People v. Ramirez ( 2022 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JUAN VILLA RAMIREZ,
Defendant and Appellant.
S099844
Kern County Superior Court
SC076259A
August 25, 2022
Justice Corrigan authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Liu, Kruger,
Groban, Jenkins, and Guerrero concurred.
Justice Groban filed a concurring opinion, in which Justice Liu
concurred.
PEOPLE v. RAMIREZ
S099844
Opinion of the Court by Corrigan, J.
Juan Villa Ramirez1 was convicted of a variety of crimes
on three separate occasions. Those sets of convictions were as
follows: 1. Robbery of Leonel Paredes, kidnapping during the
commission of carjacking and for purposes of ransom, during
which Paredes was exposed to a substantial likelihood of death,
and three enhancements for personal firearm use;2 2. Robbery
and kidnapping during the commission of carjacking of Juan
Carlos Ramirez;3 3. Carjacking, kidnapping with intent to
commit robbery, and first degree murder of Chad Yarbrough,
with special circumstances for killing during kidnapping and
carjacking, and three personal firearm use enhancements. 4
1
We adopt defendant’s name as it appears in the trial court
below and in defendant’s briefing before us. We note, however,
that defendant’s name appears as Juan de Dios Ramírez Villa
in litigation before the International Court of Justice. (Case
Concerning Avena and Other Mexican Nationals (Mexico v. U.S.)
2004 Judgment, I.C.J. 12, 25 (Mar. 31) [litigant #20].) We mean
no disrespect by adopting the name used in his briefing.
2
Penal Code sections 212.5, subdivision (c), 209.5, 209,
subdivision (a), and 12022.5, subdivision (a). All statutory
references are to the Penal Code unless otherwise stated.
3
Sections 212.5, subdivision (c) and 209.5. Defendant was
acquitted of a separate count of carjacking. (§ 215, subd. (a).)
4
Sections 215, subdivision (a), 209, subdivision (b)(1), 187,
subdivision (a), 190.2, subdivision (a)(17)(B) and (L), 12022.5,
subdivision (a).
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In addition to these offenses, separate counts charging
methamphetamine possession and possession of a firearm under
the influence of that drug5 were bifurcated. Following the
capital trial a separate jury convicted defendant of the drug
offenses, but acquitted him on the weapons allegation. The jury
returned a verdict of death for the murder and that sentence
was imposed. In addition, the court imposed consecutive
sentences of life without the possibility of parole for the Paredes
kidnapping for ransom; two terms of life with the possibility of
parole for the kidnappings of Ramirez and Yarbrough; and a
total consecutive determinate term of 21 years. Additional
determinate terms and orders were imposed and are not
challenged in this appeal. Sentences on all counts except the
murder were stayed pending appeal.
We affirm the judgment.
I. FACTS
A. Guilt Phase
1. Prosecution Evidence
a. Crimes Against Paredes
Late on October 4, 1997, Paredes parked his car near his
apartment in Lamont and was approached by three men.
Defendant placed a shotgun on his chest, Efrain Garza pointed
a revolver, and the third man held a knife below his ear.
Defendant demanded Paredes’s car keys, saying he would be
hurt if he did not cooperate. Duct tape was placed over his eyes
and mouth, and used to secure his hands and feet. Garza took
5
Health and Safety Code sections 11370.1, subdivision (a),
11550, subdivision (e).
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his keys and wallet.6 Paredes was ordered to lie in the back seat
of his car and was held at knifepoint as the car drove off.
Paredes could tell from the voices around him that defendant
was the driver.
After driving for about 15 minutes, Paredes was moved to
the trunk. After another 10 or 15 minutes, the car was parked
in a garage. Paredes remained locked in the trunk for four to
five hours while the men tried to negotiate a $500 ransom from
Paredes’s cousin and uncle. During that time, the trunk was
occasionally opened. Paredes was hit in the face, held with a
shotgun to his neck, and forced to talk to his uncle on the phone.
At some point, the abductors drove to another location with
Paredes still in the trunk. The abductors left in a second car,
warning Paredes not to call the police or his family would be
harmed. Paredes managed to remove the tape, open the trunk,
call his uncle, and report the incident to police.7 One latent
fingerprint was lifted from the trunk lid of Paredes’s car. It did
not match defendant.
b. Crimes Against Juan Carlos Ramirez
On October 14, 1997, defendant was at Efrain Garza’s
house in Lamont, along with Garza, Hector Valenzuela, Freddy
De La Rosa, Daniel Quintana, and defendant’s cousin, Carlos
Rosales. Juan Carlos8 arrived at the house next door to
6
Garza was initially a codefendant, but his case was
severed from that of the defendant.
7
Evidence concerning Paredes’s identification of defendant
is discussed in further detail post at part II.B.5.
8
Defendant and the victim Ramirez are, apparently, not
related but share the same last name. To avoid confusion, we
refer to the victim by his given name.
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purchase drugs from someone named “Shannon.” Valenzuela
and De La Rosa approached him and Valenzuela demanded a
ride at gunpoint. Valenzuela got into the cab of Juan Carlos’s
truck while De La Rosa got in the back. Juan Carlos drove about
a half mile to a field, where Valenzuela and De La Rosa took
personal belongings, including his watch, necklace, and a charm
with “Juan” engraved on it.
The three men got back in the truck and De La Rosa drove.
Near Shannon’s house, De La Rosa hit a parked car and told
Juan Carlos to drive. The other four individuals who had been
at Garza’s house were walking down the street, and De La Rosa
called out to them to get in the truck. Those men were
defendant, Garza, Quintana, and Rosales.
Valenzuela pointed a pistol at Juan Carlos and told him to
drive to an orchard. Upon arrival Valenzuela then ordered Juan
Carlos out of the truck. Defendant, Valenzuela, De La Rosa, and
Garza got out also. They demanded money, but Juan Carlos
denied having any. When a search of his wallet proved
otherwise, the men beat him. Defendant asked for the gun so
he could kill him. Defendant said he was the devil, and that if
Juan Carlos said anything, defendant would cut off parts of his
body and shove them in his mouth. Defendant took the victim’s
belt and struck him on the back with it. The beating continued,
after which defendant bound the victim with rope. After the
men left in his truck, Juan Carlos untied himself, walked to a
friend’s house, and called the police.
Rosales was called by the prosecution and corroborated
much of the victim’s testimony. He admitted that he and the
others got into the truck at De La Rosa’s invitation. Valenzuela
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had a gun.9 At the orchard, Rosales stayed in the truck with
Quintana, while the others got out. Garza pulled out a pistol-
grip 12-gauge firearm. Valenzuela took some money, a belt, and
jewelry. Valenzuela was angry because Juan Carlos had lied
about having no money. Valenzuela and Garza both hit Juan
Carlos with their guns, and defendant, along with De La Rosa
and Garza, beat him. Juan Carlos was then dragged toward the
orchard and tied up. At the time of trial Rosales’s memory for
detail was unclear. He had testified at the preliminary hearing
that defendant beat Juan Carolos with a belt and later bound
the victim with rope defendant took from the truck.
Quintana also testified for the prosecution. He said that
everyone who got out of the truck at the orchard beat Juan
Carlos. Although Quintana had said in an interview that
defendant was the first to hit the victim, his recollection at trial
was that they all assaulted him at the same time. After the
beating, defendant got a rope from the truck and bound the
victim. Quintana believed that defendant was the oldest of the
six perpetrators, and that he and Garza were the leaders of the
group.
The attackers left Juan Carlos in the orchard then drove
to a park where Valenzuela divided the stolen money. Each man
received about $10. Valenzuela kept the necklace, but gave the
charm with “Juan” engraved on it to defendant.
After dividing up Juan Carlos’s property, the group
stopped at a food truck. Afterward, defendant, along with
Rosales and Quintana, went first to Rosales’s house then on to
9
On cross-examination, Rosales testified that the first time
he saw the gun in Valenzuela’s hand was when Valenzuela got
out of the truck at the orchard.
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Quintana’s, where Garza and Willie Santiago met them.
Defendant had been using methamphetamine all day and began
drinking at Quintana’s.
c. Murder of Chad Yarbrough10
The murder occurred on the same day as the Juan Carlos
crimes. It arose against the backdrop of conflict between groups
who lived in two communities outside Bakersfield: the city of
Arvin and unincorporated Lamont. While defendant and his
associates were at Quintana’s, defendant cleaned a Tec-9
handgun, loaded it, and wrapped it in a shirt.11 About two hours
later, Garza said he saw Chad’s truck. As described more fully
below, there had been animosity between defendant’s family
and Chad. Defendant and Garza went outside and approached
the truck. Rosales testified he heard the sound of a gun cocking
and saw Chad’s younger brother get out of the truck. After
Garza got in on the passenger side and defendant got behind the
wheel, the truck drove off.
In October 1997, Chad and Brent went to Arvin High
School. Chad was a senior and Brent a freshman. Chad would
drive them to and from school in his white truck. On October
14, the brothers went to football practice, and visited Chad’s
girlfriend, Carolina Castro. Brent described what transpired as
Chad drove away from Castro’s home. Two Hispanic men
confronted them in the middle of the road. When they waived
Chad down he stopped and rolled down his window. The men
10
Chad and his younger brother, Brent, share a last name.
To avoid confusion, we will refer to them by their given names.
11
Rosales had seen defendant with the gun before and had
seen Garza shoot it. When he fired it once or twice, the gun
jammed.
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talked like they knew each other, but Brent did not hear what
they said.
Defendant said his name was Loco. The other man pulled
out a gun and ordered both brothers to get out of the truck, but
defendant told Chad to stay put. Chad said, “I’m Cool,” or words
to the effect that everything was okay. The other man told Brent
to sit on the curb. Both men got in the truck with Chad between
them. Defendant was driving. A large man approached and told
Brent to stay on the curb and say nothing. A second man stood
nearby. Brent sat on the curb for 30 to 45 minutes, until the
men left. He then ran to Castro’s house and told her to call the
police because his brother had been kidnapped.
The same evening, the Yarbrough family searched for
Chad. At around 1:30 a.m., his uncle found Chad’s body in a
field. He wore only his underwear. Black electrical tape covered
his eyes and part of his nose; shoelaces bound his hands behind
his back. Autopsy surgeon Donna Brown discovered three fatal
gunshot wounds to the head. Dr. Brown opined that if the
weapon had been fully automatic, the entry wounds would have
been closer together and all on the same side of the head. The
absence of stippling meant the weapon was at least two feet
away when it was fired. Chad’s body had scratches and
irritation on his knees, chest, right arm, and lower leg. One of
his fingers was swollen. The imprint of gravel indicated he had
collapsed to his knees at some point.
Investigators found three spent bullets, three cartridge
casings, and three live rounds at the crime scene. The casings
and the spent bullets had been fired from the same gun, and the
three live rounds had been ejected from that gun as well. Based
on the location of the spent bullets and casings, criminalist
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Gregory Laskowski opined that (1) the shooter was moving
while firing, and (2) the shooting was inconsistent with fire from
a fully automatic weapon.
Evidence about defendant’s activities before and after the
murder was presented. Rosales recounted how defendant and
Garza approached the truck, ordered Brent out, and drove off
with Chad sitting between them. Defendant’s cousin, Isabel
Garcia, initially told police that she saw defendant and Gabriel
Flores in Chad’s truck that night. Her attention was drawn to
the truck because defendant waved and yelled to her from the
passenger seat. She drew investigators a diagram to show
where the encounter happened. At trial, she disavowed her
statement. Thirteen-year-old Joamy Garza was staying at a
house of someone called Chepa, where runaway girls stayed and
young men visited. At trial, she recalled that two people she
knew as Baby and Loco came to the house in a white truck. She
told police that she went cruising with the two men. She
subsequently identified defendant in a photographic lineup, but
would not sign it.
Chad’s truck was found in a Bakersfield garage. It
appeared the stereo had been removed, and the truck bore red
primer paint. Salvador Saldivar, who pleaded guilty to
receiving a stolen truck, testified that he went to Chepa’s house
late on October 14 or early on October 15, 1997, to pick up a
white truck. He drove to a garage where he painted the truck
red. He did not recall talking to young men about the truck, and
did not recall identifying anyone. Deputy Moore testified that
Saldivar admitted to him that he saw a man named Baby with
the truck, and that Baby said the truck was stolen. Baby was
with another man named Loco. Saldivar identified defendant as
Loco when shown a photographic lineup.
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Ten months later on July 19, 1998, Kern County Sheriff’s
Sergeants Rosemary Wahl and Glenn Johnson interviewed
defendant in El Paso, Texas. Defendant claimed no involvement
in the abduction and murder and denied using drugs in October
1997. He admitted he joined a Lamont gang as a young teen,
but left the gang around 1995.
On July 24, 1998, defendant was interviewed again in
Bakersfield. He told Wahl and Johnson that when he was
partying at Quintana’s house, he was not waiting for Chad to
come by. He was planning to leave because he was “already on
the run for jumping bail.” He said he was using
methamphetamine and hashish at Quintana’s. He admitted
stopping Chad and asking if he knew who defendant was. Chad
repeatedly said he did not and finally started to get out of his
truck, but defendant pushed him back in. He and Garza made
Brent get out and defendant drove away. He first stopped near
a gas station where he “slapped the bitch.” Asked why he did
so, defendant said, “I was telling him it wasn’t a game to be
playing around with gangbangers . . . .”
Then they drove to the field and got out of the truck.
Garza told Chad to remove his shoes and bound his hands with
black tape. Planning to leave Chad in the field and take his
truck, they promised him he would not be harmed. They made
him disrobe, to embarrass him and force him to walk home in
that condition.
Defendant had the unloaded gun with him; Garza went to
the truck to get the clip. Defendant’s intent was to scare Chad
because of an incident involving defendant’s cousin, Rosales,
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and because Chad “was banging for Arvin.”12 Chad was sitting
on the ground as defendant inserted the clip. Defendant did not
know there was a round in the chamber, and as he was trying to
put the clip in, he pressed the trigger and discharged the
weapon. Because it was dark, he did not know where Chad had
been hit.
He and Garza drove off, throwing Chad’s clothes out the
window on the way. They gave the truck to “some guys” who
were at “some pad.” They partied there for two or three hours,
hitchhiked to Santa Clarita, and threw the gun away near
Pyramid Lake. They parted ways in Santa Clarita, and
defendant fled to Mexico. He did not learn that Chad had died
until five or six months later.
The officers also asked defendant about the crimes against
Juan Carlos. He said that “they had jumped me like a couple
[of] days before that.” He recounted, “we were at Baby’s
[Garza’s] house” when Juan Carlos parked across the street.
“He was in the pickup saying some shit I guess that’s what the
neighbors told us and then we took the truck from him and took
off and we dumped him out in the fields and left him.”
Deputy Sheriff Robert Contreras, a liaison officer with the
Gang Suppression Unit, identified two local street gangs:
Lamont 13 and Weedpatch 13. The Mexican Mafia uses the
number 13, which stands for the letter M, and is also associated
12
As described below, the defense presented evidence of a
conflict involving Carlos Rosales and an incident during which
brothers Jose and Freddy Gomez, along with Chad, threw
sandbags and other items at Rosales’s house and car. After
defendant said in his interview that Chad was “banging for
Arvin,” he described the incident and referred to the Gomez
brothers as “Arvin [B]oys.”
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Opinion of the Court by Corrigan, J.
with the southern part of California. Lamont 13 has two
subsets: Varrio Chico Lamont (VCL) and Lamont Familia
Sureños (LFS). He testified that defendant, De La Rosa,
Quintana, Garza, Valenzuela, Rosales, and Flores belong to LFS
and that Santiago belonged to VCL. He identified photographs
of defendant’s tattoos, including “LFS,” “13,” “Lamont,” and
“Sur.” He testified that LFS initiated new gang members at
Myrtle Avenue School. Contreras had seen defendant and
others at the school. Garza had apparently just been initiated.
The court instructed the jury this gang evidence was admitted
solely for purposes of identification, motive, or intent.
2. Defense Evidence
Defendant offered an alibi for the evening Paredes was
kidnapped. In October 1997, Ashley Medina was dating
defendant’s cousin, Rosales. Medina testified that on October 4,
1997, the evening of the Paredes kidnapping, she had been at
the Kern County Fair, arriving home around 8:30 p.m. Around
9:00 p.m., Rosales and defendant came over. They talked and
watched movies, then defendant fell asleep. Medina and
Rosales retired about 2:00 a.m.; Rosales and defendant left her
house between 12:30 p.m. and 1:00 p.m. the next day. To
Medina’s knowledge, defendant did not leave the house before
that time. Rosales also testified that defendant spent the night
at Medina’s.
Defendant challenged Paredes’s identification of his
assailants. Efrain Garza’s brother, Jesus, testified about a
conversation with Paredes’s cousin, Rosalio. Rosalio related
that Paredes said he was unsure of Garza’s identification.
Dr. Scott Fraser, an eyewitness identification expert,
testified about factors that can affect identification accuracy. He
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explained that if there was a light source behind an approaching
assailant, as occurred in the kidnapping of Paredes, the
accuracy of the victim’s identification could be reduced. The
greater the number of individuals involved, the less accurate the
recognition of a single person. The presence of a weapon reduces
accuracy because it distracts the witness and causes stress.
As to Chad’s murder, the defense presented evidence of an
incident in September 1997. Chad and brothers Jose and
Freddy Gomez were friends. One day, as Jose was driving down
a road in Lamont, a car in which Carlos Rosales was riding
pulled up. Jose was told to pull over. When he did so the other
car blocked him in. Gabriel Flores (Gooney) ran up and swung
a knife at Jose. Around midnight that night, Chad drove Jose
and Freddy to Carlos Rosales’s house in Lamont. Chad and Jose
each picked up a sandbag and threw it at a car in the driveway.
Rosales’s mother, Maria Villa, came outside and Jose asked in a
respectful voice whether Rosales was there. Told he was not,
Jose asked her to tell Rosales that Jose had stopped by. Jose
denied doing or saying anything else before leaving, but his
brother Freddy testified that Jose told Ms. Villa to inform
Rosales that he was “going to kick his ass.”
Maria Villa is Rosales’s mother and defendant’s aunt. She
awoke to the noise of the men hitting her car with sandbags.
She did not know any of them, but subsequently learned Chad’s
name from television reports. One of them said Rosales had
fought with him and cut his arm. Chad said he was looking for
Rosales and was told he was not at home. Chad shouted for
Rosales to come outside. He tried to push Villa, but she stepped
back. During these events, Villa’s nieces, ages 11 and 12, and
her infant grandson, were in the house, and the girls were
frightened. Villa wrote down part of the license plate, which
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included “CYA.” Chad’s truck had a personalized license plate:
CYARBRO.
Defendant was in jail at the time of the Rosales incident,
but was released a week or two before Chad was killed. Maria
Villa’s son, Alejandro Saenz, told him about the incident,
including the attempt to shove Ms. Villa. Saenz also told
defendant about the license plate and asked him to find out who
had come to the house that night. Saenz further testified, “All
of us were raised together”; defendant “got really upset” when
he was told about the incident. Before October 14, defendant
told Saenz he knew whose truck had come to Villa’s house, and
defendant “said that it was taken care of.”
Defendant testified. He denied any part of the Paredes
kidnapping, admitted he assaulted Juan Carlos, and admitted
he shot Chad but did so by accident.
Defendant lived in Lamont until 1995, and attended Arvin
High School for about a year and a half. While there, Arvinas
gang members would jump him, making him fear for his safety.
In late 1994, someone shot at his house while his mother was
there, and someone threw a Molotov cocktail at the home. He
thought the Arvin Boys were responsible.13
After leaving Lamont, defendant lived in Phoenix for two
years with his fiancée and their two children. He attended a
design school and junior college. In May or June 1997, his
fiancée left him and he lost his job as a forklift operator. In
13
Quintana, who was 16 years old in 1997, lived in Lamont
and was bused to Arvin High School. He and others who were
bused to Arvin had trouble there just because they were from
Lamont.
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addition, tumors on his tongue and neck caused severe
headaches, unrelieved by over-the-counter medications.14
In June 1997, defendant purchased a Tec-9 firearm
altered to be fully automatic. After a three- or four-round burst,
the gun would jam, and a shell would have to be ejected. When
he returned to Lamont in August 1997, he left the gun in
Arizona. Sometime later, an ex-roommate brought the gun to
Visalia.
Defendant was arrested in August 1997 for possession of
methamphetamine and spent 30 days in jail. After his release
on bail, his cousin, Alex Saenz, told him that people in a white
truck had gone to his aunt’s house creating the disturbance
described above. Defendant told Saenz something had to be
done about the attack and retrieved the Tec-9 gun.
Defendant was experiencing pain from his tumors and was
depressed because he had lost his fiancée, home, children, and
job. He took drugs and was high most of the time, staying awake
for two or three days using methamphetamine. He came to
believe that Chad and the Gomez brothers attacked his aunt’s
house. He testified that the three ran around with the Arvin
Boys. Based on his experience, he thought if nothing was done
about their attack, his aunt might be harmed.
Defendant denied abducting Leonel Paredes. On October
4, he went with his cousin, Carlos Rosales, to the home of Ashley
Medina, arriving between 8:30 and 9:00 p.m., and staying there
until 1:00 or 2:00 p.m. on October 5.
14
As described below, defendant had vascular tumors on his
tongue and neck.
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As to the attack on Juan Carlos, defendant testified he was
at Garza’s house with Garza, Rosales, Quintana, De La Rosa,
and Valenzuela. Over the preceding two days he had been
consuming methamphetamine, phencyclidine (PCP), and
alcohol. That morning he consumed marijuana,
methamphetamine, and two 40-ounce bottles of Cobra malt
liquor. A truck drove up to Shannon Brown’s house next door.
Valenzuela and De La Rosa got in the truck, which drove away.
Fifteen or 20 minutes later, the truck returned and hit a car in
front of the neighbor’s house. De La Rosa told Juan Carlos to
settle the damage by telling Shannon to keep the money he owed
Juan Carlos for drugs. Then they told defendant, Quintana,
Rosales, and Garza to get in the back of the truck. Defendant
did not know where they were going or that Valenzuela and De
La Rosa had abducted Juan Carlos. He thought he was
“[g]etting a ride somewhere.”
In the truck, defendant told De La Rosa that Rosales
wanted to be dropped off. De La Rosa told him they were going
to take care of “something” and did not respond when asked
what the something was. They stopped on a canal bank and
defendant tried to find out what they were doing. De La Rosa
said that Juan Carlos had beaten up his sister. Angered by this
revelation, defendant hit Juan Carlos two or three times. He
and Valenzuela bound Juan Carlos, but did nothing else to him.
After they drove back to town, Valenzuela gave him $20 and a
medallion with “Juan” etched on it, and told him to give $10 to
Rosales.
Defendant went to Quintana’s house later in the afternoon
and ingested alcohol and narcotics. He had his Tec-9 with him.
People in the house played with the gun, inserting and ejecting
the clip. At some point, someone said: “There’s that guy.” He
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did not know what they meant, but walked outside and saw a
truck drive by. He and Garza, who had the Tec-9, approached
the truck. Defendant spoke to Chad who said he did not know
defendant. Chad opened the door and defendant got into the
driver’s seat. At Garza’s direction, Brent got out of the truck
and Garza entered it. Defendant wanted to scare and embarrass
Chad, get him to admit what he had done, and protect his aunt.
He did not intend to hurt Chad. Defendant was drunk and high,
slurring his words, and unable to think straight.
While they drove around, Garza told Chad to take his
clothes off. Defendant had heard that the Gomez brothers were
Arvin Boys, and told Chad he should not be hanging around with
gangbangers. Chad admitted trying to run down Rosales, but
denied being part of the incident at his aunt’s house. His
demeanor upset defendant, who said they would not hurt Chad
and would leave his truck where he could find it.
Defendant was still drunk and high, and had difficulty
thinking. At some point they stopped in a field. Garza secured
Chad’s hands, while defendant paced, trying to decide what to
do. He tried to scare Chad with the gun but Chad would not
admit the confrontation with his aunt. Defendant asked Garza
to get the clip from the truck.
Still intending to frighten Chad, he began to load the clip
into the weapon. In the process the gun fired. He was not
aiming the gun, and did not know there was a round in the
chamber. Chad fell to the ground and did not move. Defendant
was confused, unsure what to do, and did not think there was
anything he could do for Chad. He drove the truck to
Bakersfield and walked to his aunt’s house, as Garza left in the
truck. Defendant denied driving around with Joamy Garza. He
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stayed at his aunt’s house until morning, sitting by a window
and smoking “dope.” He was panicked and hallucinating, seeing
officers everywhere. He and Garza hitchhiked to Los Angeles,
and defendant threw the gun away en route.
Pathologist Barry Silverman opined that Chad’s wounds
were inflicted instantaneously by automatic gunfire.
Considering where the spent casings and spent bullets were
found, Dr. Silverman concluded that Chad’s head could not have
been on the ground when he was hit.
Criminalist Ronald Helson, testified that a Tec-9 may be
modified to be fully automatic. He thought Chad’s wounds were
consistent with automatic weapons fire. The shooter would have
to have been an expert marksman to have fired single shots
causing equidistant head wounds. A semi-automatic weapon
modified to be automatic no longer functions as designed. The
magazine spring may not have sufficient tension to load rounds
in the chamber as quickly as rounds are fired, which could cause
the gun to jam.
Dr. Stephen Estner diagnosed defendant with multiple
hemangiomas, or “vascular tumors that grow from and feed into
arteries and veins in certain parts of the body.” Defendant had
a tumor on his tongue and a mass in his right neck. Dr. Estner
expressed concern that jugular vein pressure would cause
deoxygenated blood to back up in the right brain, causing pain
and affecting brain function. In addition, tumors in his throat
pressed on both the internal jugular vein and carotid artery.
Dr. David Bearman testified that defendant’s
hemangioma caused pain and decreased blood flow to the brain.
Dr. Bearman also opined that defendant suffered from
depression; sleep deprivation; polysubstance abuse; and acute
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Opinion of the Court by Corrigan, J.
stress disorder along with posttraumatic stress. The combined
impact of drug use and sleep deprivation would affect judgment,
coordination, and perception.
Clinical psychologist Francisco Gomez met with defendant
three times over seven hours. He also interviewed defendant’s
mother and older brother, and reviewed school records along
with other documents. Based on cognitive and intelligence tests,
he diagnosed defendant with low level chronic depression and
polysubstance abuse, which he employed to cope with his
depression. Defendant experienced multiple stressors from
June to November 1997, including a drug arrest, and the loss of
his fiancée, job, and apartment. These factors exacerbated his
depression, increasing his drug use. The drugs compromised his
decision making.
Professor Jose Lopez testified about criminal street gangs.
He identified Arvina gang graffiti five blocks from defendant’s
mother’s house, which was in Lamont gang territory. Conflict
between the Arvin and Lamont communities dated back to 1958,
when a high school was established in Arvin and students from
Lamont were bused there. There were active gang members in
Arvin and Lamont in 1997, but Dr. Lopez opined that defendant
was not among them. He based his conclusion on the fact that
LFS was defunct as of 1994 or 1995, and defendant, who was 21
years old in 1997, was associating with 15-year-olds. Lopez
concluded that Chad’s killing was not gang related. In his view,
machismo culture would put pressure on a man to avenge an
attack in the middle of the night by a rival group.
3. Prosecution Rebuttal
Neuroradiologist Matthew Lotysch described the highly
redundant system of arteries and veins that carry blood to and
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PEOPLE v. RAMIREZ
Opinion of the Court by Corrigan, J.
from the brain. He disagreed with Dr. Estner’s opinions that
the hemangiomas would affect vessels in defendant’s neck and
impede blood drainage from the brain. He also testified that
defendant’s hemangiomas did not in any way compromise his
ability to breathe. He saw no physical evidence in this case or
in his experience that such masses impair blood supply to the
brain when a person’s blood pressure is elevated due to stress or
drug use. The withdrawal phase from methamphetamine is
itself accompanied by chronic headaches. He agreed, however,
hemangiomas could put pressure on nerves, causing discomfort.
Criminalist Gregory Laskowski reviewed Dr. Silverman’s
testimony and concluded that Silverman lacked knowledge of
ballistics. He testified that the pattern in which the bullet
casings dispersed suggested the shooter moved while firing. He
asserted that Mr. Helson’s testimony did not consider where the
bullet slugs were found, and without that information, no valid
opinion could be given as to whether the shots were fired by an
automatic or semiautomatic weapon.
Sergeant Rosemary Wahl interviewed Maria Villa on
October 30, 1997. Wahl asked whether the men who came to
her house had threatened her or tried to harm her. Villa
responded that they did not.
B. Penalty Phase
1. Prosecution Evidence
Defendant was arrested on August 22, 1997, in a
Bakersfield apartment. He was found in a bedroom with
methamphetamine and a loaded handgun nearby. He admitted
the drugs and weapon were his.
Evidence was also presented about the murder of Javier
Ibarra in March 1995. Alma Mosqueda testified she was at
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Opinion of the Court by Corrigan, J.
home with Ibarra and Christina Ramirez. Defendant’s brother,
Cipriano Ramirez, called her to ask if he could come over and
“take care of business.” Because Cipriano and Ibarra had fought
about Christina in the past, Mosqueda suspected something bad
was going to happen. Five or ten minutes later, as Mosqueda
was walking the couple through the parking lot, Cipriano,
Gabriel Flores, and defendant arrived and blocked Ibarra’s car.
At Cipriano’s direction the women went back inside. Mosqueda
looked back and saw Ibarra spread his hands out like he was
calling somebody out to fight. She could not see the parking lot
from her apartment, but heard four or five shots, a pause, and
then one final shot. She ran out to find Ibarra face down on the
grass with a fatal gunshot wound in the back of his head. The
car in which the three men arrived was leaving.
Testimony varied as to defendant’s attire the night Ibarra
was killed. Jesse Ibarra, the victim’s brother, testified that
when he visited Mosqueda the next morning, she said defendant
had been wearing a white hat.15 Mosqueda testified, however,
that she did not remember that conversation. She also testified
that Gabriel Flores was wearing a white hat when the three men
confronted Ibarra. About two days after the killing Sheriff’s
Deputy Daniel Fuqua arrested defendant wearing a white
baseball cap. Gerardo Soto, defendant’s uncle, testified that the
evening Ibarra was killed, defendant was wearing a cap but it
was not white. He told Deputy Contreras the night of the
shooting that defendant was wearing a dark Pendleton shirt and
a blue baseball cap.
15
As noted below, the defense presented evidence that the
shooter was wearing a white cap.
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Opinion of the Court by Corrigan, J.
Chad’s girlfriend, brother and mother gave victim impact
testimony. Almost daily Chad and Castro discussed their hopes
for the future. Chad wanted to play college football, then become
a physical education teacher and coach. The couple had planned
to marry and picked names for their future children.
Brent did not return to school for many weeks after the
murder and his grades dropped. He had trouble sleeping and
still experienced nightmares. He went nowhere alone for fear
that something would happen to him. He blamed himself, in
part, for his brother’s death, feeling he should have done
something to prevent it.
Chad’s mother, Cheryl Yarbrough, had three children:
Melissa, Chad, and Brent. The family had been quite close,
doing everything together. After Chad died, the family seldom
dined together and gave up family trips. Melissa moved from
the house and everyone kept to themselves. They all attended
counseling. Ms. Yarbrough described her son as caring,
compassionate, and fun-loving. He loved to joke with his
mother.
2. Defense Evidence
Defendant also presented evidence about the Ibarra
killing. Ysela Nunez saw the crime from her second-story
window. A car drove up and three men approached a group of
two “girls” and a man. The girls walked away, and the men
fought briefly. Two of the attackers jumped back, and the third
man shot the man who had been with the girls. The shooter
wore a white hat; black pants; and a Pendleton shirt, checkered
in black, white, and grey. The second man wore coveralls, and
the third man wore blue jeans and a blue shirt. Nunez did not
recognize defendant in court.
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Opinion of the Court by Corrigan, J.
Defendant’s mother and grandmother described his
childhood. He was born in Guadalupe, Chihuahua, Mexico,
where his parents worked in the fields. The family was very
poor, and sometimes went without food. His father was an
alcoholic who was violent toward his wife and children. After
the parents separated, Angelita moved with her five children to
Bakersfield. Defendant was about one year old at that time,
sickly and thin. They lived in a three-bedroom house with about
15 to 20 others. They moved to Lamont after an uncle was killed
in the house. Defendant’s mother worked in the fields eight to
nine hours a day, six days a week, for 11 years to support her
children. Lorenzo, the oldest son, was rough with the younger
children and would beat them. When defendant was a child, he
had a tumor on his tongue that grew larger over time. When
defendant was nine years old, he worked cleaning yards and
delivering newspapers, giving his earnings to his mother.
In high school, students called defendant “stupid from
Lamont.” His mother intervened but school staff were not
helpful. Items, including a Molotov cocktail, were occasionally
thrown through their windows. Defendant began using drugs
at about age 14.
Other relatives testified about the scarcity of food and the
older brother’s abuse. His uncle would sometimes hit defendant
in the head, then say how tough he was. Relatives testified the
defendant loved his two daughters and wrote letters to them.
The parties stipulated that if Chad’s girlfriend were called
as a witness, she would testify that she and Chad once drove by
Carlos Rosales’s home. Chad said he and the Gomez brothers
had once gone to the house where Chad and “Luis” dented
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Opinion of the Court by Corrigan, J.
Carlos’s car. 16 She saw the car but did not see any damage.
Chad told her they tried unsuccessfully to break a window with
a rock.
Dr. Stephen Estner returned in the penalty phase and
testified that defendant’s hemangiomas pressed on more nerves
in the neck than Dr. Lotysch recognized. In addition to cranial
nerves described by Dr. Lotysch, the vagus nerve travels from
the brain to the gastrointestinal system and also branches off to
the heart, controlling its rate and rhythm. Pressure in the area
could affect the respiratory system and mental function. The
pressure would vary with the size of the mass. While he
generally agreed with Dr. Lotysch’s testimony, he thought
headaches, lightheadedness, and facial swelling were caused by
obstruction of some vascular structures. Methamphetamine
use, along with fear and anger, could cause enlargement of the
mass by raising defendant’s blood pressure. The enlargement
also causes difficulty speaking, and when a person has difficulty
speaking, he might take action rather than use words. Other
physiological effects can also occur due to the obstruction of
blood flowing in and out of the brain.
Dr. Francisco Gomez, Jr., who previously testified that
defendant suffered from chronic depression, testified about risk
factors for depression in an impoverished Hispanic community.
These include physical abuse and “severe neglect, poverty, low
socioeconomic status, [and] culturative stress.” Clinical
depression affects “social functioning — how you see the world,
how you act, how you behave, how you perceive things.”
Exposure to violence is a high-risk factor for depression. Very
16
Jose Gomez’s middle name was Luis.
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PEOPLE v. RAMIREZ
Opinion of the Court by Corrigan, J.
young children can be affected by these environmental factors.
Stimulants like methamphetamine provide some relief from
depressed feelings.
Dr. Jose Lopez also returned to testify about gang culture.
When parents are absent, children may be “subjected to street
socialization,” which functions like a “surrogate parent.” In the
Latino family, there is emphasis on the male image. Older
siblings do not have the authority of a parent, and may use
violence to discipline younger children. Respect is very
important in Latino and gang culture. No value attaches to
walking away from a fight. If a female relative is treated
discourteously, a manly reaction involving aggression is
required.
The parties stipulated that the defendant received no drug
or gang counseling when out of custody and had not joined a
prison gang following his arrest.
C. Bifurcated Trial on Counts 10 and 11
A new jury was empaneled to hear evidence on count 10,
unlawful possession of methamphetamine while armed with a
loaded gun (Health & Saf. Code, § 11370.1, subd. (a)); and count
11, possession of a loaded gun while under the influence of that
drug (Health & Saf. Code, § 11550, subd. (e)). The testimony
was substantially similar to that introduced at the penalty
phase, recounting defendant’s arrest in an apartment with
methamphetamine and a loaded handgun. When arrested,
defendant admitted both items were his. He showed signs of
drug use which was confirmed by urine test.
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Opinion of the Court by Corrigan, J.
II. DISCUSSION
A. Pretrial Issues
1. Motion To Disqualify the Prosecutor’s Office
Defendant moved to disqualify the Kern County District
Attorney’s Office on two grounds: (1) prosecutors had adopted
inconsistent theories about who was the shooter in the Javier
Ibarra murder; and (2) Chad’s aunt, Diana Yarbrough, was a
supervising clerk for the Kern County Municipal Court, with a
close relationship to the District Attorney’s Office. The motion
was denied and defendant urges the ruling was an abuse of
discretion. No error appears.
Under section 1424, subdivision (a)(1), a motion to
disqualify the district attorney “may not be granted unless the
evidence shows that a conflict of interest exists that would
render it unlikely that the defendant would receive a fair trial.”
This court has interpreted that standard to mean “ ‘the
circumstances of a case evidence a reasonable possibility that
the DA’s office may not exercise its discretionary function in an
evenhanded manner,’ ” making it unlikely the defendant will
receive fair treatment “ ‘during all portions of the criminal
proceedings.’ ” (People v. Eubanks (1996) 14 Cal.4th 580, 592
(Eubanks), quoting People v. Conner (1983) 34 Cal.3d 141, 148
(Conner).) Defendant bears the burden of demonstrating a
conflict of that nature. (Haraguchi v. Superior Court (2008) 43
Cal.4th 706, 709.) We review the superior court’s factual
findings for substantial evidence, then determine whether those
facts demonstrate the court abused its discretion in denying the
motion. (Id. at pp. 711–712.) An erroneous denial is state law
error reviewed for prejudice under the Watson standard. (People
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Opinion of the Court by Corrigan, J.
v. Watson (1956) 46 Cal.2d 818, 836 (Watson); People v. Vasquez
(2006) 39 Cal.4th 47, 66–70 (Vasquez).)
Defendant’s motion was litigated based on declarations
and exhibits. Transcripts showed that, in the separate trials of
Gabriel Flores and Cipriano Ramirez, the Kern County District
Attorney’s Office argued Flores personally shot Ibarra and that
Cipriano was an aider and abettor.
Each man was convicted of murder. Significantly, Flores’s
jury rejected an allegation that he personally used a firearm.
In support of the motion to disqualify, defense counsel
declared his belief that, in the penalty phase, the prosecutor
would argue defendant shot Ibarra, relying on testimony of
Cipriano Ramirez to that effect, which the prosecutor in the
Cipriano trial had disavowed as false. Defendant argued that
these circumstances demonstrated a conflict of interests because
the prosecutor in this case (1) was motivated by personal and
emotional bias against defendant; (2) was representing
conflicting interests; and (3) had adopted a strategy that would
require the defense to call several members of the district
attorney’s office as witnesses to rebut the allegation that
defendant was the shooter.
As for the victim’s aunt, Diana Yarbrough, defense counsel
declared that she “is a supervising clerk in the [Kern County]
Municipal Court” with an office in the same building as the
district attorney’s. Counsel alleged “upon information and
belief” that the close working relationship between the two
offices “has compromised the impartiality of the Office of the
District Attorney in this matter.”
In opposition, the People stated their intent, during the
penalty phase, to present evidence of defendant’s involvement
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PEOPLE v. RAMIREZ
Opinion of the Court by Corrigan, J.
in the Ibarra murder for which his brother Cipriano, and friend,
Gabriel Flores, had both been convicted. The People
acknowledged that defendant’s “degree of actual involvement
differs depending on which witnesses statements (including his
own brother) one chooses to believe. He clearly has culpability
as a co-principal in that crime by all accounts. [¶] The People
intend to present all of the evidence of defendant’s involvement,
and let the jury decide what to believe as to his degree of
culpability.” The People relied upon People v. Watts (1999) 76
Cal.App.4th 1250 to urge that they could permissibly “argue
inconsistent and even mutually exclusive theories in separate
trials of co-defendants so long as the evidence was subject to
different interpretations or had changed.” They argued that the
former prosecutors were not appropriate witnesses because
“their subjective personal theories of their respective cases are
irrelevant and inadmissible.” They represented that, in the
event a conflict arose from presenting inconsistent theories, “we
won’t put on Cipriano’s testimony [from his own trial]. We will
just go with the theory on aiding and abetting, which certainly
is not inconsistent with either of the theories of those prior
prosecutions.”
As to Diana Yarbrough, the People declared that she “has
never worked for the District Attorney’s Office. She has no
closer relationship to the District Attorney’s Office than any
other court employee. [¶] Her office is not within the District
Attorneys’ Office nor even on the same floor of the building. As
a ‘supervising’ clerk she does not even have daily contact with
deputy district attorneys in the courtroom. [¶] Her only
interaction on this case has been as a member of the victim’s
family and not as a court employee.”
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PEOPLE v. RAMIREZ
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The trial court did not abuse its discretion in finding that
the defense failed to carry its burden.
Defendant’s allegation of inconsistent theories did not
establish a conflict of interests sufficient to warrant recusal of
the district attorney’s office. The prosecutor relied on legal
authority to urge that he could argue defendant shot Ibarra so
long as the evidence was subject to different interpretations.
The argument did not demonstrate a lack of integrity or
impartiality warranting recusal. The remedy for the
prosecutor’s misapprehension, if any, was to restrict the People
to arguing, as they had in previous trials, that defendant was an
aider and abettor, making him equally guilty. We discuss in
detail below defendant’s separate claim that the prosecutor
deprived him of a fair penalty phase verdict by presenting
inconsistent theories of guilt in separate trials. (Pt. II.C.1.,
post.) Here, it suffices to note that the prosecutor did not
ultimately introduce Cipriano’s prior testimony identifying
defendant as the shooter. Defense counsel conceded below that
the prosecutor’s agreement not to present such evidence would
alleviate the alleged conflict. This record fails to establish that
the prosecutor acted in such an uneven manner as to make it
unlikely that defendant would receive a fair trial. (Eubanks,
supra, 14 Cal.4th at p. 592.)
The court’s ruling as to Diana Yarbrough was, likewise,
well within its discretion. A personal relationship between the
victim or a defendant and the district attorney’s office may
require disqualification, particularly where there is evidence
that the relationship has influenced the prosecutor’s
discretionary decisions. (See, e.g. Vasquez, supra, 39 Cal.4th at
pp. 52, 57; Conner, supra, 34 Cal.3d at pp. 148–149.) Here,
however, Ms. Yarbrough did not work for the district attorney’s
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Opinion of the Court by Corrigan, J.
office, did not share space with that office, and did not have daily
contact with deputy district attorneys in the courtroom. The
fact that the victim’s aunt was a county court employee, without
more, did not warrant the “serious step” of recusing the entire
district attorney’s office. (People v. Hamilton (1989) 48 Cal.3d
1142, 1156.)
2. Change of Venue
Defendant contends that conducting his trial in Kern
County violated his statutory right to a change of venue (§ 1033,
subd. (a)) and his constitutional right to a fair trial by an
impartial jury under the Sixth and Fourteenth Amendments to
the United States Constitution. He argues that pervasive media
coverage of the crimes, false rumors, and the victim’s popularity
in the community raised a reasonable likelihood that 12
impartial jurors could not be impaneled. He fails to persuade.
a. Governing Principles
On a defendant’s motion, the court must order a change of
venue when a reasonable likelihood appears “that a fair and
impartial trial cannot be had in the county.” (§ 1033, subd. (a);
see People v. Famalaro (2011) 52 Cal.4th 1, 21.) This
requirement was adopted in response to a series of Supreme
Court cases in the 1960’s recognizing that media publicity about
a criminal trial could, in some circumstances, deprive the
defendant of due process. (People v. Peterson (2020) 10 Cal.5th
409, 438 (Peterson).) Courts must weigh five factors in
evaluating this claim: “the nature and gravity of the offense,
the nature and extent of the news coverage, the size of the
community, the status of the defendant in the community, and
the popularity and prominence of the victim.” (People v. Harris
(1981) 28 Cal.3d 935, 948; accord, Peterson, at p. 439.)
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Opinion of the Court by Corrigan, J.
On appeal, a defendant “must show both error and
prejudice, that is, that it was not reasonably likely the defendant
could receive a fair trial at the time of the motion, and that it is
reasonably likely he did not in fact receive a fair trial.” (People
v. Rountree (2013) 56 Cal.4th 823, 837 (Rountree).) “[I]n rare
and ‘exceptional cases,’ a defendant may show circumstances so
‘ “extraordinary” ’ that a court may assume no fair trial could be
had.” (Peterson, supra, 10 Cal.5th at p. 439, quoting People v.
Prince (2007) 40 Cal.4th 1179, 1216 (Prince).) The United States
Supreme Court has occasionally found such a showing adequate
in cases where media coverage “manifestly tainted a criminal
prosecution” and resulted in “ ‘kangaroo court proceedings.’ ”
(Skilling v. United States (2010) 561 U.S. 358, 379 (Skilling).)
But the high court has made clear that the assumption “attends
only the extreme case.” (Id. at p. 381.)
“[W]e accept the trial court’s factual findings where
supported by substantial evidence, but we review independently
the court’s ultimate determination whether it was reasonably
likely the defendant could receive a fair trial in the county.”
(Rountree, supra, 56 Cal.4th at p. 837.)
b. Proceedings Below
Defendant moved for a change of venue in May 2000, two
and a half years after the crimes occurred. Materials provided
in support included transcripts of television broadcasts and
excerpts from newspaper coverage. In addition, Dr. Edward
Bronson, a professor of political science at California State
University, Chico, testified about the media coverage and a
survey conducted in January 2000 to assess coverage impact.
Defendant and Garza were originally charged together, but the
cases were ultimately severed. Dr. Bronson’s analysis included
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PEOPLE v. RAMIREZ
Opinion of the Court by Corrigan, J.
potential jurors’ views of both defendants. He did not always
disaggregate the information as to views about each defendant
when calculating his statistics. Based on his research, training,
and experience, Dr. Bronson opined there was a reasonable
likelihood that the jury panel would be affected by pretrial
publicity and that no remedy other than a change of venue
would be adequate.
Dr. Bronson testified that 225 articles were published
about the case in the Bakersfield Californian, the Lamont
Reporter, and the Arvin Tiller. Of those articles, 133 were from
1997, 72 from 1998, 19 from 1999 and one from 2000. There
were 97 articles on the front page of the paper; 30 more were on
the front page of an interior section. Coverage included 24
letters to the editor and three editorials. Dr. Bronson
characterized this level of media coverage as “very high.”
Dr. Bronson described several kinds of prejudice.
Inflammatory publicity is of the greatest concern, followed by
inadmissible or inaccurate reporting, and coverage reflecting a
presumption of guilt. He noted approximately 20 references to
an execution-style slaying, emphasizing the brutality of
shooting a kneeling victim in the head. References to torture
were later discounted. Other details included Chad’s fear, being
forced to disrobe, having tape over his eyes, and being on his
knees. Defendant reportedly admitted intending to humiliate
the victim in retaliation for an act of disrespect against a
relative. The media also made numerous references to
carjackings and gang activities. Dr. Bronson could not
determine whether the reporting was inadmissible or
inaccurate. As to a presumption of guilt, reports noted that
defendant had confessed and fled to Mexico, and that
codefendant Garza, whose case had not yet been severed, had
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Opinion of the Court by Corrigan, J.
refused to take a lie detector test. Reports related that
defendant said the gun discharged accidentally and that he did
not intend to kill the victim. But these statements would be
followed by an observation that Chad was shot three times.
Bronson considered a change of venue was warranted
because of the gravity of the crime and the pursuit of a death
penalty. Letter writers expressed the view that even more
extreme penalties should be imposed. One writer opined that
defendant’s arms should be cut off so he could never pull a
trigger again. Dr. Bronson found no mitigating content in the
media he reviewed.
Some coverage described defendant and Garza as
Hispanic. Some stories discussed a theory that Chad was killed
because he was dating a Hispanic classmate. Others addressed
contentions that the case received greater resources because the
victim was White. Most of the stories, however, did not include
a racial slant. Other negative details included references to
gangs, defendant’s criminal history, and his being armed and
dangerous. Bronson listed as a positive factor that defendant
and Garza were not described as outsiders to the community.
As to victim status, Chad was the high school football
captain. His jersey number appeared in thousands of places,
including the football fields at Arvin and Bakersfield High
Schools, armbands, cheerleaders’ uniforms, and plaques. There
was a shrine and multiple memorials, including one attended by
4,200 people. A candlelight vigil was conducted on his 18th
birthday. He was honored at his high school’s homecoming and
numerous fundraisers were held to raise money for scholarships
in his name. Many contributed to a reward fund that grew to
$15,000.
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Dr. Bronson testified that Kern County was the 14th most
populous of California’s 58 counties, with a population of
648,400. News coverage reflected that Chad’s death shocked,
saddened, and galvanized people throughout the county. Dr.
Bronson opined that the response was similar to that common
in a small community.
Dr. Bronson also discussed electronic media, although he
gave it less emphasis because it is harder to track and tends to
have a lesser impact than print media. He observed generally
that “there was a massive amount of coverage. There were far
more broadcasts than there were news articles; that the
material largely tracked what was in the newspapers; that . . .
the coverage was — as with the newspapers, . . . heavier in the
earlier period and then dwindled later on.”
A survey of Kern County residents conducted in January
2000, about a year before jury selection began, revealed the
following: approximately 82 percent of the 403 jury-eligible
respondents recognized the case; 53.6 percent of eligible
participants thought the two defendants were definitely or
probably guilty; 52.9 percent favored the death penalty after
conviction; 41.9 percent had heard the defendants were gang
members; 14.9 percent had heard that a defendant had
confessed to the murder; 61.2 percent did not know whether it
was defendant or Garza who had confessed; 52.3 percent had
heard that Chad was tortured; 32.8 percent had heard that both
defendants had criminal records that included carjacking and
murder charges. Finally, focusing on the details of gang
membership, torture, confession, and criminal record, almost 75
percent had heard one or more of those facts, 44 percent knew
two or more, 21.6 percent knew three or more, and 5 percent
knew all four. Of those who were aware of all four specifics, 100
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Opinion of the Court by Corrigan, J.
percent thought the defendants were guilty and 81 percent
thought they deserved the death penalty. Lesser degrees of
awareness gave rise to less belief in guilt and favor for the death
penalty, but the numbers remained high.17 The survey did not
ask if participants could put aside their knowledge of the case
and beliefs about guilt and punishment to decide the case solely
on the evidence introduced in court.
The court denied the motion. It found that defendant had
not met his burden to show a reasonable likelihood that an
impartial jury could not be empaneled. In particular, it
expressed concern that Dr. Bronson’s survey did not reflect
whether those surveyed had fixed opinions that could not be set
aside. The court added that the motion could be renewed,
presumably at the end of jury selection. Defendant’s petition for
writ of mandate was denied by the Fifth District Court of
Appeal.
Four hundred and fifty jury panelists were called; 199
were dismissed for hardship and 166 were excused for cause,
leaving 85 panelists from which to select the jurors and
alternates.18
17
Of those who recognized three specifics, 83.6 percent
thought they were guilty and 71 percent thought they deserved
the death penalty. Of those who recognized two specifics, 74.7
percent thought they were guilty and 56 percent thought they
deserved the death penalty. Of those who recognized one
specific, 64.8 percent thought they were guilty and 45 percent
thought they deserved the death penalty.
18
In some of our own jury selection cases, and those of the
United States Supreme Court, the terminology used can
potentially cause confusion. Those called to a courtroom for jury
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Opinion of the Court by Corrigan, J.
Defendant renewed his motion for a change of venue on
January 5, 2001, at the completion of the for-cause excusals.
The renewed motion was based on publicity since the previous
motion and on an analysis of the juror questionnaires. Dr.
Bronson was recalled. He identified 19 new articles since the
last change of venue motion. They contained references to the
victim having been bound and killed “execution style” with three
shots to the head. The articles stated that defendant was the
decisionmaker and fired the fatal shots. They mentioned
defendant’s inculpatory and exculpatory statements. There was
discussion of defendant’s gang involvement and his flight to
Mexico. The articles also reported that defendant faced charges
for two other carjackings.
Some articles mentioned that football players touched
Chad’s memorial plaque before taking the field; a Sheriff’s
bicycle patrol had been established from a memorial fund; and
a quote from one citizen that “Chad will never be forgotten.”
Jury questionnaires revealed that 79 percent of panelists
recognized the case, and 11 percent knew the victim or his
family; 16 percent had attended the victim’s funeral or a
memorial, or knew someone who had done so; only 2 percent
knew the defendant or his family; 18 percent said they could not
be fair and impartial if street gangs were involved in the case;
14 percent believed they could not be fair due to the nature of
selection are prospective jurors, or members of a jury panel.
However, some jury panel members are occasionally referred to
as “jurors,” once they are called forward for voir dire, even if they
are never sworn in as trial jurors. To avoid confusion we refer
to prospective jurors as panelists and use the term “juror” only
to describe someone actually sworn to serve in that capacity.
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Opinion of the Court by Corrigan, J.
the charges; 19 percent had formed an opinion on guilt that they
could not set aside.
Dr. Bronson reviewed the voir dire of the first 75 of the 251
panelists who remained after hardship excusals. He considered
the sample representative. He did not know the age, race or
residence of those questioned. Nor did he focus attention
specifically on the 85 panelists who remained after challenges
for cause. Dr. Bronson opined that panelists are not always
completely forthcoming about bias in voir dire, although he
acknowledged that this was less of a concern during individual,
or Hovey¸ voir dire,19 that was used in this case. In his view the
court’s questioning was not always thorough enough. He cited
examples of leading questions asking whether a panelist would
“do your duty” and “follow the law” that suggested the panelists
should respond favorably. In addition, 31 of the 75 panelists
were not asked about their familiarity with the case. Of the
remaining 44 people who were asked, 41 (93 percent) were
aware of some facts; 15 percent of the group were excused based
on their representations that they could not be fair and
impartial.
Dr. Bronson acknowledged that of the 85 panelists
remaining after challenges for cause, approximately one quarter
had heard nothing about the case. He also agreed that all of the
39 panelists who stated that they could not be fair because of
pretrial publicity were excused for cause. Nonetheless, he
continued to maintain that the selection process did not remedy
19
In a Hovey voir dire (Hovey v. Superior Court (1980) 28
Cal.3d 1) each prospective juror is questioned outside the
presence of any others.
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PEOPLE v. RAMIREZ
Opinion of the Court by Corrigan, J.
the effect of pretrial publicity, and that defendant could not
receive a fair trial in Kern County.
The trial court again denied the motion. Relying on its
firsthand observation of the panelists and their demeanor, the
court concluded that defendant had failed to demonstrate a
reasonable likelihood that the panelists had such fixed opinions
that a fair and impartial trial could not be conducted.
During jury selection defendant used all of his peremptory
challenges allotted to the selection of the panel and alternates.
His request for additional peremptory challenges was denied
and he expressed dissatisfaction with the jury empaneled to try
the case.
c. Pretrial Motions
Defendant has failed to demonstrate error in the denial of
his motions to change venue.
As to the nature of the offense, “ ‘every capital case
presents a serious charge. This factor adds weight to a motion
for change of venue, but is not dispositive.’ ” (People v. Smith
(2015) 61 Cal.4th 18, 40.) This case was not particularly
aggravated in comparison to other capital murders; it did not
involve multiple murders or violent sex acts, for example. That
the victim was bound and shot in the head at close range are
gruesome facts, but do not approach the sensational nature of
other cases in which we have upheld the denial of venue
motions. (See, e.g., Smith, at pp. 23–24, 40 [defendant and
accomplices hit victim multiple times with blunt objects, forced
the victim to cut her own wrist with a razor, forced her to hold
her wrists over a fire pit, poured whiskey on her wounds,
wrapped a garbage bag around her head, and then bludgeoned
her to death with a metal bar]; People v. Zambrano (2007) 41
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PEOPLE v. RAMIREZ
Opinion of the Court by Corrigan, J.
Cal.4th 1082, 1096–1097, 1125 (Zambrano) [defendant shot the
victim then decapitated and dismembered the body with an ax
and saw].)
Defendant places great emphasis on the pretrial publicity
factor. There were 244 articles in the three local papers over a
five-year period. Articles reported that the victim was bound
and killed execution style, and that defendant admitted the
shooting but claimed it was accidental. The newspapers
mentioned carjacking and gang activities. But media coverage
“ ‘is not biased or inflammatory simply because it recounts the
inherently disturbing circumstances of the case.’ ” (People v.
Suff (2014) 58 Cal.4th 1013, 1048.) The use of descriptions like
“ ‘execution-style murders,’ ‘ “brutal,” “cold-blooded,” “evil,”
“horrible,” or “horrific” ’ [are] not by themselves necessarily
prejudicial when they appear[] in generally factual and
noninflammatory reporting.” (People v. Scully (2021) 11 Cal.5th
542, 570 (Scully).) The coverage here was similar to that in
Scully where we upheld the denial of a change of venue motion.
There newspapers discussed a “ ‘cold-blooded’ ” or “ ‘execution-
style’ ” murder and described the defendant as “a parolee,
violent felon, career criminal, or reputed member of the Aryan
Brotherhood.” (Id. at p. 569.) Nonetheless, those articles also
referred to the defendant as “ ‘suspected’ ” or “ ‘accused’ ” of
“ ‘allegedly’ ” shooting the victim, and were “generally factual,
fair, and not inflammatory.” (Ibid.) Similarly, the reporting in
this case was “essentially factual, not sensationalized”
(Zambrano, supra, 41 Cal.4th at p. 1126), and presented
defendant’s assertion that the shooting was accidental.
Moreover, the impact of pretrial publicity may be
mitigated as time elapses between coverage and jury selection.
(People v. Proctor (1992) 4 Cal.4th 499, 525 (Proctor); see, e.g.,
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Opinion of the Court by Corrigan, J.
Scully, supra, 11 Cal.5th at pp. 568, 570–571 [publicity largely
abated two weeks after the killing]; People v. Jennings (1991) 53
Cal.3d 334, 361 [publicity 11 months before trial]; People v.
Anderson (1987) 43 Cal.3d 1104, 1130 [lapse of five months];
People v. Welch (1972) 8 Cal.3d 106, 113–114 [news reports
ending about a month before trial].) Here, 205 articles were
published between 1997 and 1998, over two years before
defendant’s trial. Only 19 articles were published in 1999, with
20 articles published in 2000 and 2001. The press coverage here
had abated in the months preceding jury selection, and the trial
was held in Bakersfield, a larger community approximately 20
miles away from Arvin, where the victim lived. (See Proctor, at
p. 525.) These circumstances greatly mitigated the effect of
pretrial publicity.
Defendant relies on the results of the 2000 survey of Kern
County residents to argue that recollection of the case remained
high despite the passage of time. Approximately 82 percent (329
of 403) of jury-eligible respondents recognized the case; 53.6
percent thought the two defendants were definitely or probably
guilty; 41.9 percent had heard the defendants were gang
members; 14.9 percent had heard that a defendant had admitted
the killing; and 32.8 percent had heard that both defendants had
prior criminal records that included carjacking and murder
charges. But the fact that many jurors recall a case does not
equate to the type of extreme press coverage that manifestly
taints a criminal prosecution. The degree of exposure was
comparable to that in Proctor, where 80 percent of those
surveyed had heard of the case and 31 percent had formed an
opinion as to the defendant’s guilt. There, based on the passage
of time and the location of the trial in a larger community, we
held that a change of venue due to pretrial publicity was not
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PEOPLE v. RAMIREZ
Opinion of the Court by Corrigan, J.
strongly indicated. (Proctor, supra, 4 Cal.4th at pp. 524−526,
and cases cited; accord Scully, supra, 11 Cal.5th at pp. 570–571,
and cases cited.) “Almost inevitably even those qualified for
potential service by a court may have had some prior exposure
to the case, but ‘[p]rominence does not necessarily produce
prejudice, and juror impartiality, we have reiterated, does not
require ignorance.’ ” (Peterson, supra, 10 Cal.5th at p. 441,
quoting Skilling, supra, 561 U.S. at p. 381.) The answer is to
“rigorously vet potential jurors to screen out those tainted and
irrevocably biased by pretrial publicity, to find 12, plus
alternates, who can decide only on the evidence admitted at
trial.” (Peterson, at p. 441.)
As for community size, at the time of defendant’s trial
Kern County was the 14th largest in California, with a
population of 648,400. The trial was held in Bakersfield, the
county seat and the largest city in the county. (California State
Association of Counties, Kern County
[as of
Aug. 22, 2022]; Statistical Atlas, Population of Kern County,
California [as of Aug. 25, 2022]. All Internet citations
in this opinion are archived by year, docket number and case
number at .) In a
populous urban area, a major crime is less likely to remain
imbedded in the public consciousness. (People v. Coleman (1989)
48 Cal.3d 112, 134; People v. Balderas (1985) 41 Cal.3d 144, 178
(Balderas).) We have upheld the denial of motions for change of
venue in Kern County and other, smaller counties. (See, e.g.,
Scully, supra, 11 Cal.5th at p. 574 [Sonoma County, population
approximately 421,500]; People v. Vieira (2005) 35 Cal.4th 264,
280–283 [Stanislaus County, population approximately
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PEOPLE v. RAMIREZ
Opinion of the Court by Corrigan, J.
370,000]; People v. Weaver (2001) 26 Cal.4th 876, 905 [Kern
County].) The size of this community militates against a venue
change.
As to defendant’s community status, he was not an
outsider. Although born in Mexico, he moved to Kern County as
an infant and lived there most of his life. According to Bronson,
several articles described defendant as Hispanic without any
contextual relevance, which he deemed to be “unprofessional.”
However, he did not note any overtly inflammatory terms
designed to spark ethnic prejudice. (See Prince, supra, 40
Cal.4th at p. 1214.) Defendant emphasizes that media reports
portrayed him as a gang member. But evidence of that
involvement would be part of the trial evidence, including
defendant’s own admissions to law enforcement. Any prejudice
stemming from defendant’s status as a gang member would be
a potential factor wherever the case was tried. (Scully, supra,
11 Cal.5th at p. 575; Prince, at p. 1214.) Chad’s death did spark
local action. Law enforcement announced plans to crack down
on gang activity. A “Call to Action” meeting and various
fundraisers were held to combat gang violence, and a reward
was offered for information leading to the arrest and conviction
of the suspect at large. A few letters to the editor described the
suspects as “evil,” and “self-centered gang members.” But we
cannot say that these circumstances reflected “ ‘ “unusual local
hostility . . . such that a change of venue would likely produce a
less biased panel.” ’ ” (Scully, at p. 575, original italics, quoting
People v. Panah (2005) 35 Cal.4th 395, 449 (Panah); see also
Balderas, supra, 41 Cal.3d at p. 179.)
As for the victim’s prominence, Chad was well-known and
well-liked in his hometown, particularly among his peers.
Memorial attendance and the ongoing local tributes were
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Opinion of the Court by Corrigan, J.
significant. But he did not appear to have particular
prominence outside of this small town and the local football
community. Certainly jurors from anywhere might sympathize
with the fact that a popular and successful young man met an
untimely death. In Proctor, we did not find a change of venue
indicated where the victim was a well-known and well-liked
member of the small community who worked in the school
system for 20 years and had “ ‘taught everyone’s kids.’ ”
(Proctor, supra, 4 Cal.4th at p. 526.) And in People v. Rices
(2017) 4 Cal.5th 49, we upheld the denial of a change of venue
where the victims “were members of the close-knit Chaldean
community” and “that community, understandably, grieved
heavily over its loss,” but the community “constituted only a
small portion of the large overall population in the East County
district” from which the jurors were chosen. (Id. at pp. 72–73.)
The above factors do not weigh strongly in favor of a
change of venue for a trial that was conducted in a larger city
with jurors drawn countywide.
Most significantly, a review of the voir dire demonstrates
no reasonable likelihood that defendant did not, in fact, receive
a fair trial from the jurors actually seated. The profile of 10 of
the 12 seated jurors is discussed in greater detail below in
connection with defendant’s challenge to the court’s ruling on
challenges for cause. (See pt. II.A.4., post.) In brief, 11 of the 12
had been exposed to some pretrial publicity. However, that fact,
standing alone, “does not necessarily require a change of venue.
[Citation.] ‘ “It is sufficient if the juror can lay aside his [or her]
impression or opinion and render a verdict based on the
evidence presented in court.” ’ ” (Panah, supra, 35 Cal.4th at p.
448.) In Prince, we affirmed the denial of a venue change even
though “a high percentage of the [panelists] and 12 of the 13
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Opinion of the Court by Corrigan, J.
jurors who actually served at trial . . . had been exposed to the
publicity . . . .” (Prince, supra, 40 Cal.4th at p. 1215.) We noted
the responses to the questionnaires and voir dire “did not
disclose any prejudgment or emotional bias” and “displayed only
a vague recollection of past news coverage.” (Ibid.) The
panelists asserted that “the publicity would not prevent them
from serving as unbiased jurors.” (Ibid.)
Likewise, here most of the jurors had heard only the basic
facts that would be presented at trial, and many remembered
very little due to the passage of time. (See pt. II.A.4., post.)20
And all of the seated jurors stated that their exposure to pretrial
publicity would not affect their ability to be fair and impartial.
While a “juror’s assurances that he [or she] is equal to this task
cannot be dispositive of the accused’s rights” (Murphy v. Florida
(1975) 421 U.S. 794, 800), defendant here “offers no sound basis
to believe the jurors’ assurances in this case were insincere”
(Peterson, supra, 10 Cal.5th at p. 442).
As discussed below, the court and the parties carefully
vetted the seated jurors and the court made specific findings
based on the jurors’ answers and demeanor. We have repeatedly
declined to find prejudice under similar circumstances. (See
Scully, supra, 11 Cal.5th at pp. 573–574; Proctor, supra, 4
Cal.4th at p. 527, and cases cited.) “When pretrial publicity is
at issue, ‘primary reliance on the judgment of the trial court
makes [especially] good sense’ because the judge ‘sits in the
locale where the publicity is said to have had its effect’ and may
base her evaluation on her ‘own perception of the depth and
20
Seated Juror No. 7’s purported emotional reaction to the
fact that Brent stood in for his late brother as homecoming king
is discussed in further detail below. (Pt. II.A.4.f., post.)
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Opinion of the Court by Corrigan, J.
extent of news stories that might influence a juror’
[Citation.] . . . [¶] Reviewing courts are properly resistant to
second-guessing the trial judge’s estimation of a [panelist’s]
impartiality, for that judge’s appraisal is ordinarily influenced
by a host of factors impossible to capture fully in the record —
among them, the [panelist’s] inflection, sincerity, demeanor,
candor, body language, and apprehension of duty. [Citation.] In
contrast to the cold transcript received by the appellate court,
the in-the-moment voir dire affords the trial court a more
intimate and immediate basis for assessing a venire member’s
fitness for jury service.” (Skilling, supra, 561 U.S. at pp. 386–
387.) That the jury acquitted on one count of carjacking is
another indication that the jurors were not unduly swayed by
emotion, and considered each allegation separately. (See id. at
pp. 394–396; People v. Harris (2013) 57 Cal.4th 804, 831.) The
record demonstrates that defendant was tried by 12 impartial
jurors.
We further reject defendant’s claim that the pretrial
publicity in this case was so pervasive and damaging that
prejudice must be presumed rather than shown. (See generally
Mu’Min v. Virginia (1991) 500 U.S. 415, 429; People v. Avila
(2014) 59 Cal.4th 496, 509–513 (Avila); Prince, supra, 40 Cal.4th
at pp. 1216–1218.) Such a presumption “attends only the
extreme case.” (Skilling, supra, 561 U.S. at p. 381 [pervasive
publicity from the Enron scandal did not require that prejudice
be presumed].) The examples cited in Skilling are illustrative:
Rideau v. Louisiana (1963) 373 U.S. 723 involved a
murder trial in a small community. Three times shortly before
trial, a local television station broadcasted a video of the
defendant “in jail, flanked by the sheriff and two state troopers,
admitting in detail the commission of the robbery, kidnapping,
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Opinion of the Court by Corrigan, J.
and murder, in response to leading questions by the sheriff.”
(Id. at p. 725.) Over a third of the community had watched at
least one of the televised confessions, as had three of the actual
jurors. (Id. at pp. 724–725.) In finding a presumption of
prejudice, the court observed that the trial amounted to
“kangaroo court proceedings” in which “the people of Calcasieu
Parish saw and heard, not once but three times, a ‘trial’ of
Rideau in a jail, presided over by a sheriff, where there was no
lawyer to advise Rideau of his right to stand mute.” (Id. at pp.
726–727.)
The Skilling court also discussed Estes v. Texas (1965) 381
U.S. 532, which it described as follows: “extensive publicity
before trial swelled into excessive exposure during preliminary
court proceedings as reporters and television crews overran the
courtroom and ‘bombard[ed] . . . the community with the sights
and sounds of’ the pretrial hearing. The media’s overzealous
reporting efforts . . . ‘led to considerable disruption’ and denied
the ‘judicial serenity and calm to which [Billie Sol Estes] was
entitled.’ ” (Skilling, supra, 561 U.S. at pp. 379−380.)
Finally, the Skilling court looked to Sheppard v. Maxwell
(1966) 384 U.S. 333. There the defendant “was accused of
bludgeoning his pregnant wife to death. ‘[B]edlam reigned at
the courthouse during the trial and newsmen took over
practically the entire courtroom,’ thrusting jurors ‘into the role
of celebrities.’ [Citation.] Pretrial media coverage, which [the
court] characterized as ‘months [of] virulent publicity about
Sheppard and the murder,’ did not alone deny due process . . . .
[Citation.] But Sheppard’s case involved more than heated
reporting pretrial: [The court] upset the murder conviction
because a ‘carnival atmosphere’ pervaded the trial [citation].”
(Skilling, supra, 561 U.S. at p. 380.)
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Opinion of the Court by Corrigan, J.
This was not such an “extreme case.” (Skilling, supra, 561
U.S. at p. 381.) There was no media circus surrounding the trial
and no broadcast of a videotaped confession. Although the press
reported that defendant had admitted shooting Chad, it also
reported his exculpatory statement that the gun discharged
accidentally. Of course, these same facts were admitted at trial.
The volume of pretrial publicity alone did not give rise to a
presumption of prejudice. “ ‘[P]retrial publicity — even
pervasive, adverse publicity — does not inevitably lead to an
unfair trial.’ ” (Id. at p. 384.) This is particularly true given the
passage of three years between the crime and the beginning of
trial. (See Avila, supra, 59 Cal.4th at p. 510.) The high court
has “rightly set a high bar for allegations of juror prejudice due
to pretrial publicity. [Citations.] News coverage of civil and
criminal trials of public interest conveys to society at large how
our justice system operates. And it is a premise of that system
that jurors will set aside their preconceptions when they enter
the courtroom and decide cases based on the evidence
presented.” (Skilling, at p. 399, fn. 34.) Here there was a three-
year gap between the crimes and trial, and the facts are
substantially different from the cases to which the defense
points. No presumption of prejudice is warranted on these facts.
d. Renewed Motions
Defendant claims the trial court erred in denying several
motions for a change of venue prompted by developments during
jury selection and the trial itself. He fails to persuade.
i. Panelist M.D.
On January 17, 2001, during the selection of alternates,
Panelist M.D. reported that she had just learned her brother
worked with the victim’s sister. M.D.’s brother had commented
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PEOPLE v. RAMIREZ
Opinion of the Court by Corrigan, J.
that he had to rearrange the sister’s schedule so that she could
attend the trial. M.D. told her brother that she could not talk
about the case. She was not acquainted with Chad’s sister or
even aware of her name. She stated that this brief conversation
with her brother would not affect her ability to be fair and
impartial. Defendant challenged the panelist for cause, moved
for a mistrial, and renewed the motion for change of venue. He
argued that it was “absolutely unfair and prejudicial . . . to be
put through . . . this type of a jury pool, with jurors that we know
have close connections with this family, are one person away
from this family, going to affect them for the rest of their lives.”
Defendant objected that “[w]e have to waste a peremptory on
people like this, when, if we were in the situation where we had
a jury that could be fair and impartial, and didn’t prejudge guilt,
we can — there would be totally different considerations, in
exercising challenges.” The court found, based on the panelist’s
answers and demeanor, that she could perform her duties, and
denied defendant’s motions.
The voir dire of M.D. does not bear out defendant’s
argument that the panel was “saturated” with people closely
associated with the Yarbrough family. M.D. did not personally
know the victim or his sister. The panelist’s brother worked at
the same chain store as Chad’s sister, but the record did not
establish a close relationship. The panelist conscientiously
avoided any discussion of the case with her brother and the trial
court found that she could be fair and impartial.
ii. Circus Atmosphere
On January 31, 2001, defendant objected that the
presence of family members in the courtroom was creating a
“circus atmosphere.” He described that 20 to 25 members of the
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Opinion of the Court by Corrigan, J.
Yarbrough family had broken into “loud and raucous laughter”
when Brad testified about his underpants. Several members of
the jury followed suit. He also commented that, twice that day
during breaks in the trial, the family members were “gathered
outside the courtroom . . . visiting in loud voices and seemingly
very happy about the progress of affairs, with jurors sitting a
few feet away . . . .” Defendant suggested there had been
favoritism shown towards the victim’s family, citing as examples
a sign on the courtroom door saying, “Yarbrough case,” and a
uniformed bailiff having commiserated with the Yarbrough
family in the hallway. The bailiff was questioned and said that
he had asked the family how they were holding up during the
trial. The interaction lasted about five minutes. The trial court
denied defendant’s motion for mistrial. It observed: “I don’t find
there’s been a circus atmosphere. I deny that there’s been any
inappropriate behavior by the jurors or people in the audience
section. [¶] I don’t agree with that characterization . . . that
people were laughing in a loud and raucous manner. Certainly,
I could hear laughter. But I don’t feel it was inappropriate.” The
court admonished the bailiff not to speak with the family
members.
This record does not bear out defendant’s assertion that a
circus atmosphere permeated the case. Family members have a
right to attend a public trial and may well have done so
regardless of the venue. The family’s audible laughter over a
discrete aspect of testimony did not undermine courtroom
decorum. The court specifically found that the laughter was not
disruptive and saw no need to admonish the audience at the
time. The bailiff’s interaction with the family in the hallway
was an isolated incident for which he was admonished. A sign
identifying the trial by the victim’s last name, rather than
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Opinion of the Court by Corrigan, J.
defendant’s, is somewhat unusual. But as the prosecutor
observed below, this was likely done for practical reasons to
assist witnesses and court-watchers, rather than as an overt act
of favoritism. These circumstances are a far cry from Sheppard
v. Maxwell, supra, 384 U.S. 333, where “bedlam reigned at the
courthouse during the trial and newsmen took over practically
the entire courtroom,” causing “frequent confusion and
disruption” (id. at p. 355) and thrusting jurors “into the role of
celebrities” (id. at p. 353).
iii. Juror No. 11
On February 5, 2001, Juror No. 11 had lunch with her
father. He asked her if she was getting bored with the case.
When she said no, he replied, “[W]hat’s taking them so long?
They know he did it.” She responded that she could not discuss
the case. After the juror reported the incident, defendant moved
for a mistrial and renewed his change of venue motion. The
court questioned Juror No. 11 and several other jurors who were
also aware of the incident. The court declined to dismiss Juror
No. 11, grant a mistrial, or revisit its venue ruling.
Defendant contends that Juror No. 11 was “subject to
improper influence by her father who expressed a forceful
opinion, in public, about the guilt of the defendant,” and
“appeared hostile” to defense counsel when questioned about the
incident. These arguments are more properly addressed to
defendant’s claim of juror misconduct. That claim, and a fuller
discussion of the relevant record, appears post at part II.B.1.
Here, it is enough to note that this isolated incident between the
juror and her father does not evidence a pervasive and damaging
bias held by the seated jurors that would warrant a change of
venue.
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Opinion of the Court by Corrigan, J.
iv. Diana Yarbrough
On February 9, 2001, defense counsel reported that the
previous day he had encountered the victim’s aunt, Diana
Yarbrough, when appearing before a different judge, in another
courtroom, in connection with defendant’s funding requests.
Ms. Yarbrough, a supervising clerk in the municipal court, had
regularly attended defendant’s trial. Defense counsel argued it
was “inappropriate” for Ms. Yarbrough to be supervising the
clerk in a department that handled matters related to this case
and moved for a change of venue, a mistrial, and dismissal. Ms.
Yarbrough testified about the incident. She generally
supervised the clerk in the other courtroom, but had made
arrangements for another supervisor to oversee issues arising
from defendant’s proceedings there. She entered that
department during a recess and spoke for about one minute with
the clerk about an unrelated juvenile matter. She heard nothing
about defendant’s case and reviewed no records related to it.
The trial court denied defendant’s motions. The court noted that
Ms. Yarbrough did not supervise the clerk assigned to the trial
courtroom, and found no evidence that she had seen or discussed
any information regarding the case.
Ms. Yarbrough’s status as an employee of the Kern County
Superior Court did not warrant a change of venue. She was
effectively walled off from defendant’s trial and had no
confidential information about it. Her brief presence on an
unrelated juvenile case in a different department did not
undermine confidence in the fairness of these proceedings.
3. Correctional Officers in Jury Pool
Defendant contends the denial of his motion to dismiss all
correctional officers from the jury pool violated his right to an
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Opinion of the Court by Corrigan, J.
impartial jury. He argues that “[I]t was clear from the
testimony of the numerous correctional officers called as
prospective jurors that the local correctional facilities were
centers of interest and concern about this case; that it was a
major topic of discussion during the process of jury selection;
and that many correctional officers held opinions or expressed
notions that were premature, unfounded, and false.” The claim
fails.
Panelist S.L. was a correctional officer and gang
investigator for the Department of Corrections and
Rehabilitation. Defendant challenged him for cause arguing
that he had special knowledge about gangs and had heard a
rumor at work that the victim’s penis was severed and placed in
his mouth. Counsel argued: “This is a CDC officer. He’s not
one of the defendant’s peers. There’s a potential here that he
will substitute his expertise for the evidence in this case. He
indicated that. [¶] The problem with this case and having this
case in Kern County keeps resurfacing, because the burden
keeps shifting to the defendant to disprove rumors. We don’t
know all the rumors that these people have heard. [¶] This
[juror] heard some of the more horrendous rumors, which now
we are going to have to disprove and possibly show autopsy
pictures we have agreed to stipulate to keep out, and now I have
to show the fact this victim’s genitals are intact. [¶] The juror
himself is in an adversarial position with gangs automatically
because of his job. He would be in an adversarial position to
potential defense witnesses and to this defendant if he was a
juror.”
The court denied the challenge for cause against
correctional officers as a group and against panelist S.L. in
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particular.21 As for the blanket challenge, the court observed
that “the Legislature, in their wisdom, had not excluded
correctional officers from the prospective jury pool. It’s the
legislative intent that correctional officers be allowed to be on
criminal juries.” Defendant renewed his blanket challenge
during the subsequent voir dire of another correctional officer,
Panelist S.W. The renewed motion was denied.
Defendant argues that, under the unique facts of this case,
all correctional officers in the jury pool were unfit to serve
because the case was “a chief subject of concern and speculation
in the numerous correctional institutions of Kern County, and
. . . falsities, presumptions of guilt, and poisonous rumors were
part of daily talk in public areas of these institutions.” The court
acted within its discretion. We addressed a similar claim in
People v. Ledesma (2006) 39 Cal.4th 641 (Ledesma).) There, the
defendant argued that the panelist’s “employment as a
corrections officer in the county jail system where defendant was
housed constituted ‘implied bias’ — a presumption of bias that
could not be overcome by a finding that he could be fair and
impartial.” (Id. at pp. 669–670.) We noted that, under
California law, “a juror may be excused for ‘implied bias’ only for
one of the reasons listed in Code of Civil Procedure section 229,
‘and for no other.’ ” (Id. at p. 670.)22 If the facts do not establish
21
The court’s ruling with respect to the attributes of this
particular panelist is discussed post at part II.A.5.a.iv.
22
Code of Civil Procedure section 229 provides for dismissal
of a panelist or seated juror because of: (1) consanguinity or
affinity to a party, witness or victim; (2) certain family,
confidential, or business relationships; (3) participation in
another action or trial involving the same parties or cause of
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one of the grounds for implied bias listed in that statute, a
panelist may be excused for “[a]ctual bias” if the court finds that
the panelist harbors a state of mind that would prevent
impartiality. (Code Civ. Proc. § 225, subd. (b)(1)(C); Ledesma,
at p. 670.) We rejected Ledesma’s claim, concluding: “None of
the statutory grounds for a finding of implied bias is present in
this case, and the trial court concluded that [the panelist] was
not actually biased.” (Ledesma, at p. 670.) The same is true
here.
Defendant’s assertion about panelists’ exposure to case
information among correctional officers was explored on a case-
by-case basis. Three of the panelists defendant identifies: S.L.,
S.W., and M.T., did not serve on the jury. Those people could
not possibly have affected the fairness of defendant’s trial.
(People v. Black (2014) 58 Cal.4th 912, 921 (Black); People v.
Yeoman (2013) 31 Cal.4th 93, 114 (Yeoman).)
The challenges against Seated Juror Nos. 6, 8, and 12 are
discussed in further detail below. As to the venue claim, we note
that these jurors had some general knowledge about the case
from the news media. None of the information they recounted
was inaccurate, and none was acquired from their employment
in the prison system. This voir dire record disproves defendant’s
expansive claim that “falsities, presumptions of guilt, and
action or being a party to the action pending before the court; (4)
an interest in the outcome of the action; (5) an unqualified
opinion on the merits of the action founded on knowledge of its
material facts; (6) a state of mind evincing enmity against, or
bias towards, either party; or (7) in a capital case, a
conscientious opinion that would preclude the juror from finding
the defendant guilty. Correctional officers, as a class, do not
automatically fall under any of these categories.
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poisonous rumors” about the case were so prevalent in the
correctional institutions of Kern County that anyone who
worked there was automatically disqualified from service. The
defense presented no independent proof on this broad assertion.
The trial court properly denied defendant’s blanket challenge.
4. Biased Jury
Defendant contends the trial court repeatedly and
erroneously denied for cause challenges, resulting in a biased
jury. Of the 48 panelists he identifies, 26 were removed by
defense peremptory challenges. After the defense exhausted its
peremptories, 10 panelists whom defendant unsuccessfully
challenged sat on the jury and two others were seated as
alternates.23
As a preliminary matter, the People argue that the claim
is forfeited. To preserve a claim of error in the denial of a
challenge for cause, the defendant must exhaust his peremptory
challenges, declare his dissatisfaction with the jury as finally
constituted, and request additional challenges. (Black, supra,
58 Cal.4th at p. 918.)
Defendant did not forfeit the claim as to the seated jurors.
He exhausted his allotted peremptory challenges and requested
more. The court denied his request and deemed his objection to
be continuing. Defendant did not immediately express his
dissatisfaction with the jury as sworn. However, shortly
thereafter, he moved for a mistrial on the ground that his
23
The relevant jurors are Jurors Nos. 1, 2, 3, 4, 6, 7, 8, 10,
11, 12 and Alternate Jurors Nos. 1 and 5. Original Juror No. 12
was excused during trial and replaced by Alternate Juror No. 3.
References to Juror No. 12 are to this seated alternate.
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challenges for cause had been improperly denied, resulting in a
biased jury. The motion was considered and denied. Although
this timing was not ideal, the mistrial motion was specific and
timely enough to allow the trial court to take corrective action.
At the time of the motion the court was engaged in the selection
of alternates and the jury pool had not been discharged.
Accordingly, defendant sufficiently preserved the claim of error.
(See People v. Peoples (2016) 62 Cal.4th 718, 801 (Peoples).)
Defendant failed, however, to preserve his objection with
respect to the alternate jurors. While defendant exhausted his
allotted peremptory challenges and requested more, he did not
express dissatisfaction with the ultimate composition of the
alternate group. His challenge to the alternates is therefore
forfeited. (People v. Mills (2010) 48 Cal.4th 158, 186–187
(Mills).)
In any event, defendant’s challenge fails on the merits.
Under both state and federal Constitutions, a criminal
defendant is guaranteed the right to be tried by an impartial
jury. (Cal. Const., art. I, § 16; U.S. Const., 6th & 14th Amends.)
To prevail on a claim that the court erroneously denied a
challenge for cause, “defendant must demonstrate that the
court’s rulings affected his right to a fair and impartial jury.”
(Yeoman, supra, 31 Cal.4th at p. 114.)
Defendant cannot make that showing as to the panelists
he dismissed peremptorily because none of those panelists sat
on his jury. (Black, supra, 58 Cal.4th at p. 921; Yeoman, supra,31 Cal.4th at p. 114.) The same is true of Alternate Jurors Nos.
1 and 5 who were sworn but never called to serve. (Mills, supra,48 Cal.4th at p. 186.) Because there was no possible prejudice,
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we need not consider the correctness of the trial court’s ruling
respecting those jurors. (Yeoman, at p. 114.)
We find no error in the court’s denial of defendant’s
challenges for cause as to jurors who ultimately adjudicated his
case. “A party may challenge a prospective juror for actual bias,
defined as a state of mind that would prevent that person from
acting impartially and without prejudice to the substantial
rights of any party.” (People v. Hillhouse (2002) 27 Cal.4th 469,
488.) “The trial court is in the best position to determine the
[juror’s] true state of mind because it has observed firsthand
[that person’s] demeanor and verbal responses. [Citations.]
Thus, ‘ “ ‘[o]n review of a trial court’s ruling, if the [juror’s]
statements are equivocal or conflicting, that court’s
determination of the person’s state of mind is binding.’ ” ’ ”
(People v. Clark (2011) 52 Cal.4th 856, 895 (Clark).) “If there is
no inconsistency, the reviewing court will uphold the court’s
ruling if substantial evidence supports it.” (Hillhouse, at p. 488.)
Defendant’s challenges for cause focused primarily on
jurors’ knowledge of the case and exposure to pretrial publicity.
Qualified jurors “need not be totally ignorant of the facts and
issues involved.” (People v. Cooper (1991) 53 Cal.3d 771, 807
(Cooper).) “ ‘To hold that the mere existence of any preconceived
notion as to the guilt or innocence of an accused, without more,
is sufficient to rebut the presumption of a [juror’s] impartiality
would be to establish an impossible standard.’ ” (Murphy v.
Florida, supra, 421 U.S. at p. 800.) “ ‘ “It is sufficient if the
juror[s] can lay aside [their] impression[s] or opinion[s] and
render a verdict based on the evidence presented in court.” ’ ”
(Cooper, at p. 807.)
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Some seated jurors were also challenged by defendant
based on their death penalty views. “ ‘To achieve the
constitutional imperative of impartiality, the law permits a
[juror] to be challenged for cause only if his or her views in favor
of or against capital punishment ‘would “prevent or
substantially impair the performance of his [or her] duties as a
juror” ’ in accordance with the court’s instructions and the
juror’s oath.” (People v. Blair (2005) 36 Cal.4th 686, 741 (Blair),
quoting Wainwright v. Witt (1985) 469 U.S. 412, 424 (Witt).) A
juror’s bias in favor of or against the death penalty need not be
proven with “ ‘ “unmistakable clarity. [Citations.] Rather, it is
sufficient that the trial judge is left with the definite impression
that a [juror] would be unable to faithfully and impartially apply
the law . . . .” ’ ” (People v. Abilez (2007) 41 Cal.4th 472, 497–498
(Abilez).) Under this standard, a juror is properly excluded in a
capital case if he or she is unable to follow the trial court’s
instructions and “conscientiously consider all of the sentencing
alternatives.” (People v. McWhorter (2009) 47 Cal.4th 318, 340.)
a. Juror No. 1
Juror No. 1 wrote in her questionnaire that she did not
know the victim or any of his family. She had heard about the
case and seen some related photographs but “remember[ed] very
little” because “it was some time ago.” She had formed no
opinion about defendant’s guilt or innocence. Neither her
knowledge of the case nor the nature of the charges would affect
her ability to be fair and impartial. During voir dire Juror No.
1 explained that she had heard coworkers talking about the case
when it occurred but did not recall what was said. She recalled
news reports that the victim had been shot and that a suspect
was arrested in another state. She was aware that the victim
went to Arvin High School and played football. She did not
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recognize defendant by name or appearance. She explained. “I
don’t hear much about the case. I don’t watch the news a lot,
and I don’t read the paper.”
The juror stated that, based on media accounts, she
believed the victim was “murdered.” When asked if she could
put that belief aside, she agreed that she could “if there’s
evidence that I feel that he was not murdered. I can’t just go by
what the media says, because I know it’s not fact.” The
prosecutor explained the burden of proof in a criminal trial, and
the juror agreed that “[i]f I feel that it wasn’t proved, there was
not enough evidence, then I would have to say, yeah, the person
is not guilty,” “[r]egardless” of what she had heard in the media.
She affirmed that she could decide the case based solely on the
evidence and from no other source. The trial court denied
defendant’s challenge for cause.
Defendant’s argument that Juror No. 1 prejudged the case
fails. She knew very little about the case and said that she could
set aside what she had heard to base her verdict on the trial
evidence. She stated repeatedly in her questionnaire that she
could be fair and impartial. None of her answers during voir
dire cast doubt on that representation. Although she initially
described the crime as a murder, she readily accepted the
prosecutor’s explanation of the burden of proof. The court
specifically relied on the juror’s in-court demeanor in denying
the challenge. Its ruling was fairly supported by the record.
Defendant also argues that Juror No. 1 should have been
excused based on information she disclosed to the court after the
jury was sworn but before evidence was presented. The juror
informed the court that she owned two rental properties in
Lamont and went there monthly to collect the rent. She was
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concerned that she or her property might be the subject of gang
retaliation if she served as a juror. When asked to elaborate,
the juror said that she did not visit Lamont often and did not
know people there. She did not recognize anyone on the witness
list. After being shown a map of Lamont, the juror indicated
that one of her properties was next door to Garza’s house, and
another was close to the parking lot from where Leonel Paredes
was kidnapped. The court cautioned the juror that it would be
inappropriate for her to visit these locations in order to
“investigate the case.” It further informed her that retaliation
was “rare,” and that the court was not aware of any cases of such
retaliation in Kern County in the past 13 years. The court asked
the juror if she could “find someone . . . who could travel out
there just to avoid your having to do that” and to let the court
know the next court day “if you have made those arrangements,”
because “if you can’t make those arrangements then I want to
talk further about it.” The juror indicated that she would find
someone to collect her rents while she served as a juror on the
case. Asked if she was satisfied she could perform her duties,
the juror answered affirmatively based on the court’s
assurances. She did not presently feel that she was in danger,
although she continued to have “concerns.” She promised she
would speak up if at any time during the trial she became fearful
or was otherwise unable to perform her duties.
Defendant’s request to remove the juror was denied. The
court noted that the juror was diligent in reporting her
connection to the area, and honest about expressing her concern,
which was not unusual in a case of this type. The court was
“satisfied, having observed her demeanor, the manner in which
she answered the questions, that she can perform her duties”
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and was also satisfied that she would inform the court if she had
any further doubts about her ability to serve as a juror.
The next session, the court addressed Juror No. 1 and
asked if she had anything to add regarding the issue she had
raised earlier. The juror responded, “No.”
Section 1089 provides for the discharge of a juror at any
time the juror “is found to be unable to perform his or her duty.”
Here, Juror No. 1 expressed some concern about gang
retaliation. But she had not been threatened and was not
closely associated with the neighborhoods where the crime took
place. She was satisfied by the court’s representation that
retaliation against jurors was rare, and she agreed to revisit the
subject if her fears prevented her from performing her duties.
When the court revisited the subject, she expressed no such
concern at that time, or any time thereafter. The juror’s
“responses to the trial court’s examination revealed no bias, and
the trial court found none.” (People v. Mora and Rangel (2018)
5 Cal.5th 442, 485.) Defendant offers no sound basis to believe
the juror’s assurances were insincere. (Peterson, supra, 10
Cal.5th at p. 442.) We defer to the trial court’s credibility
determinations, which are supported by substantial evidence.
(People v. Merriman (2014) 60 Cal.4th 1, 100; People v. Harris
(2008) 43 Cal.4th 1269, 1304.)
b. Juror No. 2
Juror No. 2 wrote in her questionnaire that she did not
know the defendant, the victim, or their families. She had
“briefly” “glanced at or heard portions” of reports about the case
but recalled “no specifics” other than the “nature” of the crime
and a photograph of the victim. She had also heard others
talking about the case. Her exposure to this information would
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not affect her ability to be a fair and impartial juror. She had
no preformed opinion about defendant’s guilt.
During voir dire Juror No. 2 explained that she had
overheard a “brief” conversation between two mothers
expressing sympathy for the victim’s mother. She had heard on
the news that the victim “was a football player, and he was
found murdered and there was a truck involved. But that’s
about all as far as details. I never really took interest in
learning more.” She recalled hearing on the news that the
perpetrators were Hispanic, and the crime was possibly gang
related. Although the newspapers described the killing as a
“murder,” Juror No. 2 “didn’t really form any opinion. I just
knew a young man was dead, and the newspaper declared it to
be a murder.” She affirmed that she could set aside what she
had heard in the news media and would not prejudge the case.
The trial court denied defendant’s challenge for cause.
Defendant argues that Juror No. 2 “was close to this case,
and not forthcoming about what she knew, or what she
thought.” He claims she minimized her knowledge of the case
when “[i]n truth, she knew plenty of details about the crime.
She revealed them in between repeated statements that she
didn’t really know anything.” The record does not support this
overstatement. Juror No. 2 was not “close to this case.” She
knew a few basic details, as would almost anyone who had any
media exposure, and she readily disclosed them when asked.
She consistently maintained that she had not prejudged the case
and that she could disregard pretrial publicity and base her
decision on the evidence. The record supports the trial court’s
determination that she could be fair and impartial.
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c. Juror No. 3
Juror No. 3’s questionnaire recounted that he did not
know the defendant, the victim, or their families. He had not
read about the case in the newspapers or heard about it on
television; nor had he spoken to anyone about it. He had not
formed an opinion about defendant’s guilt and affirmed he could
be fair and impartial. During voir dire, Juror No. 3 clarified that
he had seen “a few brief” news reports about the case, and that
his wife had discussed the case with him. He recalled that there
was a carjacking and that police had recovered a truck
associated with the crimes. He knew that a young man had been
shot and that a suspect had been arrested in another state. He
disagreed with defense counsel’s characterization that he had
learned “an awful lot about this case” from discussions with his
wife. The juror explained that his wife mentioned the crime to
him but he was getting ready to go out and “wasn’t . . . really
paying too much attention to what she was saying.” He
expressed no doubt that he could set aside what he had heard
about the case and base his verdict solely on the evidence
presented in court.
The juror had received a subpoena from the district
attorney’s office to appear at a court date involving child
support. He had not spoken with anyone in the district
attorney’s office about settling the case. When asked by the
defense if he would “want to help out the D.A. in order to get
favorable treatment from the D.A. on that case,” the juror
responded, “No,” and observed, “That’s [two] totally different”
things. He was certain that the proceeding would not affect his
ability to be fair and impartial. The trial court denied
defendant’s challenge for cause.
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Defendant again maintains that Juror No. 3 “had learned
quite a bit about this case” and was “slow to reveal” that
information. He notes, without further elaboration, that the
juror indicated in his questionnaire that he favored the death
penalty for deliberate murder except in rare cases, and that the
juror had a pending child support matter. This record does not
support a challenge for cause. The juror’s voir dire revealed very
little familiarity with the case and he affirmed that he would
base his verdict solely on the evidence. The trial court probed
the juror about his views on the death penalty. The juror
affirmed that he was “very open-minded” on the topic and could
impose either death or life without the possibility of parole
(LWOP) depending on the evidence. He explicitly denounced the
philosophy of an “eye for an eye,” explaining, “if a person was
found guilty for taking somebody else’s life, I don’t see that it
would, in my beliefs, I don’t see that it’s right to take that
person’s life, just because he took somebody else’s life,
depending on the situation, or the crime that was committed, I
should say.”
As for the pending child support matter, the juror
voluntarily disclosed that fact on his questionnaire, and, when
questioned, was emphatic that it would not affect his service.
Defendant “offers no sound basis to believe the juror[’s]
assurances in this case were insincere.” (Peterson, supra, 10
Cal.5th at p. 442.) On the contrary, the juror seemed perplexed
by defense counsel’s suggestion that he might try to curry favor
with the prosecutor, responding, “that’s [two] totally different”
things. The trial court implicitly credited the juror’s
representations and denied the challenge “considering all the
circumstances.” Its determination is fairly supported by the
record.
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d. Juror No. 4
Juror No. 4 was the Dean of Students at Highland High
School and was acquainted with members of the Kern High
School District Police Department. She indicated in her
questionnaire that she did not know defendant, the victim, or
their families. She had heard about the case on television but
did not recall the specifics. She was not aware of how the victim
died. She had not formed an opinion about defendant’s guilt,
and her media exposure would not affect her ability to be fair
and impartial. During voir dire, the juror elaborated that she
had heard discussions about memorials for the victim at Arvin
High School. She was not personally involved in any such
discussions, and observed that such memorials “can get out of
hand and disrupt school activity” because it “keeps the students
in turmoil.” She stated that she was “somewhere between”
favoring the death penalty for deliberate murder and believing
that it should only be used in rare cases. She would keep an
open mind between the two punishments. The trial court denied
defendant’s challenge for cause.
Defendant argues that his challenge for cause should have
been granted. He offers no analysis in support of this assertion
other than to repeat some of the details summarized above.
Juror No. 4 knew very little about the case and she was open to
both penalties. The trial court’s ruling was fairly supported by
the record.
e. Juror No. 6
Juror No. 6 worked as a correctional counselor at Wasco
State Prison. Her job required her to evaluate an inmate’s
history, medical and psychiatric status, and criminal behavior.
She had many friends who were parole agents, correctional
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officers, and correctional counselors. She would not give the
testimony of these people greater weight.
She checked the box “Yes,” to the question: “If evidence in
this case shows the involvement of a ‘street gang,’ is there
anything about that which would prevent you from being a fair
and impartial juror?” She wrote, “Street gangs are generally
crime-oriented.” During voir dire she explained that she had
previously worked with gang members as a parole agent. Based
on that experience she believed that street gangs were formed
for the purpose of committing crimes. She had not worked
directly with gang members for at least eight years, and had no
special knowledge or experience with gangs in Arvin or Lamont.
She did not claim to have any gang expertise. She did not
believe that gang members are incorrigible and knew of
members who had turned their lives around. The juror affirmed
that she could “set aside any experiences, any training, any
views or opinions [she had] about street gangs or individuals
and not let them influence [her] in this case[.]” She explained,
“I have given it a lot of thought. And in some ways I think,
because of my background, I can be more objective maybe than
the average person. I really do feel I can be objective.”
The juror also checked the box “Yes” to the question: “Is
there anything about the use or possession of firearms that
would prevent you from being a fair and impartial juror?” She
wrote: “If carried by other than law enforcement, the carrier
often has criminal intent.” During voir dire she explained that
she felt gun possession resulted in escalated encounters that
might not otherwise be lethal. If a person intentionally
purchased a weapon to commit a crime, she would consider that
indicative of criminal intent. She would be less likely to focus
on gun possession if a spontaneous event took place that
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prompted a person to take defensive steps. She believed that
accidental shootings were common. The juror was a gun owner
herself and grew up around firearms. She described herself as
“very unbiased . . . about weapon possession.”
Juror No. 6 disclosed during voir dire that she had some
familiarity with the case. She had heard the victim was
kidnapped and killed, and that his body was found in a field.
She recalled fundraisers held for the victim’s family. She knew
nothing about the suspects or how the victim died. Her exposure
to pretrial publicity would not affect her ability to be fair and
impartial. She had not formed an opinion about defendant’s
guilt. She affirmed that she could be completely fair to both
sides.
Regarding punishment, the juror stated in her
questionnaire a preference for the death penalty for deliberate
murder. She explained, “If the murder was intentional, the
death penalty is fair and just.” “I’m in agreement with it in
certain clear-cut, premeditated cases.” Nonetheless, she felt
that life in prison without the possibility of parole “is acceptable
in some cases with extenuating circumstances.” She confirmed
that she was open minded about the penalty to be imposed and
would give honest consideration to both outcomes. Specifically,
she would consider mitigating circumstances as well as the
defendant’s intent in assessing an appropriate punishment. She
explained, “I worked in Child Protective Services for eight years
before going to the Department of Corrections. So it’s easy to
see how a childhood affects adulthood.” Defendant’s challenge
for cause was denied.
Defendant argues that the juror should have been excused
because “[c]orrectional facilities in Kern County were full of
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prejudicial talk about this case, including poisonous false
rumors and prejudicial beliefs.” Aside from Panelist S.L.’s
observations (see pt. II.A.3., ante), this allegation was largely
unsubstantiated. Moreover, Juror No. 6 had heard no such talk.
She was unfamiliar with the facts of the crime and was unaware
of how the victim had died. Defendant also urges, without
further analysis, that the juror should have been excused based
on her opinions about gangs, gun possession, and the death
penalty. The trial court probed all of these topics. The juror felt
that her exposure to gang members would enhance her
objectivity. She believed that accidental shootings were
common, which was in line with the defense theory of the case.
And she said she could be fair and openminded about
punishment, citing her service with Child Protective Services as
providing insight into the deleterious effects of childhood
trauma. The trial court’s denial of the challenge for cause was
fairly supported by the record.
f. Juror No. 7
Juror No. 7 disclosed in her questionnaire that she had
learned about the case through the newspapers and television,
and that she had discussed it with others. This pretrial
exposure would not affect her ability to be fair and impartial.
The juror elaborated during voir dire. She was aware that a
young man was carjacked and fatally shot in Arvin and that his
body was found by a family member. She recalled that the
suspects had painted the victim’s truck. She knew that the
victim played high school football and that his brother had stood
in for him as homecoming king. She had not prejudged
defendant’s guilt and could disregard this information to base
her verdict solely on the evidence. She was open to the
possibility “that the death of Chad Yarbrough was an accident,
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as opposed to an intentional murder.” The trial court denied
defendant’s challenge for cause.
Defendant argues that Juror No. 7 “had an extraordinary
amount of knowledge about this case.” The record does not
support this characterization. The juror had no personal
connection to the case and was unfamiliar with the victim, the
defendant, and their families. Her knowledge of the
circumstances surrounding the crime was typical of someone
who had been exposed to media coverage and hardly
“extraordinary.” Qualified jurors “need not be totally ignorant
of the facts and issues involved.” (Cooper, supra, 53 Cal.3d at p.
807.) The juror confirmed that she could disregard the
information she had heard in the media and base her verdict on
the evidence presented.
Defendant also claims that Juror No. 7 “became upset”
during voir dire. He cites defense counsel’s observation that the
juror “got upset when you talked about the brother taking over
[as] homecoming king.” His reliance on this offhand remark is
unpersuasive. Counsel did not elaborate on the juror’s
demeanor or challenge her specifically on this basis. In any
event, a juror’s emotional reaction, while relevant, is not
automatically disqualifying. (See generally Adams v. Texas
(1980) 448 U.S. 38, 50; Clark, supra, 52 Cal.4th at p. 897.) When
defense counsel asked the juror about her response, she
confirmed that she could set aside her knowledge of the
circumstances and focus only on the evidence presented. She
said that what she knew about the crime would not affect her
penalty determination. The trial court was in the best position
to assess the juror’s demeanor and the credibility of her
representations.
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Defendant also criticizes the trial court for limiting
defense counsel’s voir dire of this juror. Specifically, the court
sustained an objection to the following question: “if the jury
came to the conclusion that it was a first degree accidental
murder during a kidnapping or carjacking, do you have any
predeterminations as to what the sentence should be?” (Italics
added.) The court explained that it would allow defense counsel
to probe the jurors’ thoughts about possibilities like accident or
self-defense, but that referring to a verdict of “first degree
accidental murder” was misleading.
The trial court has considerable discretion to place
reasonable limits on voir dire, including the process of death
qualification. (People v. Jenkins (2000) 22 Cal.4th 900, 990.)
“ ‘[A]s we have said on many occasions, “[d]efendant ha[s] no
right to ask specific questions that invite[] [panelists] to
prejudge the penalty issue based on a summary of the
aggravating and mitigating evidence [citation], to educate the
jury as to the facts of the case [citation], or to instruct the jury
in matters of law [citation].” [Citations.]’ [Citation.] [¶]
‘Nevertheless, voir dire cannot be so abstract that it fails to
identify those jurors whose death penalty views would prevent
or substantially impair their performance . . . .’ [T]he defense
cannot be categorically denied the opportunity to inform jurors
of case-specific factors that could invariably cause an otherwise
reasonable and death-qualified juror to vote for death regardless
of the strength of the mitigating evidence.” (People v. Tate
(2010) 49 Cal.4th 635, 657–658.)
No error appears. Defense counsel had significant leeway
to probe the topic of penalty. He asked the juror if she was open
to the possibility that the victim’s death was an accident, and
she affirmed that she was. He then asked, if the jury returned
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a verdict of “murder [in the] first degree with kidnapping or
carjacking,” whether the juror’s knowledge about the case from
pretrial publicity would influence her penalty decision. The
juror said it would not. Counsel asked if the juror would equally
consider death and LWOP as punishments, and the juror said
she would. Counsel then asked what punishment the juror
would feel was appropriate for first degree murder during a
kidnapping or carjacking. She responded that she “would have
to hear all the details before [she] would be able to give any
opinion on that.” She affirmed that she would be willing to
listen to evidence of circumstances in mitigation, including the
defendant’s background, before she made up her mind about
penalty. This voir dire was ample. The trial court acted within
its broad discretion to curtail counsel’s implication that there
could be of a verdict of “first degree accidental murder.” There
is no such offense in the California legal lexicon.24
g. Juror No. 8
Juror No. 8 was a correctional officer at North Kern State
Prison. During voir dire, he explained that his job would not
cause him to be prejudiced against defendant. He treats the
inmates he works with as human beings and does not pass
judgment on them because they are incarcerated.
The juror had read two newspaper articles about the crime
at the time it was committed, and a third article about
24
An unintentional murder committed during the
commission of certain felonies may quality as murder in the first
degree, under the felony murder doctrine. However, defense
counsel did not mention felony murder, but instead referred to
the nonexistent crime of “first degree accidental murder.”
(Italics added.)
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defendant being captured trying to cross the border. He could
“[d]efinitely” set aside his knowledge of the case from outside
sources and not consider it in reaching a verdict. Although he
had checked a questionnaire box stating that he had an opinion
about defendant’s guilt, he clarified that he did not in fact hold
such an opinion. His only opinion was that defendant was
innocent until proved guilty.
The juror stated in his questionnaire that he believed the
death penalty was appropriate for deliberate murder. He felt
that LWOP sentences were not enforced because “our appeal
system has opened many doors to life without parole.” He
checked boxes on the questionnaire indicating that he was open
to both penalties and would listen to all of the evidence before
making a decision. The court probed these responses during voir
dire. It told the juror that “it’s going to be your duty to assume
that any sentence that’s selected by the jury will be carried out
ultimately, whether it be the death penalty or [LWOP].” The
juror explained that, during his employment, he had seen
inmates with LWOP sentences who “are gone [from custody].
One has to assume that they have either died or they were
released from prison. And it’s an assumption, your Honor. It’s
not a fact.” The juror confirmed that he could set aside that
assumption and accept that the sentence would be carried out.
The court emphasized that it would be improper for the juror to
return a sentence of death instead of LWOP simply because the
juror was concerned that defendant might be released from
custody. The juror agreed. He had “[n]o doubt” that he could
have an open mind about penalty and base his decision on the
evidence presented at trial.
In response to questions by defense counsel, the juror
stated that he did not believe the death penalty should be
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imposed for every first degree murder committed during a
kidnapping or carjacking. He favored the death penalty for an
intentional murder committed while “lying in wait.” When
asked by the court if he could set that view aside and base his
penalty decision on the evidence presented, the juror responded,
“I believe I could. I really do. Because, as I said, I stress very
strongly that, in my type of job, I try very hard not to be
judgmental. And I think I could.” He reiterated, “I’m satisfied
that I could be very fair.” He would consider the circumstances
of defendant’s background in making a penalty determination,
and could return a verdict of LWOP if the mitigating
circumstances warranted it. The court denied defendant’s
challenge for cause.
Defendant argues that the juror’s penalty views
warranted disqualification. Not so. The juror stated repeatedly
that he would consider all penalty options and could return an
LWOP sentence if warranted by the facts of the case. Giving
deference to the trial court, which had the opportunity to
observe and listen to the juror, the court’s ruling is fairly
supported by substantial evidence in the record. (People v. Holt
(1997) 15 Cal.4th 619, 651.)
Defendant also contends that the trial court erred in
limiting counsel’s questioning about circumstances in
mitigation. Specifically, counsel asked whether the juror would
consider defendant’s upbringing. He gave as an example: “If
evidence is presented at the penalty phase, for example, that the
defendant had some type of abused childhood or some problems
in childhood . . . .” The court interjected, and directed counsel to
“stay with the general nature of the juror’s duties to consider
circumstances in aggravation or mitigation and address it more
generally, please.” Defense counsel then asked more generally,
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“Are there circumstances regarding the defendant’s background
that you would not consider in mitigation?” The juror replied,
“I don’t know I think probably what you are trying to say is that
if someone has some problems as a child and that is the cause of
a violent crime later on in his lifetime should that be considered.
Is that what you are saying?” When counsel responded, “Yes,”
the juror said, “In some cases, yes, very much so” and confirmed
that he was “open to considering that evidence.”
Death qualification voir dire “ ‘must not be so abstract that
it fails to identify those jurors whose death penalty views would
prevent or substantially impair the performance of their duties
as jurors in the case being tried’ and ‘it must not be so specific
that it requires the prospective jurors to prejudge the penalty
issue based on a summary of the mitigating and aggravating
evidence likely to be presented.’ [Citation.] In striking this
balance, the trial court may not categorically deny the defense
an opportunity to inform prospective jurors of case-specific
factors that could invariably cause them to vote for death.”
(People v. Nieves (2021) 11 Cal.5th 404, 425–426 (Nieves).) Here,
notwithstanding the trial court’s admonishment, the juror
ventured back into the area of childhood circumstances and
affirmed that he believed them to be a significant factor in
mitigation. The topic was adequately covered.
h. Juror No. 10
Juror No. 10 worked for Kern County as a physician’s
assistant. She did not know any of the listed witnesses, but was
acquainted with people in the Bakersfield Police Department,
the county Sheriff’s Department, and doctors from the Kern
Medical Center. The people she mentioned by name were not
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called as witnesses in the case. She also knew the court
interpreter.
Juror No. 10 indicated in her questionnaire that she had
read about the case in the paper and heard others talking about
it. She did not recall specifics and any such information would
not affect her ability to be fair and impartial.
The juror indicated in her questionnaire that “[w]hile [she
was] somewhat in favor of the death penalty, [she did] not
believe it should be used as a punishment for most murder cases,
even where a life has been taken deliberately.” She believed
that each case is different and that the penalty depends on the
individual facts of the crime. Although the juror is Catholic, she
disagrees with her church’s position against the death penalty.
She confirmed during voir dire that she would consider
circumstances in mitigation and keep an open mind about both
penalties. Defense counsel and the prosecutor both
unsuccessfully challenged the juror for cause.
Defendant claims error. He repeats some of the details set
forth above but offers no analysis as to why the record shows the
juror could not be fair and impartial. Defendant observes that
the prosecutor joined in the challenge. But the prosecutor’s
concern was that the juror would not be able to vote for death
given her religious beliefs. That view does not demonstrate a
bias against defendant. In any event, the juror emphasized that
she would keep an open mind about penalty and base her
decision on the facts of the case. The trial court’s denial of the
challenge for cause was fairly supported by the record.
i. Juror No. 11
Juror No. 11 worked as a postal clerk. Her son was a Kern
County Sheriff’s Deputy. She knew two people on the potential
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witness list: Jill Johnson was the daughter of her friends from
church, and Steve Urner was her son’s partner in the sheriff’s
department. She affirmed that she would not view these
people’s testimony more favorably because of her relationship
with them. Ultimately neither of them testified.
The juror indicated in her questionnaire that the
involvement of street gangs in the case would not affect her
ability to be fair and impartial. Asked how she felt about street
gangs, she wrote, “They scare me.” She was not asked to
expound on this comment.
The juror stated in her questionnaire that she had seen
newspaper and television accounts of the case at the time of the
crimes but did not recall any details. During voir dire she
elaborated that she remembered the crime involved “teen-agers,
somebody was killed, it was out in Arvin . . . .” Her exposure to
pretrial publicity would not affect her ability to be fair and
impartial.
Asked on the questionnaire to circle the response that best
corresponded to her view on the death penalty, the juror circled
the following: “The death penalty should be imposed in every
case where someone deliberately takes another human being’s
life.” Asked if LWOP was an appropriate punishment for first
degree murder, she wrote, “I’m not sure — it would depend on
the circumstances.” During voir dire the juror again stated that
she believed death was the appropriate penalty for homicide in
the course of kidnapping or carjacking. When asked if she would
automatically vote for death under those circumstances, she
clarified: “Oh no. When I was circling that, in my mind — and
it was very confusing, the whole questionnaire, I think. [¶] . . .
[¶] But when I was getting down to that, I was thinking, okay,
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this is, when you break the law, this is the penalty. That’s what
I was thinking.” She confirmed that she would keep “a
completely open mind” between the two available penalties and
base her decision on the evidence presented at trial. The
prosecutor sought further clarification, asking, “If you are
saying, as you seem to indicate, that you would have an open
mind, can you see yourself considering life without parole even
though someone murdered somebody?” The juror responded, “I
guess, yes.” She continued: “Yes. Because, to me, it was very
confusing on the answers of the questions.” She affirmed that
she could impose a sentence of LWOP for a murder committed
during a carjacking or kidnapping, and that she would “have an
open mind” about penalty. The trial court then asked if the juror
was “satisfied that you can set aside any personal views or
opinions you have about the death penalty and follow the law
and keep an open mind as to the two possible penalties that
might be imposed here?” The juror responded, “Yes.” When
asked if she had “any doubt about that?” the juror replied, “No.”
Defense counsel questioned further. He observed that
when the juror said she could vote for LWOP, she “did not sound
certain in your answer, and you rolled your eyes to the top of
your head.” The juror apologized, saying, “It’s just very
confusing.” She again confirmed that she felt death was the
appropriate penalty for a killing during a kidnapping or
carjacking. The trial court denied defendant’s challenge for
cause.
Defendant argues that the juror’s preference for the death
penalty warranted her excusal. But the juror explained that she
found the questionnaire confusing. She clarified that her
understanding was that the death penalty was the punishment
provided by law. After being told that she could choose between
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death and LWOP, the juror confirmed that she could keep an
open mind about penalty and make her decision based on the
evidence. No more is required of a juror, even one who expresses
a preference for death. (Rountree, supra, 56 Cal.4th at p. 843;
People v. McKinzie (2012) 54 Cal.4th 1302, 1343–1345.)
Defendant argues that the juror contradicted herself
immediately thereafter by restating that she felt death was the
appropriate penalty for a killing during a kidnapping or
carjacking. Variations are not surprising, however, when a
juror is “less than consistent in her answers. ‘In many cases, a
[juror’s] responses to questions on voir dire will be halting,
equivocal, or even conflicting. Given the juror’s probable
unfamiliarity with the complexity of the law, coupled with the
stress and anxiety of being a [panelist] in a capital case, such
equivocation should be expected. Under such circumstances, we
defer to the trial court’s evaluation of [the] . . . juror’s state of
mind, and such evaluation is binding on appellate courts.’ ”
(People v. Moon (2005) 37 Cal.4th 1, 15–16, quoting People v.
Fudge (1994) 7 Cal.4th 1075, 1094.) The trial court’s finding
that Juror No. 11 could conscientiously consider all of the
sentencing alternatives is fairly supported by the record. 25
j. Juror No. 12
Juror No. 12 (previously Alternate Juror No. 3), worked at
Wasco State Prison as a personal services supervisor. Her ex-
husband was a Kern County Sheriff’s Deputy and one of her sons
was a correctional officer. She had learned about the case in
news articles and television reports, and had seen related
25
Defendant’s claim that the trial court erred in failing to
discharge Juror No. 11 for asserted bias revealed during the
trial is discussed post at part II.B.1.
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photographs. Specifically, she had heard that the victim was
bound and shot in the back of the head, “execution style” after
his truck was stolen. Her exposure to pretrial publicity would
not affect her ability to be fair and impartial, and she would base
her decision solely on the evidence presented in court. Defense
counsel noted that she had used the word “hope” in connection
with these statements and asked if she was concerned about her
ability to do that. The juror replied, “I would try to the best that
I could, to do what I needed to do.”
The juror was familiar with several persons on the witness
list, including Greg Justice, John Soliz, Glenn Johnson, Robert
Castaneda, Stan Moseley, and Patty Poeschel. Robert
Castaneda was a friend; the others were people she had met “a
long time ago” and no longer knew, had worked briefly with, or
recognized the name but did not know personally. She
confirmed during voir dire that she could set aside her
affiliations with the witnesses and judge them by the same
standard as anyone else. Only two of the people mentioned,
Glenn Johnson and Stan Moseley, actually testified. Regarding
Glenn Johnson the juror wrote: “met him a long time ago —
don’t know him now but see him on TV news.” Regarding Stan
Moseley, the juror wrote: “don’t know [him] — but have heard
name, either through ex-husband or TV or paper.”
The juror indicated in her questionnaire that her views on
the death penalty were best reflected by the following
statement: “While I favor the death penalty, I do believe there
are rare cases where the death penalty should not be imposed
even if someone has deliberately taken another human being’s
life.” She also wrote that “I often wonder how it will affect my
life should I choose to return a death penalty verdict.” Asked if
LWOP was an appropriate sentence for first degree murder, she
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wrote: “It would depend on the circumstances related to the
murder.” During voir dire the juror stated that she generally
felt the death penalty was a “good idea” but that she had “mixed
feelings” about it. Specifically, she felt that “I don’t have a right
to put my beliefs on somebody else about how I would feel as to
whether they should be put to death or not.”
The jury questionnaire asked: “At this point, before you
have heard the evidence, do you believe you are open minded
about what the penalty should be?” Juror No. 12 wrote, “No.”
During voir dire, the juror stated that she had misunderstood
the question. She affirmed that she had not predetermined
penalty and could be open minded. This clarification was
consistent with another answer on her questionnaire, where she
answered, “Yes” to the question: “If you were a juror at a penalty
phase, would you be able to listen to all the evidence, as well as
the judge’s instructions on the law, and give an honest
consideration to both death and life without parole before
reaching a decision?” When asked by defense counsel what she
felt was the appropriate penalty for first degree murder, she
replied, “I don’t have an opinion right now.” Defendant’s
challenge for cause was denied.
Defendant argues that the juror should have been excused
for cause because of her familiarity with the facts of the case
through news media. As noted above, total ignorance is not
required for juror qualification. (Cooper, supra, 53 Cal.3d at p.
807.) The juror had no concern that she could put aside what
she had heard and fairly and impartially judge the evidence
presented at trial. The trial court credited the juror’s
representation, taking into account her answers and demeanor.
Its ruling was fairly supported by the record.
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Defendant also argues that the juror’s views on the death
penalty warranted her excusal. But the juror was not a
particularly strong death penalty proponent. Although she
supported capital punishment in principle, she expressed
hesitation about personally returning such a verdict.
Ultimately, she was quite clear that she could keep an open
mind about both penalties, and that she would base her decision
on the facts of the case. Again, the trial court credited this
representation, taking into account the juror’s answers and her
demeanor. Its ruling was fairly supported by the record.
For the reasons discussed above, the trial court did not err
in denying defendant’s challenges for cause as to any of the
seated jurors. Because no incompetent juror was forced upon
defendant, his claim of error fails. (Black, supra, 58 Cal.4th at
pp. 920–922.)
5. Judicial Misconduct
In addition to challenging the for-cause rulings discussed
above, defendant claims that the court’s “overbearing, leading,
and directive voir dire, and refusal to remove biased jurors”
amounted to judicial misconduct. He maintains that the court
“refused to accept prospective jurors’ plain indications of bias or
prejudgment,” and used leading and suggestive questions “to
press until a juror said that he or she would do their duty.” He
further contends the court was “hypersensitive, quick to
threaten defense counsel, and unwilling to acknowledge error.”
The court’s conduct, he claims, evidenced actual bias in violation
of his state and federal constitutional rights.
These arguments were unsuccessfully raised in a motion
for mistrial, and reasserted in a motion to disqualify the trial
judge for bias. (Code Civ. Proc., § 170.1.) Another judge was
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assigned to rule on the disqualification motion. That jurist
considered written motions and reviewed approximately 6,700
pages of voir dire record. He subsequently found that the trial
judge was “very thorough in his voir dire of the jurors” and was
“very deliberate” in his effort to assure the jurors could fairly
and impartially judge the case. He found no evidence that “the
trial judge was anything but fair and impartial to both sides.”
He further observed that “[i]t is obvious from the record the trial
judge exhibited great tolerance, patience and judicial restraint
with the defense counsel’s conduct which bordered on insolence.”
He concluded: “the trial judge exercised patience and judicial
restraint in dealing with the many attacks alleging bias and
prejudice on the record of the trial court. It is also very apparent
that the trial judge carefully ruled on all objections and
conducted extensive voir dire to assure both the defendant and
the prosecution were to receive a fair trial. The court finds that
trial judge was neither bias[ed] nor prejudiced against the
defendant nor his counsel. The court further finds the
defendant’s allegation that he cannot receive a fair trial is
unfounded.”
a. Questioning of Panelists
“Trial courts must of course ‘be evenhanded in their
questions to [panelists] . . . and should inquire into the jurors’
attitudes both for and against the death penalty to determine
whether these views will impair their ability to serve as jurors.’
[Citation.] But the court has ‘broad discretion over the number
and nature of questions about the death penalty.’ ” (Mills,
supra, 48 Cal.4th at p. 189.) “We trust our trial courts
understand and appreciate the importance of the voir dire
procedure and the need to be ‘evenhanded’ in questioning
[panelists] in a capital case. [Citation.] We assume the trial
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court formulated its questions based on the individual
characteristics of each juror, including the juror’s questionnaire
answers and in-court demeanor. To second-guess these choices
would encourage the trial court to engage in substantially the
same questioning of all [panelists] irrespective of their
individual circumstance, something we have declined to do.”
(Id. at p. 190.)
Here, defendant complains, not that the court asked too
few questions (see Mills, supra, 48 Cal.4th at p. 189), but instead
that it asked too many, effectively rehabilitating jurors who
showed obvious bias. We have reviewed the record of voir dire,
with particular attention to the jurors identified by defendant in
support of his argument. We conclude the court did not commit
misconduct or demonstrate actual bias against defendant.
Nothing in the record suggests the trial court lacked
impartiality during voir dire.
i. Panelist J.D.
Defendant cites the voir dire of Panelist J.D. as an
example. J.D. worked as a correctional officer. When asked if
there was any reason he could not be fair, J.D. explained: “I
work in a setting where I deal with convicted felons on a daily
basis. And I have done that for 16 years. And it’s hard to be in
that environment and not become a little bit callused in the way
I view certain things.” The court asked if the panelist’s feeling
was related to this particular case or to criminal trials in
general. J.D. replied, “I don’t know anything about this case. I
think it would be in any case. I would probably tend to look more
on a negative way of looking at it. To be honest, it would
probably be harder for me to believe in innocence than guilt. I
have been trained in my job they are guilty, and that’s kind of
hard not to look at after 16 years. And I could try to be fair, and
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I really would. But I have thought about it since I was here last,
and, honestly, inside, I have become a little bit cynical in my job.
And I think that would affect me.”
The court stated that it wanted to explore this topic and
cautioned that it was “not trying to change any views or opinions
that you have.” The court explained that all panelists come to
the courtroom with feelings, opinions, and biases. The question
was whether J.D. could honestly assure the court that he could
set those views aside and not let them influence his verdict. The
panelist affirmed that he sets aside his biases every day at work
“[b]ecause I have to be fair at all times. It’s something that I
have been trained to do for a long time. I think I can do it, and
I would sure give it a try. I would do the best I could.” The court
then asked if J.D. thought he could decide the case based solely
on the evidence and the law. The panelist responded, “I would
definitely try my hardest. Honestly, I would have a hard time.
But I would be willing to make the effort to put it aside.”
The court then observed, “I’m not trying to put you in an
impossible situation here, where you really, you know, have a
serious doubt as to whether you can perform your duties.” The
court asked whether J.D.’s doubt was hypothetical and based on
potential human frailties, or if the panelist actually had a
reasonable doubt about his ability to perform his duties. J.D.
replied, “I believe I can do it, because I’m sitting here, being as
honest as I can with you, and that’s putting it aside in itself.”
The court continued to probe, asking if J.D. was truly satisfied
he could perform his duties “[b]ecause if you have some doubt
about it, I want you to tell me.” J.D. replied, “I do have a doubt
about it. It would be a daily thing that I have to deal with.” The
court then asked if it would be difficult or impossible task. J.D.
replied, “I don’t think it would be difficult or impossible. I think
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it would be reasonable. I would expect every juror to be able to
do it to an extent, and I believe I could do it to that extent that
you are asking.”
The court asked, “Are you feeling pressured in any way to
give me the right answers here?” J.D. responded, “No. No, I’m
not.” The court repeated that it needed the panelist’s “honest
response” and that he should not be embarrassed to share his
feelings or be concerned that the court would be upset with him.
J.D. replied, “I can perform my duties.” The court asked
whether the panelist had any doubt, and J.D. replied, “There’s
a little doubt.” The court asked J.D. to explain, and he replied,
“[I]t’s just daily situations I have had to face every day. My
whole attitude has gone to the cynical side of life. It’s kind of
sad to say, but, in being fair here, I would make the effort to
keep it centered best I can. [¶] . . . [¶] But I do have doubts.”
The court asked again if the panelist had “reasonable doubt,
meaning that it’s not likely that you are going to be able to
perform your duties here.” J.D. replied, “I don’t feel that it
would be unreasonable for me to do it or too difficult. I could do
this.”
The court received J.D.’s assurance three more times that
he could perform his duties. The court then said that if the
panelist became aware of a bias during the trial, he would need
to disclose that and the court did not “want to set us up for that.
In other words, we certainly want to find out now the likelihood
of your being able to perform your duties. Because you
understand if we excuse jurors in the middle of a trial that
creates other problems.” J.D. then volunteered that he had shot
three inmates a few days before and “it’s staying with me. It’s
like I’m kind of angry about having to be placed in that situation.
So when I’m sitting here and I see things that I have dealt with
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or attitudes that I have dealt with, it’s those angers.” The court
then asked, “Because of the scenario you just described where
things can happen at work that then can be disturbing, sounds
like you are concerned that could happen during the trial.” J.D.
agreed. Upon stipulation of both parties, the panelist was
excused.
After the panelist’s excusal, defense counsel objected to
the manner of questioning, asserting that the trial court had
confronted J.D. and pressured him to say he could follow the
law. The court stated for the record that “I am going to be as
even handed as I’m capable of being in asking jurors these
questions. And if a juror expresses a bias, I am always going to
have to try to have them bring up honestly what that bias is and
then go to the next step and explain what their duties are. And
it’s necessary to explain what their duties are in order for them
to answer the questions. [¶] It’s the jurors’ duty to set aside
bias if they are able to, and they have to tell the Court honestly
if they can or can’t set that aside. And that’s whether it’s a bias
that favors the prosecution or favors the defense. And I’m going
to go through that process with each juror.”
The court did not abuse its discretion while questioning
J.D. The court encouraged the panelist to answer honestly;
emphasized that it was not trying to change J.D.’s views or
pressure him; and told him not to be embarrassed or concerned
about the court’s reaction. The court conscientiously probed
whether the panelist’s uncertainty about his ability to abide by
the presumption of innocence was theoretical or actual. In doing
so, the court did not attempt to lead the panelist to the “right”
response. Rather, the court refused several times to accept at
face value J.D.’s representation that he could be fair, and
instead asked questions designed to test the accuracy and depth
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of that response. The court did not simply stop questioning
when J.D. said he could be fair, as it might have done were it
seeking an answer unfavorable to the defense. Indeed, it was
the court’s thorough questioning that ultimately led to the
panelist’s removal. When J.D. disclosed his recent experience
with a shooting, the court promptly excused him for cause with
the agreement of both parties. This record reveals no bias in the
court’s manner of questioning or its ruling on the panelist’s
qualifications to serve.
ii. Panelist G.K.
Defendant also looks to the voir dire of Panelist G.K. He
formerly served as a sergeant and police officer in the Army. His
daughter was a police officer. He expressed the opinion that
gang members are accused of considerable criminal activity.
The court observed that defendant had not been charged with a
gang crime and that it would be improper to convict him of
murder and related allegations simply because a street gang
was involved. The panelist affirmed that he could set aside his
opinions and base his decision on the evidence. Asked if it would
be difficult, G.K. replied, “I think we — you know, we say set
aside, but we really can’t take away 55 years of background,
where I come from, where we all come from. I think so, yes. I
would do the best I could. [¶] But you can’t take away where
you come from, what you’ve been through. Life’s experiences, I
guess is good.” The court agreed that all jurors bring their life
experiences to the task, but cautioned that G.K. must be willing
to set aside feelings like bias and anger. The panelist
acknowledged that he would try to set his feelings aside and
follow the law. He commented, “I think I would be guided more
by the facts than emotion” and that “I don’t think I would have
any trouble with setting the emotions to the side.”
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When asked if he could evaluate the testimony of all
witnesses using the same standard, G.K. replied, “[M]y gut
feeling is I would tend to give more credence to testimony from
a police officer.” The court noted that it was common for people
to respect police officers but said that it would be the juror’s
responsibility to evaluate each witness based on that person’s
credibility and ability to recall, rather than a belief about law
enforcement officers in general. G.K. indicated that he
understood and agreed, stating, “I have no problems. I think
I — I could do that, yes.” He qualified, however, that “for me, it
would be tough to do that, to be honest.” G.K. commented that
it was “tough” to have “[n]o opinion” on things. The court agreed
that “we ask jurors to do some tough things” and emphasized
“there’s no right or wrong answer here. [¶] Any time you have
a doubt about something, you let me know.” “I want you to be
honest about that, and tell me if you don’t think you can perform
your duty, as I described it.” G.K. responded that he would have
“some problems” giving every witness the same level of
credibility. The court then asked the panelist if he could
conceive that a police officer might be dishonest or mistaken in
the officer’s observations or recollection. G.K. replied, “Yes.” He
affirmed that he could look at each witness individually without
generalizing about that person’s occupation, although it would
be “[t]ough to do.” The court then asked, “If it’s so tough that
it’s creating a question in your mind as to whether you can
perform your duty, then you need to let me know. [¶] If it’s
tough, but you can do it, I need to know that too.” G.K. replied,
“I guess I could do it. [¶] I know I can do it.” The court asked
the panelist if he was “satisfied honestly in [his] mind” that he
could perform his duty, or if he had “a reasonable doubt” about
it, and urged the juror to “look[] within” himself. Again, G.K.
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replied, “I can — I feel or — I can do it. That’s how I feel about
it.”
Defense counsel pursued the topic in voir dire, asking the
panelist if he was “not at all certain that [he] would not let this
favoritism toward police officers” affect him. G.K. said that was
“stronger language than how I really feel,” and that “I don’t
think I would lean that heavily towards law enforcement.” He
expressed his belief that officers are not always truthful, and
cited the Los Angeles police as an example. All things being
equal, G.K. would tend to believe a police officer, but he would
be alert for a feeling that there was “something that’s not coming
out” or that’s “not quite right.”
Out of the presence of the panelist, defense counsel
objected to the manner of questioning, asserting that the trial
court had pressured G.K. to say he could be fair in assessing the
credibility of police officers. The court denied a challenge for
cause.
No misconduct appears. Panelists may often arrive at
court with preconceptions or leanings. The question is whether
they can set those feelings aside and impartially consider the
evidence. They may have only a vague understanding of a
juror’s role or the precise meaning of legal terms and
expectations. Often they will not have spent much time probing
their own thinking in the context of its impact on potential jury
service. These realities highlight the important role of voir dire
by both court and advocates. The process is designed to uncover
panelists’ honest and thoughtful estimation of their own ability
to be fair. Sometimes those attitudes are apparent, at other
times open and patient dialogue is needed. Such an approach
helps ensure that advocates base their excusal decisions on an
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individual assessment, rather than their own preconceptions. It
also helps to ensure meaningful appellate review.
Here the court properly reminded G.K. that police officers
are human beings who may be untruthful, inaccurate, or
forgetful, just like any witness. The panelist agreed with this
assessment, and the court credited his statements based on his
demeanor. The record reveals neither error nor bias.
iii. Panelists G.M. and D.K.
Two other panelists, G.M. and D.K., were the subject of a
motion for mistrial after the trial court failed to excuse them for
cause. Defendant argues that the trial court spent an inordinate
amount of time trying to rehabilitate these death leaning
panelists. On the contrary, the voir dire was entirely proper.
After the trial court explained the process of the guilt and
penalty phases, G.M. indicated that he “[c]ertainly” had an open
mind as to penalty. Asked by defense counsel what the
appropriate penalty would be for first degree murder, G.M.
replied, “I believe, the way the law is written, it’s the death
penalty.” He affirmed his belief that the law would require him
to impose a death sentence for first degree murder and stated
that he agreed with that punishment. The prosecutor then
clarified that “even when special circumstances are found to be
true, the death penalty is not automatic.” G.M. affirmed that he
could follow the law, consider mitigating circumstances such as
the defendant’s background and psychological status, and keep
an open mind about both penalties. He stated that he had “no
problem” with either LWOP or the death penalty.
The court then asked about a particular questionnaire
answer in which G.M. indicated that he would always vote for
the death penalty for a premeditated murder. The court said,
“I’m not trying to change your answer. I want to make sure you
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understand what the law provides. [¶] The law provides, if the
jury has found the defendant guilty of this willful, deliberate,
premeditated murder and it goes to the penalty phase, the jury
must keep an open mind now to consider which penalty should
be returned by the jury, either the penalty [of] life in prison
without the possibility of parole or the death penalty.” G.M.
again stated that he believed in the death penalty for
premeditated murder. The court asked if the panelist was
stating what he understood the law to be, and G.M. said, “I
believe so. That’s my understanding. There again, I’m not a
student of the law.” The court stated that the panelist’s
understanding was incorrect, and explained, “The law doesn’t
provide for a death penalty automatically in that situation or
any situation.” G.M. indicated he understood. The court then
said, “I’m not trying to change your mind. And you tell me
honestly how you feel.” G.M. replied, “I had always understood
it to be the death penalty applies to a premeditated murder. So
that’s why I wrote what I wrote.” The panelist confirmed that
he would not automatically vote for death in any given
circumstance, and that he believed “the facts will tell me which
direction to go.” The court then asked G.M., “So do you think
this is just a matter of clarifying what your understanding of the
law was?” He responded, “Yes, absolutely. Because I was
obviously — I was wrong.” Asked if he would have any difficulty
following the law as the court instructed him, G.M. responded,
“No, none whatsoever.”
Defense counsel then asked the panelist if he would
consider the defendant’s childhood in determining punishment,
and G.M. replied, “No.” The court explained that the law
provides for the consideration of mitigating circumstances such
as the defendant’s background in selecting the appropriate
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penalty and asked if the panelist had a predisposition that
would prevent him from considering such evidence. G.M.
affirmed that he would “go by what the law states” and that he
would “have to hear the whole story.” The prosecutor requested
additional voir dire, prompting G.M. to apologize. The court
responded, “don’t apologize, sir, because there’s no right or
wrong answers. And I appreciate you feel you are kind of on the
hot seat, but we need to be able to explore your thoughts and the
reasons for [them]. Bear with us, please. It’s kind of a difficult
process, but we want your honest responses.” The prosecutor
then asked if G.M. was open to considering mitigating factors,
including the defendant’s childhood. He replied, “Yes, I believe
I can be open-minded.” The trial court denied defendant’s
challenge for cause.
No misconduct appears. The court’s thorough voir dire
exposed G.M.’s misunderstanding that the penalty of death
automatically applied to a first degree murder. When the law
was clarified, G.M. confirmed that he could consider all relevant
evidence and keep an open mind about penalty. The court was
careful to reassure the panelist three times there were no right
answers, and that he should give his honest opinion. This
questioning does not demonstrate bias.
The court asked D.K. if she could keep an open mind about
the penalties of LWOP and death without leaning in favor of one
or the other. She affirmed that she could. When asked what
she felt about an LWOP sentence for the crime of first degree
murder, she replied, “I don’t agree with it” and “I feel like if
somebody takes somebody’s life and they are proven guilty that
they should die too.” The court thanked the panelist for her
honest opinion and asked if she could keep an open mind until
she had heard all of the evidence, including mitigating
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circumstances such as the defendant’s background and
childhood. D.K. said it was a “hard question to answer if you
don’t know what the evidence is or you haven’t heard anything
about it. [¶] . . . [¶] I mean, I wouldn’t go one way or the other
without hearing everything, but that’s a hard question to
answer.” The court acknowledged it was a hard question and
encouraged D.K. to do her best to answer honestly. The court
observed that “[s]ome jurors feel so strongly about the death
penalty one way or the other that they honestly cannot perform
their duties, and that’s okay too. It doesn’t mean you are a bad
person or that we are going to punish you in some way.” D.K.
responded that she would “[j]ust equally weigh the evidence,
whichever opinion I come up with or conclusion.” Asked if she
could give equal weight to both penalties for first degree murder,
she replied, “Well, of course, depending on the evidence.”
During voir dire by defense counsel, the panelist stated
her opinion that a “bad childhood” does not justify murder.
Asked to describe what circumstances she felt would justify an
LWOP sentence for first degree murder, D.K. said, “Not hearing
anything about this, I don’t know. I couldn’t answer that
question.” Asked what the appropriate penalty should be for a
deliberate murder, she answered, “Death.” But immediately
thereafter, D.K. qualified that “[i]t would depend on what the
extenuating circumstances would be.” She observed that it
would be very hard to make a decision to end someone’s life. She
confirmed that she had not formed an opinion of what the
penalty should be and was open to a penalty of LWOP for first
degree murder. She could set her personal feelings aside and
consider all of the evidence in the penalty phase before
determining a verdict. She clarified that “what was asked of me
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is do I believe in the death penalty. Yes, I do, but not for all
cases.” Defendant’s challenge for cause was denied.
No misconduct appears. The trial court allowed ample
voir dire by both parties to probe the panelist’s views on the
death penalty. Ultimately, the court credited D.K.’s responses
based on her demeanor in court. The record supports the court’s
determination that the panelist could fairly and impartially
determine punishment. The fact that the court ruled against a
defense challenge does not, standing alone, evidence a bias.
In addition to the panelists discussed above, our review of
the voir dire reflects that the court spent a considerable amount
of time questioning jurors whose answers initially suggested
they would be unable to impose a verdict of death, and
ultimately denied the prosecutor’s challenges for cause to
several of those jurors. Panelist C.G., for example, indicated in
response to the questionnaire that he was strongly opposed to
the death penalty except in rare cases, and that his views would
affect his ability to follow the law. When asked by the court if
he could keep an open mind as to penalty, the juror responded,
“No, if it’s the death penalty, I’d go the other way,” and “I just
don’t believe in it.” The court then told the panelist, “[T]hat’s
your personal view” but asked if he could set that view aside and
follow the law, which required him to keep an open mind as to
both penalties. The panelist confirmed he could keep an open
mind. The court then reviewed other answers on the panelist’s
questionnaire that suggested he would not consider a verdict of
death. When asked, the panelist affirmed that he could keep an
open mind because “I’ve got to go along with, you know, with the
law.” On questioning by the prosecutor, the panelist stated that
he was opposed to the death penalty for religious reasons. The
prosecutor then asked, “Is there any murder case where you
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would vote for the death penalty?” to which the panelist
responded, “Not that I know of.” The panelist indicated that, if
selected, he would consider the evidence and discuss penalty
with the other jurors. The prosecutor questioned, “Can you keep
an open mind[] to giving the death penalty?” to which the
panelist replied, “I don’t think so.” The court followed up, asking
the panelist if he had such strong feelings against the death
penalty that he would always vote against it, no matter the
evidence. The panelist responded, “Yes, sir.” The court asked
the panelist to explain. The panelist stated that he did not
personally believe in the death penalty. However, he would
listen to the evidence and discuss the case with the other jurors,
and could ultimately keep an open mind as to penalty. The court
denied the prosecutor’s challenge for cause observing, “I
appreciate that the juror has given some conflicting or
ambiguous answers, but I’m satisfied in the totality, that this
juror did understand the Court’s questions, and counsel’s
questions, to the extent that they are relevant to the ultimate
issues, as to whether he could perform his duties, and again, I’m
making every effort that I can to be consistent, and just as I have
advised counsel, that jurors that have strong personal views, in
either direction, whether they have strong views that the death
penalty should be imposed in every murder case, or that the
death penalty should never be imposed, for any murder, that’s
not the end of the story, I’m going to examine then whether the
juror can honestly set those views aside and perform their duty
as a juror. I’m making every effort to be neutral on this subject.”
Questioning of panelists G.G., L.M., and E.H. was similar, with
the court denying the prosecutor’s challenges for cause to these
panelists. This record reflects the court’s balanced approach to
voir dire.
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iv. Panelists M.T., K.D., E.W., C.H., and S.L.
Defendant identifies five panelists, M.T., K.D., E.W., C.H.,
and S.L., who initially survived challenges for cause but were
later excused when they disclosed biases that would affect their
ability to serve. He argues that the voir dire of these panelists
shows that the court overreached to qualify them, only to have
them reveal later that they could not be fair. The record does
not support this assertion.
First, the court did not find any juror qualified until it was
satisfied that the juror’s views had been completely examined.
More fundamentally, jury selection is an ongoing process.
Jurors may have no idea what kind of case they may be called
upon to judge when they report for service. Often when they
learn the case to which they have been assigned is a capital one,
they wrestle with weighty considerations to which they may not
have previously devoted much thought. Even when all panelists
have been passed for cause, the court may ask, before swearing
the panel, whether anyone in the box has any question about
their ability to be fair and impartial to both sides if called upon
to judge the facts, or to decide upon the appropriate verdict
under the law, should that decision become necessary. It is also
not unknown for jurors, who honestly believed they were up to
the task, to report, even during trial, that they now doubt their
ability to be fair and impartial. We turn to the panelists to
which defendant refers.
Each of these panelists was individually questioned on
voir dire, and then called to the jury box approximately a month
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later for the final selection process.26 At that time, each panelist
was again asked if there was “any reason” why he or she should
not be on the jury. Each panelist brought up a concern not
previously disclosed.
Panelist M.T., who worked for the Department of
Corrections and Rehabilitation as a vocational instructor, stated
during the initial voir dire that his employment would not affect
his ability to be fair, observing “I feel like I don’t judge [the
inmates]. [¶] Actually, I don’t even get involved in their cases.
[¶] I’m just there to educate them.” However, when M.T. was
called to the jury box for the final selection process, he raised a
concern that he could not be fair due to his place of employment.
The court noted that the panelist had not previously revealed
that sentiment, and M.T. replied, “I have been giving it a lot of
thought.” He was dismissed by stipulation of both parties.
Panelist K.D. worked for the railroad and initially
mentioned no conflicts arising from his job. However, when he
was called to the jury box approximately a month later, he
expressed concerns that he could not be fair. He recounted that,
at his work, a group of people from Arvin had been discussing
the case. They knew Chad’s father and said he was having a
hard time and wanted revenge on those responsible for his son’s
death. K.D. did not participate in the conversation but was
concerned that he would not be able to avoid such talk if he
worked during the trial. The court inquired whether K.D.
actually planned to work during the trial, and he indicated that
26
This approach is reflective of Hovey voir dire in which all
eligible jurors are questioned, but peremptory challenges are
not exercised until that questioning of all panelists has been
completed.
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he would be seeking weekend shifts. After the panelist stated a
concern about his ability to be fair, the trial court excused him.
Panelist E.W. disclosed in the initial voir dire that his
son’s girlfriend had previously dated the victim, and that the
couple visited the Yarbroughs at home shortly after the victim’s
death. E.W.’s son said that the victim’s bedroom was “like a
shrine.” The girlfriend had discussed the victim’s death with
E.W., but he did not recall the specifics of the conversation other
than that the victim was partially clothed and his hands bound
behind his back. The panelist himself had never met the
Yarbrough family. The visit of his son and his girlfriend would
not affect his ability to be fair and impartial. When asked if he
felt he had “some kind of a bond with the Yarbrough family” or
would have a bias because of those relationships, E.W.
responded, “No,” and explained, “I think whoever killed Chad
Yarbrough should be punished, whether it’s this guy or
somebody else. Yes, I’d listen to the evidence and decide from
that.” E.W. was “satisfied that [he was] completely fair and
impartial to both sides.”
Approximately a month later E.W. returned to the jury
box. He responded, “Yes,” when asked if there was any reason
he could not be completely fair to both sides. He stated that,
since the time of his initial voir dire and now, he had come to
believe he could not be impartial, citing his son’s relationship
with the victim’s former girlfriend. The court asked E.W. if he
had “further thoughts about the subject of being fair,” and E.W.
replied that he had. When asked what his “honest feeling” was,
E.W. said, “I’m leaning way too far for guilty.” Upon stipulation
of both parties, the court dismissed the panelist.
Panelist C.H. worked in Arvin as an elementary school
teacher. Two of her coworkers, whom she had known for about
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10 years, were friendly with the victim and attended his funeral.
The court inquired whether the panelist’s relationship with
these coworkers would affect her ability to be fair and impartial,
and she replied, “I don’t think it would affect that at all,” and
affirmed she could be completely fair to both sides. The court
then asked C.H. to imagine how she would feel if her coworkers
were critical of the jury’s verdict in the case. C.H. observed that
her coworkers were professional people and doubted that they
would question her. But if they did, she would not consider the
verdict her sole responsibility but rather the collective decision
of 12 jurors. She suspected that she “would probably just say
that I really am not supposed to talk about it, and that would be
the end of it.” The court emphasized the importance of deciding
the case independently and without outside pressures like
criticism or support. C.H. responded, “I understand now what
you’re saying. I don’t think that would happen.”
Asked about her knowledge of the case, C.H. stated that
she had heard in the media that the victim was carjacked, tied
up, and shot in the head. She described it as a “horrible crime.”
She also heard a coworker say that the victim’s mother was
taking his death “very hard” and needed sleeping pills to be able
to rest. When questioned by defense counsel, C.H. confirmed
her belief that the victim’s death was not accidental. Counsel
then asked, “So you assume, without hearing any evidence at all
in this trial, that Chad Yarbrough’s death was an intentional
first degree murder?” The panelist replied, “Yes.” Asked if there
was anything she could do to change that opinion, C.H.
answered, “There’s nothing. No.” But when the prosecutor
clarified that she was required to put aside her outside
knowledge and base her decision on the evidence presented at
trial, C.H. confirmed that she could do that, stating: “Yes, I
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could be fair and open-minded as to whether or not a murder
has been committed.” The court then questioned C.H. again: “I
want you to be honest with us, because this is not a situation
where you’re being pressured to either be on this jury or not be
on this jury.” “Can you really put out of your mind your opinion
that Chad Yarbrough was murdered, and keep an open mind to
listening to the evidence here in the courtroom, which may be
entirely different from what you’ve heard about or read about
previously?” C.H. responded, “Yes.” The court then asked, “Do
you understand how important that is?” Again, C.H. responded,
“Yes.” Finally, the court asked, “You’re satisfied that you can do
it?” C.H. once again answered, “Yes.”
Approximately one month later, C.H. was called to the
jury box as an alternate. Asked if she had concerns about
serving, she replied, “Yes.” Without further voir dire, both
parties stipulated to her excusal.
Panelist S.L. worked as a correctional officer and
institutional gang investigator for the Department of
Corrections and Rehabilitation. He was familiar with a Mexican
Mafia prison gang operating in the Arvin area but had not
interacted with gang members outside the prison setting. S.L.
expressed no doubt that he could set aside his specialized
knowledge and not act as a “surprise expert.” The panelist had
heard about the case in the news media and from coworkers. He
had heard that the victim was carjacked and shot in the head at
close range while kneeling. He understood that the victim was
killed over a “disrespect issue,” and that his penis was severed
and put in his mouth. When asked if he would be surprised that
these rumors were false, S.L. responded, “No.” He indicated
that he could disregard what he had heard and base his decision
on the facts presented at trial.
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About a week later, S.L. asked to speak to the court. He
said that he would lose about $400 if jury duty interfered with
his ability to attend a mandatory job training. The loss would
be a financial hardship. He also suspected based on defendant’s
name that his gang unit was asked to investigate matters
related to this case. He understood that “there was a telephone
call from an associate of the defendant, that spoke to somebody
on the outside about this case.” He was not personally involved
in the investigation and did not attempt to confirm this
information. Defendant renewed his challenge for cause, which
the trial court granted.
We find no judicial misconduct with respect to the
questioning of any of these panelists. The court allowed ample
voir dire and received multiple assurances of impartiality from
each of them. After reflection, and/or changed circumstances,
each raised concerns not previously expressed. The fact that
they disclosed new information or reconsidered their views
about things in no way suggests the court’s initial questioning
was overbearing. Once the court received the new information,
it dismissed each of the panelists without attempting to
rehabilitate them. No judicial bias appears.
v. Panelist N.C.
Defendant complains that the court’s manner of
questioning was so overbearing that it brought Panelist N.C. to
tears. N.C. was a 19-year-old, part-time student who worked in
a grocery store. At one point in the voir dire, the panelist began
to cry. The court asked if she needed a break or a glass of water,
but N.C. indicated that she was okay. When asked if she felt
uncomfortable, N.C. explained, “Yeah. [¶] I’m just — I’ve never
done this before. I don’t know what to do.” The court
emphasized that it did not want N.C. to feel “under any
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unnecessary pressure” and that it was “okay to be nervous.” It
then asked, “Was there something that I was doing that caused
you to become upset this afternoon and cry this afternoon in
court?” N.C. responded, “It’s just that I’ve never done this, and
I’m not sure about the questioning. I’m not used to thinking
about this.” The court then emphasized that “I hope you don’t
think I’m trying to pick on you or make you feel embarrassed,”
to which the panelist replied, “No.” Voir dire continued without
incident and the trial court ultimately excused N.C. for cause.
The court explained that it was concerned about her display of
emotion and that she “was not giving a lot of independent
thought to her answers, but was rather tending to agree with
whoever was asking her the questions, and that she was having
a difficult time comprehending the subject matter, and that she
was basically becoming confused by the process.” The
prosecutor opined that the court had a “brusk” manner and
spoke loudly when it told the panelists to explain their answers:
“That’s the way it comes across to myself, defense counsel, and
I think to the jurors.” He opined, “I don’t think it’s offensive, in
any way, but I can see how it can be misconstrued by the juror.”
The court responded, “I appreciate constructive criticism from
counsel. [¶] If I’m becoming brusk, and if I’m not aware of it,
then I appreciate counsel respectfully suggesting that I consider
my tone, and I do have a loud voice, in general —”
The record suggests that this young panelist was
overwhelmed by the process of voir dire and being questioned
before strangers in an unfamiliar setting using somewhat
arcane procedures. Participating in such a process can be
stressful and unsettling. Different people respond differently to
these circumstances. A review of the record shows this to be an
aberration, however. The other panelists readily answered the
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court’s questions and participated fully and honestly in voir dire.
Although we cannot discern tone from the cold record, later
observations by both the parties and the court on the record
indicate that the court was generally even in its tone. That this
youthful and inexperienced panelist was overwhelmed is
unfortunate, but it does not demonstrate judicial bias against
defendant or his counsel or a failure of the voir dire process as a
whole.
Finally, defendant complains that the trial court
impermissibly limited counsel’s voir dire, preventing counsel
from probing the panelists’ views on what circumstances might
support a verdict of less than death. A review of the voir dire
record as a whole, with particular emphasis on the panelists
discussed above, belies this claim. The court conducted
thorough voir dire of all panelists on the topic of the death
penalty. It allowed defense counsel considerable leeway to
follow up and did not enforce any specific time limit on
questioning.
In summary, a review of the entire voir dire, and
particularly the panelists identified by the defendant, shows
that the court conscientiously conducted a thorough voir dire
and conscientiously probed areas that might reveal bias. The
court’s inquiry, in turn, prompted honest and thorough
responses by the panelists.
b. Treatment of Defense Counsel
Defendant also criticizes the court’s demeanor towards
counsel, arguing that the court was hypersensitive, quick to
threaten, and unwilling to acknowledge error. “ ‘Although the
trial court has both the duty and the discretion to control the
conduct of the trial [citation], the court “commits misconduct if
it persistently makes discourteous and disparaging remarks to
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defense counsel so as to discredit the defense or create the
impression it is allying itself with the prosecution” [citation].
Nevertheless, “[i]t is well within [a trial court’s] discretion to
rebuke an attorney, sometimes harshly, when that attorney
asks inappropriate questions, ignores the court’s instructions, or
otherwise engages in improper or delaying behavior.” ’ ” (People
v. Woodruff (2018) 5 Cal.5th 697, 768 (Woodruff).) As for
allegations of actual bias, the “ ‘controlling principle’ ” rests on
a “ ‘general concept of interests’ that may prevent adjudicators
from remaining ‘ “disinterested in the conviction or acquittal of
those accused,” ’ ” such as “bias toward [the] defendant or a
group to which she belonged,” “past controversy between the
judge and [the] defendant, pecuniary interests, or other
‘influence at issue.’ ” (Nieves, supra, 11 Cal.5th at p. 499.)
Defendant cites the voir dire of panelist T.B. as an
example supporting his claim of misconduct and bias. The court
asked this panelist: “If the evidence and law required it, could
you return a verdict for the death penalty?” T.B. responded,
“Yes.” The court then asked, “If the evidence and law required
it, could you return a verdict for life without parole?” T.B. again
responded, “Yes.” Defense counsel objected to the court’s
question on the ground that “the law never requires death.” The
objection was overruled. Both parties passed for cause. Defense
counsel then objected, in T.B.’s presence, that the panelist had
been “misinformed about the law.” T.B. was asked to leave the
courtroom, after which defense counsel said that the court had
improperly asked the panelist “if he could find the death
penalty, if the law required it.” He observed that “[t]he law
never requires the death penalty.” The court countered that
counsel had misquoted the court; the question asked about
returning a verdict of death “if the evidence and law required it.”
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(Italics added.) Defense counsel and the court debated whether
there was a material difference between referring to what the
law requires and what the evidence and law requires. The court
commented: “Mr. Bryan, do you understand what the Court told
the juror. I said if the evidence and the law require it. That’s
standard language in asking jurors if they can follow the
evidence, follow the law, return a fair verdict.” The court noted
that it had asked the same question respecting both death and
LWOP, and that the panelist would understand that “he would
have to consider either verdict, and return the verdict that was
proper under the evidence and the law. That was the point I
was making.”
Courts should take care not to suggest to the jury that a
death verdict would ever be “required.” (See People v. Medina
(1995) 11 Cal.4th 694, 781 [jury’s role is to determine whether a
death verdict is “ ‘warranted’ ”]; People v. Hendricks (1988) 44
Cal.3d 635, 654 [jury must determine whether death is the
“ ‘appropriate’ ” penalty].) T.B. was questioned separately from
other panelists and ultimately did not serve. There is no concern
that a sitting juror was misled about the law. Moreover, the
court changed its approach to that question with subsequent
panelists. For example, in the next voir dire session, the court
asked a panelist who ultimately served as Juror No. 4: “Could
you listen to all the evidence both during the first phase, which
we call the guilt phase on the murder charge, and, if we got into
the penalty phase, also listen to any evidence in that penalty
phase? It might include evidence regarding the defendant
personally, perhaps his background, his life. And some of the
evidence might be argued to be circumstances in mitigation,
which might cause the jury to find that the appropriate penalty
would be life in prison without parole. Other evidence might
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support circumstances in aggravation, which might cause the
jury to decide that the appropriate penalty would be the death
penalty. [¶] Can you keep an open mind to consider what
weight to give, if any, to all of that evidence, all of those
circumstances, and in that way decide which penalty the jury
should return with?” (Italics added.) Subsequent questioning
was similar. (See, e.g., reference to the “appropriate” penalty;
reference to circumstances that “might cause a jury to lean
toward a death penalty” and a decision about “what penalty
would be appropriate”; reference to “whether the proper penalty
should be the death penalty or life in prison without parole”;
reference to “evidence [that] would support circumstances in
mitigation . . . and that might cause the jury to lean toward a
penalty of life in prison without parole” and “evidence [that]
might support circumstances in aggravation, which might cause
the jury to lean toward a verdict of death penalty” and asking
the juror to “keep an open mind as to which of those two possible
penalties it would return.”) The record demonstrates that the
court, responding to defense counsel’s objection, modified its
phrasing of the questions. Its response was neither hostile nor
inflexible.
As for defendant’s criticism of the trial court’s demeanor,
a review of the voir dire indicates that the trial court took a firm
but diplomatic approach with both parties in an attempt to rein
in inappropriate conduct and maintain an atmosphere of
decorum. The following example is illustrative. Outside of the
presence of the panelists, defense counsel objected “strenuously”
to the court’s questioning. The court instructed counsel to avoid
such inflammatory and disrespectful language. Counsel
retorted: “Strenuously is a very proper adverb in our lexicon,
and that’s the word I’ve chosen to use.” The court observed: “I’m
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telling you that you have been using words like strenuously but
then going beyond that, like accusing me of badgering jurors.
And that’s the kind of language I think is inflammatory, Mr.
Bryan. And it’s unnecessary, and it creates an unnecessary tone
in this courtroom. And I’m not accusing [you of] intentionally
being disrespectful. But if you continue to use that kind of
language, it suggests to me that you are going to get into that
area, and I want to avoid that. [¶] Do you understand my
concern?” Defense counsel retorted, “I understand your words,
your Honor. And I understand — I certainly understand what
you have said, yes.” The court responded, “Then let’s all
maintain an atmosphere of respect for each other. [¶] If you
object, state your objection. Put it on the record. I’ll consider it,
and then I’ll rule on it. But I’m not impressed by language that
is unduly exaggerated or inflammatory. That’s not going to
make me more likely to grant motions or sustain objections. You
state your objection. You do it in a professional manner. You
can be a forceful advocate, but you don’t have to do it by using
language that’s unnecessary.” The court took the same
approach with the prosecutor. At one point outside of the
presence of any panelist, the prosecutor objected to defendant’s
argument, stating, “[T]hat’s the most outrageous thing I have
ever heard” and calling the argument “ridiculous.” The court
cautioned the prosecutor to “keep your voice calm when you
express your objection.” The court continued: “I’m going to
remind Mr. Barton I appreciate all of you have strong feelings
about certain issues and you want to state your points forcefully.
But the Court is not impressed [by] any language that’s not
necessary. And I understand the nature of your objection. [¶]
You are going to make your points with me, Mr. Barton, in a
manner without using words like ridiculous. Because I don’t
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want [defense counsel] to think that’s giving you an advantage
by using that kind of language. I don’t want them to use that
type of language either. Let’s use logic and reason and
advocacy.”
Defendant maintains that the court threatened to
“pursue” counsel for making false characterizations on the
record. In one exchange outside the presence of any panelists,
defense counsel accused the court of “intimidat[ing]” one of the
panelists by speaking in a loud tone. The court responded that
counsel should be “very careful” in making such an allegation
“because I don’t take that as an allegation to make lightly.” The
court observed that “we all have our good days and bad days. [¶]
But I think I’m having a pretty good day in terms of being fairly
neutral and not overly loud with jurors today, Mr. Bryan. [¶]
And I specifically don’t recall having any sharpness to my voice
or raising my voice unduly with” panelist G.K. The court then
invited defense counsel to give a specific example, and to be
“very careful when you give your response, because if you’re
making an allegation without some good faith basis, I may have
to pursue that.” Counsel clarified that his objection was to the
repetitive nature of the questioning, and acknowledged that “I
agree with the Court, by the way, the Court’s tone of voice has
been very low all day today. [¶] I agree with that.” There was
nothing improper in this exchange. The trial court had an
obligation to make a record regarding counsel’s allegation that
the court had raised its voice, because the “tone” of voir dire
would not be reflected on the printed transcript. When the court
challenged counsel’s assertion, defense counsel admitted he had
overstated his case as to the court’s demeanor.
In another exchange outside of the presence of any
panelists, defense counsel argued that the court’s voir dire of
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prospective panelists and its rulings on motions demonstrated
the court had “a bias towards the prosecution,” had “prejudged”
the guilt phase and the venue motion, and that there was “a
serious miscarriage of justice going on in this courtroom.” When
asked for more specifics, defense counsel opted to reserve and
renew the motion at a later time. The court then observed, “I
appreciate counsel are going to be aggressive advocates for your
sides. [¶] But once again, I caution counsel that to the extent
that you make representations about what the record is, if you
feel that this Court is engaging in some activity which is to be
construed as unfair, then I ask you to please be careful and have
a good faith basis for making those types of challenges. Because,
again, they can be certainly proper, if you think there’s a good
faith basis for it. But if you don’t have a good faith basis for it,
there can be subsequent proceedings, including State Bar
proceedings, if counsel are engaging in tactics that are not good
faith. [¶] I’m not suggesting that’s [what] happened. [¶] It’s
just that we don’t lightly accuse either counsel or courts of being
biased or unfair without good faith. [[¶] If there is lack of good
faith, there can be implications. [¶] I’m not saying that as a
threat. I’m asking counsel to have a basis for making those
kinds of accusations.” Counsel retorted that he should not have
to “worr[y] about my livelihood, my license,” and that “I’m going
to do my job, and if the Court sends me to jail, that’s fine.” The
court reassured counsel that “I have not threatened to send you
to jail nor to refer you to the State Bar.”
Defendant observes that, despite these assurances, the
court did, at some point, file a complaint against defense counsel
Bryan with the State Bar. Counsel became aware of the
complaint months after the trial ended, when he received a
letter from the State Bar informing him that the investigation
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had been completed and no disciplinary action would be taken.
The record does not reflect that the complaint was filed during
the course of the trial. In any event, the mere act of referring
an attorney to the State Bar for investigation, without more,
does not demonstrate actual bias. And, significantly, Bryan was
unaware of the pending referral while the trial was ongoing, so
it could not have adversely affected his performance. Defendant
cites to defense counsel’s statements during a hearing on the
motion for new trial that he was, in fact, intimidated by the
court’s suggestion that it might take disciplinary action against
him. But counsel did not urge that his performance was
adversely affected. Instead, he argued that defendant was
entitled to a trial “that was free from so much acrimony.” A
review of the record shows that counsel provided vigorous
advocacy throughout, and appeared more emboldened than
cowed by the trial court’s repeated requests for moderation and
civility.
In summary, the record as a whole demonstrates that the
court made every effort to be fair to both sides and to maintain
civility and decorum. Although “a few of the court’s comments
to defense counsel were more pointed, the comments did not rise
to the level of ‘an unconstitutional display of judicial bias,’ but
instead amounted to correct rulings occasionally accompanied
by [frustration] at defense counsel’s argumentative . . . and
improper remarks.” (Woodruff, supra, 5 Cal.5th at p. 768.)
“Such instances of friction . . . ‘are virtually inevitable in a long
trial.’ ” (Id. at p. 770.) They in no way resemble the type of
disparaging and pervasive remarks that we have found to be
reversible misconduct. (See, e.g., Nieves, supra, 11 Cal.5th at
pp. 477–485, 505–507; People v. Sturm (2006) 37 Cal.4th 1218,
1233–1243.) Moreover, we have refused to find misconduct
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“when the record does not demonstrate how [the court’s
comments] might have influenced the jury or otherwise affected
the trial.” (Nieves, supra, 11 Cal.5th at p. 496.) None of the
examples defendant cites took place in front of any panelists or
sworn jurors. Indeed, the trial court took great pains not to
expose the jurors to such disagreements. “The isolated
comments [defendant has identified] in a lengthy trial in which
the court exhibited some impatience with counsel’s
argumentative comments and questions do not demonstrate
misconduct or bias, much less misconduct that was ‘so
prejudicial that it deprived defendant of “ ‘a fair, as opposed to
a perfect, trial.’ ” ’ ” (Woodruff, at p. 772.)
The record reflects that this was a hard-fought and
thoroughly litigated trial. Advocates, of course, have a
responsibility to urge their positions forcefully and forthrightly.
Friction can result, however, in the heat of the moment. As
some of the excerpts quoted or described here reveal, at times
counsel were far from cordial with each other or the judge. A
trial court presiding over contentious litigation has an
obligation to ensure that zealous advocacy does not devolve into
ad hominem attack and that the jury is not influenced by a
hostile courtroom atmosphere. A complete review of this record
shows that the court’s intervention was directed at both counsel
and appropriately focused on maintaining professionalism and
courtesy.
6. Witherspoon/Witt Error
Defendant contends the trial court’s dismissal of Panelist
K.G. violated the principles of Witherspoon v. Illinois (1968) 391
U.S. 510 and Witt, supra, 469 U.S. 412. We find no error.
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As noted, “To achieve the constitutional imperative of
impartiality, the law permits a [panelist] to be challenged for
cause only if his or her views in favor of or against capital
punishment ‘would “prevent or substantially impair the
performance of his [or her] duties as a juror” ’ in accordance with
the court’s instructions and the juror’s oath.” (Blair, supra, 36
Cal.4th at p. 741, quoting Witt, supra, 469 U.S. at p. 424.) A
panelist’s bias in favor of or against the death penalty need not
be proven with “ ‘ ”unmistakable clarity. [Citations.] Rather, it
is sufficient that the trial judge is left with the definite
impression that a [panelist] would be unable to faithfully and
impartially apply the law in the case before the juror.” ’ ”
(Abilez, supra, 41 Cal.4th at pp. 497–498,)
Panelist K.G. indicated in her questionnaire that she felt
LWOP was the appropriate punishment in a murder case. She
wrote, “Yes” to the question, “Would the nature of the
punishment affect your ability as a juror to follow the law?”
Asked to mark the answer that best corresponds to her views on
the death penalty, K.G. circled: “While I am somewhat opposed
to the death penalty, I do believe there are cases where a death
sentence should be imposed for a deliberate murder.” She also
wrote, “I have mixed feelings about it.” She did not have any
religious or moral views that would make it impossible for her
to return a verdict of death. She indicated that she could set
aside her personal views about the death penalty and reach a
verdict in accordance with the law and evidence. Her feelings
were not so strong that she would automatically vote against the
death penalty regardless of the evidence. She was open minded
and would give consideration to both penalties based on the
evidence presented at trial.
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The court and parties probed these answers during voir
dire. Asked by the court if she could consider both LWOP and
death as possible penalties, K.G. replied, “I’m not sure.” She
explained, “[I]n my opinion, if they show remorse, then I mean I
don’t think they should be sentenced to death.” When asked if
she could keep an open mind and consider all the circumstances,
K.G. responded, “I don’t think I’d have an open mind. I mean, I
don’t think I could have any part in sentencing somebody to
that — to death.” Asked if the prosecution proved a murder in
connection with kidnapping and carjacking whether she could
return a verdict of death, K.G. said, “Well, if the evidence was
there, I believe I could.” She affirmed that “if I had all the
evidence, I would have an open mind about it.” The court then
asked if the panelist was “satisfied, then, that you do have an
open mind to consider the two possible penalties at a penalty
phase, either death or life without parole?” K.G. replied, “Yes.”
The prosecutor probed: “I’m a little bit confused. You told
the Judge that you could have no part in sentencing somebody
to death. Is that correct?” K.G. responded affirmatively. The
prosecutor then asked, “Is that how you feel? You wouldn’t want
to be responsible for sentencing somebody to death?” She
replied, “I think it would weigh heavy on me, knowing that I had
apart [sic] in it.” When asked what type of “rare” circumstances
K.G. felt would warrant death, she said, “[I]f they showed no
remorse for what they did and they were like, you know, they
just really didn’t care about it, then I think they should be
sentenced to death.” The prosecutor then asked K.G. if she could
“search your soul” and “look inside yourself and say okay, I
wouldn’t be leaning towards life without parole going into that
penalty phase? Can you say that?” The panelist replied, “No.”
He then said, “[C]an you say honestly that even if you felt
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somebody didn’t have remorse, and — you sit in this courtroom,
you’d be looking at the defendant every day, you actually have
the ability to say I vote for the death penalty. You can’t do that,
can you?” The panelist replied, “No.”
Defense counsel attempted to rehabilitate K.G., asking,
“[Y]ou would follow the law in this case and do what the Judge
instructed you, wouldn’t you?” to which she replied, “Yes.” He
asked if she felt this was a “cold-blooded calculated murder and
the man deserved to die, you could vote for the death penalty,
couldn’t you?” Again, K.G. replied, “Yes.”
The trial court then addressed K.G. again, asking, “What
is your honest feeling about your ability to keep an open mind
and come out here and sit down and look at all of us, and either
say yes, I voted for the death penalty or yes, I voted for life
without parole, could you do that and look at every one and say
yes, I voted for the death penalty?” She answered, “No.” When
asked to explain her prior answer to defense counsel, she
replied, “[G]osh I don’t think I could. [¶] . . . [¶] [e]xplain it. I
just know that I wouldn’t be able to come out here and — I don’t
think I could have any part in somebody going to — sentenced
to death.”
The court granted the prosecutor’s challenge for cause,
observing that K.G. “had mixed feelings about this, was very
apprehensive.” It found “under the circumstances, including the
demeanor of the [panelist], that she was clearly equivocal in her
responses, and that she would be unable to carry out the duties
that she would be required to, that her views on capital
punishment would prevent or substantially impair her ability to
be neutral and follow the Court’s instructions.”
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The record supports the trial court’s ruling. K.G.
expressed concern that she could not return a sentence of death,
stating that she was not sure, that she had mixed feelings, and
that the decision would weigh heavily on her. She did believe
that she could follow the law and the court’s instructions.
Nonetheless, when asked directly if she could impose a sentence
of death, she thrice stated that she could not. The trial court
and the parties engaged K.G. in extensive voir dire. As a result,
the court was “in the unique position of assessing demeanor,
tone, and credibility firsthand — factors of ‘critical importance
in assessing the attitude and qualifications of [panelists].’ ”
(People v. DePriest (2007) 42 Cal.4th 1, 21.) “[W]e defer as we
must to the trial court’s evaluation of the [panelist’s] demeanor,
which the court expressly stated it had carefully observed,
together with her responses. The trial court was entitled to
credit [the panelist’s] statement that she would not consider
death as a potential penalty in this proceeding.” (People v.
Lynch (2010) 50 Cal.4th 693, 734 (Lynch); see also People v.
Nunez and Satele (2013) 57 Cal.4th 1, 25 [panelist’s conflicting
responses supported a challenge for cause].)
Defendant argues that K.G. said she could impose the
death penalty in rare circumstances, such as when the crime
was cold-blooded and the defendant had no remorse. But the
prosecutor inquired on that topic, and the panelist ultimately
stated that she could not impose a death sentence even under
these circumstances. “[T]he mere theoretical possibility that a
[panelist] might be able to reach a verdict of death in some case
does not necessarily render the dismissal” erroneous. (People v.
Martinez (2009) 47 Cal.4th 399, 432; accord People v. Beck and
Cruz (2019) 8 Cal.5th 548, 607–608.) While K.G. allowed there
might be some theoretical possibility she could impose a
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sentence of death, her comments made clear it was not a
realistic possibility. The court was “left with the definite
impression that she was substantially impaired, and that
determination is supported by substantial evidence.” (Beck and
Cruz, at p. 608.)
Defendant also objects that the trial court engaged in one-
sided voir dire designed to disqualify K.G. Not so. The panelist’s
answers were conflicting. The trial court’s voir dire was neutral
and aimed at clarifying her responses. To that end, the court
focused appropriately on whether K.G. could set aside her
personal views and base a decision on the law and evidence.
Defendant complains that the court unfairly asked the
panelist if she could “look at all of us” in the courtroom and
announce a verdict of death. But we have found such questions
proper, explaining that they are “an acceptable means of
impressing upon each [panelist] that the verdict of death would
affect a real person who would be in the courtroom at that time,
and sought to elicit whether, under these circumstances, the
[panelist] nevertheless would be able to vote for death.” (People
v. Samayoa (1997) 15 Cal.4th 795, 853; accord, Lynch, supra, 50
Cal.4th at p. 734.) The “predicate of the question was sound”
because “[j]urors must be prepared to affirm their verdicts.”
(People v. Bramit (2009) 46 Cal.4th 1221, 1235.)
The trial court acted within its discretion in excluding K.G
for cause.
7. Wheeler/Batson Error
Defendant argues that the prosecutor’s peremptory
challenges to one Black and three Hispanic panelists violated
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v.
Kentucky (1986) 476 U.S. 79. The trial court found defendant
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failed to make a prima facie case with respect to all four
panelists and did not require the prosecutor to explain the
challenges. Although the issue is close, upon independently
reviewing the record we find there was no prima facie showing.
On January 17, 2001, defendant brought a Wheeler motion
following the prosecutor’s exercise of a peremptory challenge
against T.B., a Black man. The trial court denied the motion.
Defendant renewed his motion following the excusal of three
additional panelists with Hispanic surnames and/or
appearance: J.B. and T.D. were women; F.R., a man. Again, the
motions were denied.
During a break in the proceedings, the trial court
expanded the record in this regard. The court confirmed that
T.B. was Black, and that T.D. and F.R. appeared to be Hispanic.
It indicated that J.B. appeared to be White and questioned
whether her surname was Hispanic. The prosecutor agreed that
the panelist appeared to be White, while defense counsel opined
she was a “mix of Hispanic and Filipino” with a Hispanic
surname. The court concluded that “[s]he had the appearance
of a [W]hite female, and I have categorized her as such.” To
ensure complete review we will accept defendant’s
characterization of panelist J.B. as Hispanic for purposes of our
analysis. “We have held that Spanish surnames may identify
Hispanic individuals, who are members of a cognizable class for
purposes of Batson/Wheeler motions. (People v. Trevino (1985)
39 Cal.3d 667, 686, disapproved on other grounds in People v.
Johnson (1989) 47 Cal.3d 1194.) ‘Where . . . no one knows at the
time of challenge whether a particular individual who has a
Spanish surname is Hispanic, a showing that [panelists] are
being excluded on the basis of surname alone’ may nonetheless
constitute a prima facie case of impermissible strikes based on
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association with a cognizable group. (People v. Trevino, at p.
686.) ‘Although the correlation between surname and group
membership is not exact, such precision is unnecessary.’ (Ibid.)”
(People v. Gutierrez (2017) 2 Cal.5th 1150, 1156, fn. 2.)
In ruling on the motion, the court stated that it had
“considered” the Wheeler line of cases along with all relevant
circumstances, which included the ethnic and racial background
of others in the box, other panelists remaining, and the
circumstances of those who had been excused. It ultimately
concluded: “I don’t find a prima facie case.” The prosecutor
accordingly declined to state any reasons for excusing the
challenged panelists.27
The jury as sworn contained three Hispanics and nine
Whites. The five alternates included two Whites and three
Hispanics. As noted, original Juror No. 12, a White woman, was
excused during trial and replaced by Alternate Juror No. 3, a
Hispanic woman. Thus, the final composition included four
jurors of Hispanic descent.
We recently summarized the governing principles in
People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719(Holmes, McClain and Newborn):
“ ‘ “Both the federal and state Constitutions prohibit any
advocate’s use of peremptory challenges to exclude prospective
jurors based on race.” ’ (People v. Parker (2017) 2 Cal.5th 1184,
1210.) ‘ “Doing so violates both the equal protection clause of
the United States Constitution and the right to trial by a jury
27
Defendant brought Wheeler challenges to three additional
Hispanic panelists dismissed by the prosecutor, T.G., R.F. and
alternate B.D. The motions were denied and defendant does not
challenge the court’s ruling as to these panelists on appeal.
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drawn from a representative cross-section of the community
under article I, section 16 of the California Constitution.” ’ (Id.
at p. 1211.) The law also recognizes ‘ “a rebuttable presumption
that a peremptory challenge is being exercised properly, and the
burden is on the opposing party to demonstrate impermissible
discrimination.” [Citation.] “A three-step procedure applies at
trial when a defendant alleges discriminatory use of peremptory
challenges. First, the defendant must make a prima facie
showing that the prosecution exercised a challenge based on
impermissible criteria. Second, if the trial court finds a prima
facie case, then the prosecution must offer nondiscriminatory
reasons for the challenge. Third, the trial court must determine
whether the prosecution’s offered justification is credible and
whether, in light of all relevant circumstances, the defendant
has shown purposeful race discrimination. [Citation.] ‘The
ultimate burden of persuasion regarding [discriminatory]
motivation rests with, and never shifts from, the [defendant].’ ” ’
(Ibid.)” (Holmes, McClain and Newborn, supra, 12 Cal.5th at
pp. 759–760.)
“When this jury was selected in [2001], there was some
confusion as to the nature of the required prima facie showing.
In People v. Johnson (2003) 30 Cal.4th 1302, 1318, we held: ‘to
state a prima facie case, the objector must show that it is more
likely than not the . . . challenges . . . were based on
impermissible group bias.’ The United States Supreme Court
subsequently disapproved the ‘more likely than not’ formulation
as setting too high a threshold. Instead, it explained that
Batson’s first step is satisfied if the objector produces sufficient
evidence to support an inference that discrimination occurred.
(Johnson v. California (2005) 545 U.S. 162, 170.) For cases tried
before Johnson v. California, we have ‘adopted a mode of
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analysis under which, rather than accord the usual deference to
the trial court’s no-prima-facie case determination, we “review
the record independently to determine whether the record
supports an inference that the prosecutor excused a [panelist]
on a prohibited discriminatory basis.” ’ (People v.
Rhoades[ (2019)] 8 Cal.5th [393,] 428−429.) We apply that
analytical approach here and consider ‘ “all relevant
circumstances” ’ in doing so. (Id. at p. 429.)” (Holmes, McClain
and Newborn, supra, 12 Cal.5th at p. 760.)
“Though proof of a prima facie case may be made from any
information in the record available to the trial court, we have
mentioned ‘certain types of evidence that will be relevant for
this purpose. Thus the party may show that his opponent has
struck most or all of the members of the identified group from
the venire, or has used a disproportionate number of his
peremptories against the group. He may also demonstrate that
the [panelists] in question share only this one characteristic —
their membership in the group — and that in all other respects
they are as heterogeneous as the community as a whole. Next,
the showing may be supplemented when appropriate by such
circumstances as the failure of his opponent to engage these
same [panelists] in more than desultory voir dire, or indeed to
ask them any questions at all. Lastly, . . . the defendant need
not be a member of the excluded group in order to complain of a
violation of the representative cross-section rule; yet if he is, and
especially if in addition his alleged victim is a member of the
group to which the majority of the remaining [panelists] belong,
these facts may also be called to the court’s attention.’ (Wheeler,
supra, 22 Cal.3d at pp. 280–281, fn. omitted; see also Batson [v.
Kentucky], supra, 476 U.S. at pp. 96–97 [in assessing a prima
facie case, the trial court should consider ‘all relevant
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circumstances,’ including ‘a “pattern” of strikes against black
[panelists] and ‘the prosecutor’s questions and statements
during voir dire examination’]; [citations].)” (People v. Bell
(2007) 40 Cal.4th 582, 597.)
Exercising our independent review on appeal, we conclude
the defense failed to make the required prima facie showing.
The only Black panelist excused by the prosecutor was
T.B. Beyond the fairly extensive questioning of the court and
defense counsel, the prosecutor did not engage T.B. in additional
voir dire, and ultimately, there were no Black jurors or
alternates. But neither the defendant nor the victims were
Black, lessening concerns that the prosecutor had an improper
motive for excluding this particular group. (People v. O’Malley
(2016) 62 Cal.4th 944, 980 (O’Malley).) Moreover, the record
does not disclose the number of Black panelists in the jury panel,
or whether some Blacks were excused by the defense or by the
court for hardship or cause. Defendant offers no substantive
discussion of T.B.’s questionnaire or voir dire responses. On this
record, no prima facie case was made out respecting this
panelist.
As for the prosecutor’s excusal of Hispanic jurors, we note
that defendant shared the same ethnicity, while the victim was
White. “ ‘[R]acial identity between the defendant and the
excused person,’ or between the victim and the majority of
remaining jurors, raises heightened concerns about whether the
prosecutor’s challenge[s] [were] racially motivated.” (O’Malley,
supra, 62 Cal.4th at p. 980.)
Reviewing the 85 panelists who remained after excusals
for hardship or cause, 17 had Hispanic surnames. Thus,
Hispanic surnamed panelists composed 20 percent of the
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available panelists. Ordinarily, both sides would have an equal
number of peremptories: 20 each in a capital case. (Code Civ.
Proc., § 231, subd. (a).) However, in this case, the court allotted
six additional peremptories to the defense and one additional
peremptory to the prosecutor after the parties raised objections
to the court’s rulings on Witherspoon/Witt qualifications. As a
result, the prosecutor had 21 peremptories for the jury and an
additional five for the alternates; the defense had 26
peremptories for the jury and an additional five for the
alternates. In selecting jurors and alternates the prosecutor
excused a total of eight Hispanic panelists, or roughly 30 percent
of his 26 allotted challenges. The prosecutor exhausted all 21
challenges to the main panel; he accepted the alternates with
three challenges remaining. The defense peremptorily
challenged two Hispanic panelists. As noted, four Hispanics sat
on the final panel, and another two served as alternates. One
Hispanic panelist was left in the pool when the jury was sworn.
Our independent review of the prosecutor’s pattern of
strikes reveals a disparity early in the selection process. When
peremptory challenges began, there were two Hispanic panelists
seated in the box: D.M. and T.D. The prosecutor first struck
D.M. and used his second challenge to strike a non-Hispanic. He
then made a series of strikes against Hispanic panelists: C.A.,
T.D., F.R., and J.B., and he challenged T.B., the only Black
panelist. When J.B. was struck, eight Hispanics had entered
the box. Defendant had struck one (G.M.), and the prosecutor
had struck five. The defense brought Wheeler motions after the
challenges to T.B., T.D., F.R., and J.B. When the court denied
defendant’s Wheeler motion challenging the excusal of J.B., the
prosecutor had used five of seven peremptories (71.4 percent) to
strike five of the eight Hispanic panelists who had entered the
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box (62.5 percent). These rates were disproportionate to the
percentage of Hispanic prospective jurors in the venire (20
percent) and to the percentage of Hispanics among those who
had entered the box at that time (eight out of 28, or 28.6
percent). Numerical strike and elimination rates, considered
alone, reflect a notable disparity. (See, e.g., People v. Sanchez
(2016) 63 Cal.4th 411, 439 [prosecutor’s use of four of ten
peremptories (40 percent) to challenge four of six Hispanic
jurors (66 percent) “might suggest a discriminatory purpose”].)
However, in conducting our independent review, we
consider “ ‘all relevant circumstances.’ ” (People v. Rhoades,
supra, 8 Cal.5th at p. 429 (Rhoades).) Other factors in this
record ultimately persuade us that the prosecutor’s challenges
did not give rise to an inference of discrimination.
Of the panelists defendant challenges on appeal, the
prosecutor did not question J.B., and excused her at the first
opportunity. The prosecutor engaged T.D. in voir dire and
accepted four panels that contained her before excusing her.
The prosecutor engaged F.R. in voir dire. Although the
prosecutor excused him at the first opportunity, the prosecutor
had earlier opposed defendant’s challenge for cause to F.R.
These circumstances suggest that some reason other than
ethnicity ultimately prompted the prosecutor to excuse T.D. and
F.R. (See People v. Battle (2021) 11 Cal.5th 749, 777 (Battle).)
Between the peremptory challenges to C.A. and T.B., the
prosecutor accepted a panel with two Hispanics three times, and
once accepted a panel with three Hispanics. (See Holmes,
McClain and Newborn, supra, 12 Cal.5th at p. 764; People v.
Johnson (2019) 8 Cal.5th 475, 508; People v. Sanchez, supra, 63
Cal.4th at p. 439.) In the end, the prosecutor used eight of the
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23 strikes he exercised (34.8 percent) to remove eight of the 16
Hispanic panelists (50 percent) who entered the box. The
prosecutor’s final strike rate was therefore less disproportionate
than earlier in the peremptory challenge process. While the
inference to be drawn from this statistic may be lessened
somewhat by the fact that the prosecutor’s strike rate improved
after defendant’s Wheeler motions, it is nonetheless a relevant
consideration. (Holmes, McClain and Newborn, at pp. 763–764;
Battle, supra, 11 Cal.5th at p. 777; People v. Johnson, supra, 8
Cal.5th at p. 507.) The circumstances here stand in contrast to
those in Miller-El v. Dretke (2005) 545 U.S. 231, where the
prosecutor made a “late-stage decision to accept a [single] black
panel member,” (id. at p. 250), here, the ultimate Hispanic
participation on the jury was 33 percent of voting jurors (four of
12), a figure 13 percentage points greater than their
representation among those Hispanic panelists available for
selection (see Holmes, McClain and Newborn, at p. 762; Battle,
at p. 777). Considered in totality, these factors counter any
inference of discrimination that the pattern of the prosecutor’s
strikes against Hispanic panelists earlier in the selection
process might otherwise imply.
Defendant offers no analysis of the individual panelists or
their questionnaire and voir dire responses. He asserts without
elaboration that the trial court failed to adequately inquire into
his motion or to provide a sincere and reasoned explanation for
its rulings. His characterization ignores the trial court’s
observation that it took into account the ethnic and racial
characteristics of the jurors in the box, the remaining panelists,
and the circumstances of the jurors excused. In any event,
because we have independently reviewed the record, we need
not comment further on defendant’s assertion.
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We have taken into account the pattern of strikes and
passes to the panel, the final jury composition, and the
defendant’s general assertions in support of his claim. Because
we have concluded that defendant failed to raise an inference of
discrimination, we have not hypothesized as to any permissible
reasons that may have been the basis for the prosecutor’s
challenges. (See Holmes, McClain and Newborn, supra, 12
Cal.5th at pp. 765–766; People v. Johnson, supra, 8 Cal.5th at p.
510, fn. 7.) On this record, defendant’s assertions of error fail.
B. Guilt Phase Issues
1. Juror Misconduct
Defendant asserts that Juror No. 11 committed
misconduct by discussing the case with her father during the
trial and then mentioning the conversation to other jurors. The
trial court properly denied defendant’s motion to remove the
juror on this basis.
On February 5, 2001, during the trial, Juror No. 11
reported that her father had asked her during lunch if she was
getting bored with the case. When she said no, he replied,
“[W]hat’s taking them so long[?] They know he did it.” She
responded that she could not discuss the case. Her father was
hard of hearing and spoke in a loud voice that others around
them could hear. Juror No. 11 did not see any other jurors in
the vicinity at the time. She stated that her father’s views would
not affect her own.
The court brought in the entire jury and asked if any
members or alternates had overheard Juror No. 11 discussing
an incident during lunch. Juror Nos. 2, 4, 6, 9, and Alternate
Juror No. 2 replied affirmatively. Juror Nos. 2, 6, 9, and
Alternate Juror No. 2 said that Juror No. 11 had told them she
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had lunch with her father and he said something inappropriate
but did not give specifics. Juror No. 4 said that he overheard
Juror No. 11 say she would probably be kicked off the jury, but
nothing else. The trial court declined to dismiss the juror. The
court found it noteworthy that the juror brought the incident to
the court’s attention herself, an indication she was aware of and
trying to comply with her duties.
“ ‘An accused has a constitutional right to a trial by an
impartial jury. [Citations.] An impartial jury is one in which no
member has been improperly influenced [citations] and every
member is “ ‘capable and willing to decide the case solely on the
evidence before it’ ” [citations].’ [Citation.] [¶] [W]e first
determine whether misconduct actually occurred. [Citation.]
Misconduct ‘raises a presumption of prejudice “[which] the
prosecution must rebut . . . by demonstrating ‘there is no
substantial likelihood that any juror was improperly influenced
to the defendant’s detriment.’ ” ’ ” (People v. Hensley (2014) 59
Cal.4th 788, 824.)
“[A] juror’s inadvertent receipt of information that [has]
not been presented in court falls within the general category of
‘juror misconduct.’ ” (People v. Nesler (1997) 16 Cal.4th 561,
579.) Such inadvertent exposure, “even if not ‘misconduct’ in the
pejorative sense, may require . . . examination for probable
prejudice” (In re Hamilton (1999) 20 Cal.4th 273, 295), because
it “poses the risk that one or more jurors may be influenced by
material that the defendant has had no opportunity to confront,
cross-examine, or rebut” (Nesler, at p. 579). We conclude that
the father’s unsolicited comment to Juror No. 11 about
defendant’s guilt was misconduct that must be assessed for
prejudice.
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Juror bias “can appear in two different ways.” (In re
Carpenter (1995) 9 Cal.4th 634, 653.) “First, we will find bias if
the extraneous material, judged objectively, is inherently and
substantially likely to have influenced the juror.” (Ibid.)
Second, “even if the extraneous information was not so
prejudicial, in and of itself, as to cause ‘inherent’ bias under the
first test,” we consider the totality of the circumstances “to
determine objectively whether a substantial likelihood of actual
bias nonetheless arose.” (Id. at p. 654.)
People v. Danks (2004) 32 Cal.4th 269 (Danks), presents
similar facts. There a juror encountered her pastor, who was
aware she was serving as a juror in the defendant’s case. The
juror’s husband suggested she and the pastor discuss some bible
passages she had read, but she responded she did not need to
discuss anything. The pastor then said he understood she had
read several scripture verses. The juror affirmed she had, and
that they gave her comfort. The pastor commented that she had
chosen good scriptures, and then jokingly said if he were a juror,
he would impose the death penalty on the defendant. (Id. at pp.
298–301, 306.) We found the encounter constituted misconduct,
but was not prejudicial. The pastor’s “gratuitous personal view”
was not “inherently and substantially likely to have influenced”
the juror in light of the extraordinary penalty phase evidence.
(Id. at p. 307.) Additionally, the juror did not solicit the pastor’s
views and did not engage in further conversation about them.
Nor did she repeat her pastor’s views to the other jurors. (Ibid.)
Likewise, here, Juror No. 11’s father offered an unsolicited
and gratuitous opinion about defendant’s guilt. The juror did
not inquire into the basis for her father’s opinion or discuss any
trial evidence with him. She simply responded that she could
not discuss the case. The juror then commented to other jurors
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that she had an incident with her father that she needed to
report to the court. She did not convey to the other jurors the
substance of her father’s comment, and she promptly reported
and confirmed to the court that the comment would not affect
her. These circumstances, “judged objectively, were not
inherently and substantially likely to have influenced, i.e.,
biased,” Juror No. 11, and “the surrounding circumstances fail
to demonstrate actual bias.” (Danks, supra, 32 Cal.4th at p.
307.)
2. Admission of Gang Evidence
Defendant contends the trial court committed prejudicial
error by admitting the testimony of a gang expert about
defendant’s membership in the LFS gang. He contends the
evidence was irrelevant and unduly prejudicial, and that its
erroneous admission violated his due process right to a fair trial.
He also claims the expert’s testimony was inadmissible hearsay
under People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).
Defendant was not charged with a gang enhancement.
Before trial, he filed a motion to exclude evidence of his gang
membership as irrelevant to any issue in the trial and highly
prejudicial. The People opposed the motion. They argued that
defendant’s gang association with others who committed the
crime was relevant to prove his identity as one of the
perpetrators in the crimes against Paredes. The People further
argued that defendant’s gang membership established a motive
for the crimes. The People proposed to leave out the gang
evidence if defendant would stipulate to his presence during the
Paredes and Juan Carlos carjackings. No such stipulation was
forthcoming. The court admitted the evidence as “relevant . . .
to the issues of identification, as well as issues of motive and
intent, with respect to the charges pending against the
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defendant,” and found the probative value of the evidence was
not substantially outweighed by its prejudicial effect. (Evid.
Code, § 352.)
As set forth in further detail below, Deputy Contreras
testified about gangs in Lamont and offered his opinion about
defendant’s gang membership in LFS. He identified several
other persons as members of LFS or VCL based on their
admissions or other gang indicia: Freddy “Shadow” De La Rosa,
Daniel “Bonkers” Quintana, Efrain “Baby” Garza, Hector
Valenzuela, Carlos Rosales, Gabriel Flores, and Willie Santiago.
On cross-examination, defense counsel elicited that there
is a street gang in Arvin called the “Arvinas.” LFS and VCL
have rival gangs in Arvin. The witness acknowledged that
sometimes people associate with gang members without
actually having been “jumped in,” either because they are
personal friends of the members or because they are seeking
protection from rival gangs. The field contacts that were made
with defendant regarding his gang associations occurred when
he was 14 or 15 years old.
The trial court admonished the jury as follows: “[T]o the
extent that this witness is being offered as an expert witness on
the subject of street gangs, his testimony related to street gangs
is going to be admitted at this time for the limited purpose of
being circumstantial evidence on the subjects of identification,
motive, or intent. And it’s limited to those areas —
identification, motive, and intent. [¶] Keep in mind those
limitations as you listen to this testimony.”
a. Relevance and Evidence Code Section 352
“We have recognized that admission of evidence of a
criminal defendant’s gang membership creates a risk the jury
will improperly infer the defendant has a criminal disposition”
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and may have a highly inflammatory impact. (People v.
Williams (1997) 16 Cal.4th 153, 193.) Nonetheless, “evidence of
gang membership is often relevant to, and admissible regarding,
the charged offense. Evidence of the defendant’s gang
affiliation — including evidence of the gang’s territory,
membership, signs, symbols, beliefs and practices, criminal
enterprises, rivalries, and the like — can help prove identity,
motive, modus operandi, specific intent, means of applying force
or fear, or other issues pertinent to guilt of the charged crime.”
(People v. Hernandez (2004) 33 Cal.4th 1040, 1049 (Hernandez).)
Such evidence is admissible even when a gang enhancement is
not charged, provided the probative value of the evidence is not
substantially outweighed by its prejudicial effect. (Williams, at
p. 193.) A court’s admissibility ruling is reviewed for abuse of
discretion. (People v. Champion (1995) 9 Cal.4th 879, 922–923
(Champion).)
Here, defendant’s gang membership was relevant and
admissible to bolster Paredes’s identification of defendant as one
of his assailants. Proof that defendant and Efrain “Baby” Garza
were members of the same gang “formed a significant
evidentiary link in the chain of proof tying them to the crimes in
this case.” (Champion, supra, 9 Cal.4th at p. 921.) Paredes
identified defendant and Garza as two of the people who
kidnapped him. Defendant was also identified along with Garza
and several other LFS members28 in the kidnapping and robbery
of Juan Carlos. There was evidence that defendant and Garza
kidnapped and killed Chad.
28
Valenzuela, De La Rosa, Rosales, and Quintana.
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Defendant challenged his identification in the Paredes
crimes. He presented an expert witness who testified that
lighting and stress can affect the reliability of an eyewitness
identification. He also presented two alibi witnesses who
testified that defendant was at Ashley Medina’s home the night
that Paredes was assaulted. Finally, defendant himself testified
and denied involvement in the Paredes kidnapping.
In Champion, supra, 9 Cal.4th 879, we found gang
evidence admissible to bolster witness identification under
similar circumstances, explaining: “[E]vidence that defendants
were members of the same gang as other persons involved in the
commission of the crimes in this case fortified the testimony of
the persons who identified defendants as participants in the
murders. Thus, evidence of defendants’ gang membership
tended ‘logically, naturally, and by reasonable inference’ to
establish their identities as perpetrators of those offenses, and
the trial court did not abuse its ‘broad discretion’ [citation] when
it determined that the evidence of gang membership was
relevant.” (Id. at p. 922.)
In addition, long before trial, defendant himself injected
the subject of gang affiliation as a motive for both Chad’s
behavior and his own. In his statement to police, defendant said
that he confronted Chad, asking repeatedly if Chad knew who
defendant was. After abducting Chad, defendant “slapped the
bitch,” and told him that “it wasn’t a game to be playing around
with gangbangers . . . .” Defendant told the officers that he
intended to scare Chad because of a conflict with defendant’s
cousin and because Chad “was banging for Arvin.” Defendant
described the incident at the Rosales house, and referred to Jose
and Freddy Gomez as “Arvin [B]oys.” At trial, defendant elicited
testimony that there was a violent rivalry between Lamont 13
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and the Arvinas. Carlos Rosales had seen Chad associating with
Arvinas gang members.
We have held that introduction of gang evidence is proper
where the defendant himself identifies gang affiliation as a
motive. In Hernandez, supra, 33 Cal.4th 1040, the defendant
“identified himself as a gang member and attempted to use that
status in demanding money from the victim.” (Id. at p. 1051.)
We reasoned that testimony by a gang expert “helped the jury
understand the significance of Hernandez’s announcement of
his gang affiliation, which was relevant to motive and the use of
fear.” (Ibid.) And evidence of an alliance between two gangs
“served to explain why Hernandez and Fuentes were acting
together in the commission of this crime, thus buttressing such
guilt issues as motive and intent.” (Ibid.) Likewise here,
defendant’s gang affiliation provided context for his own
explanation of why he confronted Chad and supplied a motive
for the crimes.
Moreover, the trial court did not abuse its discretion in
concluding that the probative value of such evidence was not
substantially outweighed by its prejudicial effect. (Evid. Code,
§ 352.) The gang evidence was fairly brief. Deputy Contreras
testified to the existence of LFS, described defendant’s tattoos,
and opined that he and several others were members of the
gang. He did not discuss gang culture in general or describe any
criminal activity committed by the gang. Although the evidence
was admitted in part to prove motive, Contreras did not offer an
opinion on that point. The jury was instructed on the limited
use of the evidence to prove defendant’s identity, motive, and
intent. And defendant was able to use the evidence to his
advantage by suggesting that Chad associated with the Arvinas
gang and had sparked the confrontation by targeting
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defendant’s cousin and the latter’s mother. The evidence tended
to place the popular high school student in a less than favorable
light. The rulings were not improper.
For the same reasons, we reject defendant’s claim that
admission of gang evidence rendered his trial “fundamentally
unfair” in violation of his constitutional right to due process.
“Application of the ordinary rules of evidence generally does not
impermissibly infringe on a capital defendant’s constitutional
rights.” (People v. Kraft (2000) 23 Cal.4th 978, 1035 (Kraft);
accord, Prince, supra, 40 Cal.4th at p. 1229.) Defendant fails to
persuade that the circumstances here constitute an exception to
that general rule.
b. Hearsay and Confrontation Clause Claims
In a letter filed before oral argument, defendant identifies
Sanchez, supra, 63 Cal.4th 665 as new authority relevant to his
claim that the trial court erroneously admitted the gang expert’s
testimony. We find no prejudicial error.
In Sanchez, the defendant was convicted of drug and
firearm offenses with attached gang enhancements (§ 186.22,
subd. (b)(1)) and the substantive offense of active gang
participation (§ 186.22, subd. (a)). (Sanchez, supra, 63 Cal.4th
at p. 671, fn. 1.) On appeal, he argued that the gang expert was
erroneously permitted to testify about five prior contacts
Sanchez had with police which were recounted in police reports
and other sources but were not personally known to the expert.
(Id. at pp. 672–673.) The expert recounted the particulars of the
police contacts to explain the basis of his opinion that Sanchez
was a gang member and committed the charged offenses for the
gang’s benefit. (Id. at p. 673.) The jury was instructed that the
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testimony was not admitted for its truth but only to explain the
basis for the expert’s opinion. (Id. at p. 684.)
Sanchez affirmed that expert witnesses “can rely on
background information accepted in their field of expertise
under the traditional latitude given by the Evidence Code. They
can rely on information within their personal knowledge, and
they can give an opinion based on a hypothetical including case-
specific facts that are properly proven. They may also rely on
nontestimonial hearsay properly admitted under a statutory
hearsay exception.” (Sanchez, supra, 63 Cal.4th at p. 685; see
also id. at pp. 677, 683–685.) But Sanchez held an expert may
not relate case-specific, out-of-court statements, including
multiple level hearsay, about which the expert has no personal
knowledge, as a basis for the expert’s opinion. Because the jury
must consider such statements for their truth in order to
properly evaluate the expert’s opinion, they are inadmissible
unless they fall within a statutory hearsay exception or are
proved by other competent evidence. (Id. at pp. 670, 675–676,
679, 686.)
Sanchez further recognized that admission of case-specific
statements for their truth will violate the Sixth Amendment’s
confrontation clause if the statements are testimonial hearsay
as the high court defines that term, unless the declarant is
unavailable to testify and the defendant had a previous
opportunity to cross-examine the witness or forfeited the right
by the defendant’s own wrongdoing. (Sanchez, supra, 63 Cal.4th
at p. 680; Crawford v. Washington (2004) 541 U.S. 36, 61–62, 68
(Crawford); Giles v. California (2008) 554 U.S. 353, 357–373.)
Finally, Sanchez explained: “Once we recognize that the
jury must consider expert basis testimony for its truth in order
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to evaluate the expert’s opinion, hearsay and confrontation
problems cannot be avoided by giving a limiting instruction that
such testimony should not be considered for its truth.”
(Sanchez, supra, 63 Cal.4th at p. 684.)
We consider deputy Contreras’s testimony here 29 in light
of the principles articulated in Sanchez.
First, the deputy provided several details about gang
activity in Lamont, including: (1) Lamont has a street gang,
Lamont 13, which has two subsets, LFS and VCL; (2) Contreras
has had regular contact with gang members in Lamont; (3) gang
members in Lamont use signs to identify themselves and
regularly congregate at Myrtle Avenue school; (4) 13 stands for
the letter “M,” the 13th letter of the alphabet; (5) the Mexican
Mafia identifies with the letter “M,” the number 13, and
Southern California; (6) “Sureño” and Sur are Spanish words
meaning southern and south; (7) persons do not necessarily need
to be formally initiated or “jumped into” a gang to be gang
members, committing crimes for the benefit of the gang will
suffice; (8) tattoos can signify gang membership or affiliation;
(9) the gang will not allow someone who is not a member to use
“LFS” as a tattoo, or to write those letters, nor was the witness
aware of instances of nongang members getting gang tattoos.
Under Sanchez, this was permissible expert background
testimony. (Sanchez, supra, 63 Cal.4th at pp. 676, 685, 698.)
“[G]eneral testimony about a gang’s behavior, history, territory,
29
We examine the testimony elicited by the prosecutor.
Additional details about gang activities were elicited by the
defense on cross-examination, but that testimony cannot form
the basis for a claim of error based on hearsay or the Sixth
Amendment. (Sanchez, supra, 63 Cal.4th at p. 680, fn. 6.)
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and general operations is usually admissible. [Citation.] The
same is true of the gang’s name, symbols, and colors. All this
background information can be admitted through an expert’s
testimony, even if hearsay, if there is evidence that it is
considered reliable and accurate by experts on the gang.”
(People v. Valencia (2021) 11 Cal.5th 818, 838 (Valencia).)
Second, Contreras answered “Yes” to the following
hypothetical question: “So if somebody left the State for a period
of time, came back, committed three carjackings and a murder
with other fellow gang members of that same Lamont gang,
would it be your opinion at the time they were committing those,
that they were still members of the Lamont gang?” This
testimony, too, was permissible. Gang experts “can give an
opinion based on a hypothetical including case-specific facts that
are properly proven.” (Sanchez, supra, 63 Cal.4th at p. 685.)
Here, there was properly admitted evidence 30 as to each of the
facts included in the hypothetical question.
Third, the witness opined that various people were gang
members or associates, and stated the bases for his opinion. As
to Rosales and Flores, the witness relied on photographs and a
posterboard found in Rosales’s home, all of which the witness
authenticated. The posterboard had various references to
“Lamont,” “Familia,” Sureños,” and the numbers “1” and “3.” It
also contained a roster of names entitled “LFS XIII Boys.” There
were pictures depicting Rosales and Flores together, with Flores
forming the letters LFS with his arms and hands. The deputy’s
testimony about photographs depicting gang indicia and hand
signs that the deputy was able to authenticate was a permissible
30
Admissibility of evidence of each participant’s gang
membership is discussed immediately below.
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basis for his opinion that Rosales and Flores were LFS members.
(Sanchez, supra, 63 Cal.4th at p. 677.)
As to defendant, Contreras relied on a photograph seized
from Rosales’s house which showed defendant with several
people throwing gang signs, and photographs of defendant’s
tattoos, including a “1” and a “3” on the back of his arms, “LFS”
and the number “13” on his shoulder, a wide brimmed Mexican
hat with the word “Lamont” on it, and the word “Sur.” Because
the witness was able to authenticate these photographs, they
were a permissible basis for his opinion that defendant was an
LFS associate. (Sanchez, supra, 63 Cal.4th at p. 677.) Notably,
there was ample independent evidence of defendant’s gang
association as well. Both Rosales and Quintana testified from
personal knowledge that defendant associated with LFS. In his
statement to officers Wahl and Johnson, defendant admitted
membership in a Lamont gang but claimed to have left the gang
around 1995. And defendant’s own gang expert opined that
defendant was an LFS gang member based on his tattoos,
although the expert believed that the gang was defunct by 1995
and that Chad’s death was not gang related.
Finally, Contreras opined that De La Rosa, Garza,
Quintana, and Valenzuela were LFS gang members, and that
Santiago was a VCL gang member. Over defense objection, he
testified that De La Rosa, Garza, and Quintana had personally
admitted gang membership to him. He testified he was familiar
with Santiago and Valenzuela and that they “claim[ed]”
membership in the gangs, but he did not otherwise explain the
basis for his knowledge. The testimony was admitted on the
theory that the speaker’s out-of-court admissions formed the
basis for the expert’s opinion and were not admitted for the truth
of the matter asserted. No hearsay exception was proffered.
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(See People v. Turner (2020) 10 Cal.5th 786, 822–823.) This
failure constitutes state law error. (Sanchez, supra, 63 Cal.4th
at pp. 674–676, 685–686; see Valencia, supra, 11 Cal.5th at pp.
839–840.)
The record is insufficiently developed to determine
whether the recounted hearsay statements admitting gang
membership were testimonial, and therefore also violated the
Sixth Amendment’s confrontation clause. (Crawford, supra, 541
U.S. at pp. 62, 68.) Contreras testified generally that he obtains
intelligence from what gang members tell him, from reading
police reports, and from field interview cards documenting
police contacts on the streets. He did not specifically describe
the circumstances under which these admissions were made to
himself or others.
We need not resolve whether admission of this testimony
was state law error only, or also violated the confrontation
clause, because it was harmless under either standard.
(Watson, supra, 46 Cal.2d at p. 836; Chapman v. California
(1967) 386 U.S. 18; see People v. Navarro (2021) 12 Cal.5th 285,
310 (Navarro).) There was compelling, independently
admissible evidence that De La Rosa, Garza, Quintana,
Valenzuela, and Santiago were gang members.
Contreras personally took photographs of Garza’s and
Quintana’s gang tattoos, which he authenticated at trial.
Quintana testified at trial and admitted that he associated
with LFS and had an LFS tattoo. He testified from personal
knowledge that Rosales, Valenzuela, and Garza were LFS gang
members, and that Santiago and De La Rosa were members of
VCL. Defendant’s cousin, Rosales, also testified from personal
knowledge that Valenzuela, Garza, Quintana, and De La Rosa,
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all claimed Lamont affiliation and had gang tattoos, and that
Santiago claimed VCL. Santiago testified and admitted his
membership in the VCL gang.
Finally, no gang enhancement or substantive gang offense
was charged in this case. The gang evidence was admitted for
the limited purpose of proving defendant’s identity, motive, and
intent. (Evid. Code, § 1101, subd. (b).) The jury was so
instructed.
Given the substantial independent evidence that the
persons at issue, including defendant, were gang members, and
the limited purpose for which this evidence was admitted, the
erroneous admission of hearsay evidence to support Deputy
Contreras’s opinion that various men were gang members was
harmless beyond a reasonable doubt.
3. Admission of Defendant’s Statement
Defendant contends the trial court erroneously admitted
his statement to Sergeants Glenn Johnson and Rosemary Wahl
on July 24, 1998. He argues that he did not validly waive his
Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436) and
that his statement was involuntary. Defendant’s statement was
properly admitted.
a. Proceedings Below
The following evidence was adduced at a hearing on the
statement’s admissibility. Sergeants Johnson and Wahl first
interviewed defendant on July 19, 1998, at a jail in El Paso,
Texas. After being read his Miranda rights, defendant said he
understood them and was willing to speak with the officers.
During the interview, defendant consistently and repeatedly
denied any involvement in Paredes’s carjacking and Chad’s
murder. He claimed to be living in Arizona or New Mexico
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around the time of the crimes. The officers made clear that they
thought he was lying. At the conclusion of the interview, the
officers told defendant that they would let him “rethink
everything” while they left the room to complete paperwork and
that he could choose to talk to them again before they left Texas.
Defendant responded, “I don’t have nothing else to say to you
guys.” There was no further questioning at that time.
The officers returned five days later, on July 24, 1998, to
extradite defendant to California. Sergeant Johnson gave
defendant a complete Miranda advisement while they drove to
the airport in the event that defendant initiated a conversation
about the charges. Defendant indicated that he understood his
rights. The trip to California took approximately eight hours,
and the officers bought defendant a meal during the journey.
They did not question him about the crimes during this period,
and he did not invoke his right to silence or an attorney.
At the California station house, defendant asked Sergeant
Wahl what would happen with the charges and she alerted
Sergeant Johnson. Johnson in turn reminded defendant of the
previous Miranda admonition but did not reread the admonition
from a printed source. Specifically, he stated: “Okay, like I said
it’s uh, you know I’m gonna, before we get there I’m gonna
remind you that the rights I read to you uh in the car when we
picked you up (inaudible). You have the right to have an
attorney and you have a right to have an attorney present before
and during questioning, one will be appointed by the court. If
you can’t afford one and anything you say can and will be used
against you in a court of law. I don’t have the card in front of
me uh but I was reminding you of those rights. Having those
rights in mind do you wish to tell us about it now?” Defendant
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replied, “Yeah.” He then admitted his involvement in the
murder as described above.
The trial court found the July 24 statement admissible.31
It found that defendant was properly advised of his Miranda
rights on July 19 and voluntarily waived them. The court found
that defendant did not invoke his right to remain silent at the
end of that interview and that his statement was more
reasonably understood to mean that he had nothing more to say
to the officers at the time. The court found that Sergeant
Johnson advised defendant of his Miranda rights on July 24 on
the way to the airport and that defendant voluntarily waived
those rights. Finally, it found that there were no promises of
leniency or coercive statements made during any of the
interviews and that his statements were voluntary.
The trial court subsequently allowed defendant to reopen
the hearing so that defendant could testify. Defendant
recounted that, after he spoke to Sergeants Johnson and Wahl
on July 19, 1998, he was photographed in the hallway of the El
Paso police station. Two El Paso detectives commented to him
that he “should rat out whoever did it” so that he “wouldn’t go
down for something that [he] didn’t do.” A few days later,
defendant was taken before a judge for extradition proceedings.
In an elevator, he told the officer who had transported him that
he wanted an attorney, but no attorney was appointed for him
at that time. On the way back to jail, the officer encouraged
defendant to “take a deal that they offered me and just rat out
whoever was doing it.” Defendant further testified that on the
car trip to the airport, Sergeant Johnson began reciting the
31
The People did not seek to admit the July 19 statement.
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Miranda rights to defendant. But the officer got lost while
driving and did not finish the advisement.
The prosecution called several witnesses to rebut
defendant’s testimony. On July 19, 1998, Officer Jose Luis
Gomez of the El Paso Police Department received defendant
from federal authorities and brought him to the county jail. He
advised defendant of his Miranda rights but did not interrogate
him. Defendant did not request an attorney. Approximately
three hours later, Officer Gomez took defendant before a
magistrate for arraignment. Defendant was again advised of his
rights to an attorney and did not request one.
Detectives Carlos Ortega and David Samaniego of the El
Paso Police Department transported defendant to and from the
interview with Sergeants Johnson and Wahl on July 19, 1998.
The distance was approximately three to five miles each way.
After the interview, Ortega had defendant sign a consent form
to search his property and Samaniego took pictures of
defendant’s tattoos. Neither detective gave defendant Miranda
warnings or questioned him about the case. Defendant did not
request an attorney.
Detective Edward Provencio of the El Paso Police
Department escorted defendant downstairs to meet with Judge
Edward Marquez regarding extradition. The detective advised
defendant that he was wanted on out-of-state charges and
described the extradition process. He did not read defendant his
Miranda rights and defendant did not request an attorney.
Defendant signed a waiver of extradition before the judge.
At the conclusion of the hearing, the court again denied
the motion to exclude defendant’s statement: “[W]eighing all
the evidence, I do not find that the defendant’s Miranda rights
were violated, that he was not denied his right to remain silent,
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he’s not denied his right to have counsel present during
interrogation, within the meaning of Miranda.”
b. Invocation of the Right to Silence
Defendant does not challenge his initial waiver of
Miranda rights on July 19. He argues, however, that he
asserted his right to silence at the end of the interview when he
commented, “I don’t have nothing else to say to you guys.” He
claims that the officers violated the rule in Edwards v. Arizona
(1981) 451 U.S. 477 (Edwards), when, five days later, they
questioned him about the crimes despite his earlier invocation
of Miranda rights. The claim fails.
When a suspect knowingly and intelligently waives the
Miranda rights, “law enforcement may interrogate, but if at any
point in the interview [the suspect] invokes the right to remain
silent or the right to counsel, ‘the interrogation must cease.’ ”
(People v. Martinez (2010) 47 Cal.4th 911, 947 (Martinez).) Once
the suspect has invoked, “a valid waiver of that right cannot be
established by showing only that he responded to further police-
initiated custodial interrogation . . . . [There is to be no] further
interrogation by the authorities . . . unless the accused himself
initiates further communication, exchanges, or conversations
with the police.” (Edwards, supra, 451 U.S. at pp. 484–485;
accord, People v. Gamache (2010) 48 Cal.4th 347, 384.) “In the
absence of such a bright-line prohibition, the authorities
through ‘badger[ing]’ or ‘overreaching’ — explicit or subtle,
deliberate or unintentional — might otherwise wear down the
accused and persuade him to incriminate himself
notwithstanding his earlier request [to remain silent or] for
counsel’s assistance.” (Smith v. Illinois (1984) 469 U.S. 91, 98.)
A defendant who has waived the Miranda rights must
make a “clear assertion” of the right to silence or counsel before
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officers are required to cease questioning. (Davis v. United
States (1994) 512 U.S. 452, 460; accord, People v. Williams
(2010) 49 Cal.4th 405, 427.) “The applicability of the ‘ “rigid”
prophylactic rule’ of Edwards requires courts to ‘determine
whether the accused actually invoked his right[s] . . . .’ ” (Davis,
at p. 458.) Ambiguous or equivocal references to an attorney or
the right to silence do not require cessation of questioning. (Id.
at pp. 458–459; Martinez, supra, 47 Cal.4th at pp. 947–949.)
Whether the defendant made an invocation is analyzed from the
perspective of a reasonable officer (Berghuis v. Thompkins
(2010) 560 U.S. 370, 381), and takes into consideration the
context of the statement (People v. Flores (2020) 9 Cal.5th 371,
417 (Flores)). If “a reasonable officer in light of the
circumstances would have understood only that the suspect
might be invoking the right,” then the officer need not cease all
questioning immediately. (Davis, at p. 459.)
Defendant did not clearly and unequivocally invoke his
right to silence at the end of the July 19 interview. After being
advised of and waiving his rights, defendant willingly
participated in a long interview with the officers. He repeatedly
denied any involvement in Chad’s murder and claimed not to
have been in California at the time. The officers repeatedly
accused defendant of lying in light of numerous eyewitnesses
who saw defendant enter Chad’s truck before the shooting.
Defendant remained steadfast in his denials and did not
complain of the absence of an attorney, or interpose a request
for one. Eventually, the officers told defendant that they would
let him “rethink everything” while they left the room and filled
out paperwork and that he could choose to talk to them again
before they left Texas. Defendant responded, “I don’t have
nothing else to say to you guys.” Viewed in context, a reasonable
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officer would have understood defendant’s statement to mean
that he had nothing to add to his claims of innocence, not that
he was invoking his right to silence.
We have rejected defendants’ claims of a clear and
unequivocal invocation under similar circumstances. In
Martinez, supra, 47 Cal.4th 911, the defendant received a
Miranda advisement and indicated he was willing to speak with
the officer. He was questioned about an assault and denied any
involvement. The officer confronted the defendant with
inconsistencies in his story and then asked him why the victim
would falsely accuse him. The defendant responded, “ ‘That’s all
I can tell you.’ ” (Id. at p. 944.) We concluded that the officer
reasonably understood defendant’s statement to mean “ ‘[t]hat’s
all the information he had for me,’ ” rather than that defendant
was invoking his right to silence (Id. at p. 950.) The following
day officers interviewed the defendant again. They “confronted
him with inconsistencies in his version of events, told him to
think it over, announced that they were taking a break, and
[began] to leave the room.” (Id. at p. 951.) Defendant stated, “ ‘I
don’t want to talk anymore right now.’ ” (Ibid.) Based on the
context, we again concluded that the defendant had not clearly
invoked his right to silence. (Ibid.) Similarly, in In re Joe R.
(1980) 27 Cal.3d 496, we concluded that the defendant’s
statement, “ ‘ “That’s all I have got to say,” ’ ” was not an
invocation. (Id. at p. 515.) The defendant made the comment
immediately after the officer confronted him with adverse
evidence and challenged his veracity. (Id. at p. 516.) In that
context, we concluded it was not unreasonable for the court to
conclude defendant was conveying, “That’s my story, and I’ll
stick with it.” (Ibid.)
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Defendant’s statement here, “I don’t have nothing else to
say to you guys,” was made in a similar context. Defendant had
repeatedly denied involvement in the crimes, the officers had
accused him of lying, and they had invited him to “rethink
everything.” His response could reasonably be construed as an
affirmation of his statements and a declaration that he had
nothing more to add, rather than an assertion of the right to
silence.
c. Validity of Miranda Waiver on July 24
Defendant argues that he did not make a knowing,
voluntary, and intelligent waiver of his Miranda rights before
the July 24 interview. We reject the claim.
The governing principles are well established. “Before
subjecting suspects to custodial interrogation, the police must
inform them of their Miranda rights and obtain a waiver that is
knowing, voluntary, and intelligent. [Citation.] The test for
validity is as follows. ‘First, the relinquishment of the right
must have been voluntary in the sense that it was the product
of a free and deliberate choice rather than intimidation,
coercion, or deception. Second, the waiver must have been made
with a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it.
Only if the “totality of the circumstances surrounding the
interrogation” reveals both an uncoerced choice and the
requisite level of comprehension may a court properly conclude
that the Miranda rights have been waived.’ [Citation.] The
prosecution must demonstrate the validity of a suspect’s waiver
by a preponderance of the evidence.” (People v. Molano (2019) 7
Cal.5th 620, 648, fn. omitted (Molano).)
Here, defendant was advised of his Miranda rights twice
before making his initial statement on July 19. Officer Gomez
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of the El Paso Police Department gave the Miranda advisements
when he took him to the county jail, and the right to counsel was
reiterated at the arraignment. Sergeants Johnson and Wahl
read defendant his Miranda rights before interviewing him.
Defendant stated that he understood those rights and agreed to
speak with the officers.
Five days later, on July 24, defendant was again advised
of his rights on the way to the airport. Although the
conversation was not recorded, both officers testified that
defendant was given a complete Miranda advisement and he
indicated that he understood his rights. Defendant was not
questioned at that time.
Eight hours later, at the police station, after defendant
inquired about what would happen with his charges, the officers
spent several minutes encouraging defendant to tell them the
truth about his involvement in the murder. Defendant
responded, “Okay, I guess I’ll talk to you then.” Sergeant
Johnson then “remind[ed] [defendant of] the rights I read you
uh in the car when we picked you up (inaudible).” He repeated
that defendant had the right to an appointed attorney and that
any statements could be used against him, but did not mention
the right to silence. He then said, “I don’t have the card in front
of me uh but I was reminding you of those rights. Having those
right in mind do you wish to tell us about it now?” Defendant
replied, “Yeah.”
Although the advisement at the police station on July 24
was incomplete, we have held that “readvisement is
unnecessary where the subsequent interrogation is ‘reasonably
contemporaneous’ with the prior knowing and intelligent
waiver. [Citations] The courts examine the totality of the
circumstances, including the amount of time that has passed
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since the waiver, any change in the identity of the interrogator
or the location of the interview, any official reminder of the prior
advisement, the suspect’s sophistication or past experience with
law enforcement, and any indicia that he subjectively
understands and waives his rights.” (People v. Mickle (1991) 54
Cal.3d 140, 170 (Mickle).)
Here, on July 19 defendant received two complete sets of
Miranda warnings and waived his rights. He received another
complete admonishment on July 24, approximately eight hours
before the interview in question. During the July 24 interview,
the officers reminded defendant of the prior advisement. Under
similar circumstances, where the defendant was “read his
Miranda rights the night before and on at least four prior
occasions,” we concluded that “the record fails to support any
inference that defendant was unaware of his rights and the
significance of his waiver.” (Martinez, supra, 47 Cal.4th at p.
950.) Similarly, we held that readvisement was unnecessary
when the “interview occurred only 36 hours after defendant had
twice received and twice waived his Miranda rights.” (Mickle,
supra, 54 Cal.3d at p. 171.)
Significantly, defendant does not claim that he was
inadequately admonished or that he did not understand his
rights. He instead argues that he never waived those rights
during the July 24 interview. The record belies this claim. After
reminding defendant of the earlier advisement in the car, which
included all of defendant’s rights, Sergeant Johnson asked
defendant, “Having those right in mind do you wish to tell us
about it now?” Defendant replied, “Yeah.” His waiver was
express.
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d. Voluntariness of the July 24 Statement
Defendant perfunctorily asserts that “[t]he extended
period in which [he] was subject to the deputies’ control . . .
together with their insistence that he cooperate and their
suggestions of benefits that might flow from his cooperation . . .
show that [his] confession was not made of his own free will.”
The trial court rejected this claim, concluding that there was no
coercive conduct, no promises of leniency, and no threats.
“In determining whether the prosecution met its burden
of establishing by a preponderance of the evidence that
defendant’s confession was voluntary, we consider the totality of
the circumstances. [Citation.] ‘[N]o single factor is dispositive.
[Citation.] The question is whether the statement is the product
of an “ ‘essentially free and unconstrained choice’ ” or whether
the defendant’s “ ‘will has been overborne and his capacity for
self-determination critically impaired’ ” by coercion.’ ” (Flores,
supra, 9 Cal.5th at p. 426.)
Defendant testified pretrial that, while he was being
photographed on July 19, the El Paso detectives encouraged him
to “rat out whoever did it” so that he “wouldn’t go down for
something that [he] didn’t do.” He asserted that, a few days
later, a transporting officer encouraged him to “take a deal that
they offered me and just rat out whoever was doing it.” But the
officers in question testified at the hearing and denied making
any such statements. The trial court implicitly credited their
testimony in denying defendant’s motion.
As for the conduct of Sergeants Johnson and Wahl,
defendant was in their custody for eight hours while traveling
from Texas to California. During that time, they provided him
with a meal and made no attempt to interrogate him. Once at
the police station, after defendant asked about the charges,
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Johnson and Wahl urged him to explain his role in the shooting
and said that his truthfulness might have an impact on
sentencing. Sergeant Wahl said: “[W]hat you tell us may be the
difference though. Like he said you know cold blooded
calculated murder or something . . . just went wrong.” Sergeant
Johnson observed, “[T]he person who didn’t pull the trigger is
going to be equally guilty to a certain extent but sometimes the
truth may make a difference. I don’t know. It may not.”
Sergeant Wahl then commented that “it’s gonna make a
difference with you I think, with the way you feel inside, cause
I know it’s bothering you. I know that.” Defendant replied, “Uh
huh.” Sergeant Johnson then invited defendant to “make an
adult decision” and “start doing something right for a change
and what’s right is the truth.” Shortly thereafter, defendant
responded, “Okay, I guess I’ll talk to you then.”
An officer’s statements urging a suspect to tell the truth
and pointing out the benefits that might naturally flow from a
truthful and honest confession do not render a statement
involuntary. (People v. Krebs (2019) 8 Cal.5th 265, 305–306
(Krebs).) The officers’ comments here were of that tenor. They
observed that defendant and Garza were equally guilty of
murder, but that being truthful about who pulled the trigger
might assist defendant at sentencing. At the same time they
reminded him that any statements he made could be used
against him and that the truth might not make a difference in
the outcome. The sergeants then focused on the emotional
benefit defendant would derive by taking responsibility for his
actions. They allowed defendant to “tell it in your own words,”
commenting that “[w]e won’t ask any questions or stop you.”
Defendant provided a narrative confession admitting that he
confronted Chad in the street, that he and Garza kidnapped him
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at gunpoint, and that he accidentally shot Chad in a field.
Under the totality of the circumstances, the prosecution met its
burden to establish voluntariness.
e. Asserted Violation of the Vienna Convention
Defendant also moved to exclude his July 24 statement on
the ground that police did not advise him in a timely manner of
his right to have the Mexican Consulate notified of his arrest, in
violation of Article 36 of the Vienna Convention on Consular
Relations, April 14, 1963, 21 U.S.T. 77 (Vienna Convention).
The motion was denied, as was defendant’s related new trial
motion. He urges this court to defer consideration of this claim
while he investigates evidence of prejudice in a habeas corpus
proceeding. To the extent defendant claims in this appeal that
he was prejudiced by the Vienna Convention violation, he has
not established prejudice on this record.
i. Proceedings Below
The following facts were stipulated to at the hearing: (1)
defendant is a Mexican citizen; (2) the Mexican consulates in
Fresno and El Paso were available and willing to help any
Mexican national requesting their assistance; (3) from the time
of defendant’s arrest in El Paso through the time he made his
two statements, no law enforcement officer advised him of his
consular rights; (4) defendant did not request contact with the
Mexican consulate at any time before his attorney, Bryan,
became involved in the case; and (5) since that time, defendant
had been actively receiving consular assistance. Defense
counsel offered no additional testimony from defendant on this
topic.
Citing then-recent authority from the Ninth Circuit (U.S.
v. Lombera-Camorlinga (9th Cir. 2000) 206 F.3d 882), the trial
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court denied the motion, concluding that “suppression of
statements is not one of the remedies available if the Court finds
a violation of the Vienna Convention, Article 36.”
Defendant reasserted his claim in motions for new trial
and to modify the death judgment, arguing that the improperly
admitted confession entitled him to one of those remedies. The
Mexican Consulate wrote in support of the motions. Both
motions were denied.
ii. Legal Background
In 1969, the United States ratified the Vienna Convention.
(Vienna Convention, supra, 21 U.S.T. at p. 79.) Article 36,
paragraph 1(b), provides that law enforcement officials “shall
inform” arrested foreign nationals “without delay” of their right
to have their consulate notified of their arrest, and if a national
so requests, “shall, without delay, inform the consular post” that
the national has been arrested. (Vienna Convention, supra, art.
36, par. 1(b), at p. 101.) Article 36 does not provide for a judicial
remedy. Instead, paragraph 2 provides that “[t]he rights
referred to in paragraph 1 of this Article shall be exercised in
conformity with the laws and regulations of the receiving State”
provided that “said laws and regulations must enable full effect
to be given to the purposes for which the rights accorded under
this Article are intended.” (Id., par. 2, at p. 101.)
“California implemented the Convention’s requirements
in section 834c.” (People v. Leon (2020) 8 Cal.5th 831, 845
(Leon).) That statute requires law enforcement officials to
advise a “known or suspected foreign national” of the right to
communicate with an official from the consulate if that person
is arrested or detained for more than two hours. (§ 834c, subd.
(a)(1).) The statute “does not specify a remedy for violations”
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(People v. Suarez (2020) 10 Cal.5th 116, 164 (Suarez)), and,
notably, is inapplicable to defendant in any event because it was
not effective until 2000, over a year after defendant’s arrest
(ibid.).
Defendant is among a group of Mexican nationals whose
cases were reviewed by the International Court of Justice (ICJ)
in Case Concerning Avena and Other Mexican Nationals (Mexico
v. U.S.), supra, 2004 I.C.J. at page 25. We summarized that
litigation in People v. Mendoza (2007) 42 Cal.4th 686 (Mendoza):
“On January 9, 2003, the Government of Mexico initiated
proceedings in the International Court of Justice (ICJ) against
the United States, alleging violations of the Vienna Convention
in the cases of defendant and 53 other Mexican nationals who
had been sentenced to death in state criminal proceedings in the
United States.” (Id. at p. 709.) “The ICJ held that the United
States had breached article 36, paragraph 1(b) of the Vienna
Convention in the cases of 51 of the Mexican nationals,
including defendant, by failing ‘to inform detained Mexican
nationals of their rights under that paragraph’ and ‘to notify the
Mexican consular post of the detention.’ [Citation.] The ICJ
further held that in 49 cases, including defendant’s, the United
States had breached its obligation under article 36, paragraph
1(a), ‘to enable Mexican consular officers to communicate with
and have access to their nationals, as well as its obligation under
paragraph 1(c) of that Article regarding the right of consular
officers to visit their detained nationals.’ ” (Id. at pp. 709–710.)
Like Mendoza, defendant here is also among those for whom the
ICJ found a violation of the rights to notification and access.
As to remedy, the ICJ denied Mexico’s request to annul the
convictions and sentences of the named individuals, “but held
United States courts must provide review and reconsideration
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of the convictions and sentences ‘with a view to ascertaining
whether . . . the violation . . . caused actual prejudice to the
defendant . . . .’ ” (Mendoza, supra, 42 Cal.4th at p. 710.)
Subsequently, the high court held that ICJ’s judgment in
Avena is not directly enforceable as domestic law in state court
and that its provisions did not preempt application of state
limitations on filing successive habeas petitions. (Medellin v.
Texas (2008) 552 U.S. 491, 504–511.) The court reached the
same conclusion with respect to President George W. Bush’s
February 28, 2005 memorandum stating that “the United States
would ‘discharge its international obligations’ under Avena ‘by
having State courts give effect to the decision.’ ” (Medellin, at p.
498.) “[T]he non-self-executing character of a treaty constrains
the President’s ability to comply with treaty commitments by
unilaterally making the treaty binding on domestic courts.” (Id.
at p. 530.) Accordingly, the president’s memorandum was not a
binding rule that preempts contrary state law. (Id. at pp. 525–
530.)
iii. Analysis
In the trial court, defendant sought to exclude his
statements to police as a remedy for a violation of his rights
under the Vienna Convention. “We have assumed, without
deciding, that Article 36 gives foreign nationals individual,
enforceable rights.” (Leon, supra, 8 Cal.5th at p. 846.) Even so,
it is well established that the “failure to notify a suspect of his
or her consular rights does not, in itself, render a confession
inadmissible.” (People v. Enraca (2012) 53 Cal.4th 735, 756.) As
the high court explained in Sanchez-Llamas v. Oregon (2006)
548 U.S. 331 (Sanchez-Llamas): “The few cases in which we
have suppressed evidence for statutory violations do not help
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Sanchez-Llamas. In those cases, the excluded evidence arose
directly out of statutory violations that implicated important
Fourth and Fifth Amendment interest . . . . [¶] The violation of
the right to consular notification, in contrast, is at best remotely
connected to the gathering of evidence. Article 36 has nothing
whatsoever to do with searches or interrogations. Indeed,
Article 36 does not guarantee defendants any assistance at all.
The provision secures only a right of foreign nationals to have
their consulate informed of their arrest or detention — not to
have their consulate intervene, or to have law enforcement
authorities cease their investigation pending any such notice or
intervention. In most circumstances, there is likely to be little
connection between an Article 36 violation and evidence or
statements obtained by police.” (Id. at pp. 348–349.) In
addition, “[t]he failure to inform a defendant of his Article 36
rights is unlikely, with any frequency, to produce unreliable
confessions. And unlike the search-and-seizure context —
where the need to obtain valuable evidence may tempt
authorities to transgress Fourth Amendment limitations —
police win little, if any, practical advantage from violating
Article 36. Suppression would be a vastly disproportionate
remedy for an Article 36 violation.” (Id. at p. 349.)
The Sanchez-Llamas court also emphasized that “other
constitutional and statutory requirements effectively protect
the interests served . . . by Article 36. A foreign national
detained on suspicion of crime, like anyone else in our country,
enjoys under our system the protections of the Due Process
Clause. Among other things, he is entitled to an attorney, and
is protected against compelled self-incrimination. [Citation.]
Article 36 adds little to these ‘legal options,’ and we think it
unnecessary to apply the exclusionary rule where other
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constitutional and statutory protections — many of them
already enforced by the exclusionary rule — safeguard the same
interests Sanchez-Llamas claims are advanced by Article 36.”
(Sanchez-Llamas, supra, 548 U.S. at p. 350.)
We have already considered and rejected defendant’s
claim that his statement was taken in violation of his Miranda
rights. There is no independent remedy of exclusion for failing
to notify him of his consular rights under the Vienna
Convention.
“A consular notification claim may be raised as part of a
broader challenge to the voluntariness of a confession.” (Leon,
supra, 8 Cal.5th at p. 846, citing Sanchez-Llamas, supra, 548
U.S, at p. 350.) Defendant did challenge his statement as
involuntary, but not on any basis related to consular rights.
Although defendant testified at the suppression hearing, he
never claimed that he would have remained silent or requested
an attorney had he been advised of his right to consular
notification. It is also notable that defendant came to this
country as an infant, was educated here, and is fluent in both
written and spoken English. Defendant has not established a
relation between his lack of consular notice and his confessions.
Finally, on this record, we see no evidence of trial
prejudice from the Vienna Convention violation. Sanchez-
Llamas observed that if a defendant “raises an Article 36
violation at trial, a court can make appropriate accommodations
to ensure that the defendant secures, to the extent possible, the
benefits of consular assistance.” (Sanchez-Llamas, supra, 548
U.S. at p. 350.) Defense counsel represented below that he had
made contact with the Fresno Consulate of the government of
the Republic of Mexico in the summer of 2000, several months
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before jury selection began on December 4, 2000. According to
counsel, “They have been involved ever since,” and they “ha[ve]
been helpful in this case in other areas” by “expend[ing] time
and effort in assisting their National, Juan Ramirez.”
Defendant asserts that he is entitled to an evidentiary
hearing to examine whether the lack of consular notification
was prejudicial. (See Sanchez-Llamas, supra, 548 U.S. at p.
350.) He quotes this court’s observation that “prejudice based
on facts outside of the record is a matter for a habeas corpus
petition.” (Mendoza, supra, 42 Cal.4th at p. 711.) This is true,
and we do not foreclose defendant from developing such
evidence. But to the extent defendant claims on appeal that he
suffered prejudice as a result of the Vienna Convention
violation, he has not established it on this record.
4. Admission of Carlos Rosales’s Statement
Defendant contends the trial court erred in admitting a
recorded statement of his cousin, Rosales, made to police on
January 2, 1998. Rosales testified as a prosecution witness. The
court admitted his statement on the prosecutor’s motion to rebut
defense counsel’s allegations through cross-examination that
officers pressured Rosales into making the statement.
Defendant contends that the evidence was inadmissible
hearsay, that it was not probative on any issue, and that it was
unduly prejudicial. He further contends that the statement
referenced uncharged criminal conduct that was not admissible
as a circumstance in aggravation under section 190.3. He claims
the evidentiary error violated his rights to due process, counsel,
confrontation, and fair trial under the state and federal
constitutions. There was no error.
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Rosales was implicated in the robbery of Juan Carlos. He
agreed to plead guilty to one count of robbery and testify
truthfully at defendant’s trial. Because Rosales’s prior
statement was offered by the prosecutor in response to defense
counsel’s cross-examination of the witness, we recite that
testimony here in some detail.
At trial, Rosales described the Juan Carlos crimes and
implicated defendant in them. Rosales testified he, along with
defendant, Valenzuela, Garza, Quintana, and De La Rosa, got
into the victim’s truck. The victim drove to an orchard as
Valenzuela held him at gunpoint. Rosales and Quintana stayed
in the truck; the others took Juan Carlos into the field. Both
Garza and Valenzuela hit the victim with guns and the latter
took his money, belt, and neck chain. Then everyone in the
group descended on the victim in a “big rumble,” hitting him as
he laid on the ground, screaming and crying. The men bound
the victim with a rope and there was talk about shooting him.
Ultimately, they took the truck and left Juan Carlos in the field.
Valenzuela split the money among all six of them.
Rosales also testified that, on the night of Chad’s murder,
defendant was cleaning and loading a gun. Later, defendant
and Garza approached Chad’s truck and Rosales heard a gun
being cocked. Garza and defendant got into the truck with Chad
between them and the truck left.
On cross-examination, defense counsel inquired
extensively about Rosales’s statement given to police on October
22, 1997, during which he denied knowing anything about the
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abduction and murder.32 Rosales testified that the arresting
officers, Contreras and Studer, threw him against the wall
repeatedly and ignored his request for counsel. Various officers
threatened that he would be tried as an adult and sentenced to
life in prison and that he would be “burn[ed] . . . to the cross.”
They pressured him to identify who was at Quintana’s house
that evening. They commented that Rosales had a motive to kill
Chad because of the earlier confrontation at his mother’s house.
Defense counsel also cross-examined Rosales about his
statement on January 2, 1998. By that time, Rosales had
entered into a plea agreement that required his testimony
against defendant and Garza. Rosales testified that he was
“under a lot of pressure” and “stress” at the time he gave the
statement. Counsel asked Rosales if he was “pressured at any
time by law enforcement or the Office of the District Attorney to
testify that [he] saw [defendant] tie up Juan Carlos?” Rosales
testified, “I could have. Because the detectives are questioning
you. They are at you and at you and at you. Trick questions.
32
The prosecutor objected on hearsay grounds to several of
defense counsel’s questions. Defense counsel responded that the
questioning went to the witness’s state of mind and to provide
context under Evidence Code section 356. He urged that the
prosecutor “went into great detail about [Rosales’s] deal with the
Kern County District Attorney’s Office and how he’s got a deal
to tell the truth, and he’s telling the truth now. [¶] And I’m
entitled to go into all the events that led up to that deal,
including the beating of a minor, threats that were given to a
minor, and the fact that this minor was looking at life
imprisonment as an adult, in terms of signing that deal.” “It
starts with the statement of October 22, where he was beaten,
he was denied an attorney, and he was threatened on tape.”
Defense counsel was allowed to pursue the line of questioning.
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And, I mean, it’s kind of hard. And you are already — it’s kind
of hard.”
In response to this questioning, the prosecutor moved to
introduce the entire January 2 interview under Evidence Code
section 356, commenting: “they have attacked it to such a
degree that they have got the witness saying he was asked trick
questions, repeatedly saying he was pressured. I think the
entire tone of the interview is now relevant . . . .” Defense
counsel objected to the playing of the recording in its entirety,
arguing that the officers had asserted things in the interview
that were hearsay, speculative, and highly prejudicial. The
prosecutor responded that defense counsel “would like to have it
both ways; that is, make insinuations as to what was done being
improper, yet not play the actual evidence of what occurred, so
the jury could hear for themselves in the tone and manner of
questioning and make their own determination of whether it
was proper. He repeatedly insinuated and characterized it as
pressuring. I don’t think there’s anything pressuring when you
listen to the tape.” The prosecutor also indicated that the
January 2 interview impeached several statements that defense
counsel had proffered from the October 22 interview, and that
Rosales had testified the January 2 interview was the “truthful
version.” He requested an admonishment to the jury that the
recording would be admitted for the limited purpose of placing
Rosales’s testimony in context and as evidence of the tone of the
interrogation.
The court admitted the recording, finding it to be relevant
and not unduly prejudicial. Before playing the recording, the
court admonished the jury that “this evidence is not being
admitted for the truth of what . . . [the] detectives are saying.
[¶] It is not offered for the truth of what they’re saying. [¶]
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Anything that they said to the witness is limited to explain this
witness’s answer, his state of mind, his subsequent conduct. [¶]
So don’t consider the detective’s statement for the truth of what
was stated.”
Defendant’s motion for a mistrial based on the admission
of the recording was denied.
The court did not abuse its discretion in admitting the
recording. (See People v. Rowland (1992) 4 Cal.4th 238, 264.)
Evidence of an out-of-court statement may be admitted for the
nonhearsay purpose of showing its effect on the listener so long
as that effect is relevant to an issue in dispute. (People v. Montes
(2014) 58 Cal.4th 809, 863 (Montes); People v. Hill (1992) 3
Cal.4th 959, 987.) It is also admissible under Evidence Code
section 356 where necessary to provide context. That section
provides: “Where part of an act, declaration, conversation, or
writing is given in evidence by one party, the whole on the same
subject may be inquired into by an adverse party . . . and when
a detached act, declaration, conversation, or writing is given in
evidence, any other act, declaration, conversation, or writing
which is necessary to make it understood may also be given in
evidence.” In applying the rule, “ ‘courts do not draw narrow
lines around the exact subject of inquiry.’ ” (People v. Zapien
(1993) 4 Cal.4th 929, 959.)
In People v. Clark (2016) 63 Cal.4th 522, we upheld the
admission of a recording in its entirety to rebut defense counsel’s
implication on cross-examination, that the officer had “ ‘spoon-
fed’ ” details of the crimes to the witness during the interview.
(Id. at p. 599.) We concluded that Evidence Code section 356
authorized admission “ ‘to prevent the use of selected aspects of
a conversation, act, declaration, or writing, so as to create a
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misleading impression on the subjects addressed.’ ” (Id. at p.
600, quoting People v. Arias (1996) 13 Cal.4th 92, 156.)
Likewise here, the court did not abuse its discretion in
concluding that defense counsel opened the door to evidence of
the statement by putting Rosales’s state of mind at issue. He
was cross-examined extensively about the statement and
testified that, during the interview, he was under “pressure” and
“stress.” The officers were “at [him] and at [him] and at [him],”
asked “[t]rick questions,” and threatened and abused him. The
court acted within its discretion to allow the prosecutor to rebut
this testimony by introducing the whole interview to reveal the
officers’ tone and manner of questioning. Indeed, the recording,
which we have reviewed, was quite probative on that score. The
officers were respectful and spoke in measured tones throughout
the interview. Rosales was read his Miranda rights, indicated
that he understood them, and expressly waived them.
Significantly, his counsel was present during the entire
interview. The officers began by asking for a narrative
description of the crimes against Juan Carlos and Chad.
Rosales gave a detailed account with minimal interruption. The
officers then asked questions to clarify and fill in details. They
did not ask leading questions, badger Rosales, or accuse him of
lying. At one point Sergeant Wahl asked Rosales whether he
and others talked about what to say to Brent, who was left
sitting on the curb. When Rosales said he did not remember,
the sergeant replied, “Think hard because I, I know about that
discussion.” The comment was hardly overbearing. She also
asked Rosales why he did not tell officers what he had seen when
he was interviewed on October 22. Rosales explained that he
feared retaliation from the other participants. He did not
mention being frightened or intimidated by the interviewing
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officers. Rosales’s explanation of his state of mind tended to
impeach his cross-examination testimony that he was
intimidated by the officers. The court did not err in concluding
that the whole of the interview was probative to show that
Rosales was not pressured or coerced into making the January
2 statement.
Defendant argues that the recording was irrelevant
because the allegations of coercion involved the October 22
interview and the “recording made in January 1998 is [not]
relevant to dispel charges of coercion that took place in mid-
October 1997.” But defense counsel elicited testimony about
coercive conduct during both interviews. Defense counsel was
allowed to inquire about the circumstances in the October 22
interview, which he asserted were coercive.33 By the same
token, it was within the court’s discretion to allow the prosecutor
to demonstrate that the January 2 interview, which the witness
subsequently testified was truthful, was not coerced.
The court likewise did not abuse its discretion in
concluding that the probative value of the evidence was not
substantially outweighed by its prejudicial effect. It
legitimately concluded that playing the recording in its entirety
was an appropriate and effective way to rebut Rosales’s
testimony that he was pressured and tricked by the officers.
And the tape, while lengthy, was not highly prejudicial.
Defendant claims that the interview was filled with hearsay and
speculative assertions. Yet, the details Rosales provided in his
January 2 statement about the crimes against Juan Carlos and
33
Indeed, defense counsel at one point observed that he
himself might seek to play the entire tape of the October 22
interview for context. Ultimately, he did not make that request.
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Chad were largely the same as his trial testimony and based
upon his own knowledge. Rosales was subject to extensive cross-
examination, so those details did not go untested. In addition,
the trial court instructed that the officers’ questions were not
evidence but could only be used to explain Rosales’s answers, his
state of mind, and his subsequent conduct.
Defendant also argues that the tape included prejudicial
evidence of a prior burglary he committed that was not
admissible as a circumstance in aggravation under section
190.3. The assertion is exaggerated. At one point, Rosales
recounted that defendant had tried to visit his children in order
to give them clothing and a bracelet, but that their mother was
opposed to it and called security. According to Rosales, “they
tried to say that he was trying to break in the house.” But
Rosales understood that the mother had invited defendant to
the house so that she could “set him up.” The jury was not
reasonably likely to interpret this statement as evidence of an
uncharged burglary. Indeed, the actual statement reflected that
defendant had innocent motives and was himself the victim of
vindictiveness. Tellingly, defense counsel did not pursue the
prosecutor’s suggestion that the jury be admonished not to
consider the incident as a circumstance in aggravation. Such an
instruction could have drawn greater attention to the otherwise
ambiguous incident.
We reject defendant’s claims that the evidence violated his
rights to due process, counsel, and confrontation. Initially, the
People assert defendant forfeited these issues by failing to lodge
a timely objection below. Not so. Defendant specifically raised
a confrontation claim in his unsuccessful mistrial motion. The
motion identified the asserted error at a time when the court
could have taken corrective action. (See Peoples, supra, 62
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Cal.4th at p. 801.) Defendant also objected to the recording on
Evidence Code section 352 grounds, which preserves a claim
that admission of the evidence rendered the trial fundamentally
unfair. (People v. Partida (2005) 37 Cal.4th 428, 433–439.)
Finally, an ineffective assistance of counsel claim need not be
preserved by objection.
Nonetheless, defendant’s claims fail on the merits. He was
not deprived of his right to confrontation because Rosales
testified and was subject to cross-examination. (People v. Clark,
supra, 63 Cal.4th at p. 601.) The court did not place any limits
on defense counsel’s cross-examination of the witness, nor did it
impinge upon his rendering of assistance. The statement,
properly admitted under the rules of evidence, did not deprive
defendant of a fundamentally fair trial. (Kraft, supra, 23
Cal.4th at p. 1035.)
5. Sufficiency of the Evidence in Support of the
Crimes Against Leonel Paredes and Juan Carlos
Ramirez
At the close of the prosecution’s case, defendant moved for
dismissal of the charges relating to the Paredes and Juan Carlos
crimes. (§ 1118.1.) The motion was denied. The standard
applied at both the trial and appellate level is whether each
element of the charges is supported by substantial evidence.
(People v. Gomez (2018) 6 Cal.5th 243, 307.) “ ‘In reviewing a
challenge to the sufficiency of the evidence, we do not determine
the facts ourselves. Rather, we “examine the whole record in the
light most favorable to the judgment to determine whether it
discloses substantial evidence — evidence that is reasonable,
credible and of solid value — such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.”
[Citations.] We presume in support of the judgment the
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existence of every fact the trier could reasonably deduce from
the evidence. [Citation.] [¶] The same standard of review
applies to cases in which the prosecution relies primarily on
circumstantial evidence and to special circumstance allegations.
[Citation.] “[I]f the circumstances reasonably justify the jury’s
findings, the judgment may not be reversed simply because the
circumstances might also reasonably be reconciled with a
contrary finding.” [Citation.] We do not reweigh evidence or
reevaluate a witness’s credibility.’ ” (People v. Houston (2012)
54 Cal.4th 1186, 1215.)
a. Kidnapping, Carjacking, and Robbery of
Paredes (Counts 7, 8, and 9)
Defendant contends Paredes’s identification was
unreliable. “Resolution of conflicts and inconsistencies in the
testimony is the exclusive province of the trier of fact. [Citation.]
Moreover, unless the testimony is physically impossible or
inherently improbable, testimony of a single witness is sufficient
to support a conviction.” (People v. Young (2005) 34 Cal.4th
1149, 1181; see Evid. Code, § 411.) Paredes’s testimony was
neither.
Sheriff’s Deputy James Ashley interviewed Paredes on
October 5, the same day he escaped from his attackers. Ashley
described Paredes as being “rather upset and emotional, some
signs of visible shaking, some sense of being tired.” Paredes
described three men involved in his abduction. The man with
the knife was Hispanic, about 5 feet 8 inches tall, 175 pounds,
with brown hair and brown eyes, and a thin mustache. That
man demanded his keys and drove his car. He recalled the
second man was Hispanic, had a small rifle or shotgun, and got
into the back seat with Paredes. That man wore a nylon
stocking over his face when they were in the garage, but not
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when he first confronted Paredes. He described the third man
as Hispanic.34 Deputy Robert Contreras, who subsequently
interviewed Paredes, recalled his statement that he thought he
knew one of the men and may have gone to high school with him.
After speaking with officers, Paredes told his cousin,
Rosalio, that he thought he might know one of the people
involved in the crime. Paredes had seen the person in Lamont
and believed that he was acquainted with Rosalio. Rosalio
showed Paredes photographs of his friends, and Paredes
recognized Efrain Garza. Rosalio did not recall showing a photo
of Garza, but testified that he told Paredes he knew Efrain
Garza. Rosalio denied showing Paredes any photographs of
defendant, and said Paredes did not ask him about defendant.
After Chad was killed on October 14, Rosalio made a
connection between the two crimes, and told Paredes that the
people involved in the murder case were probably involved in
his own kidnapping. Rosalio also testified that he probably gave
Paredes defendant’s name and nickname.
During a second interview conducted by Deputies
Contreras and Justice on October 21, Paredes said one of the
attackers was Little Loco, whom he identified as defendant.
34
Paredes testified that he had difficulty talking to Deputy
Ashley, who was English-speaking, and that Ashley’s report
contained factual errors. At trial, Ashley’s testimony regarding
Paredes’s statement varied from Paredes’s own description at
trial. Paredes further testified that a couple of weeks after he
spoke to Ashley, he corrected some of the errors when he spoke
to Deputy Justice, who spoke Spanish. Paredes confirmed that
on two previous occasions, he testified that he saw the two men
who held firearms, that the person with the revolver was Garza,
and that the person with the shotgun-like weapon was
defendant.
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Defendant held a shotgun on him while the other two men taped
him up. Paredes also provided the name Efrain Garza, known
as Baby. He told the deputies Garza’s name was given to him
by a friend, but he would not reveal who the friend was.
During the October 21 interview, Paredes identified
defendant in a six-person photographic lineup. At trial, Paredes
identified defendant in court as the person who held the shotgun
during the carjacking. He explained that he had an opportunity
to see defendant’s face for 30 to 45 seconds when defendant
initially approached him in the parking lot. The evidence
supports the jury’s finding that defendant was one of the
perpetrators.
Defendant argues that Paredes’s identification was
unreliable for several reasons: Paredes did not identify
defendant or pick him out of a lineup the day after the
kidnapping.35 Paredes’s later identification on October 21 was
tainted by the fact that Paredes’s cousin, Rosalio, gave Paredes
defendant’s name and nickname and said defendant was the
likely perpetrator. Paredes saw defendant on television as a
suspect in the killing, and Deputy Contreras told Paredes
defendant’s name before showing him a photographic lineup.
All of these facts were presented to the jury. Defendant
cross-examined Paredes at length about his identification, and
presented an identification expert who described the possible
inaccuracies of eyewitness testimony and the factors that can
affect an identification. Ultimately, it was for the jury to decide
what weight to give Paredes’s identification in light of
35
According to Deputy Ashley, he did not show Paredes a
photographic lineup at that time.
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defendant’s claims. (People v. Ochoa (1993) 6 Cal.4th 1199,
1206.)
Defendant argues that the above-referenced
circumstances so tainted Paredes’s in-court identification that
the trial court should have excluded this testimony, and,
without it, there was insufficient evidence to support the
verdict. His argument misses the mark.
First, “[i]n contending that the evidence was insufficient
to support his convictions, defendant misunderstands the effect
of a finding of [evidentiary] error. Evidence erroneously
admitted is properly considered in weighing the sufficiency of
evidence to support a conviction, notwithstanding its erroneous
admission.” (Navarro, supra, 12 Cal.5th at p. 311, citing People
v. Story (2009) 45 Cal.4th 1282, 1296–1297.)
Second, the circumstances he cites generally go to the
weight and not the admissibility of the witness’s testimony.
(People v. Elliott (2012) 53 Cal.4th 535, 585 (Elliott); People v.
Virgil (2011) 51 Cal.4th 1210, 1256 (Virgil).)
Third, his challenge to the reliability of Paredes’s
identification is overstated. Although some of Deputy
Contreras’s testimony was unclear as to whether the deputies
suggested defendant as a suspect, Contreras ultimately
confirmed that neither he nor Justice suggested defendant’s
name or moniker to Paredes. Rosalio testified that he made a
connection between the crimes against his cousin and the
killing. He then told Paredes that the same people were
probably involved in his kidnapping, and he gave Paredes
defendant’s name and nickname. He never told Paredes to pick
out defendant or to lie. Finally, according to Paredes, Rosalio
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did not provide him defendant’s name, and Paredes did not see
defendant’s photograph on television.
The inconsistencies in the cousins’ recollections were for
the jury to resolve. They do not, in any event, establish that
Paredes’s identification of defendant was unreliable. The fact
that Rosalio may have told Paredes that he thought defendant
was also involved in his kidnapping does not render Paredes’s
identification physically impossible or inherently improbable.
(Elliott, supra, 53 Cal.4th at p. 585.) In short, Paredes’s
testimony provided substantial evidence of defendant’s guilt.
b. Robbery of Juan Carlos Ramirez and
Kidnapping During the Commission of a
Carjacking (Counts 4 and 6) 36
Defendant argues the kidnapping of Juan Carlos
“happened before [defendant] knew anything about what was
happening, and that he and the three others who jumped in the
back of the truck at the invitation of Hector Valenzuela and
36
Section 209.5, subdivision (a) provides: “Any person who,
during the commission of a carjacking and in order to facilitate
the commission of the carjacking, kidnaps another person who
is not a principal in the commission of the carjacking shall be
punished by imprisonment in the state prison for life with the
possibility of parole.” Subdivision (b) provides: “This section
shall only apply if the movement of the victim is beyond that
merely incidental to the commission of the carjacking, the victim
is moved a substantial distance from the vicinity of the
carjacking, and the movement of the victim increases the risk of
harm to the victim over and above that necessarily present in
the crime of carjacking itself.”
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Freddie De La Rosa were essentially clueless as to what had
happened until arriving at the field.”37 He fails to persuade.
Juan Carlos testified that Valenzuela and De La Rosa
approached him while he sat in his truck. After Valenzuela
pointed a gun at him and demanded a ride, the two men then
got into the truck. Juan Carlos drove to a field where they
robbed him. De La Rosa drove the truck about a half of a mile
and got into an accident, so he directed Juan Carlos to drive to
where his friends, including defendant, were waiting. When De
La Rosa called to his friends, defendant and three others
climbed into the back. This evidence supported the jury’s
finding that Valenzuela and De La Rosa had committed a
kidnapping during the commission of a carjacking. A
kidnapping “continues until . . . the kidnapper releases or
otherwise disposes of the victim and has reached a place of
temporary safety.” (People v. Barnett (1998) 17 Cal.4th 1044,
1159 (Barnett).) Accordingly, the kidnapping was ongoing when
defendant entered the truck.
An aider and abettor’s intent to facilitate the crime must
be formed before or during the commission of the offense.
(People v. Montoya (1994) 7 Cal.4th 1027, 1039–1040.) Here, the
evidence supported the jury’s finding that defendant harbored
the specific intent to aid and abet the kidnapping of Juan Carlos
to facilitate the carjacking. Defendant spent time with
Valenzuela and De La Rosa moments before the crime began.
When the two men returned with Juan Carlos still in the truck,
37
Defendant also asserts there is insufficient evidence to
support count 5, the charge of carjacking Juan Carlos Ramirez.
Defendant was acquitted of that charge.
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Rosales could see Valenzuela pointing a gun at the victim. The
jury could reasonably infer that defendant could see the gun as
well. Valenzuela continued to hold a gun on Juan Carlos and
directed him to drive to an orchard about five minutes away.
There, defendant, along with Valenzuela, De La Rosa, and
Garza beat Juan Carlos and stole from him. Defendant also tied
him up and expressed a desire to shoot him. Defendant and the
others drove off in Juan Carlos’s truck and divided the victim’s
property among them. The circumstances surrounding
defendant’s entry into the truck and defendant’s subsequent
conduct supported an inference that, while the crime was
ongoing (Barnett, supra, 17 Cal.4th at p. 1159), defendant
formed the specific intent to aid and abet in the kidnapping in
order to facilitate a carjacking.
Although the jury acquitted defendant of carjacking, there
is no requirement of consistency among verdicts on separate
charges so long as substantial evidence supports the offenses
convicted upon. (Harris v. Rivera (1981) 454 U.S. 339, 345;
People v. Palmer (2001) 24 Cal.4th 856, 860–861; § 954 [“An
acquittal of one or more counts shall not be deemed an acquittal
of any other count”].) “The law generally accepts inconsistent
verdicts as an occasionally inevitable, if not entirely satisfying,
consequence of a criminal justice system that gives defendants
the benefit of a reasonable doubt as to guilt, and juries the power
to acquit whatever the evidence.” (Palmer, at p. 860.)
As to the second degree robbery (§ 212.5, subd. (c)),38
defendant urges the evidence showed that Valenzuela and De
38
Section 212.5 specifies the kinds of robbery that are of the
first degree, and provides that all other kinds of robbery are of
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La Rosa took property from the victim and later gave defendant
a chain or pendant. He also states that there is evidence that
he struck and assaulted Juan Carlos after being told the victim
had attacked De La Rosa’s sister. From these facts, he
concludes, “This evidence might sustain convictions for
receiving stolen property and felony assault, but it does not
support the crimes for which he was convicted.” To the contrary,
defendant’s active participation in the assault on Juan Carlos
while property was taken, his departure in Juan Carlos’s truck
after tying him up, and his accepting the gold charm as part of
his “take,” amply supports the jury’s robbery verdict.
6. Prosecutorial Misconduct
Defendant contends the prosecutor committed multiple
acts of misconduct rendering his trial fundamentally unfair.
Most of the challenges fail; the remaining did not result in
prejudice.
“Prosecutorial misconduct requires reversal when it ‘so
infect[s] a trial with unfairness [as to] create a denial of due
process. [Citations.] Conduct by a prosecutor that does not
reach that level nevertheless constitutes misconduct under state
law, but only if it involves the use of deceptive or reprehensible
methods to persuade the court or jury.’ ” (People v. Armstrong
(2019) 6 Cal.5th 735, 795, quoting People v. Watkins (2012) 55
Cal.4th 999, 1031.) “We review the trial court’s rulings on
prosecutorial misconduct for abuse of discretion.” (Peoples,
the second degree. Section 211 defines robbery as “the felonious
taking of personal property in the possession of another, from
his person or immediate presence, and against his will,
accomplished by means of force or fear.”
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supra, 62 Cal.4th at pp. 792–793; accord, People v. Dworak
(2021) 11 Cal.5th 881, 910; People v. Alvarez (1996) 14 Cal.4th
155, 213.)
a. Manner of Preserving Objections
As a threshold matter, defendant contends that the trial
court prevented defense counsel from lodging timely objections
to misconduct and deprived defendant of an effective remedy by
delaying rulings. Not so. The trial court has broad discretion to
control the conduct of a criminal trial (§ 1044; People v. Bryant,
Smith and Wheeler (2014) 60 Cal.4th 335, 386), including the
manner and timing of objections (see People v. Fudge, supra, 7
Cal.4th at p. 1108). The court may require that an objection be
made at a sidebar to “efficiently dispose of matters outside the
hearing of jurors or testifying witnesses.” (Virgil, supra, 51
Cal.4th at p. 1237.)
Here, during the cross-examination of defense witness Dr.
Gomez, defense counsel lodged an objection to one of the
prosecutor’s questions on the grounds of “prosecutorial
misconduct.” Later, out of the presence of the jury, the
prosecutor objected to defense counsel’s characterization of his
conduct in front of the jury. The trial court responded, “I will
admonish in the future, if there is a motion based on
prosecutorial misconduct, you can ask for a side bar. [¶] This is
not a motion to state in the presence of the jury, because it does
have a prejudicial effect if the Court denies it.” During a later
hearing on a motion for mistrial, defense counsel observed that
he had been “ordered by the Court not to put prosecutorial
misconduct on the record” in front of the jury. The trial court
clarified its ruling: “The Court will confirm that the practice
that I asked counsel throughout the case to follow is to state the
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legal basis for an objection on the record, without having
speaking objections. [¶] I’ve always allowed counsel to state the
legal basis for any objection, but I did in response to Mr. Barton’s
argument about prosecutorial misconduct, I did agree that that
is an objection that could be preserved by stating it for the record
and then arguing it outside the presence of the jury. [¶] What
I have not done is made some blanket order that defense counsel
cannot ask for side bars, and in fact, we have had numerous side
bars at the request of defense counsel, and a number of those
side bars addressed either the subject of a motion for mistrial or
an objection based upon prosecutorial misconduct. [¶] I
appreciate that not every time that you make a motion do you
ask for a side bar. [¶] And again consistent with whatever
experienced judges do, we don’t just have side bars for every
objection. [¶] It becomes very disruptive to do so. [¶] That’s
why we frequently allow counsel to reserve a motion, have the
court rule on an objection, and then counsel can reserve a
motion, whether it be for mistrial or prosecutorial misconduct.
[¶] And unfortunately at the end of the day on Friday, we had
no time, based on the court’s schedule, to argue the matters. [¶]
There’s no prejudice to now arguing them and if there’s a need
to admonish the jury, make any curative admonitions or
instructions, we can still do that and avoid prejudice. [¶] I don’t
find there is any delay that is going to inure to the prejudice of
the defendant, by taking up the matter now.”
The defense made repeated motions for mistrial alleging
prosecutorial misconduct. While such misconduct may well give
rise to a mistrial, it is seldom a free-standing evidentiary
objection. The more appropriate legal grounds to assert during
questioning include objections that questions are
argumentative; call for speculation, hearsay or irrelevant
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matter; or assume facts not in evidence. If the objection is
overruled, the claim of error is preserved. If the objection is
sustained, the defense may move for a mistrial, asserting
misconduct and requesting other sanctions. Such requests are
commonly made outside the jury’s presence.
The trial court did not abuse its discretion in adopting this
procedure to preserve a claim of prosecutorial misconduct.
Defense counsel was permitted to lodge a contemporaneous
evidentiary objection and to state the basis on the record. He
could argue motions at side bar or during a recess outside of the
jury’s presence. He was simply not allowed to make the
accusation of “prosecutorial misconduct” in the jury’s presence.
This limitation was well within the court’s discretion to prevent
a suggestion of prejudice or disallow argumentative objections.
And, as discussed in further detail below, it did not render
defense counsel ineffective. Each of the instances of misconduct
defendant asserts on appeal was timely and effectively
litigated.39
b. Questioning of Daniel Quintana
During cross-examination of prosecution witness Daniel
Quintana, defense counsel elicited testimony about the rivalry
among local residents. Quintana was bused from Lamont to a
39
Defendant perfunctorily asserts that the court’s ruling on
the timing of objections “appears unprecedented” and created
“the appearance, if not the reality, of prejudgment. These
preconceptions are those of a biased tribunal.” Defendant’s
argument, which we choose not to characterize further, is
unsupported by analysis, citation to authority, or courtroom
experience. We decline to consider it. (People v. Stanley (1995)
10 Cal.4th 764, 793; Maral v. City of Live Oak (2013) 221
Cal.App.4th 975, 984–985.)
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school in Arvin. He said that he had problems with the Arvin
students, and that his friend and neighbor, Carlos Rosales, was
threatened by the “Arvinas” every day he went to class.
Quintana was aware of the incident at Rosales’s home. On
redirect, the prosecutor asked Quintana if he “[took] a Tec-9 and
ever [shot] anybody from Arvin three times in the back of the
head because of that?” Before the witness could answer, defense
counsel asserted prosecutorial misconduct, moved to strike the
question, and moved for a mistrial. The court immediately took
up the objection outside the jury’s presence. The prosecutor
explained that he asked the question “[b]ecause the defense is
putting forth the theory, through this witness, that a justifiable
explanation for the defendant’s actions is because he’s from
Lamont, and he had had hard times with Arvina kids and he
was somehow upset about what happened at the aunt’s house.”
Defense counsel responded that the prosecutor had not
accurately represented the defense theory of the case and that
the question was designed to inflame the jury. The court
sustained the defense objection to the question as
“argumentative” and denied the motion for mistrial. The court
admonished the jurors that it had sustained an objection, the
jurors were to disregard the question, and the attorneys’
questions are not evidence.
“An argumentative question is a speech to the jury
masquerading as a question. . . . Often it is apparent that the
questioner does not even expect an answer. . . . An
argumentative question that essentially talks past the witness,
and makes an argument to the jury, is improper because it does
not seek to elicit relevant, competent testimony . . . .” (People v.
Chatman (2006) 38 Cal.4th 344, 384 (Chatman).) The trial court
acted within its discretion to find the question argumentative.
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But the question, while ruled improper, did not introduce
inflammatory facts to the jury. The jury was informed during
opening statement of the prosecutor’s theory that defendant had
shot Chad three times in the head in retaliation for an act of
disrespect. Substantial evidence, which included the details in
the question, supported that theory. Moreover, the court
sustained an objection. Its admonition informed the panel that
the question was ruled improper and should be ignored. Any
prejudice was cured. (Id. at p. 385; Peoples, supra, 62 Cal.4th at
p. 794; People v. Pinholster (1992) 1 Cal.4th 865, 943
(Pinholster).)
c. Reference to Chinese-manufactured
Ammunition
During the testimony of prosecution witness Lieutenant
Tom Hodgson, the prosecutor showed the witness photographs
and asked if they showed the ammunition found in the Arizona
apartment of defendant’s brother. Defense counsel objected to
the question as irrelevant and argued at sidebar that “these
highly prejudicial photographs and items seized have no
relation to the defendant whatsoever.” Counsel noted that some
of the ammunition was not nine millimeter and would not fit the
murder weapon. The prosecutor observed that defendant
admitted having brought the murder weapon from Arizona but
noted, in any event, that he had not asked for that particular
photograph to be admitted into evidence. On cross-examination,
the witness clarified that the ammunition in question would not
fit into the murder weapon. He described it as “Chinese made”
7.62-millimeter bottleneck rounds.
Defense counsel later moved for a mistrial based on the
reference to one photograph in particular, People’s 185, which
was displayed on a 32-inch television screen. The photograph
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showed an open box and multiple rounds of ammunition. The
prosecutor conceded that the 7.62 rounds shown there were only
relevant to counts 10 and 11, which had been bifurcated. He
observed that the image in question was on the screen for about
15 to 20 seconds, argued that the brief display did not result in
prejudice, and observed that the jury could be instructed to
disregard the photograph. The court denied the mistrial motion.
It found the prosecutor erred by referring to the rounds, relevant
only to bifurcated counts, but that he did not act in bad faith and
that defendant suffered no prejudice. It ruled that People’s 185
and 189 would not be admitted into evidence and ordered the
prosecutor to make no further reference to this ammunition.
“A court should grant mistrial ‘ “only when a party’s
chances of receiving a fair trial have been irreparably
damaged.” ’ [Citation.] This generally occurs when ‘ “ ‘ “the
court is apprised of prejudice that it judges incurable by
admonition or instruction.” ’ ” ’ [Citation.] We review the trial
court’s refusal to grant a mistrial for abuse of discretion.”
(People v. Johnson (2018) 6 Cal.5th 541, 581.) While the court
appropriately found that the prosecutor erroneously displayed
the challenged evidence, no prejudice appears. The picture was
only briefly displayed. The jury was aware that the ammunition
was seized from the brother’s residence and did not fit the
murder weapon.
d. Cross-examination of Defense Witness Stan
Mosley
Defendant contends that the prosecutor’s cross-
examination of private investigator Stan Mosley about the
circumstances under which he left his prior employment
amounted to misconduct. The claim fails.
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Mosley worked for the Bakersfield Police Department for
16 years, and then as a private investigator for 10. He testified
for the defense concerning code words used to refer to quantities
of narcotics. The testimony was proffered to support defendant’s
theory that Juan Carlos had driven to the carjacking location to
participate in a narcotics transaction. During voir dire of the
witness’s qualifications, Mosley testified about his undercover
narcotics work as a police officer. On cross-examination, the
prosecutor asked the witness if he had left the department
“under accusation of dishonesty.” Defense counsel objected on
the grounds of prosecutorial misconduct and moved for a
mistrial. At sidebar, the prosecutor represented that Mosley
was investigated and found to possess property from some of the
cases he had worked on. Mosley resigned and no theft charges
were filed. The prosecutor offered to call the internal affairs
investigators and produce their reports. He asserted that the
incident “goes to the issue of credibility.” The court ruled that
the prosecutor could inquire about the witness resigning from
the police department, but excluded any reference to theft of
property or pending charges. (See Evid. Code, § 352.) The court
denied the motion for mistrial. In the jury’s presence, the court
sustained the defense objection and admonished the jury that
the question was not evidence.
The general rule is that “[e]xcept as otherwise provided by
statute, all relevant evidence is admissible.” (Evid. Code, § 351.)
The court held the fact of Mosley’s resignation was relevant to
credibility. It excluded the prosecutor’s proffered additional
evidence, not as irrelevant, but as unduly prejudicial and time
consuming. It rejected the misconduct claim. That conclusion
was within its discretion. “A witness may be impeached with
any prior conduct involving moral turpitude whether or not it
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resulted in a felony conviction, subject to the trial court’s
exercise of discretion under Evidence Code section 352.” (Clark,
supra, 52 Cal.4th at p. 931.) The alleged theft was a crime of
moral turpitude, relevant to credibility. (Id. at p. 932). The
prosecutor had a good faith basis for the question (see Krebs,
supra, 8 Cal.5th at p. 340), based on internal affairs reports. In
any event, the objection was partially sustained and the jury
admonished, thus minimizing any tangential prejudice to
defendant. (Pinholster, supra, 1 Cal.4th at p. 943.) Mosley’s
testimony was on a minor point, involving Juan Carlos’s reason
for being in the area. It did not relate to defendant’s subsequent
conduct.
e. Cross-examination of Defendant
Defendant contends that the prosecutor lacked a good
faith basis for cross-examining him about whether he had
purchased ammunition and multiple “guns,” his animosity
towards Arvinas, his involvement with drugs, and his theft of
money. “The permissible scope of cross-examination of a
defendant is generally broad.” (Chatman, supra, 38 Cal.4th at
p. 382.) The prosecutor’s questions were permissible.
Regarding the guns and ammunition, defendant
references the following exchange:
“Q.: So you went to Arizona and you said you weren’t
acting like a gang member there, were you?
“A.: No.
“Q.: But you were using marijuana and buying guns,
correct?
“A.: Bought one gun.
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“[Defense Counsel] MR. GARDINA: Objection, would like
to reserve a motion at this time, your Honor.
“THE COURT: You may.
“Q.: And the ammunition that was in the gun when you
shot Chad and the S&B ammunition, that was ammunition that
was brought in the gun from Arizona, correct?
“A.: The one in the clip, yes. I didn’t bring it from Arizona.
When I got it from Visalia, that’s the ammunition that was in it.
“Q.: When you bought the gun, did you buy ammunition?
“A.: It had some in the clip.
“Q.: You didn’t buy the boxes that we saw, that were
taken?
“MR. GARDINA: Objection, argumentative.
“THE COURT: Overruled.
“MR. GARDINA: We’re going to reserve a motion at this
time, your Honor.
“THE COURT: You may.
“MR. GARDINA: Thank you.
“BY MR. BARTON:
“Q.: Specifically, I’m talking about the S&B ammunition
that was in the gun — remember — you were here for all the
testimony of Mr. Laskowski, right?
“A.: Yes.
“Q.: And Mr. Hodgson?
“A.: Yes.
“Q.: And the testimony that the rounds that killed Chad
had the S&B on them, correct?
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“A.: Yes.
“Q.: And the rounds that were seized from your brother’s
apartment had the same base marks, correct?
“A.: Yeah.
“Q.: Is that the same ammunition that you would shoot
with when you were back in Arizona?
“A.: No, I didn’t buy that ammunition.
“Q.: So there was ammunition that you used in Arizona,
that it’s your testimony now was in the gun when you bought it,
period?
“A.: Yes. There was some in it.
“Q.: Do you know what kind it was?
“A.: No. I didn’t look.
“Q.: Well, was there only a few rounds or was it a full clip
or what?
“A.: It was a full clip.”
Out of the jury’s presence, the trial court heard and denied
a motion for mistrial based on prosecutorial misconduct. As for
the reference to “guns,” the court found that the prosecutor “did
not phrase the question as clearly as it could be phrased” but
observed that the question was generically referring to “what
gang members do,” and defendant responded that he had
purchased one gun. The court found no prejudice from this
exchange. It admonished the prosecutor not to refer to “guns”
in the plural. The court did not interpret the prosecutor’s
questioning to refer directly to the Chinese ammunition and
noted that there was no image displayed when the prosecutor
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asked these questions. The court found that the prosecutor had
not violated any previous court orders.
To prevail on a claim of prosecutorial misconduct, the
defendant must show “a reasonable likelihood the jury
construed the remarks in an objectionable fashion.” (People v.
Duff (2014) 58 Cal.4th 527, 568; accord, People v. Potts (2019) 6
Cal.5th 1012, 1036.) “In conducting this inquiry, we ‘do not
lightly infer’ that the jury drew the most damaging rather than
the least damaging meaning from the prosecutor’s statements.”
(People v. Frye (1998) 18 Cal.4th 894, 970.) The trial court was
within its discretion to conclude that the jury was not
reasonably likely to construe the prosecutor’s reference to “guns”
in the most damaging light. The prosecutor’s question was
prefaced by an observation about what gang members generally
do, and did not explicitly accuse defendant of having purchased
multiple guns. Defendant immediately and unequivocally
responded that he had purchased only one gun. The prosecutor
accepted this answer and did not ask about any other weapons
defendant may have purchased. The trial court was likewise
within its discretion to conclude that the prosecutor’s
questioning did not suggest a reference to the 7.62-millimeter
Chinese ammunition. The prosecutor asked defendant if he had
bought “the boxes” of ammunition that were seized, but
immediately clarified that he was referring to “the S&B
ammunition.” This questioning did not amount to misconduct.
As for defendant’s animosity towards Arvinas, the
prosecutor asked defendant “if an Arvina was caught in Lamont
after dark by himself, and you and other Lamont 13 gang
members caught him, he would be in trouble, wouldn’t he?”
Defendant responded, “If somebody else caught him, maybe.”
The prosecutor then asked, “You’ve never caused any harm to
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any Arvina 13 member?” Defense counsel objected as “improper
impeachment,” and reserved a motion for mistrial. The trial
court sustained the objection and defendant did not answer. It
later denied a mistrial motion based on prosecutorial
misconduct.
Defendant argues that the prosecutor’s question was
asked without a good faith belief that defendant had actually
harmed an Arvina gang member. He cites an earlier comment
by the prosecutor in which he claims the prosecutor
acknowledged having no such evidence. This assertion
mischaracterizes the record. The prosecutor did acknowledge
that he had no evidence defendant had engaged in gang activity
in Arvin or had contacts with Arvin police. But the prosecutor’s
question was focused on what defendant had done or would do
with respect to gang members who entered his Lamont territory.
The prosecutor had introduced competent evidence that
defendant was a Lamont 13 gang member. It was defendant
who raised the specter of animosities between Lamont 13 and
Arvinas. He testified at length on direct examination about
Arvinas targeting him and his friends because he was from
Lamont. He claimed that the Arvin Boys had thrown a Molotov
cocktail and shot at his mother’s house. He further volunteered
that he had kidnapped Chad at gunpoint because he was an
Arvina associate who, along with two other Arvina gang
members, had threatened defendant’s aunt. As the prosecutor
observed, defendant’s testimony suggested that he was an
innocent victim wrongly targeted by Arvinas, when in fact there
was an ongoing violent rivalry that put both sides at risk. The
prosecutor’s follow-up question about whether defendant posed
a threat to Arvinas or had ever harmed Arvinas fell within the
broad scope of permissible cross-examination, and defendant
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has not shown it was asked in bad faith. Defendant’s objection
to the question was sustained in any event.
Next, defendant claims the prosecutor asked a series of
questions designed to denigrate his character by suggesting he
furnished drugs to young women, made bail using drug money,
and was fired for drug use. For example, the prosecutor asked
defendant “when you were arrested in 1997, specifically August
22, 1997, that wasn’t for just possessing drugs. That was for
furnishing them as well to the girls whose apartment you were
in?” Defendant denied furnishing drugs. The trial court had
specifically ruled that defendant could be impeached with this
incident and defense counsel did not lodge a contemporaneous
objection to this question. At the later motion for mistrial,
counsel argued that the prosecutor did not have a good faith
belief defendant actually furnished drugs, and cited a report by
a defense investigator he had received “that morning,” after the
prosecutor’s cross-examination. The report stated that one of
the girls (Cary Mesa) claimed to have told the prosecutor that
defendant did not in fact furnish drugs. The prosecutor
countered that he had relied on a police report in which Mesa
and another girl (Denise Suorez) stated defendant had
furnished drugs. He had not personally spoken to Mesa and had
no knowledge of her supposed recantation at the time of his
cross-examination. The trial court found that the prosecutor’s
question was in line with its ruling on impeachment and denied
a motion for mistrial. The conclusion was not an abuse of
discretion. The prosecutor appeared to act in good faith in
asking defendant about his felony conduct, given the trial court’s
ruling and a police report supporting the line of inquiry. The
prosecutor was not informed about Mesa’s asserted recantation
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and could have relied on the statement from Suorez in any
event.
The prosecutor also asked defendant if he had lost his job
because of drug use. Defendant replied, “No.” Defense counsel
moved for a mistrial on the grounds of prosecutorial misconduct.
The prosecutor claimed to rely on defendant’s own testimony
that he had lost his job and that he was using drugs at the time.
The prosecutor was given no discovery surrounding these issues.
The most direct way to determine if defendant lost his job due
to drug use was to ask him. The court ruled the question was
permissible and denied the mistrial motion. A close review of
the record, however, does not support the prosecutor’s assertion.
Defendant testified about his drug use after losing his job in
Arizona and returning to California. Nonetheless, there was no
prejudice from this question. Defendant denied that he lost his
job because of drug use and the prosecutor did not explore the
issue further. Moreover, it was defendant who raised the issue
by testifying that he went on a two-week drug spree before the
murder, during which time he was using large quantities of
marijuana, methamphetamine, PCP, and alcohol. Defendant
claimed to be drunk and high when he killed Chad. Given this
expansive testimony, defendant could hardly have been
prejudiced by the prosecutor’s suggestion that drug use may
have caused him to lose his job.
Finally, the prosecutor asked the unemployed defendant
who had paid his bail on an unrelated charge of
methamphetamine possession. Defendant replied, “My brother
did.” Defense counsel’s objection to the question on relevance
grounds was overruled, and he moved for a mistrial. Counsel
did not further argue the point outside the jury’s presence. On
appeal, defendant argues that the prosecutor’s question
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impermissibly suggested defendant was “making bail with drug
money.” The trial court acted within its discretion in denying
defendant’s assertion of misconduct. Defendant made clear that
he did not pay the bail himself. The prosecutor did not ask
defendant if he knew where the money came from. It is not
reasonably likely that the jury inferred from the prosecutor’s
single question that the bail somehow came from drug money.
f. Request To Have Beatriz Garza Subject To
Recall as a Witness
At the guilt phase, the prosecutor called Efrain Garza’s
mother, Beatriz, to testify about events at her home on the day
of the shooting. At the end of her testimony, the prosecutor
asked that the witness be subject to recall. The court asked if
the prosecutor had a specific date in mind, to which he
responded, “It would be penalty. Just subject to recall. I have
her information.” Defense counsel reserved a motion for
mistrial. Outside the presence of the jury, defense counsel
argued that the prosecutor committed misconduct by referring
to the penalty phase “as a certainty.” The prosecutor responded
that he had been addressing the court’s inquiry about when
Beatriz would be needed, and because he did not have a specific
date, he referenced the penalty phase. The court denied the
motion, observing, “I don’t think the jury assumes that means
now that there will be, in fact, a penalty phase that [the
prosecutor] was somehow conveying that. It’s just a matter of
the contingency, and I don’t find there’s been prejudice.”
Defendant opines that the prosecutor never intended to recall
Beatriz and that he was simply trying to “backhandly inform[]
the jury of the inevitability of a penalty phase.” The record
provides no support for this bald assertion. The trial court was
well within its discretion to reject it. The jury was aware from
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the beginning of voir dire of the potential for a penalty phase.
Nothing in the prosecutor’s statement suggested a penalty
phase was inevitable. No misconduct appears.
7. Impeachment of Defendant with Misdemeanor
Conduct
Defendant contends that the prosecutor committed
misconduct during cross-examination by asking him about the
facts underlying an incident of vehicle theft and evading arrest
in 1994. He argues that the question violated the trial court’s
ruling excluding such evidence as impeachment. Alternatively,
he maintains, if the question was permitted, the trial court’s
ruling was erroneous. We reject both claims.
Before trial, the prosecutor moved to permit use of facts
underlying defendant’s 1994 misdemeanor conviction for
automobile theft/joyriding (Veh. Code, § 10851) as impeachment
if defendant chose to testify. (See People v. Wheeler (1992) 4
Cal.4th 284, 292, 295–296.) Defendant opposed the motion on
the ground that the crime was not one of moral turpitude
because there was no evidence of intent to steal, and that its
similarity to the carjacking charges made it unduly prejudicial.
(Evid. Code, § 352.) The trial court tentatively excluded the
evidence on the ground that there was insufficient evidence from
which the jury could conclude that defendant intended to steal
the car, but indicated that the prosecutor could revisit the issue.
The prosecutor stated he would research whether evading the
police constituted a crime of moral turpitude.
Two and a half months later, immediately before
defendant testified, the parties revisited the issue. The
prosecutor sought to clarify the court’s previous ruling and
stated a recollection that the court had allowed him to “impeach
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[defendant] with the fact that he had the misdemeanor conduct,
not a conviction but misdemeanor conduct of auto theft . . . .”
After discussing a different incident involving a weapon, the
prosecutor again represented that the court had tentatively
admitted the conduct underlying the auto theft subject to an
Evidence Code section 352 analysis. Defense counsel did not
object to that representation, and the trial court stated, “That’s
consistent with my notes, because I did have a concern under
352. The issue came up if we let in the auto theft is it going to
be prejudicial in light of the charges in this case and what
weight would that have. And, again, I did indicate it was a
tentative, and I would wait and hear what other moral turpitude
conduct there was.” Ultimately, the court ruled the “auto-
related conduct, what we have described as auto theft or
joyriding” was admissible for impeachment.
On direct examination, defendant admitted that he had a
misdemeanor conviction for “joyriding.” On cross-examination,
the prosecutor asked, “The other incidents that you stated to
counsel [that] you were involved in, I think he referred to it as a
joyriding. That’s when you were in a stolen car fleeing from the
police that flipped and ejected people, right?” Defense counsel
objected that the question was “improper impeachment.” The
objection was overruled, and defendant replied, “Yes.”
Defense counsel later brought a motion for mistrial based
on this questioning. At that time he argued, “It’s my
recollection, and I could be wrong, but my recollection on the
prior motion was that this was a misdemeanor, no contest plea
to joyriding. [¶] The prosecution did not have evidence that the
defendant knew the car was stolen. [¶] There was discussion
about the flight from the police, but it’s my recollection that that
would be excluded. [¶] We would object to that coming in at
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all.” The prosecutor countered that the underlying conduct was
relevant for impeachment given that defendant only suffered a
misdemeanor conviction. The trial court denied the motion and
confirmed its ruling: “[I]n performing my balancing under
[Evidence Code section] 352, I did decide it was appropriate to
admit evidence of the conduct of the defendant, related to both
the . . . allegations of furnishing drugs . . . and also conduct of
the defendant being involved in conduct related to a stolen
automobile.” “So I’m not going to find that the People have
inappropriately asked questions related to those subjects.”
We reject defendant’s claim of prosecutorial misconduct.
Defendant has not shown that the prosecutor intentionally
misled the court as to the scope of its prior tentative ruling. The
court confirmed the ruling after reviewing its own notes.
Ultimately, the court revisited the issue and ruled that the
conduct admissible for impeachment. The prosecutor’s question
was therefore within the scope of the court’s ultimate ruling. It
is clear that, in the end, the court considered the question anew
as it had indicated it would do.
We likewise reject defendant’s claim that the evidence was
erroneously admitted. The trial court’s determination that the
evidence was proper impeachment is reviewed for abuse of
discretion. (Ledesma, supra, 39 Cal.4th at p. 705; see People v.
Wheeler, supra, 4 Cal.4th at pp. 295−297 [as to the proper scope
and the evidentiary basis for such evidence]; Simons, Cal. Evid.
Manual (2022) § 3:58, pp. 310–312.) Even if, as the court
initially concluded, there was no evidence of intent to steal,
defendant’s act of intentionally evading police with willful and
wonton disregard for the safety of others was a crime of moral
turpitude. (People v. Dewey (1996) 42 Cal.App.4th 216, 220–222
[violation of Veh. Code, § 2800.1]; accord, People v. Gutierrez
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(2018) 28 Cal.App.5th 85, 91 [violation of Veh. Code, § 2800.2].)
The police report showed that defendant was driving a stolen
car and attempted to evade police at speeds of 80–100 miles per
hour. He crashed the vehicle, knocked down a utility pole, and
injured one of the passengers. That conduct posed a risk of
danger to others and suggested a willingness to evade lawful
process. (Dewey, at p. 222; cf. People v. Lang (1989) 49 Cal.3d
991, 1009–1010.) The court did not err in concluding that the
conduct underlying defendant’s misdemeanor conviction
evinced moral turpitude.
Nor did the court abuse its discretion in admitting the
incident after an Evidence Code section 352 objection.
Defendant argues that the 1994 incident was unduly prejudicial
because of its similarity to the charged crimes of carjacking.
“ ‘Although the similarity between the prior convictions and the
charged offenses is a factor for the court to consider when
balancing probative value against prejudice, it is not
dispositive.’ ” (People v. Edwards (2013) 57 Cal.4th 658, 722.)
As a general matter, there is quite a broad gap between
misdemeanor joy riding and felonious carjacking. Here, there
were significant differences between the 1994 misdemeanor
incident and the charged crimes. In the 1994 incident, there
was no evidence that defendant was involved in the initial theft
of the car or that he used any force against the car’s owner. The
charged crimes involved carjackings at gunpoint, followed by
assaults and murder. It was well within the court’s discretion
to conclude that the 1994 incident was not so similar or
prejudicial as to warrant its exclusion.
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C. Penalty Phase Issues
1. Prosecutor’s Inconsistent Theories Regarding the
Shooter of Javier Ibarra
The prosecutor introduced evidence of defendant’s
involvement in the uncharged murder of Javier Ibarra as a
circumstance in aggravation. The evidence showed that
defendant, his brother Cipriano, and Gabriel Flores confronted
Ibarra and that one of the three fatally shot him. The shooter’s
identity turned on witnesses’ descriptions of the clothing the
three men wore. The prosecutor argued, based on inferences
from the evidence, that defendant was the shooter.
Before defendant’s trial, Flores and Cipriano were each
separately tried for Ibarra’s murder. During those trials, the
Kern County District Attorney’s office took the position that
Flores was the shooter. Flores and Cipriano were each convicted
of murder. Flores’s jury found not true an allegation that he had
personally used a firearm.
Citing In re Sakarias (2005) 35 Cal.4th 140 (Sakarias),
defendant argues that the prosecution’s use of inconsistent
theories about the shooter’s identity violated due process under
the United States Constitution. He further contends that the
trial court’s refusal to allow him to inform the jury of the
prosecution’s inconsistent theories violated his rights to present
a defense and to a reliable penalty determination. On this
record, we find no error. The evidence was ambiguous as to the
shooter’s identity. There is no evidence before us that the
prosecutor deliberately manipulated the trial evidence to
present a false picture of defendant’s guilt. The fact that the
prosecution had interpreted the evidence differently in separate
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trials was not information that defendant was entitled to
present in his case.
a. Proceedings Below
Because defendant’s claim of error turns on the good or
bad faith actions of the prosecutor, we set forth the proceedings
in some detail.
Before the penalty phase, the prosecutor filed a motion in
limine to admit evidence of defendant’s involvement in the 1995
murder of Javier Ibarra as a circumstance in aggravation.40 The
prosecutor had argued during defendant’s pretrial recusal
motion that he should be allowed to prove defendant’s guilt of
Ibarra’s murder on any theory supported by the evidence,
including direct perpetrator, aider and abettor, or coconspirator.
Defendant argued that the uncharged crime should be excluded
as lacking substantial evidence of his guilt under any theory.
The trial court ruled the People could introduce evidence of
defendant’s involvement in the Ibarra murder as a circumstance
in aggravation under theories of “aider and abettor or
princip[al].” It denied defendant’s request to introduce evidence
that the prosecution had presented inconsistent theories in the
Flores and Cipriano trials.
In conjunction with the earlier motion to disqualify,
defendant proffered transcripts of closing arguments made by
prosecutors in the Flores and Cipriano trials. The Flores
prosecutor argued that Flores shot Ibarra: “Alma Mosqueda
said the white hat was on Gabriel Flores. [Ysela] Nunez . . . says
the white hat was the triggerman.” “We have evidence that
Flores is the triggerman based on the information that came on
40
Section 190.3, factor (b).
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the stand.” The prosecutor dismissed the defense theory that
Juan Ramirez was the shooter because he was arrested two days
after the murder wearing a white hat: “Two days later. So
what? [¶] . . . I am sure some of you have white hats, a lot of
people have white hats. So what does that mean? He was
wearing it the night of the murder? No. . . . Got no bearing on
the night of the murder.” Alternatively, if Flores was not the
shooter, the prosecutor argued that he was guilty as aider and
abettor based on his participation in the assault on Ibarra that
preceded the shooting.
The prosecutor in Cipriano’s trial conceded Cipriano was
not the shooter, arguing he was liable for murder as either a
coconspirator or aider and abettor. According to that analysis,
Cipriano and defendant attacked Ibarra together, then stepped
aside, giving Flores an opportunity to shoot him. Cipriano
testified on his own behalf and admitted being present, but
claimed that he had gone there simply to escort Ibarra from the
premises. A fight ensued, and he was surprised by the shooting.
He claimed that defendant, not Flores, was the shooter. The
prosecutor argued that this testimony was self-serving, as was
his initial statement to police giving a false alibi and reporting
his vehicle stolen. As for Cipriano’s testimony that defendant
was the shooter, the prosecutor argued this was just another
fabrication “to blame it on an individual who has not been
arrested or located yet in this case,[41] and I submit to you that,
once again, . . . Cipriano Ramirez[] is trying to do that which he
believes will get him out of trouble.”
41
Defendant was a fugitive in Mexico at the time of
Cipriano’s trial.
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At the penalty phase in this case, the prosecutor called the
following witnesses, in order, to testify about Ibarra’s murder:
Alma Mosqueda, Deputy Contreras, Sergeant Fuqua, Detective
Allan Hall, Gerardo Soto, and Jesse Ibarra.
Mosqueda testified on direct examination that Ibarra was
at her apartment when Cipriano called and asked if “they could
come over and take care of business.” Cipriano arrived shortly
thereafter with defendant and Flores. Mosqueda and Ibarra
were outside. Mosqueda recognized all three men. Cipriano told
Mosqueda to go back into her apartment. As she did so, she saw
Ibarra approach the three men with his arms outstretched as if
inviting them to fight. Ibarra was unarmed. Shortly thereafter,
Mosqueda heard shots and saw Ibarra lying on the ground. That
evening, Mosqueda told investigating officers that Cipriano was
wearing mechanics coveralls. She was subsequently asked by
investigators what the other two men were wearing, but she
could not remember. She did not recall if she described one of
the suspects as wearing a cap.42 Nor did she recall telling Jesse
Ibarra that one of the suspects was wearing a white hat.
On cross-examination, defense counsel asked Mosqueda if
she presently recalled that Flores was wearing a white hat on
the night of the shooting. She replied, “In my memory . . . [h]e
was wearing a white hat.” She reported this fact to District
Attorney Investigator Kevin Clerico about a year and a half
after the shooting. She also reported to Clerico that the other
two men (Cipriano and defendant) were not wearing hats.
Asked if she was telling the truth at that time, she responded,
42
The evidence was that the shooter wore a white baseball
cap. At times the witnesses and attorneys use the words “cap”
and “hat” interchangeably.
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“To my belief, yes.” Counsel again asked, “Mr. Flores is the [one]
that had the white cap, right?” to which Mosqueda replied, “To
my memory, yes.” Counsel then asked Mosqueda about her
prior court testimony on four occasions between 1997 and 1998.
She confirmed that, on each occasion, she identified Flores as
wearing a white cap. Counsel further inquired, “And you have
never testified in any of those hearings that anybody else was
wearing a white cap, have you?” to which Mosqueda answered,
“No.”
Deputy Contreras testified on direct examination that he
responded to the scene and found Ibarra dead. At that time,
Mosqueda did not provide a description of the suspects’ clothing.
On cross-examination, defense counsel elicited the fact that
Ysela Nunez was identified as a witness to the shooting.
Sergeant Daniel Fuqua testified on direct examination
that, two days after the shooting, he arrested defendant and
seized a white baseball cap with “Lamont” written on it. On the
prosecutor’s motion, the cap was admitted into evidence.
Detective Hall testified on direct examination that he
interviewed Mosqueda on the night of Ibarra’s murder. She
identified two suspects, defendant and Cipriano. She said one
man was wearing overalls, the other a cap. She did not identify
Flores or say that he was wearing a cap. The detective
interviewed defendant after his arrest. Defendant denied being
at the apartment complex the day Ibarra was shot. He admitted
that on the night of the shooting he was wearing a “mustard-
colored Lamont cap.” He also said that Cipriano and Flores do
not wear caps.
Defendant’s uncle, Gerardo Soto, testified on direct
examination that he saw defendant on the night of the murder.
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Defendant was wearing a dark Pendleton shirt and a dark
baseball cap. The witness has never seen defendant wearing a
white hat. On cross-examination, the witness verified that,
shortly after the shooting, he told an officer that defendant was
wearing a blue cap on the night of the shooting. He was telling
the truth, and his memory of the event was better at that time.
Soto confirmed that white caps with the word “Lamont” on them
are very common and popular.
The victim’s brother, Jesse Ibarra, testified on direct
examination that he spoke to Mosqueda the day after the
shooting. She told him defendant was involved and had been
wearing a white “Lamont” cap.
Cipriano and Flores were both called by the prosecutor,
and both invoked their right not to testify at defendant’s trial.
The prosecutor did not offer Cipriano’s prior testimony
identifying defendant as the shooter.
In various discussions between the court and counsel, the
prosecutor observed that he had called Deputy Contreras,
Detective Hall, and Jesse Ibarra to rebut Mosqueda’s testimony
elicited on cross-examination that Flores wore the white cap. He
further observed, “nobody could predict how the evidence was
going to come out” but that “the evidence is out.” He argued, “I
also recall the Court saying that if the evidence came in that it
was just as likely it was the defendant [who shot Ibarra], then I
could argue that.” The court observed, “To the extent there’s a
conflict in the evidence, the jury is going to resolve that, if there’s
substantial evidence.”
The following day, defense counsel moved for a mistrial on
the basis of prosecutorial misconduct. He argued that the
prosecutor had violated the trial court’s ruling by introducing
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evidence that defendant shot Ibarra, and that the prosecutor’s
pursuit of this theory had deprived defendant of a fair trial. The
motion was denied, with the court making the following
observation: “I am certain that I have never ruled that the
People could not seek to prove that the defendant . . . was the
shooter in the Ibarra incident. [¶] . . . That’s been a theory Mr.
Barton has asserted from the beginning. And Mr. Barton is not
estopped or precluded from arguing that if there’s evidence to
support it.”
Immediately thereafter, defendant called Ysela Nunez to
testify. She saw the shooting from her second story window but
could not identify any participants. She described the shooter
as wearing black pants, a white hat, and a Pendleton shirt
checkered in black, white, and grey.
Before penalty phase argument, defendant renewed his
motion for mistrial. Defense counsel expressed in open court
that he had transported Nunez from Texas to testify as a defense
witness.43 He had made a tactical decision to elicit testimony
from Nunez that the shooter wore a white hat so that he could
argue Flores was the shooter and defendant was only a minor
participant. Counsel renewed his argument that the prosecutor
had violated the trial court’s ruling by introducing evidence that
defendant shot Ibarra. Again the motion was denied, with an
explicit ruling by the court that it had not precluded the
prosecutor from presenting evidence that defendant shot Ibarra.
The court observed, “the People are entitled to pursue the truth,
just as the defense is entitled to pursue the truth, and I’m
43
Defense counsel sought and obtained fees for this purpose.
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specifically going to find that the People did not violate my
ruling.”
During the penalty phase closing argument, the
prosecutor argued that “the evidence points strongly to the fact
that the defendant was the shooter” of Ibarra. He further
contended that defendant “purposefully cho[se] to kill Chad just
like he chose to kill Javier Ibarra, and not on accident.”
b. No Due Process Violation Appears on This
Record
The prosecutor has broad discretion to prosecute a
defendant for a particular crime so long as there is probable
cause to believe that the defendant is guilty and the prosecution
is not motivated by vindictiveness or invidious discrimination.
(People v. Lucas (1995) 12 Cal.4th 415, 477.) Moreover, as a
general matter, the law does not require consistency in results
between different criminal defendants in different prosecutions.
(Standefer v. United States (1980) 447 U.S. 10, 12–13, 22–26;
People v. Superior Court (Sparks) (2010) 48 Cal.4th 1, 8–22.)
In Sakarias, supra, 35 Cal.4th 140, a habeas proceeding,
this court found a due process violation where the prosecutor
adopted inconsistent and irreconcilable factual theories in
separate trials and manipulated the available evidence to the
detriment of each defendant. In that case, Sakarias and Waidla
broke into the victim’s house and attacked her with a knife and
a hatchet. The victim was bludgeoned in the head five times.
She was also stabbed in the chest four times and sustained three
chopping wounds to the head. One of the chopping wounds
occurred before death and penetrated the victim’s skull. The
other two were inflicted around the time of death or thereafter.
(Id. at p. 146.) At some point during the assault, the victim was
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dragged down the hall to a bedroom where she was later found
dead. (Ibid.) Sakarias admitted the stabbings and that later, at
Waidla’s direction, he struck the victim’s head twice with the
hatchet after she was moved to the bedroom. Waidla admitted
inflicting a single bludgeoning blow with the hatchet at the
outset of the attack. (Ibid.) Thus, the evidence suggested that
Waidla struck the first and fatal chopping blow, while Sakarias
inflicted the other two chopping blows peri- or postmortem. (Id.
at p. 147.)
In each of the separate trials, “the prosecutor attributed
the three hatchet-edge blows to each defendant in turn in order
to establish an aggravating circumstance of the crime [citation]
on the basis of which the jury was urged to sentence each
defendant to death.” (Sakarias, supra, 35 Cal.4th at p. 160.)
The prosecutor “manipulat[ed] the evidence” in each trial to
support this result. (Id. at p. 162.) In Waidla’s trial, the
prosecutor introduced Waidla’s admission that he had wielded
the hatchet during the initial attack. The prosecutor did not
introduce Sakarias’s statement, as an admission against
interest, that he had inflicted the two chopping wounds in the
bedroom. The prosecutor also presented evidence from the
medical examiner opining that an abrasion on the victim’s lower
back, caused by her being dragged to the bedroom, was
sustained postmortem. This could indicate that the initial blow,
preceding the dragging, was fatal. In Sakarias’s trial, the
prosecution introduced Sakarias’s statement and omitted the
medical examiner’s opinion about the lower back abrasion. As
a result, “no evidence was before Sakarias’s jury that [the
victim] was dead by the time Sakarias, as he admitted, struck
her with the hatchet in the bedroom.” (Id. at p. 148.) The
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prosecutor then argued that Sakarias delivered all three hatchet
blows, including the fatal one, in the bedroom. (Ibid.)
The referee presiding over the evidentiary hearing made
several factual findings which were supported by substantial
evidence. (Sakarias, supra, 35 Cal.4th at pp. 150–154.)
Specifically, the referee found that the prosecutor’s use of
divergent factual theories “ ‘was an intentional strategic
decision designed to fit the evidence [the prosecutor] presented
at the successive trials, to meet the proffered defense theories,
and to maximize the portrayal of each defendant’s culpability.’ ”
(Id. at p. 150.) The referee also concluded that the prosecutor in
Sakarias’s trial “ ‘deliberately refrained from asking [the
medical examiner] about the postmortem abrasion on [the
victim’s] back. He did so to tailor his evidentiary presentation
to his changed theory of the hatchet wounds. The most likely
explanation of that abrasion would have been inconsistent with
the factual theory of the killing he presented in Sakarias’[s]
trial.’ ” (Id. at p. 151.)
We concluded that the prosecutor’s deliberate and “bad
faith” manipulation of the evidence to obtain a death judgement
against each defendant violated due process. (Sakarias, supra,35 Cal.4th at pp. 160, 162.) “[F]undamental fairness does not
permit the People, without a good faith justification, to attribute
to two defendants, in separate trials, a criminal act only one
defendant could have committed. By doing so, the state
necessarily urges conviction or an increase in culpability in one
of the cases on a false factual basis, a result inconsistent with
the goal of the criminal trial as a search for truth. At least
where, as in Sakarias’s case, the change in theories between the
two trials is achieved partly through deliberate manipulation of
the evidence put before the jury, the use of such inconsistent and
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irreconcilable theories impermissibly undermines the reliability
of the convictions or sentences thereby obtained.” (Id. at pp.
155–156, italics added.)
This case differs from Sakarias in several crucial respects.
First, none of the defendants charged with Ibarra’s murder was
“necessarily convicted or sentenced . . . on a false factual basis.”
(Sakarias, supra, 35 Cal.4th at p. 164.) In Flores’s trial, the jury
rejected the prosecutor’s theory that Flores was the shooter
when it did not find true an allegation that Flores personally
used a firearm. In Cipriano’s trial, the prosecutor conceded
Cipriano was not the shooter and argued that he was liable for
murder as a coconspirator and an aider and abettor. The
prosecutor briefly argued that Flores shot Ibarra based on
Mosqueda’s testimony and questioned the veracity of Cipriano’s
claim that his brother was the shooter. However, it was
unnecessary for the prosecutor to take a firm position on the
shooter’s identity or for the jury to make a finding in that
respect. The jury was simply asked to find Cipriano guilty for
aiding and abetting the shooter, whomever that may have been.
It follows that the state has not “necessarily convicted or
sentenced a person on a false factual basis” (id. at p. 164), when
the supposed factual inconsistency was either rejected by the
earlier jury (as in Flores’s trial) or was immaterial to its verdict
(as in Cipriano’s trial).
Second, in Sakarias the evidence pointed clearly to Waidla
as having inflicted the fatal chopping blow. The referee
specifically found that the prosecutor had strong reason to
believe the victim was dead when she was dragged from the
living room to the bedroom. (Sakarias, supra, 35 Cal.4th at
p. 150.) We therefore found it unnecessary to consider “what
result obtains when the likely truth of the prosecutor’s
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inconsistent theories cannot be determined” because the
evidence is “ambiguous or inconclusive.” (Id. at p. 164; see also
id. at pp. 164–165, fn. 8.) Here, by contrast, the record before us
does not point clearly to the truth of one theory and the falsity
of the other. (Id. at p. 156.) Mosqueda did testify that Flores
was wearing a white cap. But the jury in Flores’s case refused
to find he personally used a weapon based on that same
testimony. And the victim’s brother, Jesse Ibarra, testified that,
on the day after the shooting, Mosqueda said defendant was
involved and had been wearing a white cap. Two days after the
shooting, Sergeant Daniel Fuqua arrested defendant and seized
a white baseball cap. Defendant admitted to Detective Hall that
on the night of the shooting he was wearing a “mustard-colored
Lamont cap.” He also said that Cipriano and Flores do not wear
caps. Cipriano likewise testified at his separate trial that
defendant was the shooter. Although Cipriano ultimately
refused to testify at defendant’s trial and his prior testimony
was not admitted, the existence of this evidence suggests that
the prosecutor did not act in bad faith by pursuing a theory that
defendant shot Ibarra.
While not binding precedent, federal circuit courts have
held that uncertainty in the evidence justifies the prosecutor’s
use of alternate theories in separate cases. (See, e.g., U.S. v.
Paul (8th Cir. 2000) 217 F.3d 989, 998–999 [“When it cannot be
determined which of two defendants’ guns caused a fatal wound
and either defendant could have been convicted under either
theory, the prosecution’s argument at both trials that the
defendant on trial pulled the trigger is not factually
inconsistent”]; Parker v. Singletary (11th Cir. 1992) 974 F.2d
1562, 1578.) The ambiguity in the evidence and the posture of
the separate trials suggest that the prosecutor did not act in bad
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faith here. As Justice Werdegar, the author of Sakarias,
observed in a later case: “Although arguing inconsistent
theories of culpability can be prosecutorial misconduct if
pursued in bad faith [citation], such as when the change in
theories is based on a ‘deliberate manipulation of the evidence’
[citation], no such bad faith is suggested here. Because the
evidence suggests there was only one shooter, when Glover’s
jury in his trial failed to sustain the alleged firearm use
enhancement the People could fairly conclude — and argue to
defendant’s jury — that defendant was the shooter.” (People v.
Thomas (2012) 54 Cal.4th 908, 951 (conc. opn. of Werdegar, J.),
quoting Sakarias, supra, 35 Cal.4th at p. 156.)
Third, central to Sakarias’s holding was the fact that the
prosecutor modified the evidence he presented in the separate
trials to support his inconsistent theories of guilt. We found this
“manipulation of the evidence for the purpose of pursuing
inconsistent theories establishe[d] the prosecutor’s bad faith.”
(Sakarias, supra, 35 Cal.4th at p. 162.) The record before us
does not support a similar finding here. On the contrary, it was
defense counsel, not the prosecutor, who elicited the critical
evidence of who wore the white cap in an attempt to portray
Flores as the shooter.
During direct examination of Mosqueda, the prosecutor
asked whether, in the days after the shooting, she had identified
anyone as wearing a white cap. Mosqueda could not recall
making such a statement to police or to Jesse Ibarra. On cross-
examination, defense counsel asked Mosqueda directly if Flores
was wearing a white cap when he came to her house on the night
of the shooting. Mosqueda testified that he was, and that she
had told a district attorney investigator that fact about a year
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and a half after the shooting. She also affirmed that she had
testified consistently to that fact four times in court.
The prosecutor then sought to impeach Mosqueda’s
testimony elicited by the defense. He called Detective Hall and
Jesse Ibarra to testify that, shortly after the shooting, Mosqueda
had told them that defendant, not Flores, was wearing the white
cap. It was also after Mosqueda’s testimony on cross-
examination that the prosecutor called Sergeant Fuqua and
Detective Hall to testify that defendant was arrested two days
after the shooting with a white baseball cap, and that defendant
stated at the time that Cipriano and Flores do not wear caps.
Significantly, the prosecutor did not seek to introduce any
evidence directly establishing that defendant was the shooter.
It was defendant, not the prosecutor, who called Ysela Nunez to
testify.44 She was the only person who could identify the shooter
as having worn a white cap. Defendant called Nunez as a
defense witness after the close of the prosecution’s penalty case,
even in the face of the trial court’s clarification that it would not
preclude the prosecutor from arguing that defendant was the
shooter if there was evidence to support it. Defense counsel
stated in open court that he made a tactical decision to elicit this
evidence so that he could argue Flores shot Ibarra and
defendant was only a minor participant. In addition, the
prosecutor did not move to admit Cipriano’s prior testimony that
44
In his opening statement, the prosecutor anticipated that
Nunez would be called as a witness and summarized her
expected testimony. Because the prosecutor did not call her as
a witness, it appears he was summarizing anticipated defense
testimony. Defense counsel summarized this expected
testimony in his opening statement as well.
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defendant was the shooter after Cipriano invoked his Fifth
Amendment privilege at defendant’s trial.
Defendant appears to concede these points in his briefing
before us. He observes: “After much procedural jousting, it
seemed that the prosecutor had withdrawn this aim [to prove
that defendant was the shooter], as well as its desire to present
Cipriano’s testimony, and settled for the presentation of
evidence showing at the most that [defendant] was guilty of
being an aider and abettor to that crime or a conspirator with
the target crime of murder.” Defendant observes that the
prosecutor “revert[ed] to his original goal” in questioning
witnesses who testified after Mosqueda identified Flores as
wearing the white cap.
In short, the record before us suggests the prosecutor
introduced known impeachment evidence to counter a theory of
third-party culpability first introduced by the defense that was
contrary to the jury’s finding in the Flores case. Once defendant
elected to offer evidence as to the shooter’s identity, the
prosecutor was not obligated to sit idly by and eschew fair
inferences from the evidence that defendant fired the shots. 45
45
Defendant perfunctorily asserts that the trial court
“dece[ived]” defense counsel by initially limiting the prosecutor’s
theories of liability to aiding and abetting or principal in a
battery. He urges the court inexplicably changed its ruling,
demonstrating judicial bias. In fact, the trial court rejected
defense counsel’s view of the record and explained that it had
not limited the prosecutor to an aiding and abetting theory of
liability. Beyond its unsupported assertion, the defense points
to nothing in the record indicating to the contrary. In any event,
“ ‘ “ ‘[a] trial court’s numerous rulings against a party — even
when erroneous — do not establish a charge of judicial bias,
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This sequence of events, without more, does not suggest bad
faith or “deliberate manipulation” of the evidence by the
prosecutor. (Sakarias, supra, 35 Cal.4th at p. 156.)
Defendant cites Bradshaw v. Stumpf (2005) 545 U.S. 175in support of his due process claim. As he acknowledges, the
court there held that the prosecutor’s inconsistent positions
about the identity of a shooter in separate proceedings did not
invalidate Stumpf’s guilty plea because “the precise identity of
the triggerman was immaterial to Stumpf’s conviction for
aggravated murder.” (Id. at p. 187.) Defendant observes,
however, that the court remanded the case to the Sixth Circuit
to evaluate whether the prosecutor’s inconsistent arguments
required reversal of the death sentence. In doing so, the court
observed, “The prosecutor’s use of allegedly inconsistent
theories may have a more direct effect on Stumpf’s sentence . . .
for it is at least arguable that the sentencing panel’s conclusion
about Stumpf’s principal role in the offense was material to its
sentencing determination.” (Ibid.) But it ultimately
“express[ed] no opinion on whether the prosecutor’s actions [in
arguing inconsistent theories about who shot the victim]
amounted to a due process violation.” (Ibid.) Accordingly, he
reaches too far in urging the case supports his due process
argument here.
In rejecting defendant’s due process claim, we have drawn
certain inferences from the appellate record and, in particular,
the timing of the presentation of evidence. We note, however,
that the court and the parties did not have the benefit of our
especially when they are subject to review.’ ” ’ ” (Nieves, supra,
11 Cal.5th at p. 485; accord, People v. Fuiava (2012) 53 Cal.4th
622, 731–732.)
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decision in Sakarias, supra, 35 Cal.4th 140 when they litigated
this issue below. Sakarias clarified that the prosecutor’s good
or bad faith, his manipulation of evidence, his discovery of
significant new evidence, and the truth or falsity of the
prosecutor’s theory, all play a role in assessing whether a due
process violation occurred. Nothing we say here precludes
defendant from developing extra-record evidence bearing on
these factors in support of a petition for writ of habeas corpus.
(People v. Sakarias (2000) 22 Cal.4th 596, 635–636; see People
v. Jones (2003) 30 Cal.4th 1084, 1130.)
Defendant further argues that the trial court deprived him
of the right to present a defense and due process when it refused
to allow him to present evidence of the prosecution’s
inconsistent theories. He fails to persuade. “ ‘Evidence’ means
testimony, writings, material objects, or other things presented
to the senses that are offered to prove the existence or
nonexistence of a fact.” (Evid. Code, § 140.) Juries are
instructed that statements by the attorneys are not evidence.
(CALCRIM Nos. 104, 222.) Here, the prosecutors in the
Cipriano and Flores trials made assertions about what the
evidence showed, argued credibility of certain witnesses, and
invited each jury to draw its own inferences from the evidence.
The trial court correctly ruled that the arguments made by
advocates were not relevant evidence for this jury to consider.
The court never prevented the defense from introducing
competent evidence that Flores shot Ibarra or from arguing that
theory to the jury. Indeed, the defense did both.
Finally, defendant claims that the prosecutor committed
misconduct by arguing inferences unsupported by the evidence.
But the evidence did support an inference that defendant wore
the white cap and shot Javier Ibarra. Jesse Ibarra testified that
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Mosqueda told him as much the day after the shooting. The day
after that, an officer found defendant in possession of a white
cap. During a subsequent interview with police, defendant
admitted to wearing a “mustard-colored Lamont cap” on the
night of the shooting. The trial court specifically found that the
prosecutor did not run afoul of the court’s ruling by urging that
defendant was the shooter. No misconduct appears.
2. Sufficiency of Evidence of Defendant’s Participation
in Crimes Against Javier Ibarra
Defendant contends that evidence of the crimes against
Ibarra should have been excluded because it was insufficient to
support a finding that defendant personally shot Ibarra or
engaged in a conspiracy to kill him. The claim lacks merit.
“ ‘ “[A] trial court’s decision to admit ‘other crimes’
evidence at the penalty phase is reviewed for abuse of discretion,
and no abuse of discretion will be found where, in fact, the
evidence in question was legally sufficient.” ’ ” (People v. Tully
(2012) 54 Cal.4th 952, 1027.)
Discretion was not abused here. There was evidence that
defendant was wearing a white cap when he shot Ibarra.
Alternatively, there was evidence that Cipriano, defendant, and
Flores together arrived to “take care of business” with Ibarra,
that defendant and Cipriano assaulted Ibarra in a coordinated
attack, and that the two brothers jumped back suddenly,
allowing Flores to shoot him. Either scenario supported a
finding of liability for murder as a direct perpetrator or an aider
and abettor. And even if the jury did not believe defendant shot
Ibarra or intended to aid and abet his murder, there was
sufficient evidence that he and Cipriano committed a battery.
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Evidence of such an attack would qualify as an unadjudicated
crime under section 190.3, factor (b).
Defendant’s argument that the evidence was inadmissible
because it did not support a finding that defendant was the
actual shooter or conspirator sets the bar too high. Section 190.3
provides that evidence of the use, attempt, or threat of force or
violence “may be presented” and “shall be admitted.” (§ 190.3.)
“[W]e have consistently upheld admission of conduct amounting
to a misdemeanor battery as a circumstance in
aggravation . . . .” (People v. Delgado (2017) 2 Cal.5th 544, 583
(Delgado), and cases cited.) The jury was instructed to consider
whether defendant committed “Murder or Battery.” No theory
of conspiracy was presented to the jury. It was for the jury to
decide what crimes, if any, defendant committed. (Id. at p. 588.)
3. Admission of Cipriano Ramirez’s Out-of-court
Statements
During the penalty phase, the prosecutor elicited evidence
of Cipriano’s incriminating out-of-court statement made
immediately before Ibarra’s murder. Mosqueda testified that
Cipriano had called her and asked if “we” could come over and
“take care of business.” Jesse Ibarra testified that Mosqueda
gave a similar account to him immediately after the murder,
stating that Cipriano had told her “we are coming over to take
care of business.” Defense counsel’s objections that the
questions called for hearsay and violated Aranda/Bruton46 were
overruled. His later motions to strike the statements and for a
mistrial were denied.
46
People v. Aranda (1965) 63 Cal.2d 518 (Aranda); Bruton v.
United States (1968) 391 U.S. 123 (Bruton).
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Defendant contends that the rulings violated his right to
confrontation and compulsory process under the federal and
state Constitutions and his federal constitutional right to due
process. He does not independently challenge the admission of
evidence under state hearsay rules. We find no error.
The Sixth Amendment bars the admission of testimonial
hearsay from a witness who did not appear at trial, unless the
witness was unavailable to testify and the defendant had a
previous opportunity for cross-examination. (Crawford, supra,
541 U.S. at pp. 51, 53–54.) The high court has made clear that
the Sixth Amendment is concerned only with those hearsay
statements that qualify as “testimonial.” (Whorton v. Bockting
(2007) 549 U.S. 406, 419–420; Davis v. Washington (2006) 547
U.S. 813, 824 (Davis).) “[T]he Confrontation Clause has no
application to [nontestimonial] statements and therefore
permits their admission even if they lack indicia of reliability.”
(Whorton, at p. 420.)
The high court has yet to state definitively just what facts
conclusively demonstrate that particular hearsay qualifies as
testimonial. (Sanchez, supra, 63 Cal.4th at p. 687.) However, it
has never held a hearsay statement to be testimonial unless it
was sufficiently formal and made by or to a government agent
during the course of a criminal investigation, for the primary
purpose of preserving evidence for trial. (Id. at pp. 687–689;
Simons, Cal. Evid. Manual, supra, §§ 2:115–2:123, pp. 230–250.)
Cipriano’s “casual remark” to Mosqueda, “an
acquaintance,” (Crawford, supra, 541 U.S. at 51) during a phone
call to her apartment, satisfies none, let alone all, of these
criteria. As a result they were “unquestionably nontestimonial.”
(People v. Cortez (2016) 63 Cal.4th 101, 129 (Cortez) [uncle’s
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statement to his nephew in his nephew’s apartment]; accord,
Davis, supra, 547 U.S. at p. 825 [statements made from one
prisoner to another are nontestimonial].)
Citing Bruton, supra, 391 U.S. 123, and Aranda, supra, 63
Cal.2d 518,47 defendant argues that a different result must
obtain for extrajudicial statements of a codefendant that
implicate the defendant in the commission of a crime. This is
because such statements are “devastating to the defendant” and
“their credibility is inevitably suspect.” (Bruton, at p. 136.) “The
unreliability of such evidence is intolerably compounded when
the alleged accomplice, as here, does not testify and cannot be
tested on cross-examination.” (Ibid.)
Defendant’s reliance on Bruton is misplaced. “The
Aranda/Bruton rule addresses the situation in which ‘an out-of-
court confession of one defendant . . . incriminates not only that
defendant but another defendant jointly charged.’ ” (People v.
Brown (2003) 31 Cal.4th 518, 537 (Brown), quoting People v.
Fletcher, supra, 13 Cal.4th at p. 455.) “ ‘The United States
Supreme Court has held that, because jurors cannot be expected
to ignore one defendant’s confession that is “powerfully
incriminating” as to a second defendant when determining the
latter’s guilt[, even when instructed to do so], admission of such
a confession at a joint trial generally violates the confrontation
rights of the nondeclarant.’ ” (Brown, at p. 537, quoting
Fletcher, at p. 455.) Further, Bruton “involved a nontestifying
codefendant’s hearsay statement that did not qualify for
47
To the extent Aranda stated a broader rule of exclusion
than required under the federal Constitution, its holding was
abrogated by the “truth-in-evidence” provision of Proposition 8.
(People v. Fletcher (1996) 13 Cal.4th 451, 465.)
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admission against the defendant under any hearsay exception
and that was ‘clearly inadmissible against [the defendant] under
traditional rules of evidence.’ ” (Cortez, supra, 63 Cal.4th at p.
129, quoting Bruton, supra, 391 U.S. at p. 128, fn. 3.)
Flores and Cipriano were separately tried for Ibarra’s
murder. Defendant was not formally charged with Ibarra’s
murder, and he stood trial alone for the charged offenses here.
The Aranda/Bruton rule has no application to a defendant who
is separately tried and convicted. (Brown, supra, 31 Cal.4th at
p. 537.) The question is simply the admissibility of the out-of-
court statement. (Cortez, supra, 63 Cal.4th at p. 129.) As
explained, the Sixth Amendment did not bar the use of
Cipriano’s nontestimonial statement to Mosqueda, and
defendant fails to argue that the statement was inadmissible
under statutory hearsay rules. Moreover, Cipriano’s statement
was not facially incriminating of defendant. (Richardson v.
Marsh (1987) 481 U.S. 200, 208.) It did not name defendant or
refer to him directly, and Cipriano’s reference to “tak[ing] care
of business” was not obviously incriminating, either directly or
by inference. (Montes, supra, 58 Cal.4th at p. 867.) Bruton has
no application in this context.
Defendant contends that Bruton states a rule of exclusion
grounded in principles of due process that is broader than the
reach of the Sixth Amendment’s confrontation clause. He cites
no authority, other than Bruton itself, to support this claim. But
the holding in Bruton sounds in the Sixth Amendment. (Bruton,
supra, 391 U.S. at pp. 126, 128, 136–137.) Accordingly,
numerous courts have considered and rejected the argument.
(People v. Almeda (2018) 19 Cal.App.5th 346, 361–363; People v.
Washington (2017) 15 Cal.App.5th 19, 26–31; People v. Arceo
(2011) 195 Cal.App.4th 556, 570–575; see also U.S. v. Figueroa-
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Cartagena (1st Cir. 2010) 612 F.3d 69, 85; U.S. v. Berrios (3d
Cir. 2012) 676 F.3d 118, 128; U.S. v. Dargan (4th Cir. 2013) 738
F.3d 643, 651; U.S. v. Vasquez (5th Cir. 2014) 766 F.3d 373, 378–
379; U.S. v. Johnson (6th Cir. 2009) 581 F.3d 320, 325–326;
U.S. v. Dale (8th Cir. 2010) 614 F.3d 942, 958–959; U.S. v. Clark
(10th Cir. 2013) 717 F.3d 790, 813–817.)
Ultimately, we need not weigh in on the matter. Bruton,
whatever its constitutional basis, is inapplicable here. There
was no joint trial and Cipriano’s statements were not facially
incriminating of defendant.
4. Admission of Unadjudicated Criminal Activity
Involving a Firearm
Defendant challenges the admission of penalty phase
evidence concerning an unadjudicated incident where he was
found in possession of methamphetamine and a loaded
firearm.48 We find no error.
Bakersfield Police Officer Michael Coronado testified that
he arrested defendant on August 22, 1997, in a Bakersfield
apartment. Coronado was admitted by one of the tenants. She
and the other woman inside told the officer that they were the
only people there. However, when the officer went upstairs to a
bedroom, he found defendant kneeling down, with his hands
under the bed. About six inches from defendant was an open
purse, and inside the purse was a pistol with a round in the
chamber. There was methamphetamine on a nearby dresser.
48
Defendant was separately charged with violations of
Health and Safety Code sections 11370.1, subdivision (a) and
11550, subdivision (e) based on this incident. The charges were
bifurcated and tried separately after the penalty phase verdict
was returned.
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Coronado arrested defendant. In a later statement, defendant
admitted that the methamphetamine and the gun were his. He
said he had the gun for protection because he was traveling
frequently between Arizona and California. When he heard
police at the door to the apartment, he hid the gun so it would
not be found on his person. Defendant was cooperative during
his arrest. Defendant’s urine sample reflected use of
methamphetamine.
Section 190.3, factor (b) authorizes the admission of
“criminal activity by the defendant which involved the use or
attempted use of force or violence or the express or implied
threat to use force or violence.” We review the trial court’s
decision to admit factor (b) evidence for abuse of discretion.
(Delgado, supra, 2 Cal.5th at p. 582.) Based on the prosecutor’s
offer of proof, the court reasoned that the loaded firearm was in
close proximity to both defendant and the drugs, and that
defendant was aware of its presence, thus supporting an
inference that the firearm was “available for the defendant to
put to immediate use, to aid in the drug possession.”
No abuse of discretion appears. “[I]llegal possession of
potentially dangerous weapons may ‘show[] an implied intention
to put the weapons to unlawful use,’ rendering the evidence
admissible pursuant to section 190.3, factor (b).” (People v.
Dykes (2009) 46 Cal.4th 731, 777 (Dykes) [possession of a loaded
handgun while under arrest], quoting People v. Michaels (2002)
28 Cal.4th 486, 535–536 [possession of double-edged dagger,
various knives, and a concealed handgun]; accord, People v.
Quartermain (1997) 16 Cal.4th 600, 631 [possession of several
sawed-off rifles and silencers]; People v. Garceau (1993) 6
Cal.4th 140, 203 [possession of weapons including a machine
gun, a silencer, and handguns].)
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Defendant argues these cases are distinguishable because
they involved illegal weapons possession, while here defendant’s
gun possession was legal and posed no threat to the officer. To
the contrary, it is unlawful to be armed with a loaded, operable
firearm while in possession of methamphetamine. (Health &
Saf. Code, § 11370.1, subd. (a).) Defendant was convicted of that
offense in a bifurcated trial involving this same incident.
Moreover, the trial court did not abuse its discretion in
concluding that defendant’s possession of a loaded gun, which
was available for immediate use, posed a threat to the officer.
The two women in the apartment tried to conceal defendant’s
whereabouts. When the officer entered the bedroom, he found
drugs in view and defendant crouching behind a bed, with his
hands out of sight. The officer drew his gun and ordered
defendant to raise his hands. Although defendant complied
without incident, he was certainly in a position to wield his gun
against the officer had the officer not acted quickly. To the
extent there was an innocent explanation for defendant’s
possession of the firearm, the jury was free to consider it, “but
such inferences do not render the evidence inadmissible per se.”
(People v. Tuilaepa (1992) 4 Cal.4th 569, 589.)
Dykes, supra, 46 Cal.4th 731 is similar. There the
defendant was lawfully detained by a police officer. Without
being prompted to do so, the defendant removed a hat and gloves
and placed them on the roof of the officer’s patrol car. The officer
examined the gloves and found a loaded and cocked handgun.
We upheld admission of this incident under section 190.3, factor
(b) even though the defendant made no attempt to use or display
the weapon. We reasoned that “the jury legitimately could infer
an implied threat of violence from all the circumstances,
including the ‘criminal character of defendant’s possession’
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[citations], the concealment of the loaded and cocked weapon in
a manner that rendered it available for instant, surprise use,
and defendant’s use of a similar firearm in committing the
present offense.” (Id. at p. 777.) Those factors are likewise
present here: defendant’s possession of the gun and drugs was
unlawful; he concealed the weapon in a purse within reach; and
he used a handgun to kill Chad. Admission of the evidence was
proper.
5. Prosecution’s Rebuttal Evidence
Defendant indicated a desire to introduce mitigation
evidence. He argues the court erroneously indicated it would
permit the prosecution to offer rebuttal evidence that was
speculative, inconclusive, and inflammatory. He urges that the
court’s indication caused him to forgo that mitigating evidence,
rather than risk opening the door to rebuttal. He argues that,
as a result, he was denied due process and the right to a reliable
penalty determination. There was no error.
Defendant’s claim involves two incidents: (1) the proffered
testimony of correctional officer Toody Clites about an incident
involving defendant and other inmates at the Lerdo County jail,
and (2) proffered evidence that defendant had been stopped in a
vehicle after a drive-by shooting in rival gang territory and that
shell casings matching those found at the shooting scene were
recovered from the vehicle.
During an in limine hearing, Clites recounted an inmate
conversation she heard through an intercom system. Inmates
Sterns, Ruiz, and Castro were saying that guards searched their
cells and seized shanks. They discussed the need to fashion
more weapons. Sterns commented, “I’m going down, man, for a
long fucking time. So I ain’t hesitating on getting the fuck out
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of here or taking officers out.” Ruiz commented, “[T]he next time
those fuckers toss my place, it’s fucking on. I’m going to take
those fuckers out, too.” Castro commented, “No worry, Loco. It’s
on, and I’m with you.” Defendant was not present during these
conversations. Shortly thereafter, defendant was allowed to
leave his cell and went upstairs to speak with Sterns. Sterns
told defendant about the discussions described. The two
discussed informants, shanks, and officers and made a plan to
produce additional shanks. Sterns commented that the next
time they were harassed or searched by the officers, “[I]t was
going to be on,” to which defendant responded, “[C]ount me in.”
Defendant then spoke to Ruiz, who commented that he was “sick
and tired” of the shanks being seized. Ruiz said, “[I]t’s fucking
on, Loco,” and defendant again replied, “[C]ount me in.”
The trial court initially ruled this incident inadmissible as
section 190.3, factor (b) evidence in aggravation, but deferred
ruling on whether it might be admissible to rebut defendant’s
evidence in mitigation. Defendant proffered, as evidence of
mitigation, his good behavior while incarcerated at Camp
Owens as a juvenile, including that he was a peacemaker, got
along with all races and ethnic groups, and followed direction.
The court tentatively ruled that “if the defense present[s]
evidence as to the defendant’s conduct while housed at Camp
Owens, if it is offered as a predictor of his future behavior, then
the People would be entitled to admit evidence of the Lerdo
shank incident . . . as rebuttal to that.” The court gave, as an
example, testimony that defendant was “well behaved, and
complied with all the rules.” By contrast, the court observed
that general testimony from people who had contact with
defendant at Camp Owen and opined that he had no animosity
towards people of other races or ethnic backgrounds would not
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open the door to rebuttal with the Lerdo incident. Ultimately,
defendant did not introduce evidence of his behavior at Camp
Owens, and the prosecutor did not introduce evidence of the
Lerdo jail incident.
As to the second instance, defendant proffered evidence
that he had been shot at on one occasion and “jumped” by a
group on another occasion. The assailants were unknown. The
prosecutor proffered rebuttal evidence that defendant had been
stopped in a vehicle shortly after a drive-by shooting in rival
gang territory. A search of the vehicle recovered .22-caliber
casings on the rear passenger floorboard that matched the
casings found at the shooting scene. The court ruled that the
drive-by shooting incident was relevant to rebut defendant’s
proffered evidence showing that he was the innocent victim of
violent activity by “showing that the defendant may engage in
violent activity, himself, which would invite retaliation.”
Ultimately, defendant did not introduce evidence that he was
the victim of violent attacks and the prosecutor did not introduce
evidence of defendant’s involvement in a drive-by shooting.
“The scope of rebuttal lies within the trial court’s
discretion.” (People v. Carpenter (1997) 15 Cal.4th 312, 409.)
“[A] defendant who introduces good character evidence widens
the scope of the bad character evidence that may be introduced
in rebuttal.” (People v. Fierro (1991) 1 Cal.4th 173, 237.) “ ‘[T]he
scope of rebuttal must be specific, and evidence presented or
argued as rebuttal must relate directly to a particular incident
or character trait defendant offers in his own behalf,’ but once a
defendant ‘place[s] his general character in issue, the prosecutor
[is] entitled to rebut with evidence or argument suggesting a
more balanced picture of his personality.’ ” (Carpenter, at pp.
408−409.) “The theory for permitting such rebuttal evidence
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and argument is not that it proves a statutory aggravating
factor, but that it undermines defendant’s claim that his good
character weighs in favor of mercy. Accordingly, the prosecutor,
when making such a rebuttal effort, is not bound by the listed
aggravating factors or by his statutory pretrial notice of
aggravating evidence.” (People v. Rodriguez (1986) 42 Cal.3d
730, 791.)
The court did not err in finding the rebuttal evidence
admissible to counter defendant’s proposed mitigation. These
incidents related directly to particular character traits
defendant proposed to prove. Defendant’s participation in
conversations with other inmates about producing shanks and
resisting cell searches by the officers tended to rebut defendant’s
proffered evidence of his good behavior while incarcerated at
Camp Owens as a juvenile. With respect to this incident, the
court made clear that defendant could introduce more general
character evidence that defendant had not exhibited racial or
ethnic animosity while incarcerated at Camp Owens without
opening the door to the Lerdo incident. Defendant elected not
to do so. Defendant’s presence in a car along with the weapon
used in a recent drive-by shooting tended to rebut defendant’s
proffered evidence that he had been an unfortunate victim of
gang attacks. In the words of the trial court, this evidence
tended to show that defendant had “engage[d] in violent activity,
himself, which would invite retaliation.”
Defendant protests that evidence in the Lerdo incident
was speculative and inconclusive because he did not actually
engage in attacks on custodial officers and no shanks were
discovered in his possession. But the fact that officers were
successful in monitoring the inmates and interrupting their
plans before they could be carried out does not minimize the
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potential threat. Defendant’s discussion of these topics and
affirmance, “count me in,” was relevant rebuttal. Defendant
argues that the drive-by shooting incident was similarly
speculative and inconclusive because it involved “an unnamed
house [and] an unnamed victim.” But defendant offers no cause
to believe that the prosecution witness, Kern County Deputy
Sheriff Chavez, would be unable to substantiate these details
based on his investigation of the crime. The reason he never did
so was because defendant elected not to present his mitigating
evidence, thus obviating the need for rebuttal. The prosecutor’s
offer of proof was sufficient to support the trial court’s indicated
ruling to admit the evidence in rebuttal.
6. Exclusion of Mitigating Evidence Regarding Events
Before Defendant’s Birth
Defendant claims that the trial court acted in an arbitrary,
capricious, and prejudicial manner by excluding evidence in
mitigation regarding events that transpired before his own
birth. The assertion fails.
“At the penalty phase a defendant must be permitted to
offer any relevant potentially mitigating evidence, i.e., evidence
relevant to the circumstances of the offense or the defendant’s
character and record.” (In re Gay (1998) 19 Cal.4th 771, 814
(Gay); see § 190.3; Penry v. Lynaugh (1989) 492 U.S. 302, 317.)
“The ‘background of the defendant’s family is material if, and to
the extent that, it relates to the background of defendant
himself.’ [Citation.] The ‘background of the defendant’s family
is of no consequence in and of itself.’ ” (People v. McDowell
(2012) 54 Cal.4th 395, 434, italics added.) The court has broad
discretion to determine the relevance of evidence proffered to
demonstrate defendant’s character. (People v. Souza (2012) 54
Cal.4th 90, 137.)
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Defendant’s claim of error involves the testimony of four
penalty phase witnesses: defendant’s material grandmother,
Esperanza Villa;49 his mother, Angelita; his maternal aunt,
Maria; and his maternal aunt, Olivia Soto.
Esperanza testified that defendant was born in small
adobe home in Mexico. The family was poor and resources were
scarce. Defendant’s father “drank a lot.” Angelita eventually
left the marriage and moved to the United States when
defendant was a sickly one year old. Defense counsel asked
Esperanza if she had observed how defendant’s father treated
his wife when they were living together in Mexico. The
prosecutor’s relevance objection was sustained as to “the period
prior to the birth of the defendant.” At a sidebar, defense
counsel explained that defendant’s older brother, Lorenzo, was
present during that period and observed his father abusing his
mother. According to counsel, Lorenzo “became the man of the
house and was very abusive towards the younger boys,
particularly the Defendant . . . .” He argued that this evidence
was relevant to show “why Lorenzo was the way he was.” The
court ruled: “The question is why is Juan the way he is. And if
Lorenzo was abusive, then you can put in evidence of Lorenzo’s
abuse.” Before the jury, Esperanza testified that she had moved
to the United States before defendant was born and did not have
first-hand knowledge of the relationship between defendant’s
parents thereafter. Esperanza did recount that Angelita wrote
to her once and described an incident where her husband pushed
49
Because several witnesses have overlapping family names
we refer to those witnesses by their given names to avoid
confusion.
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her into a piece of furniture while she was pregnant, injuring
her abdomen.
Angelita testified that defendant’s father was a violent
alcoholic. He spent the family’s money on liquor at times leaving
the family without food. When defense counsel asked Angelita
if defendant’s father was “violent with you when he was
drinking,” the trial court sustained the prosecutor’s objection to
questions about conduct before defendant’s birth. When counsel
reframed the question for the period after defendant’s birth,
Angelita testified, “He was always violent when he drank.” He
was violent toward both her and the children. Angelita said that
defendant was sick and malnourished as a baby. From the time
defendant’s brother, Lorenzo, was seven years old, he had to
watch the younger children while Angelita worked in the fields
for $2.25 an hour. Lorenzo told Angelita that he regularly “beat”
the children when they were under his care. The other children
also reported to her that Lorenzo would “hit” defendant to “tr[y]
to straighten [him] out.” Angelita described the conduct as
corrective and confirmed that defendant never had visible
injuries or had to go to the hospital. She opined that “the reason
for all of this is that [defendant] never had his father with him.”
Maria testified that she knew defendant’s parents. When
asked if she “remember[ed] anything” about defendant’s father,
the court sustained an objection to limit testimony to the
relevant time period after defendant’s birth. Maria testified
that it was “common knowledge” in the family that defendant’s
father was a violent drinker. Angelita left Mexico with her five
children to escape his abuse. When she arrived in the United
States, she had nothing, “not even clothes for the children.”
Defendant was ill and malnourished. At 18 months he could not
crawl. She opined that “Lorenzo has always had his father’s
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character, very violent.” He would hit defendant, and defendant
preferred to stay at Maria’s house to avoid the violence.
Olivia testified that Lorenzo “used to hit [defendant] a lot.”
Olivia would interfere so that defendant would not be badly
hurt. She considered defendant to have been “abused” by
Lorenzo. When the prosecutor attempted to impeach Olivia
with a prior statement given to his investigator, she explained
that, if she previously said that Lorenzo had not abused
defendant, she misunderstood the investigator’s question.
The trial court’s limitation to evidence occurring after
defendant’s birth was not an abuse of discretion. As the trial
court observed, defendant’s father’s earlier behavior was not
relevant to show its effect on defendant’s development.
However, the witnesses were allowed to testify that the father
was violent toward defendant, his mother and siblings, and that
his abuse caused financial instability, ultimately forcing the
family to flee to the United States. Testimony established that
defendant was ill and malnourished as a child, and that his
oldest brother, Lorenzo, was left in charge of the children while
his mother worked in the fields. During that time, Lorenzo beat
defendant for discipline. This testimony painted a very clear
picture of the father’s behavior, and the consequences inflicted
on the entire family. Defendant was not denied the opportunity
to offer relevant potentially mitigating evidence of his character.
Defendant argues that his “inability to present evidence
about what happened to Lorenzo before [defendant was born] in
1976 deprived him of the opportunity to corroborate evidence
that the prosecutor contested regarding [his] abuse as a child at
the hands of Lorenzo and thus make more credible the
testimony of the family about what happened to him as a child.”
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He fails to persuade. It was undisputed that Lorenzo was
violent towards defendant. Angelita, Maria, and Olivia all
testified consistently on that point. The prosecutor attempted
through cross-examination to question the severity of the
violence. The trial court did not abuse its discretion in
concluding that Lorenzo’s own exposure to violence before
defendant’s birth was at most tangential and speculative on that
point.
Defendant relies on Gay, supra, 19 Cal.4th 771 for the
proposition that “a family history remarkable for extensive drug
abuse in multiple generations and various branches of the
family” is relevant mitigation evidence. (Id. at p. 805.) His
reliance is misplaced. Gay involved evidence that defendant
suffered from a major affective disorder and psychoactive
substance abuse, both of which had a genetic component that
also manifested in Gay’s family members. (Id. at pp. 804–805.)
No similar evidence of genetic disposition was proffered here.
7. Evidence and Instruction Regarding the Impact of
Execution on Defendant’s Family
Over defendant’s objection, the trial court told the jury:
“Sympathy for the family of the defendant is not a matter that
you can consider in mitigation. Evidence, if any, of the impact
of an execution on family members should be disregarded unless
it illuminates some positive quality of the defendant’s
background or character.” (CALJIC No. 8.85.) The court did not
otherwise limit defendant’s introduction of mitigating evidence
on this topic.
Citing Payne v. Tennessee (1991) 501 U.S. 808 (Payne),
defendant argues that the court’s instruction prevented the jury
from understanding defendant’s uniqueness as a human being
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and upset the balance between the penalty evidence available to
the defendant and the state. Just as the prosecutor was allowed
to present evidence of the impact of the victim’s death on his
family and friends, defendant argues he should have been
allowed to present evidence of the pain and loss his execution
would cause his family. The court’s instruction, he claims,
violated his constitutional rights to due process, equal
protection, and a reliable penalty determination.
People v. Williams (2013) 56 Cal.4th 165 rejected these
same arguments based on the identical instruction given here:
“Established precedent is to the contrary. ‘The impact of a
defendant’s execution on his or her family may not be considered
by the jury in mitigation. (People v. Smith (2005) 35 Cal.4th
334, 366–367; People v. Smithey (1999) 20 Cal.4th 936, 1000;
People v. Ochoa (1998) 19 Cal.4th 353, 454–456 . . . .)’ (People v.
Bennett (2009) 45 Cal.4th 577, 601.) ‘[N]othing in the federal
Constitution requires a different result (Ochoa, at p. 456) and
defendant identifies no reason to reconsider our conclusion.’
(Bennett, at p. 602.)” (Williams, at p. 197.)
Defendant asserts that our precedent, particularly People
v. Ochoa, supra, 19 Cal.4th 353 (Ochoa), conflicts with the later
decision in Payne, supra, 501 U.S. 808. We rejected that claim
in People v. Bennett, supra, 45 Cal.4th at page 602 (Bennett):
“Defendant argues the high court’s decision contains an implicit
recognition capital defendants have the right to introduce
execution-impact evidence. To the contrary, the high court made
clear, consistent with Ochoa, that a defendant must be allowed
to introduce mitigating evidence ‘concerning his own
circumstances.’ (Payne, supra, 501 U.S. at p. 822, italics added.)
As we have explained, execution-impact evidence is irrelevant
under section 190.3 because it does not concern a defendant’s
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own circumstances but rather asks the jury to spare defendant’s
life based on the effect his or her execution would have on his or
her family. (Ochoa, . . . at p. 456.) We further concluded that
nothing in the federal Constitution requires a different result
(Ochoa, at p. 456) and defendant identifies no reason to
reconsider our conclusion.”
Finally, defendant argues that execution-impact evidence
is admissible under section 190.3, which permits introduction of
“any matter relevant to . . . mitigation . . . .” (§ 190.3.) Not so.
As we observed in Bennett, supra, 45 Cal.4th at page 602: “We
rejected this construction in Ochoa, supra, 19 Cal.4th at page
456, and we see no reason to revisit the issue. Defendant’s
argument rests on the use of the word ‘mitigation’ in statutes
governing determinate sentencing (§ 1170) and probation (§
1203). Neither statute is analogous to section 190.3. Unlike
those statutes, section 190.3 identifies examples of matters
relevant to aggravation, mitigation, and sentence including, but
not limited to, the ‘circumstances of the present offense, any
prior felony conviction . . . , and the defendant’s character,
background, history, mental condition and physical condition.’
We concluded that, ‘[i]n this context, what is ultimately relevant
is a defendant’s background and character — not the distress of
his or her family.’ (Ochoa, . . . at p. 456, italics added.)”
The court did not limit mitigation evidence related to
defendant’s background or character. And, notably, the court’s
instruction allowed the jury to consider the impact defendant’s
execution would have on his relationships with family to the
extent it “illuminates some positive quality of the defendant’s
background or character.” Defendant presented evidence that
he had a loving relationship with his two young daughters who
visited him regularly while he was in custody. Defendant’s
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mother, Angelita, testified that defendant was “very endearing
with” her and always remembered her birthdays and holidays.
The court’s instruction did not preclude the jury from
considering these positive aspects of defendant’s character.
8. Refusal To Give a Lingering Doubt Instruction
Defendant argues that the trial court’s rejection of his
requested lingering doubt instructions50 denied him his
constitutional right to present a defense under the Sixth and
Fourteenth Amendments. Defendant acknowledges we have
repeatedly held otherwise. (People v. Rivera (2019) 7 Cal.5th
306, 346; People v. Boyce (2014) 59 Cal.4th 672, 708 (Boyce), and
cases cited.)
The concept of lingering doubt is adequately covered by
CALJIC No. 8.85, factor (k). (Boyce, supra, 59 Cal.4th at pp.
708–709.) As given here, that instruction informed the jury that
50
The requested instructions read:
“Each of you may consider as a mitigating factor any
lingering or residual doubt that you may have as to whether the
defendant intentionally killed the victim. Lingering or residual
doubt is defined as doubt concerning proof that remains after
you have been convinced beyond a reasonable doubt.”
“The adjudication of guilt is not infallible and any
lingering doubts you entertain on the question of guilt may be
considered by you in determining the appropriate penalty,
including the possibility that some time in the future, facts may
come to light that have not yet been discovered. [¶] A lingering
doubt is defined as any doubt, however slight, which is not
sufficient to create in the minds of the jurors a reasonable
doubt.”
Other requested instructions specifically described the
concept of lingering doubt as a factor in mitigation and related
the concept of lingering doubt to the carjacking and kidnapping
special circumstance findings.
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it may consider “any other circumstance which extenuates the
gravity of the crime, even though it is not a legal excuse for the
crime, and any sympathetic or other aspect of the defendant’s
character or record that the defendant offers as a basis for a
sentence less than death, whether or not related to the offense
for which he is on trial.” The trial court also gave defendant’s
special instruction that “[y]our consideration of mitigating
factors is not limited to those that have been given you” and
“[y]ou may also consider any other facts relating to the
circumstance of the case or to the character and background of
the defendant as a reason for not imposing the sentence of
death.” Counsel was permitted to argue that lingering doubt is
a mitigating circumstance, and he did so. “In light of the . . .
instructions and counsel’s argument, the concept was well
covered.” (Boyce, supra, 59 Cal.4th at p. 709.)
Defendant relies on People v. Gay (2008) 42 Cal.4th 1195,
but that case is distinguishable. There, in a penalty retrial, the
trial court instructed that a prior jury had found defendant
guilty of murdering the victim by personal use of a firearm, and
that it had been “ ‘conclusively proved by the jury in the first
case that this defendant did, in fact, shoot and kill Officer Verna’
and that the jury was to ‘disregard any statements . . . and . . .
any evidence to the contrary during the trial.’ ” (Id. at p. 1198.)
We concluded that the trial court’s explicit directive negated its
later instruction on lingering doubt, as evidenced by the jury’s
confusion on that subject expressed during deliberations. (Id. at
pp. 1225–1226.) There was “ ‘no way of knowing which of the
two irreconcilable instructions the jurors applied in reaching
their verdict.’ ” (Id. at p. 1226, quoting Francis v. Franklin
(1985) 471 U.S. 307, 322.) By contrast, no irreconcilable
lingering doubt instructions were given here. Defendant points
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to nothing in the record demonstrating that the jury was left
with the incorrect impression that it could not consider lingering
doubt as a circumstance in mitigation.
9. Intracase Proportionality Review
The imposition of a death sentence is subject to “intracase”
review to determine whether the penalty is disproportionate to
a defendant’s personal culpability. (People v. Mincey (1992) 2
Cal.4th 408, 476 (Mincey).) “ ‘To determine whether a sentence
is cruel or unusual as applied to a particular defendant, a
reviewing court must examine the circumstances of the offense,
including its motive, the extent of the defendant’s involvement
in the crime, the manner in which the crime was committed, and
the consequences of the defendant’s acts. The court must also
consider the personal characteristics of the defendant, including
age, prior criminality, and mental capabilities.’ ” (Virgil, supra,
51 Cal.4th at p. 1287.)
Defendant does not highlight anything related to his
background or circumstances to support his claim that a death
sentence is disproportionate here. Instead he compares his
sentence to the one imposed on Garza, who was allowed to plead
guilty to murder in exchange for a life sentence. The outcome of
Garza’s case is not a relevant consideration. “Evidence of the
disposition of a codefendant’s case, as opposed to evidence of the
codefendant’s complicity and involvement in the offense, is not
relevant to the decision at the penalty phase, which is based on
the character and record of the individual defendant and the
circumstances of the offense.” (Mincey, supra, 2 Cal.4th at p.
476; accord, Ledesma, supra, 39 Cal.4th at p. 744.) This is
particularly true where the disposition of the codefendant’s case
was based on plea negotiations. “ ‘The exercise of prosecutorial
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discretion in obtaining evidence and making charging decisions
is not pertinent to a review of a capital sentence.’ ” (People v.
Ochoa (2001) 26 Cal.4th 398, 458.)
The uncontradicted evidence was that defendant, not
Garza, shot and killed Chad. The murder was the culmination
of a series of violent crimes defendant committed over the span
of several days that included the kidnapping and robbery of
Juan Carlos and Paredes. (See Virgil, supra, 51 Cal.4th at p.
1287.) The jury was within its authority to conclude that the
circumstances of the crime and defendant’s personal history
justify a death sentence. (People v. Crittenden (1994) 9 Cal.4th
83, 158 (Crittenden).)
10. Cumulative Error
Defendant urges prejudice by the cumulative effect of
error in the guilt and penalty phases, particularly the impact of
errors on the penalty determination. We have found five errors
during the trial: Juror No. 11’s inadvertent exposure to her
father’s opinion that defendant was guilty; the gang expert’s
recitation of hearsay evidence to support his opinion that
various persons were gang members; the prosecutor’s question
posed to Daniel Quintana, which the court ruled argumentative;
the prosecutor’s question to defendant about whether he had
lost his job because of drug use; and the prosecutor’s brief
display of a photograph of Chinese-manufactured ammunition.
As explained above, none of these errors, considered
individually, was prejudicial. The errors considered together do
not support a different conclusion.
11. Challenges to California’s Death Penalty Law
Defendant raises a number of familiar legal challenges to
California’s death penalty statute. He acknowledges that we
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have previously rejected all of these claims, but presents them
again to urge reconsideration and preserve the issues for federal
review. We adhere to our settled precedents, which hold:
“Section 190.2 adequately narrows the category of death-
eligible defendants and is not impermissibly overbroad under
the requirements of the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution. [Citations.]
The various special circumstances are not unduly numerous or
expansive.” (People v. Winbush (2017) 2 Cal.5th 402, 488
(Winbush).)
Capital sentencing is “an inherently moral and normative
function, and not a factual one amenable to burden of proof
calculations.” (Winbush, supra, 2 Cal.5th at p. 489.) For this
reason, California’s death penalty scheme does not violate the
Fifth, Sixth, Eighth and Fourteenth Amendments for failing to
require written findings (Molano, supra, 7 Cal.5th at p. 678);
unanimous findings as to the existence of aggravating factors or
unadjudicated criminal activity (People v. Capers (2019) 7
Cal.5th 989, 1013–1014 (Capers)); or findings beyond a
reasonable doubt that aggravating factors exist,51 that
aggravating factors outweigh mitigating factors, or that death
is the appropriate penalty (People v. Fayed (2020) 9 Cal.5th 147,
213–214 (Fayed); Krebs, supra, 8 Cal.5th at p. 350). These
conclusions are not altered by Apprendi v. New Jersey (2000) 530
U.S. 466, Ring v. Arizona (2002) 536 U.S. 584, or Hurst v.
51
California does require that section 190.3, factors (b) and
(c) evidence be proved beyond a reasonable doubt. This is,
however, an evidentiary rule. It is not constitutionally
mandated. (People v. Anderson (2001) 25 Cal.4th 543, 589;
People v. Miranda (1987) 44 Cal.3d 57, 97–98.)
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Florida (2016) 577 U.S. 92. (Rhoades, supra, 8 Cal.5th at p. 455;
Capers, at pp. 1013–1014.)
Section 190.3, factor (a), which permits aggravation based
on the circumstances of the crime, does not result in arbitrary
and capricious imposition of the death penalty in violation of the
Fifth, Sixth, Eighth or Fourteenth Amendments. (Rhoades,
supra, 8 Cal.5th at p. 455; Capers, supra, 7 Cal.5th at p. 1013.)
The federal Constitution does not require intercase
proportionality review (People v. Hoyt (2020) 8 Cal.5th 892, 955;
Rhoades, supra, 8 Cal.5th at pp. 455–456), or “ ‘disparate
sentence review’ ” (Crittenden, supra, 9 Cal.4th at p. 157).
The laws providing different procedures for capital and
noncapital defendants do not violate equal protection. (Fayed,
supra, 9 Cal.5th at p. 214; Rhoades, supra, 8 Cal.5th at p. 456.)
California’s capital sentencing scheme does not violate the
Eighth Amendment. (People v. Beck and Cruz, supra, 8 Cal.5th
at p. 670; Molano, supra, 7 Cal.5th at p. 679.)
“ ‘The death penalty as applied in this state is not
rendered unconstitutional through operation of international
law and treaties,’ ” including the Universal Declaration of
Human Rights, the International Covenant on Civil and
Political Rights (ICCPR), the American Declaration of the
Rights and Duties of Man, and the International Convention
Against All Forms of Racial Discrimination. (People v. Jackson
(2016) 1 Cal.5th 269, 373; accord, Suarez, supra, 10 Cal.5th at
pp. 189–190; People v. Thompson (2016) 1 Cal.5th 1043, 1130.)
As we have explained, “Although the United States is a
signatory [to the ICCPR], it signed the treaty on the express
condition ‘[t]hat the United States reserves the right, subject to
its Constitutional constraints, to impose capital punishment on
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any person (other than a pregnant woman) duly convicted under
existing or future laws permitting the imposition of capital
punishment . . . .’ ” (People v. Brown (2004) 33 Cal.4th 382, 403–
404.) We have repeatedly rejected reliance on statistical studies
purporting to show racial disparities in various aspects of the
capital system to demonstrate that capital punishment itself
violates international law and norms. (Suarez, at pp. 189–190,
and cases cited.)
D. Refusal To Dismiss Counts 10 and 11 in the Interest of
Justice
Defendant was charged with possession of
methamphetamine while armed with a firearm (Health & Saf.
Code, § 11370.1, subd (a); count 10) and possession of a loaded,
operable firearm while under the influence of
methamphetamine (id., § 11550, subd. (e)(1); count 11). At
defendant’s request, counts 10 and 11 were bifurcated. After the
penalty phase concluded, another jury was convened to try these
counts. It found the defendant guilty of count 10 and not guilty
of count 11.
Defendant argues that the court erred in denying his
motion to dismiss these counts in the interest of justice after the
jury returned a death verdict. (§ 1385). The court’s ruling is
subject to review for abuse of discretion. (People v. Superior
Court (Romero) (1996) 13 Cal.4th 497, 530 (Romero).)
Defendant’s motion was based on “judicial economy.” He
argued that “[t]here is simply no justification for another trial
where there is no benefit to the court, public interest or
prosecution. The cost of another Ramirez trial is prohibitive and
would constitute undue consumption of scarce judicial resources
and an unjustifiable and unacceptable expenditures of taxpayer
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monies.” The People countered that a trial would take at most
two days, and that the People had an interest in obtaining
verdicts on these counts as potential aggravating factors under
section 190.3, factor (c) (prior felony convictions) in the event of
a retrial of the penalty phase. The trial court found that the
trial of counts 10 and 11 would not be unduly time consuming
and denied the motion.
No abuse of discretion appears. As we explained in
Romero, supra, 13 Cal.4th 497: “ ‘the language of [section 1385],
‘in furtherance of justice,’ requires consideration both of the
constitutional rights of the defendant, and the interests of society
represented by the People, in determining whether there should
be a dismissal. [Citations.]” [Citations.] At the very least, the
reason for dismissal must be “that which would motivate a
reasonable judge.” [Citations.]’ [Citation.] ‘Courts have
recognized that society, represented by the People, has a
legitimate interest in “the fair prosecution of crimes properly
alleged.” [Citation.] “ ‘[A] dismissal which arbitrarily cuts [off]
those rights without a showing of detriment to the defendant is
an abuse of discretion.’ ” ’ ” (Id. at pp. 530–531.)
“From these general principles it follows that a court
abuses its discretion if it dismisses a case, or strikes a
sentencing allegation, solely ‘to accommodate judicial
convenience or because of court congestion.’ ” (Romero, supra, 13
Cal.4th at p. 531, italics added; accord, People v. Clancey (2013)
56 Cal.4th 562, 581; People v. Hernandez (2000) 22 Cal.4th 512,
525; People v. Williams (1998) 17 Cal.4th 148, 159.) Here, the
only reason defendant proffered to dismiss the charges was to
avoid burdening judicial resources. That consideration was
inappropriate and the trial court properly rejected it.
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III. DISPOSITION
We affirm the judgment.
CORRIGAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
GUERRERO, J.
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PEOPLE v. RAMIREZ
S099844
Concurring Opinion by Justice Groban
After arguing in two separate trials over a span of three
years that defendant Juan Villa Ramirez did not shoot Javier
Ibarra and that his co-perpetrator, Gabriel Flores, did, the
prosecution changed its theory. During the penalty phase of
Ramirez’s death trial in this case, the prosecution contended the
evidence showed that Ramirez personally shot Ibarra and
pointed to this previous killing as evidence of Ramirez’s
dangerousness and lack of capacity for rehabilitation. I agree
with the majority that the evidence before us in this direct
appeal does not demonstrate the prosecution changed its theory
in bad faith. I also agree that Ramirez’s contentions are better
addressed on habeas corpus, where he can seek the opportunity
to discover and present additional evidence of the prosecution’s
intent. I write to emphasize that the prosecution’s turnabout
warrants additional scrutiny.
I.
At the penalty phase of Ramirez’s trial, the prosecutor
introduced evidence that Ramirez was involved in the murder of
Ibarra, with which he had not been charged. As the majority
notes, Ramirez’s brother Cipriano and another co-perpetrator,
Flores, had been charged with and convicted of the Ibarra
murder in two separate trials, each of which concluded before
Ramirez’s trial began. (Maj. opn., ante, at p. 191.) At the close
of Flores’s trial, the prosecution argued that Flores shot Ibarra
PEOPLE v. RAMIREZ
Groban, J., concurring
and that the defense’s theory that Ramirez was the shooter was
unsupported. (Id. at p. 193.) At the close of Cipriano’s trial, the
prosecution argued that Flores shot Ibarra and characterized
Cipriano’s testimony that Ramirez was the shooter as fabricated
and self-serving, accusing him of falsely pinning Ibarra’s killing
on Ramirez, who at the time had “not been arrested or located.”
(Id. at p. 194; see id. at p. 193.)
Approximately three years later, during the closing
arguments in the penalty phase of this case, the prosecution
offered a different theory of who shot Ibarra. In urging the jury
to sentence Ramirez to death, the prosecutor argued: “[T]he
evidence points strongly to the fact that [Ramirez] was the
shooter” of Ibarra. The prosecutor urged the jury to “give
extreme weight” to this fact. He argued the evidence showed the
Ibarra murder was prearranged and Ramirez was not
intoxicated when he committed it, as he claimed to have been at
the time of the murder of Chad Yarborough, the victim in this
case. He also argued that the Ibarra killing was intentional, and
on this basis urged the jury to infer that Ramirez’s killing of
Yarborough likewise “wasn’t some random chance thing. It was
[Ramirez] purposefully choosing to kill Chad just like he chose
to kill Javier Ibarra, and not on accident.” The prosecutor
further pointed to Ramirez’s killing of Ibarra as evidence of
Ramirez’s dangerousness and lack of capacity for rehabilitation,
despite his young age at the time of the Yarborough murder.
The prosecution observed that Ramirez had “done so much evil
in such a short time,” and asked the jury: “[D]o we really want
to see how much he can do given more time?” The record does
not disclose why the prosecution changed its theory.
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Groban, J., concurring
II.
Our leading case on inconsistent prosecutorial theories is
In re Sakarias (2005) 35 Cal.4th 140 (Sakarias II). As the
majority explains, in Sakarias II we held, on habeas corpus, that
the prosecutor violated the due process rights of a capital
defendant by “intentionally and without good faith justification
arguing inconsistent and irreconcilable factual theories” in his
trial and that of his co-perpetrator and attributing to each
defendant “culpable acts that could have been committed by
only one person.” (Id. at p. 145.) We reasoned that “the People’s
use of irreconcilable theories of guilt or culpability, unjustified
by a good faith justification for the inconsistency, is
fundamentally unfair, for it necessarily creates the potential
for — and, where prejudicial, actually achieves — a false
conviction or increased punishment on a false factual basis for
one of the accuseds.” (Id. at pp. 159–160.) We further observed
that in the death penalty context, “[t]he prejudice question is . . .
a complex one, involving two questions as to each petitioner and
each culpability-increasing act inconsistently attributed to
petitioners: for each petitioner we must ask, first, whether the
People’s attribution of the act to the petitioner is, according to
all the available evidence, probably false or probably true, and,
second, whether any probably false attribution of a culpability-
increasing act to the petitioner could reasonably have affected
the penalty verdict.” (Id. at p. 164.) Because we could not
“conclude beyond a reasonable doubt that the prosecutorial
argument . . . played no role in the penalty decision,” we
reversed Sakarias’s penalty. (Id. at p. 166.)
Our decision in Sakarias II was issued in response to
Sakarias’s habeas corpus petition. Previously, on direct appeal,
Sakarias had claimed that the prosecution’s inconsistent
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PEOPLE v. RAMIREZ
Groban, J., concurring
arguments about which co-perpetrator struck the fatal blow
violated due process protections. (People v. Sakarias (2000)
22 Cal.4th 596, 632–637 (Sakarias I).) We had observed at that
time that “under any view of the proper constitutional limits,
the [due process] issue is better decided on a petition for writ of
habeas corpus than on direct appeal.” (Id. at p. 635.) In the
record on direct appeal, there was no evidence of “any factual
explanations the trial prosecutor may have for any material
inconsistencies we might find by comparing the transcripts of
the two trials” or “of other extra-record evidence of the
prosecutor’s state of mind.” (Ibid.) The record did not disclose
whether the prosecutor “made a knowingly false argument,”
(ibid.) or whether “significant new evidence surfaced . . . or
other events occurred such that the prosecutor, at the time of
defendant’s trial, neither knew nor had reason to know his
argument was false” (id. at p. 636). We determined that “the
questions of which of two conflicting factual theories is true, or
which the prosecutor believed or should have believed was true”
were better litigated “in a habeas corpus proceeding.” (Ibid.)
As the majority notes, when the Sakarias case returned to
us on habeas corpus, we appointed a referee to hear evidence
and make factual findings concerning the prosecutor’s
knowledge, beliefs, and intent in choosing to advance
inconsistent theories of who struck the fatal blow in the separate
trials of Sakarias and his co-perpetrator and in choosing the
evidence to present in each case. (Sakarias II, supra, 35 Cal.4th
at p. 150.) The referee heard testimony from the prosecutor and
from the former head of the branch of the district attorney’s
office in which the prosecutor had worked and admitted and
reviewed evidence and transcripts from the two trials. (Ibid.)
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PEOPLE v. RAMIREZ
Groban, J., concurring
Our decision to reverse Sakarias’s death sentence was based on
the referee’s findings. (Id. at pp. 149–150, 160–165.)
III.
This case is in a similar posture to Sakarias I. Like
Sakarias I, this is a direct appeal and we do not have before us
factual findings about the prosecutor’s knowledge, belief, and
intent in deciding to argue for the first time at the penalty phase
in this case that Ramirez, not Flores, shot Ibarra. In short, we
really do not know why the prosecution changed its theory. As
the majority observes, Ramirez is free to pursue a writ of habeas
corpus to try to demonstrate the prosecutor acted in bad faith to
Ramirez’s prejudice. (Maj. opn., ante, at p. 207.)
The majority also correctly reasons that, at least in its
current posture, this case is distinguishable from Sakarias II.
(Maj. opn., ante, at pp. 201–206.) Despite the prosecution’s
arguments in the Flores and Cipriano cases that Flores was the
shooter, neither verdict rested on a finding that Flores was the
shooter. Indeed, the jury’s “not true” finding on the
prosecution’s allegation that Flores personally used a firearm
suggests the jury did not consider it true beyond a reasonable
doubt that Flores shot Ibarra. Moreover, because the record
before us does not clearly show whether Flores or Ramirez was
the shooter, we cannot determine whether Ramirez was
“necessarily . . . sentenced . . . on a false factual basis.”
(Sakarias II, supra, 35 Cal.4th at p. 164.)1 Finally, as the
1
In Sakarias II, we observed that the level of certainty as to
whether the defendant was convicted on a false factual basis
might be relevant to the prejudice inquiry on habeas corpus, but
we expressly reserved for another day the question “what result
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PEOPLE v. RAMIREZ
Groban, J., concurring
majority observes, there is no indication on the record before us
that the prosecutor manipulated the evidence in Ramirez’s trial
for the purpose of securing a judgment of death. (See id. at
p. 162 [citing to deliberate manipulation of evidence to pursue
inconsistent theories as evidence of bad faith].) As the majority
points out, the record supports an inference that the prosecutor
introduced evidence that Ramirez shot Ibarra to counter defense
evidence that the shooter was Flores. (Maj. opn., ante, at
p. 206.)
For purposes of this direct appeal, this is sufficient to deny
relief. But it does not fully answer the question why, in the
space of less than three years, this same District Attorney’s
office went from arguing that Ramirez’s co-perpetrators’
contentions that Ramirez shot Ibarra were unsupported and
self-serving to arguing that the evidence showed Ramirez was
the shooter. As we observed in Sakarias II, “A criminal
prosecutor’s function ‘is not merely to prosecute crimes, but also
to make certain that the truth is honored to the fullest extent
possible during the course of the criminal prosecution and
trial.’ ” (Sakarias II, supra, 35 Cal.4th at p. 159.) When the
government, through its prosecutors, takes “a formal position
inconsistent with the guilt or culpability of at least one convicted
defendant” it “cast[s] doubt on the factual basis for the
conviction.” (Id. at p. 158.) Unless the prosecution has a good
faith basis for its change in theories, we risk “ ‘reduc[ing]
criminal trials to mere gamesmanship and rob[bing] them of
obtains when the likely truth of the prosecutor’s inconsistent
theories cannot be determined.” (Sakarias II, supra, 35 Cal.4th
at p. 164.)
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PEOPLE v. RAMIREZ
Groban, J., concurring
their supposed purpose of a search for truth.’ ” (Id. at p. 159; cf.
Rules Prof. Conduct, rule 3.3(a) [attorneys have duty of candor
toward tribunal]; id. rule 3.8, com. [1] [“A prosecutor has the
responsibility of a minister of justice and not simply that of an
advocate”].)
The prosecution’s use of inconsistent theories in the
separate trials of alleged co-perpetrators raises particular
concerns in the capital context. At the penalty phase of a capital
trial, the jury has the “power and discretion . . . to decide the
appropriate penalty for the particular offense and offender
under all the relevant circumstances.” (People v. Rodriguez
(1986) 42 Cal.3d 730, 779; see Pen. Code, § 190.3.) The jury’s
decision whether to sentence a person to death or to life in prison
without the possibility of parole “is inherently moral and
normative, not factual.” (Rodriguez, at p. 779.) “It is not simply
a finding of facts which resolves the penalty decision, ‘ “but . . .
the jury’s moral assessment of those facts as they reflect on
whether defendant should be put to death . . . .” ’ ” (People v.
Brown (1985) 40 Cal.3d 512, 540.) In Bradshaw v. Stumpf
(2005) 545 U.S. 175 the high court acknowledged that a
prosecutor’s use of inconsistent theories “may have a more direct
effect” on a death sentence than it does on a guilty verdict. (Id.
at p. 187.) Having reversed the grant of relief as to the
defendant’s guilt due to lack of prejudice, the high court
remanded to the Court of Appeals to consider whether the
prosecutor’s use of inconsistent theories was prejudicial with
respect to sentencing. (Id. at pp. 186–187.) As Justice Souter
pointed out in his concurring opinion, the court’s decision to
remand on penalty reflected an acknowledgement of “ ‘[t]he
heightened need for reliability in capital cases,’ ” which “ ‘only
underscores the gravity’ ” of the “ ‘serious questions . . . raised
7
PEOPLE v. RAMIREZ
Groban, J., concurring
when the sovereign itself takes inconsistent positions in two
separate criminal proceedings against two of its citizens.’ ” (Id.
at p. 189 (conc. opn. of Souter, J.).) We similarly have
acknowledged that “[a]t least where the punishment involved is
death, due process is . . . offended by the People’s inconsistent
and irreconcilable attribution of culpability-increasing acts” to
different defendants. (Sakarias II, supra, 35 Cal.4th at p. 160.)
Relying on these principles, Ramirez argues that the
reduced culpability of a person who is not the actual shooter
could have been material to the jury’s choice of sentence in his
case. I agree. A capital jury may well conclude that someone
who personally killed before deserves greater punishment than
someone who had aided and abetted a killing. In this case the
prosecutor pointed to Ramirez’s personal shooting of Ibarra to
dispel any lingering doubt about whether Ramirez intentionally
shot Yarborough and as evidence of his dangerousness and lack
of capacity for rehabilitation, despite his drug problems and his
young age. (See Pen. Code, § 190.3, subds. (a), (k), (i).) The
prosecutor urged the jury to “give extreme weight” to the fact
that Ramirez had killed before. He emphasized Ramirez
“personally chose to kill Chad, just like he chose to kill Javier
Ibarra” and pointed to Ramirez’s killing of Ibarra as evidence of
his propensity to “evil.”
In sum, I agree with the majority that the record in this
case does not show the prosecution acted in bad faith when it
changed its theory and argued for the first time at the penalty
phase of Ramirez’s trial that Ramirez personally shot Ibarra.
On this record, we simply do not know why the prosecution
changed its theory. The fact that the Flores jury did not find
true beyond a reasonable doubt that Flores personally used a
firearm helps explain why the prosecution would want to try a
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PEOPLE v. RAMIREZ
Groban, J., concurring
different theory at Ramirez’s trial. Similarly, the fact that the
defense in the penalty trial first argued to the jury that Ramirez
was not the shooter helps explain why the prosecution may have
wanted to rebut that theory. Though these facts help explain
why the prosecution may have switched theories, they do not
fully resolve “the questions of which of two conflicting factual
theories is true, or which the prosecutor believed or should have
believed was true.” (Sakarias I, supra, 22 Cal.4th at p. 636.) We
simply need more information to determine whether the
prosecutor acted “without good faith justification” in changing
its theory to argue that Ramirez shot Ibarra. (Sakarias II,
supra, 35 Cal.4th at p. 145.)
There is nothing in this record that demonstrates the
prosecution acted in bad faith. But when the same district
attorney’s office has argued in two trials that one co-perpetrator
personally killed a murder victim and then argues three years
later that a different co-perpetrator personally killed the victim,
scrutiny is warranted. In Sakarias II, the referee made factual
findings after a comprehensive hearing that included sworn
testimony from the prosecutor and from the former head of the
district branch. We have no such record here. But the question
whether the prosecution had a good faith basis for arguing
irreconcilable theories of who shot Ibarra deserves an answer.
Our decision on direct appeal in Sakarias I makes clear that a
habeas corpus petition is the appropriate way to seek that
answer. (Sakarias I, at p. 635.)
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PEOPLE v. RAMIREZ
Groban, J., concurring
GROBAN, J.
I Concur:
LIU, J.
10
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Ramirez
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal XX
Original Proceeding
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S099844
Date Filed: August 25, 2022
__________________________________________________________
Court: Superior
County: Kern
Judge: Kenneth C. Twisselman II
__________________________________________________________
Counsel:
Snedeker, Smith & Short, Lisa R. Short and Michael R. Snedeker for
Defendant and Appellant.
Kamala D. Harris and Rob Bonta, Attorneys General, Dane R. Gillette,
Chief Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Sean M. McCoy and Leanne Le Mon, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Michael R. Snedeker
Snedeker, Smith & Short
2800 North Lombard Street, PMB 710
Portland, OR 97217-6234
(503) 234-3584
Sean M. McCoy
Deputy Attorney General
1300 I Street
Sacramento, CA 95814
(916) 210-7752