People v. Jasso

Filed 6/11/25

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER GUY JASSO,

Defendant and Appellant.

S179454

Riverside County Superior Court

INF047207

ORDER MODIFYING OPINION AND

DENYING PETITION FOR REHEARING

THE COURT:

The opinion in this matter, filed on April 3, 2025, and

appearing at 17 Cal.5th 646, is modified as follows.

The first full paragraph on page 683 is modified to read:

Here, the prosecutor did not purport to be reading

Pinela’s confession to police. The prosecution did not craft

questions designed to give the illusion of direct testimony but

instead focused on eliciting information within Pinela’s

personal knowledge. Moreover, any inferences that might be

drawn from the exchange between the prosecutor and Pinela

were not devastating to the defense, given the evidence

presented at trial. Without any indication that the jury was

led to believe they were hearing Pinela’s prior statements or

that the statements were critical to the prosecution’s case, we

are unpersuaded that trial counsel rendered deficient

performance by failing to object on confrontation grounds. (Cf.

People v. Hillhouse (2002) 27 Cal.4th 469, 502 [“deciding

whether to object is inherently tactical, and the failure to

object will rarely establish ineffective assistance”].)

This modification does not affect the judgment.

Defendant’s petition for rehearing is denied.

2

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER GUY JASSO,

Defendant and Appellant.

S179454

Riverside County Superior Court

INF047207

April 3, 2025

Justice Kruger authored the opinion of the Court, in which

Chief Justice Guerrero and Justices Corrigan, Liu, Groban,

Jenkins, and Evans concurred.

PEOPLE v. JASSO

S179454

Opinion of the Court by Kruger, J.

A jury convicted defendant Christopher Guy Jasso of the

first degree murder of Carlos Cardona. (Pen. Code, § 187, subd.

(a).) The jury found true the special circumstance that Jasso

murdered Cardona in furtherance of a robbery. (Id., §§ 190.2,

subd. (a)(17), 211.) The jury also found true allegations that

Jasso had personally used a firearm in the commission of the

crime and personally and intentionally discharged a firearm,

causing great bodily injury or death. (Id., §§ 1192.7, subd. (c)(8),

12022.5, subd. (a), 12022.53, subd. (d).) At the penalty phase,

the jury returned a verdict of death. The trial court sentenced

Jasso to death. The court also imposed a consecutive prison

term of 25 years to life on the discharge of a firearm

enhancement and imposed and stayed a term of four years on

the personal use of a firearm enhancement. This appeal is

automatic. (Id., § 1239, subd. (b).) We affirm the judgment of

death, but remand for the limited purpose of allowing the trial

court to consider whether to strike the firearm enhancements

under the terms of Senate Bill No. 620 (2017–2018 Reg. Sess.),

which was enacted after judgment was rendered in this case.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Guilt Phase

1. Prosecution Case

The prosecution presented evidence showing that,

together with an accomplice named Fabian Perez, Jasso robbed

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Opinion of the Court by Kruger, J.

Cardona one night in September 2003. Jasso fatally shot

Cardona in the course of committing the robbery. 1

Carlos Cardona worked as a driver and nighttime

dispatcher for Yellow Cab in Indio. Yellow Cab dispatchers,

including Cardona, could take fares while taking calls,

performing both types of work during the same shift. Drivers

typically carried between $25 and $70 in cash to make change.

Cardona drove a yellow minivan taxicab.

On September 6, 2003, Cardona started his shift at around

7:45 p.m. Cardona dispatched Yellow Cab driver Renee

Corrales to a fare at about 12:08 a.m. that night. Cardona

dispatched another Yellow Cab driver, Carlos Torres, to a fare

at 12:15 a.m. Corrales called Cardona after dropping off his fare

at 12:20 a.m., but Cardona did not answer. At 12:30 a.m., Torres

also called Cardona after dropping off his fare, and Cardona did

not answer Torres’s call either.

At about 12:30 a.m. that night, William Blackburn was

smoking outside his daughter’s house on Aztec Street in Indio,

where he was waiting for a ride from his daughter and son-in-

law. While standing outside the house, Blackburn saw a yellow

minivan drive past the house, heading north on Aztec Street.

1

Jasso and Perez were charged together for the robbery and

murder of Cardona but tried separately. After Perez’s jury

found him guilty of first degree murder and found true the

robbery-murder special-circumstance allegation, Perez was

sentenced to life without the possibility of parole. His conviction

was, however, reversed on appeal on the ground that the

introduction at trial of Perez’s confession to police officers, which

had been induced by a false promise of leniency, was prejudicial

error. (People v. Perez (2016) 243 Cal.App.4th 863 (Perez).) This

confession was not introduced at Jasso’s trial; its validity is not

at issue in this case.

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The minivan stopped about three houses away from where

Blackburn was standing, made a U-turn, and started going

south on Aztec. After the cab passed by him again, Blackburn

heard “a pop or a bang” but did not make much of it and

reentered his daughter’s house.

About 10 minutes later, Blackburn left in a car with his

daughter and son-in-law. Driving toward the corner of Aztec

and Avenue 44, Blackburn and his companions saw a man lying

in the middle of the street in front of the minivan taxicab. The

minivan’s engine was still running, its lights were on, and its

front door was open. Blackburn and his companions

immediately returned to the house and called 911.

Shortly after the 911 call, police arrived at the scene and

found Cardona lying facedown about 20 feet from the minivan,

in a pool of blood. Cardona had suffered two gunshot wounds on

the right side of his head, which caused his death. Paramedics

arrived after the police and took Cardona to a hospital after

administering first aid. The first officers to arrive did not see

anybody else in the area.

Police found two .25-caliber Winchester shell casings at

the scene, one on the driver’s seat in Cardona’s minivan and

another on the street. They also collected a newspaper from the

middle seat of the taxicab. Through computer and visual

analysis, a fingerprint analyst for the Riverside County Sheriff’s

Department matched latent fingerprints on the newspaper to

Jasso. Police did not find any money, a driver’s license, or a

wallet on Cardona or inside the taxicab.

Indio Police Department investigators reviewed

videotapes from security cameras in two Circle K stores near the

crime scene. One of the videotapes showed Jasso walking into

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Opinion of the Court by Kruger, J.

the Circle K, paying for gas, and buying two sodas at about 9:28

p.m. on the night of the murder. Jasso also appeared on footage

from the other Circle K store. Footage from that other location

showed him getting out of a yellow minivan, walking into the

store, asking for matches, and leaving the store. The minivan

drove away shortly thereafter, at around 12:16 a.m.

At the time of the murder, Jasso had been living in a

mobile home with his girlfriend, Delores Torres; Torres’s five

children; and Torres’s brother, Benjamin Pinela. The mobile

home was on a ranch owned by Jack Duke, Torres’s stepfather,

who lived with his wife in a neighboring office trailer. Duke was

acquainted with Manuel Rivera, whom he saw shooting a gun

on his ranch. Duke knew Rivera because Rivera had been

arrested for trying to cash checks that had been stolen from

Duke’s garage. Duke had also met Fabian Perez once and knew

that Perez drove a dark green or black sedan.

On September 6, 2003, Duke saw Pinela hand Jasso a

“silver-colored” object from about 100 feet away. A few days

later, Duke asked Pinela what he had done with a gun that he

had. Duke testified that Pinela told him “he gave it to Chris

[Jasso] and [Jasso] got it dirty. He didn’t want it. They threw

it away.” When investigators interviewed him shortly after the

murder, Duke was “pretty sure” that he had seen Pinela give

Rivera’s gun to Jasso, and that was why he had asked Pinela

what he had done with the gun. Duke also told investigators

that he had learned from Rivera that the gun was a .25 caliber.

Rivera was arrested and taken to the Indio jail in

December 2003. On December 16, 2003, Detective Sergio

Carrillo initiated a conversation with Rivera. Detective Carrillo

asked Rivera if he knew anything about “a couple of homicides,”

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Opinion of the Court by Kruger, J.

including Cardona’s murder. Detective Carrillo stated Rivera

“told me it was Chris Jasso, and that ‘he,’ being Chris Jasso, had

used [Rivera’s] gun.” After this initial conversation, Detective

Carrillo and his supervisor, Sergeant Richard Banasiak,

interviewed Rivera formally. During that interview, Rivera

stated that Perez had told him that Jasso had shot a cab driver.

According to Detective Carrillo, Rivera stated that he had

been shooting his gun at Duke’s ranch about a week and a half

before Cardona was murdered. Rivera said he left the gun at

Jasso’s home after shooting it and left for Phoenix, Arizona.

While he was in Phoenix, Rivera spoke with Perez on the

phone. Rivera stated that Perez told him not to come back from

Phoenix right away. Rivera stated that Perez, whom he

described as “one of my closest friend[s],” told him that Jasso

had murdered a taxi driver. According to Rivera, Perez told him

that he “was in the backseat with [Jasso]” when Jasso shot

Cardona. Perez told Rivera that Jasso “told that fool, told that

fool cabbie not to move. He moved, so Chris blasted him, boom.”

When he was asked whether Perez had helped Jasso plan the

robbery, Rivera said, “No,” but also that Perez said “he would go

along with” the robbery. When Sergeant Banasiak asked Rivera

whether “[his] buddy [was] totally surprised for what Chris . . .

did,” Rivera answered, “Pretty much.”

When asked to relay exactly what Perez had told him,

Rivera said, “He said that Chris had pulled his stuff out, but you

know, to jack his ass for the feria because they were hurting for

money and shit.” Detective Carrillo explained that “[f]eria”

means “[c]hange” and “jack” can mean “[b]eat somebody up or

take something from somebody.” According to Rivera, Perez and

Jasso got $80 from the robbery. Rivera also thought that Jasso

and Perez had taken the driver’s wallet and Jasso got rid of it.

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Perez also told Rivera that he had taken the gun apart and

thrown it into the Salton Sea.

Detective Carrillo stated that after he and Sergeant

Banasiak interviewed Rivera, police went to Duke’s ranch to

look for .25-caliber shell casings. He and two other investigators

found two shell casings at the ranch based on what Rivera had

told him.

Phillip Pelzel, a senior criminalist at the California

Department of Justice, performed a toolmark analysis of the two

shell casings that were recovered at the scene of Cardona’s

murder and the two casings from Duke’s ranch. Pelzel first

compared the two casings from the crime scene and concluded

that they were likely fired from the same firearm. Pelzel then

compared all four shell casings. Pelzel stated that all four

casings had “matching firing pin impressions, but — and also

the fact that the firing pin punched through the primer.”

According to Pelzel, matching firing pin impressions were

uncommon but insufficient to conclude that the casings came

from the same firearm because “there may be another firearm

out there that could produce the same marks.” Pelzel therefore

examined the casings in finer detail, looking for “chamber

marks” that might allow him to conclude that the casings were

from the same firearm. Pelzel stated, “I did find some [chamber

marks] but not enough still to meet the criteria for

identification. [¶] So between the matching firing pin

impression, matching chamber marks, I concluded that they

were probably fired from the same gun, but not an identification

to exclude the possibility that some other gun may have fired

them.”

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Jasso was arrested for the robbery and murder on

September 10, 2003. That day, his girlfriend, Delores Torres,

called Jasso’s sister, Jennifer Jasso, and asked her to pick up

the wallet Jasso was carrying when he was arrested.

Jennifer went to the Indio jail that same day and picked up

a black trifold wallet, and Torres got the wallet from

Jennifer. When asked about the wallet two days later,

Jennifer told Lieutenant William Hall that she did not recall

ever seeing that wallet before. But at trial, Jennifer testified

that she did recognize the wallet as a wallet that had been

given to Jasso by her brother Gabriel.

As the prosecution was nearing the end of its case,

Cardona’s mother, Maria Cuellar, informed the prosecutor

outside of court that police had given her a brown wallet that

contained Cardona’s Department of Motor Vehicles (DMV)-

issued identification card, business or credit cards, and $30–$60

in cash. Before the prosecutor closed his case, the trial court

read to the jury a stipulation regarding the wallet. The

stipulation described the wallet’s contents and stated

Cardona’s mother thought a detective had given her the

wallet but did not recall exactly how she got it.

2. Defense Case

Jasso did not present evidence in his defense.

3. Jury Verdicts

The jury found Jasso guilty of first degree murder. The

jury also found true special allegations that Jasso:

(1) personally used a firearm — specifically, a .25-caliber

handgun — in the commission of the crime; (2) personally

and intentionally discharged a firearm and caused great

bodily injury or death to another person; and (3) murdered

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Cardona in the commission or attempted commission of a

robbery.

B. Penalty Phase

1. Prosecution Case

The prosecution’s penalty case had three main

components. First, the prosecution presented evidence of

several violent acts Jasso committed in jail after his arrest. The

prosecution presented evidence concerning an assault of inmate

Martin Mota on January 1, 2008. Though Mota was called to

testify, he said he was afraid of testifying about the incident and

that he did not recall if or how he was injured on that date. The

parties ultimately agreed to have the following stipulation about

Jasso’s assault of Mota read to the jury: “Lacey Mejia is

employed as a Riverside County Sheriff’s deputy. She was

assigned to the Robert Presley Detention Center and working

on January 1st, 2008. [¶] At approximately 7:50 p.m., she

witnessed Christopher Guy Jasso choking inmate Martin Mota.

Jasso had his arms around Mota’s neck from behind. Jasso was

commanded to stop and he complied. The [door] on the [cell] was

open so Mota could crawl out, since he is handicapped and

unable to walk unassisted. Mota was placed in a wheelchair and

checked out by a nurse. [¶] Jasso reported that he saw Mota on

the floor of their cell having trouble, so he helped him up. Mota

reported that he was sleeping in his wheelchair and woke up to

find Jasso looking through his property box. Mota said Jasso

stood up, walked over to him, and with his left hand grabbed his

hair, and with his right closed fist struck him three times on the

side of the face. [¶] Jasso then attempted to choke Mota from

behind by wrapping both arms around his neck. Mota reported

he did not lose consciousness. After Jasso choked Mota, he

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threw him down to the ground and stomped on his lower back

with his left foot. [¶] Mota later . . . reported to a defense

investigator that he was not in a wheelchair when this

happened. He used crutches to assist with walking. [¶]

Inmates are allowed to have paperwork and/or legal documents

relating to their case[s] in their property or cell. The parties do

hereby stipulate that the foregoing is true and correct.”

The prosecution presented evidence that Jasso assaulted

fellow inmate Fred Garcia on June 6, 2008. After Garcia and

another inmate started fighting, Jasso joined the fight. After

deputies pepper sprayed and tased the three inmates to break

up the fight, Garcia required medical care because of several

lacerations to his body. Deputies found a jail-made weapon, or

shank, on the floor next to Jasso after the fight. One of the

deputies who investigated the fight testified that postattack

interviews with Garcia revealed that Jasso had slashed Garcia

with the shank after the other inmate took the shank from

Garcia.2 Garcia did not testify about the incident.

The prosecution introduced evidence of Jasso’s

involvement in another jail fight on January 16, 2009. At the

time, Jasso was in a housing unit holding either exclusively or

primarily inmates placed in administrative segregation.

Inmates are placed in administrative segregation when they

cannot be housed with others, typically because of assaults on

other inmates or corrections staff. A deputy testified that he

saw Jasso and another inmate attacking a third inmate. The

inmates were ordered to stop fighting several times, but they did

2

The deputy was allowed to testify about Garcia’s out-of-

court statements regarding the attack by the parties’

stipulation.

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Opinion of the Court by Kruger, J.

not comply. The deputy testified that he hit Jasso with his taser

and activated it. Of the two taser probes, one had failed to

attach to Jasso’s body, but the probe that connected gave Jasso

a jolt. Jasso pulled off the probe from his body and started

moving toward the inmate he had been attacking again. The

deputy reloaded his taser and fired it at Jasso again, and this

time both probes connected and delivered sufficient voltage to

incapacitate Jasso.

The prosecution also introduced evidence of Jasso’s attack

on inmate Jesse Diaz on January 26, 2009. A deputy stated he

saw Jasso hitting Diaz in the face repeatedly, while Diaz was

trying to protect himself without fighting back. Officers were

yelling at Jasso to stop, but he did not comply. The deputy took

Diaz to the hospital after he broke up the fight. Diaz’s injuries

were significant: “His whole face was bloody, left and right eyes

were swollen. There was blood coming out of his nose. His lips

were bruised inside, outside.” A second deputy testified that he

also witnessed part of the fight and saw Diaz covered in blood

and apparently begging for his life while Jasso punched him in

the face several times. After the fight, he spoke with Jasso, who

told him Diaz “shouldn’t have touched my daughter.” Diaz later

told the first deputy that Jasso attacked him because Diaz was

charged with having molested Jasso’s stepdaughter.

The second deputy testified that he searched Jasso’s cell

in February 2009 and found a shank and altered razors.

The second main component of the prosecution’s penalty

case was Jasso’s criminal and violent history before the murder.

The court read to the jury the following stipulation about Jasso’s

assault of his cousin, Arturo Lopez: “On September 9th, 2000,

Arturo Lopez, Jr. was taken to the JFK emergency room at 3:28

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Opinion of the Court by Kruger, J.

a.m. He reported to Indio police officer Rudy LaValle the

following: Lopez was walking down Sonora Street towards his

old apartment . . . to use the telephone of a neighbor. While

walking down the street, Chris Jasso started walking with him.

Lopez said Jasso pulled out a knife and stabbed him in the arm

and back. [¶] Lopez jumped a small fence to get away. He then

called a cousin to come and take him to the hospital. Lopez said

he was returning from Fantasy Springs casino and stopped to

see a friend. He did not know why Jasso stabbed him. They did

not argue, and he did not have a problem with Jasso. Lopez

stated he did not want prosecution against Jasso. [¶] Lopez

sustained a cut to the forearm and a puncture wound in the

middle of his back. Officer LaValle photographed his injuries.

The photographs are attached as exhibits. [¶] Mr. Lopez does

not want to testify against Christopher Jasso because they are

cousins.”

The parties also stipulated that Jasso had committed the

following prior felonies: (1) possession of an altered check on

December 24, 1992; (2) possession of an altered check on

January 7, 1993; (3) possession of a controlled substance on

April 16, 1993; (4) grand theft on June 4, 1994; (5) possession for

sale of a controlled substance on March 1, 1997; and (6) theft of

an access card on July 1, 2000.

The third main component of the prosecution’s penalty

case was victim impact testimony from Cardona’s friends and

family. Two of Cardona’s close friends, Anna Ortiz and Nineth

Chinchilla, testified about Cardona’s friendliness and

willingness to help other people, his love of dancing, and his

ability to provide great advice. Members of Cardona’s family,

including his cousin Edwin Cuellar and his aunts Miriam

Cuellar and Maria Enriquez, similarly testified that Cardona

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was a great friend, a role model, and beloved by everyone who

knew him. Edwin, Miriam, and Maria also testified about

Cardona’s devotion to his mother and how devastating his death

had been for her and everyone in the family.

Maria Cuellar, Cardona’s mother, testified about what a

thoughtful son Cardona had been, always putting her first and

planning for the family’s future. She described losing Cardona

as like having her heart taken from her.

2. Defense Case

Jasso’s penalty phase case similarly had three main

components. The first part of Jasso’s penalty case was to

provide background for Jasso’s violent acts, including the

murder of Cardona. Jasso introduced evidence that he had

attacked Jesse Diaz because Diaz had molested his

stepdaughter. Jasso had warned deputies at the Indio jail not

to place Diaz in his proximity because he would attack Diaz if

he saw him.

To provide additional background for the attacks, the

parties stipulated that: (1) Fred Garcia had eight previous

convictions for crimes of moral turpitude; (2) Arturo Lopez had

committed crimes of moral turpitude, namely domestic violence

and willful harming of a minor child; (3) Mota had been

convicted of second degree murder for “an assault on a child

under eight resulting in death” and petty theft; and (4) Jesse

Diaz was arrested and charged for performing a lewd act with a

child under 14 years old.

The parties also agreed to the following stipulation about

why Jasso decided to rob a taxicab driver: “The parties hereby

stipulate that Detective Banasiak of the Indio Police

Department conducted an interview of Fabian Perez regarding

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the events of September 6th, 2003. Fabian Perez told Detective

Banasiak that the reason Christopher Jasso wanted to rob

someone was because Christopher Jasso needed money to buy

groceries for his family.” Jasso also presented the testimony of

clinical psychologist Dr. Kent Franks, who sought to

contextualize Jasso’s violent conduct as a product of his

childhood trauma and his desire to protect and provide for his

children.

The second and most extensive component of Jasso’s

defense case was testimony from his close relatives, who

described the violent, abusive environment in which Jasso grew

up and presented him as a protector of his mother and siblings

and a loving father figure to children from his long-term

relationships with three women.

Frances Mascorro, Jasso’s mother, recounted that though

she and Jasso’s father, George Jasso, Sr., never married, they

had four children together. Jasso was born first, in 1972,

followed by Cruz, George, Jr., and Jennifer. Frances had a fifth

child, Gabriel, with another man. She and George, Sr., lived

with his parents before Jasso was born, but then they started

receiving welfare and started living on their own.

Frances testified that she had a poor memory because

George, Sr., had hit her repeatedly, particularly when he was

drunk. He would often force Frances to give him food stamps so

that he could trade them for money to buy alcohol. George, Sr.,

also took hard drugs like cocaine and heroin. Once, he

threatened her by putting a gun to her head while she was

holding Jennifer. On another occasion, George, Sr., broke

Frances’s leg, broke vases on her back, and beat her with a large

industrial mop in front of the children. Frances sustained

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severe injuries as a result of some of the beatings, including

black eyes, a broken nose, broken teeth, and broken ankles. She

had her own drinking problem and suffered from depression.

George, Sr., also abused their children, kicking them with

steel-toed boots or hitting them with belts. When Jasso was

about seven, George, Sr., began to lock Jasso in a room and beat

him. According to Frances, George, Sr., was jealous of Jasso and

wanted all of her attention and love for himself. As Jasso got

older, he began to confront his father and try to protect his

mother. George, Sr., would sometimes break windows or doors

wherever Frances and the children were staying, prompting

Frances or her neighbors to call police. The family had to move

constantly because they had no money and landlords would evict

them after George, Sr., caused damage to the properties.

Frances testified that Jasso left home as a teenager, but

he would often come back and give the family money for food

and their other needs. Frances thought that her son “had a good

heart” and always took responsibility and cared for his family,

including his father. She said Jasso was a loving father to his

children and “always worried” about them. She said she

corresponded and spoke with Jasso while he was in custody.

Jasso’s brothers, George, Jr., and Cruz, also testified. At

the time, George, Jr., was serving a life sentence for murder.

Cruz was living with Frances and Jennifer, Jasso’s sister, after

serving two and a half years in jail. Like Frances, they testified

that their father was violent and that the family was always

moving from hotel to hotel or apartment to apartment because

they had no money for rent and kept getting evicted. They

described Jasso’s efforts to help the family since he was a young

child, which included taking odd jobs to help with expenses and

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trying to protect his mother and siblings from his father’s

violence.

Jasso’s sister Jennifer, his cousin Ricardo Jimenez III, and

his uncle Ricardo Jimenez, Jr., similarly testified about Jasso’s

violent upbringing and Jasso’s efforts to protect his mother and

siblings. Jennifer also described Jasso as a caring, loving father

to his children.

Jasso’s former wife, Tanya, whom he had married when

he was 18, testified that she was pregnant with her first child

when they met and married. Tanya and Jasso had three

children together, and during their marriage Tanya also gave

birth to a son with a different father. Tanya described Jasso as

a caring, involved father to all five children. Jasso spent

significant stretches of time away from Tanya and the children

while they were together because he was in custody. All five

children similarly described Jasso as a caring father who

provided valuable guidance even while in custody.

Sherrin Juarez was Jasso’s girlfriend after his

relationship with Tanya ended. She testified that during the

three or four years in which they were together, Jasso stayed at

home and took care of her two daughters while she worked.

Sherrin’s two daughters testified that Jasso was a father to

them because he helped them with homework, would take them

to the park and school, and consoled them when their biological

father disappointed them.

Four children of Jasso’s third long-term partner, with

whom he was living at the time of the charged offenses, also

testified that Jasso was like a father to them. They testified

they continued to talk and correspond with him to get his advice

even after his arrest.

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The third main component of Jasso’s penalty case was

expert testimony from a clinical psychologist, Dr. Kent Franks.

Dr. Franks evaluated, tested, and diagnosed Jasso. He spent 24

hours with Jasso over three days; interviewed Jasso’s family;

read reports produced by schools, police, and public defenders

throughout Jasso’s life; and reviewed his personal history.

Dr. Franks described Jasso’s early life as “[v]ery, very

difficult,” marked by “supreme poverty” and frequent family

displacement and dysfunction. He said that such family

dysfunction and frequency of movement create behavioral

difficulties for children by disrupting their peer relationships

and increasing their risk of psychological problems and

tendency to behave aggressively. The constant physical and

verbal abuse Jasso’s father inflicted on him damaged Jasso’s

self-esteem and left him vulnerable to depression. This abuse

contributed to Jasso’s poor academic performance, made him

extremely self-conscious, and led him to see failure as more

comfortable and natural than success. It made Jasso more

vigilant, self-protective, and protective of his family.

Dr. Franks diagnosed Jasso with attention deficit

hyperactivity disorder and that Jasso used methamphetamines,

likely as a way of self-medicating. Dr. Franks also opined on the

causes of Jasso’s criminal activities. According to Dr. Franks,

Jasso’s criminal fraudulent activities were motivated by Jasso’s

desire to provide for his family or take the family on vacation.

As for Jasso’s violent behavior in custody, Jasso wanted to avoid

trouble in jail and had requested to be placed in protective

custody to avoid violent encounters. According to Dr. Franks,

Jasso had resorted to violence in jail in response to other

inmates’ attacks or other provocations.

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Dr. Franks recounted his conversation with Jasso about

Cardona’s murder. He said Jasso admitted to him that he had

shot Cardona and expressed remorse over it. Jasso told

Dr. Franks that he did not plan or expect to shoot the taxicab

driver but shot him after he put up a struggle when Jasso told

him to give him money. Jasso said he was desperate and wanted

to provide for his family. According to Dr. Franks, Jasso

appeared to take responsibility for the murder. Jasso also

admitted to Dr. Franks that he had committed numerous other

offenses before the murder.

Dr. Franks opined about Jasso’s attitudes toward others

and his personality. He noted Jasso’s tendency to form close

emotional relationships with women and devote himself to

children. Although Jasso tended to develop close and

empathetic relationships with women and children, he had

significant psychological problems. According to Dr. Franks,

Jasso exhibited an “extremely complex” psychological profile.

Jasso understood that he was psychologically scarred and did

not anticipate succeeding in life, which made him “depressed

and ruminative.” Jasso’s testing indicated he posed a significant

risk of suicide and experienced an overwhelming amount of

stress. Dr. Franks explained that Jasso’s thinking was

relatively clear, however, and he was not psychotic even though

he had trouble controlling his emotions. He also explained that

Jasso did not fit the profile of an antisocial person because he

was capable of forming empathetic relations with others and

was sensitive to the emotional needs of people he cared about.

Dr. Franks diagnosed Jasso with having a “Not otherwise

specified” personality disorder, because he exhibited antisocial

behavior but was not a psychopath. He said that even though

Jasso tended to avoid larger social groups, his empathetic bonds

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Opinion of the Court by Kruger, J.

with people he was familiar with and his ability to experience

guilt and remorse indicated that he did not have antisocial

personality disorder. Dr. Franks also diagnosed Jasso with

posttraumatic stress disorder (PTSD). He said Jasso’s extreme

anxiety and vigilance were the products of his abusive

upbringing. Dr. Franks linked Jasso’s PTSD with the murder,

stating Jasso was predisposed to become aggressive and self-

protective whenever he perceived hostility from another person.

When examined by the prosecutor, Dr. Franks admitted that

much of Jasso’s conduct and profile matched clinical criteria for

antisocial personality disorder. Dr. Franks also stated that

antisocial personality disorder cannot be cured, but its

symptoms can be ameliorated with behavioral therapy.

3. Penalty Phase Verdict and Sentence

The jury returned a death verdict. Jasso moved for a new

trial on the ground that the court had erroneously admitted

Fabian Perez’s statements to Manuel Rivera. The court denied

the motion for a new trial, denied an automatic motion for

modification of the verdict, and imposed a sentence of death.

II. DISCUSSION

A. Guilt Phase Issues

1. Admission of Fabian Perez’s and Manuel Rivera’s

Hearsay Statements

Jasso’s primary contention on appeal is that the trial court

committed reversible error when it permitted Detective Sergio

Carrillo to testify about hearsay statements made by Jasso’s

accomplice, Fabian Perez, to Manuel Rivera, and which Rivera

subsequently told Carrillo. Based on the record before us, we

find no reversible error.

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a. Factual Background

The information filed in this case alleged that Jasso and

Perez committed first degree murder with the special

circumstance that they were engaged in or attempting to engage

in robbery when they committed the murder. The trial court

severed the defendants’ trials. In his trial brief, the prosecutor

argued that Perez’s statements to his friend Manuel Rivera

about his and Jasso’s involvement in the murder were

admissible against Jasso as declarations against interest. (See

Evid. Code, § 1230.) In motions in limine dated September 28

and 29, 2009, Jasso moved to exclude Perez’s statements,

arguing that the statements were inadmissible under the

confrontation clause (U.S. Const., 6th Amend.) and that they

were not admissible as declarations against interest because

they pinned most of the blame on Jasso and minimized Perez’s

role in the murder.

The court addressed the admissibility of Perez’s

statements during hearings held on October 5 and 6, 2009, while

jury selection was underway. The trial court agreed with the

prosecutor and tentatively overruled Jasso’s objections on the

ground that Perez’s statements were admissible declarations

against his penal interest. The court reserved final judgment on

the issue, however, until after the court had the opportunity to

probe Rivera’s credibility and the sources of his knowledge about

the murder in an evidentiary hearing.

On November 6, 2009, still during jury selection, the trial

court asked the prosecutor what he wanted to do with Rivera.

The prosecutor stated, “I remember the Court wanted to hear

from Mr. Rivera so we could make a determination as to his

source of knowledge as to his statement; what he learned from

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Mr. Perez and what he may have learned from other sources.

[¶] So we were going to pose those questions to him and see if

we could delineate out what Mr. Perez told him as opposed to

what he may have learned from other people.” The court agreed

that a hearing was needed, noting that “[t]here’s some

statements that are made in the transcript where it’s unclear

where he’s getting the information.”

When the evidentiary hearing was held on November 9,

2009, Rivera repeatedly denied remembering the interview with

Detective Carrillo and Sergeant Banasiak where he recounted

what Perez had told him about the murder, even after the

prosecutor played him a tape of the interview. The trial court

held Rivera in contempt after he refused to answer the

prosecutor’s questions about the interview. While Rivera was

being removed from the courtroom, the prosecutor and Jasso’s

counsel had an off-record exchange. After that exchange, the

prosecutor told the court that he and Jasso’s counsel had been

discussing how to find “a way around” Rivera’s refusal to

answer. The prosecutor requested the court’s opinion on

whether they should parse Rivera’s statements line by line, play

a tape of the interview, or have Detective Carrillo testify about

what Rivera had told him. Jasso’s counsel stated that he

thought “it would be cleaner and neater” if Detective Carrillo

answered specific questions about the interview transcript on

the stand, “avoid[ing] all the areas that might have been

redacted otherwise.” The parties agreed that the defense then

would be allowed to impeach Rivera by having a stipulation

describing Rivera’s prior convictions read to the jury.

The prosecution started its case on November 16, 2009.

Three days later, the prosecution called Rivera to the stand,

after the jury had been read a stipulation of Rivera’s felony

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convictions and crimes of moral turpitude. Rivera refused to

answer any questions. The trial court held him in contempt and

excused him.

The prosecution then called Detective Carrillo. Detective

Carrillo testified about several aspects of his investigation of

Cardona’s murder, including the interview that he and his

supervisor, Sergeant Banasiak, conducted with Rivera.

Specifically, Detective Carrillo testified that in the interview,

Rivera reported what Perez had told him on the phone after the

murder, while Rivera was away in Phoenix, Arizona. Rivera

said that he and Perez had been friends since they were eight

and described him as “one of my closest friend[s].” Rivera stated

that Perez told him not to come back from Phoenix right away.

Perez told him that Jasso had murdered a taxi driver. Perez

said that he “was in the backseat with [Jasso]” when Jasso shot

Cardona. According to Perez, Jasso “told that fool, told that fool

cabbie not to move. He moved, so Chris blasted him, boom.”

Rivera said that Perez had first told him about the murder in

that phone conversation and revealed additional details in

conversations spanning “almost a month.”

Rivera denied that Perez had helped Jasso plan the

robbery, but he stated Perez said “he would go along with it.”

According to Rivera, Perez said that Jasso committed the

robbery and murder because they “were hurting for money,” but

that he was “totally surprised” when Jasso shot Cardona.

Rivera also stated that Perez reported that he and Jasso took

$80 from Cardona and admitted that he personally

disassembled and disposed of the murder weapon.

Detective Carrillo also testified about additional matters

he discussed with Rivera, other than Rivera’s conversations

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Opinion of the Court by Kruger, J.

with Perez. Carrillo stated that Rivera told him he “did some

shooting” with his gun at Duke’s ranch — where Jasso lived —

and that Rivera directed him to where he could find shell casings

at the ranch. After that, Detective Carrillo and two other

investigators secured a warrant to search the ranch and found

two empty shell casings in the soil where Rivera said they would

be able to find them.

b. Admissibility of Fabian Perez’s Statements to

Manuel Rivera

The primary issue Jasso raises concerns the admission of

Perez’s statements about the crime. The statements came in

through two layers of hearsay, and thus were admissible only if

each layer of hearsay separately met the requirements of a

hearsay exception. (Evid. Code, §§ 1200, 1201.) Jasso argues

that the trial court erred in ruling that the first layer of

hearsay — Fabian Perez’s statements to Manuel Rivera — fell

within the hearsay exception for statements against the

declarant’s interest. (Id., § 1230.) We find no reversible error

in this ruling.

i. Legal Background

Although hearsay statements are generally inadmissible

as evidence (Evid. Code, § 1200, subd. (b)), California law

recognizes several exceptions to this rule. One exception allows

the admission of any statement that “when made, was so far

contrary to the declarant’s pecuniary or proprietary interest, or

so far subjected him to the risk of civil or criminal liability, or so

far tended to render invalid a claim by him against another, or

created such a risk of making him an object of hatred, ridicule,

or social disgrace in the community, that a reasonable man in

his position would not have made the statement unless he

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believed it to be true.” (Id., § 1230.) We have explained that,

“[a]s applied to statements against the declarant’s penal

interest, in particular, the rationale underlying the exception is

that ‘a person’s interest against being criminally implicated

gives reasonable assurance of the veracity of his statement

made against that interest,’ thereby mitigating the dangers

usually associated with the admission of out-of-court

statements.” (People v. Grimes (2016) 1 Cal.5th 698, 711, italics

added (Grimes), quoting People v. Spriggs (1964) 60 Cal.2d 868,

874.)

“To demonstrate that an out-of-court declaration is

admissible as a declaration against interest, ‘[t]he proponent of

such evidence must show that the declarant is unavailable, that

the declaration was against the declarant’s penal interest when

made and that the declaration was sufficiently reliable to

warrant admission despite its hearsay character.’ [Citation.] ‘In

determining whether a statement is truly against interest

within the meaning of Evidence Code section 1230, and hence is

sufficiently trustworthy to be admissible, the court may take

into account not just the words but the circumstances under

which they were uttered, the possible motivation of the

declarant, and the declarant’s relationship to the defendant.’ ”

(Grimes, supra, 1 Cal.5th at p. 711.) The exception to the

hearsay rule codified in Evidence Code section 1230 does not

apply “ ‘to evidence of any statement or portion of a statement

not itself specifically disserving to the interests of the

declarant.’ ” (People v. Duarte (2000) 24 Cal.4th 603, 612

(Duarte), quoting People v. Leach (1975) 15 Cal.3d 419, 441

(Leach).) “We review a trial court’s decision whether a

statement is admissible under Evidence Code section 1230 for

abuse of discretion.” (Grimes, at p. 711.)

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ii. Discussion

With these principles in view, we consider whether the

trial court reasonably concluded that Perez’s statements were

admissible under Evidence Code section 1230 because they

were, in the context in which they were made, “specifically

disserving” of his penal interest and sufficiently trustworthy to

merit admission. (People v. Samuels (2005) 36 Cal.4th 96, 121

(Samuels).)

Jasso’s central contention is that Perez’s statements were

inadmissible because they were overwhelmingly self-serving.

Jasso characterizes Perez as pointing the finger at Jasso while

describing himself as an innocent bystander who just went along

with Jasso’s crime, denied planning it, and claimed that he was

surprised when Jasso shot Cardona.

Contrary to Jasso’s characterization, much of Perez’s

account was inculpatory. As the trial court noted, while Perez’s

account placed the greater share of blame on Jasso, Perez

nonetheless implicated himself in several criminal acts. While

Perez did not admit to planning the robbery, he did say that “he

would go along with it” and admitted to Rivera that he and Jasso

robbed a taxicab driver “because they were hurting for money.”

Perez further told Rivera that after Jasso shot the driver, Perez

disassembled the gun himself and disposed of it in the Salton

Sea. Perez also told Rivera that he and Jasso reaped “80 bucks”

in proceeds from the robbery. As the trial court correctly noted,

the central elements of Perez’s story — that he willingly

participated in a robbery of a taxicab driver, watched Jasso

shoot the driver, disassembled and disposed of the murder

weapon, and shared in the proceeds of the robbery — all exposed

Perez to liability for serious crimes, including both robbery and

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Opinion of the Court by Kruger, J.

murder. (See People v. Cavitt (2004) 33 Cal.4th 187, 197

[explaining the version of the felony-murder rule then in force

held nonkillers who participated in the underlying felony

“strictly responsible for any killing committed by a cofelon,

whether intentional, negligent, or accidental, during the

perpetration or attempted perpetration of the felony”] 3; Pen.

Code, § 32 [accessory after the fact]; People v. Tran (2013)

215 Cal.App.4th 1207, 1218–1219 (Tran) [declarant’s statement

to a friend that he watched the defendant shoot someone then

helped the defendant burn his car was admissible as a

statement against interest].)

The trial court also reasonably concluded that the

circumstances surrounding the statements to Rivera weighed in

favor of finding them admissible as statements against interest

because they bore indicia of trustworthiness. Perez did not

make the statements to police, but to Rivera, a close friend since

childhood. According to Rivera, Perez first told him about the

robbery and murder over the phone while Rivera was in

Phoenix, evidently to let Rivera know what had happened to his

gun, and the whole story “took about almost a month to hear.”

3

Perez made his statements in 2003. More than a decade

later, the Legislature would significantly narrow the felony-

murder rule. Senate Bill No. 1437 (2017–2018 Reg. Sess.)

(Senate Bill 1437; Stats. 2018, ch. 1015), which became effective

on January 1, 2019, “limited the scope of the felony-murder rule

. . . ‘to ensure that murder liability is not imposed on a person

who is not the actual killer, did not act with the intent to kill, or

was not a major participant in the underlying felony who acted

with reckless indifference to human life.’ ” (People v. Delgadillo

(2022) 14 Cal.5th 216, 223, quoting Stats. 2018, ch. 1015, § 1,

subd. (f), citations omitted.) The later legislative amendments

do not, however, affect our inquiry into whether the statement

was against Perez’s interest at the time it was made.

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Even if Perez placed greater blame on Jasso than himself, the

fact that he made his statements not to the authorities in an

interrogation but to a close friend — first on the phone and then

piecemeal over the course of a month — suggests that Perez did

not identify Jasso as the shooter in an attempt to shift blame or

curry favor with authorities. (See Tran, supra, 215 Cal.App.4th

at pp. 1217, 1220; People v. Arceo (2011) 195 Cal.App.4th 556,

577; People v. Cervantes (2004) 118 Cal.App.4th 162, 175; see

also People v. Greenberger (1997) 58 Cal.App.4th 298, 335

[noting that in determining whether a statement is trustworthy

and falls within the declaration against interest exception, “the

most reliable circumstance is one in which the conversation

occurs between friends in a noncoercive setting that fosters

uninhibited disclosures”]; cf. also, e.g., U.S. v. Dupree (2d Cir.

2017) 870 F.3d 62, 80 [statements inculpating both the

declarant and the defendant are more trustworthy when made

to a perceived friend].)

Jasso speculates that Perez might have given Rivera his

story anticipating that police might question Rivera about the

murder, and so told him a version of events that exculpated him

in comparison to Jasso. But Jasso’s suggestion does not add up:

If Perez was trying to give an account that would cast him in the

most favorable light for the benefit of law enforcement, why

confess to participating in the robbery at all, or to having

knowingly disposed of the murder weapon? The more

reasonable conclusion, which the trial court was entitled to

draw, is that Perez told Rivera about the murder because they

were friends and Perez felt obligated to let Rivera know what

had happened to his gun.

Jasso argues, as he did in the trial court, that the

statements were inadmissible because even if some of Perez’s

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Opinion of the Court by Kruger, J.

statements were self-inculpatory, their net effect was

exculpatory. Jasso relies for this argument on Duarte, in which

we observed that “a hearsay statement ‘which is in part

inculpatory and in part exculpatory (e.g., one which admits some

complicity but places the major responsibility on others) does

not meet the test of trustworthiness and is thus inadmissible.’ ”

(Duarte, supra, 24 Cal.4th at p. 612.)

Jasso overreads Duarte. In Duarte, we were concerned

with a declarant’s confession to police that acknowledged what

police already knew — that the declarant had been involved in

the crime — but minimized the declarant’s role and instead

pointed the finger at others. (See Duarte, supra, 24 Cal.4th at

pp. 611–612 [noting a statement is not “ ‘truly self-inculpatory’ ”

if its purpose is “ ‘to shift blame or curry favor’ ” with the

authorities].) Given the context, even the declarant’s seemingly

disserving statements were better understood as attempts to

mitigate damage. Here, unlike Duarte, there is no indication

that Perez was seeking to mitigate the damage to his legal

interests when he told his friend, Rivera, that he had

participated in a robbery that led to the murder of Cardona. The

net effect of the statements, in context, was not exculpatory.

Jasso also argues, relying on Duarte, that the trial court

erred in admitting “ ‘collateral assertion[s]’ ” that were not

“specifically disserving” to Perez. (See Duarte, supra, 24 Cal.4th

at p. 612 [explaining that an inadmissible “collateral

assertion[]” is “ ‘any statement or portion of a statement not

itself specifically disserving to the interests of the declarant’ ”

(quoting Leach, supra, 15 Cal.3d at p. 441)].) But as we have

made clear, a declarant’s statement that inculpates the

defendant is not a collateral assertion if it is “inextricably tied

to and part of a specific statement against [the declarant’s]

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Opinion of the Court by Kruger, J.

penal interest.” (Samuels, supra, 36 Cal.4th at p. 121.)

Whether a statement is a collateral assertion not properly

admitted as a declaration against penal interest depends not on

whose actions it describes, but rather on whether it is an

integral part of a statement that inculpates the declarant.

Jasso focuses on Perez’s statements about Jasso’s shooting

of Cardona. But for the reasons explained above, this

statement, too, was self-inculpatory: Combined with Perez’s

description of his own participation in the robbery that led up to

the shooting, as well as his deliberate disposal of the murder

weapon after the shooting, the statements about Jasso’s actions

were part and parcel of an overarching admission to criminal

acts. This case resembles Tran, supra, 215 Cal.App.4th at

page 1219, mentioned above, in which the court ruled

admissible a declarant’s statement to a friend that he helped the

defendant burn his car after the defendant had shot someone.

The court explained that the “entire statement was compelling

evidence that [the declarant] knowingly and purposely assisted

defendant in destroying evidence to help defendant escape

arrest, prosecution, and punishment for a shooting”; although

the assertions about what the defendant had done were not

inculpatory considered in isolation, they were “an inextricable

part of what made his entire statement . . . contrary to his penal

interests.” (Ibid.; accord, e.g., State v. Graham (Conn. 2022) 282

A.3d 435, 445 [where declarant “admitted his participation in a

robbery that gave rise to a homicide and exposed himself to the

possibility of a charge of felony murder,” entire statement —

including statements regarding the conduct of the actual

shooter — found to be against the declarant’s penal interest].)

So too here. Perez’s statements about what Jasso had done and

his own role destroying evidence were, taken together, an

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Opinion of the Court by Kruger, J.

admission exposing Perez to criminal liability and thus

specifically disserving of Perez’s penal interests.

Other portions of Perez’s statements — specifically, that

he played no role in planning the robbery and that he was

surprised when Jasso shot the taxicab driver — were both self-

serving and separable from Perez’s specifically disserving

statements. In a pretrial motion discussion, Jasso argued that

the court “need[ed] to redact” statements that were “not

statements against penal interest because the only thing that

can come in are statements against penal interest.” Assuming

this comment was sufficient to preserve his argument that

Perez’s self-serving statements should have been excluded even

if Perez’s other statements were admissible, the admission of

Perez’s self-serving statements was harmless. It is not

reasonably probable that excluding the self-serving statements

would have made a difference in the outcome, given the far

greater significance of the rest of Perez’s account as well as the

other evidence placing Jasso at the scene of the crime and

connecting him to the murder weapon.

Jasso contends that even if Perez’s statements to Rivera

were admissible under state evidence law, their admission

violated Jasso’s Sixth Amendment right to confront Perez. The

contention is without merit. “The Sixth Amendment right to

confrontation applies only to testimonial statements.” (People

v. Gray (2023) 15 Cal.5th 152, 163, fn. 3, citing Michigan v.

Bryant (2011) 562 U.S. 344, 354.) While the high court has

never provided a comprehensive definition of what constitutes a

testimonial statement, statements “not made to law

enforcement officers” or “otherwise made under circumstances

suggesting a primary purpose of creating evidence for . . .

prosecution” are not testimonial. (People v. Rangel (2016)

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62 Cal.4th 1192, 1217, citing Ohio v. Clark (2015) 576 U.S. 237,

246.) In addition, to qualify as testimonial, we have said that

“ ‘ “the out-of-court statement must have been made with some

degree of formality or solemnity.” ’ ” (People v. Gomez (2018) 6

Cal.5th 243, 297, quoting People v. Leon (2015) 61 Cal.4th 569,

603; see People v. Ramirez (2022) 13 Cal.5th 997, 1147.) Here,

none of these characteristics were present: Rivera was not a law

enforcement officer; Perez’s statements to Rivera did not involve

any degree of formality; and there was no other indication that

the statements were intended to create evidence for Jasso’s

prosecution. Therefore, admitting Perez’s out-of-court

statements did not deprive Jasso of his Sixth Amendment right

to confront Perez.

While Jasso also cursorily asserts that the admission of

Perez’s statements violated other federal constitutional rights,

we have repeatedly explained that ordinary application of state

evidence law generally raises no constitutional issue. (See, e.g.,

People v. Cowan (2010) 50 Cal.4th 401, 463–464 [rejecting due

process claim on the ground that testimony about hearsay

statements was properly admitted under state law].)

In sum, Jasso has not identified any reversible error in the

admission of the first layer of hearsay, consisting of Perez’s

statements to Rivera.

c. Admission of Manuel Rivera’s Statements

This brings us to the second layer of hearsay. As noted

above, when defense counsel initially litigated the admissibility

of Perez’s statements to Rivera, the parties anticipated that the

statements would come in through Rivera’s testimony. But at

an evidentiary hearing several weeks later, it became clear that

Rivera would not answer questions. The parties then discussed

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Opinion of the Court by Kruger, J.

alternatives to Rivera’s testimony and agreed that at trial,

Detective Carrillo would testify about Rivera’s account of his

conversations with Perez. Several days after this discussion, the

prosecution called Detective Carrillo to testify. Defense counsel

did not object to questions eliciting Perez’s statements, as they

had been told to Rivera.

Although Jasso’s trial counsel had agreed to the admission

of Rivera’s statements to Detective Carrillo, Jasso now contends

that the admission of Rivera’s statement to police violated both

the rule against hearsay and his Sixth Amendment right to

confront his accusers. We conclude that Jasso has not preserved

the objection.

i. Forfeiture

At the outset, while Jasso concedes that his attorney

agreed to the admission of Rivera’s statements through

Detective Carrillo’s testimony, he argues that trial counsel’s

earlier objection to the admission of Perez’s statements to

Rivera was sufficient to preserve his objection to the admission

of the statements through Detective Carrillo. We disagree.

Although trial counsel had initially objected to the introduction

of Perez’s statements on both state law and federal

constitutional grounds, on October 6, 2009, the trial court

overruled his objections to the admission of Perez’s statements

through Rivera. Then, after the November 9, 2009, evidentiary

hearing, counsel agreed to allow Detective Carrillo to relay

Rivera’s out-of-court statements, and did not object to his

testimony when it was presented on November 16, 2009. In

other words, trial counsel had objected to the first layer of

hearsay at issue here, but explicitly agreed to admission of the

second layer. One issue does not subsume the other: Whether

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Perez’s statements to Rivera were admissible as declarations

against interest, and whether Rivera’s report of those

statements could be introduced through Detective Carrillo’s

testimony, are two entirely different questions. The grounds for

admitting or excluding Rivera’s statements are not the same as

those for Perez’s statements, and trial counsel did not argue at

any point to the trial court that Rivera’s out-of-court statements

were inadmissible on any ground. Moreover, any arguments as

to why Perez’s statements should not be admitted would have

been entirely irrelevant to the admissibility of Rivera’s

statements about shooting his gun in Duke’s ranch and where

used shell casings might be found, which did not report what

Perez had said, and which Jasso also argues now should have

been excluded.

“[N]umerous decisions by this court have established the

general rule that trial counsel’s failure to object to claimed

evidentiary error on the same ground asserted on appeal results

in a forfeiture of the issue on appeal.” (People v. Dykes (2009)

46 Cal.4th 731, 756; accord, People v. Redd (2010) 48 Cal.4th

691, 729.) Here, Jasso’s trial counsel did not merely fail to object

to the admission of Rivera’s statements; Jasso’s counsel

affirmatively agreed to allow the statements to come in through

Detective Carrillo’s testimony as “a way around” Rivera’s

refusal to testify. Even if, as the Attorney General concedes to

be the case, no hearsay exception would allow the introduction

of Rivera’s statements, Jasso acquiesced to the admission of the

statements through Detective Carrillo and so has failed to

preserve the claim he now seeks to raise.

Jasso argues that Penal Code section 1259 empowers us

to review this issue notwithstanding the lack of an objection

during trial. The argument is unavailing. Section 1259

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provides: “Upon an appeal taken by the defendant, the

appellate court may, without exception having been taken in the

trial court, review any question of law involved in any ruling,

order, instruction, or thing whatsoever said or done at the trial

or prior to or after judgment, which thing was said or done after

objection made in and considered by the lower court, and which

affected the substantial rights of the defendant. The appellate

court may also review any instruction given, refused or modified,

even though no objection was made thereto in the lower court, if

the substantial rights of the defendant were affected thereby.”

(Italics added.) We have explained that section 1259 cannot be

invoked to raise for the first time on appeal a claim of erroneous

admission of evidence when no objection was made in the trial

court: “This section distinguishes claims of instructional error,

which may be asserted even without objection if they affect the

defendant’s substantial rights, from other claims of error, which

require a trial objection.” (People v. Seijas (2005) 36 Cal.4th 291,

302.) The latter rule is reflected in Evidence Code section 353,

which requires an objection to preserve a claim of error based on

the admission of evidence. (Seijas, at p. 302.; see Evid. Code,

§ 353.)

ii. Ineffective Assistance of Counsel

Jasso argues that if we conclude that his objection to the

admission of Rivera’s statements to Detective Carrillo has not

been preserved, we should hold that the failure to preserve the

claim is the product of constitutionally ineffective assistance of

trial counsel. Jasso’s ineffective assistance claim is not,

however, appropriate for resolution on direct appeal.

“A criminal defendant’s federal and state constitutional

rights to counsel (U.S. Const., 6th Amend.; Cal. Const., art. I,

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Opinion of the Court by Kruger, J.

§ 15) include the right to effective legal assistance. When

challenging a conviction on grounds of ineffective assistance, the

defendant must demonstrate counsel’s inadequacy. To satisfy

this burden, the defendant must first show counsel’s

performance was deficient, in that it fell below an objective

standard of reasonableness under prevailing professional

norms. Second, the defendant must show resulting prejudice,

i.e., a reasonable probability that, but for counsel’s deficient

performance, the outcome of the proceeding would have been

different. When examining an ineffective assistance claim, a

reviewing court defers to counsel’s reasonable tactical decisions,

and there is a presumption counsel acted within the wide range

of reasonable professional assistance.” (People v. Mai (2013) 57

Cal.4th 986, 1009 (Mai).)

We have noted in many cases that “except in those rare

instances where there is no conceivable tactical purpose for

counsel’s actions, claims of ineffective assistance of counsel

should be raised on habeas corpus, not on direct appeal,”

especially where “the alleged incompetence stems from counsel’s

failure to object.” (People v. Lopez (2008) 42 Cal.4th 960, 972

(Lopez); see also People v. Caro (2019) 7 Cal.5th 463, 488 [“On

direct appeal, if the record ‘ “sheds no light on why counsel acted

or failed to act in the manner challenged,” ’ we must reject the

claim ‘ “unless counsel was asked for an explanation and failed

to provide one, or unless there simply could be no satisfactory

explanation” ’ ” (quoting People v. Wilson (1992) 3 Cal.4th 926,

936)].) Habeas proceedings are the appropriate avenue for

evaluating claims of ineffective assistance of counsel because

“[a] fair assessment of attorney performance requires that every

effort be made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel’s challenged conduct,

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and to evaluate the conduct from counsel’s perspective at the

time.” (Strickland v. Washington (1984) 466 U.S. 668, 689

(Strickland).) “On direct appeal, a conviction will be reversed

for ineffective assistance only if (1) the record affirmatively

discloses counsel had no rational tactical purpose for the

challenged act or omission, (2) counsel was asked for a reason

and failed to provide one, or (3) there simply could be no

satisfactory explanation.” (Mai, supra, 57 Cal.4th at p. 1009;

accord, People v. Arredondo (2019) 8 Cal.5th 694, 711; see People

v. Centeno (2014) 60 Cal.4th 659, 676–677 [reversing for

ineffective assistance of counsel on direct appeal where counsel

inexplicably failed to object to a prosecutor’s argument seriously

misstating the prosecution’s burden of proof].)

As both parties now agree, there was no hearsay exception

that would permit Detective Carrillo to testify as to Rivera’s out-

of-court statements. But it is a different question whether

defense counsel’s agreement to admit the testimony through

Detective Carrillo constituted ineffective assistance. This is not

one of the “rare” cases in which we can resolve that issue on

direct appeal, and without further factual development evaluate

what, if any, tactical or strategic reasons counsel may have had

for permitting Detective Carrillo to testify about what Rivera

had told him. (Lopez, supra, 42 Cal.4th at p. 972.)

Before trial, Jasso’s counsel unsuccessfully argued that

Rivera should not be allowed to testify about what Perez had

told him, citing case law interpreting hearsay rules and the

Sixth Amendment confrontation clause. But then, weeks later,

when it became apparent that Rivera would not testify about

what Perez had said, Jasso’s trial counsel formed an agreement

with the prosecutor to allow Detective Carrillo to testify about

what Rivera said during his interview, provided that a

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stipulation of Rivera’s past crimes that would allow him to

impeach Rivera’s credibility be read to the jury. The

conversation between the prosecutor and Jasso’s trial counsel

that led to this agreement is not part of the record on appeal.

During record settlement proceedings, neither Jasso’s trial

counsel nor the prosecutor could recall the content of that

colloquy. Jasso’s trial counsel also declined to address his

tactical decisions and agreements with the prosecutor as not

properly before the court during the record settlement hearing.

When the prosecution called Detective Carrillo in the middle of

its case, defense counsel made no effort to object to Detective

Carrillo’s testimony.

It is unclear why defense counsel would initially object to

the admission of Perez’s statements through Rivera’s testimony,

then later permit Detective Carrillo to transmit the same

statements in Rivera’s absence. It is possible, as the Attorney

General acknowledges, that counsel may simply have missed

the fact that permitting Carrillo to testify about Rivera’s

statements would create its own hearsay problems. But it is

also possible that counsel’s decision was a tactical one.4 The

challenged statements were unquestionably damaging to Jasso,

4

The record does reflect some confusion on the part of one

member of Jasso’s two-attorney team, who stated during the

penalty phase that because Rivera’s statements were “said to a

civilian” and were “nontestimonial,” they were admissible as

prior inconsistent statements, even though Rivera refused to

testify. This statement was both factually and legally

inaccurate. But this attorney was not the attorney who had

litigated the introduction of Perez’s statements before trial, and

the record supplies no basis for inferring that the litigating

attorney was similarly confused about the nature of Rivera’s

statements.

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inasmuch as they confirmed that he shot Cardona in the course

of a robbery. But the Circle K and video evidence had already

placed Jasso — and Jasso alone — inside the minivan on the day

and near the time of the murder, and other evidence connected

Jasso to the weapon used in the murder.5 Damaging though

they were, Perez’s statements were of at least some help to the

defense insofar as they supplied clear evidence that Jasso had

not, in fact, been alone at the scene of the murder. This evidence

formed the cornerstone of the third party culpability defense

that Jasso raised in closing argument. To make out the defense

that it was Perez, not Jasso, who had shot Cardona, counsel

leaned heavily on Perez’s statements that he was at the scene

and participated in the robbery, while emphasizing the

weakness and unreliability of Perez’s and Rivera’s accounts

insofar as those accounts had placed the lion’s share of the

blame on Jasso.

The record does not reveal whether a desire to lay the

foundation for this defense — or, indeed, any other strategic

consideration — was what actually prompted counsel to agree

to let Detective Carrillo testify, notwithstanding the risks the

testimony posed. As such, we have “no basis on which to

determine whether counsel had a legitimate reason for making

a particular decision, or whether counsel’s actions or failure to

take certain actions were objectively unreasonable.” (People v.

Mickel (2016) 2 Cal.5th 181, 198 (Mickel).) This is not the

unusual case in which we can conclude, based on the silent

5

As Jasso’s counsel pointed out at oral argument, evidence

from the Circle K video may be consistent with a third party

theory of culpability, insofar as some video footage is suggestive

of the presence of a third party on the evening of the crime. But

the video evidence placed only Jasso inside the minivan.

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record, that trial counsel had no conceivable reason to proceed

in this fashion. Whether counsel balanced the costs and benefits

of allowing the admission of Perez’s statements to Rivera, and

whether any such balancing was within the realm of

professional competence, are questions to be explored on habeas

review. There, a more complete record can be made to either

support or refute the usual presumption that counsel’s decisions

reflect reasonable professional judgment. (See Mai, supra,

57 Cal.4th at p. 1009; see also, e.g., People v. Dunkle (2005) 36

Cal.4th 861, 932 [“Resolution of any claim predicated on

Strickland must await collateral proceedings.”].) Should the

habeas court conclude that counsel’s performance was deficient,

it must then evaluate whether the admission of Perez’s

statements prejudiced Jasso as to guilt, as to the robbery-

murder special-circumstance allegation, or as to penalty.

2. Admission of Benjamin Pinela’s Hearsay Statement

About the Firearm

Jasso argues that the trial court erroneously allowed

introduction of inadmissible hearsay statements by Benjamin

Pinela through Jack Duke’s testimony and that the error was

prejudicial. We find no reversible error.

After Duke stated that he had asked Pinela what he had

done with the firearm that Manuel Rivera had given him, the

prosecutor asked Duke what Pinela said in response. Jasso’s

counsel objected on hearsay grounds, but the trial court

overruled the objection without explanation. Duke went on to

respond: “He said that he gave it to Chris [Jasso] and got it

dirty. He didn’t want it. They threw it away.” The Attorney

General argues that the trial court properly overruled the

objection because Pinela’s statement was admissible as a

declaration against his penal interest.

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The Attorney General’s argument that Pinela’s statement

was a declaration against interest is weak. Certainly, it is

reasonable to interpret Pinela’s statement that Jasso “got [the

gun] dirty” to show Pinela understood the gun had been used

illegally. But the Attorney General fails to articulate

persuasively how this awareness would amount to legally

relevant involvement in a robbery and murder. That Pinela

knew the gun had been used illegally after the fact does not

show that he knew it would be so used before he handed it over;

nothing in Pinela’s statement indicates that he knew Jasso’s

intended use of the gun when he gave it to him — that is, that

he knowingly aided and abetted a robbery.

Even assuming that Pinela’s statement was erroneously

admitted, we conclude that the error was harmless. Contrary to

Jasso’s contention, “the erroneous admission of hearsay

evidence alone does not establish a violation of the confrontation

clause of the Sixth Amendment” or “other federal constitutional

rights.” (People v. Page (2008) 44 Cal.4th 1, 48.) Pinela’s

statement to Duke, his stepfather, was not testimonial and

therefore did not implicate Jasso’s Sixth Amendment right to

confront the witnesses against him. Given that, “generally,

violations of state evidentiary rules do not rise to the level of

federal constitutional error” (People v. Benavides (2005) 35

Cal.4th 69, 91), we treat the erroneous admission of hearsay

evidence as “state law error . . . subject to the traditional Watson

test: The reviewing court must ask whether it is reasonably

probable the verdict would have been more favorable to the

defendant absent the error” (People v. Partida (2005) 37 Cal.4th

428, 439).

Jasso has not demonstrated that it is reasonably probable

that he would have obtained a more favorable result if Pinela’s

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response to Duke had not been introduced. Pinela’s response

indicated that he had handed Rivera’s firearm to Jasso. But

Duke himself testified, in essence, that he had witnessed this

transaction occur. Specifically, Duke testified that he saw

Pinela hand Jasso “something silvery,” a “silver-colored

whatever” in the late afternoon or evening of September 6,

2003 — hours before Cardona was shot. Duke testified that he

had seen Pinela give Jasso the object from about 100 feet away

and did not know what it was. But on redirect examination,

after being shown a copy of a transcript of his interview with

police, Duke acknowledged telling police that the object in

question was a gun. Duke further acknowledged telling police

that he had confronted Pinela a few days later and asked about

the gun he had gotten from Rivera and given to Jasso. Duke

testified that he told investigators that he had learned from

Rivera that the gun was a .25 caliber, and that he believed it

was a .25-caliber handgun. Although Duke was ultimately

unwilling to state definitively on the stand that he had seen

Pinela hand Jasso a gun the evening before the shooting, he

admitted that he was “pretty sure” at the time that he had seen

Pinela give Rivera’s gun to Jasso.

Given Duke’s other testimony and prior statements to

police about witnessing Pinela give the gun to Jasso, there was

no reasonable probability that the outcome of trial would have

been different had he been prevented from testifying about

Pinela’s statement about giving the gun to Jasso. As for Pinela’s

further references to the gun getting “dirty” and that “[t]hey

threw it away,” neither of these vague references clearly

referred to Jasso or his actions. It is thus unlikely either

statement affected the jury’s consideration of Jasso’s culpability,

given the other evidence much more directly implicating Jasso

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in the murder of Cardona. We conclude that it was not

reasonably probable that the jury would have reached a verdict

more favorable to Jasso but for Duke’s testifying about what

Pinela told him had happened with Rivera’s gun.

3. Prosecution’s Leading Questions to Pinela

Jasso next contends that the prosecutor violated Jasso’s

Sixth Amendment right to confrontation by posing a series of

leading questions that Pinela refused to answer. Jasso concedes

that his trial counsel failed to object to this questioning but

argues that trial counsel was ineffective for failing to object. We

reject this claim.

a. Background

The prosecution granted Benjamin Pinela use immunity

so that he would testify about giving Jasso a firearm. The

prosecutor told the court during an evidentiary hearing that

Pinela would testify consistent with other evidence that he gave

Jasso Rivera’s gun and that Jasso had threatened him. After

the prosecutor explained to Pinela that anything he said could

not be used against him, Pinela said he understood.

Nevertheless, Pinela refused to answer the prosecutor’s

questions during the evidentiary hearing and the court held him

in contempt. The prosecutor then stated that he intended to ask

Pinela about receiving the firearm from Rivera and handing it

over to Jasso, and that Duke’s testimony would also establish

that Pinela got the weapon from Rivera and gave it to Jasso.

Pinela then took the stand in the jury’s presence. Again,

he refused to answer any questions, and the court found him in

contempt. After the prosecutor requested and received

permission to treat Pinela as a hostile witness, he and Pinela

had the following exchange:

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“[Prosecutor]. Isn’t it true, Mr. Pinela, that you have a

sister by the name of Delores Torres?

“[Pinela]. I respectfully refuse to answer any questions.

“[Prosecutor]. Isn’t it also true that Delores Torres is a

significant other of Christopher Jasso?

“[Pinela]. Like I said, I respectfully refuse to answer any

questions. [¶] . . . [¶] . . .

“[Prosecutor]. You have a friend by the name of Manuel

Rivera, don’t you?

“[Pinela]. I respectfully refuse to answer any questions.

“[Prosecutor]. Isn’t it true that Manuel Rivera gave you

his chrome .25 caliber handgun when he left for Arizona?

“[Pinela]. I respectfully refuse to answer any questions.

“[Prosecutor]. Isn’t it also true that on September 6 th,

2003 you gave that same chrome handgun to Christopher Jasso?

“[Pinela]. I refuse to answer any questions.

“[Prosecutor]. Isn’t it true, Mr. Pinela, that you have been

threatened by Mr. Jasso in the past and the reason you’re

refusing to answer questions is out of fear of retaliation?

“[Pinela]. I refuse to answer any questions.”

Pinela also refused to answer questions from defense

counsel.

b. Discussion

Although Jasso argues that the prosecutor’s leading

questions to Pinela violated his Sixth Amendment right to

confrontation, he does not dispute that his trial counsel

interposed no objection to the prosecutor’s questioning of Pinela.

“Because there was no objection to these [leading questions],

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this claim is forfeited.” (People v. Dykes, supra, 46 Cal.4th at

p. 773.) Jasso argues that the forfeiture should be excused on

ineffective assistance grounds, but fails to establish that his

counsel rendered constitutionally ineffective assistance by

failing to object to the leading questions.

California appellate courts have held that a defendant’s

right to confrontation is violated if a prosecutor facing a witness

who refuses to answer essentially testifies for the witness by

asking leading questions that convey prior statements

incriminating the defendant that the witness made to police.

(See, e.g., People v. Murillo (2014) 231 Cal.App.4th 448, 456

(Murillo) [prosecutor’s leading questions precluded defense

cross-examination “on what was tantamount to devastating

adverse testimony,” violating the defendant’s right to

confrontation]; People v. Shipe (1975) 49 Cal.App.3d 343, 349

(Shipe) [similar]; see also Perez, supra, 243 Cal.App.4th at

p. 886 [stating in dicta that “California cases have repeatedly

. . . conclude[d] that a defendant’s right to confrontation is

violated where, in examining a recalcitrant witness, the

prosecutor poses leading questions that provide the details of

prior statements the witness made to police regarding a

defendant’s commission of a crime”].) The high court has

similarly held that a defendant’s right to confrontation is

violated when a prosecutor reads a recalcitrant witness’s prior

statement to police to the jury in lieu of actual questioning.

(Douglas v. Alabama (1965) 380 U.S. 415, 416–417, 420

(Douglas).)

Likening the prosecutor’s questioning of Pinela to the

improper questioning in these cases, Jasso contends that trial

counsel should have objected to the violation of his confrontation

rights. Jasso argues that the prosecutor’s leading questions

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were prejudicial because they “created the indelible, improper,

impression in the jury’s mind that Pinela was given a gun by

Rivera, and Pinela, in turn, gave it to [Jasso],” and because they

improperly led the jury to believe that Pinela refused to testify

because Jasso had threatened him. We are unpersuaded.

The prosecutor’s questioning of Pinela was meaningfully

different from the questioning in the cases on which Jasso relies.

This case is not comparable to Douglas, where the prosecutor

“produced a document said to be a confession signed by” the

witness who refused to testify. This document supplied the only

direct evidence that Douglas had wounded the victim, and so

“formed a crucial link in the proof both of [Douglas’s] act and of

the requisite intent to murder.” (Douglas, supra, 380 U.S. at

p. 419.) While pretending to cross-examine the witness, the

prosecutor “purported to read from the document, pausing after

every few sentences to ask [him], in the presence of the jury, ‘Did

you make that statement?’ ” (Id. at p. 416.) There, the

prosecutor claimed to be reading directly from a damaging

confession to police officers; read the document in its entirety;

and “called three law enforcement officers who identified the

document as embodying a confession made and signed” by the

witness. (Id. at p. 417; see id. at pp. 416–417.) No similar

circumstances were present in the prosecutor’s questioning of

Pinela.

Nor is this case comparable to the Court of Appeal cases

that Jasso cites. As in Douglas, the prosecutors in all of these

cases did more than merely pose leading questions. They read

what they told the jury were the recalcitrant witness’s

statements to police officers, asking the witnesses if they had in

fact made those statements to police. (Perez, supra, 243

Cal.App.4th at pp. 884–885 [prosecutor asked witness

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“numerous questions about the statements he had made to

police,” showed him a transcript of the statements, and asked

him whether it refreshed his recollection]; Murillo, supra, 231

Cal.App.4th at p. 456 [witness’s “refusal to answer over 100

leading questions while the prosecutor read to the jury from his

police interviews denied Murillo the opportunity to cross-

examine the victim on what was tantamount to devastating

adverse testimony”]; Shipe, supra, 49 Cal.App.3d at pp. 349–350

[leading questions created powerful inferences “that appellant

was the one who viciously and brutally stabbed the decedent”

and “that the witnesses had related the events about which they

were being questioned to the authorities and that their

statements were true”].)

Here, the prosecutor did not purport to be reading Pinela’s

confession to police. Pinela’s statement was neither devastating

to Jasso nor the only evidence indicating that Jasso had received

the murder weapon the evening before Cardona was shot. The

prosecution did not craft questions designed to give the illusion

of direct testimony but instead focused on eliciting information

within Pinela’s personal knowledge. Without any indication

that the jury was led to believe they were hearing Pinela’s prior

statements or that the statements were critical to the

prosecution’s case, we are unpersuaded that trial counsel

rendered deficient performance by failing to object on

confrontation grounds. (Cf. People v. Hillhouse (2002) 27

Cal.4th 469, 502 [“deciding whether to object is inherently

tactical, and the failure to object will rarely establish ineffective

assistance”].)

In any event, it is not reasonably probable that the

prosecutor’s leading questions to Pinela affected the outcome of

trial. For one thing, aside from the suggestion that Jasso had

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threatened Pinela, the prosecution’s questions to Pinela

provided no information that the jury did not learn later from

Duke, who testified that he saw Pinela hand Jasso a silver object

the evening before Cardona was murdered. Though Duke would

not definitively state that the silver object was a firearm, he

admitted that he was “pretty sure” at the time that Pinela had

given Rivera’s gun to Jasso.

Moreover, jurors were aware they were not to treat the

prosecutor’s questions or arguments as evidence. The jury was

instructed with CALCRIM No. 222 as follows: “You must decide

what the facts are in this case. You must use only the evidence

that was presented in this courtroom. Evidence is the sworn

testimony of witnesses, the exhibits admitted into evidence, and

anything else I told you to consider as evidence. [¶] Nothing

that the attorneys say is evidence. In their opening statements

and closing arguments, the attorneys discuss the case, but their

remarks are not evidence. Their questions are not evidence.

Only the witnesses’ answers are evidence. The attorneys’

questions are significant only if they helped you to understand

the witnesses’ answers. Do not assume that something is true

just because one of the attorneys asked a question that suggested

it was true.” (Italics added.) “As we have consistently stated in

numerous contexts we generally presume that jurors are

capable of following, and do follow, the trial court’s instructions.”

(People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335,

447.) The nature of the prosecutor’s limited questioning of

Pinela supplies no reason to discard that presumption in this

case.

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4. Sufficiency of the Evidence of the Robbery-Murder

Special Circumstance

Jasso asks us to reverse the robbery-murder special

circumstance on the ground that there was no evidence that a

robbery had been committed aside from Perez’s statements. As

noted, Jasso contends these statements should have been

excluded, even though his counsel had agreed to their

introduction. Even if we agreed with Jasso’s premise, this

argument would fail. As we reiterated recently, “[e]vidence

erroneously admitted is properly considered in weighing the

sufficiency of evidence to support a conviction, notwithstanding

its erroneous admission.” (People v. Navarro (2021) 12 Cal.5th

285, 311.) The reason for this is that “a reversal based solely on

evidentiary insufficiency has fundamentally different

implications, for double jeopardy purposes, than a reversal

based on such ordinary ‘trial errors’ as the ‘incorrect receipt or

rejection of evidence.’ [Citation.] While the former is in effect a

finding ‘that the government has failed to prove its case’ against

the defendant, the latter ‘implies nothing with respect to the

guilt or innocence of the defendant,’ but is simply ‘a

determination that [he] has been convicted through a judicial

process which is defective in some fundamental respect.’ ”

(Lockhart v. Nelson (1988) 488 U.S. 33, 40.) Because Jasso does

not argue that the evidence admitted at trial was insufficient to

support the robbery finding, this claim fails.

5. Evidence Corroborating Perez’s Account

Jasso also argues that the robbery-murder special

circumstance must be reversed for lack of evidence

corroborating Perez’s statements. This argument lacks merit.

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Under California law, a defendant cannot be convicted of

a crime based on the testimony of an accomplice unless that

testimony is corroborated by independent evidence that

connects the defendant with the commission of the crime. (Pen.

Code, § 1111.) We have recognized that this rule extends to

special circumstances that require proof of a crime other than

the charged murder. (See, e.g., People v. Avila (2006) 38 Cal.4th

491, 570 [stating that a special circumstance “crime cannot be

proved by the uncorroborated testimony of an accomplice”].)

“Corroborating evidence may be slight, entirely circumstantial,

and entitled to little consideration when standing alone.

[Citations.] It need not be sufficient to establish every element

of the charged offense or to establish the precise facts to which

the accomplice testified. [Citations.] It is ‘sufficient if it tends

to connect the defendant with the crime in such a way as to

satisfy the jury that the accomplice is telling the truth.’ ” (People

v. Valdez (2012) 55 Cal.4th 82, 147–148.) But importantly,

“ ‘ “when the out-of-court statements are not given under

suspect circumstances, those statements do not qualify as

‘testimony’ and hence need not be corroborated under . . . section

1111.” ’ ” (People v. Hoyt (2020) 8 Cal.5th 892, 946, quoting

People v. Williams (1997) 16 Cal.4th 153, 245.) “ ‘ “The most

obvious suspect circumstances occur when the accomplice has

been arrested or is questioned by the police.” ’ ” (Ibid.)

Perez’s statement — made over the phone to a close

friend — did not involve any suspect circumstances that would

bring Penal Code section 1111 into play. But even if section

1111 did apply to Perez’s statements, the corroborating evidence

here would suffice.

First, independent evidence placed Jasso in Cardona’s

minivan shortly before the first 911 call reporting the shooting.

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Forensic investigators found fingerprints matching Jasso’s on a

newspaper dated September 6, 2003, in Cardona’s minivan.

Video from a Circle K store roughly a quarter mile from where

Cardona was shot showed Jasso entering the store shortly after

a yellow minivan pulled into the parking lot at around 12:13

a.m. on September 7, 2003, and the minivan leaving the parking

lot after Jasso exited the store at 12:16 a.m. — a few minutes

before the first 911 call reporting the shooting was placed at

12:20 a.m. Although Jasso contends on appeal that the videos

were unclear and did not show him getting into the van, this was

not contested at trial. In closing argument, trial counsel gave

no hint of doubt that the Circle K videos showed Jasso, and that

the later video showed him getting into Cardona’s van:

“Mr. Jasso’s in that Circle K for, like, 15 minutes getting gas,

getting sodas, spending his money. Goes back out, and we don’t

see anything until 12:15. At 12:15 you see Mr. Jasso go into a

different Circle K and ask for a book of matches. At 12:15. [¶]

If you’re watching that video — and you will have it; we can play

it for you again if you need it. But if you’re watching that video,

you see the van, when Mr. Jasso leaves Circle K, back up and

then drive out. And when that van leaves your sight, it’s 12:16

and five-hundredths of a second, I guess. 12:16.” He did not try

to argue that the fingerprints on the newspaper found in

Cardona’s van were not Jasso’s, or that Jasso was not wearing

the beige cargo shorts recovered from his trailer in the Circle K

videos. The trial record belies Jasso’s claims about the

weakness of this evidence, which supported an inference that

Jasso was in Cardona’s taxicab shortly before the murder. This

was independent evidence corroborating Perez’s statements

that Jasso was inside the taxicab at the time of the murder.

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Second, testimony from Duke and Pelzel was sufficient to

persuade reasonable jurors that Jasso was armed with the gun

that was used to murder Cardona. As discussed above, Duke

testified that he saw Pinela give Jasso a silver object earlier that

evening and admitted that when he spoke with investigators he

was “pretty sure” that the object was Rivera’s .25-caliber gun.

Pelzel testified that he compared the two .25-caliber shell

casings recovered from the ranch where Jasso lived with the two

.25-caliber casings from the crime scene. He testified that he

found in all four casings “matching firing pin impressions,

but — and also the fact that the firing pin punched through the

primer.” According to Pelzel, this was a malfunction that is “not

very common” because it is “kind of a bad malfunction to have,”

but “there may be another firearm out there that could produce

the same marks.” When the prosecutor asked Pelzel whether he

was saying that “[a]ll four [shell casings] had the same firing pin

malfunction that . . . is unique and rare,” Pelzel answered,

“That’s correct.” Based on this testimony, a jury could conclude

that Jasso was not only inside the taxicab when Cardona was

shot but was in fact the shooter. This testimony corroborated

Perez’s statement that Jasso shot Cardona.

Third, the jury was presented with evidence that allowed

it to draw a reasonable inference that Cardona’s wallet and cash

had been taken from him when he was murdered. Cardona’s

coworkers testified that taxi drivers were required to carry a

driver’s license and usually carried between $20 and $70 in cash

to make change. This evidence supported an inference that

someone had robbed Cardona, and additional evidence

supported the inference that Jasso was that person. Jasso’s

argument — that the evidence established that he could not

have taken Cardona’s wallet because police had recovered

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Cardona’s brown wallet and returned it to his mother, and the

black wallet that Jasso had his sister Jennifer pick up from the

police station when he was arrested was a wallet that their

brother Gabriel had given him — fails because it both

misinterprets the evidence and casts it in the light most

favorable to him, rather than the People.

It is true, as Jasso emphasizes, that one of Cardona’s

coworkers testified that he recalled Cardona having a brown

wallet, and Cardona’s mother approached the prosecutor near

the end of the trial and told him that she had a brown wallet

that used to belong to her son. Cardona’s mother did not recall

where she got that wallet, but she believed a detective had given

it to her. Nevertheless, those facts do not establish, as Jasso

contends, that Jasso cannot have taken Cardona’s wallet

because Cardona’s mother had the wallet her son was carrying

the night he was murdered. As the Attorney General notes, that

Cardona’s mother came forward with a wallet that contained a

DMV-issued identification card but not a driver’s license tends

to support an inference that Cardona was not carrying this

wallet during his shift when he was murdered. Jasso offers no

plausible explanation for why detectives found no cash or a

wallet at the crime scene or why the brown wallet Cardona’s

mother had contained no driver’s license. We therefore disagree

that the evidence showed that Cardona’s cash or wallet were not

taken from him when he was murdered.

Moreover, a reasonable jury could have concluded that

Cardona was the owner of the black wallet that Jasso had with

him when he was arrested. A Riverside County Sheriff’s deputy,

Sergeant Jeronimo Contreras, testified that after he was

arrested, Jasso “had personal items such as a wallet [that] he

wanted me to give . . . to his sister or the wife. . . . [¶] . . . [¶] . . .

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[H]e had a wallet, and he asked that I give it to his family

member which I want to think is a sister or his girlfriend, and

which I did. I allowed him to hand it over to that person.”

Jasso’s sister Jennifer testified that she picked up the wallet

from the Indio jail on September 10, 2003, and gave it to Jasso’s

girlfriend, Delores. Jennifer testified at trial that her brother

Gabriel had given Jasso the wallet. But when the prosecutor

asked Jennifer about her previous statements about the wallet

to investigators on September 12, 2003, she could not remember

what she had told them. Though the prosecutor showed her a

transcript of the interview to refresh her recollection, Jennifer

still could not remember what she had told police about her

brother’s wallet after she read the transcript. The next day,

Lieutenant William Hall took the stand and testified that

Jennifer had told him on September 12, 2003, that she had

never seen the wallet before. Given Jennifer’s conflicting

statements about the black wallet, the jury could have

reasonably chosen not to credit her claim that the black wallet

was a gift from her brother Gabriel. “[T]he jury was free to

evaluate [Jennifer’s] testimony and to deem it credible or not.”

(People v. Thomas (2023) 14 Cal.5th 327, 379.) Disbelieving

Jennifer’s testimony, the jury could infer that when Jasso was

arrested he wanted to get rid of the wallet that he was carrying,

and that his sister had changed her story about the wallet to

help her brother avoid punishment. The evidence that no cash

or a wallet had been found on Cardona or inside his cab and that

Jasso took steps to get rid of the wallet he was carrying when he

was arrested, combined with the evidence that Jasso had shot

Cardona, corroborated Perez’s statement that Jasso shot

Cardona while he and Perez were robbing him.

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6. Effect of Ameliorative Changes to the Felony-Murder

Rule

Jasso argues the jury was instructed on a theory of felony

murder that is invalid under current law, and that this

instructional error warrants reversal. The Attorney General

does not dispute that the felony-murder instructions that the

jury received here are erroneous under current law. He

contends, however, that any instructional error here was

harmless beyond a reasonable doubt because the record

establishes conclusively that the jury did not rely on a now-

invalid theory of felony murder. We agree with the Attorney

General.

a. Senate Bill 1347

“ ‘Under the felony-murder doctrine as it existed at the

time of [Jasso’s] trial, “when the defendant or an accomplice

kill[ed] someone during the commission, or attempted

commission, of an inherently dangerous felony,” the defendant

could be found guilty of the crime of murder, without any

showing of “an intent to kill, or even implied malice, but merely

an intent to commit the underlying felony.” [Citation.] Murders

occurring during certain violent or serious felonies were of the

first degree, while all others were of the second degree.’ ” (People

v. Wilson (2023) 14 Cal.5th 839, 868 (Wilson).)

Senate Bill 1437, which became effective on January 1,

2019, “significantly changed the scope of murder liability for

defendants who did not actually kill or intend to kill anyone,

including those prosecuted on a felony-murder theory” to

achieve more equitable sentencing and better align punishment

with offenders’ culpability. (Wilson, supra, 14 Cal.5th at p. 868.)

“[T]he amended murder statute now limits felony-murder

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liability to: (1) ‘actual killer[s]’ ([Pen. Code,] § 189, subd. (e)(1));

(2) those who, ‘with the intent to kill,’ aided or abetted ‘the

actual killer in the commission of murder in the first degree’ (id.,

subd. (e)(2)); and (3) ‘major participant[s] in the underlying

felony’ who ‘acted with reckless indifference to human life’ (id.,

subd. (e)(3)).” (Wilson, at pp. 868–869.)

“Senate Bill 1437 also created a procedural mechanism for

those convicted of murder under prior law to seek retroactive

relief,” now codified in Penal Code section 1172.6. (Wilson,

supra, 14 Cal.5th at p. 869.) After we held that this

resentencing procedure is “the exclusive mechanism for

retroactive relief and thus the ameliorative provisions of Senate

Bill 1437 do not apply to nonfinal judgments on direct appeal”

(People v. Gentile (2020) 10 Cal.5th 830, 839), “[t]he Legislature

abrogated this holding the following year . . . by expressly

authorizing challenges on appeal” (Wilson, at p. 869). “A newly

added subdivision states: ‘A person convicted of murder,

attempted murder, or manslaughter whose conviction is not

final may challenge on direct appeal the validity of that

conviction based on the changes made to [the felony-murder

rule] by Senate Bill 1437.’ ([Pen. Code,] § 1172.6, subd. (g); see

Stats. 2021, ch. 551, § 1.)” (Wilson, at p. 869.)

Jasso was convicted of first degree murder in December

2009. The trial court instructed the jury on two theories of

first degree murder: (1) willful, deliberate, and premeditated

murder, and (2) murder during the commission of a robbery

or attempted robbery — i.e., felony murder. The Attorney

General does not dispute that, though the felony-murder

instructions were proper when Jasso was tried, the jury was

not instructed on the additional elements now required to

establish felony-murder liability — that the defendant was the

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actual killer; an accomplice who acted with intent to kill; or an

accomplice who was a major participant in the underlying felony

who acted with reckless indifference to human life.

b. Alternative-theory Error

“When a court instructs on two theories of an offense, only

one of which is legally valid, the problem is known as

‘alternative-theory error.’ ” (Wilson, supra, 14 Cal.5th at p. 871,

quoting People v. Aledamat (2019) 8 Cal.5th 1, 9 (Aledamat).)

Here, as in Wilson, there is no dispute that the felony murder

theory can no longer be relied on “because it is possible that the

jury based its verdict on felony murder as it was previously

defined” and “could conceivably have concluded that [Jasso]

intended to [rob Cardona] but not that he intended to kill him.”

(Wilson, at p. 871.) Therefore, “Senate Bill 1437 created the

possibility of alternative-theory error in this case retroactively.”

(Ibid.)

The standard of prejudice applicable to alternative-theory

error is the same beyond a reasonable doubt standard that

generally applies to misdescriptions of the elements of an

offense. (Wilson, supra, 14 Cal.5th at p. 872.) “Under this

standard, a conviction must be reversed unless a reviewing

court, ‘after examining the entire cause, including the evidence,

and considering all relevant circumstances, . . . determines the

error was harmless beyond a reasonable doubt.’ ” (Ibid., quoting

Aledamat, supra, 8 Cal.5th at p. 13.)

“ ‘[A] reviewing court may hold the error harmless where

it would be impossible, based on the evidence, for a jury to make

the findings reflected in its verdict without also making the

findings that would support a valid theory of liability.

[Citation.]’ [Citation.] Furthermore, ‘while “overwhelming”

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evidence may demonstrate harmlessness, a court’s analysis of

whether the evidence is “overwhelming” in this context is not as

subjective or free-ranging as that term might imply.’ [Citation.]

Instead, the reviewing court has an obligation ‘to rigorously

review the evidence to determine whether any rational juror

who found the defendant guilty based on an invalid theory, and

made the factual findings reflected in the jury’s verdict, would

necessarily have found the defendant guilty based on a valid

theory as well.’ ” (Wilson, supra, 14 Cal.5th at p. 873.)

c. Discussion

The question here is whether a reasonable jury that made

the findings that the jury made in Jasso’s trial could have made

those findings without also concluding that Jasso was guilty of

first degree murder under a currently valid theory of murder.

(See Wilson, supra, 14 Cal.5th at p. 873.) The Attorney General

contends that, given the evidence at trial, the jury could not

have found true either the robbery-murder special circumstance

or the firearm-use enhancements without also concluding that

Jasso was the actual killer, which would make him ineligible for

relief under Senate Bill 1437. We agree.

For the enhancement based on personal use of a firearm

(Pen. Code, § 12022.5, subd. (a)), the jury was instructed: “If you

find the defendant guilty of the crime charged in Count 1, first-

degree murder or second-degree murder, you must then decide

whether the People have proved the additional allegation that

the defendant personally used a firearm during the commission

of that crime. . . . [¶] A firearm does not need to be in working

order if it was designed to shoot and appears capable of shooting.

A firearm does not need to be loaded. [¶] Someone personally

uses a firearm if he or she does any of the following: One,

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displays the weapon in a menacing manner; two, hits someone

with the weapon; or, three, fires the weapon.”

For the enhancement based on the discharge of a firearm

(Pen. Code, § 12022.53, subd. (d)), the jury was instructed: “If

you find the defendant guilty of the crime charged in Count 1,

first-degree or second-degree murder, you must then decide

whether the People have proved the additional allegation that

the defendant personally and intentionally discharged a firearm

during the commission of that crime causing great bodily injury

or death. [¶] To prove this allegation, the People must prove

that: One, the defendant personally discharged a firearm

during the commission of that crime; two, the defendant

intended to discharge the firearm; and, three, the defendant’s

act caused great bodily injury to, or the death of, a person.”

Having been so instructed, the jury returned true findings

that Jasso: (1) “did personally use a firearm, to wit a .25 caliber

handgun”; (2) “did personally and intentionally discharge a

firearm and proximately caused great bodily injury or death to

another person, not an accomplice”; and (3) “did murder Carlos

Cardona while engaged in the commission of, attempted

commission of, and the immediate flight after committing and

attempting to commit the crime of robbery.”

Considering the evidence presented to it, the jury could

not have made those findings about Jasso’s firearm use without

also concluding that Jasso was the actual killer. Cardona died

from two gunshots to the head. Pelzel, the criminalist who

analyzed the used shell casings found at the crime scene,

concluded that the two bullets that killed Cardona were

probably fired from the same .25-caliber firearm after finding

unusual matching firing pin impressions and matching chamber

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marks on the casings. No evidence suggested that Cardona had

been otherwise harmed or threatened with a firearm before he

was murdered. Nor was there any evidence that more than one

firearm had been used in the murder, or that more than one

shooter had fired at Cardona.

Even if a “finding of personal use . . . would not in itself

prove defendant was the actual killer” in cases involving

multiple armed participants in the underlying felony (People v.

Jones (2003) 30 Cal.4th 1084, 1120; see People v. Bland (2002)

28 Cal.4th 313, 318, 337–338), this is not such a case. Here, the

findings of personal use and intentional injury-or-death-causing

discharge of a firearm necessarily imply a finding that Jasso was

the actual killer because there was no evidence that the robbery

involved more than one armed participant or that Cardona

suffered any firearm-related injuries other than those inflicted

by the fatal shots. For these reasons, we conclude that the

failure to instruct the jury on felony murder in accordance with

the terms of later-enacted Senate Bill 1437 was harmless

beyond a reasonable doubt.

7. “Equally Guilty” Instruction

Jasso argues that the jury was erroneously instructed on

accomplice liability. The court instructed the jury with

CALCRIM No. 400 as follows: “A person may be guilty of a

crime in two ways: One, he or she may have directly committed

the crime. I will call that person the perpetrator; two, he or she

may have aided and abetted a perpetrator, who directly

committed the crime. A person is equally guilty of the crime,

whether he or she committed it personally or aided and abetted

the perpetrator who committed it. [¶] Under some specific

circumstances, if the evidence establishes aiding and abetting of

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one crime, a person may also be found guilty of other crimes that

occurred during the commission of the first crime.” According to

Jasso, this instruction allowed the jury to convict him of first

degree murder on an invalid theory of murder by imputing

malice to him based only on his participation in a robbery. He

claims that this instruction created the possibility that the jury

found him guilty based on a natural-and-probable-consequences

theory of murder that is invalid under current Penal Code

section 188, subdivision (a)(3), which provides in part that

“[m]alice shall not be imputed to a person based solely on his or

her participation in a crime.”6

In response, the Attorney General argues that: (1) this

claim is forfeited because trial counsel did not object to the

erroneous CALCRIM No. 400 instruction; (2) the jury did not

receive a complete natural-and-probable-consequences

instruction, so there is no reasonable likelihood that they were

misled by the “ ‘equally guilty’ ” language in the instruction to

impute malice to Jasso based only on his participation in the

robbery; and (3) the jury’s verdicts establish that the jury

necessarily found that Jasso was the actual killer in any event.

We conclude that the Attorney General has the better of this

argument.

6

This provision eliminating liability for murder as an aider

and abettor under the natural-and-probable-consequences

doctrine was enacted as part of Senate Bill 1437, discussed

above. Like Senate Bill 1437’s new definition of felony murder,

Penal Code section 188, subdivision (a)(3) became effective

January 1, 2019.

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Even if trial counsel should have objected to the

CALCRIM No. 400 instruction,7 Penal Code “section 1259

allows us to reach the merits of any claim of instructional error

that potentially affects a party’s substantial rights.” (People v.

Amezcua and Flores (2019) 6 Cal.5th 886, 916.) Reaching the

merits, we reject Jasso’s claim. Here, as in People v. Johnson

(2016) 62 Cal.4th 600, the jury was also instructed with

CALCRIM No. 401, which informed the jury that it could only

find Jasso liable as an aider and abettor to murder if it found

that he knew the actual perpetrator intended to murder, that

Jasso shared the murderous intent, and that Jasso had in fact

aided the perpetrator in the murder. That instruction “would

have cleared up any ambiguity arguably presented by

CALCRIM former No. 400’s reference to principals being

‘equally guilty.’ ” (Johnson, at p. 641.) Moreover, it would have

been impossible for the jury to return the verdicts that it did

without concluding that Jasso was the actual killer or, at the

very least, a major participant in a robbery who acted with

reckless indifference to human life. No rational jury could have

concluded that Jasso personally and intentionally caused

Cardona’s injuries — two gunshots to the head — without an

intent to kill. The jury therefore could not have imputed malice

to Jasso “based solely on his . . . participation in” the robbery.

(Pen. Code, § 188, subd. (a)(3), italics added.) Because the jury’s

verdicts conclusively establish that it did not find Jasso guilty of

7

Before Jasso’s trial, at least one Court of Appeal had

concluded that CALCRIM No. 400 is misleading in murder cases

because an aider and abettor must share the actual

perpetrator’s murderous intent to be equally guilty of murder.

(See People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164–

1165.)

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murder solely because Jasso was involved in a robbery, this

claim fails.

8. Lack of Fair or Adversarial Trial Process

Jasso’s final argument pertaining to error in the guilt

phase of the trial posits that the trial court failed in its

affirmative duty to ensure that he had a fair trial. Relying

primarily on United States v. Cronic (1984) 466 U.S. 648

(Cronic), Jasso contends that trial counsel’s asserted failures

were so severe that they amounted to a total breakdown of the

adversarial process requiring the trial court to intervene to

preserve the fairness of the trial. The argument lacks merit.

“Under Cronic, if defense counsel ‘entirely fails to subject

the prosecution’s case to meaningful adversarial testing, then

there has been a denial of Sixth Amendment rights that makes

the adversary process itself presumptively unreliable,’ and the

conviction must be reversed without further prejudice analysis.”

(People v. Banks (2014) 59 Cal.4th 1113, 1169, quoting Cronic,

supra, 466 U.S. at p. 659.) “ ‘[W]hen the defendant is

represented by counsel, the [Cronic] presumption of prejudice

will only stand when counsel entirely failed to subject the

prosecution’s case to meaningful adversarial testing.

[Citations.]’ [Citation.] Otherwise, ‘specific errors and

omissions’ by trial counsel must generally be litigated as

ineffective assistance of counsel claims under Strickland.

(Cronic, at p. 657, fn. 20.)” (Banks, at p. 1170.) “The United

States Supreme Court later clarified: ‘When we spoke in Cronic

of the possibility of presuming prejudice based on an attorney’s

failure to test the prosecutor’s case, we indicated that the

attorney’s failure must be complete.’ (Bell v. Cone (2002) 535

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U.S. 685, 696–697 [152 L.Ed.2d 914, 122 S.Ct. 1843].)” (People

v. Brown (2014) 59 Cal.4th 86, 115.)

Here, Jasso asserts that his trial counsel made certain

significant mistakes during the guilt phase of his trial. As we

have noted, Jasso is entitled to pursue his claims for ineffective

assistance of counsel under Strickland. But Jasso does not,

and cannot, argue that trial counsel completely failed to test the

prosecutor’s case. His claim based on Cronic fails. (See, e.g., In

re Gay (1998) 19 Cal.4th 771, 826.)

B. Penalty Phase Issues

1. Stipulations Regarding Other Violent Acts

Jasso contends that trial counsel rendered ineffective

assistance during the penalty phase by entering into

stipulations regarding Jasso’s assaults of Arturo Lopez, Jr., and

Martin Mota. He claims that no strategic reason can explain

these stipulations, which amounted to “unadorned confessions

to incidents that wer[e] not only violent, but unjustified,”

describing the attacks as his “two most serious offenses . . . other

than the instant crime.” We reject his arguments as

inappropriate to resolve on direct appeal.

a. Background

In the penalty phase, the prosecution introduced evidence

under Penal Code section 190.3, factor (b) of several other

incidents in which Jasso committed acts of violence. With one

exception, these incidents took place in jail after Jasso was

arrested for the murder. The prosecution relied on the

testimony of deputies who responded to the jail incidents to

prove the occurrence of three of the four incidents it asked the

jury to consider in aggravation. But there was no testimony to

prove the incident that took place before the murder and one of

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the four jail incidents; instead, the parties entered into

stipulations describing those incidents and establishing that

Jasso’s victims had been convicted of crimes involving moral

turpitude.

The Lopez stipulation stated that Lopez was walking

down the street when “Jasso started walking with him” and

“pulled out a knife and stabbed him in the arm and back.” Lopez

“did not know why Jasso stabbed him. They did not argue, and

he did not have a problem with Jasso. Lopez stated he did not

want prosecution against Jasso” and “d[id] not want to testify

against . . . Jasso because they are cousins.”

The Mota stipulation stated that a Riverside County

Sheriff’s deputy saw “Jasso choking inmate Martin Mota,” who

is “unable to walk unassisted.” According to the deputy, “Jasso

had his arms around Mota’s neck from behind. Jasso was

commanded to stop and he complied.” The stipulation stated

that “Jasso reported that he saw Mota on the floor of their cell

having trouble, so he helped him up.” The stipulation also

provided Mota’s account of the incident: that Jasso “walked over

to him, and . . . struck him three times on the side of the face,”

“attempted to choke Mota from behind,” and “threw him down

to the ground and stomped on his lower back with his left foot.”

The parties also stipulated that Mota had been convicted of

second degree murder for “an assault on a child under eight

resulting in death” and petty theft.

The prosecution offered evidence of three other jail

incidents that took place after Jasso assaulted Mota through the

testimony of the deputies who responded to the incidents. Two

deputies testified about Jasso’s involvement in a fight with

inmate Fred Garcia and another inmate that occurred on June

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6, 2008. Another deputy testified about how Jasso was involved

in a different three-way fight on January 16, 2009. Last, two

deputies testified about Jasso’s assault of inmate Jesse Diaz on

January 26, 2009. One of the deputies also recounted searching

Jasso’s cell in February 2009 and finding a shank and altered

razors there.

The defense response to the evidence of Jasso’s other

violent criminal acts can be broken down into two parts. The

first was to establish that none of the men whom Jasso had

harmed were innocent but were each violent or predatory

criminals in their own right. The evidence in support of this

were stipulations describing the criminal histories of four of the

men Jasso had attacked (the fifth was an unnamed inmate).

The other part of the defense response was to

contextualize the violent jail incidents through Dr. Franks’s

testimony, who explained what motivated Jasso to harm Garcia,

Mota, and Diaz. Dr. Franks said that Jasso wanted to avoid

trouble in jail and requested to be placed in protective custody

to avoid violent encounters. Regarding Garcia, Dr. Franks

stated Jasso acted in self-defense. Dr. Franks also said Jasso

attacked Mota because Mota was essentially bragging to Jasso

that he had murdered his daughter by showing him evidence

from the case against him. Jasso called Mota a “child murderer”

and was moved to attack him due to his protective attitude

toward children generally, according to Dr. Franks. Similarly,

Dr. Franks explained that Jasso attacked Diaz out of an impulse

to be protective of his own stepdaughter, whom Diaz had

molested.

In closing argument, defense counsel tied Jasso’s attacks

on Mota and Diaz to Jasso’s devotion to his children and his

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desire to be a protector. Counsel suggested “many righteous,

law-abiding men would do the same to Jesse Diaz” and, though

“wrong” and “misguided,” the assault was “not a reason for

death.” He also suggested that the fact that Jasso had been

involved in only four violent incidents in the six years he had

spent in jail after the murder showed that he was assimilating

to the prison environment and that his antisocial, violent

tendencies were waning.

b. Discussion

For Jasso to prevail on this claim of ineffective assistance

of counsel, he must demonstrate that: (1) there was no

conceivable rational tactical purpose for trial counsel to

stipulate to the Lopez and Mota incidents, such that the

stipulations constituted constitutionally deficient performance;

and (2) that the deficient performance was prejudicial, meaning

that there is a reasonable probability that, but for the

stipulations, the jury would not have chosen death. (See, e.g.,

Strickland, supra, 466 U.S. at p. 695 [prejudice at the penalty

phase is established when there is a reasonable probability that,

but for counsel’s deficient performance, the jury’s weighing of

aggravating and mitigating circumstances would not have led it

to choose death].) As we have already explained (see pp. 34–35,

ante), in general, because the appellate record usually does not

reveal information sufficient to evaluate counsel’s performance,

claims of ineffective assistance of counsel are not appropriate for

resolution on direct appeal. They are, in general, more

appropriately considered in a habeas proceeding, where the

parties can assemble a relevant record. (See People v. Scott

(1997) 15 Cal.4th 1188, 1212; Mickel, supra, 2 Cal.5th at p. 198.)

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The record on appeal does not reveal why counsel

stipulated to Jasso’s assault on Lopez. Jasso claims that

because Lopez refused to testify, the jury would never have

heard about the incident without the stipulation. But it is not

clear from the record that Lopez refused to testify. Before the

parties entered into the stipulation, the prosecutor explained

that while Lopez had been subpoenaed, “he may have been told

he’d have to come [to trial], [or] he may not have been told that.”

The prosecutor then asked the court to “issu[e] and hold[] a

warrant on Mr. Lopez . . . so [he could] have an opportunity to

try and contact him and address certain issues regarding the

stipulation.” The trial court agreed to issue the warrant, set the

bail at $5,000, and hold it for two days. Without any further

discussion on the record, the parties ultimately entered into the

stipulation.

Though the stipulation states that “Mr. Lopez does not

want to testify against Christopher Jasso because they are

cousins,” it remains possible that Lopez would have decided to

appear and testify rather than be arrested had the parties not

stipulated to the assault. If the possibility of Lopez offering live

testimony about the incident remained live until the parties

agreed to the stipulation, counsel could have reasonably

concluded that the stipulation would likely be less damaging to

Jasso than the victim’s live testimony. While such speculation

is not an appropriate basis to decide Jasso’s ineffectiveness

claim on appeal, we cannot rule out the possibility that counsel

had a rational tactical purpose for stipulating to Lopez’s assault.

We leave for habeas the question of whether Jasso has

demonstrated constitutionally deficient performance on this

record.

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The same is true as to counsel’s stipulation to Jasso’s

assault on Mota. While here, the record does show that Mota

refused to testify, there is at least a reasonable chance that the

jury would have learned about Jasso’s assault on Mota through

other live testimony. Mota initially communicated through his

attorney that he was scared to testify, stating, “I don’t want to

recall the past and what had happened.” When testifying before

the jury and on cross-examination, Mota maintained that he

could not remember anything about the incident or what he had

told deputies about it afterward. But before any of the inmates

Jasso had harmed in jail were called to testify, the prosecutor

stated that he had subpoenaed all of them and that it might be

necessary “to call correctional witnesses who were there, took

statements and to testify as to what they observed in the need

to impeach the victim with regard to what happened.” The trial

court then indicated the victim’s statements in the immediate

aftermath could be introduced as “prior inconsistent

statements” depending on their testimony. After Mota testified,

the trial court concluded that Mota’s statements to deputies

after the attack were admissible as prior inconsistent

statements.

Jasso does not argue that the trial court was wrong to see

Mota’s prior statement about the attack as a prior inconsistent

statement, and the prosecution could have asked a responding

deputy to testify about the Mota incident. As with the Lopez

stipulation, counsel may have made a rational tactical choice to

avoid live testimony about the incident and have the jury learn

about it through a stipulation instead. Here as well the record

does not affirmatively show that counsel’s decision to stipulate

was without any conceivable tactical basis.

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We cannot definitively conclude on this record that

counsel’s stipulations as to Jasso’s assaults on Lopez and Mota

were the result of deficient performance. As is typically the case,

Jasso’s claims are more appropriate for resolution on habeas,

where a more complete record can be made.

2. Asserted Prosecutorial Misconduct During Penalty

Phase Argument

Jasso argues that the prosecutor improperly commented

on Jasso’s failure to testify in his penalty phase closing

argument, violating Jasso’s Fifth Amendment right not to

testify against himself. Jasso acknowledges that his trial

counsel did not object when the prosecutor made the remarks he

now challenges, but again argues that counsel was ineffective

for not objecting. We reject the claim.

a. Background

The prosecutor’s penalty phase closing arguments

included the following remarks: “Then we have Martin Mota. I

think it’s important that you understand here that the

defendant found himself in the ad seg unit. Right? And we

know who goes there. We know who goes to ad seg. People who

need protection or people who are violent. Right? People who

have targets on them and people who target other people. I’ll let

you decide which one you think Christopher Jasso is. Person

with a target on his back or a person who targets other people.

“We know with Martin Mota, that what the doctor told us

simply wasn’t the case. Right? He attacked him because of who

he thought he was. Martin Mota had been convicted of nothing

at the time of his attack. And that should be important to you,

right? Important to you particularly in light of how the

defendant handled his own case.

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“He was given his day in court. He had the opportunity to

come in here and hold the People to our burden, right? He had

the opportunity to say he didn’t do it, to suggest Fabian Perez

was the shooter. He had the opportunity to suggest that he was

the one that called 9-1-1.

“He didn’t give Martin Mota that same opportunity. He

was the judge, jury, at least in this case, attempted executioner.

Right? We know what he did to Martin Mota. We know he did

it. We saw the fingerprints on his throat. We saw the footprint

on his back. And you got to see Martin Mota right up here. You

tell me, is he scared? Is he intimidated of [sic] the defendant?

He wouldn’t even look at him.” (Italics added.) Although Jasso’s

trial counsel objected during other parts of the prosecutor’s

closing argument, he did not object to any of these remarks.

b. Discussion

Jasso argues that the italicized paragraph above was an

improper comment on his decision not to testify, violating his

Fifth and Fourteenth Amendment right not to testify against

himself. (Griffin v. California (1965) 380 U.S. 609, 615.) But

“ ‘a claim of prosecutorial misconduct is not preserved for appeal

if defendant fails to object and seek an admonition if an objection

and jury admonition would have cured the injury.’ ” (People v.

Tully (2012) 54 Cal.4th 952, 1010, quoting People v. Crew (2003)

31 Cal.4th 822, 839.) Here, trial counsel failed to object, and we

see no reason why a jury admonition would not have cured any

potential injury. The claim of prosecutorial misconduct under

Griffin is therefore forfeited.

Even setting forfeiture aside, the claim fails on the merits.

While the prosecutor’s comment that Jasso “had the opportunity

to say he didn’t do it” is a closer call, read in context, it is clear

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that the passage as a whole was not commenting on Jasso’s

failure to testify. The prosecutor was instead commenting on

Jasso’s opportunity to have his day in court — an opportunity

that, the prosecutor argued, Jasso had denied to Mota when he

attacked him for the crimes of which Mota was accused. This is

clear from the first line of the challenged comments: “He had

the opportunity to come in here and hold the People to our

burden, right?” Given the context, the prosecutor’s further

mentions of Jasso’s opportunity to argue that Perez was the

shooter and that he had called 911, are naturally understood as

references to Jasso’s ability to present a defense at trial, and not

as commentary on Jasso’s failure to take the stand. As the

Attorney General notes, the prosecutor’s statements “were part

of a larger argument that appellant would remain a danger to

others if sentenced to life in prison because appellant routinely

resorted to extreme violence against any person he suspected

was guilty of a crime.” We agree that the jury would have

understood the prosecutor’s comments in this light, and not as

improper commentary on Jasso’s failure to testify in his defense.

There was thus no Griffin error, and Jasso’s counsel was not

ineffective for failing to object.

3. Challenges to California’s Death Penalty Law

Jasso presents several challenges to California’s death

penalty statute that we have rejected in previous decisions. He

provides no persuasive ground to revisit our earlier holdings.

“ ‘California’s death penalty law “adequately narrows the

class of murderers subject to the death penalty” and does not

violate the Eighth Amendment. [Citation.] Section 190.2, which

sets forth the circumstances in which the penalty of death may

be imposed, is not impermissibly broad in violation of the Eighth

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Amendment.’ ” (People v. Helzer (2024) 15 Cal.5th 622, 677

(Helzer), quoting People v. Williams (2013) 58 Cal.4th 197, 294.)

“ ‘Allowing the jury to consider the circumstances of the

crime ([Pen. Code,] § 190.3, factor (a)) does not lead to the

imposition of the death penalty in an arbitrary or capricious

manner.’ ” (Helzer, supra, 15 Cal.5th at p. 678, quoting People

v. Kennedy (2005) 36 Cal.4th 595, 641.) Therefore, it does not

violate the Fifth, Sixth, Eighth, and Fourteenth Amendments of

the United States Constitution. (See, e.g., People v. Linton

(2013) 56 Cal.4th 1146, 1214–1215 (Linton) [collecting cases so

holding].)

“ ‘ “Neither the federal nor the state Constitution requires

that the penalty phase jury make unanimous findings

concerning the particular aggravating circumstances, find all

aggravating factors beyond a reasonable doubt, or find beyond a

reasonable doubt that the aggravating factors outweigh the

mitigating factors.” ’ [Citations.] ‘ “The United States Supreme

Court’s recent decisions interpreting the Sixth Amendment’s

jury-trial guarantee [citations] do not alter these

conclusions.” ’ ” (People v. Johnson (2022) 12 Cal.5th 544, 636,

quoting Linton, supra, 56 Cal.4th at p. 1215.) Moreover, “[t]he

lack of written or other specific findings by the jury regarding

aggravating factors” does not violate “federal due process and

Eighth Amendment rights to meaningful appellate review,

violate equal protection of the laws or violate defendant’s Sixth

Amendment right to trial by jury.” (Linton, at p. 1216; accord,

Helzer, supra, 15 Cal.5th at p. 678.) Intercase proportionality

review is also not required to pass federal or state constitutional

muster. (Johnson, at p. 636.)

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“ ‘ “At the penalty phase, the jury properly may consider a

defendant’s unadjudicated criminal activity and need not agree

unanimously or beyond a reasonable doubt that the defendant

committed those acts.” ’ ” (People v. Charles (2015) 61 Cal.4th

308, 337 (Charles), quoting People v. Banks, supra, 59 Cal.4th

at p. 1207.)

“ ‘The adjectives “extreme” and “substantial” in statutory

mitigating factors (d) and (g) of section 190.3 do not prevent the

jury from considering mitigating evidence.’ ” (Helzer, supra, 15

Cal.5th at p. 678, quoting People v. Leonard (2007) 40 Cal.4th

1370, 1429.) Moreover, “ ‘[t]he court need not instruct the jury

that mitigating factors can be considered only in mitigation, or

to omit mitigating factors that do not apply to defendant’s

case.’ ” (Charles, supra, 61 Cal.4th at p. 337, quoting People v.

Boyce (2014) 59 Cal.4th 672, 724.)

Nor do the Eighth and Fourteenth Amendments preclude

imposition of the death penalty on a defendant who

unintentionally kills while committing a robbery: “ ‘Evidence

that the defendant is the actual killer and guilty of felony

murder . . . establishes “a degree of culpability sufficient under

the Eighth Amendment to permit defendant’s execution.” ’ ”

(People v. Young (2005) 34 Cal.4th 1149, 1204; accord, People v.

Contreras (2013) 58 Cal.4th 123, 165.) If the jury found that

Jasso actually killed Cardona while committing or attempting a

robbery, it was not also required to find that Jasso specifically

intended to kill Cardona before sentencing Jasso to death. The

same is true if Jasso was not the actual killer but was a major

participant in the robbery who acted with reckless indifference

to human life.

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“ ‘Prosecutorial discretion to select those death-eligible

cases in which the death penalty will actually be sought is not

constitutionally impermissible.’ ” (People v. Baker (2021) 10

Cal.5th 1044, 1113 (Baker), quoting People v. Anderson (2001)

25 Cal.4th 543, 601.)

“ ‘California’s capital sentencing procedures do not violate

principles of equal protection of the law on the ground they

provide safeguards different from those found in noncapital

cases.’ ” (Linton, supra, 56 Cal.4th at p. 1216, quoting People v.

Williams (2008) 43 Cal.4th 584, 650.)

“Finally, California’s death penalty does not violate

international law or international norms of decency.” (Helzer,

supra, 15 Cal.5th at p. 678; see also Baker, supra, 10 Cal.5th at

p. 1114 [stating that California’s death penalty scheme is

consistent with international and prevailing decency norms and

collecting cases stating the same].)

4. Asserted Cumulative Error

Finally, Jasso argues the cumulative effect of error during

both the guilt and penalty phases of his trial requires reversal.

We have found or assumed only four nonforfeited errors: (1) the

admission of certain statements made by Fabian Perez to

Manuel Rivera; (2) the admission of Benjamin Pinela’s

statements to Jack Duke; (3) the retroactively erroneous felony-

murder instructions; and (4) the potentially misleading

CALCRIM No. 400 instruction. We have concluded that none of

these found or assumed errors were individually prejudicial.

Neither are the found or assumed errors prejudicial when

considered cumulatively.

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5. Limited Remand

Although we have concluded that Jasso is not entitled to

reversal of his murder conviction or sentence in this automatic

appeal, the Attorney General concedes that Jasso is entitled to

a limited remand to allow the trial court to exercise discretion

newly conferred by the Legislature to decide whether to strike

Jasso’s firearm enhancements. We agree, and accept the

concession.

At the time Jasso was sentenced, his firearm

enhancements under Penal Code sections 12022.53 and 12022.5

were mandatory. (See Pen. Code, former §§ 12022.5, subd. (c),

12022.53, subd. (h).) Effective January 1, 2018, Senate Bill

No. 620 (2017–2018 Reg. Sess.) (Senate Bill No. 620) amended

Penal Code sections 12022.53 and 12022.5 to provide “in the

interest of justice pursuant to Section 1385,” the discretion to

“strike or dismiss an enhancement otherwise required to be

imposed by this section.” (Stats. 2017, ch. 682, §§ 1, 2; Pen.

Code, §§ 12022.5, subd. (c), 12022.53, subd. (h).) Because Jasso’s

judgment of conviction was not final when Senate Bill No. 620

took effect, he is entitled to retroactive application of its grant of

discretion to strike the firearm enhancements. (See People v.

Brown (2012) 54 Cal.4th 314, 323–324.)

A remand is required unless the record shows that the

trial court clearly indicated when it originally sentenced Jasso

that it would not in any event have stricken the firearm

enhancement. (See People v. Mataele (2022) 13 Cal.5th 372,

437.) As the Attorney General concedes, nothing in the record

rules out the possibility that the court would exercise its

discretion to strike the firearm enhancements. A limited

remand is appropriate to allow the trial court to consider

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whether to exercise its discretion to strike the firearm

enhancements. (Id. at pp. 437–438; see People v. McDavid

(2024) 15 Cal.5th 1015, 1020; People v. Tirado (2022) 12 Cal.5th

688, 700.)

III. DISPOSITION

We affirm the death judgment and remand to allow the

trial court to consider whether to strike the firearm

enhancements under the discretion conferred by Senate Bill

No. 620.

KRUGER, J.

We Concur:

GUERRERO, C. J.

CORRIGAN, J.

LIU, J.

GROBAN, J.

JENKINS, J.

EVANS, J.

75

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion People v. Jasso

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal XX

Original Proceeding

Review Granted (published)

Review Granted (unpublished)

Rehearing Granted

__________________________________________________________

Opinion No. S179454

Date Filed: April 3, 2025

__________________________________________________________

Court: Superior

County: Riverside

Judge: Richard A. Erwood

__________________________________________________________

Counsel:

Glen Niemy, under appointment by the Supreme Court, for Defendant

and Appellant.

Kamala D. Harris and Rob Bonta, Attorneys General, Gerald A. Engler

and Lance E. Winters, Chief Assistant Attorneys General, Julie L.

Garland and James William Bilderback II, Assistant Attorney

General, Holly D. Wilkens, Meredith S. White, Michael T. Murphy and

Paige B. Hazard, Deputy Attorneys General, for Plaintiff and

Respondent.

Counsel who argued in Supreme Court (not intended for

publication with opinion):

Glen Niemy

Attorney at Law

8 Main Street #201

Berwick, ME 03901

(207) 699-9713

Paige B. Hazard

Deputy Attorney General

600 West Broadway, Suite 1800

San Diego, CA 92101

(619) 738-9053