruct on the general
principles of law relevant to the issues raised by the
evidence.” ’ ” ’ ” (People v. Wilson (2021) 11 Cal.5th 259, 295.)
“We are ‘mindful of the general rule that a trial court may
properly refuse an instruction offered by the defendant if it
incorrectly states the law, is argumentative, duplicative, or
potentially confusing [citation], or if it is not supported by
substantial evidence.’ [Citation.] We review de novo whether
instructions correctly state the law.” (People v. Scully (2021)
11 Cal.5th 542, 592.)
Defendant’s claim lacks merit. As the Attorney General
argues, the jury was instructed on how to evaluate the scientific
experts’ testimony pursuant to CALJIC No. 2.80. 20 Moreover,
defendant acknowledged the experts’ differing test results were
unrelated to the chain of custody of the vaginal swab, rendering
the requested instruction unsupported by substantial — or
any — evidence. Because defendant’s requested instruction was
20
The jury was instructed pursuant to CALJIC No. 2.80 as
follows: “In determining what weight to give to any opinion
expressed by an expert witness, you should consider
the . . . believability of the witness as well as the facts or
materials upon which each opinion is based and the reasons for
each opinion. [¶] An opinion is only as good as the facts and the
reasons upon which it’s based. If you find that any fact has not
been proved or has been disproved, then you must consider that
in determining the value of the opinion. Likewise you must
consider the strengths and weaknesses of the reasons upon
which the opinion is based. [¶] You are not bound by an opinion.
You should give each opinion the weight you find that it
deserves. You may disregard an opinion if you find it to be
unreasonable.”
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not related to generally relevant legal principles raised by the
evidence and because it was duplicative, unsupported by
substantial evidence, and misstated the law, we conclude the
trial court did not err by refusing to give it.
4. CALJIC No. 2.15
Defendant argues his conviction must be reversed because
the jury was instructed with CALJIC No. 2.15, and it was not
told the instruction was limited to theft-related charges as the
use note to the instruction suggested it should be. (See Use Note
to CALJIC No. 2.15 (5th ed. 1988) p. 40 [“This instruction will
serve to cover the effect of possession of recently stolen property
in robbery, burglary, theft and receiving stolen property”].)
Without objection, the jury was instructed with a modified
version of CALJIC No. 2.15 as follows: “If you find that a
defendant was in possession of recently stolen property, the fact
of that possession is not, by itself, sufficient to permit an
inference that the defendant is guilty of the crime of murder. [¶]
Before guilt may be inferred, there must be corroborating
evidence tending to prove defendant’s guilt. However, this
corroborating evidence need only be slight and need not, by
itself, be sufficient to warrant an inference of guilt. [¶] As
corroboration, you may consider the attributes of possession,
time, place and manner, that the defendant had an opportunity
to commit the crime charged, the defendant’s conduct and his
false statements, if any, and any other evidence which tends to
connect the defendant with the crime charged.”
Defendant argues that the instruction given without
limitation permitted the jury to find him guilty of murder if it
found he was in possession of recently stolen property along with
some slightly corroborating evidence. As the Attorney General
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concedes, we have found the “application of CALJIC No. 2.15 to
nontheft offenses like . . . murder . . . erroneous.” (People v.
Prieto (2003) 30 Cal.4th 226, 248–249 (Prieto).) This is so
because “ ‘[p]roof a defendant was in conscious possession of
recently stolen property simply does not lead naturally and
logically to the conclusion the defendant committed’ . . .
murder.” (Id. at p. 249.)
Defendant claims the error deprived him of his federal
constitutional rights because it lessened the state’s burden of
proof, made it impossible to know whether the jury relied on an
incorrect theory of culpability, and permitted the jury to infer
the elements of first degree murder from proof defendant
possessed stolen property. We have expressly rejected each of
these claims. (People v. Moore, supra, 51 Cal.4th at pp. 1131–
1133.)
The instruction did not alter the theory of culpability or
affect the propriety of the court’s remaining instructions that
the jury must be convinced beyond a reasonable doubt that the
elements of murder were satisfied. (People v. Moore, supra,51 Cal.4th at p. 1131.) Rather, “[t]he jury was instructed it
could draw merely ‘an inference of guilt’ from the fact of
possession with slight corroboration, which any rational juror
would understand meant he or she could consider this inference
in deciding whether the prosecution has established the
elements of murder (and the other offenses) elsewhere defined
in the trial court’s instructions.” (Ibid.)
The instruction did not “unconstitutionally lower the
prosecution’s burden of proving each element of the crimes
beyond a reasonable doubt: [it] ‘did not directly or indirectly
address the burden of proof, and nothing in the instruction
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absolved the prosecution of its burden of establishing guilt
beyond a reasonable doubt.’ (Prieto, supra, 30 Cal.4th at p. 248.)
Other instructions also properly informed the jury of its duty to
weigh the evidence, what evidence it may consider, how to weigh
that evidence, and the burden of proof. We decline defendant’s
invitation to reconsider this conclusion.” (People v. Moore,
supra, 51 Cal.4th at p. 1133; see also People v. Potts, supra,
6 Cal.5th at pp. 1042–1043.)
Applying the Watson standard, we conclude, “[T]here was
no reasonable likelihood the jury would have reached a different
result if the court had limited the permissive inference described
in CALJIC No. 2.15 to theft offenses. (See Watson, supra,
46 Cal.2d at p. 836.)” (Prieto, supra, 30 Cal.4th at p. 249.) As
discussed more fully, ante (see Section III.A.2), in light of the
overwhelming evidence supporting defendant’s conviction, it is
not reasonably likely a jury would have reached a different
conclusion by merely considering defendant’s possession of
stolen property and slight corroborating evidence. Accordingly,
we find the error harmless. (Watson, supra, 46 Cal.2d at p. 836.)
5. Voluntary Manslaughter Instruction
Defendant argues two voluntary manslaughter
instructions, CALJIC Nos. 8.40 and 8.42, improperly permitted
jurors to presume murder was the default offense and could be
reduced or excused by certain mental states, the presence of
which were defendant’s burden to prove. Defendant’s claim
lacks merit. The jury was instructed with CALJIC Nos. 8.4021
21
The jury was instructed with CALJIC No. 8.40 as follows:
“Defendant is accused in count one of having committed the
crime of murder. A lesser-included offense of the crime of
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and 8.42,22 the latter addressing provocation and heat of
passion. Before the court agreed to give these instructions, it
murder is involuntary manslaughter. [¶] Every person who
unlawfully kills another human being without malice
aforethought but either with an intent to kill, or in conscious
disregard for human life, is guilty of voluntary manslaughter in
violation of Penal Code section 192, subdivision (a). [¶]
‘Conscious disregard for life,’ as used in this instruction, means
that a killing results from the doing of an intentional act, the
natural consequences of which are dangerous to life, which act
was deliberately performed by a person who knows that his or
her conduct endangers the life of another and who acts with
conscious disregard for life. [¶] In order to prove this crime,
each of the following elements must be proved: [¶] 1. A human
being was killed; [¶] 2. The killing was unlawful; and [¶] 3.
The perpetrator of the killing either intended to kill the alleged
victim or acted in conscious disregard for life; and [¶] 4. The
perpetrator’s conduct resulted in the unlawful killing.”
22
The jury was instructed with CALJIC No. 8.42 as follows:
“To reduce an unlawful killing from murder to manslaughter
upon the ground of sudden quarrel or heat of passion, the
provocation must be of the character and degree as naturally
would excite and arouse the passion, and the assailant must act
under the influence of that sudden quarrel or heat of passion.
[¶] The heat of passion which will reduce a homicide to
manslaughter must be such a passion as naturally would be
aroused in the mind of an ordinarily reasonable person in the
same circumstances. A defendant is not permitted to set up his
own standard of conduct and to justify or excuse himself because
his passions were aroused unless the circumstances in which the
defendant was placed and the facts that confronted him were
such as also would have aroused the passion of the ordinarily
reasonable person faced with the same situation. Legally
adequate provocation may occur in a short, or over a
considerable, period of time. [¶] The question to be answered is
whether or not, at the time of the killing, the reason of the
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had a lengthy colloquy with the parties about whether the
brewing discord between Gallego and defendant regarding
defendant’s unreturned affection for Gallego could constitute
provocation. The court ultimately concluded it would give all of
the voluntary manslaughter instructions, including CALJIC
Nos. 8.37, 8.40, 8.42, 8.43, 8.44, and 8.50. Defendant never
objected to any of these instructions on the bases he now asserts:
that they rendered the crime of murder a default offense or
altered the burden of proof. Accordingly, his appellate challenge
is forfeited. (See People v. Buenrostro (2018) 6 Cal.5th 367, 391.)
Even if it had been preserved, we conclude his claim lacks
merit. Defendant cites no authority supporting his assertion
that instructing the jury with two of the standard voluntary
manslaughter instructions conflicted with other instructions,
misled the jury regarding who bore the burden of proof, or
suggested to the jury that murder was a default offense. We
have upheld the propriety of both instructions and are presented
with no reason to do otherwise here. (See People v. Gutierrez
(2002) 28 Cal.4th 1083, 1144.) As the Attorney General aptly
points out, the jury was instructed that the prosecution bore the
burden of proof pursuant to CALJIC No. 8.50. Nothing in
accused was obscured or disturbed by passion to such an extent
as would cause the ordinarily reasonable person of average
disposition to act rashly and without deliberation and reflection,
and from passion rather than from judgment. [¶] If there was
provocation, whether of short or long duration, but of a nature
not normally sufficient to arouse passion, or if sufficient time
elapsed between the provocation and the fatal blow for passion
to subside and reason to return, and if an unlawful killing of a
human being followed the provocation and had all the elements
of murder, as I have defined it, the mere fact of slight or remote
provocation will not reduce the offense to manslaughter.”
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CALJIC Nos. 8.40 or 8.42 altered this mandate. Jurors are
presumed to follow the instructions given. (See People v.
Silveria and Travis (2020) 10 Cal.5th 195, 309.) We presume
the jury did so and conclude the trial court did not err, under
state or federal constitutional standards, by giving CALJIC Nos.
8.40 and 8.42 without modification. (Watson, supra, 46 Cal.2d
at p. 836; Chapman v. California, supra, 386 U.S. at p. 24.) We
likewise conclude there was no prosecutorial misconduct.
Defendant did not object to either instruction on those grounds,
and it is not clear that an admonition would not have cured any
alleged harm. (See People v. Valdez (2004) 32 Cal.4th 73, 122
[“To be cognizable on appeal, a defendant ‘ “must make a timely
objection at trial and request an admonition; otherwise, the
[claim of prosecutorial misconduct] is reviewable only if an
admonition would not have cured the harm caused by the
misconduct” ’ ”].)
L. Alleged Prosecutorial Misconduct During the Guilt
Phase
Defendant argues several instances of prosecutorial
misconduct occurred during the guilt phase of his trial, violating
his right to due process and rendering the proceedings
fundamentally unfair. We reject these claims.
“ ‘A defendant’s conviction will not be reversed for
prosecutorial misconduct . . . unless it is reasonably probable
that a result more favorable to the defendant would have been
reached without the misconduct.’ ” (People v. Flores (2020)
9 Cal.5th 371, 403, quoting People v. Crew, supra, 31 Cal.4th at
p. 839.) “ ‘A prosecutor commits misconduct when his or her
conduct either infects the trial with such unfairness as to render
the subsequent conviction a denial of due process, or involves
deceptive or reprehensible methods employed to persuade the
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trier of fact.’ ” (People v. Maciel (2013) 57 Cal.4th 482, 541,
quoting People v. Avila (2009) 46 Cal.4th 680, 711.) During
opening and closing arguments, the prosecution is given wide
latitude to make “ ‘fair comment on the evidence, including
reasonable inferences or deductions to be drawn from it.’ ”
(People v. Collins (2010) 49 Cal.4th 175, 213.) “ ‘As a general
rule a defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion — and on the same
ground — the defendant made an assignment of misconduct and
requested that the jury be admonished to disregard the
impropriety.’ ” (People v. Silveria and Travis, supra, 10 Cal.5th
at p. 306; see also People v. Flores, supra, 9 Cal.5th at p. 403).
Defendant alleges numerous instances of prosecutorial
misconduct occurred throughout the guilt phase of his trial, but
we find none.
1. Opening Statement
Defendant claims the prosecutor committed misconduct
during the opening statement by improperly arguing about the
victim’s blood loss, use of a gag, and torture. He also claims the
prosecutor’s argument that defendant was guilty of lying in wait
was improper.
Defendant’s claim lacks merit. “ ‘[R]emarks made in an
opening statement cannot be charged as misconduct unless the
evidence referred to by the prosecutor “was ‘so patently
inadmissible as to charge the prosecutor with knowledge that it
could never be admitted.’ ” ’ ” (People v. Dykes (2009) 46 Cal.4th
731, 762.) Defendant argued the prosecutor committed
misconduct by urging the jury to conclude that, after reviewing
all of the evidence, it should find that defendant was not only
guilty of murder, but also of “slowly and methodically planning
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this crime, which is to take [the victim] by surprise, which is
lying in wait.” This remark was drawn from the evidence and
constituted no more than a preview of the prosecution’s theory
of the case.
None of the prosecution’s relatively few specific
references to draining blood, gagging, or torture constituted
misconduct. The prosecution’s descriptions of Gallego being
“drained” of her blood were reasonably supported by admissible
evidence. No blood was found in or on Gallego’s body, nor was
there blood in the trash can within which she was found. The
medical examiner testified the cause of death was severance of
her jugular vein, which would have caused Gallego to bleed to
death. The medical examiner further opined that since no blood
was found in Gallego’s body, it was possible that defendant
submerged Gallego’s body in water to allow the blood to flow out.
Moreover, defendant confessed to his cellmate that he had killed
his roommate and drained the woman’s blood in the bathroom.
There was ample evidence to support the prosecution’s
argument that Gallego’s blood had been drained from her body,
and the prosecutor’s references to that argument in her opening
statement therefore did not constitute misconduct. (People v.
Flores, supra, 9 Cal.5th at p. 404.)
Ample evidence also supported the prosecution’s theory
that Gallego was gagged. Gallego’s body was completely naked,
except for a scarf loosely looped and knotted around her neck.
The trial court noted that it had never seen that style of knot
used for fashion and believed that the prosecution could make a
legitimate inference that Gallego had been gagged.
Hergenroeather testified the scarf had been wrapped around
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Gallego’s neck several times and covered the cut.23 The
investigators on the case did not believe that the scarf was used
to disguise the small wound on Gallego’s neck, particularly
because the rest of Gallego’s wounds remained visible and
uncovered on her body. Just as the evidence supported
prosecution’s use of the word “drained,” so too did the evidence
support the use of the word the word “gagged” in the prosecutor’s
opening statement. (People v. Flores, supra, 9 Cal.5th at p. 404.)
The prosecutor’s single, colloquial use of the word torture
in her opening statement — “The defendant raped and inflicted
an enormous amount of pain and torture upon Miss Gallego” —
did not constitute misconduct. The trial court ruled such a use
was permissible, and even if the term was inflammatory, a
single reference to it was not patently inadmissible, nor would
it have altered the result of defendant’s trial. (People v. Foster
(2010) 50 Cal.4th 1301, 1350 [“in light of our conclusion that the
trial court did not abuse its discretion in admitting [the]
evidence, the prosecutor’s reference to the evidence during his
opening statement was not misconduct”]; see also People v.
Dykes, supra, 46 Cal.4th at p. 762; People v. Flores, supra,
9 Cal.5th at p. 403.) Because the terms defendant objects to
were “within the ‘broad scope of permissible argument,’ ” they
did not constitute misconduct. (People v. Dykes, supra, at
p. 762.)
To the extent defendant also alleges his state and federal
constitutional rights were violated when the trial court did not
require that the prosecutor generally refrain from using the
23
As Hergenroeather was about to testify as to his belief
regarding the use of the scarf, an objection was interposed and
sustained.
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words “drained,” “gagged,” and “tortured” during the opening
statement as defendant requested, we find no error.
Information about the manner the crime was committed —
including that the victim may have been subdued by a gag or
handcuffs and that her blood was drained — may have been an
evocative description but was not unduly inflammatory and did
not alter the burden of proof. We conclude the trial court’s
denial of defendant’s motion to preclude use of certain terms in
the opening statement was not erroneous.
2. Introduction of Evidence
Defendant alleges the prosecutor committed misconduct
by introducing certain photographic, physical, and expert
evidence. Specifically, he claims the prosecutor committed
misconduct by: introducing sexually graphic images and
referring to those images as “porn” or “pornography”; relying on
its expert, a forensic dentist; agreeing to appear and discuss
defendant’s case on a reality television show; introducing
allegedly “gruesome” images depicting the victim’s postmortem
body in “an effort to urge jurors to ignore the defense of heat of
passion”; introducing evidence of a sperm cell on a banana peel;
introducing a photograph depicting the victim in life with her
dog; and showing the jury photographs of the victim’s
postmortem handcuffed body during Powell’s testimony.
“When a claim of misconduct is based on remarks to the
jury, we consider whether there is a reasonable likelihood the
jury construed the remarks in an improper fashion.” (People v.
Steskal (2021) 11 Cal.5th 332, 350, citing People v. Gonzales
(2012) 54 Cal.4th 1234, 1275.) Defendant argues the
prosecution’s introduction of sexually graphic evidence
constituted misconduct and claims referring to those images as
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“porn” or “pornography” was inflammatory. Defendant’s claim
lacks merit. It is not reasonably likely the jury improperly
construed the prosecution’s use of the word “pornography” to
describe sexually graphic images, as that word is the generally
understood term for such images, as is the shortened
colloquialism, “porn.” To the extent defendant’s objection is to
the introduction of this relevant and admissible evidence, we
conclude no misconduct occurred. Reliance on evidence to prove
its case is the function of prosecution and does not constitute the
prosecution’s use of “ ‘ “deceptive or reprehensible methods to
persuade the jury.” ’ ” (People v. Steskal, at p. 350, quoting
People v. Friend (2009) 47 Cal.4th 1, 29.)
We also reject defendant’s contention that the prosecution
committed misconduct by relying on Sperber’s testimony, whom
defendant characterizes as a “thoroughly unqualified ‘expert,’ ”
because the reliance was not a deceptive or reprehensible tool of
persuasion but was instead the ordinary introduction of expert
evidence. (See People v. Steskal, supra, 11 Cal.5th at p. 350.) As
described above, the trial court did not abuse its discretion by
admitting the testimony, and no misconduct resulted from
relying on it. (See People v. Morales, supra, 10 Cal.5th at p. 97;
see also People v. Foster, supra, 50 Cal.4th at p. 1350.)
Similarly, the prosecution’s use of photographs and
physical evidence was not deceptive, reprehensible, or “ ‘ “so
egregious that it infect[ed] the trial with such unfairness as to
make the conviction a denial of due process.” ’ ” (People v.
Kennedy (2005) 36 Cal.4th 595, 618.) In People v. Kennedy, the
defendant claimed on appeal the introduction of a photograph of
his tattoos constituted prosecutorial misconduct, which claim
we rejected in part because defendant introduced the
photograph. (Id. at p. 619.) We also concluded the prosecution’s
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mentioning the photograph in closing argument did not
constitute misconduct because the evidence was relevant.
(Ibid.) We conclude likewise here; the photographic and
physical evidence — the photo of Gallego in life with her dog, the
autopsy photos, the photo shown to the jury during Powell’s
testimony, and the sperm cell evidence — was relevant, and the
prosecution’s introduction of it and reliance upon it did not
constitute misconduct. Because the trial court concluded the
sexually graphic images were relevant and admissible, the
prosecutor did not commit misconduct by relying on them. (See
People v. Hawthorne (2009) 46 Cal.4th 67, 98 [“ ‘ “merely
eliciting evidence is not misconduct” ’ ”].)
Finally, as defendant acknowledges, he is unable to
demonstrate he suffered prejudice as a result of the prosecutor’s
agreement to be depicted in a reality television show about his
case that never aired; having viewed the sealed footage, we
conclude no misconduct occurred. (See People v. Steskal, supra,
11 Cal.5th at pp. 353–354.)
Beyond his arguments as to admissibility, which we have
rejected, defendant fails to explain how an advocate’s use of
relevant evidence, admitted by the court through a proper
exercise of its discretion, could constitute misconduct.
3. Facts Not in Evidence
Defendant asserts that the prosecutor committed
misconduct by eliciting testimony from Hergenroeather that
Gallego had been gagged. Prior to his testimony, the court had
ruled Hergenroeather’s opinion was inadmissible, cutting off
Hergenroeather’s testimony before he could finish testifying
that he believed Gallego had been gagged. While questioning
Hergenroeather about his process of gathering evidence and
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presenting it to the district attorney, Hergenroeather testified
that he “believed [Gallego] was gagged.” The detective
explained that during the initial investigation, it was his process
to report only facts, not impressions, in his notes, but after a
suspect is identified and the case is presented to the district
attorney, the detective at that point shares his “thoughts and
impressions of the case,” which in this instance included his
belief she was handcuffed and gagged.
No objection was interposed in response to
Hergenroeather’s statement, but later during his testimony,
defendant objected to an unrelated line of questioning. A
sidebar discussion followed, and the court reminded the parties
it had previously ruled that evidence concerning the detective’s
belief regarding why the scarf was looped around Gallego’s neck
constituted improper opinion evidence. The court concluded the
testimony the detective had just given that he believed Gallego
had been gagged “came in . . . too fast for” the court and the
defense to note or interpose an objection. In light of the speed
and passing nature of Hergenroeather’s testimony, the court
allowed the parties to decide whether it should raise the issue
to “unring the bell” by admonishing the jury to disregard the
testimony or let it be. Defense counsel argued the jury was
attentively listening and writing during the detective’s
testimony, and the court needed to admonish the jury
immediately upon resumption of proceedings. The court agreed
it would do so by explaining to the jury the question and answer
came too fast for it to sustain any objection, it had previously
ruled the detective’s opinion about whether the victim had been
gagged was not admissible, and it would strike the testimony he
had just given on that topic. The court admonished the jury as
indicated.
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Although defendant did not object to the prosecutor’s
question or Hergenroeather’s testimony on any grounds, it is not
clear whether this claim is forfeited because the trial court
acknowledged the testimony was given too quickly for an
objection to be interposed.24 (See People v. Flores, supra,
9 Cal.5th at p. 403.) In any event, we conclude the prosecution’s
brief question, “And what were your thoughts and impressions
as to whether Miss Gallego was gagged?” did not constitute
misconduct.
“ ‘[A]lthough it is misconduct for a prosecutor intentionally
to elicit inadmissible testimony [citation], merely eliciting
evidence is not misconduct.’ ” (People v. Fuiava (2012)
53 Cal.4th 622, 679.) During examination by the prosecution,
just as Hergenroeather was about to complete a sentence
indicating his belief the scarf tied loosely around the victim’s
neck may have been used as a gag, the court sustained a defense
objection as to what the detective was about to say. The trial
court merely stated that the objection was sustained “as to what
[Hergenroeather] was about to say. I’m not striking anything
he’s already said.” The court did not elaborate, on or off the
record, on its ruling. The prosecutor explained that she
remembered, incorrectly, that defense counsel had subsequently
asked Hergenroeather his opinion about whether Gallego had
been gagged, but that question was not posed. The prosecutor
apologized to the court for mistakenly believing it could elicit
testimony concerning whether the victim was gagged,
24
At this juncture, the court urged defense counsel to be
more attentive and interpose objections more frequently to avoid
testimony inadvertently being given that the court had
disallowed previously.
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misremembering defense counsel’s examination, and
misunderstanding the nature of the court’s ruling excluding the
opinion testimony Hergenroeather had been about to give. The
court urged the parties to raise evidentiary arguments outside
the presence of the jury, and the prosecutor promised to do so.
The prosecutor’s question to Hergenroeather does not
appear to be an effort to elicit inadmissible testimony; it seems
instead a reasonable, if mistaken, effort to elicit admissible
evidence. (People v. Fuiava, supra, 53 Cal.4th at p. 679.) In any
event, the court admonished the jury to disregard
Hergenroeather’s testimony, and defendant fails to demonstrate
that this remedy was inadequate. (See People v. Tully, supra,
54 Cal.4th at pp. 1037–1038 [defendant’s nonspecific objection
to alleged prosecutorial misconduct sustained].)
4. Jailhouse Informant Evidence
Defendant claims the prosecution committed misconduct
by introducing Lee’s testimony because, he claims, there were
doubts concerning its veracity. He also alleges, “[T]he
prosecutor’s insistence on not permitting jurors to consider
Det[ective] Ott’s pattern and practice of misconduct in other
cases” constituted misconduct. The trial court heard extensive
argument regarding the propriety of introducing evidence of
Ott’s alleged wrongdoing and ultimately ruled it was irrelevant
because there was no evidence that Ott acted improperly in the
instant case. We conclude the prosecutor committed no
misconduct either by eliciting Lee’s testimony or by not
presenting evidence of Ott’s alleged misconduct in other cases,
in accordance with the court’s ruling. (See People v. Fuiava,
supra, 53 Cal.4th at p. 679 [merely eliciting testimony does not
constitute prosecutorial misconduct].) As described above, the
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trial court admitted much of Lee’s testimony, and no misconduct
resulted from the prosecutor’s reliance on testimony that the
trial court had already ruled was properly before the jury.
Contrary to defendant’s assertion, most of Lee’s criminal history
was introduced as impeachment evidence, and the trial court’s
ruling excluding a few dated offenses was not a prosecutorial
decision that could have constituted misconduct. Finally, we
conclude the prosecutor’s failure to elicit testimony of Ott’s prior
acts in reliance on the court’s express ruling that such
information was unduly speculative and therefore inadmissible
was not misconduct. (See People v. Foster, supra, 50 Cal.4th at
p. 1350.)
5. Closing Argument
Defendant argues the prosecutor committed misconduct
by encouraging jurors to conclude the crime was planned,
referring to the sexually graphic “porn” images defendant
created and to the sexual fantasies described in defendant’s
writings. Defendant failed to object to any of these comments,
but even if the claim was preserved, we would find no
misconduct. We have repeatedly held a prosecutor has “ ‘wide
latitude to draw reasonable inferences from the evidence
presented at trial.’ ” (People v. Tully, supra, 54 Cal.4th at
p. 1022.) Defendant’s arguments that it was misconduct for the
prosecutor to ask jurors to credit Sperber’s expert testimony
about tool marks as common sense, testimony that defendant
once used handcuffs to lock his bike, evidence the victim’s body
was drained of blood, and the prosecution’s rebuttal arguments
that defendant used a gag and handcuffs lack merit; these
statements constituted no more than permissible comments on
evidence presented during the trial. (Ibid.)
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Although a prosecutor commits misconduct by misstating
the law (People v. Fayed, supra, 9 Cal.5th at p. 204), defendant’s
claims that it was misconduct for the prosecutor to argue
manslaughter means “man’s laughter” because it lessened the
burden of proof, or to explain the jury need not agree on an
underlying theory of first degree murder, are unavailing. The
prosecutor did not suggest defendant was laughing at the
victim’s death; rather, she explained that the root words of
manslaughter remind that a finding of manslaughter involves
less culpability than first degree murder. While this analogy
may have been confusing or inapt, it was not a deceptive or
reprehensible method used to persuade the trier of fact, nor did
it infect the trial with unfairness sufficient to render the
subsequent conviction a denial of due process. (People v.
Silveria and Travis, supra, 10 Cal.5th at p. 306.) Defendant
also argues that jurors need not agree on the theory of first
degree murder, allowing the prosecutor to press “many pieces of
unreliable information, and theories that were unsupported by
reliable facts.” Both the “man’s laughter” argument and the
prosecutor’s correct statement that jurors need not agree on the
theory of first degree murder did not constitute misconduct.
(See, e.g., People v. Scully, supra, 11 Cal.5th at p. 593 [jurors
need not agree on theory of first degree murder].)
PENALTY PHASE
A. Alleged Prosecutorial Misconduct During the
Penalty Phase
Defendant alleges the prosecution engaged in a pervasive
campaign of misconduct at all phases of his trial. He claims the
individual instances and cumulative impact of that misconduct
warrant reversal of his death sentence. We conclude no
prosecutorial misconduct occurred at the penalty phase.
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As addressed previously, a prosecutor enjoys wide latitude
during closing argument to comment on the evidence or draw
reasonable inferences from it; misconduct arises when the
prosecution uses deceptive or reprehensible methods to
persuade the trier of fact or infects the trial with unfairness
sufficient to render the subsequent conviction a denial of due
process. (See People v. Silveria and Travis, supra, 10 Cal.5th at
p. 306.) Defendant argues several comments the prosecutor
made during closing argument constituted misconduct. The
prosecutor told jurors that the nature of the case “makes us feel
bad” in the course of reminding jurors of their duty to persevere.
Any claim of misconduct arising from this statement is forfeited
because defendant did not object (see People v. Dykes, supra,46 Cal.4th at p. 770), and it lacks merit. The prosecution’s
comments urged the jury to impose the death penalty in light of
the horrific way in which defendant killed Gallego, despite the
fact that having to listen to the evidence made them feel “bad”
and despite the fact that they “didn’t want to be here,” which is
not outside the realm of proper argument. (People v. Gamache
(2010) 48 Cal.4th 347, 389.)
Next, defendant argues the prosecutor told jurors they had
a duty to impose death by stating they were “called upon to
deliver that penalty in this case.” The prosecutor also
analogized their reaching a verdict to climbing Mount Everest.
Defendant failed to object to these statements, thus forfeiting
his claim on appeal. (People v. Dykes, supra, 46 Cal.4th at
p. 773.) Even so, his claims are without merit. Taken in
isolation, the prosecutor’s analogy might have suggested to the
jury that they should see the imposition of the death penalty as
the ultimate achievement or something they ought to take pride
in. If so, we are doubtful that this would have been a proper
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characterization of the jury’s solemn duty. However, when read
in context, the prosecutor’s use of the Mount Everest analogy
appears intended as a means of empathizing with the jury over
the “struggle” of having to “immerse” themselves in the “horrible
murder” of Gallego even after they had already reached a guilty
verdict, and reminding the jury that they had a duty to “see this
case through to the end.” In effect, asking the jury to render an
appropriate verdict at the end of a grueling trial is not improper
argument. While the Everest statement may have been oblique
and overly dramatic, it was not misconduct. (See People v.
Silveria and Travis, supra, 10 Cal.5th at p. 306.)
Next, defendant argues the prosecution improperly asked
jurors to imagine themselves in the victim’s experiences and
“see what she went through in the last moments of her life.”
Defendant forfeited this challenge by failing to object (People v.
Dykes, supra, 46 Cal.4th at p. 773), and his claims are without
merit. (People v. Jackson (2009) 45 Cal.4th 662, 692 [A
prosecutor does not commit misconduct by asking the jurors to
put themselves in the victim’s shoes].) “Although it is
inappropriate at the guilt phase for a prosecutor to appeal to
sympathy by inviting the jury to view the case through the
victim’s eyes [citation], such appeals are entirely appropriate at
the penalty phase.” (People v. Winbush (2017) 2 Cal.5th 402,
485.) An appeal to jurors to place themselves in the victim’s
position is “ ‘ “appropriate at the penalty phase because there
‘the jury decides a question the resolution of which turns not
only on the facts, but on the jury’s moral assessment of those
facts as they reflect on whether defendant should be put to
death. . . . In this process, one of the most significant
considerations is the nature of the underlying crime. [Citation.]
Hence assessment of the offense from the victim’s viewpoint
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would appear germane to the task of sentencing.’ ” ’ ” (Id. at
p. 486.) Defendant argues the prosecutor committed misconduct
by likening jurors to the citizens who reported the trash can
containing Gallego’s body and PetSmart dumpster where her
fingers were found, and to the police officers who investigated,
because the comparisons improperly reinforced that they had a
duty to impose the death penalty. We find no error; the
prosecutor invited the jury to perform its duty as the “conscience
of the community” and choose the appropriate penalty but did
not use this comparison to suggest jurors must impose the death
penalty. (People v. Gamache, supra, 48 Cal.4th at p. 389.) A
prosecutor is free to present closing argument in “ ‘colorful
terms’ ” so long as any commentary is brief and does not exceed
the bounds of propriety. (People v. Jackson, supra, 45 Cal.4th
at p. 692.)
Defendant further claims that the prosecution improperly
argued facts as aggravating factors including defendant’s
postcrime actions and references to the victim’s dog.
Defendant’s failure to object or to request an admonishment
forfeits review of this claim. (People v. Rogers (2009) 46 Cal.4th
1136, 1181.) It also lacks merit. Describing what defendant did
to the victim’s body after her death constitutes comment on
evidence that was already before the jury. Additionally, the
prosecution referenced defendant’s knowledge of the victim’s
dog to demonstrate how well he knew her. Both arguments
constitute the proper exercise of a prosecutor’s wide latitude to
comment on the evidence. (People v. Collins, supra, 49 Cal.4th
at p. 213.)
Defendant next contends that the prosecution improperly
urged jurors to count aggravating factors. The prosecutor told
the jury they only need to find one special circumstance true to
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reach a verdict, and “if you have two, that’s twice as many.”
Defendant objected on the basis that the prosecution was giving
“arbitrary weight” to the factors. The court addressed the
objection, providing a curative instruction that “[t]here is no
magical weight assigned to any factor, no arbitrary weight.” It
encouraged jurors “to look at the factors, decide which ones are
applicable and decide what weight is to be assigned to any of
them and all of them.” To the extent the prosecution erred, the
court’s instruction cured any prejudice that may have arisen
from the prosecution’s comments. (People v. Jackson (2016)
1 Cal.5th 269, 367.)
Next, defendant argues that the prosecution improperly
characterized the evidence in mitigation by referring to it as
reverse victimization, arguing defendant’s lack of criminal
record was an aggravating factor, and suggesting that a history
of child abuse should not be used as an excuse. Defendant
claimed the prosecution improperly argued evidence of his
childhood abuse be discarded, rhetorically asking the jury
whether any one of the 80,000 annual victims of child abuse in
San Diego could rely on their abuse report should they later
commit murder and be subject to the death penalty. The fact
that a prosecutor elects to rebut “the defense’s mitigating
evidence does not mean the prosecutor erred or committed
misconduct.” “It is not misconduct to argue that ‘the evidence
lacked the mitigating force the defendant’ ” hoped it would have.
(People v. Hajek and Vo, supra, 58 Cal.4th at p. 1239.) “The
prosecution ‘ “has a legitimate interest in counteracting the
mitigating evidence which the defendant is entitled to put
in . . . .” ’ ” (People v. Flores, supra, 9 Cal.5th at p. 431.)
Furthermore, the prosecution is permitted to question whether
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a defendant’s mitigating evidence carries much weight. (People
v. Gamache, supra, 48 Cal.4th at p. 390.)
Defendant contends the prosecution improperly argued
defendant’s lack of remorse could be considered in aggravation
by arguing he would not have disposed of Gallego’s body in the
way he had if he cared for her or her family. The claim is
meritless. “Prosecutors are allowed to focus on a defendant’s
lack of remorse in two ways. First, ‘[c]onduct or statements at
the scene of the crime demonstrating lack of remorse may be
consider[ed] in aggravation as a circumstance of the capital
crime under section 190.3, factor (a).’ [Citations.] Second, ‘[a]
prosecutor may properly comment on a defendant’s lack of
remorse, as relevant to the question of whether remorse is
present as a mitigating circumstance, so long as the prosecutor
does not suggest that lack of remorse is an aggravating factor.’ ”
(People v. Bonilla (2007) 41 Cal.4th 313, 356; see also People v.
Pollock (2004) 32 Cal. 4th 1153, 1185.) The prosecutor’s
reference to defendant’s conduct at the scene of the crime was a
permissible argument concerning defendant’s lack of remorse.
Finally, defendant claims the prosecutor committed
misconduct by commenting on his exercise of constitutional
rights while Gallego was unable to do likewise. Specifically, the
prosecutor argued: “There was no jury for her. There was no
judge in that apartment on Benicia Street. There was no bailiff
to maintain order. She did not have an attorney go in there and
argue for her life to [defendant].” This claim lacks merit. The
prosecutor’s comments cannot be understood to improperly
“urge the jury to return a death verdict because defendant
exercised his constitutional rights and did not suggest that
defendant should be given a greater penalty because he had a
trial.” (People v. Jackson (1989) 49 Cal.3d 1170, 1207.) Had the
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prosecutor made disparaging references to defendant’s exercise
of his own constitutional rights, such an argument would have
been improper. But here, the prosecutor’s statements, though
evocative and hyperbolic, did not “ ‘infect the trial with such
unfairness as to render the subsequent conviction a denial of
due process.’ ” (People v. Silveria and Travis, supra, 10 Cal.5th
at p. 306, quoting People v. Avila, supra, 46 Cal.4th at p. 711.)
Defendant claims that any prosecutorial misconduct that
occurred at other points in his trial cumulated, requiring
reversal of his penalty. Because we found no misconduct during
any proceedings and likewise conclude no misconduct occurred
during penalty phase closing argument, we reject defendant’s
claim that the cumulative effect of prosecutorial misconduct
warrants reversal.
B. CALJIC No. 8.88
Defendant objected to the use of the word “shall” in
CALJIC No. 8.88, which — as given — instructed jurors, “If you
conclude that the aggravating circumstances are so substantial
in comparison to the mitigating circumstances that they
warrant death instead of life without parole, you shall return a
judgment of death.” He claims use of the instruction violated
his rights under the federal and state Constitutions because
jurors could have mistakenly believed imposition of the death
penalty was mandatory.
Defendant raised his concern with use of the word “shall”
during a discussion of the penalty phase instructions, and the
trial court agreed to ameliorate defendant’s concern by adding
his requested language that “[t]he death penalty is never
mandatory.” The jury was instructed with the modified CALJIC
No. 8.88. In closing argument, the prosecution explained that
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the word “shall” in the instruction meant that jurors could not
decide during deliberation that they believed life in prison
without the possibility of parole was a sentence worse than
death. Defendant argues that use of the word “shall” in the
instruction might have misled jurors into believing the death
sentence was mandatory, and the prosecutor’s statements
during penalty phase closing argument increased that
possibility.
In People v. Brown (1985) 40 Cal.3d 512, we concluded
that instructing jurors with “the unadorned language of section
190.3, that the jury ‘shall’ impose a sentence of death if it
concludes that the aggravating circumstances outweigh the
mitigating circumstance[],” “could confuse and mislead the jury
regarding the manner in which the penalty should be
determined.” (People v. Streeter (2012) 54 Cal.4th 205, 255,
256.) This confusion could arise in one of two ways: either the
jury could believe it must mechanically weigh the various
factors, or it might misunderstand “ ‘that our statutory scheme
does not require any juror to vote for the death penalty unless,
as a result of the weighing process, the juror personally
determines that death is the appropriate penalty under all the
circumstances.’ ” (Id. at p. 256.)
No danger of either sort of confusion could have arisen
here. Unlike in Brown, the jury was instructed that “the
weighing of aggravating and mitigating circumstances does not
mean a mere mechanical counting of factors on each side of an
imaginary scale, or the arbitrary assignment of weights to any
of them. Each of you are free to assign whatever moral or
sympathetic value you deem appropriate to each and all of the
various factors you are permitted to consider.” Unlike the
concern raised in Brown, the jury was not misled into thinking
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the weighing process was mechanical, and jurors understood
they possessed discretion. (People v. Streeter, supra, 54 Cal.4th
at p. 256; see also People v. Carpenter (1997) 15 Cal.4th 312,
419; People v. Noguera (1992) 4 Cal.4th 599, 640.) The jury was
instructed that if the aggravating factors were “so substantial”
when compared against those in mitigation “that they
warrant[ed] death instead of life without parole,” jurors “shall”
return a death judgment, but — unlike in Brown — the jury was
also expressly instructed that “[t]he death penalty is never
mandatory.” This clarification eliminated the concern we
addressed in Brown, as the jury was instructed that it could find
that a death judgment was warranted if it determined the
aggravating circumstances were so substantial compared to
mitigating circumstances, and also was instructed that
imposition of a death sentence was never mandatory.
Defendant’s argument that the prosecutor committed
misconduct by highlighting the instruction’s language in a
misleading manner is similarly unavailing. Although in pre-
Brown cases, i.e., those decided before CALJIC No. 8.88 was
revised, it was necessary to examine the entirety of the record
including counsel’s argument to determine whether the jury
could have been misled, we need not do so here to conclude the
jury understood imposition of death was not mandatory. (See
People v. Streeter, supra, 54 Cal.4th at p. 256.) The language of
the instruction was not mandatory, and the addition of
defendant’s requested sentence, that “[t]he death penalty is
never mandatory,” ensured that was the case here. And if we do
examine the record, the prosecutor’s closing argument
underscores that the jury could not have been misled: The
prosecutor explained that the word “shall” in CALJIC No. 8.88
functioned to remind jurors that even if they personally believed
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that life without the possibility of parole was a sentence worse
than death, they took an oath to uphold the law, which provides
otherwise. Thus, if they found aggravating factors outweighed
those in mitigation, CALJIC No. 8.88 foreclosed any “debate
back in that jury room about which punishment is worse.” In
this way, the prosecutor did not argue that the language was
included in the instruction to render the penalty mandatory.
Instead, the prosecutor relied on the instruction to argue to
jurors that they took an oath to uphold the law and that even if
they personally thought life imprisonment was worse than
death, the law viewed death to be the worse penalty.
We conclude no error arose from the jury instruction, and
we likewise conclude the prosecution committed no misconduct
by highlighting the word “shall” to clarify that death was the
harsher penalty. To the extent the prosecutor’s brief reference
to the instruction engendered any confusion, the trial court’s
instructions to the jury cured it. (People v. Winbush, supra,
2 Cal.5th at p. 480 [“For a prosecutor’s remarks to constitute
misconduct, it must appear reasonably likely in the context of
the whole argument and instructions that ‘ “the jury understood
or applied the complained-of comments in an improper or
erroneous manner” ’ ”].)
C. Issues Arising from Defendant’s Handwritten New
Trial Motion Alleging Ineffective Assistance of
Counsel
Defendant submitted a handwritten document to the court
during penalty phase deliberations claiming his attorney was
ineffective. The court filed the document, initially under seal
and later — at defendant’s request — in the public record, along
with a second, similar document defendant later submitted. The
court construed his first filing as a motion for new trial based on
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ineffective assistance of counsel and appointed the alternate
public defender’s office to investigate whether there was merit
to his motion. Defendant now argues the trial court erred by
appointing the alternate public defender without relieving trial
counsel and by acceding to his request that his documents be
publicly filed. We conclude there was no error.
On August 12, 2002, during penalty phase deliberations,
defendant submitted a letter to the court complaining that
appointed counsel performed inadequately. The jury returned a
verdict of death later that day. Defendant’s letter was construed
as a motion for new trial based on ineffective assistance of
counsel, and the court appointed the alternate public defender’s
office “for the limited purpose of dealing with the . . . new trial
issue.” The trial court noted there may have been other grounds
for a new trial motion but had defendant’s motion claiming
ineffective assistance of counsel “prove[n] successful, then [he
would] go back to square 1. If that [was] unsuccessful, then the
public defender would still be free to deal with any other new
trial motion issues in due course.”
Defendant asked to be given certain discovery and
evidentiary materials, and the court denied that request
reminding him that the alternate public defender, Mike Dealy,
had access to any necessary documents. At one point during
Dealy’s investigation, defendant complained that it appeared
Dealy was more interested in protecting the alternate public
defender’s office than him. After inquiring whether defendant
had more specific complaints and hearing he did not, the court
suggested he cooperate with Dealy to avoid being foreclosed in
the future from complaining about Dealy’s performance. To the
extent defendant sought to be heard in lieu of Dealy, the court
concluded Dealy was not in a “conflicted situation” as a result of
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his representation and denied defendant’s request to represent
himself. The court provided Dealy with additional time to
review materials related to defendant’s Marsden motions and
the entirety of the trial transcripts and other materials.
After doing so, Dealy informed the court he would not be
filing a motion for new trial based on ineffective assistance of
counsel. Dealy explained the issues to be raised were more
appropriately the subjects of appellate or habeas corpus claims,
and that he did not want to “jeopardize [defendant’s] appeal
rights . . . [or] miss anything” by filing a new trial motion. Dealy
assured the court he was not backing out of his representation.
Finding Dealy’s refusal unusual, the trial court asked to
hear from Dealy’s supervisor regarding whether the office could
not do the work it was appointed to do. Daniel Mangarin, chief
trial deputy of the alternate public defender’s office, assured the
court that Dealy was experienced and capable, and that Dealy’s
decision not to file a motion for new trial was sound and in his
client’s best interest. Mangarin explained that the alternate
public defender’s office had concluded there were no colorable
ineffective assistance of counsel issues to raise in such a motion,
but Dealy had been reluctant to state as much on the record and
potentially impair defendant’s ability to raise postconviction
claims. The court released the alternate public defender’s office
from the case, commenting: “What I wanted, and I think what
I got, is an independent evaluation of any potential [ineffective
assistance of counsel] issues. It appears, at this point, that I’ve
had that not just by one but by two attorneys, two experienced
defense attorneys, and they have expressed their professional
view that there are no issues properly to be presented at this
point.”
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Following Dealy’s release, defendant’s sealed,
handwritten new trial motion was provided to appointed counsel
and was subsequently unsealed and filed at defendant’s request.
On February 24, 2003, before the hearing on defendant’s motion
for modification of judgment, defendant submitted a second,
lengthy handwritten document, which the court filed under seal
and ordered served on all parties. Defendant began reading the
document into the record and requested that an unsealed copy
of it be made part of the record, which the court granted.
Defendant argues that appointing Dealy for the limited
purpose of determining whether appointed trial counsel was
ineffective ran afoul of this court’s decision in People v. Sanchez
(2011) 53 Cal.4th 80, 84, in which we explained that if a
defendant makes a showing during a Marsden hearing that the
right to counsel was substantially impaired, “substitute counsel
must be appointed as attorney of record for all purposes.” People
v. Sanchez is, as the Attorney General notes, readily
distinguishable as here there was no request to substitute
counsel. Instead, defendant submitted a handwritten note in
which he merely asserted ineffective assistance as a basis for a
new trial, and there was no showing that defendant’s right to
counsel had been substantially impaired. People v. Clark,
supra, 52 Cal.4th at pages 912–915 is instructive although —
like Sanchez — factually distinguishable from the instant case.
There, in response to a defendant’s renewed request to
substitute counsel, the trial court “grant[ed the] defendant’s
request for independent counsel to represent him,” even though
it had previously denied that request, explaining “it had
reversed its earlier ruling ‘just to make sure every possible point
will be brought forth that legally can be brought forth’ on
defendant’s behalf.” (People v. Clark, supra, 52 Cal.4th at
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p. 914.) Guilt phase proceedings continued unabated over the
defendant’s objection until independent counsel determined a
Marsden motion was warranted. (Id. at pp. 914–915.)
“[W]e reject[ed] defendant’s assertion that the court erred
when it allowed trial to continue while” the defendant’s motion
to substitute counsel, which prompted the court to appoint
independent counsel “was pending. It is well settled that a court
‘must promptly consider a motion for substitution of counsel
when the right to effective assistance “would be substantially
impaired” if his request were ignored.’ [Citations.] Here,
however, the record shows that . . . defendant did not seek the
discharge of his attorneys but rather requested appointment of
independent counsel to assist him in bringing such a motion.
Because there was no pending Marsden motion, the court did
not err in proceeding with trial. (See People v. Majors (1998)
18 Cal.4th 385, 411–413 [75 Cal.Rptr.2d 684, 956 P.2d 1137]
[the court did not err in failing to conduct a Marsden hearing
before the penalty phase because no motion was before the court
at that time].)” (People v. Clark, supra, 52 Cal.4th at p. 916.)
Similarly here, defendant did not move under Marsden for
substitution of counsel, and the cessation of proceedings was not
warranted.
Defendant argues that the fact that separate counsel was
appointed demonstrates defendant had an actual conflict of
interest with his trial counsel. He claims the appointment of
separate counsel left him without representation as trial counsel
continued to bear responsibility for his case while having his
integrity attacked, defense counsel’s “hands [were] tied in
respects that could not fully be explored on the record,” and
defendant was left to act as his own attorney, submitting
motions he claims Dealy should have prepared. This claim lacks
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merit. Separate counsel’s appointment did not signal an
apparent conflict of interest; indeed, his role was to investigate
whether there was merit to defendant’s contention that a new
trial motion based on ineffective assistance of counsel was
warranted. Defendant’s right to seek new trial on grounds other
than ineffective assistance of counsel was not impaired; the
court took care to explain any new trial issues defendant’s trial
counsel wished to raise could be addressed after the alternate
public defender’s office completed its investigation. And
defendant did not act as his own attorney — indeed, when he
sought to be heard instead of Dealy, the trial court reminded
him that he was represented, and any requests for documents
he made of the court directly should instead be conducted via
counsel.
Finally, defendant claims that the court erred by filing his
handwritten documents because he was represented by counsel,
and his pro se statements were written without benefit of his
attorney, constituting a deprivation of the right to counsel.
Defendant concedes no authority supports his argument, but
urges us to conclude the trial court acted unreasonably by
acceding to his requests to publicly file the documents. There is
no basis to do so. As the Attorney General points out, the trial
court made every effort to maintain the documents under seal.
Before sentencing, defense counsel advised the documents
remain sealed. At defendant’s sentencing hearing, counsel
explained it had advised defendant he would have an
opportunity to address the court and should avail himself of it,
noting he did not wish to interfere with defendant’s ability to
raise issues with counsel’s performance. Eventually, after
defendant began reading one of his filings aloud — rendering it
part of the public record — the court acquiesced to his desire
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that the documents be publicly filed. Defendant fails to explain
how counsel’s representation in this regard was inadequate, nor
how the material was covered by the attorney-client privilege.
Defendant’s claim that the trial court erred by acceding to his
request to publicly file the handwritten documents is
unavailing.
D. Motion for New Trial
Defendant claims the trial court improperly denied his
motion for a new penalty trial or reduction of his sentence to life
without the possibility of parole, alleging the cumulative effect
of several erroneous rulings resulted in his sentence.
Specifically, defendant claims the trial court erred by allowing
the prosecution to introduce numerous photographs of the
victim while alive, autopsy photographs of the victim, testimony
from one of the victim’s friends, rebuttal testimony from
Chamberlain, and altered and sexually graphic images shown
to her and the jury in connection with her testimony. We find
no error.
“ ‘ “ ‘ “We review a trial court’s ruling on a motion for a new
trial under a deferential abuse-of-discretion standard.”
[Citations.] “ ‘A trial court’s ruling on a motion for new trial is
so completely within that court’s discretion that a reviewing
court will not disturb the ruling absent a manifest and
unmistakable abuse of that discretion.’ ” ’ ” ’ ” (People v.
Hoyt (2020) 8 Cal.5th 892, 957.)
The trial court thoughtfully addressed each of defendant’s
claims. As to the photographs of the victim in life introduced
during the penalty phase, the trial court confirmed it would
“stand by the rulings” it had made to limit the number of
photographs that could be introduced but reasoned the victim
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impact evidence was generally “authorized by the U.S. Supreme
Court.” As to the autopsy photos of the victim and her hands,
the court had excluded the “particularly upsetting” images
under Evidence Code section 352 at the guilt phase but
permitted the images’ introduction at the penalty phase as
“circumstances of the crime,” confirming its continued view that
the photos were admissible.
The trial court disagreed with defendant’s argument that
victim impact testimony must be limited to family members,
finding that Gallego’s friend, Stepanof, appropriately testified
about their relationship and about a thank you note the victim
had written to her. Finally, the court confirmed the probative
value of Chamberlain’s testimony and the introduction of
altered, sexually graphic photographs, explaining the evidence
was relevant to demonstrate defendant’s capacity to “maintain
a relatively normal relationship” while engaging in behavior
indicative of his “dark side which resulted in his being here in
this case.”
After addressing each of defendant’s arguments, the court
clarified its role to independently reweigh the evidence in ruling
on a motion to modify the judgment. It did so, explaining its
view on each of “the statutory factors, [section 190.3, factors] (A)
through (K), and outlining what — which of those factors I
believe are important to this decision.” It did so at some length,
concluding that after “weighing all these factors, all of these,
balances [sic] the horror and the calculated character of the
crime against [defendant’s] lack of a prior record and the
undeniable darkness of his childhood. . . . that the weight of the
evidence supports the jury’s verdict.” The court did not
manifestly or unmistakably abuse its discretion in reaching
these conclusions, and we will not upset the ruling on appeal.
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(People v. Hoyt, supra, 8 Cal.5th at p. 957; see People v. Zamudio
(2008) 43 Cal.4th 327, 365 [video montage of images of victim
while alive admissible penalty phase evidence]; People v. Caro,
supra, 7 Cal.5th at p. 502 [no error admitting autopsy photo of
victim]; People v. Pollock, supra, 32 Cal.4th at p. 1181 [no error
admitting victim impact evidence from nonfamily member].)
E. Death Penalty Is Not Arbitrary or Capriciously
Imposed
Defendant argues death was arbitrarily and capriciously
imposed based on the county in which he was capitally charged,
rendering his sentence and confinement unlawful under the
Eighth and Fourteenth Amendments to the federal Constitution
and under the California Constitution. As defendant
acknowledges, we have previously rejected this contention,
explaining that “ ‘[a] prosecutor’s discretion to select those
eligible cases in which the death penalty is sought does not
offend the federal or state Constitution.’ ” (People v. Silveria
and Travis, supra, 10 Cal.5th at p. 327.) “Nor does such
discretion ‘create a constitutionally impermissible risk of
arbitrary outcomes that differ from county to county.’ ” (Ibid.)
Defendant unpersuasively argues that unequal charging
standards among the state’s counties violates Bush v. Gore
(2000) 531 U.S. 98, but in that case the equal protection
challenge was expressly limited to the Florida vote recount
process due to that issue’s complexity. (Id. at p. 109; see also
People v. Clark (2016) 63 Cal.4th 522, 645 [rejecting contention
that Bush v. Gore is violated by prosecutorial discretion to
determine death-eligible cases.)
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F. Constitutionality of Death Penalty Statute
Defendant raises several challenges to California’s death
penalty statutory scheme, which, as he concedes, we have
previously rejected. We decline his request to reconsider those
conclusions, and we do not find persuasive his contention that
the challenges, considered in the aggregate, compel a different
conclusion.
Section 190.2 is not impermissibly broad. We have held
that “California’s death penalty law ‘adequately narrows the
class of murderers subject to the death penalty’ and does not
violate the Eighth Amendment. [Citation.] Section 190.2, which
sets forth the circumstances in which the penalty of death may
be imposed, is not impermissibly broad in violation of the Eighth
Amendment.” (People v. Lopez (2018) 5 Cal.5th 339, 370; see
also People v. McDaniel (2021) 12 Cal.5th 97, 155 (McDaniel).)
Defendant next claims that his constitutional rights were
violated by the arbitrary and capricious nature of section 190.3,
factor (a). We also “have repeatedly rejected the claim that
section 190.3, factor (a), which requires the jury to consider as
evidence in aggravation the circumstances of the capital crime,
arbitrarily and capriciously imposes the death penalty under
the Fifth, Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution.” (People v. Capers (2019) 7 Cal. 5th
989, 1013; see McDaniel, at p. 155.)
Defendant argues the death penalty statutory scheme
violates the Sixth, Eighth, and Fourteenth Amendments to the
federal Constitution because the jury need not find unanimously
or beyond a reasonable doubt that aggravating factors existed
or substantially outweighed mitigating factors. “ ‘[T]his court
has repeatedly rejected arguments that the federal Constitution
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PEOPLE v. PARKER
Opinion of the Court by Groban, J.
requires the penalty phase jury to make unanimous written
findings beyond a reasonable doubt that the aggravating factors
exist, that they outweigh the factors in mitigation, and that
death is the appropriate penalty.’ ” (People v. Steskal, supra,
11 Cal.5th at p. 379; see also McDaniel, supra, 12 Cal.5th at
p. 155.)
“Likewise, we have held that the high court’s decision in
Hurst v. Florida (2016) 577 U.S. 92 . . . does not alter our
conclusion under the federal Constitution or under the Sixth
Amendment about the burden of proof or unanimity regarding
aggravating circumstances, the weighing of aggravating and
mitigating circumstances, or the ultimate penalty
determination. [Citations.] And we have concluded that Hurst
does not cause us to reconsider our holdings that imposition of
the death penalty does not constitute an increased sentence
within the meaning of Apprendi [v. New Jersey (2000)] 530 U.S.
466, or that the imposition of the death penalty does not require
factual findings within the meaning of Ring v. Arizona (2002)
536 U.S. 584 [153 L.Ed. 2d 556, 122 S.Ct. 2428].
[Citation] . . . [N]either Ring nor Hurst decided the standard of
proof that applies to the ultimate weighing consideration.”
(McDaniel, supra, 12 Cal.5th at pp. 155–156.)
California’s death penalty statutory scheme does not
categorically forbid intercase proportionality review, nor is such
review a constitutionally required safeguard. (People v. Linton
(2013) 56 Cal.4th 1146, 1215; People v. Winbush, supra,
2 Cal.5th at p. 490 [“Intercase proportionality review,
comparing defendant’s case to other murder cases to assess
relative culpability, is not required by the due process, equal
protection, fair trial, or cruel and unusual punishment clauses
of the federal Constitution”].)
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PEOPLE v. PARKER
Opinion of the Court by Groban, J.
The jury’s consideration of unadjudicated criminal activity
as a factor in aggravation under section 190.3, factor (b) does not
violate due process or the Fifth, Sixth, Eighth, or Fourteenth
Amendments, or render the death sentence unreliable. (People
v. Spencer (2018) 5 Cal.5th 642, 695.)
The use of adjectives in the list of mitigation factors,
including “extreme” and “substantial,” does not prevent the
jury’s consideration of mitigation in violation of the Fifth, Sixth,
Eighth, or Fourteenth Amendments to the United States
Constitution. (People v. Mora and Rangel, supra, 5 Cal.5th at
p. 519.)
State law does not require jurors to be instructed that
statutory mitigating factors be considered only in mitigation.
(People v. Landry (2016) 2 Cal.5th 52, 123; People v. Duff (2014)
58 Cal.4th 527, 570 [the trial court was not constitutionally
required to instruct the jury that mitigating factors could be
considered only as mitigating factors, and the absence of
evidence supporting any factor should not be viewed as an
aggravating factor].)
California’s capital sentencing scheme does not violate the
equal protection clause of the federal Constitution by providing
significantly fewer procedural protections for person facing a
death sentence than one charged with a noncapital crime.
(People v. Fayed, supra, 9 Cal.5th at p. 214.) Capital defendants
and noncapital defendants “ ‘are not similarly situated,’ ” and it
is therefore “permissible for noncapital defendants to have more
procedural protections than capital defendants.” (People v.
Capers, supra, 7 Cal.5th at p. 1017.)
Finally, defendant contends that California’s “very broad
death scheme” violates both international law and the federal
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Opinion of the Court by Groban, J.
Constitution. We have previously rejected this contention,
concluding, “ ‘[T]he imposition of the death penalty under
California’s law does not violate international law or prevailing
norms of decency.’ ” (People v. Baker (2021) 10 Cal.5th 1044,
1114, quoting People v. Krebs (2019) 8 Cal.5th 265, 351.)
DISPOSITION
We affirm the judgment.
GROBAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
JENKINS, J.
PETROU, J. *
*
Associate Justice of the Court of Appeal, First Appellate
District, Division Three, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
126
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Parker
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal XX
Original Proceeding
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S113962
Date Filed: May 19, 2022
__________________________________________________________
Court: Superior
County: San Diego
Judge: Michael D. Wellington
__________________________________________________________
Counsel:
Kathryn K. Andrews, under appointment by the Supreme Court, for
Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler,
Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney
General, Holly D. Wilkens, Theodore Cropley, Quisteen S. Shum and
Kristen Ramirez, Deputy Attorneys General, for Plaintiff and
Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Kathryn K. Andrews
Attorney at Law
3060 El Cerrito Plaza, PMB 356
El Cerrito, CA 94530
(510) 501-3756
Kristen Ramirez
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9067