People v. Gomez , 6 Cal. 5th 243 ( 2018 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
RUBEN PEREZ GOMEZ,
Defendant and Appellant.
S087773
Los Angeles County Superior Court
BA156930
November 29, 2018
Justice Liu filed the opinion of the court, in which Chief Justice
Cantil-Sakauye and Justices Chin, Corrigan, Cuéllar, Kruger,
and Lui concurred.
PEOPLE v. GOMEZ
S087773
Opinion of the Court by Liu, J.
Defendant Ruben Perez Gomez was sentenced to death in
2000 for the first degree murders of Rajendra Patel and Raul
Luna, Jr. He was also sentenced to life in prison without the
possibility of parole for the double murder of Robert Acosta and
Robert Dunton. This appeal is automatic. (Pen. Code, § 1239,
subd. (b); all undesignated statutory references are to this code.)
We affirm the judgment in its entirety.
I. FACTS
In an amended information filed on July 7, 1998, in Los
Angeles County Superior Court, the district attorney charged
Gomez with five counts of first degree murder (§ 187, subd. (a)),
six counts of second degree robbery (§ 211), and one count of
kidnapping (§ 207). The amended information alleged personal
firearm use enhancements in connection with each count.
(Former §§ 1203.06, subd. (a)(1), 12022.5, subd. (a).) The
amended information also alleged multiple-murder, robbery,
and kidnapping special circumstances. (§ 190.2, subd. (a)(3),
(17).)
The prosecution withdrew one of the robbery counts before
trial, and the trial court dismissed one of the five remaining
counts of robbery during trial. A jury convicted Gomez of four
counts of first degree murder, two counts of second degree
robbery, and one count of kidnapping. The jury found true the
special circumstance allegation of multiple murder as well as
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the special circumstance allegations of robbery and kidnapping
in connection with the Patel murder. Although the jury
convicted Gomez of the first degree murder of Luna, it acquitted
him of the robbery of Luna and the associated robbery special
circumstance and personal firearm use enhancement. The jury
was unable to reach a verdict on the murder and robbery counts
relating to the separate killing of Jesus Escareno; the trial court
declared a mistrial on these counts, which the prosecution
subsequently dismissed pursuant to section 1385.
The penalty phase took place before the same jury. After
two days of deliberations, the jury returned a verdict of death
for the murders of Luna and Patel, and of life without parole for
the murders of Acosta and Dunton.
A. Guilt Phase
1. Prosecution Evidence
a. The Salcedo Robbery
Gomez and Xavier Salcedo knew each other from “growing
up.” Salcedo testified that Gomez came to his home sometime
in February 1997 and told Salcedo that he was out of jail and
asked for money. Salcedo denied having any money. About two
weeks later, around 11:00 p.m. on February 25, Gomez returned
with two other men. Salcedo, his girlfriend, Silvia, and their
three children were home. Salcedo had about $10,000 in cash in
his bedroom closet.
Salcedo testified that he heard someone knock on the back
door and that he told them to come around to the front. When
Salcedo opened the front door, Gomez and a second man forced
their way into the house while a third man remained standing
in the open doorway. Gomez told Salcedo, “I want to talk to you,
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sit the fuck down.” Gomez sat on the couch next to Salcedo, and
the second man stood facing them about four feet away. Gomez’s
two confederates held their hands in their pockets, giving
Salcedo the impression that they had guns. Gomez had a gun
tucked into his waistband.
Gomez said that Salcedo had “disrespected him” when he
came to Salcedo’s house two weeks earlier to borrow money.
Gomez pulled the gun from his waistband, pointed it at Salcedo,
and told Salcedo to take off his jewelry. Salcedo handed over his
gold bracelet, necklace, ring, and watch. Gomez told Salcedo to
close the bedroom door so they could talk. Salcedo went to close
the door and told Silvia, who was in the bedroom, that he was
being robbed. Silvia testified that she called 911 from the
bedroom.
Salcedo further testified that he went back to the living
room, where Gomez told him to “sit down” and to “shut up.”
Gomez pointed the gun at Salcedo, asked if he had any money,
and told him to “go get it.” Salcedo went to his bedroom, grabbed
about $5,000, handed a gun to Silvia, and told her “if they come
in here, protect yourself.” Salcedo returned to the hallway, gave
Gomez the money, and the two went back into the living room.
Salcedo pleaded with Gomez to give back the jewelry because it
had been a gift from his parents. Gomez handed his gun to
Salcedo while the second man in the living room looked on, but
Salcedo handed it back and said, “I don’t want any problems.”
Gomez gave back the jewelry, and the three men left with the
cash. Salcedo locked the door, turned off the lights, and went
back into the bedroom where Silvia was still on the phone with
a 911 operator.
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Salcedo told Silvia to “grab the kids and let’s go,” but the
three men returned before Salcedo and his family could leave.
The men demanded that Salcedo open the door or they would
shoot though the walls. Silvia called 911 a second time from the
bedroom. Salcedo looked out the window and saw a friend walk
up to the house. The friend spoke with the three men. The men
started knocking on the door again, and Gomez threatened to
shoot through the walls. The police arrived; Gomez and the
others ran off around the back.
b. The Patel Murder
In the early morning of May 27, 1997, Detective Sal La
Barbera received an assignment to investigate the “northbound
Terminal Island Freeway on-ramp between Anaheim and PCH.”
When La Barbera arrived, the scene was already contained by
police officers, who had found a body on the shoulder of the on-
ramp, apparently shot and stabbed. Officers found blood about
75 feet north of the victim’s body. Two days later, after
recovering a missing persons flier on a telephone pole in
Torrance, La Barbera identified the victim as Rajendra Patel.
The officer spoke with Patel’s family and then verified Patel’s
identity by checking his thumb print against the victim’s.
A county medical examiner testified that Patel was shot
once in the back of his head at close range, with the tip of the
gun barrel making contact with his head. The medical examiner
also testified that Patel received stab wounds in the face and
neck, and one particularly deep stab wound in the chest. The
medical examiner attributed Patel’s death to the gunshot wound
and the deep stab wound. He further opined that Patel would
have been able to walk or run 75 to 90 feet after receiving the
deep stab wound, but not after receiving the gunshot wound.
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Patel was last seen on May 25, 1997, around 9:00 p.m. at
his home in La Palma. The victim’s son testified that his father
left home in his white Toyota Camry, wearing a bracelet, a gold
watch, and a chain. On May 28, 1997, a police officer discovered
Patel’s car after being directed via radio call to locate a stolen
vehicle in an alley in San Pedro. The interior of the car was
found burned. A police department criminalist compared DNA
extracted from blood found in the trunk of the Camry to Patel’s
DNA and testified that the blood “could have come from Mr.
Patel or any other individual with the same combination of
genetic marker types.” The criminalist further testified that the
relevant combination of genetic marker types “occurs
approximately one in 60,000 individuals, so it’s fairly rare in the
general population.”
Witness No. 1 testified that Gomez had asked him to burn
the white Camry. (Before trial, the prosecutor asked that
Witness No. 1 and three other witnesses not be named in the
record, although their real names were used during the
proceedings. We likewise refer to these witnesses without
naming them.) Witness No. 1 complied with Gomez’s request
because they “were tight.” He took the car to an alley and then
poured alcohol on the upholstery so that the vehicle’s interior
would ignite when he threw a lit rag into the car. Witness No.
1 believed the car was a “murder car” because Gomez had told
him to “check the trunk good to make sure there wasn’t no blood
in it.” Witness No. 1 also testified that three or four days before
Gomez asked him to burn the car, Gomez said, “I hated to kill
that guy because he had balls. He said ‘if you’re going to do it,
go ahead and shoot me, motherfucker.’ ” According to Witness
No. 1, Gomez later put “a hit” out on him “for not burning the
white car completely” because Gomez “was worried about his
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fingerprints.” Witness No. 1 testified that Gomez brought
Patel’s watch and bracelet to Robert Dunton’s house at least one
or two days before he burned Patel’s car.
Witness No. 3 testified that Gomez brought Patel’s jewelry
to Witness No. 3’s residence in Wilmington, where her husband
traded narcotics for the jewelry. During the transaction, Gomez
told Witness No. 3 and her husband that the jewelry was “from
this Mexican man I have in the trunk of the car I just killed.”
Witness No. 3 observed that a white car was parked in the
driveway while Gomez was at her home. Witness No. 3 later
pawned the watch and bracelet in Las Vegas, Nevada, on June
5, 1997. The police collected Witness No. 3’s pawn slip when she
was arrested for an unrelated crime on July 2, 1997. Police
investigators subsequently recovered Patel’s jewelry from the
Las Vegas pawn shop.
The police also found three expended .40-caliber cartridge
casings when investigating the crime scene on May 27, 1997.
One of the cartridges was located between 90 and 100 feet from
the body, the second “just a few feet shorter . . . probably only a
three or four foot difference,” and the third within three feet of
the body. These casings were later matched to a Smith and
Wesson .40-caliber stainless steel semiautomatic handgun given
to a police officer by Angel Rodriguez on June 8, 1997. During
trial, a firearm examiner testified that his forensic analysis of
the .40-caliber handgun revealed that it was the source of the
expended casings found near Patel’s body. Witness No. 1 later
identified the same handgun as the one Gomez carried “when he
first started coming around [Dunton’s] house.”
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c. The Escareno Murder
On the morning of June 9, 1997, Detective Debra Winter
and her partner arrived at a shopping center on Western Avenue
in San Pedro to investigate a homicide. Winter testified that she
saw the “body of a male Hispanic, approximately 30 years of age,
lying face down” in an alcove behind the shopping center. The
body had been discovered by a maintenance worker earlier that
morning. The maintenance worker testified that “there was no
body” when he arrived for his shift at 5:30 a.m., but that he
discovered the body when he returned to the area between 7:30
and 8:00 a.m.
There was brain tissue on the victim’s suit and on the
ground immediately surrounding the body. A fragment of glass
was also recovered from the victim’s hair at the crime scene. A
county medical examiner testified that the victim had been
killed by a shotgun blast to the head from a distance of about
one or two feet.
No jewelry was found on the victim’s body, but there were
indentations on the victim’s fingers where he had been wearing
rings. One of the victim’s pockets was turned out, and Winter
concluded that someone had rifled through it. Although there
was no wallet or identification upon the victim’s person, the
police discovered a business card for the restaurant Los Tres
Cochinitos in the victim’s right front pocket. Workers at Los
Tres Cochinitos examined a photograph of the victim and
identified him as a regular customer who bussed tables at
another restaurant. Upon visiting the victim’s workplace,
Winter was able to identify the victim as Jesus Escareno.
On June 11, 1997, two days after Escareno’s body was
discovered, his car was found in San Pedro. Winter testified that
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the car’s roof was dented from pellets that had been shot into
the vehicle. Blood and brain matter were found between the
passenger seat and the passenger side door. A vanity mirror in
the visor had been shattered by a shotgun blast, which was
consistent with the glass found in Escareno’s hair at the crime
scene. Winter testified that in her opinion Escareno’s death did
not occur where the car was found and that someone had driven
the car following Escareno’s homicide.
Diana Paul, a criminalist with the Los Angeles Police
Department, performed a “bullet path determination” analysis
on Escareno’s car. Paul examined the vehicle and found
projectiles “consistent with a type of shot shell pellet known as
double aught buck . . . typical of a 12 gauge shotgun.” Paul
testified as to his finding that the projectiles traveled “upward
and from the driver’s side toward the passenger side.” Paul
further testified that this finding was consistent with a shotgun
having been fired through the open driver’s side window and
that her findings “could be consistent with only one shot” having
been fired from the shotgun.
Maria Rosales, Escareno’s sister, lived in Wilmington with
her husband, her children, and Escareno. According to Rosales,
Escareno normally worked as a busboy until 10:30 p.m. on
Sundays. After work, he typically went out to Los Tres
Cochinitos “to chat with his friends.” Escareno always carried a
wallet. Rosales testified that on Sunday, June 8, 1997, Escareno
came home after work, “slept for a while at home,” then went
out. Teresa Nava, a waitress at Los Tres Cochinitos, confirmed
that Escareno had been at the restaurant on June 9 and that he
left the establishment around 4:10 a.m. That morning, Rosales
“awoke with the sound of a gunshot,” which “coincided with the
time [Escareno] usually arrived” at home.
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Deanna Gallardo lived in the apartment directly upstairs
from Escareno and Rosales. Gallardo was sleeping in bed when
a gunshot sounded from “right in front of the apartment
complex” at 4:42 a.m. on June 9. Gallardo and her husband ran
to the front window where she saw “the red glare of the brakes”
and heard “the skidding of a car.” Pero Hererra, who lived about
four houses down from Escareno, was in his kitchen early that
morning getting a drink of water when he also heard a gunshot.
In an interview with Winter on July 2, 1997, Hererra said that
from his kitchen window he had seen a car park alongside what
looked like his neighbor’s car, that he saw a flash “coming from
inside,” and that he heard a blast from a large gun or shotgun.
Around this time, Witness No. 1 was living in San Pedro
at Robert Dunton’s house. Witness No. 1 met Gomez through
Dunton. Witness No. 1 and Gomez became friends and were
“pretty tight for a while.” Witness No. 1 testified that he was
driving Gomez around one evening and that Gomez “was looking
for somebody to rob.” Gomez had in his possession a cut-down,
break-open shotgun nicknamed “shorty” that belonged to
Witness No. 1 and Dunton. They drove from San Pedro to
Wilmington.
Upon passing a bar, Gomez asked Witness No. 1, “Did you
see that guy, with all them rings on his finger[s]?” The man with
the rings drove off in a Ford Thunderbird; Witness No. 1 and
Gomez followed him. After losing track of the car, the pair
located it in front of an apartment complex in Wilmington. They
pulled up next to the Thunderbird, and Gomez started talking
to the driver in Spanish.
According to Witness No. 1, the driver of the Thunderbird
seemed tipsy because he was laughing a lot. Gomez told him, “I
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got mucho huevos and mucho corazon.” Witness No. 1 explained
this meant he had a lot of balls and a lot of heart. As the driver
of the Thunderbird laughed, Gomez lifted the shotgun and fired
one shot. Witness No. 1 testified that the driver “suddenly
disappeared.” Gomez then told Witness No. 1 to drive the
Thunderbird back to San Pedro so they could remove the rings
from the victim’s fingers. When Witness No. 1 entered the
driver’s side of the Thunderbird, he noticed that the victim’s
head was over by the passenger door and his left foot was up
behind the steering wheel. Gomez drove off while Witness No.
1 moved the victim’s foot from behind the steering wheel.
Witness No. 1 drove the Thunderbird a couple of blocks to a
hamburger stand, parked it in a dirt lot, took the man’s wallet,
and walked back to Dunton’s house in San Pedro. Witness No.
1 spent $10 of the victim’s money on heroin before he arrived at
Dunton’s house. When Dunton learned of this, he told Witness
No. 1 that he “didn’t follow orders.” Witness No. 1 gave Gomez
the victim’s remaining money, about $70.
Witness No. 1 went back to the car; the body and keys were
still inside. He drove the Thunderbird to an alley in San Pedro
about a half block from Dunton’s house. Witness No. 1 returned
to the house, and Gomez ordered him to retrieve the dead man’s
jewelry. Witness No. 1 took rings and two watches off the body
and brought them to Gomez. Gomez gave the items to Dunton,
who told him that the items were costume jewelry. The jewelry
was thrown away.
Gomez subsequently told Witness No. 1 to dispose of the
car and the body. Witness No. 1 testified that he drove the
Thunderbird to the Park Plaza shopping center and left the body
near two dumpsters “where somebody could find him.” He then
drove the car back to an open garage in an alley near Dunton’s
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house. Witness No. 1 parked the car, walked down the alley,
took his blood-stained shirt off and threw it in a garbage can,
and walked back to Dunton’s house.
Later, after Gomez had been taken into custody, Winter
and her partner paid him a visit “to determine the tattoos that
he had.” Winter testified that she asked Gomez some routine
questions as part of the booking procedure. According to Winter,
Gomez made several statements that were not responsive to her
questions. For example, he opined that the police “must be very
busy” because “things were crazy” in the Harbor area lately.
Gomez “talked about a guy up on Western, his head being shot
off,” and he mentioned “a couple of guys that were shot and
brains were splattered all over the place.” Gomez said these
individuals couldn’t be identified and that their wallets were
missing. Winter further testified that she had not released
information to the press about Escareno’s wallet being missing.
d. The Luna Murder
At approximately 1:20 a.m. on June 10, 1997, Detective
Jeffrey Lancaster was dispatched to a shooting at a residence in
Torrance. Lancaster arrived to find the body of Raul Luna, Jr.
“laying adjacent to a walkway that runs from the sidewalk to
the front porch” of the house. He observed a gunshot wound on
the left rear portion of Luna’s head but no other wounds. A live,
12-gauge shotgun cartridge was found about 15 feet east of
Luna’s body. Officers also located “a clear plastic baggie with a
kind of white brown substance” near Luna’s knee, which was
later identified as methamphetamine. Upon searching the
residence, officers discovered more methamphetamine, an
assault rifle, money, and “some other ammunition, .45 caliber.”
Raul’s father later testified that Raul sold illegal drugs.
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A county medical examiner performed an autopsy on
Luna’s body and determined that the cause of death was a
gunshot wound to the head fired from about six to 12 inches
away. During trial, another medical examiner testified that
photos of the decedent revealed a circular wound with tearing
into and behind the left ear. The medical examiner described
“fully burnt gunpowder” scattered around the skin near the
shotgun wound hole and noted damage to the skin in the same
area from the burnt gunpowder.
Rudy Luna, Raul’s brother, testified that at approximately
midnight on June 9, 1997, he arrived at the home he shared with
Raul, another brother named Andy, his sister-in-law Alice, and
his nephew Andrew. Rudy lay down to go to bed at 12:06 a.m.
A few minutes later, he heard a “loud, muffled
engine . . . sounding rough like a truck” before hearing a car pull
up to the middle of the street directly in front of the Luna
residence. Approximately three to five minutes later, Rudy
heard “rustle noises” in front of his bedroom window, so he
looked out. Rudy explained that he “didn’t see anything, so [he]
laid back down, and then a minute after that [he] heard someone
say, ‘there’s somebody in there, there’s someone in there.’ ” After
a couple minutes, Rudy heard the same voice say “he’s here”; he
then heard his brother Raul say “oh, shit.” Rudy next heard a
gunshot and immediately lay down onto his bedroom floor.
Eventually, Rudy walked to his kitchen window, which faces the
front of the house. He did not see anybody but heard “a muffled
garbled cough” and walked outside to find Raul “lying flat on his
back bleeding from the head.”
Charles Orr lived on the same street as the Luna family.
On the night in question, Orr was working on his computer
shortly after midnight when he heard “what sounded like an
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explosion.” Orr assumed that the sound was a malfunctioning
electrical transformer at the school down the street. “All of a
sudden,” Orr heard running and “a kind of rattling noise,” so he
looked out of his window to see someone “about [Orr’s] size”
running eastbound in a “heavy footed” way. Orr left his house
and walked down the street to follow the runner but did not see
anyone.
Around the same time, William Owens, a federal customs
officer, was smoking a cigar across the street from his
apartment, less than a mile east of the Luna residence. That
night, Owens saw a man running eastbound toward him. The
man asked Owens to “give him a ride to his girlfriend’s,” but
Owens declined. The man continued to run eastbound. Owens
soon called the Torrance Police Department and reported
“hearing [a] gunshot about 1:00 a.m.” During the trial, Owens
identified the running man as Ruben Gomez.
Officer Steve Fletcher testified that upon canvassing the
crime scene for possible witnesses, he spotted a silvery white
and black Oldsmobile from the mid-1980s parked about a
hundred yards south of the Luna residence. Fletcher noticed
that the car windows were rolled down, the keys were still in the
ignition, the hood was warm to the touch, and the tires were wet,
“appearing as they just had been driven up through the water
that was in the gutter.” Officers found a radio and a white
plastic bag containing seven live 12-gauge shotgun rounds in the
backseat of the vehicle.
The vehicle was towed to an impound yard later that day,
where Officer Brooke Mc Millan took additional photographs of
the vehicle’s interior. Mc Millan fingerprinted both the interior
and exterior of the car and collected 34 lifts. Two prints lifted
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from the exterior surface of the passenger door belonged to a
woman named Maria Baca. One print lifted from the rearview
mirror matched Baca while the other matched another woman
named Sandra Ruvalcaba. Seven prints from the driver’s
window exterior matched Gomez and one matched Ruvalcaba.
Finally, three prints from the driver’s door exterior matched
Gomez.
While the investigation into Luna’s death was ongoing,
officers investigating the murders of Robert Acosta and Robert
Dunton recovered a cellphone at Dunton’s house in San Pedro.
Witness No. 1 testified that Gomez had brought the phone into
Dunton’s house. The police were unable to identify fingerprints
from the lifts taken from the cellular phone. But when
Lancaster asked Luna’s father to identify the phone, he
successfully matched the phone’s serial number with the serial
number found on the phone’s packaging, which was stored at the
Lunas’ residence.
At trial, a custodian of records for AirTouch Cellular
testified about 10 phone calls made after midnight from the
telephone number registered to Raul Luna. Four calls were
made to unknown numbers. Two calls were made to cab
companies, one to a hotel in Wilmington, and one to Dunton. As
discussed further below, Gomez had been staying at Dunton’s
home “off and on for about a month.”
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e. The Acosta and Dunton Murders
Around 3:48 a.m. on July 1, 1997, police officers responded
to a 911 call regarding a possible assault with a deadly weapon
at 332 West O’Farrell Street in San Pedro. After knocking on
the front door and receiving no response, and after trying
unsuccessfully to open the front door, the officers accessed the
home through a back door and discovered dead bodies inside.
Detective Olivia Joya and her partner Detective Scott
Masterson were assigned to investigate the matter around 4:20
a.m. They found the body of Robert Acosta on the living room
floor and the body of Robert Dunton on a living room sofa.
Masterson testified that Acosta’s head was a “very short
distance” from the front door. Joya testified that four spent
Remington shotgun shell casings, a bag of shotgun shells, the
sawed-off wood stock of a shotgun, a metal tube, drugs and drug
paraphernalia, and a cellphone were all recovered from the
scene. As noted above, the cellphone was later traced to Raul
Luna.
An autopsy of Acosta’s body determined that he had been
killed by a single shotgun wound to the neck and that the
shotgun had been placed “at the throat in some contact” with
the neck. Dunton’s autopsy revealed that he had been killed by
a shotgun wound to the back of the head, although Dunton
received three shotgun wounds in total.
Manuel Hernandez, who lived in the residence
immediately to the west of Dunton’s home, told investigators
that he heard what sounded like three gunshots at about 3:15
a.m. on July 1, 1997. When he peeked outside of his window,
Hernandez saw that Dunton’s house was dark and that one man
came out of the back door and ran down a walkway toward
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O’Farrell Street. The man was between five feet, six inches to
five feet, eight inches tall; the parties stipulated that Gomez is
six feet, two inches tall and that Arthur Grajeda, Gomez’s
codefendant as to the Acosta and Dunton charges, is five feet,
eight inches to five feet, ten inches tall. Hernandez then heard
a car start nearby. He subsequently noticed someone turn on
the lights in the Dunton residence and say “oh, my god” before
leaving the house through the back door.
Witness No. 1 testified that he was present in the home
when Acosta and Dunton were shot and that he was the person
who placed the 911 call. Witness No. 1 had known Acosta and
Dunton since approximately 1975. For several months prior to
the killings, Witness No. 1 lived with Dunton at Dunton’s
residence on O’Farrell Street. Witness No. 1 paid Dunton some
rent and helped him by “working the door” and letting people
into the home to buy drugs from Dunton. Dunton weighed
around 500 pounds and had difficulty getting up from the couch
to answer the door. Witness No. 1 first met Gomez about a
month before Acosta and Dunton were killed, when Gomez came
to the house to buy drugs. Gomez and Dunton became friends,
and Gomez began napping and showering at Dunton’s house
within a week or two of his first visit.
During the week before Acosta and Dunton were shot, a
man who went by “Boxer” came to Dunton’s house two days in a
row. On the first visit, Boxer complained, “You ain’t paying your
taxes and they’re getting on me because I’m not doing my job.”
The next day, Boxer returned with his girlfriend and another
person. He threatened Gomez with a machete while the other
two held him back. He then took $100 and a small chrome
handgun from Gomez. When Gomez complained about the gun,
Boxer said, “Well, I’ll give it back to you.” Gomez then called
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someone in Wilmington and said he “need[ed] a gun, any kind of
gun” and insisted that it was a matter of “life or death.”
Someone brought over a shotgun, and Gomez and Witness No. 1
cut six inches from the barrel and cut the stock off to make it
easier to conceal.
The night before Acosta and Dunton’s murder, Witness
No. 1 and Gomez drove to a location in Wilmington known as
“the third world” or “the junk yard” where drug dealing took
place. Witness No. 1 flashed some money and offered to buy
crack cocaine from a drug dealer. When the dealer presented
the drugs, Gomez drew the cut-down shotgun and took the drugs
without paying.
Gomez and Witness No. 1 subsequently drove back to
Dunton’s house. Gomez said to Witness No. 1, “They sent
somebody to fuck [Dunton] and [Acosta] up.” Upon entering
Dunton’s house, the pair found Acosta, Dunton, and Grajeda
seated inside. Gomez and Witness No. 1 sat down at a table; the
cut-down shotgun was placed on the table. Grajeda was seated
on a small couch facing Dunton and held a different
shotgun — the weapon that Witness No. 1 and Dunton referred
to as “shorty.” Dunton sat on a large couch facing the door, and
Acosta was standing near the door. Witness No. 1 subsequently
left the room to prepare some crystal methamphetamine in his
bedroom.
From his bedroom, Witness No. 1 heard Dunton say, “If I
got to go, I’m going to go like a man.” Grajeda said, “You know
the rules,” and Gomez added, “Yeah, forward and backward.”
Gomez then said, “Don’t point that at me. I don’t like people
pointing things at me.” Thereafter, Witness No. 1 heard about
four gunshots, running footsteps, and a bump against the
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washing machine near the back door. Witness No. 1 went into
the living room and saw Acosta lying by the front door and
Dunton seated on the couch with his head to the side.
Witness No. 1 went out the back door and rode his bicycle
toward a convenience store to call 911. On the way, he passed a
business where his friend worked, and he went in and called
911. He then continued to the convenience store. Witness No.
1 testified that he was afraid to go back to Dunton’s house
because he “figured they would . . . come back and get me.” But
during an interview with Detective Joya and Detective
Masterson on July 2, 1997, Witness No. 1 said that he had gone
out to get something to eat and had come home to find the
bodies. In court, Witness No. 1 acknowledged this discrepancy
and explained: “Because both of them was gone and I was
there . . . I was afraid it might look like I did it.”
Witness No. 2 testified that he had known Grajeda, who
was dating Witness No. 2’s niece, for about four to five years.
Witness No. 2 had also known Dunton and Acosta for about 30
years; Dunton lived behind Witness No. 2’s mother’s house. The
day before Acosta and Dunton were shot, Witness No. 2 went to
Donald Jauez’s house around 3:30 or 4:00 p.m. Grajeda was
already there, along with four to six other people, having drinks.
Witness No. 2 testified that he heard Grajeda say that Gomez
was supposed to be collecting taxes for the Mexican Mafia and
that “[Dunton] wasn’t paying up, [Gomez] wasn’t paying up.”
Witness No. 2 recalled Grajeda saying he would “go over there
and take care of [Gomez].”
Grajeda then asked Witness No. 2 to drive him to Dunton’s
house because Grajeda “wanted to go check out the place.”
Witness No. 2 complied. They arrived at Dunton’s house around
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4:30 or 5:00 p.m. Gomez answered the door and they went
inside. Witness No. 1, Witness No. 2, Gomez, Grajeda, and
Dunton were all present. Witness No. 2 and Grajeda stayed 20
or 30 minutes and made small talk. Gomez was “nervous” and
“was walking back and forth.” Witness No. 2, suspecting that
another person may have been in the bedroom, said to Grajeda,
“Let’s get out of here. It don’t look right.”
Grajeda and Gomez walked outside, followed by Witness
No. 2. Grajeda and Gomez went over to a vehicle and talked for
a few minutes. Acosta arrived, greeted them, and went inside
the house. Witness No. 2 drove Grajeda back to Jauez’s house
and dropped him off around 5:30 p.m. During the drive, Grajeda
asked Witness No. 2 to come back at 8:00 p.m. to pick him up
and drive him back to Dunton’s house. Grajeda told Witness No.
2 that he intended to kill Gomez and possibly Dunton if Dunton
“didn’t pay up his taxes.” Witness No. 2 agreed to return at 8:00
p.m.
Around 6:00 p.m., Witness No. 2 went to his mother’s
apartment. He told his girlfriend that Grajeda was going to call
and instructed her to say that Witness No. 2 was asleep and that
she would not wake him. Witness No. 2 did not see Grajeda
again until about two days after Acosta and Dunton had been
killed. Witness No. 2 told Grajeda that “[Acosta] and [Dunton]
got killed,” and Grajeda said that he “did it.”
Witness No. 4, Gomez’s cousin, testified that she saw
Gomez on July 2, 1997, for the first time in about eight years.
Sometime in the late afternoon, Gomez knocked on the door to
her home in Long Beach and said that he needed a place to stay.
He was carrying a bag and “kind of a big gun” that resembled
the shotgun that he and Witness No. 1 had cut down and
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removed the stock from. Witness No. 4 subsequently left Gomez
in her house and walked to her friend’s house, where she
eventually called the police.
Around 3:00 or 3:30 a.m., Gomez was arrested at Witness
No. 4’s home without incident. Upon searching the residence,
officers discovered the cut-down shotgun. Three of four
fingerprints lifted from the shotgun matched Gomez. Daniel
Rubin, a criminalist with the Los Angeles Police Department’s
Firearms Analyst Unit, testified that four spent cartridges
discovered at Dunton’s house were fired by the shotgun
confiscated from Gomez during his arrest, and that one live
round recovered from Dunton’s house was “the type of shot
cartridge that could be loaded in and fired by” the shotgun.
Rubin further noted that a metal tube found at Dunton’s
residence “could have been a part of the barrel of [the] shotgun.”
On July 7, 1997, detectives acting on information provided by
Witness No. 1 recovered a cut-off shotgun stock from a trashcan
in Dunton’s kitchen.
Witness No. 5, Acosta’s wife, testified that Gomez called
her after his arrest and asked her to come visit him at the county
jail. At the jail, Gomez denied killing Acosta and Dunton, and
told Witness No. 5 that he knew “that he had left fingerprints
all over the house and even fingerprints on [Dunton’s] face, and
he even kissed him.” Gomez also acknowledged that he was “the
last person there” when Acosta and Dunton were killed.
Witness No. 5 further testified that she found a note
between the pages of a Bible five days after Acosta’s death. The
handwritten note was signed by Acosta in his full name and his
street name “Spider.” She testified that she and Acosta “always”
left notes for each other, but that Acosta had never left a note
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for her signed with his full name. Witness No. 5 said that the
note “meant something serious,” so she turned it over to the
detectives investigating Acosta’s death. The note read as
follows: “6-30.97 [¶] Tuesday morning [¶] Monday nite 1.20 [¶]
Went to meet [¶] Shady La Rana [¶] don’t like the [¶] meeting
at Big Huero [¶] Robert Acosta [¶] Spider.” (“Shady La Rana”
was Grajeda’s nickname, and “Big Huero” referred to Dunton.)
The prosecution also presented expert testimony from
Sergeant Richard Valdemar about the history and practices of
the Mexican Mafia. Valdemar recounted some of his
observations from surveilling Mexican Mafia meetings,
including the fact that murder was a primary topic of
conversation. He further stated that the Mexican Mafia had a
“reputation for seeking out witnesses and killing them” and that
loyal Mexican Mafia members “would use any means possible to
delay, obstruct or reverse any kind of a criminal prosecution
against its members.” Moreover, after viewing Gomez’s tattoos,
Valdemar testified that Gomez was “a member of the East Side
Wilmas gang, Ghost Town Locos, which is a subset, and
surrenos.” He had previously stated “[t]hat members of the East
Side Wilmas gang . . . align themselves with the Mexican
Mafia.”
Valdemar also explained that individuals can be placed
“on a green light list” and that “gang members have a green light
or the authorization to assault and murder whoever is on that
list.” Valdemar noted that “all dope dealers who operate in the
area controlled by the street gangs that are controlled by [the
Mexican Mafia] pay taxes,” and agreed with the prosecution
that a “Hispanic street gang member who by reason of his
tattoos was professing allegiance to [the Mexican Mafia]” and
“was robbing dope dealers in San Pedro and Wilmington and not
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turning over those proceeds to [the Mexican Mafia]” would likely
be placed on the green light list and specifically designated to be
killed. He further explained that someone on the green light list
might be given an assignment for a “suicide run” where the
individual murders someone else on behalf of the Mexican Mafia
so as to be removed from the list. Valdemar also noted that the
Mexican Mafia often “used someone close to the victim to either
approach them or actually carry out the murder.”
During a break in Valdemar’s testimony, one of the jurors
sent a note to the trial court judge, that read as follows: “Judge,
I have a question! What about jury members. Are we at risk?”
Additionally, at the end of guilt phase deliberations, the jury
sent a note signed by the foreperson to the court, stating that
the jurors were “concerned about possible harassment or
problems after we are dismissed once the verdicts are read.” The
trial court subsequently rearranged the jurors’ parking and
provided for them to be escorted to their cars.
2. Defense Evidence
a. The Patel Murder
When Gomez was arrested on July 2, 1997, the police did
not find any .40-caliber pistols on his person. Nor did the police
recover such handguns at the crime scenes of the Luna,
Escareno, or Acosta and Dunton murders. Besides the three
shell casings of the .40-caliber pistol found near Patel’s body,
officers also discovered a disposable lighter from which no prints
of Gomez were recovered.
During the investigation, Detective La Barbera had
experts take foot impressions from the ground. La Barbera
testified that after having learned that officers from Long Beach
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and the California Highway Patrol had already been to the
crime scene, he originally chose not to have the castings
analyzed, believing the prints belonged to the police officers
present at the scene. La Barbera later had the plaster casts and
photographs of the shoe prints at the crime scene compared to
boots confiscated from Gomez during his arrest even though
“these boots . . . did not or could not have made the shoe or boot
impressions located at the scene.”
Additionally, La Barbera had requested fingerprint,
serology, and arson experts to conduct an investigation of Patel’s
car. None of the fingerprints lifted from the vehicle were linked
to Gomez. The serologist was unable to match the blood in
Patel’s car to Gomez. Officers also recovered various personal
items from the car, including a flashlight that did not belong to
Patel and other “trace evidence” such as a rope and bungee
cords, none of which “c[a]me back to Ruben Gomez.” The police
did not find knives, scissors, or shears in the trunk of Patel’s car.
b. The Escareno Murder
The defense introduced a local newspaper article on the
Patel murder, dated May 27, 1997, indicating that no
identification was found on the body. Detective Winter
confirmed that the Escareno murder was also “covered in their
local paper.” The defense also introduced two newspaper
articles concerning the Escareno homicide that were included in
the murder book prepared by the detectives that investigated
Escareno’s murder. Defense Exhibit L, dated June 18, 1997, and
entitled “A Gruesome Discovery in SP Alley,” recounted the
discovery of Escareno’s car and described the blood and brain
matter found in the car. Defense Exhibit M, dated June 10,
1997, and entitled “Man Found Slain at SP Shopping Center,”
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stated that a victim was found with a massive gunshot wound
to the head in a shopping center on Western Avenue, that
jewelry had been taken from both hands, and that robbery
appeared to be a motive. The article also stated that the victim
was killed at the shopping center.
The defense recalled Detective Winter, who testified that
she had interviewed Witness No. 1 on July 24, 1997. During the
interview, Witness No. 1 said that Gomez “always drove.”
Witness No. 1 would ask Gomez for permission to carry the
shotgun because Gomez was driving, and sometimes Gomez
would let him. Witness No. 1 also told Winter that Dunton
would give “some of the jewelry that would come into the house”
to “some of the females that would come around.” Witness No.
1 described jewelry that Dunton had given to some girls, and
Winter indicated in her testimony that the description sounded
like Escareno’s jewelry. He also indicated that Gomez had
several guns, including a single shot 12-gauge shotgun and a
pump shotgun. Winter also interviewed Witness No. 1 on
August 20, 1997. Witness No. 1 told Winter that he had been
involved in the Escareno murder and that he was with Gomez
at the time.
c. The Luna Murder
During trial, Rudy Luna testified that he did not recognize
the voice he heard outside his bedroom window. Rudy
acknowledged that he personally knew Gomez prior to Raul’s
death.
Detective Lancaster later directed officers to compare the
boots taken from Gomez to the plaster shoe casts made at the
Luna crime scene. There was “no similarity at all” between the
boots and the casts, which appeared to have been made by an
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“athletic type of shoe.” Nor did the casts taken from the crime
scene produce any evidence significant to the investigation.
Charles Orr, one of the prosecution’s witnesses, described
the man he saw running shortly after the shooting as “dark-
skinned but not Black.” During trial, Orr did not characterize
Gomez as having dark skin.
William Owens, another one of the prosecution’s witnesses
who had “five or six seconds” of interaction with the running
man, testified that the man seemed Central American and had
“a deep heavy Spanish or Hispanic accent.” Owens estimated
that the man stood around “five-nine, five-ten,” weighed “maybe
180, 200” pounds, had a “light complexion” and “a facial
structure . . . from [the] Central America region,” and spoke
with a “heavy Spanish or Hispanic accent.” Owens further
reported that the running man wore jeans and a red and blue
nylon jacket. Owens did not notice any tattoo markings but
described the runner’s hairstyle as a “marine-type” “crewcut”
and said that the runner had a trimmed, “medium mustache.”
Lancaster showed Owens a six-pack of photos that
contained a picture of Gomez. Lancaster did not have Owens
circle, date, and sign the photograph, as he customarily did to
verify the identification because Lancaster did not feel Owens
had accurately identified the individual who had committed the
crime. Lancaster testified that Owens “never conclusively
indicated that [the photograph] was [of] the suspect,” only that
Owens indicated “he somewhat resembled the suspect.” Owens
claimed to have identified the runner with “75 to 85 percent
accuracy.” During trial, Owens pointed to Gomez in the
courtroom when asked to identify the running man.
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Wilcox testified that Gomez’s prints did not match the
latent prints lifted from the Oldsmobile at the crime scene.
Wilcox further testified that it is generally impossible to “put a
time date as to the appearance of that fingerprint on that
particular object . . . unless there is some type of outside specific
force that acts on that fingerprint.” Further, all six of the
fingerprint lifts taken from the cellphone recovered by the police
were “badly smeared or basically not of sufficient quality to do
the latent print comparison.” Wilcox was not directed to
perform fingerprint analysis on lifts taken from other surfaces
besides the vehicle and cellphone.
At trial, Lancaster testified that the Oldsmobile was not
registered to Gomez. He also acknowledged that prints lifted
from the radio found inside the vehicle, prints from the baggie
found near Luna’s body, prints from an ATM card found near
Luna’s body, and prints lifted from a gold chain and cross
around Luna’s neck did not match Gomez’s prints.
d. The Acosta and Dunton Murders
The defense recalled Detective Joya, who testified that the
cut-off barrel and wood stock of the shotgun linked to the Acosta
and Dunton murders were sent to the crime lab, but she could
not recall if any of the prints matched Gomez. Joya also testified
that she interviewed Witness No. 1 on July 15, 1997, and August
20, 1997. During the July 15 interview, Witness No. 1 told Joya
“[Gomez] had told him that they’re going to send someone over
to fuck up [Dunton] and [Acosta].” In the interview on August
20, Witness No. 1 told Joya “that [Gomez] told him that
they — that they have their orders for [Dunton] and [Acosta].”
Witness No. 1 did not indicate to Joya that by using the term
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“they,” Gomez was referring to himself. Joya further testified
that “they” was a reference to a group of people.
The defense also recalled Detective Winter, who testified
that she interviewed Witness No. 1 on July 24, 1997. During
the interview, Witness No. 1 said that Gomez “always drove.”
Witness No. 1 would ask Gomez for permission to carry the
shotgun, because Gomez was driving, and that sometimes
Gomez would let him. During this same interview, Witness No.
1 told Winter that Dunton asked him to get rid of Boxer.
B. Penalty Phase
1. Prosecution Evidence
The prosecution’s aggravation case consisted of testimony
concerning Gomez’s prior felony convictions and violent criminal
activity. The prosecution first presented evidence that Gomez
had been convicted of a 1991 robbery. The victim, Jorge Lucho,
testified that Gomez approached him when he was walking
home late at night. Gomez threatened Lucho with a pointed
screwdriver and demanded his wallet. Lucho turned over the
wallet, which contained only one dollar; Gomez said Lucho
“surely was carrying more money and that [Lucho] should go
with him to the alley to try and get some more.” At that point,
Lucho was able to run away, but he heard Gomez threaten to
kill him if he didn’t give any more money. Police officers
thereafter discovered Gomez hiding behind a mattress in a
metal shed in the backyard of a house several blocks from where
he had confronted Lucho. Upon arresting Gomez, the police
officers found a “homemade metal sharp object” on Gomez’s
person. The arresting officer testified that Gomez “had a
bewildered look, eyes wide open.” Gomez was transported to the
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general hospital, where he was diagnosed as being under the
influence of an opiate.
The prosecution next introduced evidence that while
incarcerated for the 1991 robbery and a separate drug charge,
Gomez was convicted of assault and possession of a deadly
weapon.
Finally, the prosecution presented evidence relating to
several violent incidents that occurred when Gomez was in
custody awaiting trial in the instant case. Deputy Sheriff Chad
Millan testified that in June 1998, he escorted Gomez to the
hallway to search him for hidden contraband or weapons.
Gomez “was instructed to strip out of his underwear,” was then
“waist chained,” and “asked to do a squat down and a cough too
and release anything that might be secreted in his anus.”
Gomez initially did not comply and then pulled an object from
“between his buttocks.” Fearing that the object was a weapon,
Gomez was ordered to drop the object; when Gomez refused to
do so, Millan sprayed him with pepper spray. Gomez turned
away, began peeling paper “covering off what seemed like the
blade,” and ran down the hallway. Millan followed him and
confronted him, kicking him in the back of the head. Gomez
turned around, said “fuck you, punk,” and stabbed Millan three
times in the rib and knee with a shank.
Deputy Sheriff Timothy Vanderleek testified that he
responded to a disturbance in Gomez’s cell in November 1999.
When he entered the cell, he had liquid that smelled like urine
thrown on his face. Deputy Sheriff Frank Montoya testified that
he had several violent interactions with Gomez in December
1999, while Gomez was jailed during his trial. Montoya
encountered Gomez walking back from court carrying a large
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bag of candy, which was not authorized because Gomez had been
placed in the “high security discipline” cell. Montoya confronted
Gomez and advised him that he could not possess the candy
until he “gets out of discipline”; this caused Gomez to get angry
and start shouting profanities. When Montoya attempted to
grab the bag, Gomez turned around and head butted him. After
Gomez was brought to the ground, Gomez said, “You fucked up,
Montoya. You fucked up. I’m going to kill you. I’m going to kill
you and I’m going to kill every deputy here.”
The next day, Montoya let Gomez out of the locked shower
area and asked him to show Montoya his hands. Montoya
testified that Gomez “thrust” his hand “through the bars toward
[Montoya’s] office,” and that Gomez was holding “a plastic
handled comb with the teeth cut out, and there was a razor fixed
to it, like a slashing instrument.” Gomez was unable to reach
Montoya with his weapon, so he “started breaking the razor and
the plastic comb into little pieces and threw it down the shower
drain.” As he did that, Gomez said, “fuck you . . . I’m going to
kill you. I might have missed you this time, or I’ll get you later
or I’ll get some other deputy that’s slower.” Montoya testified at
trial that he maintained daily contact with Gomez after these
two incidents; although Gomez continued to threaten Montoya,
he did not try to attack him physically again. Another deputy
at the jail, Keith Holly, testified that he went to Gomez’s cell to
inform Gomez that he had been found guilty of various offenses
in violation of jail disciplinary rules, and that Gomez would
therefore lose various privileges for 30 days. Gomez responded,
“Fuck this discipline time. I should have fucking slashed
Montoya’s throat when I had a chance. . . . Just wait until those
fucking deputies take me to court and I’ll slash one of those
fuckers.”
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2. Defense Evidence
The defense first offered the testimony of Michael Pickett,
a regional administrator for the Department of Corrections.
Pickett testified that a defendant like Gomez “can only be
assigned to a Level 4 institution” and would most likely be sent
to the most secure classification of facility, known as a “Security
Housing Unit” or “SHU.” Pickett explained that “it’s not a
perfect world at a Level 4 prison” despite the high security and
that homicides as well as assaults occurred at such facilities.
Based on what he knew about Gomez, Pickett predicted that
Gomez would be moved to the Corcoran SHU facility or the
Pelican Bay State Prison SHU facility, where he would be
confined to a cell for roughly 23 hours per day. He would leave
his cell only for exercise in a yard adjacent to the SHU or for
medical and legal visits, during which he would be shackled and
escorted by a guard. Pickett also testified that all visits with a
Level 4 SHU inmate are “non-contact,” meaning there would be
a Plexiglas partition between the inmate and the visitor. On
cross-examination, Pickett detailed a race-related riot that
occurred at Pelican Bay State Prison the previous morning.
Pickett also opined that there is a higher level of violence at the
more highly secured prison facilities because the inmates in
such facilities are more violent. Pickett further testified that
murders and violent assaults have been ordered by prison gang
members in the SHUs against prisoners in the general
population.
The defense also presented the testimony of Gomez’s
sister, Mercedes Sanabria. She testified that Gomez has three
children under the age of 12 and that she has brought the
children to visit Gomez at the county jail. Sanabria further
testified that the children love their father and that she loves
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her brother. She said to the jury “that despite what my brother
has done, we are real sorry, but we all love him, and we just
don’t want him to be executed.”
II. PRETRIAL ISSUES
A. Preemptive Denial of Gomez’s Right to Self-
Representation
Nine months before jury selection, Gomez invoked his
right to represent himself under Faretta v. California (1975) 422
U.S. 806. At that time, the court warned him, “[Y]ou can’t go
back and forth on this. If you want to represent yourself, that’s
fine. That’s going to cause a delay in the proceedings, and you
just can’t keep switching back and forth between being
represented by counsel and representing yourself.” After
determining that Gomez’s waiver of the right to counsel was
knowing and intelligent, the court granted Gomez pro se status.
But two weeks later, Gomez expressed his desire to “relinquish”
his pro se status and asked that the court reappoint counsel.
The following colloquy ensued:
“THE COURT: Is that what you want to do, Mr. Gomez?
“GOMEZ: Yes.
“THE COURT: I told you before you can’t switch back
and forth.
“GOMEZ: I know that.
“THE COURT: I’m going to hold you to this kind of a
change. I think it’s a good change for
you. I think you’re doing the right thing.
All I’m saying is I’m not going to let you
bounce back and forth. You have a right
to represent yourself, I recognize that
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and gave that to you, and as of this
moment you do represent yourself. And
it’s better for you and it’s better for me
as well to have an attorney who knows
the rules and will effectively represent
you to do that for you. So at this point
you understand that if I’m going to
change back, this is a final change.
“GOMEZ: I understand that, yeah.
“THE COURT: And that’s what you want to do?
“GOMEZ: Yes, sir.
“THE COURT: Okay. Mr. Nardoni is appointed then.”
Gomez argues that this colloquy amounted to a
preemptive denial of Gomez’s constitutional right to self-
representation. Quoting People v. Windham (1977) 19 Cal.3d
121, 128, he contends that when “ ‘a motion to proceed pro se is
timely interposed, a trial court must permit a defendant to
represent himself upon ascertaining that he has voluntarily and
intelligently elected to do so, irrespective of how unwise such a
choice might appear to be.’ ” Because the court gave Gomez the
impression that he could not ask to represent himself, he argues,
he never had the opportunity to invoke such a right, even if such
requests had been timely. But because Gomez never re-invoked
his Faretta right, he cites to our decisions in People v. Dent
(2003) 30 Cal.4th 213 (Dent) and People v. Lancaster (2007) 41
Cal.4th 50, 69–70 (Lancaster) as precedent for the proposition
that where the court entirely forecloses the possibility of future
self-representation, Faretta is violated.
In Dent, the defendant’s appointed counsel failed to show
up on time for the first day of trial. (Dent, supra, 30 Cal.4th at
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p. 216.) After “delineat[ing] the history of defense counsel’s
requests for continuances and failure to appear on the record,”
the trial judge indicated that he would continue the trial once
again and relieved the defendant’s attorneys as counsel of
record. (Ibid.) He then advised the defendant that he “ ‘must
be represented by attorneys that are senior trial attorneys. And
you have got to have people here to represent you. You cannot
represent yourself in this matter.’ ” (Ibid.) When the defendant
asked to say something in response, the trial judge prevented
him from doing so without attorneys present. (Ibid.) Later,
after the defendant suggested that he would prefer to represent
himself rather than receive new counsel, the trial judge flatly
stated that he was “ ‘not going to let him proceed pro. per. . . .
Not in a death penalty murder trial.’ ” (Id. at p. 217.) The trial
court proceeded to appoint new counsel, and the defendant did
not renew his Faretta motion. (Dent, at p. 217.) On this record,
we held that “the trial court’s response was not only legally
erroneous but also unequivocal, and foreclosed any realistic
possibility defendant would perceive self-representation as an
available option.” (Id. at p. 219.)
Lancaster distinguished Dent on the ground that Dent
“involved [an] outright denial of the right [to self-
representation].” (Lancaster, supra, 41 Cal.4th at p. 70.) In
Lancaster, as here, the defendant had vacillated between self-
representation and the right to counsel. After the fourth such
change of heart, the court similarly admonished the defendant:
“ ‘I do need to advise Mr. Lancaster that you cannot continue to
change between representing yourself and having appointed
counsel represent you. The reason for it is that we’ve got to move
forward, and that doesn’t allow us to do that. [¶] I think it’s a
very wise move on your part, as I said. . . . But having originally
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had an attorney, gone pro per, had an attorney, gone pro per,
now you’re back to an attorney, I can’t let you continue to change
from one to the other. It has to be a permanent decision on your
part. [¶] Even if at some point you have some disagreement with
what Mr. Rothman is doing, you can’t just say now I’m back pro
per. That’s a decision for the court to make, and it probably
would not be in your favor.’ ” (Id. at p. 69.)
We rejected the defendant’s argument that the court’s
comments were “a ‘preemptive denial’ of his Faretta right,”
noting that in light of “the court’s protracted grappling with the
logistics of providing defendant with discovery materials and
access to legal resources, the court’s concern with his repeated
alternation between self-representation and the services of
counsel was warranted.” (Lancaster, supra, 41 Cal.4th at p. 69.)
We held that “[t]he court’s reference to the need for a ‘permanent
decision’ . . . did not entirely foreclose the possibility of
defendant’s future self-representation.” (Ibid.) Rather, “it told
him it would make a decision on any renewed application,
though the request would probably not be viewed with favor.”
(Ibid.)
The instant case is more similar to Lancaster than Dent.
In Lancaster, the court warned the defendant that “ ‘you cannot
continue to change’ ” because “ ‘we’ve got to move forward,’ ”
although the decision to request counsel was “ ‘wise.’ ”
(Lancaster, supra, 41 Cal.4th at p. 69.) Here, the court said, “I’m
going to hold you to this kind of change,” and “it’s a good change
for you.” When Gomez first asked to represent himself, the court
had already warned Gomez that he could not “go back and forth
on this” because “[t]hat’s going to cause a delay in the
proceedings.” But, unlike in Dent, the court expressly told
Gomez that “[y]ou have the right to represent yourself if you
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make a knowing and intelligent waiver of your right to counsel”
and “[i]f you want to represent yourself, that’s fine,” and the
court granted Gomez’s initial request to proceed in propia
persona.
Gomez seizes on subtle distinctions in wording to argue
that while the court in Lancaster “did not entirely foreclose the
possibility of defendant’s future self-representation” (Lancaster,
supra, 41 Cal.4th at p. 69), here the court told him unequivocally
that future requests for self-representation would be denied.
But this misunderstands the import of Lancaster, which held
that the trial court’s comments, taken in context, could not be
characterized as a preemptive denial of the defendant’s Faretta
right. (Lancaster, at p. 69.) Lancaster did not hold that had the
trial court’s comments been phrased in more certain terms, such
comments would have amounted to reversible error. Instead,
we commented that the trial court’s reference to a “permanent”
decision may have been “precipitous” due to the fact that trial
was not imminent, but “the impropriety was slight” and did not
cause fundamental error. (Id. at pp. 69–70.) As we explained,
these admonitions are generally inadvisable but also reflect “the
difficulties posed by [a] defendant’s intermittent assumptions of
his own defense” and thus constitute an understandable
“attempt to discourage defendant from perpetuating those
difficulties.” (Id. at p. 70.)
That a trial court may directly deny a Faretta request
when it is designed “to frustrate the orderly administration of
justice” (People v. Marshall (1997) 15 Cal.4th 1, 23) suggests
that courts are not foreclosed from preemptively discouraging
such requests when it identifies a pattern of vacillation that,
over time, will harm the progress of trial and the defendant’s
ability to put on a defense. When considered in context, the trial
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court’s statement that “this is a final change” did not
“unequivocal[ly] . . . foreclose[] any realistic possibility [Gomez]
would perceive self-representation as an available option”
(Dent, supra, 30 Cal.4th at p. 219). Therefore, the trial court’s
warning, while inadvisable in its assertion that any chance
would be “final,” was not erroneous.
B. Trial Court’s Hypothetical During Voir Dire
Regarding Credibility of Accomplice Testimony
During jury selection, the prosecution was interested in
probing prospective jurors’ feelings regarding the propriety of
exchanging testimony against another for prosecutorial
leniency. Page 12 of the jury questionnaire asked: “How do you
feel about the situation in which the prosecution decides not to
prosecute one person in exchange for that person’s testimony
against another person?” The court asked follow-up questions
of those who expressed hesitation or distaste for such practices,
and pressed jurors to explicate their feelings in greater detail.
When a juror did not understand the question, the court
offered the following hypothetical as “an example of the kind of
thing which [the court] think[s] makes some sense to people at
least. [¶] That is say there’s a bank robbery situation. There
are two people involved, one stands outside as a lookout. The
other bank robber actually goes in to rob the bank, and in the
process kills somebody. [¶] We’ve got good evidence supposedly
in this hypothetical as to the person standing outside. We know
that person is a lookout and can be convicted for participating
in the bank robbery and is actually responsible under the law
for the robbery and the killing that occurred in the bank. But
the real person that pulled the trigger is the second person, and
law enforcement is more concerned about that person than the
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one that stood outside. [¶] Do you see a problem with the idea
of granting some lenience to this person that stood outside as a
lookout, saying that that person is either going to agree to a
lesser penalty or perhaps even be immunized entirely in order
to get that person’s testimony against the actual bank robber?”
Gomez argues that the trial court’s attempts to elucidate
the significance of the questionnaire’s inquiry into accomplice
testimony “improperly informed jurors that the prosecution
would only grant leniency to the less culpable party involved in
a crime.” Although counsel did not object to this hypothetical
during voir dire, Gomez argues that the relevant exchanges
between the court and prospective jurors amounted to
instructional error. (People v. Dunkle (2005) 36 Cal.4th 861,
929–930 [“[W]e do not deem forfeited any claim of instructional
error affecting a defendant’s substantial rights.”].) We disagree.
The trial court’s hypothetical was clearly meant to expand upon
and explain the significance of the questionnaire’s inquiry. To
the extent that the hypothetical may have suggested that the
trial court had personal confidence in the prosecutor’s choice
with respect to whom to prosecute, counsel could have objected.
But counsel did not. Accordingly, Gomez has forfeited this
claim. (People v. Fuiava (2012) 53 Cal.4th 622, 653 [“[A]
defendant may not challenge on appeal alleged shortcomings in
the trial court’s voir dire of the prospective jurors when the
defendant, having had the opportunity to alert the trial court to
the supposed problem, failed to do so.”].)
On the merits, the trial court did not err. By describing
the underlying logic for why a prosecutor might exercise
leniency with respect to one accomplice in exchange for
testimony, the trial court’s manifest intention was to add
greater granularity to the questionnaire. Each time the trial
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court engaged a prospective juror with the hypothetical, it was
expressly framed in relation to page 12 of the voir dire
questionnaire. The court described the hypothetical as an
“example” that “makes some sense to people,” suggesting that
the trial court did not personally hold the views that it
described. Its evident purpose was to draw out the prospective
jurors’ views as to the propriety of exchanging testimony for
prosecutorial leniency, not to personally vouch for the
prosecution’s choice of defendant. Moreover, the trial court later
instructed the jury about evaluating witness credibility in the
instant case, which further clarified that any views suggested
by the hypothetical were irrelevant.
C. Motion for Severance of Counts and Separate
Trials
Gomez argues that the trial court abused its discretion in
denying his motion to sever his trial from his codefendant’s trial
and his motion to sever his charges. Gomez claims that these
alleged errors, “both alone and in combination,” violated his
rights to due process, a fair trial, a reliable guilt and penalty
determination, and his right to be free from cruel and unusual
punishment under both the federal and state Constitutions.
Before trial, Gomez first moved to sever his trial for the
murders of Robert Acosta and Robert Dunton from that of
codefendant Arthur Grajeda. Gomez then moved to sever his
counts, seeking a joint trial on the charges arising from the
Acosta and Dunton murders and the Jesus Escareno murder,
and separate trials for the Xavier Salcedo robbery, the Rajendra
Patel murder, and the Raul Luna murder.
The trial court considered Gomez’s motions together and
denied them both. After stating that it was “obvious . . . that the
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defendants should be tried together on [the Acosta and Dunton
counts],” the court found that the counts against Gomez were
“tied closely together in time and to some extent in location” as
well as “in the manner in which the executions took place”; the
same witness would testify in the Escareno case and the Acosta
and Dunton case; the robbery charges involved similar items;
the Luna and Escareno homicides involved cars; and Luna’s
stolen cellphone was used to call Dunton’s house, where Gomez
occasionally stayed. Although the court expressed concern with
the number of crimes that Gomez was charged with, it
ultimately concluded that the crimes “are so well tied together
that . . . they should be tried together.”
1. Motion to Sever Trial from Codefendant’s Trial
We have frequently recognized the Legislature’s
preference for joint trials. (E.g., People v. Souza (2012) 54
Cal.4th 90, 109; see § 1098 [“When two or more defendants are
jointly charged with any public offense . . . they must be tried
jointly, unless the court order[s] separate trials.”].) Factors that
may bear on a trial court’s decision to order separate trials
include “ ‘an incriminating confession, prejudicial association
with codefendants, likely confusion resulting from evidence on
multiple counts, conflicting defenses, or the possibility that at a
separate trial a codefendant would give exonerating
testimony.’ ” (People v. Coffman and Marlow (2004) 34 Cal.4th
1, 40, quoting People v. Massie (1967) 66 Cal.2d 899, 917.)
Severance may also be appropriate where “ ‘there is a serious
risk that a joint trial would compromise a specific trial right of
one of the defendants, or prevent the jury from making a reliable
judgment about guilt or innocence.’ ” (People v. Lewis (2008) 43
Cal.4th 415, 452, quoting Zafiro v. United States (1993) 506 U.S.
39PEOPLE v. GOMEZ
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534, 539.) “If we conclude the trial court abused its discretion,
reversal is required only if it is reasonably probable the
defendant would have obtained a more favorable result at a
separate trial.” (People v. Burney (2009) 47 Cal.4th 203, 237.)
But, “[e]ven if a trial court’s severance or joinder ruling is correct
at the time it was made, a reviewing court must reverse the
judgment if the ‘defendant shows that joinder actually resulted
in “gross unfairness” amounting to a denial of due process.’ ”
(People v. Mendoza (2000) 24 Cal.4th 130, 162, quoting People v.
Arias (1996) 13 Cal.4th 92, 127.)
Gomez argues that he should have been tried separately
from Grajeda because Grajeda sought to blame the Acosta and
Dunton murders on Gomez, whom Grajeda characterized as
“violent, paranoid and drug crazed.” But, as Gomez
acknowledges, “ ‘[a]ntagonistic defenses do not per se require
severance, even if the defendants are hostile or attempt to cast
the blame on each other.’ ” (People v. Tafoya (2007) 42 Cal.4th
147, 162 (Tafoya); see also Zafiro v. United States, supra, 506
U.S. at pp. 538–539.) And we have previously suggested that
antagonistic defenses require severance only where “ ‘ “the
conflict is so prejudicial that [the] defenses are irreconcilable,
and the jury will unjustifiably infer that this conflict alone
demonstrates that both [defendants] are guilty.” ’ ” (People v.
Carasi (2008) 44 Cal.4th 1263, 1297–1298, quoting People v.
Hardy (1992) 2 Cal.4th 86, 168.)
Gomez does not contend that such a conflict exists here.
Rather, he claims that Grajeda received an inherent
“advantage” as “a ‘lesser’ participant” in the crime. Such an
advantage, Gomez argues, necessarily “work[s] to the
disadvantage of a ‘greater’ participant, and indeed the very
existence of such advantages and disadvantages undermines
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the principle of individual guilt.” But this argument merely
homes in on one aspect of Grajeda’s antagonistic defense, i.e.,
that Grajeda played a lesser role than Gomez in murdering
Acosta and Dunton. And “ ‘[i]f the fact of conflicting or
antagonistic defenses alone required separate trials, it would
negate the legislative preference for joint trials and separate
trials “would appear to be mandatory in almost every case.” ’ ”
(People v. Thompson (2016) 1 Cal.5th 1043, 1081.)
Gomez also claims that he was prejudiced during the
penalty phase because the jury knew that the prosecution had
sought the death penalty for him but not for Grajeda. We have
previously rejected this argument (Tafoya, supra, 42 Cal.4th at
pp. 163–164), and Gomez offers no reason why we should revisit
our precedent here. Accordingly, we reject Gomez’s claims that
the trial court should have severed his trial from Grajeda’s.
2. Motion to Sever Counts
Section 954 allows for the joint trial of “two or more
different offenses connected together in their commission . . . or
two or more different offenses of the same class of crimes or
offenses.” Where joinder is proper under section 954, “[t]he
burden is on the party seeking severance to clearly establish
that there is a substantial danger of prejudice requiring that the
charges be separately tried.” (People v. Soper (2009) 45 Cal.4th
759, 773.) In determining whether a court abused its discretion
in declining to sever properly joined charges, we first consider
“the cross-admissibility of the evidence in hypothetical separate
trials.” (Id. at p. 774.) If the evidence is cross-admissible, then
this “is normally sufficient to dispel any suggestion of prejudice
and to justify a trial court’s refusal to sever properly joined
charges.” (Id. at pp. 774–775.) If not, then we also consider
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“(1) whether some of the charges are particularly likely to
inflame the jury against the defendant; (2) whether a weak case
has been joined with a strong case or another weak case so that
the totality of the evidence may alter the outcome as to some or
all of the charges; or (3) whether one of the charges (but not
another) is a capital offense, or the joinder of the charges
converts the matter into a capital case.” (Id. at p. 775.)
Moreover, “[e]ven if a defendant fails to demonstrate the trial
court’s joinder ruling was an abuse of discretion when it was
made, reversal may nonetheless be required if the defendant can
demonstrate that ‘the joint trial resulted in such gross
unfairness as to amount to a due process violation.’ ” (People v.
Landry (2016) 2 Cal.5th 52, 77.)
Gomez concedes that all of his counts were properly joined
under section 954 and that he should have been tried for the
Acosta, Dunton, and Escareno murders in the same proceeding.
But he contends that each of the remaining cases should have
been tried separately because the evidence underlying those
cases was not cross-admissible; the Acosta, Dunton, and
Escareno murders were particularly inflammatory; the evidence
linking Gomez to the Luna and Patel murders was weaker than
the evidence linking him to the other crimes; and the Luna
murder did not initially involve a capital crime, whereas the
other murders did.
In denying Gomez’s motion for discretionary severance,
the trial court noted that a shotgun was used in the Acosta,
Dunton, Escareno, and Luna murders; Witness No. 1 was a
witness to the Acosta, Dunton, and Escareno murders; and
Luna’s cell phone was used to call Dunton’s house, where
“Gomez was at least a part time resident.” The trial court was
also aware that the prosecution planned to tie the Salcedo
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robbery to its broader theory that “Gomez was ripping off dope
dealers in the Harbor area.”
Even if cross-admissibility alone did not justify the trial
court’s denial of Gomez’s severance motion, the balance of the
remaining factors does not show that the trial court abused its
discretion. (See People v. Simon (2016) 1 Cal.5th 98, 123
(Simon) [“Although cross-admissibility of evidence is often an
independently sufficient condition justifying a trial court’s
denial of severance, it is not a necessary one.”].) First, neither
the Acosta and Dunton double homicide nor the Escareno
homicide was more inflammatory than the other crimes.
Although evidence of gang membership can be particularly
inflammatory (see, e.g., People v. Williams (1997) 16 Cal.4th
153, 193) and the prosecution’s theory of the Acosta and Dunton
murders was that they were gang related, we do not agree that
the jury would have been more inflamed by that crime than the
murder of Patel, who appeared to be unknown to Gomez, or the
murder of Luna, who was murdered at the home that he shared
with his family. And although the Salcedo robbery did not
involve a murder, “the animating concern underlying this factor
is not merely whether evidence from one offense is repulsive,”
but “ ‘ “whether strong evidence of a lesser but inflammatory
crime might be used to bolster a weak prosecution case’ on
another crime.” ’ ” (Simon, at p. 124.) The Salcedo robbery does
not raise such a concern because, as Gomez acknowledges, the
trial court was aware that the victim’s testimony would be
offered in that case.
Second, the Luna and Patel cases were not so weak as to
risk prejudicial joinder. Although the other cases may have
been supported by eyewitness testimony, more substantial
forensic evidence, or both, “a mere imbalance in the evidence
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between the joined crimes does not signal a risk that one charge
will be prejudicially bolstered.” (People v. Johnson (2015) 61
Cal.4th 734, 752.) And the trial court was aware that
substantial evidence linked Gomez to the Luna and Patel
murders, including evidence showing that Gomez was near
Luna’s home around the time of his murder and that Gomez had
possession of Patel’s jewelry and car.
Third, although the Luna murder was not initially
charged as a capital crime, this factor does not carry substantial
weight in favor of finding prejudice. Even if the Luna murder
had been tried separately, Gomez still would have faced the
death penalty based on the other murders. Thus, joining
Gomez’s charges “neither converted the entire matter into a
capital case nor bolstered the possibility of [Gomez] receiving a
death sentence.” (Simon, supra, 1 Cal.5th at p. 128.)
We therefore conclude that the trial court did not abuse its
discretion in denying Gomez’s motion for four separate trials.
Moreover, upon reviewing “events after the court’s ruling,” we
do not find that “joinder actually resulted in ‘gross unfairness’
amounting to a denial of [Gomez’s] constitutional right to fair
trial or due process of law.” (People v. Merriman (2014) 60
Cal.4th 1, 46.) Despite the trial’s relative length and complexity,
and even if the prosecution’s closing arguments occasionally
“encouraged the jury to aggregate the evidence,” the record does
not suggest that the jury was unable to decide each count
separately as it was specifically instructed to do. Indeed,
although an “error in denying severance cannot be saved by the
fact that the jury was unable to agree on a verdict as to
[improperly joined charges]” (People v. Smallwood (1986) 42
Cal.3d 415, 433), the fact that the jury acquitted Gomez of the
charge that he robbed Luna and could not reach a verdict on the
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Escareno charges does tend to show that “the jury was capable
of, and did, differentiate among [Gomez’s] crimes” (People v.
Jones (2013) 57 Cal.4th 899, 927; see Simon, supra, 1 Cal.5th at
p. 130).
Accordingly, we are not convinced it was “ ‘reasonably
probable that the jury was influenced [by the joinder] in its
verdict of guilt.’ ” (People v. Merriman, supra, 60 Cal.4th at
p. 49.) Nor are we convinced by Gomez’s unsupported claim that
his right to a reliable penalty phase determination was violated.
III. GUILT PHASE ISSUES
A. Sufficiency of the Evidence
1. The Luna Murder
Gomez argues that the evidence was insufficient to convict
him of the murder of Raul Luna. In his view, the evidence at
best showed that two people were present in Raul Luna’s front
yard when he was murdered but did not show Gomez shot Luna.
“When the sufficiency of the evidence to support a
conviction is challenged on appeal, we review the entire record
in the light most favorable to the judgment to determine
whether it contains evidence that is reasonable, credible, and of
solid value from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Elliott
(2013) 53 Cal.4th 535, 585 (Elliott).) Our review must “presume
in support of the judgment the existence of every fact the jury
could reasonably have deduced from the evidence.” (People v.
Manibusan (2013) 58 Cal.4th 40, 87.) Even where, as here, the
evidence of guilt is largely circumstantial, our task is not to
resolve credibility issues or evidentiary conflicts, nor is it to
inquire whether the evidence might “ ‘be reasonably reconciled
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with the defendant’s innocence.’ ” (Id. at p. 92; see People v.
Maury (2003) 30 Cal.4th 342, 403.) The relevant inquiry is
whether, in light of all the evidence, a reasonable trier of fact
could have found the defendant guilty beyond a reasonable
doubt. (People v. Towler (1982) 31 Cal.3d 105, 117–118.)
Gomez argues that “there was no evidence at all that
Gomez shot Luna.” The evidence showed that a car pulled up to
Raul Luna’s residence and then drove away. Rudy Luna
testified that he then heard two men talking to one another
immediately before the murder and that one of the accomplices
identified Raul Luna before shooting him in the head. This
evidence suggests that Luna was murdered through a joint
undertaking of two accomplices. That they were speaking to one
another at the time of the murder indicated that they were
working together. And that one of the accomplices specifically
identified Raul Luna immediately before he was murdered
suggests that he was the intended target of the coperpetrators’
criminal objectives. So even without indicating who was the
shooter, substantial evidence suggested that the two worked
together to deliberately murder Raul Luna according to a
predetermined plan.
To prove that a defendant is an accomplice the
prosecution must show that the defendant acted “with
knowledge of the criminal purpose of the perpetrator and with
an intent or purpose either of committing, or of encouraging or
facilitating commission of, the offense. ” (People v. Beeman
(1984) 35 Cal.3d 547, 560.) “The aider and abettor doctrine
merely makes aiders and abettors liable for their accomplices’
actions as well as their own. It obviates the necessity to decide
who was the aider and abettor and who the direct perpetrator or
to what extent each played which role.” (People v. McCoy (2001)
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25 Cal.4th 1111, 1120.) Here, the jury need not have
unanimously agreed on which accomplice personally shot Luna
and which aided or abetted the murder. (See People v.
Santamaria (1994) 8 Cal.4th 903, 918 [“[A]s long as each juror
is convinced beyond a reasonable doubt that defendant is guilty
of murder as that offense is defined by statute, it need not decide
unanimously by which theory he is guilty. [Citations.] More
specifically, the jury need not decide unanimously whether
defendant was guilty as the aider and abettor or as the direct
perpetrator.”].)
The sole issue in dispute as to Gomez’s sufficiency
challenge is whether Gomez was one of the two accomplices, and
substantial evidence places Gomez at the crime scene at the
time of the murder. The evidence connected Gomez to both the
Oldsmobile that was likely used as part of the murder’s
commission and the surrounding area of Luna’s residence
immediately after the murder. First, investigators found
Gomez’s fingerprints on an Oldsmobile parked about 150 to 200
yards from the crime scene. The car was conspicuously parked
with the windows down, key in the ignition, with a warm engine,
and with wet tires — all evidence suggesting the car had been
recently driven. Seven unspent 12-gauge shotgun shells, which
matched the unspent shotgun shell discovered near Luna’s
body, were found in the back of the car and connected the vehicle
to the murder. And Luna’s neighbor, William Owens, testified
that he saw Gomez running down the street around the time of
Luna’s murder.
Further, the evidence tended to show that Gomez used
Luna’s cell phone immediately after Luna’s murder. Over the
course of five hours after Luna’s death, 10 calls were made from
Luna’s cell phone; the last call was made to Dunton’s house,
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where Gomez occasionally stayed, suggesting that Gomez used
Luna’s phone to call home. And Witness No. 1 testified that
Gomez had brought Luna’s phone to Dunton’s apartment.
In sum, the record contains substantial evidence that
Luna’s murder was the object of a joint criminal effort
perpetrated by two men working in concert. Substantial
evidence showed that Gomez was one of these men and therefore
could properly be convicted of first degree murder without a
specific finding that he personally was the shooter. The jury’s
verdict — finding Gomez guilty of first degree murder but
declining to convict him of the firearm enhancement — is
supported by substantial evidence.
2. The Patel Murder
Gomez argues that “[n]o physical or forensic evidence
linked Gomez to the Patel killing” and that “[t]he only evidence
connecting [him] to the crimes against Patel . . . was the highly
unreliable testimony of Witnesses #1 and #3,” which Gomez
argues is “incredible as a matter of law.” He seizes upon Witness
No. 1’s checkered past, highlighting his prolonged drug
addiction and regular association with drug traffickers, as well
as his apparent readiness to lie to authorities during the course
of their investigations. He adds that the government gave
Witness No. 1 a $30 per diem during the trial, despite his
admissions outside of the presence of the jury that he was
willing to feign hallucinations in order to collect Social Security
benefits for mental disability, a fact that would tend to show
that Witness No. 1 would not hesitate to lie in exchange for
government benefits.
“In deciding the sufficiency of the evidence, a reviewing
court resolves neither credibility issues nor evidentiary
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conflicts.” (People v. Young (2005) 34 Cal.4th 1149, 1181
(Young).) Witness No. 1 may not have been an ideal witness for
the prosecution, but his testimony indicated that Gomez
possessed Patel’s car after his murder and that Gomez believed
he needed to destroy inculpatory evidence of Patel’s murder that
could be found within. Moreover, Witness No. 1 testified that
Gomez admitted to murdering Patel, stating that he “hated to
kill that guy.” Nothing about this testimony is “physically
impossible or inherently improbable” (Young, at p. 1181), nor
can Witness No. 1’s story be discounted without resort to
“ ‘ “ ‘inferences or deductions’ ” ’ ” about his motivations to
perjure himself (People v. Thompson (2010) 49 Cal.4th 79, 124).
His “testimony [could have been] vulnerable to impeachment for
numerous reasons” (People v. Brown (2014) 59 Cal.4th 86, 105),
such as his hallucinations (whether real or fabricated) and his
role as an accomplice after the fact of the crime. But these
“ ‘doubts about the credibility of the in-court witness should be
left for the jury’s resolution.’ ” (People v. Hovarter (2008) 44
Cal.4th 983, 996.)
Gomez also argues that the testimony of Witness No. 1 and
Witness No. 3 “contradicted each other in significant respects”
such that neither could be believed. He points out that while
Witness No. 3’s testimony suggested that Gomez exchanged
Patel’s jewelry for drugs the same night of the murder, Witness
No. 1 testified that Gomez brought the jewelry to Dunton’s
house and left it there overnight. In essence, Gomez argues that
because Witness No. 1 and Witness No. 3 gave conflicting
accounts of the time that Gomez possessed Patel’s jewelry, we
must conclude that their testimony was “physically impossible.”
But “[r]esolution of conflicts and inconsistencies in the
testimony is the exclusive province of the trier of fact” (Young,
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supra, 34 Cal.4th at p. 1181) in the “absence of patent falsity,
inherent improbability, or other reason to question [the
testimony’s] validity” (People v. Prunty (2015) 62 Cal.4th 59, 90).
Despite the various reasons for discounting Witness No.
1’s credibility and the minor conflicts between Witness No. 1’s
and Witness No. 3’s testimony, sufficient evidence supported the
jury’s determination of guilt. Patel’s body was discovered near
the Terminal Island Freeway on-ramp without his white Camry
or jewelry. Investigators found a trail of blood stretching 75 feet
from Patel’s body, which was consistent with the county medical
examiner’s testimony that Patel could have walked or run 75
feet after receiving his stab wounds, but not after receiving the
gunshot wound to the head, as well as with the spent shell
casings found both near Patel’s body and around 90 to 100 feet
away. Although the precise timeline of when Gomez arrived at
Witness No. 3’s home is unclear, she did testify that she saw a
white car parked in the driveway while Gomez was there.
Moreover, Witness No. 1 testified that Gomez eventually asked
him to burn the car in an apparent attempt to destroy evidence
that would inculpate Gomez. Witness No. 1 was instructed to
inspect the trunk “to make sure there wasn’t no blood in it,” and
Dunton testified that Gomez was worried about his fingerprints.
As noted, Witness No. 1 testified that before Gomez asked him
to burn the car, Gomez expressed that he had “hated to kill that
guy.” Two days after investigators found Patel’s body, they
found his car with its interior burnt.
In sum, a rational jury could have credited Witness No. 1’s
and Witness No. 3’s testimony that Gomez admitted to the
crimes against Patel, despite their inconsistencies, and could
also rationally conclude that Gomez possessed the car
immediately after Patel’s murder and attempted to destroy
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evidence of the crimes. Substantial evidence supports the jury’s
finding that Gomez is guilty of kidnapping, robbing, and
murdering Patel.
3. The Acosta and Dunton Murders
Gomez argues that although the evidence presented
supported the jury’s finding that Gomez used a shotgun to kill
Acosta and Dunton, there is insufficient evidence to support a
jury’s finding of premeditation and deliberation. The thrust of
the prosecution’s case for premeditation was that Grajeda and
Gomez’s Mexican Mafia ties required them to kill Acosta and
Dunton for their failure to pay “taxes” to the gang. But Gomez
argues that it was he who was marked for violent retaliation,
undermining the possibility that he cooperated with Grajeda to
execute Acosta and Dunton. Rather than coldly following the
dictates of the Mexican Mafia’s rules, Gomez argues that he
acted rashly out of fear those rules would be turned upon him.
First degree murder “has the additional elements of
willfulness, premeditation, and deliberation which trigger a
heightened penalty.” (People v. Chiu (2014) 59 Cal.4th 155,
166.) These elements require “more than a showing of intent to
kill; the killer must act deliberately, carefully weighing the
considerations for and against a choice to kill before he or she
completes the acts that caused the death.” (Ibid.) “ ‘ “The true
test is not the duration of time as much as it is the extent of the
reflection. Thoughts may follow each other with great rapidity
and cold, calculated judgment may be arrived at quickly.” ’ ”
(People v. Koontz (2002) 27 Cal.4th 1041, 1080, citing People v.
Mayfield (1997) 14 Cal.4th 668, 767.) We have previously noted
that evidence of planning, motive, and manner of killing is often
relevant to this inquiry. (People v. Halvorsen (2007) 42 Cal.4th
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379, 419–420 (Halvorsen), citing People v. Anderson (1968) 70
Cal.2d 15, 26–27; accord People v. Sandoval (2015) 62 Cal.4th
394, 424.)
The evidence supported the conclusion that Gomez was at
least aware of a calculated plan to execute Acosta and Dunton.
Witness No. 2 observed Gomez and Grajeda having a private
conversation the day before the murder. As Witness No. 1 and
Gomez approached the apartment, Gomez stated that “they sent
somebody to fuck [Dunton] and [Acosta] up.” And the moments
immediately preceding the murders strongly suggested that
Gomez was part of this calculated plan and that he intended to
enforce Mexican Mafia rules. Witness No. 1 testified that
Gomez was sitting at the dining room table with a pump shotgun
in front of him, while Grajeda held the shotgun belonging to
Dunton and Witness No. 1. Grajeda said “[y]ou know the rules,”
to which Gomez added “[y]eah, forward and backward.” Dunton
responded, “if I got to go, I’m going to go like a man.” Witness
No. 1 then heard four shots and footsteps as Grajeda and Gomez
fled the scene.
There was also evidence of motive. Both Gomez and
Grajeda had ties to the Mexican Mafia. Sergeant Valdemar
testified that someone who was placed on a “green light list,” i.e.,
marked for assault or murder by the Mexican Mafia, could
remove him or herself from the list by carrying out a murder on
the Mexican Mafia’s behalf. Witness No. 2 testified that on the
evening before Acosta and Dunton’s murder, Grajeda told him
that he wanted to take care of Gomez for failing to pay taxes to
the gang. Witness No. 2 and Grajeda then went to Dunton’s
house, where Witness No. 2 noticed that Gomez was “nervous”
and “walking back and forth,” and as noted, Gomez and Grajeda
had a private conversation. When Witness No. 2 and Grajeda
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drove away, Grajeda again stated that he wanted to kill Gomez
and possibly Dunton if he didn’t pay his taxes. This evidence is
consistent with the prosecution’s theory that Gomez killed
Acosta and Dunton on behalf of the Mexican Mafia in order to
remove himself from the green light list discussed by Valdemar.
Finally, the manner of killing tended to show that Gomez
acted with premeditation and deliberation: Acosta and Dunton
were shot from close range in the head or neck. (See Halvorsen,
supra, 42 Cal.4th at p. 422 [victims “were shot in the head or
neck from within a few feet, a method of killing sufficiently
‘ “particular and exacting” ’ to permit an inference that
defendant was ‘acting according to a preconceived design’ ”].)
As for Gomez’s claim that his role in the Acosta and
Dunton murders was an instant reaction to being targeted for
violent retaliation, the tenor of the conversation between
Acosta, Dunton, Grajeda, and Gomez was suggestive of a
situation over which Grajeda and Gomez had control. Dunton’s
words that “if I got to go, I’m going to go like a man” indicated
resignation to a death he believed to be imminent due to the
circumstances, an inference that would not have been lost on
Gomez. Grajeda’s reference to the “rules” requiring the killing
of Acosta and Dunton was affirmed and adopted by Gomez,
indicating that he had undertaken to apply Mexican Mafia rules
in concert with Grajeda. These facts are inconsistent with the
notion that Gomez acted rashly out of fear that he was about to
be executed. There is also little indication that Acosta and
Dunton attempted to fire upon Gomez first, even though Acosta
was armed at the time of his death. Since our task is not to
“resolve[] . . . credibility issues [or] evidentiary conflicts”
(Young, supra, 34 Cal.4th at p. 1181), and because we consider
the evidence in the “light most favorable to the judgment”
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(Elliott, supra, 53 Cal.4th at p. 585), we conclude there was
sufficient evidence to support the jury’s finding of premeditation
and deliberation.
B. Gomez’s Refusal to Appear in Court
One morning of trial, Gomez refused to come to court,
eventually causing a 38-minute delay in the day’s proceedings.
The court required presentation of evidence concerning Gomez’s
refusal to attend the proceedings and instructed the jury that it
could consider this evidence as tending to prove consciousness
of guilt. Gomez argues that the trial court’s instruction and
admission of the evidence not only constituted an abuse of
discretion, but also violated his federal and state constitutional
rights. He further claims that the trial court failed to act as a
neutral arbiter, thus violating his constitutional rights to due
process.
1. Background
On December 14, 1999, the second day of his trial, Gomez
refused to go to court for trial. The guard assigned to his cell
block alerted the court, which issued an extraction order. Upon
hearing of the order, Gomez got up and voluntarily came to
court. As a result of his delay, that day’s proceedings started 38
minutes late.
Before the jury was seated, the trial judge apprised the
parties of the situation and then said, “At some point this is
probably information that is going to go to the jury.” He
continued, “It’s now 40 minutes after the starting time was set,
so I’m not sure what the options are, but it does seem to me that
at least it will come out eventually in the penalty phase.” When
the jurors were seated, he informed them that “the reason for
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the delay may well be presented to you later during the trial. If
you’re frustrated by it, you’re no less frustrated than I was.”
At the next break, defense counsel moved for a mistrial.
He argued: “The court informed the jury that the reason for the
delay may be brought out in trial at some later time. The
inference that the court gave, and I think improperly gave to
this jury, was that it was a result of one of these two
defendants.” Even “if a delay was caused by Ruben Gomez,”
counsel continued, “I can’t think of a reason how that would be
admissible in the guilt phase of trial unless perhaps he were to
testify.” The court disagreed and said that “[i]t does show a
consciousness of guilt that Mr. Gomez . . . refused to come to
court as the court had ordered, so the jury will find out about it
one way or another through evidence.” The court then said it
would “do even more than that if this happens again,” noting “I
can call my own witnesses.” The court subsequently denied the
motion for a mistrial.
The next day, before the jury was seated, the trial court
elaborated on its previous comments. “[T]he first point,” the
court said, “is that a defendant in a capital trial has no right to
be absent.” The court then explained that its research suggested
that “evidence of conduct inconsistent with innocence may show
consciousness of guilt.” Finally, it noted that “the court on its
own motion may call witnesses and interrogate them under
Evidence Code Section 775.” In sum, the court explained, “my
concern is that I think it does show a consciousness of guilt that
a defendant refuses to come to court . . . . [¶] Someone who is
innocent will stay for trial in order to clear his name.”
Defense counsel objected, distinguishing the cases cited by
the court as concerning defendants escaping from custody or
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skipping bail. The trial court interjected: “No. The point is the
refusal to come to court . . . . Someone who is guilty . . . has a
reason not to come to court . . . . [¶] A person who is innocent
will stay for trial in order to clear his name and win lawful
liberty.” The court continued: “You may have another solution
to this, but I don’t plan to let it go. I don’t plan to let either
defendant play with the court and the jury and say I’m going to
come when I’m ready. . . . I was here until 8 o’clock last night
doing research on the computer trying to find a case exactly in
point, and I didn’t find one. So I’m going to be a pioneer.” The
court added: “We’re going to have witnesses testify . . . [¶] what
we will have is evidence on the subject, and the jury then can
draw its own conclusion as to why a defendant refuses to come
to court.”
The court then held a hearing regarding the admissibility
of the proposed testimony outside the presence of the jury under
Evidence Code section 402. The prosecution and the defense
examined Deputy Sheriff John Ganarial, who had been assigned
to take Gomez to court on the morning of December 14, 1999.
Ganarial testified that Gomez said “fuck court” several times
when Ganarial asked him to get ready for court around 5:50 a.m.
After Ganarial told him several more times to get ready, Gomez
responded, “They bring me back whenever they want, I’ll go to
court whenever I want.” Ganarial testified that Gomez was
ultimately escorted from the cell to court around 9:00 a.m. that
morning. Ganarial further testified that Gomez had otherwise
been “cooperative as far as being transported . . . to the court for
purposes of trial.” After Ganarial’s testimony, the court said, “I
do think that the initial incident that we were talking about on
December 14th showed a consciousness of guilt.” Defense
counsel then repeated his objection to the evidence and argued
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that no precedent holds that the jury may infer consciousness of
guilt from an in-custody defendant’s refusal to attend trial. At
the end of the hearing, the trial court ruled that Ganarial’s
testimony was admissible to show consciousness of guilt.
On the sixth day of trial, the prosecution called Ganarial
to testify before the jury about Gomez’s delay. Ganarial
explained that on the morning in question, he attempted several
times to get Gomez to leave his cell for court to no avail.
Ganarial then notified the court bailiff of Gomez’s refusal; the
bailiff subsequently informed him that there was an extraction
order for Gomez. Soon after being informed of this order, Gomez
voluntarily came to court. In the course of his testimony,
Ganarial also said that Gomez was housed in a disciplinary unit
of the jail, that he was waist-chained and handled by a
“movement team” when he was transported to court, that he was
fed through a slot in his cell door, and that on the morning in
question, he responded to Ganarial’s wake-up calls with “fuck
court” multiple times. After the court excused Ganarial, the
defense moved to strike the testimony as irrelevant, which the
court denied.
At the conclusion of the trial, the judge gave the following
instruction to the jury: “If you find that the defendant Gomez
voluntarily absented himself from this trial by refusing to come
to court, you may consider that as a circumstance tending to
prove a consciousness of guilt. That conduct, however, is not
sufficient by itself to prove guilt, and its weight and significance,
if any, are for you to decide.”
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2. Improper Instruction and Admission of Evidence
as to Gomez’s Consciousness of Guilt
a. Forfeiture
Reviewing courts will generally not consider a challenge
to the admissibility of evidence unless there was a “ ‘ “specific
and timely objection in the trial court on the same grounds
sought to be urged on appeal.” ’ ” (People v. Champion (1995) 9
Cal.4th 879, 918, quoting People v. Raley (1992) 2 Cal.4th 870,
892; see Evid. Code, § 353, subd. (a).) The Attorney General
contends that Gomez objected only under Evidence Code section
352, thus forfeiting any other challenges to the admission of
evidence regarding Gomez’s refusal to come to court.
We disagree. The record shows that counsel argued
repeatedly and at length that the admission of the evidence
would constitute state-law error. First, in moving for a mistrial
on the basis of the trial court’s initial statements to the jury,
defense counsel argued, “If a delay was caused by Ruben Gomez,
I can’t think of how that would be admissible in the guilt phase
of trial.” Then, after the court initially expressed its intention
to introduce evidence of Gomez’s delay, defense counsel
responded, “I’d ask the court to reconsider its legal analysis of
the situation,” and began to argue that the delay could not
support an inference of consciousness of guilt before being cut
off by the court. And after the section 402 hearing, defense
counsel had another extended argument over whether Gomez’s
delay showed a consciousness of guilt. At that point, defense
counsel also raised the issue of character evidence, noting that
the evidence was “prejudicial because it’s another form . . . of
the court or the prosecution putting on character evidence when
you can’t really do that.” Finally, after Ganarial’s testimony
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before the jury, counsel moved to “strike his testimony as being
irrelevant to the charges for what Gomez is presently on trial.”
But even if these objections were not specific enough to be
preserved for appeal, Gomez’s claims would still be reviewable.
“Reviewing courts have traditionally excused parties for failing
to raise an issue at trial where an objection would have been
futile . . . .” (People v. Welch (1993) 5 Cal.4th 228, 237.) Here,
the record suggests that the trial court would have rejected any
objection to the testimony. During the initial argument, the
court told defense counsel, “You may have another solution to
this, but I don’t plan to let it go,” and explained that even if it
could not “find a case exactly in point,” it was “going to be a
pioneer.” The trial court added: “I’m not going to let this go.
I’m not going to let the defendants control the court.” Then,
after hearing Ganarial’s testimony at the section 402 hearing,
the court told defense counsel, “I have no doubt but what it
shows a consciousness of guilt.” It was reasonable for defense
counsel to believe, based on the trial court’s statements, that any
further objections regarding the admission of the evidence
would be futile. For this reason too, Gomez’s evidentiary claims
are not forfeited.
Neither is Gomez’s challenge to the jury instruction
forfeited. We have held that objections at trial are not necessary
to preserve appellate review of allegedly erroneous
consciousness of guilt instructions. (See People v. Hannon
(1977) 19 Cal.3d 588, 600; § 1259.) In any case, defense counsel
argued at length that no authority supported the trial court’s
conclusion that Gomez’s refusal to come to court possibly
indicated consciousness of guilt.
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Finally, Gomez has not forfeited his constitutional claims.
In People v. Partida (2005) 37 Cal.4th 428, we explained that,
although a defendant is barred from bringing due process claims
on grounds distinct from those raised at trial, “defendant may
argue an additional legal consequence of the asserted
error . . . is a violation of due process.” (Id. at p. 438.) The
defendant in Partida had unsuccessfully objected at trial to the
admission of evidence under section 352. On appeal, he argued
that the trial court’s rejection of this argument violated his due
process rights; this Court held that his claim was not forfeited.
(Partida, at pp. 438–439.) Here, Gomez argued at trial that the
consciousness of guilt instruction was unsupportable by
evidence of his delay and that this evidence was irrelevant, more
prejudicial than probative, and impermissible character
evidence. On appeal, he argues that the trial judge’s rejection
of these arguments violated his due process rights — that is, he
argues that “an additional legal consequence of the asserted
error” was a violation of his due process rights. (Id. at p. 438.)
As in Partida, “[t]his he may do.” (Id. at p. 439.)
b. Merits
“ ‘It is an elementary principle of law that before a jury can
be instructed that it may draw a particular inference, evidence
must appear in the record which, if believed by the jury, will
support the suggested inference.’ ” (People v. Alexander (2010)
49 Cal.4th 846, 920–921.) “No evidence is admissible except
relevant evidence” (Evid. Code, § 350), and “relevant evidence”
is defined as “evidence . . . having any tendency in reason to
prove or disprove any disputed fact that is of consequence to the
determination of the action” (id., § 210). “The most common
evidentiary device” is the “permissive inference,” “which
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allows — but does not require — the trier of fact to infer the
elemental fact from proof by the prosecutor of the basic one and
which places no burden of any kind on the defendant.” (County
Court of Ulster County, N.Y. v. Allen (1979) 442 U.S. 140, 157
(Ulster County).)
We have not before considered whether a defendant’s brief
refusal to attend trial proceedings may give rise to an inference
of consciousness of guilt. But, as the Attorney General points
out, we have previously held in different circumstances that a
defendant’s absence from trial can support such an inference. In
People v. Carrera (1989) 49 Cal.3d 291, we held that evidence
concerning a defendant’s escape from prison after being arrested
and charged was admissible as indicating a consciousness of
guilt. (Id. at pp. 313–314; see People v. Schafter (1911) 161 Cal.
573 [evidence of a plan to escape prison while awaiting trial was
admissible as showing a consciousness of guilt].) And in People
v. Snyder (1976) 56 Cal.App.3d 195, the Court of Appeal
concluded that after the defendant skipped bail and missed the
guilt phase of his trial, the trial court properly instructed the
jury that it could consider the defendant’s absence in
determining his guilt. (Id. at p. 199; see People v. Sherren (1979)
89 Cal.App.3d 752 [finding no error in the trial court taking
judicial notice that the out-of-custody defendant missed two
pretrial hearings and instructing the jury that flight can show a
consciousness of guilt].) These holdings are reflected in the
pattern jury instruction that says flight, attempted flight,
escape, or attempted escape after the commission of a crime
“may be considered . . . in deciding whether a defendant is guilty
or not guilty.” (CALJIC No. 2.52.)
Gomez argues that his temporary refusal to attend trial is
analogous to other situations in which we have indicated that a
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jury should not be permitted to consider a defendant’s absence.
In People v. Sully (1991) 53 Cal.3d 1195, the defendant yelled at
jurors after they found him guilty of murder and he informed
the court that he would continue to disrupt the proceedings if he
were present. (Id. at p. 1238.) The court subsequently allowed
the defendant to be absent from the penalty phase, which
resulted in a capital sentence. (Id. at p. 1240.) On appeal, we
held that although the trial court informed the jury that the
defendant was voluntarily absent, “[a]n instruction to disregard
defendant’s absence would have been proper on defendant’s
timely request.” (Id. at p. 1241.)
We reaffirmed Sully and extended its holding to the guilt
phase of trial in People v. Medina (1995) 11 Cal.4th 694. There,
the defendant was disruptive during his murder trial’s guilt
phase and was allowed to leave; he chose to remain absent for
the duration of the guilt and penalty phases of the trial. (Id. at
p. 737.) On appeal, he argued that the court on its own initiative
should have instructed the jury to disregard his absence. (Id. at
p. 739.) Citing Sully, we held that the trial court had no duty to
instruct the jury to disregard the defendant’s absence but
suggested that such an instruction would have been proper if
requested. (Id. at p. 740.)
We conclude that this case has more in common with the
Sully line of cases than the cases cited by the Attorney General
involving prison escapes and skipping bail. Unlike the absences
in Carrera or Snyder, Gomez’s brief refusal to attend court was
not an attempt to elude prosecution or punishment. Ganarial’s
testimony suggests that Gomez intended merely to disrupt the
proceedings temporarily. Ganarial recounts Gomez saying,
“They bring me back whenever they want, I’ll go to court
whenever I want.” This disruptive intent is further supported
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by the obscenities that Gomez repeatedly directed at the court
during the delay.
The Attorney General presents two additional theories for
why evidence of Gomez’s delay could support a permissive
inference of consciousness of guilt. First, he cites several cases
that have held that in-custody defendants’ efforts to prevent the
production of evidence could support an inference of
consciousness of guilt. (See, e.g., People v. Watkins (2012) 55
Cal.4th 999, 1027 [defendant’s refusal to participate in a lineup
could indicate consciousness of guilt]; People v. Farnam (2002)
28 Cal.4th 107, 164 [defendant’s refusal to provide a hair or
blood sample]; People v. Ellis (1966) 65 Cal.2d 529, 536–539
[defendant’s refusal to provide a voice sample].) These cases are
supported by a series of pattern jury instructions regarding
efforts to fabricate or suppress evidence. (See CALJIC No. 2.03
[making false or misleading statements about the charged crime
can support an inference of consciousness of guilt]; CALJIC No.
2.04 [trying to fabricate evidence or induce false testimony can
support an inference of consciousness of guilt]; CALJIC No. 2.05
[authorizing someone else to fabricate evidence can support an
inference of consciousness of guilt]; CALJIC No. 2.06
[attempting to suppress adverse evidence can support an
inference of consciousness of guilt].)
These cases and jury instructions concern situations in
which a defendant seeks to interfere with evidence, presumably
out of fear that it would incriminate them. Here, by contrast,
Gomez attempted neither to thwart the production of evidence
nor to fabricate false evidence.
The Attorney General also urges that we apply a line of
cases upholding permissive inferences where the prosecution
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presented evidence of defendants acting in ways that innocent
people would not. For example, we upheld a permissive
inference of consciousness of guilt based on the fact that the
defendant had tattooed the number “187,” the Penal Code
section defining murder, on his forehead after the alleged
murder was committed because “it would be unlikely that an
innocent person would so advertise his connection to murder.”
(People v. Ochoa (2001) 26 Cal.4th 398, 438, abrogated on
another point as recognized in People v. Harris (2008) 43 Cal.4th
1269, 1306; see also People v. Hartsch (2010) 49 Cal.4th 472,
505.) But this case presents a different scenario; there is no
reason to think Gomez’s refusal to come to court was indicative
of his consciousness of guilt. He may simply have been tired; as
Ganarial testified, inmates on trial are woken before 6:00 a.m.
Or he may have been frustrated by the trial process and wanted
to assert more control over it. Cases like Ochoa do not support
the Attorney General’s argument that evidence of Gomez’s delay
was properly admissible to support an inference of
consciousness of guilt.
In sum, the evidence concerning Gomez’s brief refusal did
not have a “tendency in reason to prove” consciousness of guilt;
it therefore should have been excluded as irrelevant. (Evid.
Code, § 210.)
For the same reasons, the admission of this evidence and
the jury instruction violated Gomez’s rights to due process. “The
due process clauses of the federal Constitution . . . require a
relationship between the permissively inferred fact and the
proven fact on which it depends.” (People v. Mendoza, supra, 24
Cal.4th at p. 180.) Permissive inferences are therefore
constitutionally suspect when, “under the facts of the case, there
is no rational way the trier could make the connection permitted
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by the inference.” (Ulster County, supra, 442 U.S. at p. 157.) In
other words, “ ‘[a] permissive inference violates the Due Process
Clause only if the suggested conclusion is not one that reason
and common sense justify in light of the proven facts before the
jury.’ ” (People v. Yeoman (2003) 31 Cal.4th 93, 131, quoting
Francis v. Franklin (1985) 471 U.S. 307, 314–315.) Here, the
trial court’s proposed inference—that Gomez’s brief refusal to
attend trial proceedings reflected consciousness of guilt—was
“ ‘not one that reason and common sense justify in light of the
proven facts before the jury.’ ” (Ibid.) Thus, the trial court’s
decision to admit evidence regarding Gomez’s refusal to attend
court and its jury instruction on consciousness of guilt violated
Gomez’s constitutional rights to due process.
c. Prejudice
Although the trial court erred in allowing the jury to
consider the circumstances of Gomez’s brief absence, we
conclude that the errors were harmless under the applicable
state and federal standards. (People v. Watson (1956) 46 Cal.2d
818, 836 (Watson); People v. Brown (1988) 46 Cal.3d 432, 447–
448 (Brown); Chapman v. California (1967) 386 U.S. 18, 24
(Chapman).) Gomez contends that the trial court’s errors, “by
[their] nature, provided an all-purpose rejoinder . . . to jurors’
doubts about Gomez’s guilt” and “invited jurors [at the penalty
phase] to assuage any lingering doubts about Gomez’s guilt with
the thought that if Gomez himself knew he was guilty, he must
be.” Gomez also argues that Deputy Sheriff Ganarial’s
testimony regarding the manner by which Gomez was held in
custody and brought to court was inherently prejudicial.
But the fact that the jury did not find Gomez guilty on all
counts suggests that the trial court’s errors did not have the
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sweeping effect that Gomez contends. Moreover, the
prosecution did not rely significantly on Gomez’s absence or the
circumstances surrounding that absence and made no mention
of the episode during its closing argument.
Further, in light of the considerable evidence presented
over the months-long trial, we conclude that the trial court’s
errors did not carry material weight at the guilt phase. Salcedo
himself testified that Gomez robbed him at his home. Forensic
evidence gathered from a nearby car placed Gomez in the area
of Raul Luna’s house around the time of his murder, as did the
testimony of Luna’s neighbor, William Owens. Luna’s cellphone
was used to call Robert Dunton’s house, where Gomez had been
staying, and Witness No. 1 testified that Gomez brought the
phone to Dunton’s house, where it was later recovered by the
police. Moreover, both Witness No. 1 and Witness No. 3 testified
as to Gomez’s role in the crimes against Rajendra Patel, and
their accounts were consistent with the forensic evidence
gathered on the freeway on-ramp and from Patel’s car. Witness
No. 1 also testified that Gomez was present at the murders of
Acosta and Dunton, and the testimony of Witness No. 1, Witness
No. 2, and Sergeant Valdemar tended to show that Gomez killed
Acosta and Dunton on behalf of the Mexican Mafia. Detective
Winter also testified that in the course of investigating the
murder of Jesus Escareno, Gomez mentioned “a couple of guys
that were shot and brains were splattered all over the place,”
which matched the description of the Acosta and Dunton
murders. And Gomez’s fingerprints were found on a shotgun
that matched the spent cartridges found at the Acosta and
Dunton murder scene.
We are also not convinced that the trial court’s errors
influenced the jury’s decision at the penalty phase. Gomez was
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accused of committing five murders in less than two months,
and the jury convicted him of committing four of those murders.
The prosecution also offered substantial evidence concerning
additional violent acts committed by Gomez, both before the
crimes at issue here and while in jail awaiting trial for those
crimes, none of which Gomez disputed. In contrast, the defense
presented relatively little mitigation evidence, consisting solely
of expert testimony regarding high security state prisons and
the testimony of his sister.
In light of the foregoing, we conclude that the trial court’s
errors did not affect the jury’s verdicts in this case. (Watson,
supra, 46 Cal.2d at p. 836; Brown, supra, 46 Cal.3d at pp. 447–
448; Chapman, supra, 386 U.S. at p. 24.)
3. Claim of Trial Court Bias
Gomez claims that the trial court not only erred in
admitting the evidence regarding his brief refusal to attend trial
and permitting the jury to infer consciousness of guilt from it,
but also demonstrated improper judicial bias in violation of his
constitutional rights.
As with Gomez’s other claims, the Attorney General
argues that Gomez’s failure to raise the trial court’s bias below
precludes us from considering it on appeal. But we have held
that a defendant’s failure to object to judicial bias “does not
preclude review . . . when objecting would be futile.” (People v.
Sturm (2006) 37 Cal.4th 1218, 1237.) In particular, we reasoned
in Sturm that “the evident hostility between the trial judge and
defense counsel” left defense counsel in the fundamentally
unfair position of either objecting to the judicial misconduct and
risking retaliation against his client or sacrificing the claim on
review. (Ibid.)
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The record reveals a similarly unfair choice for defense
counsel here. As described above, the trial judge was clear in
his intent to present the evidence concerning Gomez’s refusal to
attend court. In response to defense counsel’s argument that
the brief absence was irrelevant to Gomez’s consciousness of
guilt, the trial judge referred to a time he had jailed a lawyer
after trial on contempt charges and then said, “All I’m saying is
that you challenged me, and I’m responding to the challenge.”
He continued, “You did move for a mistrial making it a major
issue . . . . This is what I’m doing.” Given the trial court’s
expressed intentions, it is reasonable to believe that any
objection concerning judicial bias would have futile. Thus,
Gomez has not forfeited his claim that the trial court failed to
serve as a neutral arbiter.
Nevertheless, we reject the claim on its merits. We have
explained that trial judges violate due process when they
“ ‘officiously and unnecessarily usurp[] the duties of the
prosecutor’ ” and appear to be “ ‘allying . . . with the
prosecution.’ ” (People v. Clark (1992) 3 Cal.4th 41, 143 (Clark),
quoting People v. Campbell (1958) 162 Cal.App.2d 776, 787.)
But in reviewing such claims, our role “ ‘is not to determine
whether the trial judge’s conduct left something to be desired,
or even whether some comments would have been better left
unsaid. Rather, we must determine whether the judge’s
behavior was so prejudicial that it denied [the defendant] a fair,
as opposed to a perfect, trial.’ ” (People v. Snow (2003) 30 Cal.4th
43, 78.)
Although we are troubled by the trial judge’s insistence on
being “a pioneer” and his encouragement of Ganarial’s
testimony, his actions do not amount to a constitutional
violation. To be sure, the trial judge might have “ ‘officiously
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and unnecessarily usurp[ed] the duties of the prosecutor’ ” if he
had introduced evidence as to Gomez’s delay on behalf of the
court, as originally discussed. (Clark, supra, 3 Cal.4th at
p. 143.) But the judge did not do so here. Indeed, he recognized
the problems that would arise if the court called Ganarial, so the
prosecution agreed to call Ganarial to testify before the jury as
a prosecution witness.
We also disagree with Gomez’s claim that the trial court
improperly arranged for the presentation of Ganarial’s
testimony “in an effort to punish Gomez for his disrespect to the
court.” We cannot say, based on this record, that the trial court
admitted the evidence and instructed the jury on consciousness
of guilt out of a desire to harm or disadvantage Gomez. Rather,
the trial court appears to have acted pursuant to its duty to
control the trial proceedings (§ 1044) and under the erroneous
but honest belief that a defendant’s refusal to attend trial was
relevant evidence as to a defendant’s consciousness of guilt.
In sum, we reject Gomez’s claim that the trial court failed
to serve as a neutral arbiter. In so doing, we emphasize that
although Evidence Code section 775 permits trial courts to call
witnesses and interrogate them on its own motion, judges
should resort to this power only where they “ ‘ “believe[] that
[they] may fairly aid in eliciting the truth, in preventing
misunderstanding, in clarifying the testimony or covering
omissions, in allowing a witness his right of explanation, and in
eliciting facts material to a just determination of the cause.” ’ ”
(People v. Hawkins (1995) 10 Cal.4th 920, 948.) Although
“ ‘[s]ection 1044 . . . vests the trial court with broad discretion to
control the conduct of a criminal trial’ ” (People v. Bryant, Smith
and Wheeler (2014) 60 Cal.4th 335, 386, quoting People v.
Calderon (1994) 9 Cal.4th 69, 74–75), such discretion must be
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exercised impartially in order to protect defendants’
constitutional rights to due process and to a fair trial. Trial
courts may employ different methods in order to ensure that a
disruptive defendant does not derail a trial; for example, as it
did here, the court may impose a standing extraction order to
compel a defendant to attend proceedings. What a trial court
cannot do is permit the jury to infer guilt in a manner not
countenanced by law.
C. Admission of Expert Testimony on the Mexican
Mafia
Gomez challenges the expert testimony of Sergeant
Richard Valdemar regarding the Mexican Mafia as more
prejudicial than probative, and as violative of his constitutional
rights to due process and a fair trial. Although Gomez concedes
that “some gang evidence may have probative value where a
crime is alleged to be gang-related and the gang evidence is
offered to prove motive,” he claims that Valdemar’s “testimony
about the Mexican Mafia and about shocking crimes committed
on its behalf . . . ranged far beyond any proper purpose, serving
only to instill fear [among the jurors].” As evidence of the
testimony’s inflammatory nature, Gomez points to notes passed
by members of the jury to the trial court asking whether the
jurors were “at risk” of gang violence and expressing “concern[]
about possible harassment or problems after [the jurors] are
dismissed once the verdicts are read.”
We have previously noted that “[e]vidence 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
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applying force or fear, or other issues pertinent to guilt of the
charged crime. [Citations.]” (People v. Hernandez (2004) 33
Cal.4th 1040, 1049.) But, “even where gang membership is
relevant, because it may have a highly inflammatory impact on
the jury trial courts should carefully scrutinize such evidence
before admitting it.” (People v. Williams, supra, 16 Cal.4th at
p. 193.) On appeal, Gomez does not argue that the trial court
should have excluded Valdemar’s testimony in its entirety.
Rather, Gomez contends that portions of the testimony were not
relevant to establish Valdemar’s expertise or to prove the
prosecution’s theory that Gomez killed Acosta and Dunton on
the Mexican Mafia’s behalf.
Assuming Gomez did not forfeit his claims by failing to
make more timely or specific objections below (see People v.
Valdez (2012) 55 Cal.4th 82, 129, fn. 30 [“ ‘Because the question
whether defendants have preserved their right to raise this
issue on appeal is close and difficult, we assume [they] have
preserved their right, and proceed to the merits.’ ”]), we conclude
that portions of Valdemar’s testimony should have been
excluded as irrelevant, but that the admission of this testimony
did not affect the verdicts.
First, we agree with Gomez that parts of Valdemar’s
testimony offered to prove Valdemar’s “expertise” on gangs were
more prejudicial than probative, and should have been excluded.
Gomez points specifically to Valdemar’s testimony that “just
about every crime that you can imagine that’s committed on the
outside in some way was committed [by gang members] on the
inside of the [county] jail facility,” including “assaults, battery,
murder, the making of contraband weapons, the transportation,
sales and use of narcotics, robbery, extortion and rape.” Gomez
further challenges Valdemar’s statement that “a small minority,
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normally members of hard core gangs were creating much of the
problems that we were experiencing, so by isolating these people
and placing them in special units, we eliminated a lot of the
assaults that were going on.”
This evidence went well beyond its stated purpose of
demonstrating that Valdemar had “contact with gang members
in the [county] jail,” which had already been established by
Valdemar’s earlier testimony describing the nature of his work
and his “interaction with gang members in the county jail while
[he was] a deputy assigned to the county jail.” Moreover, to the
extent that the Attorney General contends this evidence was
necessary to help the jury “understand the complex rules of the
Mexican Mafia” and to “explain why [Gomez] would comply with
Mexican Mafia orders,” we disagree that these portions of
Valdemar’s testimony were more than “tangentially relevant”
(People v. Cox (1991) 53 Cal.3d 618, 660, disapproved of on other
grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22)
to that purpose. This portion of Valdemar’s testimony discussed
general gang activity in county jails rather than the specific
activity of the Mexican Mafia outside of those jails.
We further agree with Gomez that Valdemar’s testimony
regarding “the history of the Mexican Mafia, in particular where
and when it started and how it started,” as well as Valdemar’s
statement that a certain movie “fairly accurately depicts the
early years of the Mexican Mafia,” were not “ ‘necessary to
furnish the jury a context for understanding [the prosecution’s]
theory’ ” (People v. Masters (2016) 62 Cal.4th 1019, 1063,
quoting People v. Roberts (1992) 2 Cal.4th 271, 299) regarding
the Acosta and Dunton murders. That the prosecution believed
that Gomez murdered Acosta and Dunton on behalf of the
Mexican Mafia did not open the door to any and all evidence
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regarding the gang. (Cf. Masters at p. 1064 [finding no abuse of
discretion where the trial court admitted gang-related evidence
pertinent to a particular crime but “made a painstaking effort to
exclude [irrelevant or unduly prejudicial] evidence”].) In the
absence of any apparent connection between the testimony
regarding the early history of the Mexican Mafia and the Acosta
and Dunton murders several decades later, and in light of the
generally inflammatory nature of this gang-related evidence,
the challenged testimony should have been excluded.
But we decline to find that the trial court erred by
admitting the other portions of Valdemar’s testimony that
Gomez challenges on appeal. The testimony indicating that
murder was the primary topic of conversation at Mexican Mafia
meetings surveilled by Valdemar, and the testimony suggesting
that there have been “several instances . . . in the history of the
Mexican Mafia” of “a brother kill[ing] another,” was relevant to
explain why Gomez would kill Acosta and Dunton, with whom
he occasionally lived. Moreover, in light of our conclusion in
People v. Gonzales (2006) 38 Cal.4th 932, 944–947 (Gonzales),
that the trial court did not err by admitting expert testimony
opining generally on the possibility that gang members may
intimidate witnesses and commit perjury, we similarly find no
error in the trial court’s admission of testimony suggesting that
“people will come into court and lie for [a Mexican Mafia]
associate or . . . member” and “that the [Mexican Mafia] expects
that loyal gang members would use any means possible to delay,
obstruct or reverse any kind of a criminal prosecution against
its members.” Much like the expert who testified in Gonzales,
the expert here did not opine about any individual witness’s
credibility, but rather focused his testimony on the Mexican
Mafia’s general reputation.
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In any event, we also disagree with Gomez that the
admission of any of the challenged testimony affected the
outcome of the case. Gomez argues that the jury relied on the
testimony as impermissible character evidence and that the
testimony caused the jurors to decide the entire case, including
Gomez’s punishment, based on fear. But, as Gomez concedes,
the court properly admitted evidence suggesting that Gomez
killed Acosta and Dunton on behalf of the Mexican Mafia, so the
jury would have learned about the gang and at least one of its
violent practices even if the challenged testimony had been
excluded. As for Gomez’s contention that the testimony created
an “atmosphere of fear” among the jurors such that they acted
out of “concern for their own safety,” Gomez fails to explain how
the jurors’ deliberations or verdicts at the guilt phase or the
penalty phase were influenced by fear or purported safety
concerns, and we cannot readily discern how the outcome was
affected ourselves. In light as well of the substantial evidence
presented during both the guilt and the penalty phase (see ante,
at pp. 67–68), we conclude that the trial court’s error does not
warrant reversal. (Watson, supra, 46 Cal.3d at p. 836;
Chapman, supra, 386 U.S. at p. 24.)
D. Admission of Acosta Note
Gomez claims that the trial court’s admission of the note
left by Acosta to his wife violated Gomez’s rights under the
confrontation clause of the Sixth Amendment to the federal
Constitution. (Crawford v. Washington (2004) 541 U.S. 36, 38
(Crawford).) In his closing argument, the prosecutor described
this note as “the testimony of Robert Acosta from his grave” and
argued that Acosta wrote it to inform the reader that he was
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going to Dunton’s apartment for a meeting with Grajeda, “a
known Mexican Mafia associate.”
The Attorney General argues that Gomez forfeited his
confrontation clause claim because he objected only on hearsay
grounds, relying primarily on People v. Riccardi (2012) 54
Cal.4th 758, 827, fn. 33. But we overruled Riccardi on this point
in People v. Rangel (2016) 62 Cal.4th 1192 (Rangel), where we
held that a defendant in a case tried before Crawford, like
Gomez, “does not forfeit a Crawford challenge by failing to raise
a confrontation clause objection at trial.” (Rangel, at p. 1215;
see People v. Clark (2016) 63 Cal.4th 522, 563.)
In Crawford, the high court held that the Sixth
Amendment prohibits the admission of a witness’s “testimonial”
out-of-court statements offered for their truth unless the
witness is unavailable and the defendant had a prior
opportunity for cross-examination. (Crawford, supra, 541 U.S.
at pp. 59–60.) There is no dispute that Acosta was unavailable
at trial and that Gomez had no prior opportunity to cross-
examine him. Accordingly, Gomez’s confrontation clause claim
turns solely on the question whether the Acosta note was
testimonial.
As we recently observed, “[t]hroughout its evolution of the
Crawford doctrine, the high court has offered various
formulations of what makes a statement testimonial but has yet
to provide a definition of that term of art upon which a majority
of justices agree.” (People v. Sanchez (2016) 63 Cal.4th 665,
687.) Nevertheless, “we have discerned two requirements.
First, ‘the out-of-court statement must have been made with
some degree of formality or solemnity.’ [Citation.] Second, the
primary purpose of the statement must ‘pertain[] . . . in some
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fashion to a criminal prosecution.’ [Citations.]” (People v. Leon
(2015) 61 Cal.4th 569, 603, quoting People v. Lopez (2012) 55
Cal.4th 569, 581–582.) More specifically, the primary purpose
test asks whether the statements at issue “are given in the
course of an interrogation or other conversation whose
‘ “primary purpose . . . is to establish or prove past events
potentially relevant to later criminal prosecution.” ’ (Rangel,
supra, 62 Cal.4th at p. 1214.) In its most recent application of
the primary purpose test, the high court cautioned that
“[s]tatements made to someone who is not principally charged
with uncovering and prosecuting criminal behavior are
significantly less likely to be testimonial than statements given
to law enforcement officers.” (Ohio v. Clark (2015) __ U.S. __
[135 S.Ct. 2173, 2182]; see also Sanchez, supra, 63 Cal.4th at
p. 694, fn. 19.)
We conclude that the Acosta note was not testimonial
because the record does not establish that Acosta left the note
for his wife for purposes of criminal investigation or prosecution.
According to Gomez, the fact that Acosta left the note in a Bible,
memorialized the date and time, and signed the note with his
full name supports a finding that the statements in the note
were testimonial “because they were made with the intent that
they would be communicated to law enforcement and used in
court.” But there are equally plausible alternative explanations
that do not suggest a testimonial intent. Acosta may have
simply wanted his wife to know what had happened if he did not
return from the meeting, or he may have wanted her to pass the
note along to associates who could retaliate against Gomez and
Grajeda. That the note referred to Grajeda and Dunton by their
“street names” rather than their full names is an additional
reason to believe that the note was not specifically intended for
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law enforcement. This is not a scenario where the evidence
clearly indicates that the recipient was merely a conduit for
conveying the declarant’s statements to the police. (Cf. State v.
Jensen (2007) 299 Wis.2d 267, 286 [a letter addressed to police
and given to a friend with directions to send to police if
“ ‘anything happen[ed]’ ” to her was testimonial].) In view of the
high court’s guidance that statements “made to someone who is
not principally charged with uncovering and prosecuting
criminal behavior are significantly less likely to be testimonial”
(Ohio v. Clark, supra, 135 S.Ct. at p. 2182), we conclude that the
Acosta note was not testimonial and therefore reject Gomez’s
confrontation clause claim.
Even if the Acosta note were testimonial, any error was
harmless beyond a reasonable doubt. (Delaware v. Van Arsdall
(1986) 475 U.S. 673, 680; Chapman, supra, 386 U.S. at p. 24.)
The note does not mention Gomez, and there is no dispute that
Gomez participated in the killing of Acosta and Dunton.
Nevertheless, Gomez contends that the Acosta note was the only
evidence corroborating Witness No. 1’s testimony that Grajeda
was present at Dunton’s apartment; without this evidence,
Gomez continues, the prosecution’s theory that Gomez
committed a premeditated and deliberate killing at the behest of
Grajeda would have been severely undermined. But, as
explained above (see ante, at pp. 53–54), there is significant
evidence showing that Gomez murdered Acosta and Dunton as
part of a calculated plan on behalf of the Mexican Mafia, none of
which relies on the Acosta note. By contrast, little if any
evidence indicates that Acosta and Dunton attempted to attack
Gomez first and that Gomez shot them out of fear. Gomez
suffered no prejudice even assuming that the admission of the
Acosta note was error under Crawford.
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E. Griffin Error
In his closing argument, the prosecutor discussed evidence
that corroborated Witness No. 1’s testimony implicating Gomez
in the Escareno murder. In particular, the prosecutor pointed
to Detective Winter’s trial testimony that Gomez “knew facts of
the case which had not been revealed to the press” — namely,
that the victims’ “wallets were missing.” He noted that the
defense had presented only a couple of news articles and that
“those articles don’t give Ruben Gomez enough information to
have told this to Detective Winter.” The prosecutor then said
“there’s something even more important”: “There is absolutely
no evidence that Ruben Gomez saw those articles. There is
absolutely no evidence that Ruben Gomez read those articles.
There is absolutely no evidence that Ruben Gomez reads any
newspaper.”
Gomez contends that the prosecutor’s comments violated
Griffin v. California (1965) 380 U.S. 609 (Griffin). Griffin held
that “the prosecution may not comment upon a defendant’s
failure to testify on his or her own behalf. Its holding does not,
however, extend to bar prosecution comments based upon the
state of the evidence or upon the failure of the defense to
introduce material evidence or to call anticipated witnesses.”
(People v. Bradford (1997) 15 Cal.4th 1229, 1339 (Bradford); see
People v. Brady (2010) 50 Cal.4th 547, 565–566.) At the same
time, “we have held that a prosecutor may commit Griffin error
if he or she argues to the jury that certain testimony or evidence
is uncontradicted, if such contradiction or denial could be
provided only by the defendant, who therefore would be required
to take the witness stand.” (Bradford, at p. 1339.)
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The prosecutor’s comments do not amount to Griffin error.
The prosecutor did not refer to Gomez’s decision not to testify.
Rather, the prosecutor commented that the defense had failed
“to introduce material evidence” — that is, evidence that Gomez
had read about the Escareno murder in the newspaper.
(Bradford, supra, 15 Cal.4th at p. 1339.) Although Gomez
argues that only his own testimony could have contradicted the
prosecutor’s claim that Gomez did not read the articles or
newspapers in general, Gomez could have presented other
evidence to that effect. As the trial court explained, “[t]here
could, for example, have been evidence that [Gomez] subscribed
to the San Pedro Pilot, that he was an avid reader and others
around him, anyone associated with him knew that he read the
paper and commented to others about reading.” Accordingly,
the prosecutor did not violate Griffin by referring to Gomez’s
failure to introduce such evidence.
F. Admonitions Regarding Notetaking and Read-
back of Testimony
Gomez argues that by sternly advising the jury against
“not taking enough notes,” the trial court “elevated the
importance of juror notetaking over observation of the
witnesses” and therefore interfered with the jury’s “unique and
exclusive responsibility and power to evaluate the credibility of
witnesses.” Gomez highlights a number of admonitions by the
trial judge, including that he would be “very discouraged” to “see
jurors just sitting there with their notes in their laps . . . and it
won’t be recorded in your memories because you aren’t trying to
take those notes”; that the “thing that infuriates [the trial court]
the most about jurors is when they first go in to deliberations
and the first hour or two [the court] get[s] a note sent out saying
[the jury] want[s] a reread of the testimony . . . ”; that jurors
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should “take a lot of notes”; and that taking notes was part of
their “job in recording the information.” He also suggests that
the trial court tried to discourage the read-back of testimony by
not only failing to state expressly that the jury had a right to
rehear testimony, but also noting that any such requests could
not be accommodated immediately. Gomez says the trial court’s
actions violated section 1138 as well as the right to due process,
the right to a fair trial, the right to present a defense, the right
to counsel, the right to a jury trial, the right to confront
witnesses against him, and the right to a reliable and
unanimous verdict in a capital case.
We begin by noting that because Gomez did not object to
the trial court’s admonitions or request a clarifying instruction
at trial, his claims are forfeited on appeal. (People v. Livingston
(2012) 53 Cal.4th 1145, 1168–1169.) In any case, the trial
court’s various statements about the importance of taking notes
and about the read-back of testimony did not amount to error.
Although section 1137 approves of the practice of juror
notetaking, we have cautioned that notetaking implicates
certain risks, namely, that “ ‘more significance will be placed by
the jurors on their notes . . . than on their own independent
recollection. The notes may accentuate irrelevancies and ignore
more substantial issues and evidence. . . . [T]he juror with the
best notes will unduly influence and possibly mislead the other
jurors.’ [Citation.] Furthermore, note-taking may ‘distract the
jurors’ attention from the proceedings. . . . While taking notes,
the jurors may also not pay sufficient attention to the behavior
of witnesses and may thus be unable to properly assess their
credibility.’ ” (People v. Whitt (1984) 36 Cal.3d 724, 746, quoting
People v. DiLuca (1982) 85 App.Div.2d 439, 444–445 [448
N.Y.S.2d 730, 734].) In Whitt, we acknowledged that other
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jurisdictions “found error in [a court’s] failure to give [a]
cautionary instruction” regarding the risks of note taking, but
we merely opined that giving such an instruction is “the better
practice.” (Whitt, at p. 747.)
We have since held that the trial court is not required to
give such an instruction. (People v. Marquez (1992) 1 Cal.4th
553, 578.) Here the trial court’s warnings, in context, could not
have been understood as an instruction that jurors should
prioritize notetaking at the expense of their duty to make
credibility determinations. To the contrary, the trial court
emphasized that the purpose of notetaking was to “refresh your
own recollections of what goes on during the trial” and to help
the jury “keep all of this organized in your minds.” It also
“caution[ed]” that jurors should “not . . . take so many notes that
[they]’re not watching and listening as the evidence is being
presented,” that they “should watch the witness while they’re
testifying as well,” and that they should not “have [their] head[s]
buried in [their] notes all the time.”
The court’s emphasis on notetaking did not direct the jury
to elevate notetaking over observing the witnesses and evidence,
but rather served to caution the jury that notetaking can
supplement credibility determinations and ensure that jury
deliberations would not be impeded by needless requests for the
read-back of testimony. Nor do we read the court’s statements
as discouraging the read-back of testimony; there was no risk
that the jurors were unaware that they could request the read-
back of testimony if they decided that they needed it. The trial
court did not err.
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G. Alleged Instructional Errors
1. Instructions on Deciding Degree of Murder
The trial court instructed the jury that if it found Gomez
guilty of murder, it had to determine whether the murder was
of the first or second degree. The trial court then instructed the
jury with the 1996 version of CALJIC No. 8.71 as follows: “If
you are convinced beyond a reasonable doubt and unanimously
agree that the crime of murder has been committed by a
defendant, but you unanimously agree that you have a
reasonable doubt whether the murder was of the first or of the
second degree, you must give the defendant the benefit of that
doubt and return a verdict fixing the murder as of the second
degree.”
Gomez claims that the trial court unconstitutionally
skewed the jurors’ deliberations toward first degree murder by
giving this instruction because it presents first degree murder
as “the default verdict . . . unless the jurors unanimously agree[]
that they ha[ve] a reasonable doubt about the degree of murder.”
He argues that this error was compounded by the trial court’s
failure to give CALJIC No. 17.11, which instructs the jury that
if you “have a reasonable doubt as to whether [the crime] is of
the first or second degree, you must find [the defendant] guilty
of that crime in the second degree.”
In People v. Moore (2011) 51 Cal.4th 386, we said “the
better practice is not to use the 1996 revised version[] of CALJIC
[No.] 8.71 . . . , as the instruction[] carr[ies] at least some
potential for confusing jurors about the role of their individual
judgments in deciding between first and second degree murder.”
(Id. at p. 411.) But “[w]e did not hold in Moore that the 1996
revised version[] of CALJIC [No.] 8.71 . . . [was] erroneous.”
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(People v. Salazar (2016) 63 Cal.4th 214, 246 (Salazar).) Rather,
we declined to address the merits of defendant’s claim because
we concluded any error was harmless beyond a reasonable
doubt. (Moore, at p. 412.)
More recently, we rejected a defendant’s challenge to the
use of the 1996 version of CALJIC No. 8.71, concluding that “[n]o
logical reading of the instructions leads to a compelled verdict of
first degree murder.” (Salazar, supra, 63 Cal.4th at p. 247.) We
noted that the jury was also given CALJIC No. 17.40, which
states that each juror has a duty to decide the case for herself,
and CALJIC No. 8.74, which provides: “ ‘Before you may return
a verdict in this case, you must agree unanimously not only as
to whether the defendant is guilty or not guilty, but also if you
should find him guilty of an unlawful killing, you must agree
unanimously as to whether he was guilty of murder of the first
degree, murder of the second degree, or voluntary
manslaughter.’ ” (Salazar, at p. 247.) Thus, even if the
language in CALJIC No. 8.71 was confusing standing alone, we
held that “the instructions were not erroneous in this case when
considered with the rest of the charge to the jury.” (Id. at
p. 248.)
For similar reasons, we conclude that no such
instructional error occurred here. As in Salazar, the trial court’s
other instructions dispelled any potential confusion that may be
present in CALJIC No. 8.71. (See People v. Delgado (2017) 2
Cal.5th 544, 573–574 [“We have long held that ‘the correctness
of jury instructions is to be determined from the entire charge of
the court, not from a consideration of parts of an instruction or
from a particular instruction.’ ”].) In this case, the trial court
instructed the jury with CALJIC No. 17.40, which emphasizes
that individual jurors should not “decide any question in a
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particular way because a majority of the jurors or any of them
favor that decision.” And the jury was also instructed with
CALJIC No. 8.74, which makes clear that the jury must “agree
unanimously” as to the degree of murder before returning a
verdict. We thus reject Gomez’s claim.
2. CALJIC No. 17.41.1
Gomez argues that the trial court should not have
instructed the jury with CALJIC No. 17.41.1 because doing so
violated his federal constitutional rights. The instruction
provided: “The integrity of a trial requires that jurors at all
times during their deliberations conduct themselves as required
by these instructions. Accordingly should it occur that any juror
refuses to deliberate or expresses an intention to disregard the
law or to decide the case based on penalty or punishment or any
other improper basis, it is the obligation of the other jurors to
immediately advise the court of the situation.”
Gomez concedes that although we disapproved the use of
CALJIC No. 17.41.1 in future trials in 2002 (see People v.
Engelman (2002) 28 Cal.4th 436, 449), we have repeatedly held
“that giving the instruction, although ill-advised, does not
violate a defendant’s constitutional rights” (People v. Souza,
supra, 54 Cal.4th at p. 121; see also People v. Nelson (2016) 1
Cal.5th 513, 553–555; People v. Brady (2010) 50 Cal.4th 547,
587; People v. Wilson (2008) 44 Cal.4th 758, 805–806). Gomez
provides no persuasive reason for us to revisit that precedent
here.
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3. Series of Guilt Phase Instructions that Allegedly
Undermine the Requirement of Proof Beyond a
Reasonable Doubt
Gomez contends that a series of standard guilt phase
instructions (CALJIC Nos. 2.01, 2.21.2, 2.22, 2.27, 2.51, 8.20,
8.83) unconstitutionally undermined and diluted the
requirement of proof beyond a reasonable doubt.
Acknowledging that we have previously rejected such claims,
Gomez invites us to reconsider our prior holdings. (See, e.g.,
People v. Whalen (2013) 56 Cal.4th 1, 70; People v. Friend (2009)
47 Cal.4th 1, 53; People v. Howard (2008) 42 Cal.4th 1000, 1024–
1026.) We decline to do so. As we have explained, “[e]ach of
these instructions ‘is unobjectionable when, as here, it is
accompanied by the usual instructions on reasonable doubt, the
presumption of innocence, and the People’s burden of proof.’ ”
(People v. Kelly (2007) 42 Cal.4th 763, 792, quoting People v.
Nakahara (2003) 30 Cal.4th 705, 715.)
4. Kidnapping Instruction
The jury convicted Gomez of kidnapping Patel and found
true the kidnapping special circumstance. Gomez argues that
the trial court provided an erroneous instruction regarding the
element of asportation, violating his constitutional rights to due
process.
Section 207, subdivision (a) provides in relevant part:
“[e]very person who forcibly . . . steals or takes, or holds,
detains, or arrests any person in this state, and carries the
person . . . into another part of the same county is guilty of
kidnapping.” (See People v. Morgan (2007) 42 Cal.4th 593, 605
(Morgan).) Although the kidnapping statute does not specify
any minimum distance that the victim must be carried, we have
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interpreted it to require movement of a “substantial distance”
(id. at p. 606), not “a distance that is ‘trivial’ ” (People v.
Stanworth (1974) 11 Cal.3d 588, 601).
Before 1999, this “asportation standard [was] exclusively
dependent on the distance involved.” (People v. Martinez (1999)
20 Cal.4th 225, 233; see People v. Caudillo (1978) 21 Cal.3d 562,
572–574, overruled by Martinez, at p. 229.) But in Martinez, we
held that the jury should instead consider the “totality of the
circumstances” in determining whether the victim was moved
for a “substantial distance,” including factors like “whether that
movement increased the risk of harm above that which existed
prior to the asportation, decreased the likelihood of detection,
and increased both the danger inherent in a victim’s foreseeable
attempts to escape and the attacker’s enhanced opportunity to
commit additional crimes.” (Martinez, at p. 237; see also People
v. Castaneda (2011) 51 Cal.4th 1292, 1319.) We further held
that the Martinez standard “could not be applied retroactively,
because it effected an unforeseeable enlargement of the factual
basis for determining what constitutes a ‘substantial distance’
under the kidnapping statute, and the defendant did not have
fair warning of the enlargement.” (Castaneda, at p. 1319.)
Although the kidnapping here occurred in 1997, the trial
court instructed the jury with the 1999 version of CALJIC No.
9.50, which incorporates the Martinez asportation standard. As
the Attorney General concedes, this was error. Nevertheless, we
agree with the Attorney General that the error was harmless
beyond a reasonable doubt. Whether Patel had been moved a
substantial distance while he was alive was never in dispute at
trial; the only disputed question was the identity of the
kidnapper. After the close of evidence, the prosecutor “invite[d]
the defense to concede that Patel was kidnapped so that you
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don’t have to spend any appreciable time on that issue. That
would leave only the issue of who was the kidnapper for you to
decide.” In his argument, defense counsel said, “I will concede
there was a robbery, I will concede it was a murder, and I will
concede it was a kidnapping. . . . The issue, as I believe [the
prosecutor] concedes himself, is whether or not [Gomez] is the
person that committed the murder, committed a robbery and
committed the kidnapping of Mr. Patel.”
Moreover, defense counsel’s concession was reasonable in
light of the evidence: Patel had been locked in the trunk of his
car, and his body was found on a freeway on-ramp that was not
easily accessible on foot. The medical examiner testified that
Patel would have been able to walk or run 75 to 90 feet after
receiving the deep stab wound to his chest, but not after
receiving the gunshot wound to his head; consistent with this
testimony, the police found a trail of blood extending 75 feet
from Patel’s body, as well as spent shell casings as close as three
feet from Patel’s body and as far as 90 to 100 feet away from his
body. In contrast, there is no evidence tending to show that
Patel encountered his killer on the freeway on-ramp, as Gomez
suggests. We thus conclude that the trial court’s instructional
error was harmless beyond a reasonable doubt.
5. Alleged Vagueness of Definition of Simple
Kidnapping
As noted above, we have interpreted section 207 to require
movement of a “substantial distance” (Morgan, supra, 42
Cal.4th at p. 606), not “a distance that is ‘trivial’ ” (id. at p. 607).
The jury here was thus instructed that, in order to find Gomez
guilty of kidnapping, it must find that “[t]he movement of the
other person in distance was substantial in character.”
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Gomez claims that this “substantial distance” element
was unconstitutionally vague and thus warrants reversal of his
conviction and sentence. Gomez admits that we rejected this
precise argument in Morgan, and we do so again here. As we
explained in Morgan, “case law in effect at the time of
defendant’s offense provided adequate guidance as to what
distances would be considered ‘substantial’ under the simple
kidnapping statute.” (Morgan, supra, 42 Cal. 4th at p. 607,
citing People v. Caudillo (1978) 21 Cal.3d 562, 573–574; People
v. Green (1980) 27 Cal.3d 1, 67; People v. Stender (1975) 47
Cal.App.3d 413, 423.) Because Gomez “had fair notice of what
was and what was not proscribed under our statute for simple
kidnapping at the time of his offense,” his vagueness claim fails.
(Morgan, at p. 607.)
IV. PENALTY PHASE ISSUES
A. Jury’s Consideration of Evidence Relating to the
Escareno Murder
After the close of the prosecution’s case at the guilt phase,
the defense moved to dismiss the Escareno charges for
insufficient evidence and enter a judgment of acquittal pursuant
to section 1181.1. The trial court denied the motion. After the
jury deadlocked on the Escareno counts, the trial court declared
a mistrial as to those counts. (The prosecution ultimately
dismissed the Escareno counts at the conclusion of the trial.
(See § 1385.))
Before the penalty phase closing arguments, the trial
court told the jury that it wanted “to mention something special
about counts 6 and 7, or 6 in particular, the allegation of the
murder of Jesus Escareno. One thing I want to make clear to
you in advance is that that is no longer one of the circumstances
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of the crime.” The trial court continued: “[T]hose jurors who
concluded beyond a reasonable doubt that the defendant was
guilty of the murder of Mr. Escareno are permitted to consider
that as an aggravating factor under factor (b), prior acts of
violence. The other jurors that did not find that to be true
beyond a reasonable doubt cannot consider that as an
aggravating factor. [¶] So as you discuss aggravating and
mitigating circumstances, those of you that believe that the
evidence established beyond a reasonable doubt that Mr. Gomez
murdered Jesus Escareno can consider that as an aggravating
factor. You cannot require or insist or suggest that jurors that
did not reach that conclusion beyond a reasonable doubt can
consider that as an aggravating factor.” (See § 190.3, subd. (b).)
During his penalty phase closing argument, the
prosecutor said: “I respectfully submit to you that in considering
the circumstances of the crime that bear on what penalty
[Gomez] should receive, look at the frequency with which he
killed. He killed five people in 37 days. . . . [¶] You must agree
unanimously on the penalty, but not on which aggravating
circumstances are true. [¶] And therefore as the court already
pointed out, for those of you who do not — did not believe that
we proved Escareno’s murder beyond a reasonable doubt, then
you may not consider that he killed five people in 37 days, you
are limited to considering that he killed four people in 37 days.
Those of you who believe that we did prove Ruben Gomez
murdered Jesus Escareno beyond a reasonable doubt, you may
consider as an aggravating circumstance that he killed five
people in 37 days.” Defense counsel did not refer to the Escareno
killing in his closing argument.
In its final written penalty phase instructions, the court
instructed the jury: “Evidence has been introduced for the
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purpose of showing that the defendant has committed the
following criminal acts: [¶] . . . Murder of Mr.
Escareno . . . Before a juror may consider any criminal acts as
an aggravating circumstance in this case, a juror must first be
satisfied beyond a reasonable doubt that the defendant did, in
fact, commit the criminal acts. A juror must — may not consider
any evidence of any other criminal acts as an aggravating
circumstance. [¶] It is not necessary for all jurors to agree. If
any juror is convinced beyond a reasonable doubt that the
criminal activity occurred, that juror may consider that activity
as a fact in aggravation. If a juror is not so convinced, that juror
must not consider that evidence for any purpose. [¶] As to the
unadjudicated criminal acts [¶] . . . The defendant is presumed
to be innocent until the contrary is proven beyond a reasonable
doubt.”
Gomez advances two claims arising out of the trial court’s
decision to permit individual jurors to consider evidence relating
to the Escareno murder at the penalty phase. First, he claims
the trial court erred in denying his section 1118.1 motion to
dismiss the Escareno charges for insufficient evidence. If the
trial court had properly granted that motion, Gomez argues, no
jurors could have considered the Escareno evidence when
determining whether to impose the death penalty. Second, he
claims that the trial court erred in failing to instruct the penalty
phase jurors that they could not consider the Escareno murder
as an aggravating factor unless they found that the accomplice
testimony was corroborated by independent evidence. We
address each claim in turn.
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1. Denial of Section 1118.1 Motion
Section 1118.1 provides that in a criminal jury trial, “the
court on motion of the defendant or on its own motion, at the
close of the evidence on either side and before the case is
submitted to the jury for decision, shall order the entry of a
judgment of acquittal of one or more of the offenses
charged . . . if the evidence then before the court is insufficient
to sustain a conviction of such offense or offenses on appeal.”
“ ‘The standard applied by a trial court in ruling upon a motion
for judgment of acquittal pursuant to section 1118.1 is the same
as the standard applied by an appellate court in reviewing the
sufficiency of the evidence to support a conviction, that is,
“whether from the evidence, including all reasonable inferences
to be drawn therefrom, there is any substantial evidence of the
existence of each element of the offense charged.” ’ ” (People v.
Stevens (2007) 41 Cal.4th 182, 200, quoting People v. Crittenden
(1994) 9 Cal.4th 83, 139, fn. 13.) We review the denial of a
section 1181.1 motion de novo. (People v. Cole (2004) 33 Cal.4th
1158, 1213.)
Again, Gomez contends that the evidence was insufficient
to support a conviction on the Escareno charges, such that no
reasonable juror could have been convinced of the truth of such
evidence beyond a reasonable doubt. In particular, Gomez
argues that the prosecution failed to sufficiently corroborate the
testimony of Witness No. 1, his alleged accomplice, which was
the centerpiece of the prosecution’s case as to the Escareno
murder.
Section 1111 provides: “A conviction can not be had upon
the testimony of an accomplice unless it be corroborated by such
other evidence as shall tend to connect the defendant with the
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commission of the offense; and the corroboration is not sufficient
if it merely shows the commission of the offense or the
circumstances thereof.” An “accomplice” is “one who is liable to
prosecution for the identical offense charged against the
defendant on trial in the cause in which the testimony of the
accomplice is given.” (Ibid.) In order for the jury to rely on an
accomplice’s testimony, “ ‘[t]he corroborating evidence may be
circumstantial or slight and entitled to little consideration when
standing alone, and it must tend to implicate the defendant by
relating to an act that is an element of the crime. The
corroborating evidence need not by itself establish every
element of the crime, but it must, without aid from the
accomplice’s testimony, tend to connect the defendant with the
crime.’ ” (People v. Abilez (2007) 41 Cal.4th 472, 505.)
It is undisputed that with respect to the Escareno murder,
Witness No. 1 was an “accomplice” within the meaning of section
1111, and Witness No. 1’s testimony identified Gomez as
Escareno’s killer. Thus, the only question is whether the
prosecution presented to the jury sufficient corroborating
evidence connecting Gomez with the Escareno murder.
Although the evidence of corroboration presented by the
prosecution was not overwhelming, we find it sufficient for
purposes of section 1118.1. The primary corroboration evidence
presented at trial was Detective Winter’s testimony indicating
that Gomez knew details about the murder that were not public
knowledge. Winter testified that after Gomez was arrested
regarding the Acosta and Dunton murders, she questioned him
at Harbor Jail about matters unrelated to the Escareno murder.
According to Winter, Gomez then volunteered that he had heard
“about a guy up on Western, his head being shot off, a female
that had been killed and wrapped and disposed in a dumpster,
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a couple of guys that were shot and brains were splattered all
over the place and that these individuals couldn’t be identified.”
Winter further testified that Gomez then said “that when he had
talked about the individuals not being identified, their wallets
were missing,” although no information had yet been released
to the press that Escareno’s wallet had been stolen. This
statement to Winter, the Attorney General argues,
“corroborated [Witness No. 1’s] testimony that [Gomez] killed
Escareno.” The Attorney General also identifies as
corroborating evidence the fact that some of the victims of the
other murders Gomez allegedly committed were also shot with
a 12-gauge shotgun, and that all the alleged killings occurred in
the same general area during a month-long period.
Gomez argues on appeal that the Winter statement is
insufficient for our present purposes because Gomez did not
specifically identify the Escareno murder when discussing the
missing wallets; it is common knowledge that homicide victims
are usually robbed; Witness No. 1 did not testify that he told
Gomez he had taken Escareno’s wallet; and the defense
introduced evidence of newspaper articles indicating that it was
public knowledge that the murder victim had no identification.
But these arguments simply present one interpretation of the
evidence; they do not suggest that it would be unreasonable to
draw the opposite inference from the evidence, as the Attorney
General urges. When reviewing whether “substantial evidence”
supports the trial court’s decision to allow individual jurors to
consider the Escareno murder at the penalty phase, the
“relevant inquiry . . . remains whether any reasonable trier of
fact could have found the defendant guilty beyond a reasonable
doubt.” (People v. Towler, supra, 31 Cal.3d at p. 118.) Gomez’s
alternative argument that the evidence was insufficient because
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Witness No. 1 was not a credible witness similarly fails because
“[i]n deciding the sufficiency of the evidence, a reviewing court
resolves neither credibility issues nor evidentiary conflicts.”
(Young, supra, 34 Cal.4th at p. 1181.)
Mindful of the standard of review here, we find that
Winter’s statement, along with the evidence regarding the
similar murders, sufficiently corroborated Witness No. 1’s
testimony. The trial court did not err in denying Gomez’s
section 1118.1 motion as to the Escareno murder or in allowing
jurors to consider that crime at the penalty phase on the limited
basis it described.
2. Instructional Error
Alternatively, Gomez claims that the trial court erred in
failing to reinstruct the jurors at the penalty phase on the
requirement that independent evidence must corroborate
accomplice testimony. Gomez contends that this error was
compounded by the trial court’s admonition that the jurors
should disregard guilt phase instructions that were not repeated
at the penalty phase.
We have held that “the general rules requiring accomplice
instructions apply at the penalty phase as well as the guilt
phase of a capital trial.” (People v. Williams (1997) 16 Cal.4th
153, 275; see People v. Nelson (2011) 51 Cal.4th 198, 217 [“The
accomplice corroboration requirement applies to the penalty
phase as well.”].) Although the Attorney General does not
dispute that the trial court failed to provide specific instructions
concerning the accomplice corroboration requirement during the
penalty phase, he nonetheless contends that this failure does
not constitute error because the court “clearly told the jury [that]
only those jurors who already found appellant guilty of the
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Escareno murder at the guilt phase, necessarily based on the
proper accomplice instructions given at the guilt phase, could
consider these crimes as aggravating evidence.”
We hold that any error was harmless here. (Brown, supra,
46 Cal.3d at pp. 447–448; Chapman, supra, 386 U.S. at p. 24.)
Gomez argues that “[t]he Escareno murder was the single most
aggravating circumstance relied on at the penalty phase.” But
the Escareno murder was just one of five murders offered as
aggravation evidence at the penalty phase, and the jury had
unanimously agreed that Gomez was guilty of four of those
murders. Further, although Gomez contends that the details
regarding the Escareno murder were especially prejudicial, the
prosecutor did not focus on this incident in his closing argument;
rather, he primarily discussed the Patel murder and Gomez’s
violent behavior against jail guards and other inmates.
Moreover, both the prosecutor and the trial court told the jury
that only those jurors who had found beyond a reasonable doubt
that Gomez murdered Escareno could consider the Escareno
murder as an aggravating factor. Finally, as discussed further
above (see ante, at p. 68), the prosecution offered substantial
evidence concerning other violent acts committed by Gomez, and
the defense presented relatively little mitigation evidence. We
find no reasonable possibility that the instructional error
affected the jury’s penalty determination.
B. Admission of Evidence of Jail Guards’ Ethnic
Background
As noted, Deputy Sheriff Millan testified, as part of the
prosecution’s penalty phase case, that Gomez stabbed him with
a shank while in custody. At the end of its direct examination,
the prosecutor asked Millan, “What is your ancestry?” Millan
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replied that he was “Mexican American.” The prosecutor asked
Deputy Sheriff Montoya the same question, who likewise
responded that he was “Mexican American.” During his penalty
phase closing argument, the prosecutor said, “We’ve shown this
man’s history of past violence, and we’ve shown that this man’s
conduct while in custody is not the result of a racial or ethnic
conduct, because his conduct, his violent behavior was not
directed just at Vanderleek but also against Montoya and
Millan, so that has nothing to do with it.”
Gomez claims that the admission of evidence concerning
the two jail guards’ ethnic backgrounds allowed the jury to
improperly consider race at the sentencing phase, thus violating
his federal and state constitutional rights. By contrast, the
Attorney General argues that the deputies’ ancestry was
relevant to Gomez’s future dangerousness. (See People v.
Romero and Self (2015) 62 Cal.4th 1, 53 [holding that a
prosecutor may argue “that a defendant will be dangerous in the
future based on evidence admitted under factors (a)-(c)” of
section 190.3].) According to the Attorney General, “[t]he
prosecutor in no way asked the jury to consider appellant’s race
to determine the penalty” but “merely argued that appellant
was dangerous and would attack jail staff and inmates without
regard to their race or ethnicity.”
As the high court has said, the race of the defendant is
“totally irrelevant to the sentencing process,” and the jury’s
consideration of race as a factor in favor of the death penalty is
“constitutionally impermissible.” (Zant v. Stephens (1983) 462
U.S. 862, 885; see People v. Bacigalupo (1993) 6 Cal.4th 457,
477.) Similarly, “[t]he Constitution prohibits racially biased
prosecutorial arguments.” (McCleskey v. Kemp (1987) 481 U.S.
279, 309, fn. 30; see People v. Cudjo (1993) 6 Cal.4th 585, 625
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(Cudjo) [“Prosecutorial argument that includes racial references
appealing to or likely to incite racial prejudice violates the due
process and equal protection guarantees of the Fourteenth
Amendment to the federal Constitution.”].)
We conclude that the trial court’s admission of the
evidence regarding the guards’ ethnicities, as well as the
prosecutor’s argument relating to it, was improper. The
Attorney General claims that the jury here was not asked to
consider race because the prosecutor argued that Gomez lacked
racial animus in attacking jail guards — that is, that Gomez
attacked jail guards who shared his ethnic background as well
as those who did not. But the prosecutor’s argument
nonetheless suggested that the jury could or should engage in
the following race-based reasoning: Gomez posed a greater risk
of future danger, and thus was more deserving of the death
penalty, because he was willing to attack other Mexican
Americans. Indeed, the objectionable implication of this line of
argument is that the evidence concerning Gomez’s jailhouse
attacks would have been less aggravating if he had only
attacked individuals who did not share his ethnicity. In any
case, “[b]ecause racial prejudice can strongly compromise a
juror’s impartiality [citations], even neutral, nonderogatory
references to race are improper absent compelling justification.”
(Cudjo, supra, 6 Cal.4th at pp. 625–626; see McFarland v. Smith
(2d Cir. 1979) 611 F.2d 414, 417 [“To raise the issue of race is to
draw the jury’s attention to a characteristic that the
Constitution generally commands us to ignore. Even a reference
that is not derogatory may carry impermissible connotations, or
may trigger prejudiced responses in the listeners that the
speaker might neither have predicted nor intended.”]; State v.
Varner (Minn. 2002) 643 N.W.2d 298, 305 [“Even statements
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made without a biased intent may have a negative effect when
it comes to issues of race.”].)
Although we find no justification for the prosecutor’s
argument concerning the jail guards’ ethnic backgrounds, we
conclude that the admission of this evidence did not prejudice
Gomez. As in Cudjo, the racial reference here “was a brief and
isolated remark,” and “there was no continued effort by the
prosecutor to call attention to defendant’s race or to prejudice
the jury against him on account of race.” (Cudjo, supra, 6
Cal.4th at p. 626.) Further, Gomez did not dispute the evidence
establishing that he had violently attacked jail guards on
numerous occasions, not to mention evidence of previous violent
felony convictions. And, again, Gomez’s mitigation evidence
consisted solely of expert testimony regarding the security
environment at high security state prisons and his sister’s plea
for mercy. We are thus persuaded that any error is harmless.
(Brown, supra, at pp. 447–448; Chapman, supra, 386 U.S. at
p. 24.)
C. Instructional Error Concerning “Biblical
References”
Immediately after the defense’s penalty phase closing
argument, the trial court gave the jury the following instruction:
“I do want to emphasize again as I’ve done before that you’re not
to bring anything to the deliberation process. Jurors are
sometimes tempted in this phase of the case to refer to biblical
references. Don’t bring the Bible and, don’t refer to those. You’ll
be guided by your own conscience and the law.” Gomez claims
the trial court violated his federal constitutional rights by
forbidding the jury from “referring to biblical references” when
considering whether to impose the death sentence.
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Gomez did not object to the instruction in the trial court.
But, as the Attorney General acknowledges, the forfeiture rule
“does not apply when . . . the trial court gives an instruction that
is an incorrect statement of the law.” (People v. Hudson (2006)
38 Cal.4th 1002, 1012.) Because that is what Gomez contends
happened here, we turn to the merits of his claim.
“ ‘The jury system is an institution that is legally
fundamental but also fundamentally human. Jurors bring to
their deliberations knowledge and beliefs about general matters
of law and fact that find their source in everyday life and
experience.’ ” (People v. Riel (2000) 22 Cal.4th 1153, 1219.)
“That jurors may consider their religious beliefs during penalty
deliberations,” we have said, “is also to be expected.” (People v.
Lewis (2001) 26 Cal.4th 334, 389.) “At the penalty phase, jurors
are asked to make a normative determination — one which
necessarily includes moral and ethical
considerations — designed to reflect community values.”
(People v. Danks (2004) 32 Cal.4th 269, 311 (Danks).) In sum, it
is not improper for a juror to consider “personal religious,
philosophical, or secular normative values” during penalty
deliberations. (Ibid.)
At the same time, we have made clear that “[p]enalty
determinations are to be based on the evidence presented by the
parties and the legal instructions given by the court. . . . not by
recourse to extraneous authority.” (People v. Sandoval (1992) 4
Cal.4th 155, 194.) “[R]eliance on religious authority as
supporting or opposing the death penalty” is thus
impermissible. (Ibid.) Accordingly, we have held that “bringing
biblical passages into the jury room and reading them aloud
during deliberation constitutes misconduct.” (People v.
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Williams (2006) 40 Cal.4th 287, 333; Danks, supra, 32 Cal.4th
at p. 308; People v. Mincey (1992) 2 Cal.4th 408, 466–467.)
Gomez admits that the court’s instruction that jurors not
“bring the Bible” into deliberations was correct. But he contends
that the instructions went too far by forbidding jurors from even
considering “biblical references,” which erroneously suggested
that jurors who “engaged in moral reasoning illustrated by or
rooted in Biblical passages would be committing misconduct.”
Gomez argues the error is particularly prejudicial because it
undermined the defense’s closing argument emphasizing the
moral decision before the jury, which counsel suggested would
be “better expressed to you by a priest, a rabbi or a minister or
even a philosopher.”
The trial court’s instructions are not a model of clarity.
But we agree with the Attorney General that the court’s
prohibition on “refer[ing] to biblical references,” understood in
context, precluded only the use of biblical texts during
deliberations; it did not preclude the jury from relying on
personal religious beliefs. The instructions thus correctly stated
the law.
“ ‘When an appellate court addresses a claim of jury
misinstruction, it must assess the instructions as a whole,
viewing the challenged instruction in context with other
instructions, in order to determine if there was a reasonable
likelihood the jury applied the challenged instruction in an
impermissible manner.’ ” (People v. Jennings (2010) 50 Cal.4th
616, 677, quoting People v. Wilson (2008) 44 Cal.4th 758, 803–
804.) The trial court’s prohibition on “biblical references”
followed its instruction that “you’re not to bring anything to the
deliberation process,” suggesting that the jury understood the
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instruction as a whole as forbidding extrinsic sources of law or
evidence — of which biblical references were merely an
example — during deliberations. This conclusion is supported
by the trial court’s statement that he wanted to “emphasize
again as I’ve done before.” The jury was likely to understand
this statement as a reference to the court’s guilt phase
instruction that the jury “cannot refer to” “a religious text of
some kind, a bible or something like that” because it is “outside
information.”
The court also gave a number of instructions that made
clear that jurors could rely on their personal conscience and
moral values when considering whether to impose the death
penalty. Immediately after the challenged instruction, the trial
court said: “You’ll be guided by your own conscience and the
law.” The court later instructed the jury that “[a] mitigating
circumstance is any fact, condition or event which does not
constitute a justification or excuse for the crime in question, but
may be considered as an extenuating circumstance in
determining the appropriateness of the death penalty.” The
court then said that, in weighing the aggravating and mitigating
factors, “[y]ou are free to assign whatever moral or sympathetic
value you deem appropriate to each and all of the factors you are
permitted to consider.” Gomez argues that this general
instruction concerning moral values did not cure the court’s
error in giving the specific instruction regarding biblical
references. But that argument presupposes that the latter
instruction referred to biblical reasoning instead of biblical
texts, an argument we have rejected.
In any case, it is not reasonably likely that the jury
understood the trial court’s brief statement regarding “biblical
references” to mean that they could not rely on their personal
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religious beliefs during deliberations. We thus conclude that no
instructional error occurred here. Nevertheless, we caution that
trial courts, in prohibiting jurors from bringing religious texts
to penalty phase deliberations, should be careful to ensure that
they are not improperly interfering with the jurors’ ability to
consider their religious and other personal beliefs and values.
D. Challenges to the Death Penalty
Gomez argues that a death sentence cannot be imposed
unless the jury finds the defendant guilty “beyond all possible
doubt.” But, as Gomez acknowledges, we have previously
rejected the argument that “evidence of guilt must be stronger
in a capital case than in a noncapital case.” (People v. Lewis
(2009) 46 Cal.4th 1255, 1290, fn. 23.) He offers no compelling
reason for us to revisit that conclusion.
We likewise reject Gomez’s argument that his death
sentence violates the Eighth Amendment because the robbery
and special circumstances in this case permitted the jury to
impose the sentence for an accidental or unforeseeable killing.
As Gomez recognizes, we have “repeatedly held that, consistent
with Eighth Amendment principles, neither intent to kill nor
reckless indifference to life is a required element of the felony-
murder special circumstance when the defendant is the actual
killer.” (People v. Taylor (2010) 48 Cal.4th 574, 661; see, e.g.,
People v. Watkins (2012) 55 Cal.4th 999, 1033; People v.
Martinez (2010) 47 Cal.4th 911, 966–967; Young, supra, 34
Cal.4th at p. 1204.)
Gomez raises additional constitutional challenges to
California’s capital sentencing scheme, all of which we have
previously considered and rejected. Gomez provides no
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persuasive reason to revisit our decisions, and we thus reject his
challenges in accordance with the following precedent:
We have held that section 190.2 “ ‘ “adequately narrows
the class of murderers subject to the death penalty” ’ ” and thus
does not violate the Eighth Amendment. (People v. Masters,
supra, 62 Cal.4th at p. 1077 (Masters); People v. Cunningham
(2015) 61 Cal.4th 609, 671; People v. Ramos (2004) 34 Cal.4th
494, 532–533.)
Both this court and the high court have held that the
current application of section 190.3, factor (a), is constitutional.
(Tuilaepa v. California (1994) 512 U.S. 967, 976; People v.
Johnson (2016) 62 Cal.4th 600, 655; People v. Rountree (2013)
56 Cal.4th 823, 860.)
“ ‘Nothing in the federal Constitution requires the penalty
phase jury to make written findings of the factors it finds in
aggravation and mitigation; agree unanimously that a
particular aggravating circumstance exists; find all aggravating
factors proved beyond a reasonable doubt or by a preponderance
of the evidence; find that aggravation outweighs mitigation
beyond a reasonable doubt; or conclude beyond a reasonable
doubt that death is the appropriate penalty.’ ” (People v.
Williams (2013) 58 Cal.4th 197, 295 (Williams); see People v.
Jackson (2016) 1 Cal.5th 269, 373 (Jackson); Masters, supra, 62
Cal.4th at p. 1076; People v. D’Arcy (2010) 48 Cal.4th 257, 308.)
Likewise, “ ‘[w]e have repeatedly held that “CALJIC No.
8.88 provides constitutionally sufficient guidance to the jury on
the weighing of aggravating and mitigating factors.”
[Citations.] We have rejected the claim that the instruction
unconstitutionally fails to inform the jury that, in order to
impose the death penalty, it must find that aggravating
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circumstances outweigh mitigating ones beyond a reasonable
doubt. [Citation.] Under our precedent, “the trial court need
not and should not instruct the jury as to any burden of proof or
persuasion at the penalty phase.” [Citation.]’ ” (Masters, supra,
62 Cal.4th at p. 1076; People v. Peoples (2016) 62 Cal.4th 718,
769–770; Williams, supra, 58 Cal.4th at p. 295.) We have also
held “the phrase ‘so substantial’ [in CALJIC No. 8.88] is not
impermissibly vague.” (People v. Lomax (2010) 49 Cal.4th 530,
595; see Jackson, supra, 1 Cal.5th at p. 373.)
“ ‘Defendant was not entitled to an instruction regarding
a presumption of life.’ [Citation.]” (People v. DeHoyos (2013) 57
Cal.4th 79, 150; see Masters, supra, 62 Cal.4th at p. 1078.)
“ ‘The use of certain adjectives such as “extreme” and
“substantial” in the list of mitigating factors in section 190.3
does not render the statute unconstitutional.’ ” (Jackson, supra,
1 Cal.5th at pp. 372–373; Masters, supra, 62 Cal.4th at p. 1077;
People v. Carrasco (2014) 59 Cal.4th 924, 971 (Carrasco).)
“ ‘CALJIC No. 8.85 is both correct and adequate.’
[Citation] The sentencing factors set out in CALJIC No. 8.85
are not unconstitutionally vague or arbitrary, and the trial court
is not required to delete inapplicable sentencing factors from the
instruction.” (Jackson, supra, 1 Cal.5th at p. 372, quoting
People v. Valencia (2008) 43 Cal.4th 268, 309 and citing People
v. Famalaro (2011) 52 Cal.4th 1, 43.)
We have held that a trial court may refuse to instruct the
jury not to consider the deterrent or nondeterrent effect of the
death penalty “where ‘neither party raise[s] the issue of either
the cost or the deterrent effect of the death penalty . . . .’ ”
(People v. Zamudio (2008) 43 Cal.4th 327, 371, quoting People v.
Brown (2003) 31 Cal.4th 518, 566.)
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“Neither intercase proportionality nor disparate sentence
review is constitutionally compelled.” (Jackson, supra, 1 Cal.5th
at p. 373; People v. Banks (2014) 59 Cal.4th 1113, 1207; People
v. Eubanks (2011) 53 Cal.4th 110, 154.) “Moreover, ‘capital and
noncapital defendants are not similarly situated and therefore
may be treated differently without violating’ a defendant’s right
to equal protection of the laws, due process of law, or freedom
from cruel and unusual punishment.” (Carrasco, supra, 59
Cal.4th at p. 971, quoting People v. Manriquez (2005) 37 Cal.4th
547, 590.)
“ ‘The alleged inconsistency between regular imposition of
the death penalty and international norms of human decency
does not render that penalty cruel and unusual punishment
under the Eighth Amendment [citation]; nor does “regular”
imposition of the death penalty violate the Eighth Amendment
on the ground that “ ‘[i]nternational law is a part of our law’ ”
[citation]. To the extent defendant contends the errors . . . that
occurred at his trial also violate international law, his claim fails
because we have found no such errors . . . . International law
does not prohibit a sentence of death rendered in accordance
with state and federal constitutional and statutory
requirements. [Citations.]’ ” (Masters, supra, 62 Cal.4th at
pp. 1077–1078, quoting People v. Lee (2011) 51 Cal.4th 620,
654.)
E. Cumulative Error
Gomez contends that the cumulative effect of the trial
court’s errors deprived him of his due process rights under the
federal and state Constitutions and therefore warrant reversal.
Although we have concluded that the trial court committed a
number of harmless errors, we conclude there is no reasonable
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possibility that these errors, considered cumulatively, affected
the jury’s verdicts.
V. CONCLUSION
We affirm the judgment.
LIU, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
LUI, J.*
*
Administrative Presiding Justice of the Court of Appeal,
Second Appellate District, Division Two assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
106
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Gomez
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S087773
Date Filed: November 29, 2018
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: William R. Pounders
__________________________________________________________________________________
Counsel:
Lynne S. Coffin and Laura S. Kelly, under appointments by the Supreme Court, for Defendant and
Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief
Assistant Attorneys General, Lance E. Winters, Assistant Attorney General, Jaime L. Fuster and David A.
Voet, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Laura S. Kelly
4521 Campus Drive, #175
Irvine, CA 92612
(949) 737-2042
David A. Voet
Deputy Attorney General
300 South Spring Street, Suite 1700
Los Angeles, CA 90013
(213) 576-1338