People v. Caro

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
SOCORRO SUSAN CARO,
Defendant and Appellant.
S106274
Ventura County Superior Court
CR47813
June 13, 2019
Justice Cuéllar authored the opinion of the court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,
Kruger, and Groban concurred.
Justice Liu filed a concurring opinion.
PEOPLE v. CARO
S106274
Opinion of the Court by Cuéllar, J.
In April 2002, defendant Socorro Susan Caro was
sentenced to death for killing three of her four children. This is
her automatic appeal. We affirm the judgment below.
I. BACKGROUND
Caro and her husband, Dr. Xavier Caro (Xavier1), had four
children: Xavier (known as “Joey”), Michael, Christopher, and
G.C. On November 22, 1999, Joey, Michael, and Christopher
were shot to death in the family home in Camarillo, California.
Joey was 11, Michael was 8, Christopher was 5, and G.C. was 1.
The Ventura County District Attorney filed a felony complaint
against Caro on December 17, 1999, and an information on April
24, 2000. Caro was charged with three counts of murder (Pen.
Code, § 187, subd. (a))2 while personally using a firearm
(§ 12022.53, subd. (d)), and a multiple-murder special
circumstance (§ 190.2, subd. (a)(3)). Caro pleaded not guilty,
and not guilty by reason of insanity.
At trial, the prosecution presented the testimony of Caro’s
husband. Xavier met Caro in 1979 during her externship in his
rheumatology medical practice. They began dating in 1980 and
1
We refer to Caro’s husband by his first name to avoid
confusion.
2
All subsequent unlabeled statutory references are to the
Penal Code.
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Opinion of the Court by Cuéllar, J.
married in 1986. At the time of the shootings, Caro’s parents
lived in the couple’s nearby second home and Caro’s mother,
Juanita, would often stay over to help with the children.
Early on in their relationship, Caro began working as
Xavier’s office manager. In August 1999, Xavier fired Caro
because, according to Xavier, she had been providing more
money than expected to her parents while allowing the medical
office’s rent to go unpaid. Xavier had also been having an affair
with someone who worked in his office. Xavier and Caro had
discussed divorce at various points in their relationship, and
after firing Caro, Xavier consulted a divorce lawyer. Xavier
testified he did not actually want a divorce. Indeed, Xavier
thought their marriage had improved after Caro and he agreed
in August 1999 to go to counseling, and Caro agreed to take
Prozac.
On the night of the shootings, November 22, 1999, Xavier
returned from work between 6:00 and 6:30 p.m. Xavier had
dinner with Caro, and they drank margaritas. Joey made a
negative comment about his parents’ drinking. Xavier and Caro
argued: Xavier wanted to discipline Joey, but Caro did not.
Later, after Xavier removed the television and videogame
system from Joey’s room as punishment, Xavier and Caro
continued their argument. Caro accused Xavier of not loving
her, and not respecting her. Xavier said he was leaving. Caro
grabbed him by the shoulders, slid to the floor, and held his
ankles as he pulled away from her. Juanita came up the stairs
and yelled, “Get out, you brute.” Xavier entered the garage, got
in his 1989 maroon Mercedes, and drove away.
Juanita’s testimony about the end of the fight that evening
was similar, though she testified that Xavier kicked Caro “on
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Opinion of the Court by Cuéllar, J.
the legs” when Caro was on the ground. Juanita told police that
after Xavier left, Caro said, “Now, Mom. I have no money now.
I don’t know what I’m going to do,” and “Mom, we’re going to
starve now.” Caro also told Juanita that night, “Well, I guess
I’m crazy like he says I am” and “Mom, he says I’m crazy.”
Around 9:00 p.m., Juanita left the house to return to her home.
Caro seemed normal. Juanita returned a few minutes later
because she forgot her glasses and left again soon after.
Xavier testified that he drove to his office in Northridge,
which was 40 to 46 minutes away from the house. Caro called
Xavier multiple times on his car phone and at the office. When
Xavier answered the phone at the office, Caro was crying and
agitated and asked Xavier to come home. Caro then calmly
stated, “That’s the thing I’ve always admired about you, X. You
always know the difference between right and wrong.” Phone
records show that Xavier made an unanswered call home at 9:53
p.m. from the office. Xavier testified that he left the office
around 10:30 p.m. to return home. As he left the building,
Xavier saw a big white truck parked outside the gate, a truck
that, according to the guard records, entered the hospital at
10:25 p.m. Time-stamped videotapes from security cameras at
Xavier’s work showed a vehicle similar to Xavier’s car arriving
at 9:24 p.m. and leaving at 10:36 p.m.
When Xavier returned home, he found Caro lying on her
right side in a semifetal position on the floor of their master
bedroom. Xavier noticed a bloodstained froth around her mouth
and thought she had overdosed. Xavier called 911 from a phone
in the bedroom at 11:21 p.m. He told the operator that Caro
might have overdosed or slit her wrists. Xavier rolled Caro onto
her back and noticed a .38-caliber revolver underneath Caro,
and several expended shell casings. Xavier had previously
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Opinion of the Court by Cuéllar, J.
purchased the gun for Caro, along with a gun for himself, for
self-defense. Xavier picked up the gun and saw a single shell
casing in the five-round cylinder.
The 911 operator asked if there were any children in the
house. Xavier went to Joey’s bedroom and found him lying face
up covered in blood. Xavier checked for a pulse but found none.
He then entered Michael and Christopher’s room and saw them
lying together in the bottom bunk of the bunk bed. Their faces
were ashen and neither boy was breathing. Xavier returned to
the master bedroom and told the 911 operator that his children
had been shot. Xavier kicked Caro and yelled at her.
The 911 operator asked how many children were in the
home. Xavier went to G.C.’s crib, found G.C. unharmed, and
told the 911 operator, “We’ve got one alive here.” Xavier picked
up G.C. and went to check the other children again. Joey and
Christopher were not breathing, but Michael was taking deep
gasping breaths. Xavier attempted to perform CPR on Michael,
until a fragment of Michael’s skull came off in his hands. Xavier
ran out of the room and told the 911 operator that first
responders needed to get there fast. He called Juanita on a
second phone line at 11:26 p.m. and told her that Caro “shot the
babies.” Xavier went to the front door where he encountered two
Ventura County Sheriff’s deputies, who ordered him outside.
Xavier had G.C. in his arms and was distraught.
When officers found Caro in the master bedroom, she was
surrounded by several pools of blood, a pool of vomit, and
expended shell casings. Caro was airlifted to a hospital.
Meanwhile, back at the family’s home, Juanita had arrived. In
a conversation between Xavier and Juanita that an officer
recorded, Xavier alternated between a calm and visibly upset
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Opinion of the Court by Cuéllar, J.
demeanor. He stated: “Why did she do this?”; “She killed my
best friend. She killed my Joey”; and “She wasn’t messing
around. She shot them all in the head.”
Xavier testified that he always kept the guns in a gun safe,
and Caro did not have the combination. In 1994 or 1995,
following an argument, Xavier came home to find Caro holding
a gun at the top of the stairs in the house. Xavier grabbed Joey
and left, but came back when Caro called and said she would
leave the gun in plain view for Xavier to recover.
Caro underwent surgery on the night of the shootings for
a gunshot to the head. Caro also had bruising on her right bicep,
bruising on the inside of her thighs, and a fractured foot that
was swollen and bruised. The forepart of the foot had broken
away from the middle part of the foot and was repaired
surgically a week later. Such an injury most commonly occurs
by landing on a pointed foot so that the foot is twisted, which
can happen when falling down stairs. The injury may also occur
from a person falling on his or her foot with the person’s own
weight, or if someone else stands on the foot as the person falls.
The day after the shootings, Detective Cheryl Wade went
to Caro’s hospital room and recorded the entire two-and-a-half
to three-hour visit. Wade asked Caro if she had taken a fall, and
Caro said she was not sure and could not remember. Caro said
at one point that she “might have fallen down the stairs,” and
that she was bruised by “wrestling with a boy.” But she
reiterated on multiple occasions that she did not remember how
she had been hurt. A defense expert enhanced the audiotape
and believed Caro said, “You have to ask the boys” rather than
“wrestling with the boys.”
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Opinion of the Court by Cuéllar, J.
Detective Wade told Caro that her boys had been hurt,
that they had died, and that Caro was a suspect. Caro began
crying and screaming. Caro asked what Xavier had said and
asked where G.C. was located and whether he was okay.
Detective Wade later brought Juanita into Caro’s room and
recorded Juanita’s conversation with Caro. Caro said that “X is
going to need somebody.” Juanita asked, “Why did you do this?”
Caro replied, “My babies. My babies. I’m sorry. I’m sorry.”
Lisa VanEssen worked at Xavier’s office. She testified
that Caro had previously said she did not think Xavier loved her
and was worried that Xavier would leave her and the boys with
nothing. Around September 1999, VanEssen asked Caro how
she was and Caro replied, “Not good. Sometimes I think it would
just be better if I wasn’t here.” When VanEssen reminded Caro
of her “four boys that need [her],” Caro replied, “What would it
matter?”
Investigators found a gun safe in Caro and Xavier’s master
bedroom closet; the safe showed pry marks that could not be
dated. The door to the gun safe could be opened without
entering a combination. There were no testable fingerprints on
the gun, but the gun was also stained, so it was unlikely the gun
had been wiped down. Caro and Xavier both had gunshot
residue on their right hands, but only swabs of Caro’s hands
showed blood. At some point in the night, Xavier rinsed his
hands without using soap.
In the master bedroom, investigators found bullet
fragments or evidence of bullet fragments on the floor, on the
bed, in the wall above the bed, and in the ceiling. A forensic
scientist opined that the wall and ceiling damage was consistent
with the gun being held to the side of Caro’s head, and fired in
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Opinion of the Court by Cuéllar, J.
an upward direction. The doctor who performed surgery on Caro
on the night of the shootings confirmed that the bullet had
traveled “upward on the side of the defendant’s head.”
Investigators found two bloody handprints on the
doorjamb between Joey’s bedroom and the bathroom that
matched Caro’s hand, and blood above one of the handprints
matched Joey’s blood. Stains on the pajama shorts and T-shirt
Caro was wearing tested positive for blood. DNA testing
matched some of the stains to Joey, some to Christopher, and
some to Caro. According to a forensic scientist, projected blood
caused some of the stains on Caro’s shorts. He opined that one
of the stains on Caro’s shorts contained Christopher’s brain
matter, and a piece of Joey’s scalp may have caused one of the
other stains. Two blood stains in the master bathroom
contained Joey’s blood, one of those stains had potential
contributions from Christopher. Material under Caro’s
fingernails tested positive for blood and contained DNA from
Caro, Joey, and Christopher.
Various blood stains were found on Xavier’s sweatpants,
shirt, and jacket. Blood stains on Xavier’s sweatpants, G.C.’s
socks, the carpet, and the stair railing matched Michael’s DNA.
Most were transfer stains, but drops of blood caused stains on
Xavier’s sandals and on the knee of his sweatpants.
Based on blood spatter patterns, Rod Englert, a crime
scene reconstructionist, opined that Joey was facedown in bed
when shot. He testified that Michael was face up when shot.
Christopher, who was sleeping next to Michael, sat up and was
shot twice, as the first shot failed to kill him immediately. The
jury saw an animation depicting Englert’s opinion on how the
shootings of Michael and Christopher occurred. Englert
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Opinion of the Court by Cuéllar, J.
testified that the inner thigh of Caro’s shorts showed a high
velocity spatter — the kind associated with gunshots. Englert
opined that the person wearing the shorts shot Christopher and
he expressed confidence “beyond a reasonable degree of
certainty.” Englert found transfer stains and no evidence of
blood from a gunshot on Xavier’s jacket. Englert concluded that
the person wearing the jacket was “not involved” in “a shooting.”
He concluded gunshot spatter did not cause the blood stains on
Xavier’s pants and sandals.
Two officers interviewed Xavier on November 23, 1999, at
5:30 a.m. at the family home. Xavier indicated Caro was taking
Prozac, she had attention deficit disorder, had been drinking
margaritas, and agreed with the officer that the alcohol and
Prozac may have had a synergistic effect. At some point, he told
officers he had prescribed the Prozac to Caro. Around 7:00 p.m.,
officers escorted Xavier into his closet and let him obtain some
items before he went to a hotel, but the officers did not catalogue
items Xavier took from the house.
The defense presented evidence that the white truck
Xavier saw outside the gate while leaving the hospital had
entered hospital grounds around 10:00 p.m., that Joey and
Michael had died at 10:00 p.m. or later, and that it only took 30
minutes to drive home at night — implying Xavier had enough
time to kill the children and shoot his wife before the 11:21 p.m.
call to 911. Defense expert Herbert MacDonnell reviewed the
forensic evidence. He examined the shorts Caro was wearing
under a microscope and did not find any high velocity impact
spatter or mist. He did find projected blood on the inner crotch
but opined that it was not the result of the shootings because of
the confined spread of the stains and the small amount of blood.
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Opinion of the Court by Cuéllar, J.
MacDonnell found transfer stains on Xavier’s jacket, socks, and
pants.
Dr. Frederick Lovell, a medical examiner, reviewed
evidence concerning Caro’s head wound. He testified that the
gun was held tightly against Caro’s head, at a right angle to the
bone above Caro’s ear. The gun would have been pointed “[v]ery
slightly downward.” When asked how Dr. Lovell would explain
a bullet fragment found in the ceiling, he testified to previously
saying that he did not know how it got there. He testified that
it was “highly unlikely” that the gunshot wound was self-
inflicted. It would have been difficult to hold the gun against
the skull at the slightly downward angle. The bruises on Caro’s
arms were consistent with finger grab marks. A criminalist
found hair in Caro and Xavier’s master bedroom that looked like
it had been pulled out, though some, maybe all, of the hair
belonging to Caro came out by the force of the gunshot.
The defense presented a number of character witnesses.
They testified that Caro was an admirable, friendly, nice person
who loved her children. Caro’s parents testified about their
financial arrangements with Xavier and Caro. Juanita testified
that, after the shootings, Xavier told her: “Wait til you hear the
911 call, Juanita. You’re gonna blow your mind.” Later, Xavier
told Juanita, step by step, how Caro killed the boys.
Caro testified in her own defense. Caro was forthcoming
with Xavier about expenditures while she served as office
manager, and wrote checks to her parents for family trip
expenses only after discussing them with Xavier. Caro was sad,
but not angry, about being fired as office manager and losing
control of the family finances in August 1999. Caro had no hard
feelings toward her friend VanEssen, who replaced Caro as
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Opinion of the Court by Cuéllar, J.
office manager. Caro never talked to VanEssen about killing
herself. Xavier prescribed Prozac to Caro in August 1999 and
increased her dosage in September or October 1999. Caro also
took diet pills.
Caro and Xavier were having marriage difficulties. In
June 1999, Caro stayed at a hotel for three days to get away
from the family. In August 1999, after Xavier fired Caro, he told
Caro that they should separate. Later that month, Xavier told
Caro that he was going to a divorce lawyer and discussed with
Caro division of assets. Caro did not believe Xavier kept the
appointment with the divorce lawyer, but later found notes from
the meeting. Caro wanted to make the marriage work and was
unaware of Xavier’s affair.
Xavier had purchased Caro a firearm for home protection,
as well as lessons for her to learn how to use the gun. Xavier
never told Caro the combination to the gun safe and would get
the gun out for her before he would go out of town. Caro would
pop the safe open with the prong end of a hammer to put the gun
back. Caro had not fired the gun since before Christopher was
born and denied ever brandishing it at Xavier.
Caro had only partial memories of the day on which the
shootings occurred. She remembered the fight she had with
Xavier. She remembered Xavier saying he was leaving, and she
thought he meant he was leaving for good, though Caro did not
remember Xavier actually leaving to go to the office. Caro could
not remember what she wore that night. But she would not have
been wearing the shorts she was found in because they were
maternity shorts that were too big for her. She had never seen
the T-shirt she was found wearing. Her last memory of that
night was standing in the master bedroom closet, looking at a
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Opinion of the Court by Cuéllar, J.
pitcher of margaritas. Caro had no memory of hurting her
children. When she woke up she thought they had been in a car
accident because she was injured, and Detective Wade said the
boys were hurt. When she was told her boys were dead, she did
not know how they died. Caro was sure she did not kill her
children.
On November 5, 2001, the jury found Caro guilty of three
counts of first degree murder, found the firearm enhancements
true, and found true the multiple-murder special circumstance.
On November 6, 2001, Caro withdrew her plea of not guilty by
reason of insanity.
The penalty phase began on November 27, 2001. In
aggravation, the prosecution presented evidence of prior acts
that Caro allegedly committed. On June 30, 1992, Caro and
another woman argued over a parking space. Caro ended up
grabbing the other woman by the hair with both hands and
pulling her head against the inside of the woman’s half-open
driver-side window. In August 1988, during an argument, Caro
punched Xavier in the face and fractured her knuckle. In 1996
or 1997, Caro gave Xavier a black eye by hitting him, possibly
with her hand or possibly by throwing a jewelry box. In the late
1990s, Caro threw a necklace box at Xavier and hit him in the
eye, causing a retinal tear that required laser eye surgery. Caro
threw a “C” battery at Xavier during an argument in the late
1990s that tore a hole in the screen door. During an argument
sometime between 1997 and 1999, Caro threw a three-pound
box of hot rollers at Xavier, which missed and broke the
bathroom mirror. At another time in the late 1990s, Caro threw
pizza, dishes, and silverware on the floor during an argument
before approaching Xavier with a butter knife. Xavier stated
that he did not hit Caro during these incidents. On cross-
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Opinion of the Court by Cuéllar, J.
examination, the defense elicited from Xavier occasions when he
was physically violent with Caro, including one time when he
punched Caro, causing her to fall “like a sack of potatoes.”
Xavier narrated a family video showing scenes of the three
boys who had been killed. Xavier testified about the boys and
their character traits.
In mitigation, the defense presented evidence that Caro
was a happy, obedient child. Her parents never used physical
punishment. Caro played basketball and volleyball, was a
cheerleader, and graduated from high school with a “C” average.
Xavier was the second boyfriend Caro ever had. Caro’s first
boyfriend testified that she was never violent with him or
anyone else. Extended family members described Caro as a
good, patient mother. Caro’s cousin, a pastor, and the Ventura
County Jail chaplain, testified that Caro was a person of
compassion, caring, and genuine Christian faith. Caro never
admitted in her confidential sessions with the pastor and
chaplain to killing her children. The children’s teachers
testified that Caro spent hours volunteering in her children’s
classrooms, and observed that she was a friendly, caring, and
affectionate mother.
Caro had a blood-alcohol level of 0.138 percent on the night
of the shootings. According to a defense toxicology expert, Caro
would have been staggering, would have felt sedated, and would
have been impaired in her ability to process information. Her
blood tested positive for Prozac and Xanax. Caro suffered from
depression at the time of the shootings. A forensic psychiatrist
attributed the killings and suicide attempt mostly to Caro’s
depression. He believed Caro fell in the class of depressed and
suicidal women who “primarily commit[] suicide” and kill their
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Opinion of the Court by Cuéllar, J.
children as “a secondary act” to “prevent something bad from
happening to the children they love.” A clinical neurologist
testified that Caro suffered residual brain effects seven months
after the shootings. He diagnosed Caro with chronic depression
accompanied by mood congruent psychotic features, alcohol
dependence, alcohol abuse, and a dependent personality. The
neurologist believed Caro had amnesia resulting from her brain
trauma and the combination of drugs she took. In the
neurologist’s view, Caro was incapable of appreciating the
nature and consequences of her actions on the night of the
shootings.
On December 10, 2001, following the penalty phase, the
jury returned a verdict of death. On April 5, 2002, the trial court
denied a motion for new trial and a motion to modify sentence.
The trial court sentenced Caro to death on each count of murder,
with concurrent sentences of 25 years to life for the firearm
enhancements.
II. DISCUSSION
A. Jury Screening Issues
i. Caro’s Presence for Stipulated Excusals of Jurors
Caro contends she was entitled, as a matter of
constitutional and statutory law, to be present when counsel for
both sides discussed juror hardship in chambers and agreed by
stipulation to excuse 62 potential jurors in an e-mail to the trial
court. Jury screening in this case began on July 17, 2001. On
that day, the trial court started introducing groups of
prospective jurors to the facts of the case, soliciting applications
for hardship excusals, and directing prospective jurors to fill out
comprehensive juror questionnaires. The next day, the parties
and the trial court discussed the prospect of stipulating to the
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excusal of some jurors for cause. On July 23, 2001, the
prosecution stated it had begun “informal discussions with the
defense” about jurors “who both sides think will be challenged,
likely successfully, for cause.” Later that day, the trial court
scheduled the parties to return on July 27, 2001, to address such
stipulations. Defense counsel indicated she would exchange her
list of potential “for cause” stipulations with the prosecution. On
July 26, 2001, defense counsel sent an e-mail to the trial court
identifying 62 prospective jurors both parties agreed the court
could excuse “due to either hardship or cause.” Fourteen of the
excusals included the notation “(hardship).” The e-mail did not
indicate specific reasons for the remaining 48 prospective jurors.
On July 27, 2001, the trial court stated that the e-mail
stipulation had been filed and placed in the record. Caro was
present at the proceedings before and after the e-mail
stipulation. We assume Caro was absent from the informal
discussions and agreement on stipulations.
Caro argues she had the right to be present for these
stipulation discussions and the stipulations. The federal
Constitution provides a defendant the right to be present if “(1)
the proceeding is critical to the outcome of the case, and (2) the
defendant’s presence would contribute to the fairness of the
proceeding.” (People v. Kelly (2007) 42 Cal.4th 763, 781-782.) A
defendant’s right to be present under the California
Constitution and section 977, subdivision (b)(1) is similar.
(People v. Ervin (2000) 22 Cal.4th 48, 74 (Ervin) [proceeding
must have a “reasonable, substantial relation to [a defendant’s]
opportunity to defend the charges against him”]; People v.
Waidla (2000) 22 Cal.4th 690, 742.) The burden is on a
defendant to show that the “ ‘absence prejudiced his case or
denied him a fair and impartial trial.’ ” (Ervin, at p. 74; People
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v. Virgil (2011) 51 Cal.4th 1210, 1233-1234 (Virgil).) We reject
general claims that a defendant might have provided useful
input as “unduly speculative.” (Virgil, at p. 1234; see also People
v. Benavides (2005) 35 Cal.4th 69, 89 (Benavides).)
Caro fails to distinguish our prior decisions denying
similar claims. In Ervin, the defendant challenged his absence
from counsels’ jury “screening” discussions about stipulating to
the excusal of “prospective jurors whose questionnaires showed
they were probably subject to challenge and excusal.” (Ervin,
supra, 22 Cal.4th at p. 72.) We found that the defendant’s
presence at such discussions “would have served little purpose.”
(Id. at p. 74.) The same is true here. Caro argues “she might
have discouraged” the stipulated excusals. But even if such an
argument could establish that Caro’s presence was necessary,
such a contention does not establish prejudice: It is “unduly
speculative” because nothing in the record indicates Caro would
have actually discouraged the stipulations. (Virgil, supra, 51
Cal.4th at p. 1234.)
Caro asks us to reconsider our precedent in light of the
Washington Supreme Court’s decision in State v. Irby (2011) 170
Wash.2d 874 [246 P.3d 796]. But in Irby, neither the parties nor
their attorneys were present on the first day of jury screening,
when the trial court administered juror questionnaires. (Id.,
246 P.3d at pp. 798-799.) During that first day, the trial court
e-mailed the parties and suggested that reason existed to excuse
certain jurors — some for cause. (Ibid.) The e-mail indicated
that the trial court wanted to confirm the excusals that same
day, and the parties agreed by e-mail to dismiss some of the
suggested jurors within the hour. (Ibid.) Irby is distinguishable
from this case. The trial court here did not rush an out-of-court
for-cause jury excusal proceeding within an hour, nor did it
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Opinion of the Court by Cuéllar, J.
otherwise fail to provide a material opportunity for Caro to even
see the prospective jurors. Irby thus gives us no occasion to
reconsider our precedent in this case. We conclude the parties’
stipulation to excuse jurors by e-mail did not violate Caro’s right
to be present or cause her prejudice.
ii. Stipulation To Excuse Prospective Jurors
Caro asserts the trial court erred by accepting the parties’
stipulated excusals, identified in defense counsel’s July 26,
2001, e-mail, without further inquiry. She argues that the trial
court should have determined whether each juror was properly
excusable for cause. She contends the trial court’s failure to
make these determinations led to the improper excusal of
qualified jurors and produced a biased jury.
We find Caro’s challenge to the stipulation procedure
forfeited and without merit. Although Caro attempts to
characterize trial counsel’s e-mail and subsequent conduct
otherwise, we find it clear in the record that counsel stipulated
to these excusals. Counsel then expressed no objection to the
court’s dismissing the listed prospective jurors based on the
parties’ agreement. These actions forfeited her challenges on
appeal. (E.g., People v. Duff (2014) 58 Cal.4th 527 (Duff); People
v. Booker (2011) 51 Cal.4th 141, 161 (Booker); see also People v.
Visciotti (1992) 2 Cal.4th 1, 38; People v. Mitcham (1992) 1
Cal.4th 1027, 1061 (Mitcham).)
Even if Caro’s argument were not subject to forfeiture, we
find it unpersuasive on the merits. As we have held time and
again, trial courts commit neither constitutional nor statutory
error when they permit counsel to prescreen juror
questionnaires and stipulate to juror dismissals. (See, e.g., Duff,
supra, 58 Cal.4th at p. 540; Benavides, supra, 35 Cal.4th at pp.
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88-89; Ervin, supra, 22 Cal.4th at p. 73.) Stipulations benefit all
parties “by screening out overzealous ‘pro-death’ as well as ‘pro-
life’ venirepersons, and by substantially expediting the jury
selection process.” (Ervin, at p. 73.) Here, as in other cases
where we have found no error, “once the preliminary screening
process had concluded, the court and counsel then conducted the
usual voir dire examination of the remaining prospective jurors
in selecting the actual jurors who would serve on defendant’s
jury.” (Ibid.) Caro fails to establish error on these facts or
persuade us to overrule our prior precedent.
Finally, to the extent Caro complains that this procedure
resulted in the improper excusal of jurors for cause, she is not
entitled to relief. (See People v. Potts (2019) 6 Cal.5th 1012,
1052-1053 (Potts); Duff, supra, 58 Cal.4th at p. 540; Booker,
supra, 51 Cal.4th at p. 161; Mitcham, supra, 1 Cal.4th at p.
1061.)
iii. Dismissal of Two Prospective Jurors for Cause
Caro argues the trial court improperly dismissed
Prospective Jurors J.W. and D.S. for cause because of their
views on the death penalty. Prospective jurors in a capital case
who oppose the death penalty are not automatically disqualified
“simply by virtue of their personal views on that punishment.”
(People v. Fuiava (2012) 53 Cal.4th 622, 656.) A trial court
should only dismiss a prospective juror for cause if the juror’s
views would “prevent or substantially impair” that juror from
carrying out their duty. (People v. Lancaster (2007) 41 Cal.4th
50, 78 (Lancaster).)
a. Standard of Review
On appeal, we review the trial court’s “for cause” juror
excusals deferentially. If the juror’s voir dire responses conflict
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Opinion of the Court by Cuéllar, J.
or are equivocal, we accept the trial court’s findings if supported
by substantial evidence. (E.g., People v. Duenas (2012) 55
Cal.4th 1, 10 (Duenas).)
Initially, Caro disputes this standard of review, asserting
the trial court deserves no deference here because it
misunderstood the applicable law. (Cf. People v. Cunningham
(2015) 61 Cal.4th 609, 664 [de novo review appropriate where
trial court applied incorrect standard in determining whether
racial discrimination motivated prosecutor’s peremptory
strike].) At times, the trial court described the inquiry as
concerning whether a juror could be “neutral” as between life
imprisonment without parole or death. We agree with Caro that
on their own, such statements could misleadingly suggest a
juror cannot serve if he tends to disfavor the death penalty.
Instead, “[t]he critical issue is whether a life-leaning prospective
juror — that is, one generally (but not invariably) favoring life
in prison instead of the death penalty as an appropriate
punishment — can set aside his or her personal views about
capital punishment and follow the law as the trial judge
instructs.” (People v. Thompson (2016) 1 Cal.5th 1043, 1065
(Thompson).)
Nonetheless, we find that in context, the trial court’s
statements about neutrality were consistent with the proper
inquiry: whether the prospective juror could “faithfully and
impartially” follow the law (Thompson, supra, 1 Cal.5th at p.
1066; accord, Lancaster, supra, 41 Cal.4th at p. 78), and
“ ‘conscientiously consider all of the sentencing alternatives,
including the death penalty where appropriate’ ” (Thompson, at
p. 1064). In discussing whether J.W. could be “neutral,” the trial
court expressed doubt that J.W. could “reasonably consider both
punishments” as instructed by the court. The court, too,
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Opinion of the Court by Cuéllar, J.
considered D.S.’s “ability to be neutral” to mean his ability to
“give serious consideration to both potential punishments.”
When the court explained the purpose of voir dire to prospective
jurors on several occasions, it conveyed –– correctly –– that it
could only accept “jurors who will not vote automatically for or
against the death penalty.” The court also emphasized that
jurors did not need “to choose between religious and ethical
beliefs” and “the law,” as long as they nonetheless “obey[ed] and
follow[ed] the law.” Moreover, we note the trial court did not
excuse all jurors who had misgivings about the death penalty.
In reviewing the sum of voir dire, we believe the trial court
properly focused the inquiry on whether a juror could “weigh[]
the aggravating and mitigating circumstances of the case and
determin[e] whether death is the appropriate penalty under the
law” (People v. Stewart (2004) 33 Cal.4th 425, 447), not just their
personal views on the death penalty. Accordingly, we now turn
to whether substantial evidence supported the excusals of J.W.
and D.S.
b. Prospective Juror J.W.
Prospective Juror J.W. stated in his questionnaire that he
“strongly support[s]” the death penalty where “clearly
warranted.” He believed the death penalty was sought “[t]oo
seldom.” J.W. indicated that the death penalty should not
automatically apply for the murder of children because it
“depends on circumstances,” though he “tend[s] to favor” the
death penalty in such cases. Nonetheless, J.W. wrote that he
“can’t help but have [a] gut reaction against [application of the
death penalty to women] — unless clearly warranted.” J.W.
wrote that his wife was “adamantly against” the death penalty.
J.W. indicated that he would be able to listen to all the evidence
and give honest consideration to both death and life, but also
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PEOPLE v. CARO
Opinion of the Court by Cuéllar, J.
wrote that “a conviction with death penalty could damage my
marriage. My wife has deep convictions.”
During voir dire, J.W. stated that his views had changed
since filling out the questionnaire. He stated that “it’s very
unlikely I would vote for the death penalty in this case, but it’s
not impossible” because of “[p]ersonal concerns and just
convictions.” When defense counsel asked him to explain, J.W.
stated, “I haven’t changed my convictions regarding the death
penalty per se. Knowing what I know about this case and just
being honest, I think it would be difficult for me to apply it.”
J.W. stated that he did not have preconceived notions about the
case, could conceive of a case where he would impose the death
penalty, and stated he could be fair and impartial to both sides.
But he indicated that his wife’s opposition to the death penalty
“might” affect him. J.W. told his wife that he might sit as a juror
on a capital case but did not give her any other details about the
case. When asked if he could set aside his wife’s beliefs, J.W.
stated, “I think so, but it’s — it’s a very difficult decision, and
when there are personal ramifications, it’s hard to guarantee.”
When pushed whether he could “forget about” his wife’s
opinions, he said, “Yes.”
The prosecutor asked J.W. whether he could go with
imposing the death penalty and then go home to his wife. J.W.
responded, “The reason I mentioned what I did is I know it
would be okay in the short-term, and the long-term effects on
our relationship would be, in my opinion, unpredictable.” J.W.
said, “Yes,” when asked whether the effects on his relationship
were something he would worry about while acting as a juror.
When asked whether that was “something that perhaps would
impair your ability to impose death in a case that called for it,”
J.W. replied, “Perhaps.” When asked if he could personally
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PEOPLE v. CARO
Opinion of the Court by Cuéllar, J.
impose the death penalty, J.W. said he easily could do so in a
case like the Oklahoma City bombing, but followed up by saying,
“I guess — I’m sorry. Also old-fashioned. The thought of
imposing the death penalty on a woman is an effort.” When
pushed on whether he could impose the death penalty on Caro
after hearing about her background, he responded,
“Theoretically, yes. I said it wasn’t impossible. I do think the
probability is low.” He stated that he could impose death in a
case involving a triple murder if he “heard enough factors that
led me to think it was the right thing to do.” He stated that he
would balance the aggravating and mitigating factors and could
“[c]ertainly” impose death based on a single overwhelming
aggravating factor, “depend[ing] on [his] judgment.”
The prosecution challenged J.W. for cause, and the trial
court excused J.W. because of his statements that he was
unlikely to impose death and his feelings about imposing death
on women. Based on J.W.’s responses, the trial court concluded
J.W.’s “mind-set” would “substantially impair[] his ability” to
“reasonably consider both punishments as a reasonable
possibility in this case.” The trial court also relied on the fact
that J.W. violated the court’s admonition not to talk about the
case by telling his wife that he might sit as a juror in a capital
case.
Substantial evidence in the record supports J.W.’s excusal
for cause. J.W. said he would worry about potential damage to
his relationship with his wife when acting as a juror and said
that it “[p]erhaps” would impair his ability to “impose death in
a case that called for it.” We disagree with Caro that
Wainwright v. Witt (1985) 469 U.S. 412 requires the juror’s own
views, not those of a third party such as his wife, to prevent or
substantially impair his performance. This is an overly rigid
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Opinion of the Court by Cuéllar, J.
reading of Witt. The inquiry is whether “the trial judge is left
with the definite impression that a prospective juror would be
unable to faithfully and impartially apply the law.” (Id. at p.
426.) On this record, J.W.’s marital concerns justified such an
impression.
In addition, J.W. had a “gut reaction” against imposing the
death penalty against a woman, a belief he stated in his
questionnaire and repeated, unprompted, when asked whether
he personally could impose death on a person. We acknowledge
that J.W. gave statements indicating he would weigh the factors
and impose death according to his judgment, but given the trial
court’s superior position to evaluate the juror’s demeanor, tone
of voice, and as the trial court put it here, his “mind-set,” we do
not “interfere with the trial court’s resolution of” conflicting
statements. (Lancaster, supra, 41 Cal.4th at p. 80; People v.
Cain (1995) 10 Cal.4th 1, 60.) This is especially true because
J.W. contrasted his ability to impose the death penalty in a case
like the Oklahoma City bombing with this case — one involving
a woman — where he only “[t]heoretically” could impose the
death penalty.
Given the substantial evidence supporting the trial court’s
determination, we defer to its conclusion that J.W.’s statements
amounted to substantial impairment.
c. Prospective Juror D.S.
Prospective Juror D.S. stated in his questionnaire that the
death penalty “should be used only in the most extreme cases[.]
I do not believe that killing the defendant is a solution for the
first killing, so I would strongly object to the death penalty
unless overwhelmingly convinced of intent free of mental
impairments.” D.S. wrote that he supported life imprisonment
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PEOPLE v. CARO
Opinion of the Court by Cuéllar, J.
without the possibility of parole “over the death penalty.” He
indicated that he did not believe the death penalty serves any
purpose. D.S. thought the death penalty was sought “[t]oo often”
and “[r]andomly,” and that it is applied to “[t]oo many minorities
and women, few white men.” When asked whether D.S.’s
feelings about the death penalty were so strong that he would
always vote against the death penalty, he placed a question
mark in the “No” checkbox and wrote, “But almost always.” D.S.
similarly indicated he “would require sufficient evidence to
convince me that the death penal[ty] will serve a purpose beyond
retribution.” When asked if he could listen to all the evidence
and instructions and give honest consideration to both death
and life imprisonment without parole, he placed a question
mark in the “No” checkbox and wrote that he “would begin from
the position that life without parole is enough punishment and
no more is needed.” However, D.S. saw no reason why he could
not be a fair and impartial juror.
During the defense’s voir dire, D.S. stated, “If I
understand the proceeding correctly, I would have no objection
to deciding guilt or innocence. But when we got to the next
phase, I would have some very definite thoughts on it.” When
defense counsel asked whether D.S.’s thoughts would prevent
him from keeping an open mind and considering all the
evidence, D.S. replied, “I have some feelings that it seems to me
might be in — in conflict with — I don’t know with what . . . .”
After another question, he continued, “The problem is probably,
it seems to me, that the — the problem is that I believe that a
killing is a killing is a killing, and to kill a second time for
vengeance because the first killing occurred is ridiculous unless
there is proof offered that — that it would protect society, and
then of course I think society comes first. [¶] So I — it’s a
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PEOPLE v. CARO
Opinion of the Court by Cuéllar, J.
complicated thing, and I would — I don’t know exactly how to
answer your question.” In response to a later question, he
reiterated that he would not impose the death penalty unless
there was a threat to society. Nonetheless, D.S. responded
“[s]ure” when asked whether he would weigh the evidence and
could impose death if the aggravating circumstances
outweighed the mitigating circumstances. But he indicated that
he was “not sure what those two terms mean” and that he
“might not understand it.”
During the prosecution’s voir dire, when asked whether
D.S. could “ever impose death” in “this case,” D.S. responded, “I
have yet to hear anything.” D.S. also noted there “[c]ertainly”
existed a case where he would be able to impose death. D.S.
indicated that his ability to vote for death in the case depended
on the prosecution showing more than a “simple set of facts.”
The prosecutor then asked D.S. whether life in prison would
accomplish the goal of protecting society from a threat. D.S.
replied, “Aren’t you saying that — in other words, you can’t
prove that it — that it’s a threat to society, that the only thing
you can prove is an actual murder and you want me to forecast
what I would judge on what you may or may not prove? I can’t
do that.” When pushed further on whether he could impose
death on a person if life imprisonment without the possibility of
parole would protect society, D.S. said, “Even — okay. That’s a
tough one. There would be — it would be very difficult. . . . Very
difficult. I don’t know exactly what the answer is. But I
certainly will say it will be very difficult.” D.S. said he did not
“have an answer,” whether there was any justification for the
death penalty besides “protecting society.” He said he could
impose death on another human. When asked if he could impose
death on a defendant knowing the other option was life
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PEOPLE v. CARO
Opinion of the Court by Cuéllar, J.
imprisonment without parole, D.S. said, “I can’t answer that
kind of question. That’s too ethereal.” When pushed further on
this topic, D.S. responded, “I cannot say that absolutely I would
never do it” and that “[i]t’s possible. But I certainly have
expressed hesitation.”
The prosecutor challenged D.S. for cause. The trial court
excused D.S. because of his hesitation to impose the death
penalty and the limited society-protection rationale, which the
court believed D.S. “unequivocally stated” would be “the only
time” he would vote for death. Based on D.S.’s questionnaire
and voir dire answers, the court “was left with the definite
impression that the prospective juror would be unable to
faithfully and impartially apply the law.” The trial court
specifically noted D.S. “hesitated” when faced with the
possibility that life imprisonment without the possibility of
parole would satisfy D.S.’s society-protection rationale.
After weighing the relevant information, the trial court
determined that D.S.’s views substantially impaired his ability
to set aside his personal beliefs and consider both sentencing
options. Substantial evidence supports this conclusion. In his
questionnaire, D.S. gave equivocal responses about his ability to
vote for death. He believed he could be a fair and impartial
juror, but also indicated that he would “almost always” impose
life imprisonment without the possibility of parole. D.S. later
wrote that it would be “very difficult” to impose the death
penalty. These written answers certainly “are not magic
phrases,” and would not alone support the conclusion that he
was substantially impaired. (People v. Roldan (2005) 35 Cal.4th
646, 697 (Roldan); see also People v. Zaragoza (2016) 1 Cal.5th
21, 41 [where questionnaire responses do not “ ‘clearly reveal’ ”
an inability to perform the juror’s duties, the trial court must
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PEOPLE v. CARO
Opinion of the Court by Cuéllar, J.
examine the juror in court to ascertain the juror’s true state of
mind]; see also People v. Buenrostro (2018) 6 Cal.5th 367, 415.)
Here, however, substantial evidence supports the trial court’s
conclusion that D.S.’s questionnaire, combined with his
repeatedly equivocal voir dire responses on whether he could
consider both punishments, reflected that impairment. (See,
e.g., Duenas, supra, 55 Cal.4th at p. 12 [“Comments that a
prospective juror would have a ‘hard time’ or find it ‘very
difficult’ to vote for death reflect ‘a degree of equivocation’ that,
considered ‘with the juror’s . . . demeanor, can justify a trial
court’s conclusion . . . that the juror's views would “ ‘prevent or
substantially impair the performance of his duties as a
juror . . . ’ ” ’ ”]; Roldan, at p. 697.)
Caro argues that D.S.’s responses show the picture of a
thoughtful person who had not prejudged the evidence. But
D.S.’s thoughtfulness could be reasonably understood to indicate
unsureness whether his beliefs would allow him to ever impose
the death penalty in a particular case. (Duenas, supra, 55
Cal.4th at pp. 11-12 [“Many prospective jurors . . . ‘ “simply
cannot be asked enough questions to reach the point where their
bias has been made ‘unmistakably clear’ ” ’ ”].) As the trial court
noted, that equivocation became especially pronounced when
the prosecution pointed out that life imprisonment without the
possibility of parole might eliminate any potential threat to
society.3 (Cf. People v. Rountree (2013) 56 Cal.4th 823, 847
3
D.S.’s statement that he would only consider the death
penalty if the defendant is a danger “to society” is ambiguous as
to whether he meant society outside of prison or inside prison as
well — though at one point he acknowledged that he may be
talking about “danger to the public.” The jury can consider
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PEOPLE v. CARO
Opinion of the Court by Cuéllar, J.
[upholding juror excusal where answers could “hardly have been
more equivocal”]; cf. People v. McKinzie (2012) 54 Cal.4th 1302,
1342 (McKinzie) [upholding for cause excusal of jurors who
would only impose the death penalty in narrow circumstances
not at issue in the case].) In these circumstances, we defer to
the trial court’s determination that D.S. would have been
substantially impaired in carrying out his duties in the penalty
phase.
iv. Prosecution’s Files on Prospective Jurors
Caro contends that the trial court should have required
the prosecution to turn over its investigatory materials on
prospective jurors. The trial court agreed with the prosecution
that such materials were undiscoverable work product. In
People v. Murtishaw (1981) 29 Cal.3d 733, we gave trial courts
“discretionary authority to permit defense access to jury records
and reports of investigations available to the prosecution.” (Id.
at p. 767.) In June 1990, California voters approved Proposition
115, which added section 1054.6 to the Penal Code. It provides
that “[n]either the defendant nor the prosecuting attorney is
required to disclose any materials or information which are
[privileged] work product . . . .” (§ 1054.6.) For purposes of
section 1054.6’s discovery bar, work product includes a writing
“that reflects an attorney’s impressions, conclusions, opinions,
future dangerousness in prison (People v. Medina (1995) 11
Cal.4th 694, 766-767), but the prosecution cannot present expert
testimony on that issue (People v. Avila (2006) 38 Cal.4th 491,
610). Regardless, D.S.’s responses at the very least show that
he was not sure whether dangerousness in prison would ever
allow him to impose the death penalty.
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PEOPLE v. CARO
Opinion of the Court by Cuéllar, J.
or legal research or theories . . . .” (Code Civ. Proc., former
§ 2018, subd. (c), now § 2018.030, subd. (a); see Pen. Code,
§ 1054.6; People v. Zamudio (2008) 43 Cal.4th 327, 355 & fn. 14.)
We need not decide whether the discovery request here solely
sought work product or encompassed non-work-product
material because any potential error was harmless. For any
error of this type, it is “ ‘entirely speculative whether denial of
access caused any significant harm to the defense.’ ”4 (People v.
Pride (1992) 3 Cal.4th 195, 227; accord, Murtishaw, at p. 767.)
We deny Caro’s claim on that basis.
B. Issues at Trial
i. Clothing Seized from Emergency Room
Caro argues the trial court erred by allowing the
introduction of the clothing that Caro was found wearing the
night of the shootings. In the alternative, Caro argues her trial
counsel was constitutionally ineffective for not moving to
suppress this evidence. On the night of the shootings,
emergency medical personnel brought Caro from her home to
the hospital emergency room on two different
4
Nor has Caro persuaded us she is entitled to the limited
remand procedure used to remedy error under Pitchess v.
Superior Court (1974) 11 Cal.3d 531. In that context, a limited
remand for the defendant to establish prejudice is appropriate
because the reviewing court has already determined the
defendant demonstrated “good cause” for the discovery
requested below — including that the discovery is material to
the litigation. (See People v. Gaines (2009) 46 Cal.4th 172, 179-
181; City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74,
85 [“The information sought must . . . be ‘requested with
adequate specificity to preclude the possibility that defendant is
engaging in a “fishing expedition.” ’ ”].) Caro made no such
showing here.
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PEOPLE v. CARO
Opinion of the Court by Cuéllar, J.
“backboards” — flat, firm boards used to safely transport
injured patients. Deputy Jeffrey Miller arrived at the hospital
after Caro. Miller found Caro’s shirt, pajama shorts, and
underwear — which looked as if medical personnel had cut them
off of Caro’s body — spread out on one of these backboards.
Miller seized this clothing and gave it to a field evidence
technician.
Caro argues that the trial court should have excluded the
clothing-related evidence because Miller did not have a warrant.
Caro concedes, however, that defense counsel never brought a
suppression motion related to this evidence or objected to its
introduction on these grounds. This claim is thus forfeited. (See
People v. Miranda (1987) 44 Cal.3d 57, 80.)
In the alternative, Caro argues that her counsel at trial
was ineffective for failing to bring a suppression motion. To
establish ineffective assistance of counsel, Caro must show that
her counsel’s performance was deficient and that she suffered
prejudice from the deficient performance. (Strickland v.
Washington (1984) 466 U.S. 668, 687-692.) On direct appeal, if
the record “ ‘sheds no light on why counsel acted or failed to act
in the manner challenged,’ ” we must reject the claim “ ‘unless
counsel was asked for an explanation and failed to provide one,
or unless there simply could be no satisfactory explanation.’ ”
(People v. Wilson (1992) 3 Cal.4th 926, 936.) Where a defendant
claims ineffective assistance based on counsel’s failure to
litigate a Fourth Amendment claim, Strickland ’s performance
prong requires her to show that it was objectively
unreasonable — “that is, contrary to prevailing professional
norms” — to forgo the motion. (Kimmelman v. Morrison (1986)
477 U.S. 365, 385 (Kimmelman); see also People v. Lopez (2008)
42 Cal.4th 960, 966 (Lopez) [the defendant bears the burden of
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PEOPLE v. CARO
Opinion of the Court by Cuéllar, J.
showing counsel’s performance “ ‘ “fell below an objective
standard of reasonableness [¶] . . . under prevailing professional
norms” ’ ”].) Examining the Fourth Amendment claim’s merit
has a role to play here. For example, “[c]ounsel is not ineffective
for failing to make frivolous or futile motions.” (People v.
Thompson (2010) 49 Cal.4th 79, 122.) The prejudice prong of
Strickland then requires the defendant to “prove that [the]
Fourth Amendment claim is meritorious and that there is a
reasonable probability that the verdict would have been
different absent the excludable evidence.” (Kimmelman, at p.
375; accord, People v. Coddington (2000) 23 Cal.4th 529, 652
(Coddington); People v. Wharton (1991) 53 Cal.3d 522, 576
(Wharton).)
Caro fails to establish that a motion to suppress the
clothing would have been meritorious. Under the plain view
doctrine, an officer may seize an item without a warrant if (1)
the officer was lawfully in a place where the object could be
viewed; (2) the officer had a lawful right of access to the seized
item; and (3) the item’s evidentiary value was immediately
apparent. (See Horton v. California (1990) 496 U.S. 128, 136-
137; Payton v. New York (1980) 445 U.S. 573, 586-587;
Arizona v. Hicks (1987) 480 U.S. 321, 327; People v. Bradford
(1997) 15 Cal.4th 1229, 1295; see also U.S. v. Cellitti (7th Cir.
2004) 387 F.3d 618, 623.) The doctrine does not amount to a full
exception to the warrant requirement, but merely allows a
warrantless seizure where an officer lawfully views, and can
lawfully access, contraband or incriminating evidence.
(Bradford, at p. 1295; Horton, at p. 137, fn. 7 [holding that even
if incriminating evidence is in plain view in a suspect’s home, an
officer cannot enter the home and seize the contraband without
a warrant, absent exigent circumstances].)
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PEOPLE v. CARO
Opinion of the Court by Cuéllar, J.
In this situation, the incriminating nature of the
clothing –– covered in bloodstains after the shooting –– was
immediately apparent. Caro raises the possibility that because
she had shot herself in the head, the stains could have been her
own blood. Yet that possibility does not eliminate the strong
likelihood that some of the stains would link her or some as-yet-
unidentified assailant to her or her sons’ injuries.
Given the clothes’ evidentiary value, trial counsel would
need to establish Officer Miller did not have lawful access to
them in order to block their admission from trial. But the record
is inconclusive on this point, as it fails to reveal where Miller
was when he saw and seized the clothing from the board on
which emergency personnel transported Caro. That ambiguity
makes it quite difficult to assess the legality of Miller’s actions
viewing and seizing Caro’s clothes. On this record, then, we
cannot say the plain view doctrine was inapplicable, and Caro
has not carried her burden to “establish that [her] Fourth
Amendment claim ha[d] merit.” (Coddington, supra, 23 Cal.4th
at p. 652.)
ii. Fifth Amendment Challenge to Caro’s Hospital
Room Statements
Caro argues that two statements she made to Detective
Wade at the hospital should have been excluded from trial
because (1) she did not receive the warnings required under
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and (2) the
statements were involuntary. The day after the shootings, Caro
was moved to an intensive care unit (ICU) room after her
surgery. In the afternoon, Wade arrived in plain clothes, and
hospital personnel removed Caro’s breathing tube. Wade began
sitting with Caro and stayed with her, or near her room, for two
and a half to three hours before providing Caro Miranda
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PEOPLE v. CARO
Opinion of the Court by Cuéllar, J.
warnings. Detective Rivera was also present in plain clothes.
Wade recorded her conversation with Caro by placing a tape
recorder on top of one of the machines near Caro’s bed, or at
times, on the bed itself. Wade spent much of the interview
getting Caro ice chips, adjusting pillows, helping Caro sit up or
change positions, and relating information to nurses, such as the
fact that Caro wanted medication or that she was in pain.
Intermittently with this care, however, Wade asked Caro what
happened. Caro was in pain during much of the discussion with
Wade, but the level of pain seemed to decrease when the nurse
gave Caro a codeine injection. Before the nurse gave the
injection, she asked if Wade was “getting much” from Caro and
checked in with Wade to make sure she would not “mess up
[Wade’s] thing” by giving the injection. Wade responded that
the nurse should do “what [the nurse] would normally do.”
The two statements in dispute occurred at different times.
At some point in the first hour and a half of questioning, before
the codeine injection, Caro stated that she “might have fallen
down the stairs,” but also indicated that she did not remember.
About 45 minutes after the codeine injection, Detective Wade
heard Caro say she was bruised by “wrestling with a boy.”
After the second statement, Detective Wade continued to
ask Caro questions about what happened, but Caro indicated
that she did not remember, and asked whether her boys and
Xavier were there. Wade told Caro that her boys were hurt and
asked if she knew how they were hurt. Caro asked if it was
“something serious.” Wade told Caro that she was investigating
the death of Caro’s boys, and that Caro was suspected of hurting
them. Wade then gave Caro Miranda warnings, and Caro
invoked her right to counsel.
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Opinion of the Court by Cuéllar, J.
In addition to Detectives Rivera and Wade, a psychologist
hired by the district attorney, Susan Ashley, was present for
much of the pre-Miranda-warning interview. After Caro said
she might have fallen down the stairs, she noticed Dr. Ashley in
the room, and asked who she was. Wade identified her as
“Doctor Ashley” to Caro and may have mentioned she was a
psychologist from the district attorney’s office. Caro also noticed
a man from the district attorney’s office standing outside her
door at one point, and Wade told her who he was. Caro asked
why he was there and Wade told her he “was here because you
got hurt. And we’re trying to figure out what happened.” After
the first statement, but before the second, Caro asked a nurse
why Wade was there, and the nurse responded, “I don’t
know. . . . I’m not involved with that.”
The evidence showed that Detective Wade failed to give
Caro Miranda warnings before the two statements at issue.
Nonetheless, it also showed that she did not threaten or make
promises to Caro. The trial court also found that Wade did not
interfere with Caro’s medical treatment and did not do
“anything to overcome the will of” Caro. The trial court ruled
that Caro was not in custody for purposes of Miranda during the
Wade interview, and that Wade did not coerce an involuntary
statement from Caro. Caro now challenges both rulings.
Before they begin custodial interrogation of a suspect, the
police have an obligation to deliver Miranda warnings. This
familiar admonition warns the suspect of the right to remain
silent, that any statement may be used as evidence against him
or her, and that the suspect has a right to the presence of a
retained or appointed attorney. (People v. Leonard (2007) 40
Cal.4th 1370, 1399-1400 (Leonard).) The warning is meant to
protect the suspect’s privilege against self-incrimination, which
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Opinion of the Court by Cuéllar, J.
is jeopardized by the inherently coercive nature of police
custodial questioning. (Miranda, supra, 384 U.S. at pp. 478-
479.)
The purpose of Miranda guides the meaning of the word
“custody,” which refers to circumstances “that are thought
generally to present a serious danger of coercion.” (Howes v.
Fields (2012) 565 U.S. 499, 508-509.) Such a danger of coercion
is usually present where there has been a “ ‘ “formal arrest or
restraint on freedom of movement” of the degree associated with
a formal arrest.’ ” (People v. Stansbury (1995) 9 Cal.4th 824,
830, quoting California v. Beheler (1983) 463 U.S. 1121, 1125;
see also People v. Moore (2011) 51 Cal.4th 386, 394-395.) The
key question is whether, under all of the objective
circumstances, a reasonable person in the suspect’s position
would have felt free to terminate the interrogation. (Leonard,
supra, 40 Cal.4th at p. 1400; Howes, at p. 509; Thompson v.
Keohane (1995) 516 U.S. 99, 112.) But even if a person’s freedom
of movement has been curtailed, an “additional question” arises:
“whether the relevant environment presents the same
inherently coercive pressures as the type of station house
questioning at issue in Miranda.” (Howes, at p. 509; see also id.
at p. 510 [discussing Berkemer v. McCarty (1984) 468 U.S. 420].)
All objective circumstances of the interrogation are relevant to
this inquiry, including the site of the interrogation, the length
and form of questioning, and whether the officers have conveyed
to the subject that their investigation has focused on him or her.
(See Stansbury, at pp. 831-832.) This initial custody
determination does not depend on “the subjective views
harbored by either the interrogating officers or the person being
questioned.” (Stansbury v. California (1994) 511 U.S. 318, 323.)
We have not explicitly discussed the custody analysis in a
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medical setting, but a handful of courts have addressed the
issue. (See People v. Mosley (1999) 73 Cal.App.4th 1081, 1091;
U.S. v. Martin (9th Cir. 1985) 781 F.2d 671, 672-673; U.S. v.
Infante (1st Cir. 2012) 701 F.3d 386, 397-398; U.S. v. Robertson
(10th Cir. 1994) 19 F.3d 1318, 1320-1321; U.S. v. Jamison (4th
Cir. 2007) 509 F.3d 623, 629-633; U.S. v. New (8th Cir. 2007)
491 F.3d 369, 374; Wilson v. Coon (8th Cir. 1987) 808 F.2d 688,
689-690; Reinert v. Larkins (3d Cir. 2004) 379 F.3d 76, 85-87.)
Statements taken in violation of Miranda are
inadmissible in the government’s case-in-chief. The prosecution
may still use such statements for impeachment purposes. (E.g.,
People v. Pokovich (2006) 39 Cal.4th 1240, 1247; People v. Peevy
(1998) 17 Cal.4th 1184, 1193.) What the government may not
use against a defendant for any purpose are any of her
involuntary statements. We consider statements
involuntary — and thus subject to exclusion under the Fifth and
Fourteenth Amendments of the federal Constitution –– if they
are the product of “coercive police conduct.” (People v. Williams
(2010) 49 Cal.4th 405, 437.) We evaluate this question by
looking to the totality of the circumstances to determine
“whether the defendant’s ‘ “will has been overborne and his
capacity for self-determination critically impaired” ’ by
coercion.” (Id. at p. 436.) The presence of police coercion is a
necessary, but not always sufficient, element. (Ibid.) We also
consider other factors, such as the location of the interrogation,
the interrogation’s continuity, as well as the defendant’s
maturity, education, physical condition, and mental health.
(Ibid.)
When Detective Wade delayed giving Miranda warnings
to Caro, she tread on perilous ground. True, Caro was not
directly restrained by officers or informed she was under arrest.
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And she eventually received Miranda warnings — though only
after two and a half hours of Wade’s off-and-on questioning.
Hospital staff moved freely in and out of her hospital room.
Wade’s urging one nurse to do “what [the nurse] would normally
do” and the somewhat intermittent nature of Wade’s presence
and questioning as hospital personnel tended to Caro or Caro
rested may well have indicated to a reasonable person that she
could be left to herself, if desired. And yet certain exchanges
between Wade and the staff, and between Wade and Caro
herself, may have suggested to a reasonable person that the
police exercised some authority over whether she could
terminate the interview. Specifically, we note the constant
presence of one or more law enforcement officers and the
suggestion of two staff members that they would not, or could
not, interfere with the interview. Caro was also isolated from
friends and family.
Such circumstances heighten the risk of coercion. In
Mincey v. Arizona (1978) 437 U.S. 385, the high court concluded
a hospitalized suspect did not give voluntary statements after
an officer engaged in “virtually continuous questioning” of a
suspect who had requested to be left alone. (Id. at p. 401.)
Because the officer persisted despite Mincey’s being “weakened
by pain and shock” and “barely conscious,” and the “clear”
indications “Mincey wanted not to answer” his questions (id. at
p. 401), the court concluded Mincey’s “will was simply
overborne” (id. at pp. 401-402).
The record of the trial court’s decision indicates it made a
contrary finding here — that Wade did not do “anything to
overcome” Caro’s will or interfere with her medical treatment.
Unlike the defendant in Mincey, Caro gave no clear indications
prior to the challenged statements that she wished to end her
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Opinion of the Court by Cuéllar, J.
interaction with Wade. But unquestionably, Caro’s situation
here constrained her physical mobility: she was confined to her
ICU bed with a broken foot and a drain in her head from brain
surgery performed just hours before. She was fatigued and in
significant pain. While a defendant’s “compromised physical
and psychological condition” alone will not render her
statements involuntary (People v. Panah (2005) 35 Cal.4th 395,
471), that condition is relevant to the inquiry and presents an
opportunity for abuse.
Whether the extent of Detective Wade’s engagement was
sufficient to violate Caro’s constitutional rights is not a question
we need to resolve. Even assuming the interview violated
Miranda or the statements were involuntary, their admission
was harmless beyond a reasonable doubt. The prosecution
introduced the two statements to disprove the theory that
Xavier inflicted the injuries. The prosecution also used these
statements to argue that Caro remembered killing her children
and was lying about her amnesia. But in retrospect, taking into
account the full record of the proceedings, these statements did
not have high value in the overall evidentiary calculus.
For completeness, the jury heard testimony on Caro’s
other statements to Detective Wade before and after indicating
she could not remember what happened. This included Wade’s
testimony that earlier in their conversation, she asked Caro
whether she had “take[n] a fall or something,” and Caro asked
Wade what had happened. In addition, both statements had
plausible alternative explanations consistent with the defense’s
theory and Caro’s purported lack of memory. Caro’s statement
that she “might” have fallen down the stairs did not foreclose
the possibility that Xavier caused her falling down the stairs —
the prosecution’s theory that she fell down the stairs while
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Opinion of the Court by Cuéllar, J.
“running through that house quite angry” was entirely
speculative. And the defense presented testimony that, in an
enhanced version of the tape, Caro was saying, “You have to ask
the boys” rather than “wrestling with a boy.” There was also
evidence in the record that Xavier had kicked Caro “on the legs”
and in the “buttocks,” presenting a potential alternative
explanation for Caro’s bruises. Given the potential to reconcile
the challenged statements with Caro’s stating she could not
remember what happened, we think it unlikely the jury put
much weight on them as proving Caro remembered the killings.
Had these statements been omitted, moreover, it would
have been unlikely to affect consideration of the case’s
compelling forensic evidence. Expert testimony about the
bloody clothes Caro was found wearing provided a wealth of
incriminating information. Five blood stains on her shorts
matched Christopher’s DNA profile — Joey and Caro potentially
contributed minor amounts of DNA to one of these stains each.
One of these stains was yellow and appeared to be brain matter.
Three other stains on Caro’s shorts matched Joey’s DNA. Some
of the stains on the shorts appeared to come from projected
blood. A prosecution witness testified that gunshot mist likely
produced one of the stains that matched Christopher’s blood.
While a defense expert testified that it was a stain more
consistent with a beating, the defense expert acknowledged that
the only evidence of violence against the children in the case
involved gunshots. The shirt Caro was found wearing had 29
blood stains — two matched Joey’s DNA, with Christopher and
Michael as possible minor contributors, a control sample taken
for one stain matched Christopher, and 19 stains matched
Caro’s DNA profile.
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Opinion of the Court by Cuéllar, J.
Evidence gleaned from the house completed the
evidentiary picture. Two bloody handprints matching Caro
were on the door jamb in the bathroom between Joey’s room and
Michael and Christopher’s room. Blood on the doorframe next
to the hand prints tested positive for Joey’s blood, with minor
contributions from Christopher. Blood on the sink in the
bathroom matched Joey’s DNA, and one sample also had a
potential minor contribution from Christopher.
Further circumstantial support came from expert
testimony regarding Caro’s own gunshot wound. Prosecution
experts opined that the bullet damage found in the ceiling and
in the wall above the bed was consistent with the gun being fired
at an upward angle. The surgeon who operated on Caro testified
that the bullet travelled upwards, and all of the bullet fragments
were above the bullet hole in Caro’s head.
In contrast, the evidentiary support for the defense’s
alternative theory, which identified Xavier as the shooter, was
comparatively weak. It ultimately did not sway the jury to
doubt Caro’s guilt, and we are convinced excluding the
challenged statements would not have made a difference. A
defense expert opined that Caro did not shoot herself because
the gun was held at an awkward, downward angle. But he did
not have “the slightest idea” how a bullet fragment hit the
ceiling. Prosecution and defense experts agreed that the blood
stains on Xavier’s sweatpants, shirt, and jacket were almost
certainly transfer stains. There was one projected bloodstain on
Xavier’s sweatpants, matching Michael’s DNA. But as one
expert testified, it was unlikely any of the stains came from the
type of high-velocity spatter typically associated with shooting
someone at close range. This would not have supported a
conclusion that Xavier shot Michael. Instead, it was consistent
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Opinion of the Court by Cuéllar, J.
with Xavier’s testimony that he had tried to give CPR to Michael
and was carrying G.C., whose socks had become soaked in
Michael’s blood. Moreover, tests found gunshot residue, but no
blood, on swabs of Xavier’s hands — though Xavier testified he
rinsed them at some point in the night. On the other hand, a
swab of Caro’s right palm did show the presence of blood.
Finally, the evidence showed that Xavier did not have
much time between when he arrived home and called 911. A
vehicle similar to Xavier’s Mercedes entered the parking area at
9:24 p.m. and left at 10:36 p.m. The surveillance tape captured
no other Mercedes leaving during the relevant
timeframe — making defense counsel’s assertion that Xavier
left earlier implausible. The evidence largely showed that it
takes 40 to 46 minutes to drive from Xavier’s office to the family
home — only one witness, Caro herself, testified to a shorter
time (30 minutes). And the 911 call was at 11:21 p.m. Based on
the prosecution’s evidence, Xavier would have only 5 minutes
maximum between arriving home and calling 911. If the jury
accepted Caro’s self-serving estimated driving time, he still
would have no more than 15 minutes. A reasonable jury would
not have believed Xavier shot his wife and children, hid all the
blood evidence that might link him to the crime, and staged
blood evidence corroborating his testimony within that window.
Even if the jury accepted the possibility of this unlikely sequence
of events, it stood at odds with the forensic evidence.
In considering the picture that emerges from this
evidence, we are persuaded beyond a reasonable doubt that the
jury would not have reached a different result in this case had
the court excluded the challenged statements.
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Opinion of the Court by Cuéllar, J.
iii. Ineffective Assistance of Counsel for Failure To
File a Fourth Amendment Pretrial Suppression
Motion
Caro argues her counsel was constitutionally ineffective
for failing to bring a pretrial suppression motion based on the
Fourth Amendment to the federal Constitution. Caro asserts
that such a motion could have challenged the introduction of
(1) Caro’s bloody clothing; (2) the scrapings of Caro’s hands and
feet after bags were placed over her appendages to preserve
evidence; (3) photographs of Caro during surgery; (4) bullet
fragments removed from Caro’s head; (5) statements Caro made
in the surgery recovery room; and (6) statements Caro made in
her ICU room.
While she was unconscious, Caro was transported from
the crime scene to the hospital. There, Caro’s clothes were cut
off and left on the backboard used to transport her, where an
officer recovered them. A surgeon removed bullet fragments
from Caro’s head. Detective Rivera and forensic criminologist
Debra Schambra were in scrubs and present during the surgery.
Pictures taken by Rivera, Schambra, and other officers were
admitted into evidence. After the surgery, a nurse gave the
bullet fragments to Rivera, who later gave them to Schambra.
Before the surgery, hospital staff placed bags over Caro’s hands
and feet to preserve evidence, and in the recovery room,
Schambra took fingernail scrapings and performed a gunshot
residue test. Rivera testified to statements Caro made in the
recovery room and her ICU room. Later, Detective Wade asked
Caro a number of questions in her hospital room, and Dr.
Ashley, a psychologist, listened to a portion of that questioning.
We have already addressed Caro’s ineffective assistance of
counsel claim arising from the failure to move to suppress Caro’s
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Opinion of the Court by Cuéllar, J.
bloody clothing. In this part, however, we address a different
set of issues implicated by Caro’s arguments. The Fourth
Amendment limits searches and seizures where a defendant has
a reasonable expectation of privacy in the place searched or item
seized. This encompasses the defendant’s property and
possessory interests (see People v. Valdez (2004) 32 Cal.4th 73,
122), but also any privacy expectation “ ‘that society is prepared
to recognize as reasonable’ ” (Carpenter v. United States (2018)
___ U.S. ___ [138 S.Ct. 2206, 2213]). So we must examine what
reasonable expectation of privacy Caro had in her physical
person and in other areas of the hospital, such as the operating
room, the recovery room, and her ICU room.
Caro’s primary contention is that Detective Wade violated
the Fourth Amendment by entering her ICU room and then
making observations and hearing Caro’s statements, both before
and after the administration of Miranda warnings. (See People
v. Cook (1985) 41 Cal.3d 373, 381 [“the police may not intrude
into a hospital room” to see or hear the activities within “simply
because hospital personnel routinely go in and out”].) Three
statements were admitted from Wade’s conversation with Caro:
Caro indicated that she may have broken her foot by falling
down the stairs; that she might have gotten hurt by “wrestling
with a boy”; and after receiving Miranda warnings and invoking
her right to a lawyer, Caro spontaneously asked about where
G.C. was located (and not about the other children).
As we earlier concluded, the first two statements were
harmless beyond a reasonable doubt. Any claim of ineffective
assistance of counsel based on these statements necessarily fails
for the same reason. (See, e.g., Wharton, supra, 53 Cal.3d at p.
576 [defendant must show prejudice to prevail on a claim of
ineffective assistance of counsel].) We also conclude that
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Opinion of the Court by Cuéllar, J.
excluding the third statement, concerning G.C., would not
produce a reasonable probability of a different result in light of
the compelling forensic evidence and implausibility of the
defense’s alternative theory. Counsel’s failure to have these
statements excluded on Fourth Amendment grounds or
otherwise did not prejudice Caro.
Caro also asserts pictures taken of her in the operating
room and in the recovery room violated her Fourth Amendment
rights. At least one state has held that a defendant has no
reasonable expectation of privacy in an operating room because
of “a patient’s traditional surrender to his or her physician of the
right to determine who may and may not be present during
medical procedures.” (State v. Thompson (Ct.App. 1998) 222
Wis.2d 179, 192 [585 N.W.2d 905].) But even though Caro may
have had no dominion over the operating and recovery rooms,
concerns about incursions on the privacy we maintain in our
bodies are heightened during medical procedures. (See, e.g.,
Sanders v. American Broadcasting Companies, Inc. (1999) 20
Cal.4th 907, 917 [citing cases where pictures of a patient in a
hospital constituted an actionable intrusion upon seclusion
under tort law]. But see Hernandez v. Hillsides, Inc. (2009) 47
Cal.4th 272, 294, fn. 9 [indicating that state tort law privacy
rights are not necessarily coextensive with the 4th Amend.].)
Nonetheless, we need not consider whether or in what
circumstances the government’s taking of surgical images may
invade a defendant’s privacy. Caro fails to adequately explain
why the exclusion of these pictures would have, with a
reasonable probability, altered the outcome of the case. Caro’s
bloodstained clothes, with the high-velocity spatter and the
potential piece of scalp, also established Caro’s presence around
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Opinion of the Court by Cuéllar, J.
her children when they were shot, and, in the testimony of the
prosecution expert, that she pulled the trigger.
Caro similarly offers only cursory, unpersuasive
arguments regarding any prejudice from the fingernail scraping
and gunshot residue evidence police collected. To the extent
those fingernail scrapings indeed showed the blood of Caro’s
children, there was other evidence that Caro came in contact
with her children’s blood.
Caro also points to Detective Rivera’s presence in the
recovery room and the ICU room. Rivera testified to Caro’s
demeanor when he asked her questions, and when her surgeon
asked her questions. But Caro fails to prove prejudice: her
nurse and surgeon testified to Caro’s demeanor in these
timeframes, so there is not a reasonable probability that the
exclusion of Rivera’s testimony on these issues would have
affected the outcome of the case.
Finally, Caro argues that the recovery of bullet fragments
from her head during surgery was an illegal seizure. The Fourth
Amendment limits only governmental activity. (See, e.g.,
United States v. Jacobsen (1984) 466 U.S. 109, 113.) Thus, the
removal of a bullet by medical personnel acting independently
of law enforcement directives does not implicate the rights
therein. A hospital nurse handed the bullets from Caro’s head
over to the police, and Caro fails to address whether the nurse
was acting at the request of officers when doing so. (See
Massachusetts v. Storella (1978) 6 Mass.App.Ct. 310, 315-316
[345 N.E.2d 348] [upholding finding that nurse was not a
government agent in similar circumstances].) Nor does she
explain why she retained a property interest or reasonable
expectation of privacy in the fragments once removed. (See, e.g.,
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Opinion of the Court by Cuéllar, J.
Commonwealth v. Johnson (Pa. 1999) 727 A.2d 1089, 1098
[holding the defendant had no reasonable expectation of privacy
with respect to a bullet removed from him during surgery].) And
even if officers improperly seized the fragments, Caro fails to
meaningfully address any resulting prejudice.
Caro argues that the evidence addressed here was
cumulatively prejudicial. But for some she fails to show that the
evidence should have been excluded, and she does not persuade
us other allegedly excludable evidence was cumulatively
prejudicial. Caro’s Strickland claim must fail. (See
Kimmelman, supra, 477 U.S. at p. 375.)
iv. Denial of Request for Continuance
Caro argues the trial court abused its discretion and
violated due process by failing to continue a hearing on a motion
to strike evidence that Caro asked about G.C. At trial, on
September 17, 2001, Detective Wade testified that Caro asked
about where G.C. was located, but not the three children who
had been killed. On the next day of trial, September 18, 2001,
Caro moved to strike Wade’s testimony about G.C., asserting the
statement violated Miranda and her Fourth Amendment right
to privacy. Caro’s Miranda argument asserted that Wade
elicited the statement about G.C. by interrogation after Caro
invoked her right to counsel. The Fourth Amendment argument
asserted that Wade’s presence in the hospital room violated
Caro’s reasonable expectation of privacy.
The hearing on the motion spanned over three days. The
hearing began on the afternoon of the next day, September 19,
2001. The prosecution called Detective Wade to testify. The
defense’s cross-examination of Wade went long, so the trial court
continued the hearing to the following morning. The following
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Opinion of the Court by Cuéllar, J.
day, September 20, 2001, the defense cross-examined Wade for
a short amount of time in the morning and in the afternoon.
During the afternoon cross-examination, the trial court asked
defense counsel for a time estimate on any further evidence in
the hearing. Defense counsel indicated that she needed 20
additional minutes to cross-examine Wade, and 10 to 15 minutes
to present the testimony of Nina Priebe, a social worker who
worked at the hospital. Because of Ms. Priebe’s limited
availability, defense counsel requested — and the trial court
allowed — the hearing to continue to the following morning
rather than later that day. The trial court did so with some
trepidation, given the potential unavailability of prosecution
witnesses the following week.
The next morning, on September 21, 2001, Priebe testified
that she was a social worker at the hospital, and worked in the
ICU on the day Detective Wade questioned Caro. Priebe heard
screaming from Caro’s room (likely right after Wade told Caro
that her children had died), but did not go in because a nurse,
Debbie Anderson, had told her that “police had asked us not to
comfort” Caro. The prosecution objected on hearsay grounds,
and the trial court sustained the objection.
After Priebe’s testimony, defense counsel stated that she
wanted to call Nurse Anderson as a witness, but indicated that
she had been unable to contact her, and wanted to consult with
an investigator. Anderson had testified in the case previously
as a prosecution witness. But defense counsel stated she had
been unable to contact Anderson because the only contact
information defense counsel had was Anderson’s work phone
number, and Anderson had not been to work the prior two days.
The court denied the request because “[a]ll parties knew today
was the day we were going to have the hearing”; defense counsel
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Opinion of the Court by Cuéllar, J.
“had ample opportunity to have [her] witnesses present[;] . . .
[a]nd the Court ha[d] been I believe extremely generous in
allowing time for this hearing and for other hearings that have
been occurring at the — the last minute.” Caro now argues the
denial of a continuance was an abuse of the trial court’s
discretion and a violation of due process.
The decision to continue a hearing so a party can secure
the presence of a witness is one within the trial court’s
discretion. (People v. Roybal (1998) 19 Cal.4th 481, 504.) A trial
court does not abuse its discretion in denying a continuance
unless the defendant establishes good cause for a continuance.
(Ibid.) Good cause requires a defendant to show that he or she
exercised due diligence in pursuing the witness’s presence, the
witness’s expected testimony was material and not cumulative,
the testimony could be obtained within a reasonable time, and
the facts the witness would provide could not otherwise be
proven. (Ibid.)
We conclude the trial court did not abuse its discretion. As
the trial court observed, counsel for both parties knew that the
final part of the hearing would occur on September 21, 2001, a
schedule somewhat determined by prosecution witness
availability. Defense counsel did not raise the possibility of
calling Anderson until the last minute. And Priebe’s testimony
that Anderson said that police told Anderson hospital staff
should not comfort Caro was clearly hearsay if offered for the
truth of the fact that police made that statement to Anderson.
So counsel could have predicted the need for Anderson’s
testimony. Defense counsel asserted that she had no way of
contacting Anderson because she had not been at work for two
days, but defense counsel failed to explain what steps she had
taken to contact Anderson, when those efforts were made, and
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Opinion of the Court by Cuéllar, J.
whether Anderson could be found in a reasonable time. Defense
counsel also failed to argue that Anderson was the sole witness
who could establish a police policy against comforting Caro that
night. So the trial court did not abuse its discretion by denying
a continuance.
Moreover, the trial court denied the motion to strike
because (1) the statement at issue was “spontaneous” rather
than the result of an interrogation under Miranda, and (2) the
court had no jurisdiction to hear the Fourth Amendment issue.
Anderson’s testimony that police told hospital staff not to
“comfort” Caro would have been irrelevant to the resolution of
these issues. The trial court also concluded the statement was
spontaneous and “voluntarily [made] by” Caro. Caro contends
that Anderson’s proposed testimony that hospital staff were
asked to refrain from comforting Caro is relevant to whether
Caro’s spontaneous statement uttered after the Miranda
warning was involuntary. Although such proposed testimony
may be relevant in principle, it does not support Caro’s
contention in this case because Caro’s statement was still a
spontaneous utterance, not the product of police coercion. (See
Colorado v. Connelly (1986) 479 U.S. 157, 167.)
Nothing in the record shows that officers sought to limit
Caro’s medical care or access to an attorney, and at the time the
statement was made, Detective Wade was actively trying to find
Caro’s mother so that she could come comfort Caro. Caro’s
further contention that the testimony may have justified
reconsideration of the trial court’s prior Miranda and
voluntariness findings is purely speculative. If Anderson’s
testimony would have warranted such an action, counsel might
have obtained a declaration from Anderson and moved for
reconsideration of the court’s prior Miranda ruling, but did not
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Opinion of the Court by Cuéllar, J.
do so. So the trial court did not abuse its discretion or violate
any constitutional rights by failing to grant the continuance.
v. Exclusion of Evidence Assertedly Implicating
Right to Present a Defense
a. Records from Xavier’s Therapist
Caro argues that the trial court erred by refusing to review
and order the disclosure of records from Xavier’s visits to a
therapist. Before trial, Caro subpoenaed records maintained by
Xavier’s therapist. The therapist moved to quash the subpoena,
relying on the psychotherapist-patient privilege and the right to
privacy. The therapist also argued that Caro did not have the
right to pretrial in camera review of the records under People v.
Hammon (1997) 15 Cal.4th 1117 (Hammon). Xavier supported
the therapist’s motion. Caro opposed the motion. After a
hearing, the trial court found that the psychotherapist-patient
privilege applied and that our decision in Hammon prevented
pretrial disclosure of privileged information. The trial court also
found that Caro failed to establish “good cause” because she had
not shown a “reasonable likelihood that the documents in
question contain information that is both material and favorable
to the defense and that the same or comparable information is
not obtainable from nonpriv[i]leged sources.”
Before us, Caro argues she has a federal and California
constitutional right to an in camera hearing to examine Xavier’s
psychotherapy records, based on her right to confront and cross-
examine witnesses. Caro contends that our decision in
Hammon, which rejected such an argument, was wrongly
decided. In Hammon, we declined to provide a pretrial right to
discovery under the confrontation clause, and instead found that
any such right under the confrontation clause attaches at trial.
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Opinion of the Court by Cuéllar, J.
(Hammon, supra, 15 Cal.4th at pp. 1127-11288.) Although the
advent of digitized, voluminous records may conceivably raise
new and challenging issues in this context, we decline to
reconsider Hammon on these facts, which involve
psychotherapy records from the relatively short period of time
from August 4, 1999, to November 22, 1999. Moreover, Caro
does not argue that the lack of pretrial discovery prejudiced her
ability to request psychotherapy records at trial, or somehow
altered her trial strategy. Nor does Caro argue on appeal that
any requests for psychotherapy records were improperly denied
at trial. In addition, Caro’s primary contention on appeal that
the records might have shown that Xavier fired Caro to
consummate his affair rather than to fix the office’s finances is
speculative at best. We cannot conclude that the trial court’s
ruling interfered with Caro’s right to confrontation in this case.
b. Admission of Child Autopsy Photos
Caro argues that four admitted autopsy photos showing
the victims’ wounds were so gruesome and inflammatory that
their admission was unduly prejudicial under Evidence Code
section 352. The trial court has broad discretion over the
admission of photographs that are alleged to include disturbing
details. (Roldan, supra, 35 Cal.4th at p. 713; see also People v.
Bonilla (2007) 41 Cal.4th 313, 353-354.) We routinely uphold
the admission of autopsy photos to establish the placement of a
victim’s wounds and clarify the testimony of prosecution
witnesses. (See, e.g., McKinzie, supra, 54 Cal.4th at pp. 1351-
1352.) The prosecution is not limited to proving its case “solely
from live witnesses; the jury is entitled to see details of the
victims’ bodies to determine if the evidence supports the
prosecution’s theory of the case.” (People v. Gurule (2002) 28
Cal.4th 557, 624.)
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Opinion of the Court by Cuéllar, J.
The prosecution sought to introduce 14 autopsy photos.
The trial court excluded four of these photos as unduly
prejudicial and cumulative. It allowed the introduction of the
remaining 10 photographs. Caro now challenges four of the 10
admitted photographs. People’s exhibit 40A was a close-up
picture of the gunshot wound to Joey’s head, showing some
tearing around the wound, which a prosecution witness used to
opine that the gun was touching Joey’s head when fired.
Similarly, People’s exhibit 42B was a close-up picture of the
wound to Michael’s head, which similarly was used by an expert
to opine that Michael suffered a contact gunshot wound because
of visible hemorrhaging and tearing around the wound. People’s
exhibit 44B showed a large, gaping torn injury in Christopher’s
head, which demonstrated the damage caused by two gunshot
wounds. People’s exhibit 44C was a closer view of the wound
Christopher suffered, which a prosecution witness used to
explain how the bullet entered and exited Christopher’s skull.
Each of these photos served an evidentiary purpose by
supporting the expert’s explanation of how the shootings
occurred. Although the cause of death was not disputed at trial,
these photos provided valuable context for understanding how
the expert reached her conclusions about the nature of the
shootings. (See Booker, supra, 51 Cal.4th at p. 170
[“photographs of murder victims are relevant to help prove how
the charged crime occurred”].) Photographic evidence that Joey
and Michael were killed by contact gunshot wounds and that
Christopher was shot twice tended to demonstrate
premeditation, deliberation, and the intent to kill. Moreover, we
cannot conclude that these photos were unduly prejudicial.
Although these photos constituted graphic images of gunshot
wounds, even showing the insides of the victims’ heads in the
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case of exhibits 42B and 44B, we do not believe they were “ ‘so
gruesome as to have impermissibly swayed the jury.’ ” (People
v. Burney (2009) 47 Cal.4th 203, 243, italics added.) The
pictures were limited to the result of the gunshot wounds
themselves. They included no gratuitous details, unlike the
pictures at issue in cases where courts have found an abuse of
discretion. (See, e.g., People v. Marsh (1985) 175 Cal.App.3d
987, 996 [finding prejudicial photos of a child’s dangling bloody
scalp with, in the background, the child’s blood-spattered torso
“with the ribcages rolled back to expose the bowels”].) On
balance, we conclude that the trial court did not abuse its
considerable discretion in finding that the prejudice arising from
the photographs did not substantially outweigh their probative
value.
c. Rulings on the Parties’ Objections
Caro argues that the trial court erred in sustaining
multiple prosecution objections and overruling multiple defense
objections at trial. We review evidentiary rulings, including
ultimate rulings on whether evidence should be excluded as
hearsay, for abuse of discretion. (People v. DeHoyos (2013) 57
Cal.4th 79, 131, 132.) When a hearsay exception requires
foundational findings of fact, we review such findings for
substantial evidence. (Id. at p. 132.)
First, Caro contends that the trial court erred by allowing
Xavier to testify that Caro gave more money to her parents than
was documented by the checks in evidence. A lay witness must
have personal knowledge of the facts to which he or she testifies.
(Evid. Code, § 702.) Xavier testified “those checks represent only
a fraction of what was paid to [Caro’s parents] over that period
of time for their expenses.” Caro contends the prosecution laid
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insufficient foundation of Xavier’s personal knowledge of how
much Caro paid to her parents. But the prosecution established
earlier that Xavier reviewed his corporate and personal finances
in August 1999, which established a foundation for Xavier’s
personal knowledge. Thus, the trial court did not abuse its
discretion.
Second, Caro argues that the trial court erred by not
allowing defense counsel to cross-examine Xavier about the
location where he had sex with Laura G., the woman with whom
he was having an affair, after the shootings. After the trial
began, Xavier told the prosecution that he had sex with Laura
at the Marriott Hotel where Xavier stayed for two or three
months. Laura told the police that she and Xavier had not had
sex at the Marriott Hotel, but had continued their affair. At
trial, Xavier denied having sex with Laura at a hotel — a
statement inconsistent with his prior statement. The trial court
excluded this evidence because it considered the continued
affair — but not its precise location — relevant to the case. The
trial court alternatively excluded the evidence because its
probative value was substantially outweighed by “its undue
influence, bias, and consumption of time” under Evidence Code
section 352. The trial court has broad discretion to exclude
impeachment evidence where the subject matter is “collateral”
with “no logical bearing on any material, disputed issue.”
(People v. Contreras (2013) 58 Cal.4th 123, 152.) The location of
a witness’s affair may be relevant in some cases. But here, Caro
sought to establish a potential motive for Xavier to kill his
children by showing the continued affair. Caro did not argue
below, and fails to argue on appeal, how the location would be
relevant to anything except Xavier’s inconsistency and
credibility on that issue. Moreover, given its collateral nature,
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the trial court did not abuse its discretion by alternatively
excluding the evidence under section 352. This is especially true
because other evidence was elicited from Xavier showing the
relationship continued soon after the shootings: He testified
that he kissed Laura and was still in love with her in December
1999 or January 2000. The precise location of the affair’s
continued consummation was a minor collateral issue. The trial
court did not abuse its discretion.
Third, Caro argues that the trial court erred by allowing
prosecution expert Edwin Jones to testify that the prosecution
made Caro’s underwear available to the defense. In
Coddington, supra, 23 Cal.4th at page 606, we held the work
product privilege is violated where the prosecution asks
questions that “invit[e] the jury to infer that . . . other [defense]
experts were not called because their testimony would not be
favorable.” Here, Jones was a prosecution forensic scientist who
testified on defense cross-examination that he examined Caro’s
underwear on July 10, 2001. Defense counsel asked if that was
the first time Jones had examined the underwear, and he
replied that he examined it “on a date earlier than that when
other examiners were looking at [it],” those other examiners
being “Richard Fox or Herb MacDonnell. One of those two or
both.” On redirect, the prosecution asked, “[W]ho is Richard
Fox?” and defense counsel objected to the question under
Coddington. Though, defense counsel said she would not object
to testimony that the prosecution made the underwear available
to the defense. The trial court sustained the objection. The
prosecution then asked Jones if he “provide[d] access to that
particular item to defense experts?” He replied, “Yes,” and
defense counsel did not object. Defense counsel waived a claim
challenging this question by saying she would not object to
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testimony that the prosecution made the underwear available to
the defense. To the extent the question that was asked exceeded
the scope of the waiver, Caro forfeited any claim by failing to
object. (People v. Seumanu (2015) 61 Cal.4th 1293, 1365.)
Moreover, the testimony was admissible. (See People v. Scott
(2011) 52 Cal.4th 452, 489.) The trial court did not abuse its
discretion.
Fourth, Caro contends the trial court abused its discretion
by not allowing a police officer to testify that Xavier told him
that a psychotherapist advised Xavier to increase Caro’s Prozac
dosage. Defense counsel proffered this testimony to impeach
Xavier’s testimony on what he told police about Caro’s Prozac
and to show that Xavier was trying to convince the police that a
professional agreed with the increased Prozac prescription.
Earlier in the trial, defense counsel had asked Xavier, “Did you
tell the police when you were interviewed initially that your
psychologist had prescribed Prozac for Cora?”5 Xavier
responded, “I don’t recall if I used those words when I spoke to
the sheriff’s department.” When asked if he had discussed
Prozac with the police, Xavier stated, “To the best of my
recollection, I mentioned to [the police] that Cora had been
started on Prozac by me.” Xavier denied that he tried to
intentionally mislead the police about who prescribed the Prozac
to Caro.
The trial court held that the police officer could not testify
to Xavier’s statement to police that a psychotherapist had
advised Xavier on prescribing Prozac to Caro. According to the
trial court, this was not an inconsistent statement that fell
5
Trial witnesses at times referred to Caro by her nickname,
“Cora.”
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within a hearsay exception. To the extent this testimony was
proposed for purposes of showing Xavier’s attempt to seem more
credible to police, the trial court held that, on the record before
the court, Caro had not established a statement that implied
such an attempt. Indeed, defense counsel indicated that they
had not yet “gotten to” that part of the transcript of the police
interview.
We conclude any error was harmless. If the evidence was
admitted for its truth, it would not have harmed — and may
have bolstered — Xavier’s credibility, as evidence that he
received advice about Caro’s Prozac. Moreover, the purported
inconsistency in the statement would have been unlikely to alter
the jury’s evaluation of Xavier’s credibility because defense
counsel’s question about what Xavier told police was general,
and he added the caveat that he was responding to the “best of
[his] recollection.” This evidence also would not have provided
much support to the defense theory that Xavier sought to
manipulate the police. Xavier simultaneously told police that
he was the one who actually prescribed the Prozac; the advice of
a family therapist not allowed to prescribe Prozac herself would
not have added much legitimacy to his decision. Therefore,
there is no reasonable probability this evidence would have
changed the trial’s outcome.
Fifth, Caro argues that the trial court erred by excluding
the defense’s proposed question to Caro, during direct
examination, about whether Xavier told her he had kept his
appointment with a divorce lawyer. On defense objection, the
trial court held that the question called for hearsay and the
answer would not be relevant to Caro’s proposed inconsistent
statement hearsay exception theory. Some questions later, Caro
testified to believing Xavier had not kept the appointment with
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the divorce lawyer based on Xavier’s statements to her. Caro
argues on appeal that this was the nonhearsay purpose for
which the excluded testimony should have been admitted. But
since this fact was established by the later testimony, no
possible prejudice arose from the prior ruling.
Sixth, Caro argues that the trial court erred by allowing
Detective Wade to testify to what Juanita said about Caro’s
statements. In the hospital, Juanita asked Caro, “Why did you
do this?” and then said a prayer over Caro. During the prayer,
Caro said “My babies. My babies. I’m sorry. I’m sorry.” The
prosecution sought to introduce evidence of Juanita’s later
statement to Wade that recounted Caro saying that she was
“sorry for what happened to my babies.” Defense counsel
objected that the testimony constituted Juanita’s speculation
about why Caro was sorry. The trial court disagreed and found
that Juanita was not speculating, but rather was attributing the
statement to Caro. In context, the trial court reasonably
interpreted Juanita’s statement as reporting what she thought
Caro had said in response to her question asking why Caro did
it. To the extent another interpretation was possible, we cannot
conclude that the trial court abused its discretion by resolving
this factual dispute in a reasonable manner. (See People v.
Thornton (2007) 41 Cal.4th 391, 429 [“The court’s ruling did not
fall outside the bounds of reason”].)
Seventh, Caro argues that the trial court should have
allowed her to introduce transcript excerpts containing
statements Xavier made to Juanita after the shootings. In a
conversation recorded by Deputy Anthony Tutino, Xavier told
Juanita the following: “[Caro] shot them in the head. She
wasn’t messing around.” Defense counsel argued that this
statement was relevant inconsistent statement evidence
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because Xavier had never specifically testified about observing
where Joey was shot in his direct testimony. Defense counsel
also contended that this statement showed that Xavier had
greater knowledge about how the children died than he should
have had based on his direct testimony. The trial court
ultimately denied the motion as to these transcript excerpts.
Even if the trial court erred by excluding this evidence, any such
error was harmless. Deputy Tutino had earlier testified to this
same statement during the prosecution’s case, and defense
counsel ultimately referenced it during jury argument.
Admitting a transcript of Xavier’s exact words in addition to
Tutino’s testimony would have been largely cumulative and
unlikely to affect the outcome of the case.
d. Exclusion of Written Statement in Police Report
Caro argues the trial court erred by excluding a statement
in a police report. Deputy Tutino wrote — in a paragraph
concerning statements Xavier made to Juanita in the garage the
day after the shootings — that “[Caro] told Xavier that she had
killed all the kids.” The prosecution argued that admitting this
statement would violate the rule against hearsay because it was
an out-of-court statement to be admitted for the truth of the
matter asserted. This statement implicates three potential
hearsay statements: the first level is Caro’s supposed statement
to Xavier that she killed the children; the second is Xavier’s
assertion that Caro made the statement; and the third is
Tutino’s writing about what Xavier said.
Caro contends that the purpose for admitting the
statements only implicated the third level of hearsay — the
police report itself. Caro argues that the first two levels of
hearsay could be avoided because the statement would not have
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been admitted for the truth of Caro committing the murders, or
for the truth of Caro telling Xavier she committed the murders.
Instead, Caro argues that Xavier’s statement would have shown
Xavier’s attempt to place blame on Caro and impeach his
credibility. Regarding the police report, Caro argues that it fell
within Evidence Code section 1237, which provides a hearsay
exception for past recollections recorded. The trial court found
that this exception did not apply.
The Attorney General does not defend the trial court’s
exclusion of the statement, but rather argues that any error was
harmless. We agree any error was harmless for the limited
purposes for which the statement would have been admitted.
The statement’s purpose was to impeach Xavier’s testimony
about what he said in the garage and to show that he was trying
to lay blame on Caro. This statement that Tutino wrote down,
but did not remember, and which was not on the tape recording
of the conversation in the garage, had low evidentiary value.
Juanita also never testified that Xavier made such a statement
to her, and Xavier did not remember making the statement. The
jury would be unlikely to find Xavier measurably less credible
had this statement been admitted. Moreover, the theory that
this statement showed Xavier’s attempt to lay blame on Caro
does not hold up under scrutiny. It is unclear why Xavier would
tell Juanita — but not the police — that Caro admitted to the
crime if he shot his family and was trying to blame Caro. So for
the limited purposes for which the statement would have been
admitted, we conclude that any error was harmless.
e. Cumulative Error and Right To Present a
Defense
Caro argues the trial court’s evidentiary errors are
prejudicial when considered cumulatively, and also violated her
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constitutional right to present a defense. To the extent we
assumed error, but found harmlessness with respect to Caro’s
evidentiary arguments, we do not find that those errors are
cumulatively prejudicial. Those assumed errors involved
evidence that was so minor that it was unlikely to have affected
the case, even in the cumulative, and did not affect Caro’s right
to present a defense. (See People v. Samuels (2005) 36 Cal.4th
96, 114 [“ ‘generally, violations of state evidentiary rules do not
rise to the level of federal constitutional error’ ”].)
vi. Admission of Computer Animation
Caro argues that the trial court abused its discretion by
allowing the prosecution to show the jury a computer animation
depicting the opinion of Rod Englert, a blood spatter expert, on
how the shootings of Christopher and Michael occurred. We
review a trial court’s decision to admit demonstrative evidence
for abuse of discretion. (Duenas, supra, 55 Cal.4th at p. 21.)
Before trial, the prosecution moved to introduce the computer
animation, and the defense opposed. The prosecution argued
the animation was admissible as a visual depiction of Englert’s
expert opinion on what happened. Regarding prejudice, the
prosecution asserted the animation would not show highly
emotional details of the crime, such as the victims’ facial
expressions and Winnie the Pooh paraphernalia. At the trial
court’s request, the prosecution played and narrated the
animation for the court. The trial court found the animation to
be admissible demonstrative evidence to the extent it
represented only the prosecution expert’s proposed testimony.
Because Englert could not confirm whether Christopher’s eyes
were open during the shootings, the trial court ordered the
prosecution to show them closed in the animation. The trial
court also required Englert to provide a declaration confirming
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that the final version of the animation depicted his
understanding of the evidence. The prosecution shared a copy
of the final version of the animation with the defense.
The computer animation was presented to the jury in eight
scenes during expert testimony by Englert, who spoke after each
scene. The animation featured three-dimensional, mannequin-
like recreations designed with relevant details, such as clothing
and hair. Englert testified that the animation illustrated his
opinion of how the shootings had to occur to produce the
bloodstain patterns on the clothing that Caro was found wearing
the night of the shootings. The court also delivered a cautionary
instruction about the animation to the jury multiple times over
the course of trial.6
6
One of these instructions read: “This is an animation
based on an expert’s opinion. [¶] The computer animation we
have here is nothing more than that, an illustration of the
expert’s opinion. You are instructed to treat it no differently
than you would any chart or diagram of the evidence. [¶] The
animation is not intended to be a film of what actually occurred,
nor is it an exact re-creation. Therefore, there may be facts that
are not exactly accurate or not exactly as they occurred but may
be reasonably close. [¶] It is important to keep in mind that an
animated video is not an actual film of what occurred, nor is it
intended to be an exact, detailed replication of every detail of
every event or every movement. It is only an aid to giving you
an overall view of the particular version of the events, based on
particular viewpoints or particular interpretations of evidence
made by an expert witness. [¶] . . . In determining what weight
to give to any opinion expressed by an expert witness, you
should consider the qualifications and believability of the
witness, the facts and materials upon which each opinion is
based, and the reasons for each opinion. . . .”
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We allow the admission of a computer animation as
demonstrative evidence of expert testimony, but only if certain
conditions are met. The animation must accurately depict an
expert opinion, the expert opinion must fairly represent the
evidence, the trial court must provide a proper limiting
instruction, and the animation must be otherwise admissible
under Evidence Code section 352. (See Duenas, supra, 55
Cal.4th at pp. 20-25.) Caro contends the computer animation
here is inadmissible under section 352. We disagree.
Evidence Code section 352 provides that a court “may
exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of
misleading the jury.” Caro argues that unlike in Duenas, where
the cause of death was in dispute, the animation here is only
minimally probative because only identity was disputed at trial.
But Caro forgets that the animation had more than minimal
probative value on the issue of identity. The animation
illustrated the expert’s opinion that the blowback of blood from
a gunshot to Christopher’s head was consistent with the
bloodstain patterns on Caro’s, not Xavier’s, clothes.
It is true that courts must be mindful of the powerful
impact computer animations may have on jurors. The potential
for such impact does not, however, create “an unjustified ‘air of
technical and scientific certainty’ ” if accompanied by proper
limiting instructions. (Duenas, supra, 55 Cal.4th at p. 23.) The
trial court gave such limiting instructions here. They informed
the jury that the animation merely illustrated the expert’s
opinion, it did not exactly recreate the events on the night of the
shootings, and it was the jury’s role to evaluate the expert’s
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opinion and its factual basis. While Caro argues that these
cautionary instructions were ambiguous as to the animation’s
purpose, the instructions were quite clear: They stated that the
animation was an aid for understanding an expert’s opinion.
Further, the content of the computer animation is not
itself so graphic that prejudice arising from those details
substantially outweighs the animation’s probative value. The
animation featured mannequin-like representations of
Christopher and Michael, with some facial features, hair, and
clothing. The animation showed each gunshot fired, and the
pattern of blood distribution after the gunshots, which was
necessary to depict Englert’s testimony. It featured only one
personal possession of the children, a doll on the side of the bed
that Christopher’s blood had dripped on. While a slow-motion
visual depiction of two killings is indeed disturbing, the
animation did not include highly emotional details, such as
graphic images of the damage wrought by the bullet entry
wounds, the children’s facial expressions, or other superfluous
elements to tug on the heartstrings of the jury. (See People v.
Hood (1997) 53 Cal.App.4th 965, 972.)
Caro also argues the animation was prejudicial because it
was cumulative of other evidence. But in Duenas, we rejected a
similar argument because it “misapprehend[ed] the animation’s
role as demonstrative evidence. The animation was not offered
as substantive evidence, but as a tool to aid the jury in
understanding the substantive evidence.” (Duenas, supra, 55
Cal.4th at p. 25.) Here, the animation is similarly not
cumulative, as it is demonstrative evidence illustrating expert
testimony — such demonstrative evidence provides
noncumulative value over the testimony itself by encapsulating
what may otherwise be a confusing series of events. Because
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whatever prejudice arising from the computer animation did not
substantially outweigh its probative value, we conclude the trial
court did not abuse its discretion.
vii. Prosecutorial Misconduct
Caro argues that the prosecution committed misconduct
by making certain statements in the closing arguments of the
guilt and penalty phases of trial. Under California law, to
establish reversible prosecutorial misconduct a defendant must
show that the prosecutor used “ ‘deceptive or reprehensible
methods’ ” and that it is reasonably probable that, without such
misconduct, an outcome more favorable to the defendant would
have resulted. (People v. Riggs (2008) 44 Cal.4th 248, 298
(Riggs).) A prosecutor’s misconduct violates the federal
Constitution if the behavior is “ ‘so egregious that it infects the
trial with such unfairness as to make the conviction a denial of
due process.’ ” (People v. Redd (2010) 48 Cal.4th 691, 733
(Redd).) To preserve a claim of prosecutorial misconduct for
appeal, a defendant must object and request an admonition.
(E.g., id. at p. 734; People v. Hill (1998) 17 Cal.4th 800, 820.) An
exception exists where the objection and request for admonition
would have been “futile or ineffective.” (Riggs, at p. 298.)
a. Guilt Phase Closing Argument
Caro contends that the prosecutor committed five
instances of misconduct during closing arguments of the guilt
phase. To establish misconduct, Caro must show “ ‘a reasonable
likelihood the jury construed the remarks in an objectionable
fashion.’ ” (Potts, supra, 6 Cal.5th at p. 1036.)
First, Caro argues that the prosecutor improperly vouched
for Xavier’s truthfulness by asserting that he was “honest” and
that he “testified truthfully.” But Caro failed to object to these
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statements and request an admonition, so the claim is forfeited.
(Riggs, supra, 44 Cal.4th at p. 298.) Moreover, any misconduct
was harmless. The comments were brief, and several were
“followed immediately by references to evidence bearing on
witness credibility.” (People v. Sully (1991) 53 Cal.3d 1195,
1236.) The substantial physical evidence against Caro also
corroborated Xavier’s version of events over hers. And both
parties and the trial court’s instructions repeatedly emphasized
to the jury that witness credibility was solely theirs to decide.
Under these circumstances, there is no reasonable probability
that the prosecutor’s comments affected the outcome.
Second, Caro argues that the prosecutor committed
misconduct by describing Xavier as “stifl[ing] sobs” and
“crumpl[ing] over in pain” during his testimony. The statement,
she contends, was impermissible because these physical cues
are not in the record. Because defense counsel did not object or
request an admonition on this issue, the claim is forfeited.
(Redd, supra, 48 Cal.4th at p. 746.) Moreover, there was no
misconduct. The demeanor of a witness is “rarely reflected in
the record” (People v. Navarette (2003) 30 Cal.4th 458, 516), but
is a proper factor for the jury to consider when assessing the
witness’s credibility (People v. Jackson (1989) 49 Cal.3d 1170,
1205-1206; see also Evid. Code, § 780, subd. (a)).
Third, Caro contends that the prosecutor improperly
expressed a personal opinion in closing argument. She said,
“And Deputy Tutino heard [Xavier] say again and again, ‘She
killed my best friend. She killed my best friend.’ [¶] You know
that [Xavier] was talking about Joey. Like any father [Xavier]
would want to believe that he loved all of his children equally.”
She then began to say, “I’m sure he did a great job making each
child feel loved and feel — ” when defense counsel objected on
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the ground that the prosecutor was expressing a personal
opinion, and the trial court sustained the objection.
The prosecutor then went on to argue the following: “But
as difficult as it is to say, you can tell from the state of the
evidence that [Xavier] had a special place for Joey. Joey was the
one who made [Xavier] a father for the first time. Joey was the
one who was most like a person. He was the oldest at the time.
[¶] And when [Xavier] sat there in his family room saying, ‘She
killed my best friend,’ he was talking about Joey. That’s
probably why he was the defendant’s first target.” Caro asserts
this second statement, too, was the prosecutor’s own opinion and
not permissible argument on the evidence.
As to the first statement about making each child feel
loved, counsel objected but did not request an admonishment.
As to the second statement, Caro did not object. Both omissions
forfeit any challenge to these statements. (Riggs, supra, 44
Cal.4th at p. 298.) And the alleged misconduct was, in any
event, so minimal as to have no reasonable probability of
affecting the outcome.
Fourth, Caro asserts that the prosecutor improperly relied
on facts not in evidence by arguing that Sergeant Timothy
Lorenzen was the lead investigator but was not called in the
prosecution case because he only had a limited set of duties.
Caro argues that this was an improper way to explain the reason
why the prosecution did not call Lorenzen to testify, and that
the actual reason was that he was impeachable for cheating on
an exam. But Caro failed to object to the argument regarding
Lorenzen at trial; so the claim is forfeited. (Riggs, supra, 44
Cal.4th at p. 298.) Plus, any error was harmless because the
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reason for not calling Lorenzen was a tangential, minor issue
that would not have affected the outcome of the case.
Fifth, Caro argues the prosecutor improperly insulted the
role of the defense by arguing that the prosecution’s burden was
to “prove to 12 jurors beyond a reasonable doubt the truth of the
allegations against a defendant,” while all the defense had to do
was “confuse one of you.” The prosecutor went on to say, “That’s
the tactic that many defense attorneys employ. Confusion.
Throw up smoke. Try and mislead jurors. And maybe, by
chance, they’ll get lucky and get one.” The prosecutor later said,
“I just ask that you not be the one that the defense is trying to
target for confusion.” Caro failed to object to this argument, so
the claim is forfeited. (Riggs, supra, 44 Cal.4th at p. 298.) In
any event, we do not forbid prosecutors from arguing that the
defense case seeks to confuse the jury. (See People v. Kennedy
(2005) 36 Cal.4th 595, 626.) And the prosecutor was permitted,
as she did immediately after these statements, to “highlight the
discrepancies between [defense] counsel’s opening statement
and the evidence.” (People v. Bemore (2000) 22 Cal.4th 809,
847.) We find no misconduct under these circumstances.
b. Penalty Phase Closing Argument
Caro contends — in a summary bullet-point list — that the
prosecutor committed 15 instances of misconduct during the
penalty phase closing argument. Given the summary nature of
her contentions, Caro fails to assert precisely why the
statements were misconduct or cite relevant authority. She also
does not argue how these statements prejudiced her, except by
asserting that all of the prosecutorial misconduct claims were
cumulatively prejudicial. The failure to “ ‘offer any authority or
argument in support of [her] claim[s]’ ” would justify us
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“declin[ing] to address these contentions.” (People v. Foster
(2010) 50 Cal.4th 1301, 1352 (Foster).) Regardless, Caro
concedes that defense counsel did not object to the following
statements, thus forfeiting her claim: (1) the assertion that
Christopher was trying to “get away from his killer” and was
“fighting . . . for his life”; (2) the assertion that Christopher
“saved [G.C.]’s life by making her shoot [Christopher] twice,
using up the bullet that was probably meant for [G.C.]”; (3) the
statement that “[a]ll murders are committed when people are
going through bad times in their lives”; (4) descriptions in the
penalty phase of Xavier’s testimony as truthful or honest; and
(5) statement’s that the dead children “would have been
successful” and “would have been wonderful.” (Riggs, supra, 44
Cal.4th at p. 298.)
For the following statements, Caro objected but failed to
request an admonition: (1) the prosecutor asked the jury to cry
for the boys; (2) the prosecutor misstated the law by asserting
that every factor in the penalty phase must be proven beyond a
reasonable doubt (and the jury instructions later stated the
correct standard); (3) the prosecutor stated that the defense had
“chang[ed] [its] story” in the penalty phase; (4) the prosecution
referred to a witness as a “bought-and-paid-for defense expert”;
and (5) the prosecution argued Caro was not someone who
“wound up selling dope at age twelve to put food in her mouth,
getting hooked on drugs.” That failure forfeits her claims. (Duff,
supra, 58 Cal.4th at p. 567.) With regard to the final statement
about getting “hooked on drugs,” Caro points out that the
prosecutor continued by arguing that Caro was not “a poor
inner-city kid who never had a chance.” But Caro failed to object
or request an admonition as to that subsequent statement,
forfeiting the claim. (Riggs, supra, 44 Cal.4th at p. 298.)
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Moreover, any potential misconduct in these statements was
ultimately harmless.
Caro also raises a number of claims where the trial court
overruled objections or rejected requests for admonitions. First,
Caro contends that the prosecutor relied on facts not in evidence
when she argued, “This defendant’s situation is really not that
much different from other people who are facing difficult
relationships or failed marriages. [¶] In fact, hers was a lot
better.” The prosecutor continued, “The only real emotional
disturbance or strain that separates this defendant from any
other woman or any man who’s facing a failing marriage is her
vanity. Her pride. . . .” Caro objected, and the trial court
overruled the objection. We find no misconduct. These
references to how other women react to similar circumstances
draws on “ ‘common knowledge’ ” or “ ‘common experiences.’ ”
(People v. Mendoza (2016) 62 Cal.4th 856, 908.)
Second, the prosecutor incorrectly argued to the jury that
appellant’s toxicology screen did not test positive for Xanax. The
trial court overruled a defense objection. But no possible
prejudice arose from this statement because the prosecutor
subsequently admitted its mistake to the jury, and the parties
stipulated to the presence of Xanax in Caro’s bloodstream.
Third, the prosecutor argued that the trial court could
consider sympathy for Caro in mitigation, but not sympathy for
her family. Defense counsel objected on the ground that this
was a misstatement of law, and the trial court overruled Caro’s
objection. The prosecutor did not misstate the law. (See People
v. Ochoa (1998) 19 Cal.4th 353, 456 (Ochoa); see also People v.
Rices (2017) 4 Cal.5th 49, 87-89.) Caro’s citation to Cullen v.
Pinholster (2011) 563 U.S. 170 is unavailing because it was an
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ineffective assistance of counsel case based on a 1984 trial,
before we held in Ochoa that the jury could not consider
sympathy toward a defendant’s family in mitigation.
(Pinholster, at pp. 176, 191.) This argument was not
misconduct.
Fourth, the prosecutor told the jurors to imagine
themselves as Christopher in bed, feeling safe, before he was
shot by Caro. Caro’s objection was overruled. This argument
was not misconduct. It is not improper for a prosecutor to “invite
the jurors to put themselves in the place of the victims and
imagine their suffering.” (People v. Slaughter (2002) 27 Cal.4th
1187, 1212.)
Finally, the prosecutor stated that Caro “slaughtered” the
boys. Caro failed to object, but later requested the jury be
admonished that the term “slaughter” was improper. The trial
court refused. This statement was not misconduct because the
word “slaughter” is a fair description of what happened to the
children — the killer shot three children in the head, in their
beds, at point-blank range. The prosecutor is, to a point, allowed
to use “colorful language to explain the prosecutor’s view of the
evidence.” (People v. Rundle (2008) 43 Cal.4th 76, 163 (Rundle).)
On the facts of this case, saying “slaughter” was not misconduct.
In addition, Caro contends that defense counsel’s failure
to object or request an admonition to the above statements
constituted ineffective assistance of counsel under Strickland.
But we regularly reject such claims on direct appeal where, as
here, the record sheds no light on why defense counsel failed to
object or request an admonition. (People v. Gray (2005) 37
Cal.4th 168, 207.) This is not the rare case where there “could
be no satisfactory explanation” for the failure to object or request
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admonitions, which may have arisen from a desire not to call
attention to the allegedly faulty arguments. (Ibid.) The failure
to object only rarely constitutes ineffective representation.
(Ibid.) And Caro fails to demonstrate that the exclusion of the
statements would have, with a reasonable probability, changed
the outcome. We therefore reject Caro’s ineffective assistance of
counsel claim.
viii. Penalty Phase Factor (b) Evidence
Caro argues that there was insufficient evidence to allow
admission of her prior criminal acts at the penalty phase of trial,
and that the evidence presented was insufficiently specific to
give Caro a fair opportunity to defend against the accusations
concerning those acts. As a result, she contends that the
evidence of prior acts violated her right to due process, to
confront and cross-examine witnesses against her, and to a
reliable determination of penalty under the Sixth, Eighth, and
Fourteenth Amendments.
Section 190.3, factor (b) allows the jury to consider as
aggravation evidence “[t]he presence or absence of criminal
activity by the defendant which involved the use or attempted
use of force or violence or the express or implied threat to use
force or violence.” To present such evidence at trial, the
prosecution must provide the defendant notice of the evidence
to be introduced and the opportunity to confront the available
witnesses. (People v. Yeoman (2003) 31 Cal.4th 93, 136-137; see
also Rundle, supra, 43 Cal.4th at p. 183.) Additionally, to
consider this evidence in aggravation, the jury must be
convinced beyond a reasonable doubt that Caro committed these
prior acts. (Yeoman, at p. 137.) If these three requirements are
satisfied, the jury may consider a defendant’s prior criminal acts
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without violating his or her rights to due process, a speedy trial,
or a reliable penalty determination. (Id. at p. 136.) The
remoteness of the prior criminal acts then affects their weight
in aggravation rather than their admissibility. (Id. at p. 137.)
Caro first asserts that the notice given to her about the
evidence to be presented, and the evidence eventually
presented, deprived her of notice of the allegations and an
opportunity to present a meaningful defense. For many of the
seven prior acts presented in the penalty phase, the notice and
testimony did not identify the specific timeframe when the event
occurred. We rejected a similar claim in Rundle where the
defendant argued that the section 190.3, factor (b) evidence
relating to the defendant’s ex-wife amounted merely to a
“nonspecific series of acts occurring over a period of several
months, without providing exact dates upon which specific acts
of forcible sodomy or oral copulation occurred.” (Rundle, supra,
43 Cal.4th at p. 182.) We held that the relevant inquiry is
whether the three requirements set forth in Yeoman are
satisfied. (See Rundle, at pp. 183-186 [requiring less notice of
timeframes in penalty phase where the point is the evaluation
of the defendant’s character, not the establishment of a
particular act].) Here, Caro had notice of the incidents at issue
and evidence to be presented against her and had the
opportunity to cross-examine witnesses. Moreover, defense
counsel asserted the incidents would be “disputed and
contested,” the credibility of the witnesses would be “vigorously
attacked,” and “there are some very significant defenses to acts
[the prosecution] claimed occurred.” The jury was also
instructed to only consider the evidence in aggravation if it
found the prior acts true beyond a reasonable doubt. Our
precedent does not require more. (See ibid.)
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Caro also contends that there was insufficient evidence for
the jury to conclude beyond a reasonable doubt that many of the
incidents occurred because they were supported only by Xavier’s
uncorroborated testimony. We have previously rejected similar
claims based on a witness’s lack of trustworthiness in the section
190.3, factor (b) context. (People v. Stitely (2005) 35 Cal.4th 514,
564.) Rather than rendering factor (b) evidence inadmissible,
the untrustworthiness of a witness’s testimony goes to its weight
and can be shown through cross-examination and other
evidence. (Rundle, supra, 43 Cal.4th at pp. 184-185.) Neither
the lack of specific dates nor the character of the evidence
presented caused the evidence to be insufficient as a matter of
law. (Id. at p. 185.)
Caro requests we require trial courts to hold hearings to
determine whether the evidence is sufficient for a jury to find a
prior violent offense beyond a reasonable doubt. Trial courts
have discretion to hold such a hearing. (See People v. Phillips
(1985) 41 Cal.3d 29, 72, fn. 25; see also People v. Friend (2009)
47 Cal.4th 1, 87; People v. Fauber (1992) 2 Cal.4th 792, 849.)
Caro argued here that a hearing was necessary because she
planned to impeach the prosecution’s evidence and present
defenses. But the trial court did not abuse its discretion by
finding the prosecution’s proffered evidence sufficient without a
hearing and allowing the jury to evaluate the defense response.
And to the extent Caro argues that the probative value of the
prior act evidence was not substantially outweighed by undue
prejudice under Evidence Code section 352, that claim fails. The
trial court did not abuse its discretion by finding that these prior
acts were not “particularly prejudicial” in comparison to the
offense of conviction, especially under the somewhat
circumscribed Evidence Code section 352 analysis for Penal
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Code section 190.3, factor (b) evidence. (People v. Box (2000) 23
Cal.4th 1153, 1201.)
Finally, Caro asks us to reconsider Rundle because of the
danger that jurors will credit vague, uncorroborated prior acts
when introduced with more specific, corroborated prior acts.
But we perceive no such danger where jurors receive
instructions to only consider a prior act in aggravation if proven
beyond a reasonable doubt. Because the requirements in
Yeoman and Rundle were satisfied, we reject Caro’s section
190.3, factor (b) claim.
C. Juror Misconduct and Related Motion for New
Trial
i. Dismissal of Juror During Deliberations
Caro argues that the trial court erred by dismissing Juror
No. 9 for his statements to Juror No. 11 outside of the
deliberation room. In the alternative, Caro argues that if there
was sufficient evidence for Juror No. 9’s dismissal, then the trial
court should have also dismissed Juror No. 11, who was part of
the conversation with Juror No. 9. Caro also contends that the
trial court erred by failing to grant a new trial based on the
jurors’ posttrial declarations about their conversation.
On November 2, 2001, the jury foreperson submitted a
note to the trial court stating that one of the jurors was a holdout
who was refusing to deliberate. Because this note came on a
Friday, the trial court decided to excuse the jury and conduct an
inquiry the following Monday. But before excusing the jury, the
trial court admonished the jury: “I need to give you the
admonition you’ve heard so many times before, but you need to
hear it again. [¶] And that is you cannot discuss this case
outside the presence of the jury room with the other 11 or 12
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jurors. . . . You’re not to deliberate upon the case any further
during the weekend, and the only time you can discuss the case,
deliberate the case is when you’re back in the jury room Monday
and all 12 jurors are present in the jury room.”
The following Monday, the trial court called in the jury
foreperson, who indicated that the juror at issue was no longer
refusing to deliberate. The parties did not pursue the issue
further. But defense counsel also raised a new issue discovered
by a defense investigator, who saw Juror No. 9 and Juror No. 11
speaking in the parking lot the previous Friday evening after
the jury was excused. Defense counsel requested an inquiry.
The trial court first examined Juror No. 9. When asked
whether there was any discussion about the case between Juror
No. 9 and Juror No. 11, Juror No. 9 said, “There was. There was
one line, I think. One or two lines. That’s correct.” When the
trial court asked Juror No. 9 to describe the discussion he
related the following: “The comment which was discussed
between myself and the one juror only . . . was in regards to the
emotionalism of what was going on in the jury room and the fact
that emotions were very highly charged. [¶] We were — there
was some personal stuff said, which made it difficult for
deliberations to take place, and there was also a comment in
regards to the personal — or not personal, excuse me, in regards
to the emotional state, which sounds really bad, but it was — in
fact, the exact quote was in regards to the defendant. And it
would have been ‘she had to be emotional on that night.’ And
my response to that was that I agree.” Juror No. 9 said that was
the only discussion of the case. When asked whether Juror No.
9 or Juror No. 11 had initiated the conversation about the case,
Juror No. 9 said, “It very well could be me, sir,” but he could not
remember. Juror No. 9 remembered telling Juror No. 11
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regarding the deliberations that “it’s not productive when
people’s tempers get so flared up they start to use personal
attacks and stuff like that.”
The trial court then called Juror No. 11. When asked
whether the case was discussed in the parking lot, Juror No. 11
said, “Not specifically, no.” When asked whether they spoke
about the deliberations, Juror No. 11 said, “Sort of.” Juror No.
11 explained, “Basically, he thanked me for taking the time to
listen . . . and to understand his perspective of things.” Juror
No. 11 indicated this was the only discussion about the case and
that she did not advocate for Juror No. 9 to do anything during
the deliberations.
Defense counsel requested the discharge of Juror No. 9
because he “knowingly and willingly violated” the trial court’s
specific orders and “attempted to engage another juror in
discussions about the emotional state of Mrs. Caro” in order to
“convince her of his position . . . .” Defense counsel argued, “I
want [Juror No. 9] off. He’s deliberately and intentionally
violated his oath as a juror. I just couldn’t be more concerned
about it.” The prosecution agreed to the removal of Juror No. 9
so long as Caro personally consented to the discharge, and Caro
consented. The trial court then discharged Juror No. 9, finding
“good cause” because of his “flagrant violation of the court’s
order regarding discussing the matter outside the presence of
the jury room with another juror and discussing subject matter
that is indeed in the court’s opinion deliberations on evidence
received in this case.”
The trial court then invited the parties “to raise any issues
regarding Juror No. 11.” The prosecutor raised concerns about
removing Juror No. 9, but not Juror No. 11, if there was “two-
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Opinion of the Court by Cuéllar, J.
way participation” in the parking lot conversation. Defense
counsel and the prosecutor agreed that they did not hear
evidence that Juror No. 11 had made a comment about Caro’s
emotional state on the night of the shootings. Defense counsel
also stated that Juror No. 11 seemingly did not understand that
Juror No. 9 was attempting to gain support for his position, and
that “she didn’t offer any information about the case or discuss
any of the facts of the case.” The trial court agreed, and
explained, “I took [Juror No. 11]’s comments to be it was [Juror
No. 9] who was the initiator of the conversation and [Juror No.
11] was kind of stuck and being nice.” The trial court stated it
was not finding that Juror No. 11 discussed the case and noted
that “no one is asking to excuse Juror No. 11. I presume if the
parties felt there was something inappropriate in what she said,
I would have heard it by now.” After a recess, the trial court
stated that it “was satisfied that nothing has occurred that
would jeopardize [Juror No. 11]’s ability to continue to be a fair,
impartial juror for both sides.” The trial court asked the parties
if they wanted to be heard, and neither defense counsel nor the
prosecutor requested that Juror No. 11 be removed.
Following the penalty phase verdict, Caro filed a motion
for new trial. Among other issues, Caro contended, through a
declaration from Juror No. 9, that Juror No. 11 should have been
removed for misconduct. Juror No. 9 declared that he and Juror
No. 11 had “continued with the conversations that we had
started in the deliberation room” as they walked to their cars,
and that he did not remember who “initiated the topic of the
deliberations or trial.” Juror No. 9 wrote that he told Juror No.
11 that he “appreciated that she discussed the case calmly
without flying into a tantrum as others had done” and that there
was “mutual discussion revolving around the events that took
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Opinion of the Court by Cuéllar, J.
place that day.” According to Juror No. 9, they went on to
discuss Caro’s state of mind. Juror No. 9 “made the point that
Cora was of the opinion that her husband was going to leave her
and the boys. He had done it before and he was just going to do
it again. The e-mails and interviews showed this. . . . This
might cause us to question the motive presented by the
prosecution.” According to Juror No. 9, Juror No. 11 said that
this “ ‘was just the last straw for Cora,’ ” that Xavier was going
to leave her again, and this time Caro could not stand it. Juror
No. 11 then said “in a raised voice with some animation in the
arms, ‘Well [Juror No. 9], you know she had to be emotional that
night.’ ”
The prosecution submitted a declaration from Juror No.
11. She stated, “On the evening of the fourth day of
deliberations, [Juror No. 9] and I walked to our cars together in
the parking lot. [Juror No. 9] brought up the topic of the
deliberations. He made comments about how difficult
deliberations were, and that the deliberations had gotten
personal. He stated that the deliberations had become too
emotional. I said something to the effect of, ‘Well it had to be an
emotional night, so it’s understandable that we’re emotional in
there.’ ” Juror No. 11 also denied waving her arms when making
this statement, referencing Caro’s mental state on the night of
the shootings, or discussing any of the evidence related to the
case.
The trial court denied Caro’s motion for new trial. It
expressed general agreement with the prosecution’s argument,
which included an assertion that Juror No. 11’s declaration,
rather than Juror No. 9’s declaration, accurately represented
the events in the parking lot. The trial court then found that
Juror No. 9’s declaration did not differ substantially from the
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statements uncovered in the inquiry at trial, and that Juror No.
11’s declaration was consistent with what the court uncovered
in the inquiry. The trial court noted that neither party
requested Juror No. 11’s discharge and that it was now
“disingenuous” for the defense to assert that Juror No. 11
committed misconduct. The trial court also found that, if there
was misconduct, it was not “inherently and substantially likely
to have influenced” Juror No. 11, and it was not “substantially
likely” that she was biased against Caro because of the
conversation. The trial court later found that, in general, Juror
No. 9 “infers motive or intent or conduct which a better factual
analysis would not show that that was the import of that
statement or the intent of the conduct or the motive of the
person who made the statement.” The trial court characterized
this as, to some extent, a credibility finding with respect to Juror
No. 9, who “just assumes things and perhaps believes them to
be accurate when in fact a further analysis would reveal they’re
not accurate.”
Regarding the dismissal of Juror No. 9, Caro has waived
her claim of error. Defense counsel affirmatively sought to
discharge Juror No. 9 because the juror committed intentional
misconduct. She did not seek a mistrial based on Juror No. 9’s
discharge. Having forcefully argued for Juror No. 9’s dismissal,
Caro cannot now complain that the trial court erred in siding
with her. (See People v. Coffman (2004) 34 Cal.4th 1, 49 [counsel
invited error by affirmatively challenging juror]; People v.
Cunningham (2001) 25 Cal.4th 926, 1029 [claim of improper
juror discharge waived where “defense counsel not only did not
object to the substitution of the juror or move for a mistrial, but
sought to have her excused”].)
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Caro argues in the alternative that if the claim was
forfeited, defense counsel’s choice to seek Juror No. 9’s removal
constituted ineffective assistance of counsel. But Caro must
show that her counsel’s performance was deficient, that is,
counsel’s performance must fall “ ‘ “below an objective standard
of reasonableness [¶] . . . under prevailing professional
norms.” ’ ” (Lopez, supra, 42 Cal.4th at p. 966.) It is undisputed
that Juror No. 9 committed misconduct. Without a more
compelling argument, it is difficult to conclude a lawyer’s
attempt to remove a juror who clearly committed misconduct —
an attempt to preserve the integrity of the jury — constitutes
constitutionally deficient performance. Regardless, there may
have been plausible strategic reasons for seeking Juror No. 9’s
removal that are not apparent on direct appeal. (Ochoa, supra,
19 Cal.4th at p. 445; People v. Mendoza Tello (1997) 15 Cal.4th
264, 266.) So we cannot conclude that seeking to remove Juror
No. 9 constituted deficient performance.
Caro next contends that even if the trial court was right to
remove Juror No. 9, it should have also removed Juror No. 11
because she was equally culpable. To the extent Caro argues
that the trial court should have removed Juror No. 11 during
trial, defense counsel’s failure to object or request a mistrial
forfeited that argument. (See People v. Williams (2013) 58
Cal.4th 197, 289 (Williams); Foster, supra, 50 Cal.4th at pp.
1340-1341; People v. Stanley (2006) 39 Cal.4th 913, 950.) And
to the extent Caro raises an ineffective assistance of counsel
claim for not seeking Juror No. 11’s dismissal, even assuming
there was good cause for such a dismissal, the record is
insufficient to evaluate trial counsel’s tactical choice. (See
People v. Mendoza Tello, supra, 15 Cal.4th at p. 266.)
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Nonetheless, Caro brought a new trial motion arguing
that a declaration of Juror No. 9 showed that Juror No. 11
committed misconduct. We only disturb a trial court’s decision
on a motion for new trial if the ruling constitutes “a manifest
and unmistakable abuse of . . . discretion.” (People v.
Thompson, supra, 49 Cal.4th at p. 140.) If the motion is based
on juror misconduct, we accept the trial court’s factual findings
and credibility determinations if supported by substantial
evidence, but exercise “independent judgment” to determine
whether the misconduct was prejudicial. (People v. Dykes (2009)
46 Cal.4th 731, 809 (Dykes).) Juror misconduct raises a
presumption of prejudice. Still, we evaluate the entire record to
determine if, on the whole, there was a “ ‘substantial
likelihood’ ” of prejudice in the form of “ ‘actual[] bias[] against
the defendant.’ ” (In re Boyette (2013) 56 Cal.4th 866, 890, italics
omitted.)
As an initial matter, the trial court found that Juror No.
9’s declaration did not substantially differ from the evidence at
trial. Although some differences existed — Juror No. 9 asserted
a longer, heated conversation than what he testified to at
trial — the trial court’s finding that there was no substantial
difference makes sense in light of its credibility determinations
about Juror No. 9. The trial court agreed generally with the
prosecution’s arguments on the motion for a new trial, which
included an assertion that Juror No. 11’s, rather than Juror No.
9’s, declaration was accurate, and the trial court later found that
Juror No. 9 lacked credibility. The trial court’s findings
implicitly rejected the additional details Juror No. 9 included in
his declaration and showed acceptance of Juror No. 11’s version
of events, which comported with the evidence at trial. Caro
argues that Juror No. 11’s declaration differed from her trial
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court statement, because she did not previously mention that
she had told Juror No. 9 it had to be “an emotional night.” But
the declaration was consistent with Juror No. 9’s statement at
trial that he had “agreed” with Juror No. 11’s assertion that
“ ‘[Caro] had to be emotional on that night.’ ” Although Juror
No. 9’s earlier account indicated that Juror No. 11 may have
spoken about Caro’s emotional state, and Juror No. 11’s
declaration contained a more general statement about an
“emotional night,” the trial court clearly felt that Juror No. 9
lacked credibility, so this minor difference does not make the
later declaration inconsistent. We conclude the trial court’s
finding — that there was no substantial difference in the
declarations’ versions of events — was supported by substantial
evidence.7
As a result, the trial court found that any juror misconduct
was not inherently and substantially likely to have influenced
Juror No. 11, and it was not substantially likely that she was
biased against Caro because of the parking lot conversation. We
find no abuse of discretion. The trial court found at trial that
Juror No. 9 initiated a conversation with Juror No. 11 who “was
kind of stuck and being nice.” And the trial court implicitly
7
The lack of credible new evidence alone may have been
sufficient to deny the motion for new trial, given defense
counsel’s failure to object to, and her approval of, Juror No. 11’s
presence on the jury. (Foster, supra, 50 Cal.4th at p. 1341; cf.
People v. Cowan (2010) 50 Cal.4th 401, 486; Cowan v. Superior
Court (1996) 14 Cal.4th 367, 392; Weathers v. Kaiser Foundation
Hospitals (1971) 5 Cal.3d 98, 103. But see People v. Adame
(1973) 36 Cal.App.3d 402, 410.) Nonetheless, the trial court
merely stated it was “disingenuous” to raise the new trial motion
without new evidence and did not rule based on that fact. We
do the same.
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Opinion of the Court by Cuéllar, J.
affirmed that finding by indicating that neither of the posttrial
declarations altered its perception of what had happened. Juror
No. 11’s declaration thus supported the trial court’s
understanding of what occurred. The trial court’s finding that
Juror No. 11 was “kind of stuck and being nice” and the
generalized, innocuous nature of her responsive statement to
Juror No. 9 counters any implication that Juror No. 11 was
actually biased against Caro. (See In re Boyette, supra, 56
Cal.4th at p. 889; People v. Lewis (2009) 46 Cal.4th 1255, 1309.)
Caro additionally contends that Juror No. 11 was actually
biased because she did not disclose her statement that it had to
be “an emotional night” at trial. But this precise theory of
misconduct was never raised to the trial court, so is forfeited.
(Dykes, supra, 46 Cal.4th at p. 808, fn. 22.) Moreover, Juror No.
11 did disclose that they had “[s]ort of” discussed deliberations,
and that Juror No. 9 had thanked her for listening to him during
deliberations. Omitting this mostly innocuous comment in
response to the judge’s question, “[D]id you discuss with him
further about the deliberations?” may have been inadvertent
and not misconduct. But to the extent it was misconduct, the
trial court did not abuse its discretion by finding no actual
bias — the omission was minor, and Juror No. 11 was candid in
her declaration. (See People v. Lewis, supra, 46 Cal.4th at p.
1309.)
ii. Posttrial and Pre-sentencing Destruction of
Dismissed Jurors’ Notes
Caro asserts that by destroying Juror No. 9’s notes after
his dismissal, the trial court deprived Caro of evidence
supporting claims of juror misconduct in her motion for a new
trial and violated Government Code former section 68152,
subdivision (e)(1). After the conclusion of the penalty phase, on
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Opinion of the Court by Cuéllar, J.
February 1, 2002, Caro filed a motion for the release of Juror
No. 9’s notes as evidence of prejudicial jury misconduct. At the
hearing on the motion, the trial court indicated that it had no
such notes. The bailiff testified that when Juror No. 9 was
excused for juror misconduct, the bailiff told him that he could
pick up the notes at the close of trial. The notes were kept in
the jury room in the meantime. After the trial, Juror No. 9
called the court twice and arranged times to pick up the notes
but did not show up either time. The trial court judge was going
to go on vacation for three weeks after these two dates, and the
bailiff decided it would be best to destroy the notes rather than
leave them in the courtroom. Because Juror No. 9 had failed to
pick up the notes on the dates he said he would, the trial court
agreed with the bailiff’s suggestion. The bailiff destroyed Juror
No. 9’s notes (along with the notes for Alternate Juror No. 2 and
Alternate Juror No. 5). The trial court’s standard practice was
to destroy juror notes after trial.
This practice did not violate any statutory or
constitutional principles. Government Code former section
68152, subdivision (e)(1) required the trial court to preserve
“court records” on a permanent basis. (See Stats. 1998, ch. 931,
§ 236, pp. 6523-6524; id., ch. 932, § 34.5, p. 6816.) But the
definition of “court records” found in Government Code former
section 68151, subdivision (a) (Stats. 1996, ch. 1159, § 14, pp.
8475-8476) and former section 68152, subdivision (j) (Stats.
1998, ch. 931, § 236, pp. 6526-6527; id., ch. 932, § 34.5, pp. 6817-
6818) does not mention juror notes. Instead those provisions
refer to official documents of the kind that would be filed with
the court or an administrative agency, not a juror’s informal
notes on the trial. (See Gov. Code, former §§ 68151, subd. (a),
68152, subd. (j); see also id., §§ 68151, subd. (a), 68152, subd. (g)
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Opinion of the Court by Cuéllar, J.
[similar current version of these provisions].) And even
assuming “court records” can be construed to include juror notes
and that such notes are discoverable, Caro has failed to
demonstrate any prejudice. Caro’s motion for new trial
contained a declaration from Juror No. 9 and there is no
evidence to indicate that Juror No. 9 was unable to remember
his experiences during the trial. Accordingly, we deny Caro’s
claim regarding the destruction of Juror No. 9’s notes.
iii. Exclusion of Defense Witness on Motion for New
Trial
Caro argues the trial court erred by not allowing the
defense to call certain witnesses at a hearing on the new trial
motion. The prosecution submitted declarations from all 12
jurors in its opposition to the defense’s motion. Juror No. 9’s
declaration included the statement, “One day during
deliberations, we asked the bailiff if we could see [a photograph
of Xavier’s car leaving his office’s parking lot on the night of the
shootings] projected on the wall and she stated that we could
only have the evidence we already had back in the jury room.”
The alleged request was never communicated to the parties. In
a morning hearing, the court reported that the bailiff had
informed the court such a request never occurred. Defense
counsel requested to examine the bailiff, who testified that such
a request was never made. Defense counsel then asked to call
Juror No. 3 — the jury foreperson — to testify to what occurred,
based on defense counsel’s “belie[f]” that Juror No. 3 would
testify “that a conversation did take place with the bailiff
regarding getting an additional item of evidence or an
opportunity to view the photograph projected on the wall and
that in fact a response was made.” The prosecution argued that
such testimony was irrelevant because Juror No. 9 was later
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Opinion of the Court by Cuéllar, J.
excused, causing deliberations to begin anew after the alleged
request. The trial court observed that nothing in Juror No. 3’s
declaration indicated he would provide material testimony on
this issue. Based on the evidence the parties had provided so
far, the court tentatively found the alleged request did not occur.
The trial court stated it would permit the defense to provide
additional submissions but emphasized its intention to resolve
the matter that day.
Later that day, defense counsel proffered written
summaries of interviews with Juror No. 10 and Juror No. 9. The
first allegedly stated that Juror No. 10 remembered Juror No. 9
making some sort of request to the bailiff. The second allegedly
indicated that Juror No. 2 remembered Juror No. 9 asking for a
photograph of Xavier’s car and a note or sticker in the
windshield of the car. Based on this proffer, defense counsel
requested permission to file additional juror declarations,
including the still-outstanding declaration anticipated from
Juror No. 3, or, as an alternative, to call Jurors No. 9 and No. 10
to the stand. The prosecutor asserted the new information was
not specific enough to support further hearing on the matter and
renewed her argument that the issue was irrelevant. The trial
court agreed and denied the defense’s request to file additional
declarations or call more witnesses. It faulted defense counsel
for failing to timely submit any declarations after receiving
permission to do so at the morning hearing.
Caro asserts the requested testimony would have shown
that the bailiff violated section 1138 by failing to notify counsel
of the alleged request. The government argues, and Caro does
not dispute, that Caro did not raise this purported violation as
a basis for her new trial motion. The trial court could not have
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Opinion of the Court by Cuéllar, J.
committed error by declining to take additional evidence on an
issue irrelevant to the motion.
Even assuming Caro’s motion incorporated the section
1138 claim and that it was a cognizable ground for obtaining a
new trial, she fails to show prejudice entitling her to relief. (See
People v. Clair (1992) 2 Cal.4th 629, 667 [trial court may grant
new trial motion only if the defendant demonstrates reversible
error]; People v. Jenkins (2000) 22 Cal.4th 900, 1027 [“ ‘[a]
conviction will not be reversed for a violation of section 1138
unless prejudice is shown’ ”].) Suppose Caro’s proffered juror
testimony convinced the court that Juror No. 9 had indeed
requested the enlarged photo. Her theory of prejudice is that
Juror No. 9 believed the timestamped photo did not in fact show
Xavier’s car. Juror No. 9 therefore doubted the prosecutor’s
timeline establishing Xavier’s whereabouts the night of the
shootings. Had he been able to show other jurors a bigger image
of the photo before the trial court discharged him for
misconduct, at least one other juror might have shared his doubt
about the timeline and the ultimate question of Caro’s guilt. But
Caro offers no more than speculation that the projected photo
would confirm Juror No. 9’s suspicions, that such confirmation
had a reasonable likelihood of affecting jury deliberations after
Juror No. 9’s departure, or that the photo mattered to any
remaining juror.
The trial court did not err in declining to hear additional
witnesses on this matter.
D. Other Issues
i. California’s Death Penalty Statute
Caro raises a number of constitutional challenges to
California’s death penalty scheme that we have rejected on
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PEOPLE v. CARO
Opinion of the Court by Cuéllar, J.
multiple prior occasions. We are not persuaded to reconsider
our precedent. (People v. Winbush, supra, 2 Cal.5th 402, 488.)
We find no basis to conclude the state’s death penalty scheme
violates the federal Constitution by failing to: adequately
narrow the class of offenders eligible for the death penalty (see,
e.g., id. at p. 488); require written findings from the jury during
the penalty phase (see, e.g., id. at p. 490); impose a standard of
“beyond a reasonable doubt” on jury findings in the penalty
phase (see, e.g., id. at p. 489; People v. Case (2018) 5 Cal.5th 1,
50); instruct the jury on any burden of proof in the penalty phase
(see, e.g., Winbush, at p. 489); adequately narrow the
aggravating circumstances the jury can consider (see, e.g., ibid.);
require jurors to find aggravating factors unanimously (see, e.g.,
id. at pp. 489-490); inform the jury that the mitigating factors
need not be found unanimously (see, e.g., id. at p. 490); place the
burden of persuasion on the prosecution (see, e.g., Williams,
supra, 58 Cal.4th at p. 294); instruct the jury on a presumption
of life (see, e.g., People v. Moore, supra, 51 Cal.4th at pp. 415-
416); inform the jury it could impose a life sentence even if
aggravation outweighed mitigation (see, e.g., People v. Page
(2008) 44 Cal.4th 1, 58); instruct the jury to impose a life
sentence if mitigation outweighed aggravation (see, e.g., id. at
p. 57); inform the jury not to consider the deterrent effect or cost
of the death penalty (People v. Elliott (2012) 53 Cal.4th 535,
590-591); adequately narrow prosecutorial discretion as to who
is charged with capital crimes (see, e.g., People v. Weaver (2001)
26 Cal.4th 876, 992); or require either “intercase proportionality
review” or “the disparate sentence review that is afforded under
the determinate sentence law” (People v. Williams (2016) 1
Cal.5th 1166, 1205). Nor did the trial court err by instructing
the jury using adjectives such as “extreme” and “substantial” in
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Opinion of the Court by Cuéllar, J.
the list of mitigating factors (see, e.g., People v. Boyce (2014) 59
Cal.4th 672, 724), by instructing on inapplicable sentencing
factors (see, e.g., ibid.), or by instructing the jury to impose
death where “warrant[ed]” (ibid.). The standard the jury uses
to determine the penalty is not unconstitutionally vague. (See,
e.g., ibid.). We have also repeatedly denied claims based on
principles of equal protection (see, e.g., Winbush, at p. 490) and
evolving standards of decency and international norms (see, e.g.,
ibid.).
ii. Cumulative Error
Caro contends that even if the asserted errors are
harmless individually, they require reversal when considered
cumulatively. We assumed error on the claim that the
prosecution should have provided its investigatory material
about prospective jurors, as well as many of Caro’s evidentiary
and prosecutorial misconduct challenges. But no subset of these
potential errors, or their asserted cumulative effect, requires
reversal.
III. CONCLUSION
We affirm the judgment.
CUÉLLAR, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
89
PEOPLE v. SOCORRO CARO
S106274
Concurring Opinion by Justice Liu
Today’s opinion declines to decide whether the admission
of statements from Detective Cheryl Wade’s interview of
defendant Socorro Caro in the hospital on November 23, 1999,
was unconstitutional and instead finds any error harmless.
(Maj. opn., ante, at pp. 32–41.) Although I agree that admission
of the statements was harmless, I see no reason to leave readers
wondering whether a constitutional violation occurred here.
Detective Wade conducted a three-hour interview of Caro
in the intensive care unit (ICU) a few hours after Caro had
undergone emergency surgery for a gunshot wound to her head.
Throughout the interview, Caro was bedridden, isolated from
family and friends, in continuous pain, intermittently
unconscious, under the influence of medication, encumbered by
tubes, monitors, and intravenous lines, and suffering from a
major foot fracture that had not yet been treated. Encountering
Caro in this weakened state, Detective Wade sought to establish
rapport by acting as Caro’s caregiver and medical advocate,
without revealing to Caro (until the end of the interview) that
Caro was a murder suspect and that Wade was there to take
recorded statements that could be used, and were used, against
Caro in a capital trial.
I would hold that statements obtained under such
circumstances are not “voluntary” — that is, they are not “ ‘ “the
product of a rational intellect and a free will” ’ ” — and their
1
PEOPLE v. CARO
Liu, J., concurring
admission for any purpose violates due process of law. (Mincey
v. Arizona (1978) 437 U.S. 385, 398 (Mincey).) Moreover,
Detective Wade gave no Miranda warning until the final
minutes of the interview. (Miranda v. Arizona (1966) 384 U.S.
436 (Miranda).) Because no reasonable person in Caro’s
position would have felt “ ‘at liberty to terminate the
interrogation and leave’ ” (Yarborough v. Alvarado (2004) 541
U.S. 652, 663 (Yarborough)), Caro’s statements prior to the
warning were also inadmissible under Miranda.
The police, responding to the murder of three children,
understandably wanted answers. But the law provides
safeguards against “ ‘interrogation techniques’ ” that, “ ‘as
applied to the unique characteristics of a particular suspect, are
so offensive to a civilized system of justice that they must be
condemned.’ ” (Colorado v. Connelly (1986) 479 U.S. 157, 163
(Connelly).) The hospital interview here crossed the line, and
we should not hesitate to say so.
I.
“A statement is involuntary if it is not the product of ‘ “a
rational intellect and free will.” ’ (Mincey, supra, 437 U.S. at
p. 398.) The test for determining whether a confession is
voluntary is whether the defendant’s ‘will was overborne at the
time [s]he confessed.’ ” (People v. Maury (2003) 30 Cal.4th 342,
404 (Maury).) We ask “ ‘ “whether the influences brought to
bear upon the accused were ‘such as to overbear petitioner’s will
to resist and bring about confessions not freely self-
determined.’ ” In determining whether or not an accused’s will
was overborne, “an examination must be made of ‘all the
surrounding circumstances — both the characteristics of the
accused and the details of the interrogation.’ ” ’ ” (Ibid.) It is the
2
PEOPLE v. CARO
Liu, J., concurring
state’s burden to show the voluntariness of the suspect’s
statements by a preponderance of the evidence. (Connelly,
supra, 479 U.S. at pp. 168–169.)
The high court’s decision in Mincey is instructive here.
That case also involved a detective’s hospital interview of a
murder suspect. A few hours before the interview, at the
murder scene, the police had “found Mincey lying on the floor,
wounded and semiconscious.” (Mincey, supra, 437 U.S. at p.
387.) At the hospital, Mincey received emergency treatment and
was placed in the ICU. “He had sustained a wound in his hip,
resulting in damage to the sciatic nerve and partial paralysis of
his right leg. Tubes were inserted into his throat to help him
breathe, and through his nose into his stomach to keep him from
vomiting; a catheter was inserted into his bladder. He received
various drugs, and a device was attached to his arm so that he
could be fed intravenously.” (Id. at p. 396.)
Evaluating these circumstances, the high court said: “It
is hard to imagine a situation less conducive to the exercise of ‘a
rational intellect and a free will’ than Mincey’s. He had been
seriously wounded just a few hours earlier, and had arrived at
the hospital ‘depressed almost to the point of coma,’ according to
his attending physician. Although he had received some
treatment, his condition at the time of [Detective] Hust’s
interrogation was still sufficiently serious that he was in the
intensive care unit. He complained to Hust that the pain in his
leg was ‘unbearable.’ He was evidently confused and unable to
think clearly about either the events of that afternoon or the
circumstances of his interrogation, since some of his written
answers were on their face not entirely coherent. Finally, while
Mincey was being questioned he was lying on his back on a
hospital bed, encumbered by tubes, needles, and breathing
3
PEOPLE v. CARO
Liu, J., concurring
apparatus. He was, in short, ‘at the complete mercy’ of Detective
Hust, unable to escape or resist the thrust of Hust’s
interrogation.” (Mincey, supra, 437 U.S. at pp. 398–399,
fns. omitted; see id. at pp. 401–402 [“Mincey was weakened by
pain and shock, isolated from family, friends, and legal counsel,
and barely conscious, and his will was simply overborne.”].)
The circumstances here are similar. Detective Wade
interviewed Caro on the afternoon of November 23, 1999, less
than 12 hours after Caro had undergone emergency
neurosurgery for a life-threatening gunshot wound to the head.
At 11:31 p.m. the previous night, police officers had found Caro
lying unresponsive on the floor of her bedroom in a pool of blood
and vomit, with a bullet wound to her head, following a 911 call
by her husband. Paramedics transported Caro to the hospital
by emergency airlift. At 2:30 a.m., a neurosurgeon performed
emergency surgery to remove bullet and bone fragments
embedded two centimeters into Caro’s brain. The surgeon
described the wound as “a large stellate explosion-type injury in
the right parietal area where the scalp is literally blown apart,
and there was no entrance or exit; it was a single large wound,
and underneath it there was a compound depressed skull
fracture which pushed the outer table of the bone into the brain.”
According to the surgeon, the procedure included excision of
“[a]pproximately four by five centimeters” of skull as well as a
“[m]inimal amount” of brain.
When Detective Wade arrived at Caro’s hospital room
between 12:40 p.m. and 1:00 p.m., Caro was lying intubated in
the hospital’s ICU with a drain in her head, a breathing tube
down her throat, binders on her hands to prevent her from
pulling out the drain, and multiple intravenous lines (IVs) in her
body. She had received a codeine shot roughly 90 minutes
4
PEOPLE v. CARO
Liu, J., concurring
earlier and appeared to Detective Wade to be under the
influence of medication.
In addition to the head injury, Caro had suffered a
Lisfranc fracture in one of her feet that had not been treated at
the time of the interview. As Caro’s orthopedic surgeon
described it, “the forepart of her foot, the part that begins at the
top of the arch and continues out to the toes, was broken away
from the middle part of the foot, the part that makes up the top
of the arch.” During the interview, Detective Wade observed
that Caro’s foot “[l]ooks pretty swollen.”
A transcript and audio recording of the interview are part
of the publicly accessible record in this case. (Cal. Rules of
Court, rule 2.550(c).) At the start of the interview, medical
personnel removed Caro’s breathing tube and suctioned out the
back of her mouth. Caro’s distress during this procedure is
evident from sounds of coughing, choking, and gasping on the
audio recording of the interview. Throughout the three-hour
interview, Caro was bedridden and required medical
interventions. Hospital staff took an X-ray of Caro’s foot, and a
doctor examined the foot and told her she would need additional
surgery after her brain injury had stabilized. Nurses placed a
potassium IV in Caro’s thumb, which caused a continual
burning sensation; physically moved Caro in order to adjust her
drain, causing significant pain; aided her in taking pain
medication; administered a second codeine injection; and
administered a blood draw. In addition to the drain in her head
and the IVs, Caro at various points had an oxygen tube in her
nose, an oxygenation monitor on her finger, an ice pack on her
foot, compression stockings on her legs, and an ice pack on her
arm to ease pain from the potassium IV.
5
PEOPLE v. CARO
Liu, J., concurring
Caro complained of severe pain continuously during the
interview. At times, she was reduced to sobbing, moaning, or
exclaiming, “It hurts, hurts, hurts, hurts, hurts” or “Ow, ow,
ow.” She expressed pain from the removal of the breathing tube
and the removal of tape from her face. Three times, she
complained of pain in her head. Twice, she indicated her throat
was sore. Seven times, she reported serious pain in her neck
and shoulders. Eleven times, she complained of severe pain
from the potassium IV. Her broken foot was swollen and sore,
and the doctor’s physical examination of the foot caused her
pain. At one point, Caro reported feeling pain “all over.” Her
back hurt. Her ears hurt. Her hands hurt. Her right arm and
the inside of her thighs were bruised. She complained of
discomfort from the oxygenation monitor on her finger, the
compression stockings on her legs, the patches on her skin for
monitoring vital signs, and the oxygen tube in her nose, which
she tried to remove at least three times. In all, Caro expressed
pain through words or moans at least 55 times during the
interview.
Moreover, Caro drifted in and out of consciousness,
especially after she received the second codeine injection. At
times, her pain and fatigue reduced her to nonverbal
communication. At one point, she told Detective Wade, “I’m
doing my best so I can go to bed.” A few minutes later, Caro
appeared to fall asleep, prompting Detective Wade to ask, “Are
you awake? Socorro? So we can talk to you? Are you awake so
I can talk to you?” In her debilitated condition, Caro repeatedly
expressed confusion and inability to recall what happened the
previous night or why she was injured. In the middle of the
interview, she could not remember Detective Wade’s name. She
exhibited no awareness that her children had been killed,
6
PEOPLE v. CARO
Liu, J., concurring
instead telling Detective Wade at one point that she believed
they were at home with their grandmother. (At the penalty
phase, a neuropsychologist gave unrebutted testimony that
Caro suffered from continued amnesia about the events of that
evening seven months later due to the combination of her brain
injury and the alcohol and medication in her system when the
events occurred.)
Thus, Caro was interrogated when she was “seriously . . .
wounded” (Mincey, supra, 437 U.S. at p. 401), “weakened by
pain” (ibid.), “on the edge of consciousness” (ibid.), and
“evidently confused and unable to think clearly about either the
events of [the previous night] or the circumstances of [her]
interrogation” (id. at p. 398). Caro was also “isolated from
family, friends, and legal counsel” throughout the interview.
(Id. at p. 401.) In Mincey, the high court concluded that in light
of Mincey’s “debilitated and helpless condition” (id. at p. 399),
“his will was simply overborne” (id. at pp. 401–402) by the
detective’s “virtually continuous questioning” for four hours
despite Mincey’s several requests to be let alone (id. at p. 401).
Here, Detective Wade subjected Caro to repetitive and “virtually
continuous questioning” for three hours (ibid.), and although the
interrogation did not proceed in the face of a direct request to
stop, an unmistakable element of “improper influence” is
evident in the interaction. (Maury, supra, 30 Cal.4th at p. 404
[“A confession may be found involuntary if . . . secured by the
exertion of improper influence.”].)
Interrogation tactics that exploit a suspect’s
vulnerabilities may render statements involuntary. “[A]s
interrogators have turned to more subtle forms of psychological
persuasion, courts have found the mental condition of the
defendant a more significant factor in the ‘voluntariness’
7
PEOPLE v. CARO
Liu, J., concurring
calculus.” (Connelly, supra, 479 U.S. at p. 164.) One form of
psychological pressure is a “false friend” technique in which the
officer misleads the suspect into believing the officer is
protecting her best interests. (State v. Rettenberger (Utah 1999)
984 P.2d 1009, 1016–1017.) Another is manipulation through
misrepresentation of fundamental aspects of the interrogation.
(State v. Eskew (Mont. 2017) 390 P.3d 129, 135–136.)
Throughout the interview here, Detective Wade presented
herself to Caro as a supportive caregiver and advocate for Caro’s
medical needs and recovery. From the beginning, Detective
Wade addressed Caro with terms of endearment (“Honey,”
“Hon”) and spoke words of support and encouragement as Caro
struggled with her physical condition (e.g., “You’re doing great”
“Just relax” “Feels good to take a breath, huh?” “You’re doing
terrific” “I know it hurts but you’re doing great” “Everything’s
looking great”). In multiple interactions, Detective Wade
assumed a caregiving role and projected a unity of interest with
Caro. She reminded Caro not to pull out the drain in her head
(“I know you know. . . . [I]t just makes me feel better to remind
you.”). She adjusted Caro’s pillow and helped her roll over in
the bed (“There you go. . . . Is that better?”). She repeatedly fed
Caro ice chips (“Here you go, Hon. Open up. How’s that? Is
that better?”). She placed an ice pack on Caro’s arm. She called
a nurse to obtain medication when Caro requested it. She
helped untangle Caro’s medical wires. She even adjusted Caro’s
robe for her. And she repeatedly urged Caro to rely on her for
any needs (“If you need anything just let me know, okay?” “You
need something?” “Is that pillow bothering you?” “You want . . .
another ice chip?” “Can I get you anything else?” “Do you need
anything else?” “I’ll just help you out, okay?” “Well, I know
8
PEOPLE v. CARO
Liu, J., concurring
you’re not alright. I’m sorry to say that but if there’s anything I
can get you, you let me know, okay?”).
At no point did Detective Wade give Caro privacy in
medical treatment or in discussion with medical personnel
about her condition. To the contrary, Detective Wade interposed
herself between Caro and the hospital staff. She communicated
with the medical team on Caro’s behalf, alerting them to pain in
Caro’s shoulders and conveying Caro’s answers to questions
posed by the orthopedist. At various points, Detective Wade
projected a measure of control over Caro’s medical care.
Hospital staff even conferred with Detective Wade before
providing Caro with a codeine shot: A nurse told Detective
Wade that she (the nurse) recognized Caro was “hurting and
uncomfortable” and “would like to give her something for the
pain,” “but I don’t want to mess up your thing.” Wade eventually
responded, “All right. If that’s what you would normally do,
then go ahead.” The nurse noted that Caro was “just constantly”
saying that “everywhere hurts” and that she (the nurse) had
“been trying to put it off.” After some discussion, Detective
Wade said, “Right. Right. So go ahead.”
On the surface, much of Detective Wade’s interaction with
Caro resembled the type of encouragement and comfort that a
family member or friend would ordinarily provide to a fragile
patient. In fact, however, Caro was isolated from her family and
friends, and Detective Wade was not there to be Caro’s friend.
She was there to obtain recorded statements from a murder
suspect and to elicit potentially incriminating information that
could be used, and was used, to try the suspect for capital
crimes. Notwithstanding her apparent solicitude for Caro’s
well-being, Detective Wade’s interests were plainly adverse to
Caro’s.
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PEOPLE v. CARO
Liu, J., concurring
Moreover, Detective Wade deliberately kept Caro in the
dark about the fundamental context of the interrogation, i.e.,
that Caro’s children were dead and Caro was a suspect. Only at
the end — after hours of seemingly supportive and ingratiating
talk — did Detective Wade reveal to Caro: “[R]ight now I’m
conducting . . . an investigation into the death of your boys . . . .”
and “Now, you’re suspected of hurting your boys.” Detective
Wade then gave Miranda warnings, and Caro invoked her right
to counsel. Upon grasping that her boys were dead, Caro let out
a series of audible gasps and cries over the course of several
minutes in a chilling denouement to the interrogation.
In sum, it does not take much for a police interrogation to
overbear the will of a person in an intensive care unit who, as a
result of a gunshot wound to the head and emergency
neurosurgery, is experiencing severe pain and intermittently
losing consciousness. By acting as Caro’s caregiver and
advocate while withholding the fundamental context of the
interrogation, Detective Wade exerted improper influence over
a gravely injured and weakened suspect. Caro did not directly
ask to stop the interview (until the end), but she repeatedly said
she was in pain and wanted to sleep. While allowing Caro to
sleep at various points, Detective Wade “ceased the
interrogation only during intervals when [Caro] lost
consciousness or received medical treatment, and after each
such interruption returned relentlessly to [her] task.” (Mincey,
supra, 437 U.S. at p. 401.) It is not plausible to describe
submission to such interrogation by anyone in Caro’s condition
as “voluntary” in any meaningful sense of the word. (See
Connelly, supra, 479 U.S. at p. 163 [voluntariness inquiry must
examine “ ‘interrogation techniques . . . as applied to the unique
characteristics of a particular suspect’ ”]; Miller v. Fenton (1985)
10
PEOPLE v. CARO
Liu, J., concurring
474 U.S. 104, 116 [voluntariness inquiry must examine
“techniques for extracting the statements, as applied to this
suspect”].) Although the trial court opined that Detective Wade
did not do “anything to overcome” Caro’s will, the voluntariness
of a suspect’s statement, “to the extent the interview is tape-
recorded,” is “subject to our independent review.” (People v.
Linton (2013) 56 Cal.4th 1146, 1177.) I would hold that
admission of Caro’s statements for any purpose offends due
process of law.
II.
Caro’s statements were also inadmissible during the
prosecution’s case-in-chief for a separate reason: They were
obtained before Detective Wade informed Caro of her Miranda
rights. (See Missouri v. Seibert (2004) 542 U.S. 600, 608
[“Miranda conditioned the admissibility at trial of any custodial
confession on warning a suspect of h[er] rights: failure to give
the prescribed warnings and obtain a waiver of rights before
custodial questioning generally requires exclusion of any
statements obtained.”].)
To determine whether an individual is in custody for
Miranda purposes, we ask “ ‘first, what were the circumstances
surrounding the interrogation; and second, given those
circumstances, would a reasonable person have felt he or she
was not at liberty to terminate the interrogation and leave.’ ”
(Yarborough, supra, 541 U.S. at p. 663; see Miranda, supra, 384
U.S. at p. 444 [“By custodial interrogation, we mean questioning
initiated by law enforcement after a person has been taken into
custody or otherwise deprived of his freedom of action in any
significant way.”].) When urging the admissibility of statements
obtained through police questioning without Miranda warnings,
11
PEOPLE v. CARO
Liu, J., concurring
it is the state’s burden to establish that the suspect was not in
custody. (See People v. Davis (1967) 66 Cal.2d 175, 180–181.)
In this case, several factors would have caused a
reasonable person in Caro’s position to believe that law
enforcement was in control of the interaction and that she was
not free to terminate the interrogation and leave. The
interrogation occurred in a hospital ICU; Detective Wade’s
assertive presence in an intimate environment where visitation
is typically reserved for family and friends is itself significant.
There is no evidence that she or other members of the Ventura
County Sheriff’s Department ever asked for Caro’s permission
to be present. And as noted, Detective Wade did not step out or
step aside, or offer to do so, when Caro was undergoing medical
treatment or having conversations with hospital staff about her
bodily condition and medical needs. Even the hospital staff
seemed to regard Detective Wade as having a measure of control
over Caro’s medical care, as indicated by the conversation in
which a nurse told Detective Wade that she (the nurse) wanted
to give Caro a codeine shot “but I don’t want to mess up your
thing.”
In addition to Detective Wade, other law enforcement
personnel were present. Detective Jose Rivera of the sheriff’s
department had been stationed by Caro’s bedside or outside her
room from the time Caro emerged from surgery, and he stayed
there throughout the interrogation. A deputy district attorney
also stood outside the glass door to Caro’s room. At one point,
Caro asked about him, and Wade responded, “He’s with the DA’s
office.” A psychologist hired by the district attorney’s office, Dr.
Susan Ashley, was present as well.
12
PEOPLE v. CARO
Liu, J., concurring
Further, Caro was “isolated from family, friends, and legal
counsel.” (Mincey, supra, 437 U.S. at p. 401.) From the time she
regained consciousness after neurosurgery, Caro’s only
interactions (besides speaking to Detective Wade and briefly to
Detective Rivera) were with medical personnel, and even in
those interactions, Detective Wade several times interposed
herself as Caro’s caregiver or advocate. (See Miranda, supra,384 U.S. at p. 445 [“incommunicado interrogation of individuals
in a police-dominated atmosphere” carries substantial risk of
Fifth Amendment violation “without full warnings of
constitutional rights”].)
The circumstances of the interview were entirely
consistent with the nature of Detective Wade’s assignment that
day: Caro was suspected of murdering her children, and
Detective Wade was at the hospital to find out from Caro what
had happened. It is hard to imagine that law enforcement
officers, less than 24 hours after a triple murder, would have
allowed a key suspect to leave their presence, and the whole
context of the interaction would have made clear to a reasonable
person in Caro’s position that she was not “ ‘at liberty to
terminate the interrogation and leave.’ ” (Yarborough, supra,
541 U.S. at p. 663; cf. U.S. v. Martin (9th Cir. 1985) 781 F.2d
671, 673 [“If the police took a criminal suspect to the hospital
from the scene of a crime, monitored the patient’s stay, stationed
themselves outside the door, arranged an extended treatment
schedule with the doctors, or some combination of these, law
enforcement restraint amounting to custody could result.”].)
The only reason for delaying the Miranda warning appears to
have been Detective Wade’s determination to elicit statements
from Caro before revealing to her that her children had died and
that she was suspected of harming them.
13
PEOPLE v. CARO
Liu, J., concurring
The control exercised here by law enforcement in its
interaction with a bedridden, isolated, and severely injured
suspect underscores the involuntariness of any statements
obtained. Simple, lawful alternatives were available. Caro was
not going anywhere, and the police had appropriately
sequestered her in the ICU. Detective Wade could have waited
to interview her until her condition had stabilized and she was
fully awake, alert, and not in serious pain. Further, Detective
Wade could have provided Caro with Miranda warnings at the
outset of an interview, as the law requires. The state has not
advanced any argument based solely on the fact that a murder
had been committed, nor could it. Just as there is no “ ‘murder
scene exception’ ” to the Fourth Amendment — that is, a
warrantless search “[i]s not constitutionally permissible simply
because a homicide ha[s] recently occurred” — there is no
homicide exception to the Fifth Amendment or to the guarantee
of due process of law. (See Mincey, supra, 437 U.S. at p. 395.)
Caro’s statements were inadmissible, and I would so hold.
In all other respects, I join today’s opinion.
LIU, J.
14
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Caro
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S106274
Date Filed: June 13, 2019
__________________________________________________________________________________
Court: Superior
County: Ventura
Judge: Donald D. Coleman
__________________________________________________________________________________
Counsel:
Tracy J. Dressner, under appointment 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 and Ronald S. Matthias, Assistant Attorneys General,
Joseph P. Lee and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Tracy J. Dressner
2629 Foothill Boulevard, #324
La Crescenta, CA 91214
(818) 426-0080
Chung L. Mar
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 269-6169