CANTIL-SAKAUYE, C. J.—
A jury convicted defendant Daniel Sanchez Covarrubias of the first degree murders of Ramon Morales, Martha Morales, and Fernando Martinez (Pen. Code, § 187, subd. (a); counts 1 through 3),
As to counts 1 through 9, the jury found that a principal was armed with a firearm, a .38-caliber handgun and a .30-30 rifle (former § 12022, subd. (a)(1)), and an assault weapon, an AR-15 semiautomatic assault rifle (former § 12022, subd. (a)(2)). The jury found not true the allegation that defendant was personally armed with a knife (former § 12022, subd. (b)) and was unable to reach a verdict on the allegation that defendant personally used a handgun (former § 12022.5, subd. (a)).
Following the penalty phase of the trial, the jury returned a verdict of death. The trial court denied defendant's motion for modification of the penalty to life imprisonment without the possibility of parole (§ 190.4, subd. (e)) and sentenced him to death on the murder counts. On the remaining counts, the court imposed an aggregate determinate sentence of 32 years four months, stayed pending execution of the death sentence.
This appeal is automatic. (§ 1239, subd. (b).) We reverse the judgment of death because of the erroneous excusal of a prospective juror during jury selection, remand the matter for a new penalty determination and reconsideration of the question of a restitution fine under the currently applicable statute, and affirm the judgment in all other aspects.
On November 16, 1994, Ramon Morales (Ramon), his wife Martha Morales (Martha), and her brother Fernando Martinez (Martinez), were shot and killed during a home invasion robbery committed by defendant and his cousins Antonio Sanchez (Sanchez) and Joaquin Nunez (Nunez), and his 16-year-old nephew, Jose Luis Ramirez (Ramirez).
After the homicides, defendant fled to Mexico. In July 1995, he was captured at his home in Mexicali, Mexico, returned to the United States by bounty hunters, and eventually taken into custody in Monterey County to face charges in this case. Sanchez and Nunez were subsequently taken into custody in Mexicali.
Ramirez testified pursuant to a plea agreement with the Monterey County District Attorney's Office that provided he would plead guilty to three counts of robbery and one count of burglary and serve a sentence of 11 years eight months in exchange for his truthful testimony.
In early 1994, Ramon, Martha, Alejandra, and Martinez rented a house on Toro Street in Salinas with four other individuals. In August 1994, Sanchez moved into the house.
Ramirez frequently visited the house. According to Ramirez, Sanchez and Ramon were "good friends"; they stole cars and sold drugs. Sanchez "sold a lot of cocaine" for Ramon. At some point, Ramon and Sanchez had a dispute
Around September 1994, Sanchez went to Mexicali, Mexico. Meanwhile, the Morales family, Martinez, and Lorenzo moved into a converted garage apartment on East Market Street in Salinas. The apartment consisted of a living room and kitchen, each of which was 10 feet by 10 feet, and a bedroom/bathroom combination room.
In November 1994, defendant was living in Southern California. Around November 11, defendant arrived in his car at the home of his sister Bertha Sanchez (Bertha) in Salinas. Sanchez and Nunez accompanied defendant. They all stayed at Bertha's house overnight. Defendant told her he intended to return to Southern California the following day. Bertha asked him to wait because she was going to drive to Mexicali in a couple of days to pick up her husband, and she wanted him to follow her in his car in case she had mechanical problems. Defendant agreed, and they planned to leave on Thursday, November 17. Defendant, Sanchez, and Nunez stayed at Bertha's house until November 16, the day of the homicides.
On November 15, Lorenzo visited defendant, Sanchez, and Nunez at Bertha's house. Lorenzo pulled some guns out from under a sofa. When Bertha saw the guns, she told defendant to remove them from the house. He took them to his car, and the four men left. Bertha testified the guns could have been an AR-15 and a .30-30 rifle.
About 10:00 a.m. on November 16, 1994, Sanchez, defendant, and Nunez arrived at Ramirez's house in defendant's car. For a couple of hours, they ate, played dominoes, and drank beer. In the afternoon, defendant drove himself and Sanchez, Ramirez, and Nunez
After they left the trailer park, defendant drove to JKD Shooting Sports in Salinas. Defendant stayed in the car and the others went inside. With the
After the four men left the firearms store, defendant drove them to the home of Amy Arredondo, Sanchez's half sister, where they had dinner and drank more beer. Arredondo saw Sanchez and Nunez each had a big rifle; they said one was an "R-15" (sic) and the other was an "M-16." Arredondo informed the four men that they had to leave because she did not want guns in her house. They departed around 5:30 p.m. and drove to the home of her daughter, Amy Trejo.
Upon arriving at Trejo's house, Sanchez went to a car he stored there, telling Ramirez he was going to get his rifles out of the car. Trejo saw Sanchez take a box from his trunk and place it in defendant's car trunk. She had seen "guns" in the box on a previous occasion. Trejo knew that there had been problems between Sanchez and Ramon and that Sanchez "wanted to get" Ramon, and Ramon "wanted to get" Sanchez. The four men were at Trejo's house for about 15 minutes and then left.
After leaving Trejo's house, the four men went to Bertha's house and fixed a tire on her car. Afterward, they sat in defendant's car, drinking beer with Bertha's son, Jorge Acosta. Sometime between 7:00 and 8:00 p.m., Bertha came home. She became upset when she found the men drinking in the car. Bertha believed defendant was drunk and testified that she would not have driven in a car with him that evening. Jorge got out of the car and went inside with his mother. The four men left in defendant's car.
After leaving Bertha's house, defendant drove them into the foothills outside Salinas. On the way, Sanchez, who was in the front seat, talked about going to Ramon's house to rob and kill him. Sanchez and Ramirez put ammunition in the high-capacity magazine Sanchez purchased at the firearms store. When defendant stopped the car, all four men exited. After defendant opened the trunk, Sanchez grabbed an AR-15 rifle, and Nunez grabbed a
Robert Falcon, who lived three miles outside of Salinas in the foothills, heard three or four gunshots nearby and called 911. Monterey County Sheriff's Deputy Greg Liskey arrived about 40 minutes later, at 8:41 p.m. but found nothing suspicious.
After test-firing the rifles, defendant, Sanchez, Ramirez, and Nunez decided to go to the home of Guillermo Morales, Ramon's brother. Sanchez said that "they also want[ed] to kill Guillermo." On the way to Guillermo's, defendant said he wanted a smaller weapon and detoured to the house of one of Ramirez's friends who was known to have guns. When they learned that the friend was not home, the four men headed to Guillermo's house. Upon arriving there, they discovered no one was home. The four men then headed toward a hotel where they understood that a person named "Frank" was staying. Sanchez said that he wanted to kill Frank because he owed Sanchez $100 or $200. When they arrived at the hotel, no one got out of the car. They left and defendant drove to the Morales house.
When the four men arrived at the Morales residence, defendant parked around the corner. There, defendant and Sanchez came up with a plan to go in the house, steal "stuff," and kill whoever was inside so that there would be no witnesses to their crimes. Defendant volunteered to knock on the front door because no one in the house knew him.
The four men exited defendant's car. Nunez had the .30-30 rifle, Sanchez had the AR-15, and defendant had a seven- or eight-inch knife.
Defendant and Sanchez stayed in the living room with Martinez; Ramirez and Nunez started to search the bedroom for items to steal. Sanchez
About 9:00 p.m., on his last trip taking items to defendant's car, Ramirez saw Ramon drive up. Ramirez went inside and told Sanchez that Ramon and Martha were coming. Nunez hid behind the front door. Defendant took Martinez into the bedroom. Sanchez and Ramirez hid in the kitchen behind the refrigerator. When Martha entered the house, Nunez pointed his rifle at her and forced her into the bedroom. Martha was carrying Alejandra. When Ramon entered, Sanchez pointed his AR-15 rifle at him, ordered him to kneel down, and demanded Ramon tell him where the drugs, money, and guns were. At some point, defendant tried to place a blindfold on Ramon. Ramon told Sanchez that he had $5,000 in the bank and that his brother had the drugs. Sanchez kept his rifle pointed at Ramon while defendant searched for guns. Defendant then found two handguns in a box near the kitchen. Ramirez testified that he thought one of the guns was a .38-caliber handgun, and the other he could not remember. He thought defendant used his left hand to put the gun Ramirez believed to be a .38-caliber handgun in Sanchez's jacket pocket. Defendant held the other gun in his right hand.
As Ramon was begging for his life in the living room, Ramirez heard what sounded like a .30-30 gunshot from the bedroom. Ramirez fled. "Fairly rapid" gunfire erupted inside the house. Della Longoria, a neighbor, heard the gunfire and saw gun smoke come through the opened front door of the Morales house. Longoria identified the first person she saw run from the house to be defendant and believed he was carrying a rifle.
Meanwhile, Ramirez ran to the next block. When he looked back at the Morales house, he saw defendant, Sanchez, and Nunez, running to defendant's car. Defendant sped away with the car's headlights off.
Around 9:00 p.m., police responded to the scene and discovered Ramon's body on the living room floor. Martinez's body was found near the doorway leading to the bedroom and bathroom, and Martha's body was found in the bedroom at the foot of the bed. Alejandra was lying near Martha's knees, crying and covered in blood.
Ramirez ran to his cousin Amy Trejo's house. He was dressed in dark clothing, wore a knit cap, and had in his possession the neck chain, the
Later that night, defendant went to the home of his sister Elvia Covarrubias and asked for gas money. He left immediately after he was given $50. Defendant fled to Mexico.
The next day, Ramirez returned to Trejo's house with a friend, Daniel Barba. Ramirez gave the handgun, which was inoperable, to Daniel. Perez helped Ramirez sell the neck chain at a pawnshop for $60.
Salinas police investigators found the following on the bed in the bedroom: a box of .38-caliber ammunition (full metal jacket rounds); a box of.380-caliber ammunition (full metal jacket rounds); a box of baby diapers; and a cashbox. At least four cartridges were missing from the box of.38-caliber ammunition, and five were missing from the box of .380-caliber ammunition. Defendant's fingerprints were on both boxes of ammunition and the box of diapers. Ramirez's fingerprints were on the cashbox.
Investigators found the following additional items during their search of the crime scene: two boxes in the living room, one containing a .22-caliber intact bullet and a spent casing and the other containing a .380 semiautomatic pistol; a trash can in the kitchen containing a vinyl bag full of .22-caliber ammunition; a box of .32-caliber ammunition on top of the refrigerator; a box of .22-caliber ammunition, a Taser gun, and a small amount of hashish on the bedroom floor; and a triple-beam scale in the chicken coop outside the house. During a separate search of the residence conducted more than a month after the homicides, police found two .380-caliber pistols in the bedroom and a.22-caliber rifle in the chicken coop.
Alejandra was treated at a local hospital emergency room. She suffered a.38-caliber through-and-through gunshot wound; the bullet had entered her left shoulder area and exited through her back. The infant also suffered four nonfatal gunshot wounds to her leg that were caused by a single bullet.
Personnel processing the victims' bodies at the coroner's office collected $204.37 from Ramon's pocket, $123 from Martinez's pocket, and $51 from Martha's purse.
Dr. John Hain performed the autopsy on each victim. Martinez was fatally shot in the back of the head, execution style and at point-blank range.
Ramon died from multiple gunshot wounds. He suffered "massive" wounds to the face "in that there was a 4-by-5 inch area of the face that was just torn apart." Three entrance wounds to Ramon's lower chest "virtually tore the heart to pieces." Seven .223-caliber bullets were recovered from Ramon's body. A single .38-caliber bullet was recovered from the back of his head.
Martha suffered two fatal "devastating" gunshots to her forehead that left "her face torn away by the blast of the gunshots and in front of the skull." The bullets that caused the head wounds, a .38-caliber bullet and a .30-caliber hollow-point bullet, traveled to and became lodged in Martha's right shoulder and armpit, respectively, and were recovered from those areas. A .223-caliber bullet was recovered from her left side. Martha probably died within minutes of being shot.
Criminalist Larry Waller collected eighteen .223-caliber shell casings from the crime scene. Four casings were located outside the front door of the residence, but most of the remaining casings were discovered in the living room and kitchen area. Waller also found four .30-30 casings — one in the living room, one at the junction of the living room and the kitchen, and two next to Martinez's body. Investigators collected a .30-caliber bullet that dislodged from between Martinez's eyes when his body was rolled over.
Senior Criminalist Scott Armstrong analyzed 16 of the .223-caliber casings and concluded that all but one were fired from the same weapon, most likely a semiautomatic rifle like an AR-15. He could not determine whether the remaining casing was fired from the same weapon. Armstrong examined the four .30-30 casings and concluded that all four were fired from the same rifle. Armstrong also examined a .30-caliber bullet recovered from Martinez's body and one recovered from Martha's body and determined that both were consistent with having been fired from a Martin Lever Action .30-30 rifle.
Five expended .38-caliber bullets were recovered; two from under the bed and one from each of the three homicide victims. Armstrong concluded that the three bullets found in the homicide victims and one of the bullets found under the bed were fired from the same weapon. He could not determine whether the second bullet found under the bed was fired from that weapon. The bullets found in the homicide victims were "full metal jacket round nose type." Armstrong compared tool marks on a bullet from one of the cartridges in the .38-caliber ammunition box found in the bedroom with marks on the
Criminalist Julie Doerr examined the jacket and "onesie" sleeper that Alejandra was wearing when she was shot, as well as one of the .38-caliber expended bullets found under the bed. Holes in the upper left shoulder and mid-back area of the sleeper corresponded with holes in the jacket. The nose of the bullet contained a tuft of green fibers that were consistent with the fibers on Alejandra's jacket. Doerr opined that it was "highly likely" the bullet passed through the jacket.
As noted earlier, after the homicides, defendant fled to Mexico. Meanwhile, Lorenzo Nunez was arrested and prosecuted separately for his involvement in the homicides. Crecencio Padilla, an investigator with the Office of the Monterey County Public Defender who represented Lorenzo Nunez in his state criminal proceedings, contacted Lorenzo's sister, Yolanda Nunez, and asked her to contact defendant and ask for his assistance in defending Lorenzo. Subsequently, on July 20, 1995, defendant's sister, Bertha, provided a videotape to investigator Padilla.
On the videotape, defendant stated that he was making a statement "in the hopes it will be of some use to Lorenzo Nunez Martinez because on the 16th day of November of 1994 we committed a — a crime but one in which Lorenzo Nunez did not — did not participate at all...." Defendant proceeded to admit the following: He was at the Morales house with Sanchez, Joaquin Nunez, and Ramirez when the victims were shot, but went there only to help Sanchez "pick up some things that were left in the house." Defendant had weapons in his car that Lorenzo gave him the day before the homicides. Defendant intended to sell the weapons in Mexico and, with the proceeds, bring Lorenzo's wife and daughter to Salinas. The weapons were brought into the house because Sanchez told them Ramon had threatened to kill him. Once inside, Sanchez asked Martinez "about some things that — that he had left there," but Martinez "said that he didn't know about that." Sanchez "started to — to with his eyes, to look around and ... didn't find them." When Ramon was lying on the floor, he pulled out a weapon, and "out of fear, we all shot. We fired the weapons that we had ... we shot really like crazy."
Defendant was subsequently brought back to the United States by bounty hunters. On September 29, 1995, defendant was arraigned in Monterey County Superior Court.
Defendant did not testify. His attorney conceded that on the night of the homicides, defendant went to the Morales residence with Sanchez, Ramirez, and Nunez and that Sanchez and Nunez brought weapons. Defendant's defense was that he went to the Morales house simply to obtain property belonging to Sanchez, that Ramirez was untruthful, and that absent Ramirez's testimony, there was no evidence defendant was aware of any plan to burglarize, rob, or murder the Morales family.
Trial counsel elicited from Ramirez on cross-examination that he lied to police when he told them (1) that defendant gave him one of the handguns he found near the kitchen and (2) that he (Ramirez) was looking through the window when he saw defendant with a handgun in his hand. Ramirez testified that he was in the entryway when he saw defendant with a handgun, and that he never saw defendant load a weapon. Ramirez also testified that on the day of the homicides, the four men bought four 12-packs of beer, and each drank about six beers.
Jorge Acosta, Bertha's son, testified that on the evening of the homicides, he saw defendant, who was his uncle, and the other men drinking in defendant's car parked outside his mother's house. Acosta was worried about how much defendant was drinking and "concerned ... his uncle ... [would] be getting into some trouble or crashing or getting stopped."
Acosta also testified that a few days before the homicides, the four men came to visit. Acosta saw an "assault weapon" and a "rifle" but did not see defendant handle either weapon.
Salinas Police Detective Joseph Gunter interviewed Ramirez on November 18, 1994. District attorney investigator Richard Moore interviewed Ramirez on October 31, 1995. Ramirez never mentioned to either Gunter or Moore that on the day of the homicides, the four men went to a friend's house to get defendant a weapon. Nor did Ramirez mention that they went to Guillermo Morales's house to kill him.
The prosecution presented testimony of an expert in crime scene reconstruction who examined the crime scene photographs, police and autopsy
The prosecution presented victim impact testimony from Martha's and Martinez's mother and father, Josephina Vasquez and Juan Martinez Gonzalez; their sister, Patricia Martinez Becerra; and Ramon's mother, Magdalena Diaz. Each testified concerning their loss, how the homicides had affected their lives, and the additional emotional pain caused by having closed caskets at the funerals because of the extensive injuries each victim suffered.
Alejandra was almost five years old at the time of trial. She had been diagnosed with a genetic disease that requires her to live in a special medical care foster home. Her disease is unrelated to the gunshot wounds she suffered. Martha's parents, who lived in Mexico, had been unsuccessful in their efforts to obtain custody of Alejandra.
The prosecution presented evidence of multiple other acts of violence or threats of violence by defendant while in custody at the Monterey County jail prior to trial. (§ 190.3, factor (b).) On June 30, 1996, sheriff deputies found a dismantled razor blade, two pieces of wire, three buttons, and a string hidden in defendant's jail-issued deodorant stick. Deputies also found a second dismantled razor blade and a "cut open" toothbrush lodged under defendant's bed frame. On July 13, 1996, deputies found a dismantled razor in a brown paper bag in defendant's cell. The items found could be used as weapons or to fashion a weapon from some of the other items.
On August 18, 1996, defendant repeatedly punched a sheriff deputy in the back of his head and neck in an attempt to escape from the jail facility. When deputies subsequently apprehended defendant, he was in possession of a blue watch cap and a pencil, and had a piece of paper in his pocket, which contained writing in Spanish or code.
Defendant's brother-in-law, Robert Reynoso, his brother, Luis Covarrubias, his sisters, Bertha Sanchez and Elvia Covarrubias, and his friend Moises Diaz all testified that defendant was a good brother and caring and generous person and friend. Defendant was respectful to people and hard working. In 1989,
Defendant was married and had four children ranging in ages from six to 11 years old. He was very loving toward his family and friendly with all his neighbors. Defendant's relatives and friends intended to continue to support and visit defendant in prison if he were sentenced to life without possibility of parole.
Defendant presented the sworn statements of four individuals who were his neighbors in Mexico (Juan Manuel Avila Sanchez, Jose Guadalupe Espinoza Flores, Martina Dominguez de Castro, and Maria Guadalupe Castro de Gonzalez). The statements provided positive character testimony that showed defendant to be a caring, generous person who was concerned about his family and was friendly, helpful, and respectful to other people.
Dr. Thomas Reidy, a forensic psychologist, was asked to evaluate defendant with regard to his "life history and adverse factors and positive life factors that ... shaped his life," but specifically excluding information about the crimes and homicides. Defendant grew up in poverty in Mexico. His father was intolerant and abandoned the family when defendant was a small child. Defendant was raised by his mother, who was absent for periods of up to six months at a time when she was working in the United States or in the fields. When defendant's mother was absent, his sister and brother cared for him. When defendant was seven or eight years old, his older brother, who was very close to him, was stabbed to death.
Defendant began to work at age 10 washing cars. He started abusing alcohol around age 14. Defendant performed well in school and went on to secondary education. His mother committed suicide in his early adulthood. He suffered two convictions for driving under the influence and one for driving on a suspended license. For a couple of years, he would give rides to family members and friends from Mexico to the United States, but he did not profit financially from this work. Dr. Reidy explained that defendant "expressed a great remorse regarding what happened in this case," and that when defendant talked about this case, he kept his head down, "looked very sad," and "talked about being sad." Dr. Reidy concluded that defendant did not have an antisocial personality disorder and was not a psychopath.
Defendant contends the trial court erroneously excused for cause five prospective jurors (Prospective Jurors Nos. 11, 12, 16, 39, and 50) based solely on their written questionnaire answers concerning their personal views on capital punishment, in violation of his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
The prospective jurors completed a 21-page questionnaire. Questions Nos. 50 to 58 sought the prospective jurors' general views on the death penalty. Question No. 59 explained the difference between the guilt trial and penalty trial, described the meaning of "special circumstance," and defined aggravating and mitigating circumstances. The question then explained that "[t]he weighing of these factors is not quantitative, but qualitative, [and] in
"(B) Assume for the sake of this question only that, in the guilt phase, the prosecution has proven one or more special circumstances to be true beyond a reasonable doubt, and you personally believe the special circumstance(s) to be true. Would you, because of any views that you may have concerning capital punishment, refuse to find the special circumstance(s) true, even though you personally believed it (them) to be true, just to prevent the penalty phase from taking place?
"(C) Assume for the sake of this question only that the jury has found the defendant guilty of first degree murder and has found one or more special circumstances to be true and that you are in the penalty phase. Would you, because of any views that you may have concerning capital punishment, automatically refuse to vote in favor of the penalty of death and automatically vote for a penalty of life imprisonment without the possibility of parole, without considering any of the evidence of any of the aggravating and mitigating factors ... regarding the facts of the crime and the background and character of the defendant?
"(D) Assume for the sake of this question only that the jury has found the defendant guilty of first degree murder and has found one or more of the special circumstances true and that you are in the penalty phase. Would you, because of any views that you may have concerning capital punishment, automatically refuse to vote in favor of the penalty of life imprisonment without the possibility of parole and automatically vote for a penalty of death, without considering any of the evidence, or any of the aggravating and mitigating factors ... regarding the facts of the crime and the background and character of the defendant?
"(E) If your answer to either question C) or question D) was yes, would you change your answer if you are instructed and ordered by the court that
"(F) Could you set aside your own personal feelings regarding what the law ought to be and follow the law as the court explains it to you?"
Question No. 61
Question No. 62 inquired as follows: "If this case has a penalty phase, you will be instructed that you may consider factors in the defendant's background, such as his upbringing, emotional difficulties and possible substance abuse in deciding whether to impose the death penalty or life in prison without the possibility of parole. [¶] A. Do you feel that those factors would be helpful to you in reaching a decision as to whether the death penalty or life in prison without the possibility of parole is the appropriate sentence? [¶] B. Would you reject any of those factors automatically in deciding on a sentence?"
Question No. 63 asked the prospective juror if she or he would feel precluded from imposing the death penalty upon learning the defendant had children.
After the prospective jurors completed their written questionnaires, the court and counsel discussed the qualifications of prospective jurors whom the court had preliminarily identified as potentially excusable based solely on their written questionnaire responses. During this process, the trial court excused Prospective Jurors Nos. 11, 12, 16, 39, and 50 for cause under Witt.
Defendant contends Prospective Juror No. 16 was improperly excused for cause under Witt based solely on his written questionnaire responses, because he did not unequivocally state that he would always vote against the death penalty in every case regardless of the evidenced presented. Based on our independent review of the record, we agree that the trial court erred by excusing the prospective juror for cause under Witt based solely on his written questionnaire responses.
Prospective Juror No. 16 was a correctional officer with the Department of Corrections and Rehabilitation. In response to question No. 50, a multipart question that asked the prospective juror about his death penalty views in general, Prospective Juror No. 16 indicated that he "strongly" opposed the death penalty and wrote, "I believe that the death penalty should be abolished as there is no assurance that the state may not be killing an innocent person." When asked in another part of the same question to explain his position on capital punishment, he wrote, "In addition to the above I feel the state does not have the right to take a life in revenge for the crime the person commits. I also feel it is not a deterrent to crime." In response to question No. 58, which asked the prospective juror about the frequency with which capital punishment is used, Prospective Juror No. 16 wrote that he believed the death penalty was imposed "too often" and "opposed it completely."
As set forth above, question No. 59 parts (C), (D), (E), and (F) were the questions most directly relevant to the Witt inquiry. Similar to the questions we reviewed in Riccardi,
Regarding question No. 59(C), Prospective Juror No. 16 stated that if the case proceeded to the penalty phase, he would "probably" refuse to vote for the death penalty and automatically vote for life in prison without possibility of parole regardless of the evidence. He wrote in response to question No. 59(E) that he "possibly" would change his answer to question No. 59(C)
At the hearing on the challenge for cause, the trial court noted that "[Prospective Juror] No. 16 states that he is a CTF captain; strongly opposes the death penalty; probably would disregard the evidence and vote for life without possibility of parole under any circumstances, although the other questions were sufficiently within the ballpark of rationality and responsibility." The prosecutor challenged the prospective juror for cause based on the prospective juror's stated feelings that the death penalty should be abolished and the state does not have a right to take a life and that the prospective juror did not commit to follow the law in deciding this case. Defendant's counsel argued the prospective juror's written responses were equivocal and that oral, in-person voir dire was warranted. The trial court dismissed Prospective Juror No. 16 for cause.
Prospective Juror No. 16 wrote in response to question No. 59(C) that he would "probably" automatically refuse to vote for the death penalty and automatically vote for life in prison without possibility of parole regardless of the evidence, but "possibly" would change that answer if the court instructed him to consider the aggravating and mitigating evidence before deciding penalty. Similarly, in response to question No. 59(F), he wrote that he "Yes — most probably" could set aside his personal feelings about the law and follow the court's instructions. Nothing in the foregoing written responses obviated the need for oral voir dire or supported a finding that Prospective Juror No. 16's opposition to the death penalty was so strong that he was unwilling to set aside his personal views and perform the duties of a capital juror in accordance with the law. Indeed, elsewhere in his questionnaire, Prospective Juror No. 16 suggested that he would consider the evidence and was open to voting for either penalty. He wrote that consideration of a defendant's background would be helpful in deciding penalty, that he would
The trial court had an obligation to resolve the uncertainties in Prospective Juror No. 16's written responses and orally examine him in person to the extent necessary to permit a reliable determination of whether he was disqualified under Witt. (Leon, supra, 61 Cal.4th at p. 592; Riccardi, supra, 54 Cal.4th at p. 782; Stewart, supra, 33 Cal.4th at p. 445.) This case is not like People v. Russell (2010) 50 Cal.4th 1228, 1263 [117 Cal.Rptr.3d 615, 242 P.3d 68], in which we affirmed a for cause dismissal based on questionnaire responses alone of a prospective juror who stated that he" would `probably' follow the law as the judge instructed" but "was `not absolutely certain [he] would.'" The prospective juror in that case "clarified, `I am strongly opposed to the death penalty,' and stated he `simply would not vote for' death, and that no matter the evidence, he would `ALWAYS vote for life without the possibility of parole.'" (Ibid.) We held that the trial court properly excused the prospective juror because his written questionnaire responses were clear, unequivocal, internally consistent, and demonstrated that he was "`unwilling to temporarily set aside [his] own beliefs and follow the law.'" (Id. at p. 1262.) Here, in contrast, Prospective Juror No. 16's questionnaire answers were ambiguous and did not clearly demonstrate that his death penalty views would prevent or substantially impair the performance of his duties as a capital juror. Therefore, we conclude the trial court erred in excusing the prospective juror based solely on his questionnaire answers and without follow-up questioning on voir dire. (Witt, supra, 469 U.S. at p. 424; Leon, supra, 61 Cal.4th at p. 592.)
"The general rule is that, absent a showing of prejudice, an erroneous excusal of a prospective juror for cause does not mandate the reversal of judgment. This rule is based on the principle that a `[d]efendant has a right to jurors who are qualified and competent, not to any particular juror.' (People v. Holt (1997) 15 Cal.4th 619, 656 [63 Cal.Rptr.2d 782, 937 P.2d 213].) But ... under existing United States Supreme Court precedent, the erroneous excusal of a prospective juror for cause based on that person's views concerning the death penalty automatically compels the reversal of the penalty phase without any inquiry as to whether the error actually prejudiced defendant's penalty determination. (Gray, supra, 481 U.S. at pp. 659-667 (opn. of the court); id., 481 U.S. at pp. 667-668 (plur. opn. of Blackmun, J.); id., 481 U.S. at p. 672 (conc. opn. of Powell, J.).)" (Riccardi, supra, 54 Cal.4th at p. 783.)
Accordingly, we are compelled by Gray to reverse defendant's penalty phase verdict, and we need not resolve defendant's remaining challenges to the excusals for cause of Prospective Jurors Nos. 11, 12, 39, and 50 based solely on their questionnaire responses.
Citing Witt, supra, 469 U.S. at page 424, defendant contends that by not specifically asking the prospective jurors whether they "could consider voting for the death penalty if they were under an oath to do so," the questionnaire failed to provide an adequate basis for excusing a prospective juror for cause based solely on questionnaire responses. Because we already have concluded the trial court's error in dismissing Prospective Juror No. 16 for cause based solely on his questionnaire responses requires reversal of the penalty phase judgment, we decline to address this claim.
Before jury selection commenced, the trial court explained that it would use a variation of the "jury box" method of jury selection
Defendant contends the trial court erred by refusing to conduct sequestered individual death qualification voir dire. The claim is without merit.
Defendant contends that the death qualification process in jury selection is unconstitutional under the federal and state Constitutions. As a threshold matter, his failure to make a timely and specific objection on this ground in the trial court forfeited the issue on appeal. (See People v. Jennings (2010) 50 Cal.4th 616, 687-688 [114 Cal.Rptr.3d 133, 237 P.3d 474].) In any event, the high court and this court have rejected this claim. (Lockhart v. McCree, supra, 476 U.S. at pp. 176-177; People v. Lenart (2004) 32 Cal.4th 1107, 1120 [12 Cal.Rptr.3d 592, 88 P.3d 498]; see People v. Tully (2012) 54 Cal.4th 952, 1066 [145 Cal.Rptr.3d 146, 282 P.3d 173].) Defendant offers no persuasive argument to revisit the issue as to our state Constitution, and we decline to do so.
Over defendant's objections, the trial court ordered that he be restrained with a REACT (remote electronically activated control technology) stun
Before jury selection began, a deputy sheriff submitted a memorandum to the court suggesting that defendant wear a REACT belt during the trial. The deputy also provided a packet of materials that included defendant's numerous disciplinary reports from the jail and explanatory material from the manufacturer concerning use of the REACT belt system.
The disciplinary reports revealed that on December 13, 1995, defendant yelled at prosecution witness Jose Luis Ramirez in the booking area. On February 11, 1996, defendant became argumentative and hostile, and kicked and banged on his cell door when he was told that he could not be moved to another cell. On January 14, 1997, defendant was discovered acting suspiciously near a dayroom door, and was found in possession of a straightened paper clip. Defendant admitted that he was trying to pick the lock of the dayroom door. The reports also discussed disciplinary incidents that occurred on three additional dates in 1996, involving defendant's possession of prisoner-made weapons (June 30 and July 13) and an assault on a deputy during an escape attempt (Aug. 18).
Counsel objected to any requirement that defendant wear a REACT belt on the ground that defendant had not posed any security risk in his prior court appearances. Counsel also expressed concern that there might be an accidental activation of the stun belt or activation triggered by nonthreatening slight or sudden movement.
The trial court ordered use of the REACT belt because "the indications of previous actions that ... defendant has taken raise a serious concern as to the viability of having him completely unrestrained in the courtroom." The trial court stated: "With respect to previous appearances in court and lack of problems, [defendant] has always been shackled, hand and foot, when he's been brought to court. The problem we face with a jury format is that, in order to avoid any untoward appearance of dangerousness or likelihood of fleeing, we will not be having [defendant] restrained. He will be dressed in civilian clothes, and we will make every effort to remove any aura of a
Before jury selection commenced, counsel raised the issue of the stun belt: "I have no doubts about this Court's judgment about the use of the react system; however, I just again want to note for the record ... that I think there are less invasive ways to do it...." The trial court acknowledged counsel's objection.
On appeal, defendant does not challenge the court's finding of a manifest need for restraint. Instead, defendant argues that in deciding what restraint to employ, the trial court erred by failing to consider less restrictive physical restraints and the adverse psychological impact of the stun belt on him.
In general, "when physical restraints are called for, a trial court should impose `the least obtrusive or restrictive restraint' that will ensure effective security." (Lomax, supra, 49 Cal.4th at p. 562.) Here, the trial court stated that it would not use shackles to restrain defendant because it wanted to "avoid any untoward appearance" that he was dangerous or a flight risk. It believed the stun belt was a "legitimate and reasonable insurance policy" against defendant taking any action toward escape or violence, and that the device could be used inconspicuously under defendant's clothing. When counsel expressed concern that defendant feared the device might be accidentally activated, the trial court explained that it would specifically instruct the bailiff to avoid doing so absent "some kind of emergency going on." Moreover, the trial court informed counsel that it would revisit the use of the stun belt as a restraint should any problem arise during trial.
"In People v. Mar, supra, 28 Cal.4th at pages 1225-1230, we examined the potential psychological consequences of wearing a stun belt and the physical effects from electric shock in subjects with certain medical conditions. However, recognizing that our decision was the first to consider use of the REACT belt in California criminal trials, we expressly stated that our discussion of these topics was offered to provide guidance `in future trials.' (Id. at p. 1225, italics added....)" (Lomax, supra, 49 Cal.4th at p. 562.) Defendant's trial occurred four years before we decided Mar. In ordering the use of the stun belt, the trial court addressed defendant's fear that the device would be accidentally activated, which is one of the risks we identified in Mar that trial courts should consider before requiring a defendant to wear a stun belt. (See People v. Mar, supra, 28 Cal.4th at pp. 1225-1226.) We will not fault the trial court in this case for failing to consider the other potential psychological consequences subsequently identified in Mar. (See Lomax, supra, at p. 562; see also People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335,
Defendant contends the trial court on its own motion should have instructed the jury concerning the claim-of-right defense based on evidence that defendant thought he was helping Sanchez regain his own property from the Morales residence.
In People v. Williams (2009) 176 Cal.App.4th 1521 [98 Cal.Rptr.3d 770], the Court of Appeal extended the claim-of-right defense to an accomplice charged with burglary and robbery who believed in good faith that he was helping a principal, his brother, retake the principal's own property, a car and a laptop, from the victim, the principal's former girlfriend. (Id. at pp. 1525,
In Anderson, because the defense of accident served only to negate the mental state element of the charged offense, the trial court's obligation to
Notwithstanding our conclusion that the trial court was not obligated to instruct on its own on claim of right, we also conclude there was no substantial evidence that supported the defense. Defendant points to the fact that he stated in the videotape he made after he fled to Mexico that Sanchez wanted "to go pick up some things that were left in the [Morales] house." The good faith belief in a claim of right, however, must relate to specific property (Tufunga, supra, 21 Cal.4th at p. 950), and "`be something more than a vague impression'" (People v. Photo (1941) 45 Cal.App.2d 345, 353 [114 P.2d 71]). In contrast to the defendant in Williams who provided proof of the items he intended to reclaim for his brother, defendant never identified what "things" in particular he intended to retrieve for Sanchez.
In addition, by admitting in his videotaped statement that Ramirez "was looting the house" and "grabbing things and leaving with them," defendant
Defendant contends that the standard robbery instruction given, CALJIC No. 9.40,
Contrary to defendant's arguments, this is not a case where the instruction on the charged offense omitted an element of the offense. In People v. Cummings (1993) 4 Cal.4th 1233, 1312, footnote 53 [18 Cal.Rptr.2d 796, 850 P.2d 1], this court cited with approval a nearly identical version of CALJIC No. 9.40 to that given in this case, which requires in relevant part a finding that the "`property was taken with the specific intent permanently to deprive such person of the property.'" We observed that it is "the instruction most often given, [and] defines the crime [of robbery] and separately defines the elements." (Cummings, at p. 1312, fn. 53.) Because CALJIC No. 9.40, as given, conformed to the statutory definition under section 211 and correctly included all the elements of the crime,
The prosecution presented evidence of four takings that occurred during the home invasion robbery at the Morales house: (1) the VCR and stereo equipment Ramirez took from the victims and placed in defendant's car; (2) the .32-caliber handgun that Sanchez gave to Ramirez, who took the gun when he fled; (3) the necklace and hair oil product that Ramirez took from the victims and kept when he fled; and (4) the two handguns that defendant took from a box near the kitchen. Defendant contends that because the jury could have based its convictions for robbery on any of the four takings, the trial court erred by failing to instruct the jury that it must agree unanimously on the specific taking that constituted the robberies charged in counts 6 through 8. As a result, defendant contends, his robbery convictions and "all the robbery-based convictions" must be reversed. The claim is without merit.
In a criminal case, "the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that
On appeal, the defendant challenged his conviction for robbery of the passenger on the ground that a unanimity instruction was required given he faced one charge of robbery but evidence of two robberies was presented. (Davis, supra, 36 Cal.4th at p. 560.) We reversed the robbery conviction on the ground that the defendant was entitled to a unanimity instruction because the evidence showed two distinct acts of robbery constituting the charged crime — the taking of the car from the driver and passenger and the taking of the rings from the passenger. (Id. at pp. 561-562.) Importantly, "the potential defenses to the two acts of robbery were entirely different." (Id. at p. 562, italics added; cf. People v. Stankewitz (1990) 51 Cal.3d 72, 100 [270 Cal.Rptr. 817, 793 P.2d 23] [no unanimity instruction is required "when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them"].) Defendant claimed the passenger "was not legally in possession of the car, and the taking of the rings "constituted only the lesser included crime of theft" on the ground that there was evidence defendant formed the intent to steal the passenger's rings after he killed her. (Davis, at p. 562.) Based on the evidence, some jurors may have had a reasonable doubt that the intent to take the rings was formed while the passenger was alive; others may have had a reasonable doubt whether the passenger was in possession of the driver's car. (Id. at p. 561.) We concluded that because "there was evidence from which the jury could have found defendant guilty of robbery based on the car but not the rings," the trial court's failure to provide a unanimity instruction was prejudicial. (Id. at p. 562.)
As Davis makes clear, however, a unanimity instruction is not required if "the defendant offered the same defense to both acts constituting the charged crime, so no juror could have believed defendant committed one act but disbelieved that he committed the other, or because `there was no evidence from which the jury could have found defendant was guilty of' the crime based on one act but not the other." (Davis, supra, 36 Cal.4th at p. 562; see, e.g., Riel, supra, 22 Cal.4th at p. 1199 [a unanimity instruction was not
Defendant's main argument was that Ramirez testified untruthfully about defendant's involvement in the crimes. Defendant argued that he had no idea what would occur at the Morales house and was not part of a conspiracy to rob the Morales family. He denied there was a plan to commit a robbery before they arrived at the Morales house. Granted, defendant's alleged taking of the handguns from a box in the kitchen does appear to differ in nature from the other three takings described above, because defendant was allegedly himself the perpetrator. Nonetheless, this difference does not translate to a meaningful difference in the defenses such that the jury could have found defendant guilty of personally taking the handguns, but not guilty of aiding and abetting the takings by Ramirez. Defendant's defense to all of the takings was to accuse Ramirez of testifying untruthfully. Specifically, defendant did not deny that Ramirez took the neck chain, hair oil, .32-caliber handgun that Sanchez handed him, and VCR. Instead, defendant argued that Ramirez was lying when he testified that defendant helped in taking those items and personally took the two handguns from the box in the kitchen. If the jury believed defendant, it would have found him not guilty of robbery of either the items taken by Ramirez or the handguns taken from the kitchen. "It is inconceivable that a juror would believe [Ramirez]'s testimony" that defendant stole the handguns from the kitchen, but "somehow find" Ramirez was untruthful in relating defendant's involvement in the taking of the neck chain, hair oil, gun, and VCR and thus find defendant guilty of robbery based on the taking of the handguns, but not the other items. (Riel, supra, 22 Cal.4th at p. 1200.) Therefore, as in Riel, "this is `a case where the jury's verdict[s] impl[y] that it did not believe the only defense offered.'" (Ibid.)
Accordingly, a unanimity instruction was not required.
The trial court instructed the jury on three theories of burglary: "Every person who enters any building with the specific intent to [(1)] steal, take away, carry away the personal property of another of any value and with the further specific intent to deprive the owner permanently of that property or with the specific intent to [(2)] commit robbery or [(3)] murder is guilty of the crime of burglary in violation of Penal Code Section 459." (See also § 459 ["Every person who enters any house with intent to commit grand or petit
Defendant contends that the instructions erroneously permitted the jury to convict him of burglary felony murder based solely on entry into the Morales residence with an intent to kill, in violation of People v. Garrison (1989) 47 Cal.3d 746, 778 [254 Cal.Rptr. 257, 765 P.2d 419] (Garrison), which applied the merger doctrine explained in People v. Ireland (1969) 70 Cal.2d 522 [75 Cal.Rptr. 188, 450 P.2d 580] (Ireland), and People v. Wilson (1969) 1 Cal.3d 431 [82 Cal.Rptr. 494, 462 P.2d 22] (Wilson). He contends the instructions violated his rights under the Eighth and Fourteenth Amendments to the United States Constitution and require reversal of his conviction for burglary felony murder and the burglary-felony-murder special-circumstance finding. We agree that the instructions erroneously permitted the jury to find defendant guilty of felony murder based on entry into the Morales residence with an intent to kill, but as we explain, the error was harmless.
In Ireland, this court held that a second degree felony-murder conviction cannot be premised on an assault or any "felony which is an integral part of the homicide." (Ireland, supra, 70 Cal.2d at p. 539.) We explained that to allow use of the felony-murder rule in cases where a homicide was committed as a result of an assault "would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault — a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law." (Ibid.)
In People v. Farley (2009) 46 Cal.4th 1053, 1121 [96 Cal.Rptr.3d 191, 210 P.3d 361] (Farley), we expressly overruled Wilson, concluding that the
Under Garrison, "if the jury relied on entry with intent to kill as the basis" for finding defendant guilty of burglary, "the burglary could not provide a basis for application of the felony-murder rule, for the burglary was an integral part of and included in fact within the homicide." (Garrison, supra, 47 Cal.3d at p. 778.) In this case, the above instruction erroneously permitted the jury to convict defendant of burglary felony murder based solely on entry into the Morales residence with intent to kill.
The error is harmless, however, and reversal of the first degree murder convictions or burglary-murder special-circumstance finding is not required, "[i]f other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary for" burglary premised on entry with an intent to steal or commit a robbery. (People v. Chun (2009) 45 Cal.4th 1172, 1205 [91 Cal.Rptr.3d 106, 203 P.3d 425] (Chun); Farley, supra, 46 Cal.4th at p. 1116, fn. 22; see Hedgpeth v. Pulido (2008) 555 U.S. 57 [172 L.Ed.2d 388, 129 S.Ct. 530] (per curiam) [error involving instructing the jury on multiple theories of guilt, one of which is invalid, is subject to harmless error review].) Here, the verdicts and evidence demonstrate the error was harmless.
The prosecution's evidence established that defendant, Sanchez, Ramirez, and Nunez went to the Morales house to steal property and to kill Ramon and anyone else present. As detailed earlier, on the day of the homicides, defendant drove Sanchez, Nunez, and Ramirez to, among other places, the foothills east of Salinas to test-fire their loaded rifles. Defendant and Sanchez talked about the plan to enter the house, get drugs, steal "stuff," and kill those inside so that there would be no witnesses. When they arrived at the house, defendant volunteered to knock on the front door because no one in the house knew him. When nobody answered, defendant opened the door. Once they were inside, Sanchez held Martinez, who had been sleeping on the living room floor, at gunpoint, while Ramirez and Nunez searched the house for property to take. Ramirez took the items to defendant's car. After the Morales family returned and the adult victims were subdued by the four men, defendant searched for guns and found two handguns, at least one of which
Also, as observed above, defendant did not testify in his defense, but in a videotaped statement offered by the prosecution, defendant admitted that he went to the Morales house "to pick up some things" Sanchez had left there. Defendant also admitted that they took guns into the house, he was one of the shooters, and "we shot like crazy."
The jury found defendant guilty of robbing each homicide victim (counts 6-8), burglary (count 9), and conspiracy to commit burglary and robbery (count 10). The jury also found true the robbery-felony-murder special-circumstance allegations. By these verdicts and findings, the evidence presented, the prosecution's theory of the case, and the instructions given, the jury necessarily found that that defendant entered the house with Sanchez, Ramirez, and Nunez with the specific intent to steal or commit robbery. (Cf. People v. Ramirez (2006) 39 Cal.4th 398, 462-464 [46 Cal.Rptr.3d 677, 139 P.3d 64] [although evidence that defendant entered the residence with the intent to commit murder or assault could not support a felony-murder conviction under the Ireland merger doctrine, evidence that one of defendant's purposes in entering the victims' residence was to steal was sufficient to uphold convictions for burglary and burglary felony murder and the burglary-felony-murder special-circumstance finding].) Thus, there is no reasonable doubt that the jury made the determinations necessary for a proper finding of burglary felony murder and burglary-felony-murder special circumstance, and hence, the error in instructing on the invalid theory was harmless beyond a reasonable doubt. (Chun, supra, 45 Cal.4th at p. 1205.)
Defendant was charged in count 10 with conspiracy to commit burglary, robbery, and murder. As discussed below, two of the six overt acts alleged in support of the conspiracy charge, overt acts numbers three and four, related to an arson allegedly committed by defendant, Sanchez, and Nunez, but not Ramirez, on or about the day before the homicides.
The prosecution's arson theory was that (1) Angel Martinez (Angel) hired defendant, Sanchez, and Nunez to commit an arson of a truck owned by Juan Martinez Avalos (Avalos), because he had a business dispute with Avalos; (2) Angel lived in trailer No. 35 at the 101 Trailer Park in Salinas; (3) on the day of the homicides, the four men went to that trailer, and Sanchez collected a
Defendant contends that the trial court erred in admitting nonverbal hearsay evidence through the testimony of investigator Moore concerning the out-of-court identifications of trailer No. 35 made by Avalos and Ramirez. Defendant asserts that he was prejudiced by admission of the identifications, because it was the sole evidence that linked defendant, Sanchez, and Nunez to the arson of Avalos's truck. Defendant claims that admission of the identifications violated his federal constitutional rights to confrontation, due process of law, and reliable guilt and penalty determinations. As we explain, inclusion of the arson language in the allegations of overt acts numbers three and four was immaterial. Nonetheless, the claim fails.
The information alleged six overt acts under count 10, which charged defendant with conspiracy to commit burglary, robbery, and murder. The third overt act alleged was that "[o]n or about November 15, 1994, Francisco Antonio Sanchez, Daniel Sanchez Covarrubias, and Joaquin Nunez committed an arson for hire and received $100 for committing the arson." The fourth overt act alleged was that "[o]n or about November 16, 1994 Francisco Antonio Sanchez, Daniel Sanchez Covarrubias, Joaquin Nunez, and Jose Luis Ramirez drove to JKD Shooting Sports in the City of Salinas to purchase (with the $100 received from the arson) ammunition and supplies for the rifles to be used in the residential robbery, burglary and killing at the Morales residence at 1022 East Market Street in the City of Salinas."
Ramirez testified that, on the day of the homicides, he, defendant, Sanchez, and Nunez went to a trailer park to collect $100 owed to Sanchez. Ramirez showed investigator Moore a trailer at the 101 Trailer Park on North Main Street where Sanchez collected the money. Defendant and the others waited in or near defendant's car while Sanchez collected the payment.
Avalos testified that in November 1994, he was a business partner with a man named Angel, who lived at the 101 Trailer Park in Salinas. Avalos and Angel had a business disagreement. In the early morning hours of November 16, Avalos discovered his truck had been set on fire. He found a half-gallon plastic bottle near the truck. Avalos reported the incident to police, and he was subsequently contacted by investigator Moore. Avalos told Moore about the disagreement with Angel and identified the trailer where Angel lived.
Investigator Moore testified that he interviewed Ramirez and learned that in the afternoon of the day of the homicides, Sanchez collected $100 at a trailer in the 101 Trailer Park in Salinas. Over trial counsel's hearsay objection, Moore testified that Ramirez told him the payment was related to a vehicle burning in Salinas sometime during the evening prior to the homicides. The trial court admonished the jurors that the portion of Moore's testimony relating Ramirez's statements about the nature of the debt could not be considered for its truth but instead, only to explain his follow-up investigation after he contacted Ramirez. Moore subsequently took Ramirez to the trailer park in order to have him identify the trailer where Sanchez collected $100. Over trial counsel's hearsay objection, Moore testified that Ramirez pointed to trailer No. 35.
Investigator Moore testified further that after he interviewed Ramirez, he contacted the Salinas Police Department and inquired whether there had been a vehicle arson reported on either November 15 or 16. Over objection by counsel, the trial court permitted Moore to testify that he determined that Avalos reported to the Salinas Police Department that his truck was burned on November 15 or 16. The trial court admonished the jurors that they could not consider Moore's testimony relating Avalos's statements in the police report as proof that Avalos's truck was burned and that it constituted arson but instead, only to explain Moore's investigation. Moore testified that based on his findings, he contacted Avalos and discussed the burning of Avalos's truck.
Over further objection by trial counsel, Moore testified that he took Avalos to the 101 Trailer Park and asked Avalos whether he knew people there. Avalos pointed to a trailer marked No. 35. The prosecutor then asked Moore, "Was this the same [trailer] that Jose Luis Ramirez had pointed out to you as being where they collected the $100?" Moore answered, "That's correct."
Defendant contends that investigator Moore's testimony relating Ramirez's and Avalos's identifications of trailer No. 35 constituted inadmissible hearsay. He argues, in essence, that by pointing to a specific trailer, both Ramirez and Avalos were communicating to Moore, and the trial court erred by admitting their out-of-court communications for their truth. We agree with defendant that Moore's testimony constituted inadmissible hearsay, but we conclude defendant was not prejudiced by admission of the trailer identifications.
Here, Avalos pointed to trailer No. 35 in response to investigator Moore's question whether he "knew people" who lived in the 101 Trailer Park. Thus, Avalos's act of pointing was intended as a substitute for an oral expression that "I know the person who lives at trailer No. 35." Similarly, during his interview with Moore, Ramirez pointed to trailer No. 35 in response to Moore's question regarding where Sanchez collected his $100 payment. Thus, Ramirez intended his act of pointing to the trailer to substitute for an oral expression that "Sanchez was paid $100 at trailer No. 35." In each circumstance, the prosecution offered Avalos's and Ramirez's act of pointing for the truth of the meaning each intended to convey to Moore in answer to his questions, and therefore their act of pointing was assertive conduct and hearsay. (See People v. Mayfield (1972) 23 Cal.App.3d 236, 240-241 [100 Cal.Rptr. 104] [a declarant's conduct of pointing to a photograph in response to a question is assertive conduct and constitutes hearsay].)
On appeal, the People argue the statements did not amount to hearsay because they were not offered for the truth of the identifications (i.e., Avalos knew someone who lived at trailer No. 35, and Sanchez collected a $100 debt from someone who lived at trailer No. 35) but instead, for the fact that Avalos and Ramirez identified the same trailer. The People did not argue this ground for admission at trial. In any event, the fact that the witnesses may have pointed to the same trailer would not have been relevant to any disputed factual issue, unless the jury also considered why they pointed to the trailers — that is, the truth of the hearsay identifications.
Because the two identifications of trailer No. 35 were out-of-court nonverbal statements intended as substitutes for oral expression and offered for their truth, Moore's testimony relating the identifications constituted hearsay. We note no other theory of admissibility was offered by the prosecution. Therefore, we conclude that the trial court abused its discretion in admitting the evidence.
In addition, although Avalos's testimony established that he had a business dispute with Angel and that his (Avalos's) truck was set on fire, there was no evidence that established he believed Angel was responsible for the arson or otherwise connected Angel to the arson. Further, contrary to what defendant implies in his reply brief, the prosecutor did not offer Avalos's identification of trailer No. 35 "to prove that Avalos believed the party responsible for the arson resided in Trailer 35," and made no such argument to the jury. For these reasons, there is no reasonable probability that absent this vague evidence — that the trailer Ramirez identified as the one that Sanchez visited on the day of the homicides to collect a $100 debt was the same one that Avalos identified as the home of a person he knew, i.e., Angel — the jury would have reached a more favorable verdict.
Next, defendant argues essentially that absent evidence of the hearsay trailer identifications made by Ramirez and Avalos, and given the trial court's admonitions precluding the jury's consideration of the statements these witnesses made to investigator Moore during the investigation as proof an arson occurred, there was insufficient evidence to prove alleged overt acts numbers three and four of the conspiracy charge. As a result, defendant contends that his conspiracy conviction should be reversed because it may have been based on overt acts unsupported by legally sufficient evidence. We disagree.
Regarding alleged overt act number three, quoted above, Ramirez testified that on the day of the homicides, Sanchez collected $100 as payment for a debt while defendant, Nunez, and Ramirez waited in the car. As explained above, there was no substantive evidence introduced that any arson was committed. Nonetheless, applying the test for materiality of the variance between the allegation of overt act number three and the proof introduced at trial, the absence of substantive evidence that defendant, Sanchez, and Nunez committed an arson for hire could not affect the conspiracy verdict. (Guerrero, supra, 22 Cal.2d at p. 187.) First, the gist of overt act number three was that on or about the day before the homicides, Sanchez obtained $100. The means by which Sanchez obtained the money was immaterial. As alleged in overt act number four, discussed below, Sanchez simply applied the money toward the purchase of ammunition for rifles the four men intended to use to commit
Regarding the allegation of overt act number four, set forth above, the testimony of Ramirez and Fletcher, a clerk at JKD Shooting Sports, and evidence of the purchase receipt, taken together, established that on or about the day of the crimes, the four men went to JKD Shooting Sports and, with the $100 that Sanchez collected at the trailer, bought ammunition for rifles they intended to use to commit the crimes at the Morales house. For the reasons stated in the preceding section concerning alleged overt act number three, the variance between the allegation in overt act number four that the four men intended to purchase ammunition "with the $100 received from the arson" and the prosecution's absence of proof of an arson also was immaterial. (Guerrero, supra, 22 Cal.2d at p. 187; Rodriguez, supra, 61 Cal.App. at p. 81.) The gist of this alleged overt act was that the four men went to JDK Shooting Sports to purchase, with the $100 Sanchez had collected, ammunition for the weapons they planned to use to commit the crimes at the Morales residence. Therefore, we conclude that even though the prosecution offered no substantive evidence of an arson, there was sufficient evidence to substantiate alleged overt act number four.
Defendant contends there was insufficient evidence to support his convictions for attempted murder (count 4) and assault with a firearm (count 5) of Alejandra. As we explain, sufficient evidence supports each conviction.
Defendant contends a "personal shooting theory cannot be used to uphold the conviction[s] [for attempted murder and assault]" because the jury could not reach a unanimous verdict on the allegation he personally used a.38-caliber handgun within the meaning of former section 12022.5, subdivision (a). Assertedly, the evidence is insufficient to find that he personally shot baby Alejandra. We disagree.
"[T]here is no prohibition against considering all of the evidence in the record to determine the sufficiency of evidence on one count merely because the jury did not reach a unanimous verdict on a count to which the evidence may have related." (People v. Consuegra (1994) 26 Cal.App.4th 1726, 1734, fn. 6 [32 Cal.Rptr.2d 288].) The failure of the jury to reach a verdict on the
Based on our independent review of the record, we conclude there is no reason to reverse defendant's convictions for the crimes committed against Alejandra merely because the jury did not reach a unanimous verdict on the personal use of a .38-caliber handgun allegation. The evidence is sufficient to support defendant's convictions for attempted murder of and assault with a firearm on Alejandra, based on the theory he was the direct perpetrator of those crimes.
The totality of the evidence established that Sanchez was armed with the AR-15 rifle, Nunez was armed with the .30-30 rifle, and defendant was armed with a .38-caliber handgun. Salinas Police Officer Timothy McLaughlin testified that long rifles such as an AR-15 and .30-30 ordinarily require two hands to operate. After defendant gave Sanchez one of the two handguns he found in a box in the kitchen, he went into the bedroom where Nunez had forced Martha to remain with her baby. Because defendant's fingerprint was found on the box of .38-caliber ammunition in the bedroom, the jury reasonably could infer that the second gun defendant found was a .38-caliber handgun, that he loaded it with ammunition from this box, and that he used this gun to shoot the victims.
Further, because the gunfire had lasted about a half a minute, the jury reasonably could infer that defendant acted purposefully and without delay in loading his weapon and shooting Martha and Alejandra in the bedroom. These additional circumstances lend further support to the jury's implied finding that defendant acted with intent to kill the baby when he shot her. (See People v. Arias (1996) 13 Cal.4th 92, 162 [51 Cal.Rptr.2d 770, 913 P.2d 980] ["if the jury found defendant's use of a lethal weapon with lethal force was purposeful, an intent to kill could be inferred, even if the act was done without advance consideration and only to eliminate a momentary obstacle or annoyance"]; see also Smith, supra, 37 Cal.4th at p. 742 ["even if the shooting was not premeditated, with the shooter merely perceiving the victim as `a momentary obstacle or annoyance,' the shooter's purposeful `use of a lethal weapon with lethal force' against the victim, if otherwise legally unexcused, will itself give rise to an inference of intent to kill"].)
Finally, the jury also reasonably could find that defendant completed an assault with a firearm of Alejandra. (See People v. Wright (1968) 258 Cal.App.2d 762, 767 [66 Cal.Rptr. 95] ["If a firearm is deliberately and unlawfully fired toward another person in a manner likely to produce great bodily injury the offense of assault with a deadly weapon is complete."].)
Accordingly, we conclude a rational jury could find beyond a reasonable doubt that defendant, as a direct perpetrator, attempted to kill Alejandra and assaulted her with a firearm.
At the beginning of the closing argument at the guilt phase, the prosecutor stated: "We have laws, criminal laws, that we've set up in our country, and they are basically the norms, the standards that we, as a civilized society, live by. They're rules that apply, not only to you and me, but they also apply to him, to the defendant. And your job as jurors in this case is to conduct that litmus test to apply the laws that we, as a civilized society, have and determine whether or not the defendant has broken any of those laws. Determine whether or not we, as a civilized society — you, as the jurors who are making this decision — will tolerate the conduct of this man."
Near the conclusion of her argument, the prosecutor stated: "You need to look at this evidence. You need to sift through it. Every item there tells a story, every item of evidence. And, you know, things like that little jumper, that little sleeper that [baby] Alejandra was wearing, doesn't lie. All it can do is tell you the truth. It is as it is. [¶] That green jacket, look at it. It doesn't lie. The bullets that went through each of these victims, each of them, tells a story. It is incumbent upon you. You are responsible to determine that story, to use the evidence that you've received in this case and determine the charges. [¶] Again, as I mentioned, your job and your responsibility as jurors is to act as the litmus test, to apply the laws of our society, and to determine what our community will and will not tolerate."
Trial counsel objected that the above italicized portion of the prosecutor's closing argument was "an improper statement of the law." The trial court overruled the objection and admonished the jury as follows: "Well, counsel is permitted to present to you, as I've said, their theory of the case. They're permitted to comment on the facts. They're permitted to comment on the law. [¶] What they say is not evidence. And what they say about the law is not the law. You have to follow my instructions on that. [¶] They're permitted to comment on both of those areas. This particular comment is somewhat beyond the law. But it is still within the realm of permissible comment."
On appeal, defendant contends that the prosecutor's remarks about the jurors acting as the "litmus test ... to determine what our community will and will not tolerate" constituted misconduct because in advocating this approach, she appealed to the jurors' passions. He asserts the argument deprived him of his state and federal constitutional rights to due process, a fair trial, and reliable guilt and penalty verdicts. As we explain, there was no misconduct.
Preliminarily, defendant's claim is forfeited because he did not object on the specific ground of prosecutorial misconduct that he now asserts on appeal.
Here, the complained-of remarks simply repeated what the prosecutor explained at the beginning of her argument was the function of the jury, i.e., to determine whether defendant had broken any laws. Defendant argues that "[b]y charging the jurors with the responsibility to express the will of `civilized society' the prosecutor sought to incite the jurors to look beyond the legal and evidentiary issues and reach a verdict simply because [defendant] was part of the group that committed the charged crimes." To the contrary, the prosecutor informed the jurors that they were to apply the law in resolving the question of defendant's guilt. In making the "litmus test" and
Defendant requested that the trial court give a series of instructions on voluntary intoxication
Out of an abundance of caution, the trial court instructed the jury under a modified version of CALJIC No. 4.21.1, as follows: "It is the general rule that no act committed by a person while in a state of voluntary intoxication is less criminal by reason of this condition. [¶] Thus in the crimes and enhancements alleged, the fact that the defendant was voluntarily intoxicated is not a defense and does not relieve the defendant of responsibility for the crime. [¶] However, there is an exception to this general rule, namely, where a specific intent is an essential element of a crime. In that event, you should
Defendant contends this voluntary intoxication instruction was erroneous because it told the jury that evidence of intoxication could be considered in determining whether he formed the required intent of a specific intent crime but precluded consideration of his intoxication in evaluating whether he formed the requisite mental state of an aider and abettor, i.e., knowledge of and intent to aid the perpetrator's unlawful purpose. As a result, he asserts the instruction effectively withdrew his intoxication defense on the required mental state for aiding and abetting. In addition, defendant contends, the instruction precluded the jury's consideration of intoxication evidence as it related to the special circumstance findings under CALJIC 8.80.1, intent to kill or reckless indifference to human life. Defendant asserts the instructional error violated his federal and state constitutional rights to due process, to present a defense, confrontation, a jury trial, and a nonarbitrary capital sentencing process. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15.)
In Letner and Tobin, we assumed that the trial court's instructions, which predated Mendoza, failed to adequately explain to the jury how voluntary intoxication could affect the mental state of an aider and abettor. (Letner and Tobin, supra, 50 Cal.4th at p. 187.) Quoting Mendoza, supra, 18 Cal.4th at pages 1134-1135, we explained preliminarily that "we `review the instructions as a whole to determine whether it is "reasonably likely the jury misconstrued the instructions as precluding it from considering" the intoxication evidence in deciding aiding and abetting liability. [Citation.] Any error would have the effect of excluding defense evidence and is thus subject to the usual standard for state law error: "the court must reverse only if it also finds a reasonable probability the error affected the verdict adversely to defendant."'" (Letner and Tobin, at p. 187.)
Applying these principles, we concluded that any error was harmless: "Although the voluntary intoxication instructions did not specifically mention aiding and abetting, they did not preclude the jury's use of evidence of intoxication in evaluating whether defendants aided and abetted, that is, whether, pursuant to the trial court's other instructions, one defendant knew of the other defendant's criminal purpose and intentionally aided the commission of the crime. Nor did the prosecutor argue that the jury could not consider voluntary intoxication in determining whether a defendant who was an aider and abettor of the crimes formed the mental state required for aiding and abetting. There is nothing in the record to indicate the jury would not have understood that the mental states set forth in the voluntary intoxication instructions could apply both to the mental states required of a direct perpetrator and to those required of an aider and abettor .... For these reasons, any error in the instructions did not preclude the jury's consideration of defense evidence, nor is it reasonably probable that different instructions would have resulted in a verdict more favorable to defendants." (Letner and Tobin, supra, 50 Cal.4th at p. 187.)
Here, the defense theory was defendant's denial of any knowledge of or intent to further the alleged plan to rob and murder. Trial counsel argued that "[i]t is not unreasonable to assume that [defendant], himself, really didn't believe that anything serious was going to happen .... What happens to him when he's had too much to drink? He gets happy. He's the kind of guy that, he wants to dance. Does that sound like a person who intended to kill the Moraleses that evening? I think not. Amy Trejo said [defendant] was a nice guy. She said she could never, ever imagine that he would do anything like this."
Further, the record reveals that the jury necessarily resolved the factual issues presented by the omitted language
For these reasons, any instructional error did not preclude the jury's consideration of defendant's intoxication evidence on the question of his liability as an aider and abettor. We conclude it is not reasonably probable that different instructions would have resulted in an outcome more favorable to defendant.
The prosecution relied on, among other theories, the natural and probable consequences doctrine to establish defendant's guilt as an aider and abettor, and/or a coconspirator for the charges of murder (counts 1-3), attempted murder (count 4), and assault with a firearm (count 5). The jury was instructed on this doctrine under CALJIC Nos. 3.02, 6.11, and 8.66. Defendant contends that these instructions were defective because they did not include language that required the jury to determine the natural and probable consequences of the crimes from the perspective of a reasonable person in the defendant's position. Defendant asserts that the instructional deficiencies require reversal of his convictions on the above charges. As we explain, reversal of defendant's convictions is not required.
The trial court gave a modified version of CALJIC No. 3.02, the pattern jury instruction concerning aider and abettor liability under the natural and probable and consequences doctrine, as follows: "One who aids and abets another in the commission of a crime or crimes is not only guilty of that crime or crimes, but is also guilty of any other crime committed by a principal which is a natural and probably [sic] consequence of the crimes originally aided and abetted. [¶] In order to find the defendant guilty of the
The trial court instructed with CALJIC No. 6.11, which explained the nature of joint conspiratorial responsibility, as follows: "Each member of a criminal conspiracy is liable for each act and bound by each declaration of every other member of the conspiracy if that act or declaration is in furtherance of the object of the conspiracy. [¶] ... [¶] A member of a conspiracy is not only guilty of the particular crime that to his knowledge his confederates agreed to and did commit, but is liable also for the natural and probable consequences of any crime or act of a co-conspirator to further the object of the conspiracy even though that crime or act was not intended as a part of the agreed upon objective, and even though he was not present at the time of the commission of that crime or act. [¶] You must determine whether the defendant is guilty as a member of a conspiracy to commit the originally agreed upon crime or crimes, and if so, whether the crime or crimes alleged was or were perpetrated by a co-conspirator in furtherance of that conspiracy, and was or were a natural and probable consequence of the agreed upon criminal objective of that conspiracy." (Italics added.)
The trial court instructed the jury on the elements of attempted murder under CALJIC No. 8.66. The instruction was modified to include the following instruction on aider and abettor liability for attempted murder under the natural and probable consequences doctrine: "In order to find the defendant guilty of attempted murder on an aiding and abetting theory, the attempted murder must be a natural and probable consequence of a criminal act which the defendant knowingly and intentionally encouraged." (Italics added.)
Defendant contends on appeal for the first time that the instructions should have incorporated a reasonable person standard in order to guide the jurors in determining what constitutes natural and probable consequences. As a preliminary matter, "[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language." (People v. Lang (1989) 49 Cal.3d 991, 1024 [264 Cal.Rptr. 386, 782 P.2d 627].) Because defendant did not object at trial that the instructions were incomplete as given, the issue is forfeited. It is also without merit, as we explain.
The fact that the current CALCRIM instruction includes additional clarifying language to better assist jurors in applying the natural and probable consequences doctrine does not mean that the absence of such language in the version of CALJIC given at defendant's 1998 trial makes the instruction incorrect. (See People v. Morales, supra, 25 Cal.4th at p. 48, fn. 7 [jury instructions are not the law].) Further, this court has concluded in Coffman and Marlow, supra, 34 Cal.4th at page 107, that the term "natural and probable consequences" is not a special legal term that requires additional definition, and that "natural and probable" and "reasonably foreseeable" are equivalent concepts. Accordingly, the claim fails on the merits.
The trial court instructed the jury under a modified version of CALJIC No. 2.02, the pattern instruction regarding the sufficiency of evidence to prove specific intent or mental state, as follows: "The specific intent with which an act is done may be shown by the circumstances surrounding the
On appeal, defendant contends that the trial court erred by so omitting the phrase in the instruction and in limiting the applicability of the instruction to the attempted murder, robbery, burglary, and conspiracy counts (counts 4 and 6-10). As a result, defendant asserts the jurors reasonably understood that the principles of CALJIC No. 2.02 did not apply to determining the mental state issues regarding aiding and abetting, that is, any mental state issues not explicitly identified as a "specific intent." We disagree.
In People v. Bloyd (1987) 43 Cal.3d 333 [233 Cal.Rptr. 368, 729 P.2d 802], the defendant advanced a similar complaint. "The court explained direct and circumstantial evidence (CALJIC No. 2.00) and it gave the general sufficiency of circumstantial evidence instruction (CALJIC No. 2.01) which is required to be given by the court on its own motion where the case rests substantially or entirely on circumstantial evidence, as it does here. [Citations.] In an abundance of caution, in the prosecutor's view, or as required, in the defendant's view, the court also instructed as to circumstantial evidence to prove specific intent. Its instruction was based on CALJIC No. 2.02, but in its reading, the trial court deleted the phrase `(or) (mental state).'" (Id. at p. 351, fns. omitted.) We concluded that the defendant suffered no prejudice from the omission of the phrase, in large part because the specific question that would have been posed by adding the phrase "`or mental state'" was covered by the general circumstantial evidence instruction that was given. (Id. at p. 352.)
This case is similar to Bloyd. The circumstantial evidence offered in this case was not limited to proving only defendant's specific intent, but also, for example, to show that defendant loaded and used a .38-caliber handgun. Therefore, the more inclusive CALJIC No. 2.01 was properly given.
Defendant suggests that giving CALJIC No. 2.01 did not cure the alleged defect because CALJIC No. 2.02 was more specific than CALJIC No. 2.01 and presumably, the jurors would have relied on CALJIC 2.02 as governing their consideration of specific intent and mental state issues. The logic is faulty. As given, CALJIC No. 2.02 applied to only the "specific intent" elements of counts 4 and 6 through 10. Therefore, the jurors reasonably would have relied on CALJIC No. 2.01 to resolve any questions involving other mental states with regard to the remaining charges and the consideration of circumstantial evidence in general. Further, CALJIC No. 2.02 did not suggest that the jury was precluded from applying the general rule of CALJIC No. 2.01 to all other issues. For these reasons, we conclude there is no reasonable likelihood the jury would have understood the instruction in the manner defendant contends. (Estelle v. McGuire (1991) 502 U.S. 62, 72 [116 L.Ed.2d 385, 112 S.Ct. 475] (Estelle).) The claim fails on the merits.
The trial court instructed the jury under then-existing CALJIC No. 3.00, as follows: "Persons who are involved in committing or attempting to commit a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation, is equally guilty. Principals include: [¶] One, those who directly and actively commit or attempt to commit the act constituting the crime; [¶] Or two, those who aid and abet the commission or attempted commission of a crime."
Defendant contends this instruction required the jurors to find that all the participants in the murders were "equally guilty" and thus, precluded the jurors from finding defendant guilty of second degree murder without also finding that Sanchez and Nunez committed only second degree murder. To the extent defendant claims the instructions affected his substantial rights, we
CALJIC No. 3.01, as given, defined an aider and abettor as one who, "[w]ith knowledge of the unlawful purpose of the perpetrator" and "the intent or purpose of committing or encouraging or facilitating the commission of the crime," "aids, promotes, encourages or instigates the commission of the crime."
"`It is fundamental that jurors are presumed to be intelligent and capable of understanding and applying the court's instructions.' [Citation.]" (Bryant, Smith, and Wheeler, supra, 60 Cal.4th at p. 433.) "`"A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant. [Citations.]" [Citation.] "`[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.'"' (People v. Solomon (2010) 49 Cal.4th 792, 822 [112 Cal.Rptr.3d 244, 234 P.3d 501] ....)" (Ibid.)
This court held in People v. McCoy, supra, 25 Cal.4th 1111, 1122, that in the context of homicide, if an aider and abettor's "mens rea is more culpable than another's, that person's guilt may be greater even if the other might be deemed the actual perpetrator." (See id. at p. 1122, fn. 3.) Defendant argues that a jury should be permitted to find an aider and abettor less culpable than the actual perpetrator of the target crimes. We need not address the issue because any instructional error was harmless. The felony-murder and conspiracy verdicts completely eliminate the possibility that defendant could have been convicted of anything less than first degree murder.
The trial court instructed the jury under CALJIC No. 8.75, as follows: "The court cannot accept a verdict of guilty of second degree murder as to Counts 1, 2, or 3 unless the jury also unanimously finds and returns a signed verdict form of not guilty as to murder of the first degree in the same count." Defendant contends the instruction is erroneous because it prevented the jury from fully considering the lesser included offense of second degree murder. We have repeatedly rejected the contention. (See, e.g., People v. Whisenhunt (2008) 44 Cal.4th 174, 222-223 [79 Cal.Rptr.3d 125, 186 P.3d 496]; People v. Nakahara (2003) 30 Cal.4th 705, 715 [134 Cal.Rptr.2d 223, 68 P.3d 1190]; Riel, supra, 22 Cal.4th at pp. 1200-1201.) Defendant provides no persuasive basis to revisit the issue.
Defendant contends several standard instructions that the trial court gave to the jury were argumentative and improperly favored the prosecution. Preliminarily, because defendant did not object to, or request amplification or clarification of, any of the instructions at trial, the claims are forfeited on appeal. (People v. Livingston, (2012) 53 Cal.4th 1145, 1165 [140 Cal.Rptr.3d 139, 274 P.3d 1132].) The claims are also without merit.
"[N]ot every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation." (People v. Mills (2012) 55 Cal.4th 663, 677 [147 Cal.Rptr.3d 833, 286 P.3d 754].) In reviewing an ambiguous instruction, we inquire whether there is a reasonable likelihood that the jury misunderstood or misapplied the instruction in a manner that violates the Constitution. (Estelle, supra, 502 U.S. at p. 72.) "A single instruction is not viewed in isolation, and the ultimate decision on whether a specific jury instruction is correct and adequate is determined by consideration of the entire instructions given to the jury." (People v. Lucas (2014) 60 Cal.4th 153, 287 [177 Cal.Rptr.3d 378, 333 P.3d 587] (Lucas).)
Defendant contends the instructions on motive (CALJIC No. 2.51) and "confession and admission" (CALJIC No. 2.70)
Nothing in CALJIC No. 2.51 precluded the jurors from considering evidence of the motives of the coparticipants to the extent such evidence bore on defendant's guilt. If the jurors believed defendant did not share their motives, the jury was permitted to consider any absence of motive as tending to show his innocence.
Next, CALJIC No. 2.70 simply defined a confession and an admission. Defendant fails to explain how the definitions undermined his defense that the coparticipants acted on their own in committing the crimes. He also fails to demonstrate that the instruction was improper merely because it referred to his out-of-court statement and not those of the coparticipants. "[T]he jury's duty was to decide whether defendant's guilt had been proved beyond a reasonable doubt. The jury did not need to ascertain [Ramirez's, Sanchez's, and Nunez]'s guilt in the homicides, but needed only to ascertain whether evidence of [their] involvement in the homicides generated reasonable doubt as to defendant's guilt ...." (Lucas, supra, 60 Cal.4th at p. 286, italics added & omitted.)
In addition, we have held that omission of instructions that "properly pinpoint the theory of third party liability is not prejudicial because the
In sum, defendant has not established a reasonable likelihood that the jury could have misapplied CALJIC No. 2.70 in an unconstitutional manner. (Estelle, supra, 502 U.S. at p. 72.)
Defendant contends the trial court erred in giving CALJIC Nos. 2.03 and 2.52,
Preliminarily, we have explained that these instructions benefit the defense. "[E]ach ... instruction[] made clear to the jury that certain types of deceptive or evasive behavior on a defendant's part could indicate consciousness of guilt, while also clarifying that such activity was not of itself sufficient to prove a defendant's guilt, and allowing the jury to determine the weight and significance assigned to such behavior. The cautionary nature of the instructions benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory." (People v. Jackson (1996) 13 Cal.4th 1164, 1224 [56 Cal.Rptr.2d 49, 920 P.2d 1254].)
Defendant contends CALJIC Nos. 2.21.1, 2.21.2, and 2.27,
Defendant claims CALJIC No. 2.13,
Finally, defendant claims the cumulative effect of the asserted instructional errors described in this claim requires reversal of his conviction. Because defendant has failed to demonstrate any error, there is no prejudicial cumulative effect.
Defendant claims on numerous grounds that the standard instruction on burden of proof beyond a reasonable doubt (CALJIC No. 2.90) fails to adequately explain the burden of proof.
Preliminarily, defendant did not object to or request amplification of CALJIC No. 2.90 as given. Therefore, with the exception of the first two
Next, defendant contends CALJIC No. 2.90 is inadequate because it fails to inform jurors that "every element" of the charges must be proved beyond a reasonable doubt. Again, defendant's failure to seek amplification or further clarification of the standard instruction forfeits this issue on appeal. (Lucas, supra, 60 Cal.4th at p. 295.) In any event, we have previously rejected a similar claim. (E.g., People v. Thomas (2011) 52 Cal.4th 336, 356 [128 Cal.Rptr.3d 489, 256 P.3d 603].) Defendant offers no persuasive reason warranting reconsideration of our prior decisions.
Defendant complains that the standard instruction on burden of proof, CALJIC No. 2.90 was erroneous on several additional grounds. He specifically claims that (1) the terms "abiding conviction" requires definition and any definition should distinguish "abiding conviction" from the lesser standard of clear and convincing evidence; (2) by requiring more than "mere possible or imaginary doubt" the standard instruction implies that jurors must articulate reasons for their doubt; (3) the instruction incorrectly stated that "possible" doubt could not constitute "reasonable" doubt; (4) CALJIC Nos. 2.01 and 2.02 impermissibly lightened the prosecution's burden of proof and created a mandatory conclusive presumption of guilt upon a preliminary finding that evidence of guilt merely "appears reasonable"; and (5) the standard circumstantial evidence instructions, CALJIC Nos. 2.01 and 2.02, should have been supplemented with an instruction informing the jury that "if direct evidence is susceptible of two reasonable interpretations, one of which points to the defendant's guilt and the other to his innocence, you must adopt that interpretation which points to the defendant's innocence, and reject that interpretation which points to his guilt."
Preliminarily, because defendant failed to seek modification or further clarification of the standard instruction on these grounds, the issues are forfeited on appeal. (Lucas, supra, 60 Cal.4th at p. 295.) In any event, we have previously rejected the claims and do so again. (Id. at pp. 296-299.) Accordingly, the contentions are without merit.
Defendant contends that several jury instructions unconstitutionally diluted the prosecution's burden of proof. The claims are not cognizable, however,
First, defendant complains that CALJIC No. 2.27, the instruction that concerns the sufficiency of testimony of one witness, erroneously suggested that both the prosecution and defense had the burden of proving facts. The instruction as given stated as follows: "You should give the uncorroborated testimony of a single witness whatever weight you think it deserves. Testimony by one witness which you believe concerning any fact whose testimony about that fact does not require corroboration is sufficient for the proof of that fact. You should carefully review all of the evidence upon which the proof of that fact depends." (Ibid.)
We have previously rejected the claim. (People v. Carey (2007) 41 Cal.4th 109, 131 [59 Cal.Rptr.3d 172, 158 P.3d 743].) Defendant offers no persuasive reason to reconsider our prior decision.
Next, defendant contends that instructing the jury under CALJIC No. 2.27 violated his right to due process because the "which you believe" language allowed for proof based on mere "belief" that a single witness was telling the truth, rather than the constitutionally required proof beyond a reasonable doubt. The claim does not survive analysis. The jury is informed that evidence comes in a myriad of forms, including witness testimony, and that each juror is to determine the believability of a witness's testimony. (CALJIC Nos. 2.00, 2.20.) Defendant does not explain how believing a witness's testimony about a fact would or could be different from finding that fact proved beyond a reasonable doubt. Indeed, considering the instructions as a whole, there is no reasonable likelihood that the jury understood CALJIC No. 2.27 to operate in the convoluted manner defendant suggests. (See Estelle, supra, 502 U.S. at p. 72.) Therefore, the claim fails on the merits.
Finally, defendant claims that CALJIC No. 8.20, which states in part that premeditation and deliberation "must have been formed upon preexisting reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation," could be interpreted to require defendant to disprove the possibility of premeditation, thereby shifting the burden of proof. We have previously rejected the claim. (Hartsch, supra, 49 Cal.4th at p. 506.) Defendant provides no persuasive reason to reconsider our prior decision.
Defendant perfunctorily contends that CALJIC No. 2.90 denied him equal protection of law because it fails to provide an "adequate and uniform standard for determining the level of certainty to which the jury must be persuaded in order to assess whether the People have carried their burden of proof." He asserts that "each and every jury and each and every juror sitting in California (including [the jurors] in [his] case) were and are free to apply a different standard in assessing the critical reasonable doubt issue in violation of the 14th Amendment of the federal [C]onstitution."
Defense counsel's failure to seek amplification or further clarification of the standard instruction forfeited the issue on appeal. (Lucas, supra, 60 Cal.4th at p. 295.)
Defendant contends that the trial court erred in denying his request to have his entire trial audio-recorded on the ground that there exists a "possibility" that the Spanish translator may not have accurately translated the testimony of Spanish-speaking witnesses. As a result, defendant asserts that he was deprived of a complete and accurate record of the trial proceedings, in violation of his federal constitutional rights to due process, assistance of counsel, and meaningful appellate review under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and the corollary state constitutional rights (Cal. Const., art. I, §§ 7, 15, 17). The claim lacks merit.
Defendant complains that because there is no memorialized record of the original testimony of the Spanish-speaking witnesses, he is unable to verify the accuracy and reliability of the interpreted testimony that appears in the record. He asserts there are numerous examples in the record in which the English translation of a Spanish-speaking witness does not convey "a clear and understandable thought." As an example, defendant points to the following colloquy that occurred during the prosecutor's direct examination of Ramirez: "Q. [THE PROSECUTOR] Was there — when you shot that 30/30 rifle, was there anything that was ejected from the gun, from the side of the gun? [¶] A. [RAMIREZ] Yes. [¶] Q. [THE PROSECUTOR] What? [¶] A. [RAMIREZ] The casket." Defendant speculates that any lack of clarity in the testimony reflects error in the Spanish to English translation of the witness's testimony. Speculation, however, is insufficient to demonstrate that the record is inadequate to permit effective appellate review. (People v. Young (2005) 34 Cal.4th 1149, 1170 [24 Cal.Rptr.3d 112, 105 P.3d 487].) For example, witness testimony such as the example mentioned above may be caused by the witness's own word choice and not any translation error.
Because defendant has not demonstrated that the denial of his request to audio-record the testimony of Spanish-speaking witnesses has "prevented adequate and effective appellate review or created a substantial risk the judgment was arbitrary and capricious," his claim fails. (Letner and Tobin, supra, 50 Cal.4th at p. 195.)
As stated, the prosecution played for the jury a videotaped statement by defendant in which he denied any intent to steal from the victims but
Prior to the playing of the videotape, the court instructed the jury: "We're going to play a videotape. And you have in your hands a translation of that tape. Some of you — again, some of you may have some proficiency in Spanish. Others of you may have no proficiency in Spanish. You should rely on the transcription, and you should not — none of you, if you happen to have some proficiency in Spanish, should anoint yourselves as any kind of an expert so as to provide aid independently of the evidence to other jurors as to what is or is not being said on the tape. That comports with the general rule that the jury is to rely upon the evidence that is presented in court and not upon evidence from outside sources. So please keep that in mind if there are some of you who do have some proficiency in Spanish."
Defendant contends that the court erred because "although the judge's instruction admonished Spanish speaking jurors not to talk `to other jurors' about their own translation of the recording, the admonition did not preclude Spanish speakers from themselves considering their own translations of the Spanish in the recording." At this stage, the relevant inquiry is whether there is a reasonable likelihood that the jury applied the challenged instruction in a way that violated the Constitution. (Estelle, supra 502 U.S. at p. 72; People v. Avila (2014) 59 Cal.4th 496, 508 [173 Cal.Rptr.3d 718, 327 P.3d 821].) In addition, "`"we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." [Citation.]' (People v. Richardson (2008) 43 Cal.4th 959, 1028 [77 Cal.Rptr.3d 163, 183 P.3d 1146].)" (People v. Castaneda (2011) 51 Cal.4th 1292, 1321 [127 Cal.Rptr.3d 200, 254 P.3d 249].)
Preliminarily, if defendant did not believe the instruction given was adequate to cover this subject, then he was required to seek modification or clarification of the instruction in the trial court. (See Lucas, supra, 60 Cal.4th at p. 295.) Defendant's failure to do so forfeited the claim on appeal. In any event, the claim falls on the merits.
Defendant fails to demonstrate a reasonable likelihood that the jury misinterpreted the instruction in a way potentially unfavorable to the defense. The trial court admonished the jurors that they were to "rely on the transcription" it provided them. The court also told the jurors not to share their own translations of what was said on the videotape with other jurors. Therefore, the essence of the instruction was that the English translation that
Moreover, before commencement of the guilt phase deliberations, the court reminded the jurors that "you must decide all questions of fact from the evidence received in this trial and not from any other source." It then instructed the jury that "[w]hen a witness has testified through a certified court interpreter, you must accept the English interpretation of that testimony even if you would have translated the foreign language differently." For these reasons, we conclude there is no reasonable likelihood that the jury would have understood the instruction in the manner defendant now contends.
For the first time on appeal, defendant claims the trial court erred in allowing the court reporter to read requested portions of the trial transcripts to the jurors in the jury room during the guilt trial deliberations. Defendant argues that the asserted error violated his state and federal constitutional rights to a public trial, to be personally present, to counsel, and to the presence of a trial judge. The claims are without merit.
During guilt phase deliberations, the jury requested readback of the testimony of prosecution witnesses Ramirez, Bertha, and Trejo. In proceedings held in open court and in the presence of the jury, the trial court confirmed with the jury foreperson the testimony to be covered. The foreperson also requested readback of the testimony of the sales clerk at the ammunition store. The trial court responded: "All right. Okay. Then we'll have somebody come in and read after you go back and start deliberating. The attorneys and I will satisfy ourselves that we have located the testimony that you are interested in. And we'll provide that for you probably in the form of having the reporter join you in the jury room and read that testimony to you. [¶] Now, please keep in mind, when the reporter comes in to read, that's all she is there to do is just to read. She cannot respond to questions."
After the jury was excused, counsel informed the trial court that there were two sales clerks from the ammunition store who testified, and the prosecutor agreed. The court stated it would provide readback of the testimony of both clerks. The following colloquy occurred: "THE COURT: Is it agreeable then between counsel that we proceed in that manner? [¶] And would you like to review the areas of testimony that the reporter finds as bearing on the questions that the jury has asked? [¶] [THE PROSECUTOR]: I would like to
Defendant contends that the court violated his right to a public trial by conducting the readback in the jury room and not in open court. The contention lacks merit.
Here, counsel did not object to the court's proposed procedures for readback of the testimony and remained silent when the court asked if the parties agreed to the procedures. In addition, when the court discussed the procedures with the parties, counsel understood that the readback of testimony would be conducted in the jury deliberation room and not in open court. Under these circumstances, "[a]ssuming the right to public trial extends to the reading of testimony during jury deliberations," counsel effectively waived defendant's right. (People v. Lang, supra, 49 Cal.3d at p. 1028.)
Defendant contends that his state and federal constitutional right to counsel was violated when the readback of testimony was conducted in counsel's absence. Defendant's claim is forfeited because he did not object to the plan proposed by the trial court in accommodating the jury's request for testimony. (Lucas, supra, 60 Cal.4th at p. 300.) In any event, we previously have rejected the claim. (Ibid.)
Defendant contends the readback procedures used in this case, described above, violated his statutory rights under section 1138 and his Sixth Amendment right to an impartial jury, because the trial judge did not supervise the reading back of testimony. Once again, defendant forfeited the issue by counsel's failure to object to the procedures that were employed to provide the jury with the requested readback of testimony. (See People v. Roldan (2005) 35 Cal.4th 646, 728-729 [27 Cal.Rptr.3d 360, 110 P.3d 289] (Roldan) [by failing to object, defendant forfeited claim that the trial court erred under section 1138 and violated his constitutional rights by acceding to the jury request to read the four questions asked of each jury during jury selection without inquiring about the jury's reason for the request].) In any event, we previously have rejected the claim. (Lucas, supra, 60 Cal.4th at pp. 300-301.)
Defendant contends the trial court's reference to the prosecution in his case as "the People" was fundamentally unfair and violated his state and federal constitutional rights to due process and a fair trial. As he acknowledges, we have previously rejected this claim. (Lucas, supra, 60 Cal.4th at p. 289; People v. Thomas (2012) 53 Cal.4th 771, 816 [137 Cal.Rptr.3d 533, 269 P.3d 1109]; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1068 [47 Cal.Rptr.3d 467, 140 P.3d 775].) We do so again.
Defendant contends that the trial court erred by limiting the instruction on concurrence of act and specific intent, CALJIC No. 3.31, to the nonmurder counts and by failing to instruct the jury under CALJIC No. 3.31.5 on the concurrence of act and mental state concerning the murder counts. Defendant did not raise this issue at trial. Even assuming his failure to object did not forfeit the issue (§ 1259), the claim lacks merit.
The trial court instructed the jury under CALJIC No. 3.31, as follows: "In the crimes and allegations charged in Counts 4, 6, 7, 8, 9, and 10, namely, attempted murder, robbery, three counts, burglary and conspiracy, there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. Unless this specific intent exists, the crime to which it relates is not committed. [¶] The specific intent required is included in the definitions of the crimes set forth elsewhere in these instructions." The trial court did not instruct the jury regarding the required concurrence of act and mental state under CALJIC No. 3.31.5.
We apply the independent standard of review to claims of this nature. (People v. Alvarez (1996) 14 Cal.4th 155, 220 [58 Cal.Rptr.2d 385, 926 P.2d 365].) Doing so, we conclude any instructional error was harmless. Other instructions adequately conveyed the requirement, and there is no reasonable probability that a more explicit instruction would have affected the outcome of the trial. (See People v. Rogers (2006) 39 Cal.4th 826, 875 [48 Cal.Rptr.3d 1, 141 P.3d 135] [applying Watson "reasonable probability" standard to error in failing to instruct on the concurrence requirement for implied malice murder].)
The trial court informed the jury that it could find defendant guilty of first degree murder on Counts 1 through 3 under four theories: (1) premeditated and deliberate murder; (2) felony murder; (3) conspiracy murder; and (4) aiding and abetting liability under the natural and probable consequences doctrine.
Under the felony-murder instruction (CALJIC No. 8.21), the jury was informed, in relevant part, that "[t]he unlawful killing of a human being whether intentional, unintentional, or accidental, which occurs during the commission or attempted commission of the crime of burglary or robbery is murder of the first degree when the perpetrator had the specific intent to commit either of those crimes." The instruction on felony murder for an aider and abettor (CALJIC No. 8.27) told the jury that "[i]f a human being is killed by any one of several persons engaged in the commission or attempted commission of the crime of burglary or robbery, all persons who either directly and actively commit the act constituting those crimes or who with knowledge of the unlawful purpose of the perpetrator of the crime and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, aid, promote, encourage, or instigate by act or advice its commission, are guilty of murder in the first degree whether the killing is intentional, unintentional, or accidental." (Italics added.)
Finally, the jury was told, pursuant to CALJIC No. 8.26, in relevant part, that "[i]f a number of persons conspire together to commit burglary or
We are satisfied that the italicized language in the above instructions, when considered in light of the trial court's instruction under CALJIC No. 3.31 (ante, at p. 918) on the necessity of concurrence of act and specific intent on the robbery, burglary, and conspiracy charges, "substantially covered" the concurrence requirement. (People v. Alvarez, supra, 14 Cal.4th at p. 220.) Further, we disagree with defendant that CALJIC No. 3.31 effectively told the jurors that there was no need to find concurrence as to the murder counts. As given, CALJIC No. 3.31 did not reference the crimes and allegations charged in the murder counts (counts 1-3) and given the jury received more specific instruction that referred to those counts, we presume that the jury did not draw any conclusion about the murder counts from that instruction. (See People v. Myles (2012) 53 Cal.4th 1181, 1212 [139 Cal.Rptr.3d 786, 274 P.3d 413]; People v. Thornton (2007) 41 Cal.4th 391, 440 [61 Cal.Rptr.3d 461, 161 P.3d 3].) For these reasons, we conclude there is no reasonable probability the error in failing to separately instruct the jury on the concurrence of act and specific intent or mental state on the first degree murder charges affected the outcome. Certainly, counsel does not articulate how a more favorable result would have been reasonably possible had the court instructed otherwise. Accordingly, the claim fails on the merits.
The court instructed the jury under CALJIC No. 2.21.2 as follows: "A witness who was willfully false in one material part of his or her testimony is to be distrusted in others. You may reject the entire testimony of a witness who willfully has testified falsely as to a material point, unless from all the evidence you believe the probability of truth favors his or her testimony in other particulars."
Defendant contends the trial court was required to define the term "material," but he is mistaken. "[C]ommonly used words that have no technical meaning peculiar to the law impose no obligation on the court to provide definition in the absence of a request. [Citation.] Because the word `material,' as used in CALJIC No. 2.21.2, is within its ordinary meaning of `"substantial, essential, relevant or pertinent,"' the court did not err by failing to define it." (Lucas, supra, 60 Cal.4th at pp. 292-293.)
Defendant claims that the consciousness of guilt instructions given, CALJIC Nos. 2.03 (Consciousness of Guilt — Falsehood) and CALJIC No. 2.52 (Flight After Crime),
The trial court instructed the jury under CALJIC No. 3.02 that pursuant to the natural and probable consequences doctrine it could find defendant guilty of murder as an aider and abettor to robbery or burglary if it found the murder was a natural and probable consequence of those target crimes. (See People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 296 [128 Cal.Rptr.3d 417, 256 P.3d 543] ["under the `"natural and probable consequences'" doctrine, an aider and abettor is guilty not only of the offense he or she intended to facilitate or encourage, but also any reasonably foreseeable offense committed by the person he or she aids and abets"].)
Defendant contends the instruction creates an improper mandatory presumption of "intent to encourage or facilitate a murder." We need not consider this claim. The jury here was also instructed on felony murder based on burglary and robbery and found true the burglary-murder and robbery-murder special-circumstance allegations as to all three murders. We can infer from these special circumstance findings that the jury relied unanimously on a legally valid and independent theory of first degree felony murder under section 189 as to each murder victim. (See People v. Romero and Self (2015)
The information charged defendant with malice murder under section 187 but did not charge him with first degree murder in violation of section 189, i.e., premeditated murder and murder committed in the course of committing an enumerated felony. As a result, defendant contends the trial court lacked jurisdiction to try him for first degree murder.
In addition, we have rejected defendant's argument that insofar as we have recognized a single statutory offense of first degree murder, that offense is defined by section 189. (People v. Contreras, supra, 58 Cal.4th at p. 148.) Finally, we have previously rejected defendant's argument that the information's failure to separately allege a violation of section 189 violates Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348].
Defendant contends that the trial court erred by failing to instruct the jury concerning the duties of the foreperson at the guilt phase deliberations. As a result, defendant suggests, the foreperson was permitted to exercise undue influence over the other jurors, thus undermining the fairness and reliability of the guilt and penalty deliberations. The claim is without merit.
Preliminarily, because defendant failed to request such an instruction, the claim is forfeited. In any event, the trial court instructed the jurors that "[b]oth the People and the defendant are entitled to the individual opinion of each juror," that each juror "must decide the case for yourself," and that no juror should "decide any question in any particular way because a majority of the jurors or any of them favor that decision." These instructions were sufficient to negate defendant's speculative concerns. (See Lucas, supra, 60 Cal.4th at p. 299.)
Defendant contends that the more than five-and-one-half-year delay in appointing appellate counsel violated his constitutional rights to due process and equal protection. We have previously rejected similar claims. (People v. Bennett (2009) 45 Cal.4th 577, 629 [88 Cal.Rptr.3d 131, 199 P.3d 535]; People v. Dunkle (2005) 36 Cal.4th 861, 942 [32 Cal.Rptr.3d 23, 116 P.3d 494]; People v. Holt, supra, 15 Cal.4th at pp. 708-709.) Defendant advances no persuasive reason to reconsider our prior decisions.
Defendant contends that the CALJIC jury instructions given in his trial were confusing, difficult, and not "sufficiently understandable" by lay jurors to satisfy the Eighth Amendment requirement of heightened reliability in capital cases. In support, he asserts that because the Judicial Council established a commission that recommended the standard CALJIC jury instructions, including those given in this case, be rewritten, the commission necessarily found those instructions to be defective in conveying the necessary legal principles to the jury. We have rejected this argument. (Lucas,
CALJIC No. 8.80.1, as given, provided:
Defendant contends that because the jurors found that he was a coconspirator, as shown by its guilty verdict in count 10 with respect to the target
"It is fundamental that jurors are presumed to be intelligent and capable of understanding and applying the court's instructions." (People v. Gonzales (2011) 51 Cal.4th 894, 940 [126 Cal.Rptr.3d 1, 253 P.3d 185].) When a defendant claims an instruction was subject to erroneous interpretation by the jury, he must demonstrate a reasonable likelihood that the jury misconstrued or misapplied the instruction in the manner asserted. (Bryant, Smith, and Wheeler, supra, 60 Cal.4th at p. 433.) In determining the correctness of jury instructions, we consider the entire charge of the court, in light of the trial record. (Ibid.)
Here, defendant quarrels with the following language from the fifth paragraph of CALJIC No. 8.80.1 quoted above: "If you find that a defendant was not the actual killer of a human being, or if you were unable to decide whether the defendant was the actual killer or an aider or abettor or a co-conspirator, you cannot find the special circumstance to be true as to that
Under the fourth paragraph of CALJIC No. 8.80.1 above, if the jury found that defendant was an actual killer, it was not required to make additional findings. Under the fifth paragraph, the jurors were told that if they had found that defendant was not the actual killer or if they were unsure whether defendant was "the actual killer or an aider or abettor or a co-conspirator," they were required to find intent to kill or reckless indifference. The instruction would have been more complete if it had explicitly told the jury that a finding of intent to kill or reckless indifference was required if the defendant was not the actual killer and was liable for first degree murder as an aider and abettor or a coconspirator. (See Letner and Tobin, supra, 50 Cal.4th at pp. 181-182; see also CALCRIM Nos. 702, 703.) Nonetheless, the jurors would have reasonably understood that unless they found defendant was the actual killer, they were required to find intent to kill or reckless indifference.
Despite defendant's position on appeal, the fact that the jury also found that defendant was guilty of criminal conspiracy was of no consequence with regard to the issue under discussion. The jurors would have understood that the terms "actual killer," "not the actual killer," "aider and abettor," and "coconspirator" were not mutually exclusive. The jury may have believed that defendant was the actual killer and a coconspirator, in which case it learned from the instruction that it was not required to find intent to kill or reckless indifference. If the jury believed that defendant was not the actual killer and had also determined he was guilty of first degree murder as a coconspirator, it learned from the instruction that it was required to find intent to kill or reckless indifference. If the jury was unsure whether defendant was the actual killer but decided he was guilty of first degree murder as a coconspirator, it learned from the instruction that it had to find intent to kill or reckless indifference. We also note that the prosecutor's argument concerning the special circumstance allegations was consistent with the law, and she never argued that the jury was not required to find intent to kill or reckless indifference if it found defendant was a nonkiller coconspirator, or if it could not decide whether he was an actual killer. Accordingly, there is no reasonable likelihood that the jury was confused or misapplied the instruction in the manner suggested by defendant.
Defendant claims that the trial court erred by failing to instruct the jury that it could not find the multiple-murder special-circumstance (§ 190.2, subd. (a)(3)) allegation to be true unless it found he was an actual killer or intended to kill. As a result, he asserts this special circumstance true finding must be vacated. As we explain, we agree the instruction on this special-circumstance allegation was erroneous, but conclude the error does not require reversal.
Here, the trial court instructed the jury on the multiple-murder special circumstance (CALJIC No. 8.81.3) as follows: "To find the special circumstance referred to in these instructions as multiple murder convictions, is true, it must be proved that: [¶] A defendant in this case has been convicted of at
If, however, the jury found defendant was not the actual killer or could not decide as between actual killer and aider and abettor or coconspirator the fifth paragraph of the instruction (ante, p. 925) informed the jury that it could not find a burglary, robbery, or multiple-murder special-circumstance allegation true unless "you are satisfied beyond a reasonable doubt that such defendant [I] with the intent to kill aided, abetted, and counseled, commanded, induced, solicited, requested, or assisted any act during the commission of the murder in the first degree, or [2] with reckless indifference to human life and as a major participant who aided, abetted, counseled, commanded, induced, solicited, requested or assisted in the commission of the crime of burglary or robbery which resulted in the death of a human being, namely, Ramon Morales, Martha Morales or Fernando Martinez." (Italics added.) This was error. (Nunez and Satele, supra, 57 Cal.4th at p. 45.) In effect, this portion of CALJIC No. 8.80.1 permitted the jury to find the multiple-murder special circumstance true without finding defendant intended to kill a human being. An instructional error in this context is harmless under Chapman however, "when, beyond a reasonable doubt, it did not contribute to the verdict." (People v. Williams, supra, 16 Cal.4th 635, 689.) As we observed in Williams, this standard may be met when we are able to conclude that the jury necessarily found an intent to kill under other properly given instructions, or when evidence of the defendant's intent to kill is overwhelming and the jury "`could have had no reasonable doubt' that the defendant had the intent to kill." (Ibid.) Here, as we explain, the error was harmless because overwhelming evidence established, and the jury could have had no reasonable doubt, that defendant intended to kill, and that he was an actual killer.
Defendant relies heavily on the fact that the jury did not reach a unanimous verdict on the allegation he personally used a .38-caliber handgun within the
Defendant admitted in his videotaped statement that he was such shooter. ("[W]e all shot. We fired the weapons that we had we shot really like crazy." "[W]e shouldn't have done anything to the lady." (Italics added.)) Defendant's admission is entirely consistent with the physical evidence of the murders (the location of the victims, defendant, and his coparticipants, ballistics, defendant's fingerprint on the box of .38-caliber ammunition used, and the manner of Martha's killing, as described below), and the evidence of the group's planning activities and conversations before the home invasion.
It is undisputed that Sanchez was armed with and shot the victims with the AR-15 rifle, a weapon that ordinarily requires two hands to fire. It is undisputed that Nunez shot the victims with the .30-30 rifle, a weapon that ordinarily requires two hands to fire. It is undisputed that in addition to suffering gunshot wounds from one or both of these rifles, each victim was shot with a .38-caliber handgun. There was evidence of only two possible handguns that could have been that gun. Both were found by defendant in the kitchen. Defendant kept at least one of the guns. The box of .38-caliber ammunition used to shoot the victims was found in the bedroom and defendant's fingerprint was on it.
All three calibers of bullets were found in Martha's body, which was found in the bedroom. The .38-caliber handgun and .30-30 rifle bullets that caused Martha's fatal head wounds were recovered from her shoulder and armpit, respectively. The AR-15 rifle bullet was recovered from her side. The two fatal head wounds caused by the .38-caliber handgun and .30-30 rifle essentially blew off her face. That is, ballistics establishes that the shooter of the .38 handgun was in the bedroom with Martha and Alejandra. The .38 shot to Martha's head reflects a clear intent to kill. (See, ante at pp. 891-892, discussing defendant's shooting of baby Alejandra; see e.g., People v. Mayfield (1997) 14 Cal.4th 668, 768 [60 Cal.Rptr.2d 1, 928 P.2d 485] ["The shot was fired at Sergeant Wolfley's face, which is consistent with a preexisting intent to kill."].)
The body of Martinez was found between the bedroom and the living room, consistent with Nunez shooting him as he tried to escape. The body of Ramon was found in the living room, where Sanchez had been holding him at gunpoint throughout the home invasion robbery. There is no rational way that
There is simply no plausible explanation based on the evidence why Sanchez would have wanted to change weapons and go into the bedroom to shoot Martha with the small handgun after shooting her with the rifle. Such a scenario also would likely have taken longer than the 30 seconds of "fairly rapid" gunfire heard by the witnesses. Instead, the evidence overwhelmingly supports a scenario of Sanchez shooting the victims with the AR-15 rifle, Nunez shooting the victims with the .30-30 rifle, and defendant shooting the victims with the .38-caliber handgun, which he loaded with ammunition he found in the bedroom, all in a flurry of gunfire. The physical evidence does not depend in any way on Ramirez's testimony. The overwhelming evidence thus reflects that defendant intentionally and fatally shot Martha with a.38-caliber handgun. Therefore, the record compels the conclusion that the instructional error regarding the multiple-murder special circumstance was harmless beyond a reasonable doubt. (See also People v. Maciel (2013) 57 Cal.4th 482, 521 [160 Cal.Rptr.3d 305, 304 P.3d 983] [multiple-murder special circumstance does not require a finding of intent to kill every murder victim].)
Defendant presents several claims of instructional error regarding the robbery and burglary special circumstances. He asserts the alleged errors individually and cumulatively violated his rights under state law and the Eighth and Fourteenth Amendments to the federal Constitution. As we explain, each claim is without merit.
Defendant contends that the term "actual killer" should have been defined with regard to the use of that phrase in CALJIC No. 8.80.1 and that the jurors should have been instructed on the law of causation, "because there were multiple shooters and unresolved factual questions as to which shooters actually caused the victims' death." The claim is without merit.
Defendant contends the following portion of CALJIC No. 8.80.1 improperly shifted the burden of proof: "If you find that a defendant was not the actual killer of a human being ...." He asserts the phrase "[i]f you find" unconstitutionally implied that he was obligated to prove he was not the actual killer. We disagree.
There is no reasonable likelihood that the jury understood the phrase to shift the burden of proof. The instruction explicitly informed the jury that the prosecution bore the burden of proving the truth of the special circumstance allegations and explained the findings that it was required to make based on the evidence. In considering the truth of the special circumstance allegations, the jury necessarily would have already found defendant guilty of murder beyond a reasonable doubt. In considering the remaining inquiries posed by the instruction, the jury logically would have understood that if it found beyond a reasonable doubt that defendant was the actual killer, then it was not required to find intent to kill or reckless indifference. Otherwise, if the jury could not find beyond a reasonable doubt that defendant was the actual killer, then it was required to make a finding regarding whether the prosecution had proved beyond a reasonable doubt intent to kill or reckless indifference as a major participant. Nothing in the instruction suggested that defendant was required to provide any proof that he was not the actual killer.
Defendant next complains that the following portion of CALJIC No. 8.80.1 unconstitutionally defined the burden of proof: "you cannot find the special circumstance to be true as to that defendant unless you are satisfied beyond a reasonable doubt that such defendant had the intent to kill." Defendant
The instruction informed the jury that "[t]he People have the burden of proving the truth of a special circumstance. If you have a reasonable doubt as to whether a special circumstance is true, you must find it to be not true." There is no reasonable likelihood that any juror interpreted the word "satisfied" to mean anything other than he or she had to be convinced that the prosecution had carried its burden.
Defendant contends the jury was erroneously permitted to consider the consciousness of guilt, CALJIC No. 2.03, and flight, CALJIC No. 2.52, instructions (see fn. 38, ante), in determining the special circumstances allegations. Defendant asserts it was error to permit the jury's consideration of these instructions because, even though consciousness of guilt evidence such as flight and false statements is probative concerning whether a defendant committed a crime, it does not bear on the nature of the crime or a defendant's state of mind at the time of the crime.
The claim is without merit. The consciousness of guilt instructions expressly informed the jurors that evidence such as flight and false statements may be considered on the question of guilt, and that each juror must decide the weight and significance to accord the evidence. Moreover, the trial court explained to the jury under CALJIC 17.31 that "[w]hether some instructions apply will depend upon what you find to be the facts. Disregard any instruction which applies to facts which you determine do not exist." (See People v. Saddler (1979) 24 Cal.3d 671, 684 [156 Cal.Rptr. 871, 597 P.2d 130] [although CALJIC No. 17.31 "does not render an otherwise improper instruction proper, it may be considered in assessing the prejudicial effect of an improper instruction"].) We presume the jury followed the trial court's instructions. (People v. Chism (2014) 58 Cal.4th 1266, 1299 [171 Cal.Rptr.3d 347, 324 P.3d 183].) Therefore, if, as defendant asserts, the consciousness of guilt evidence was not relevant to the special circumstance allegations, then the jury would have disregarded the instructions. Consequently, there is no reasonable likelihood that the jury applied the consciousness of guilt instructions in a manner that violates the Constitution. (Estelle, supra, 502 U.S. at p. 72.) Accordingly, the instructions did not violate defendant's federal constitutional right to reliable verdicts.
Finally, because defendant fails to demonstrate that the above instructions were erroneous, we reject his claim that the asserted errors, individually or cumulatively, violated his state and federal constitutional rights.
Defendant argues the felony-murder and multiple-murder special circumstances are unconstitutional, as follows. First, he asserts the felony-murder special circumstance is unconstitutional because it fails to narrow the class of death-eligible murders, fails to require the prosecution to prove mens rea, fails to require an intentional killing, violates equal protection, and diminishes the relationship between criminal liability and moral culpability. Second, defendant contends the multiple-murder special circumstance too broadly makes defendants death eligible. Finally, defendant contends the felony-murder special circumstance is not a validly enacted statute.
Defendant concedes that this court has rejected these claims. (See e.g., People v. Boyce (2014) 59 Cal.4th 672, 700 [175 Cal.Rptr.3d 481, 330 P.3d 812] [the felony-murder special circumstance is constitutional]; People v. Stanley (2006) 39 Cal.4th 913, 968 [47 Cal.Rptr.3d 420, 140 P.3d 736] [same]; People v. Musselwhite (1998) 17 Cal.4th 1216, 1265-1266 [74 Cal.Rptr.2d 212, 954 P.2d 475] [same]; People v. Marshall (1990) 50 Cal.3d 907, 945-946 [269 Cal.Rptr. 269, 790 P.2d 676] [same]; People v. Anderson, supra, 43 Cal.3d at pp. 1146-1147 [same]; People v. Solomon, supra, 49 Cal.4th at p. 843 [the multiple-murder special circumstance is constitutional]; People v. Lucero (2000) 23 Cal.4th 692, 740 [97 Cal.Rptr.2d 871, 3 P.3d 248] [same]; Yoshisato v. Superior Court (1992) 2 Cal.4th 978, 991 [9 Cal.Rptr.2d 102, 831 P.2d 327] ["the various modifications and amendments made by Proposition 115 to paragraph (17) of section 190.2, subdivision (a) ... are ... effective"]; see also People v. Hoyos (2007) 41 Cal.4th 872, 890 [63 Cal.Rptr.3d 1, 162 P.3d 528] ["Yoshisato held that Proposition 115's amendments to section 190.2 were operative, and went into effect the day of Proposition 115's passage in June 1990."].) Defendant provides no persuasive reason for revisiting this court's prior decisions.
Defendant contends the cumulative effect of his asserted guilt phase errors requires reversal of his convictions. As discussed above, we will reverse the penalty judgment due to the trial court's erroneous excusal of a prospective juror for cause under Witherspoon/Witt. Otherwise, to the extent there are instances in which we have found error or assumed its existence, we have concluded defendant suffered no prejudice. Even when considered cumulatively, the errors did not render defendant's trial fundamentally unfair. For these reasons, the claim of cumulative prejudice fails.
Defendant raises several claims of error at the penalty phase. Given the penalty judgment must be reversed for Witherspoon/Witt error, we need not reach these claims, with the exception of defendant's claim concerning the restitution fine imposed. (See Riccardi, supra, 54 Cal.4th at p. 839.)
The judgment of death is reversed and the matter remanded for a new penalty determination and reconsideration of the question of a restitution fine under the currently applicable statute. If the People choose not to contest the
Werdegar, J., Chin, J., Corrigan, J., Liu, J., Cuéllar, J., and Kruger, J., concurred.
As stated, the jury here was instructed on aider and abettor liability for murder under CALJIC No. 3.02, as set forth above. This instruction, when considered together with other instructions given to the jury (e.g., CALJIC Nos. 8.10, 8.11, and 8.20) permitted the jury to convict defendant of premeditated first degree murder as an aider and abettor under the natural and probable consequences doctrine. This was error under Chiu. Reversal is not required on this ground, however, because we conclude beyond a reasonable doubt that the record reveals the jury based its verdicts on a legally valid theory. (Chiu, supra, 59 Cal.4th at p. 167, citing Chun, supra, 45 Cal.4th at pp. 1203-1205.) As we explained in Chun, one appropriate method of assessing the prejudicial effect of this type of error is to determine whether "other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary" to support a valid theory of liability. (Chun, supra, at p. 1205.) The record in this case indicates that the jury was properly instructed on valid theories of first degree felony murder (§ 189), with underlying offenses of robbery and burglary. The jury's guilty verdicts concerning robbery of each murder victim (counts 6-8), and burglary (count 9), and its true findings for each of the murder victims regarding robbery-murder and burglary-murder special circumstances leave no doubt that the jury made the findings necessary to support valid guilty verdicts on the murder charges, and therefore we conclude the instructional error under Chiu was harmless beyond a reasonable doubt.
CALJIC No. 2.21.2, as given, provided: "A witness who was willfully false in one material part of his or her testimony is to be distrusted in others. You may reject the entire testimony of a witness who willfully has testified falsely as to a material point, unless from all the evidence you believe the probability of truth favors his or her testimony in other particulars."
CALJIC No. 2.27, as given, provided: "You should give the uncorroborated testimony of a single witness whatever weight you think it deserves. Testimony by one witness which you believe concerning any fact whose testimony about that fact does not require corroboration is sufficient for the proof of that fact. You should carefully review all of the evidence upon which the proof of that fact depends."
