People v. Barrett

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSEPH ANTHONY BARRETT,

Defendant and Appellant.

S124131

Imperial County Superior Court

CF5733

June 23, 2025

Justice Groban authored the opinion of the Court, in which

Chief Justice Guerrero and Justices Corrigan, Liu, Kruger,

Jenkins, and Evans concurred.

PEOPLE v. BARRETT

S124131

Opinion of the Court by Groban, J.

A jury convicted defendant Joseph Anthony Barrett of first

degree murder (Pen. Code,1 § 187), aggravated assault by a life

prisoner (§ 4500), and two counts of possession of a deadly

weapon by a prisoner (§ 4502). It found true special

circumstances for a prior murder (§ 190.2, subds. (a)(2)) and an

intentional killing while lying in wait (§ 190.2, subd. (a)(15)). At

the penalty phase, the jury returned death verdicts for the

special-circumstance murder and the aggravated assault by a

life prisoner counts. The court denied defendant’s automatic

motion to modify the verdict (§ 190.4, subd. (e)), as well as a

motion for a new trial, imposed the death sentence for the

murder, and stayed the remaining terms. This appeal is

automatic. (§ 1239, subd. (b).) For the reasons that follow, we

affirm the judgment in its entirety.

I. FACTUAL BACKGROUND2

In the early morning hours of April 9, 1996, Thomas

Richmond was found nonresponsive in the cell he shared with

defendant at Calipatria State Prison (Calipatria). Richmond

had suffered multiple stab wounds. Defendant admitted

1

All further undesignated statutory references are to the

Penal Code.

2

Further factual and procedural background is provided

throughout the opinion as relevant to particular claims.

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stabbing Richmond but asserted that he did so in self-defense.

In July 1998, defendant was indicted for first degree

premeditated murder, aggravated assault by a life prisoner, and

two counts of deadly weapon possession, with special

circumstances for a prior murder and lying-in-wait murder. On

December 1, 2003, the prosecution began presenting its guilt

phase case-in-chief. The prosecution theorized that defendant

killed Richmond, not in self-defense, but because he knew

Richmond was an informant or “snitch” working with prison

staff. In January 2004, the jury found defendant guilty as

charged and found both special circumstance allegations to be

true. The penalty phase began on February 3, 2004. On March

10, 2004, the jury returned death verdicts for the special-

circumstance murder and aggravated assault by a life prisoner

convictions. The trial court imposed a death sentence for the

murder and imposed and stayed a death sentence for the

aggravated assault. The trial court also imposed and stayed

determinate upper terms of eight years for each of the weapon

possession counts.

A. Guilt Phase

1. Prosecution Evidence

In February 1996, Richmond was an inmate housed in the

general population at Calipatria. On February 29, 1996,

Richmond told Correctional Officer Jason Longcor that “he was

holding weapons” in his cell. Longcor advised Richmond to

return to his cell. Longcor did not immediately search

Richmond’s cell because he did not want other inmates to

suspect Richmond of being a “snitch.” Later, Longcor and

Correctional Sergeant Timothy Borem removed Richmond and

his cellmate from their cell and put them in separate showers.

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The officers searched Richmond and confiscated two inmate

manufactured plexiglass knives that Richmond had hidden in

his clothing. No weapons were recovered from Richmond’s cell.

In a subsequent interview with Borem, Richmond

explained that an unidentified inmate told him there were

weapons hidden in Richmond’s mattress and instructed

Richmond to hold onto them. Richmond told prison officials

about the weapons because he did not want to be caught with

them; he said he had been “ ‘threatened by a few people about

holding’ ” the weapons.

Longcor filled out a rules violation report, or “115,” on

Richmond, but did not include in his report that Richmond

voluntarily gave up the weapons since such information could

put Richmond at risk of being assaulted by other inmates.

Thereafter, Richmond was sent to the prison’s Administrative

Segregation Unit, or “Ad Seg,” where a general population

inmate is placed for either a rules violation, i.e., a “management

case,” or for protective purposes. Correctional Lieutenant Glenn

Trujillo was in charge of the Ad Seg unit at the time. He

processed Richmond as a management case; no one told Trujillo

that Richmond had voluntarily given up weapons, a fact that

would have made Trujillo consider Richmond for protective

placement.

On April 9, 1996, Richmond was housed with defendant in

cell 146 of Calipatria’s Ad Seg. At around 2:00 a.m., as

Correctional Officer Jeffrey Wysocki conducted his second count

of inmates, he looked into cell 146 and observed Richmond on

the top bunk bed and defendant on the lower bunk. Wysocki did

not hear anyone “screaming for help” or see anything unusual

thereafter. When Wysocki and Correctional Officer Robert Avila

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did their third count at approximately 4:45 a.m., the light was

on in cell 146 and defendant was standing at the door of the cell

in his boxer shorts. The officers then observed Richmond sitting

on the lower bunk; he was “slumped over” and had visible stab

wounds to his chest. From Wysocki’s viewpoint at the cell door,

the cell “looked ordinary and neat.” He had never seen a cell

look “as ordinary as Cell 146 did on April the 9th of 1996” after

a cell fight. Wysocki addressed defendant, “ ‘Your celly doesn’t

look too fucking good.’ ” Defendant replied, “ ‘Well, he’s not.’ ”

To Wysocki, defendant seemed to be acting normally. Neither

Wysocki nor Avila observed any scratches on defendant.

Wysocki and Avila left to advise Correctional Sergeant Fred

Hazel, who was in the control booth, of the situation.

Wysocki, Avila, and Hazel thereafter returned to cell 146,

where they found defendant eating an apple. Defendant was

removed from cell 146 and placed in a holding cell. As Avila

escorted defendant to the holding cell, an inmate yelled out to

him, “ ‘what is wrong with your celly?’ ” Defendant “didn’t say

nothing. He just smiled and kept walking.” Defendant did not

show any indications of having recently been in a struggle nor

was there any sign of a struggle in the cell.

In cell 146, Hazel observed Richmond “leaning” on the

lower bunk bed with his head on the desk. Hazel observed four

wounds to the right side of Richmond’s chest; his feet were in “a

pool of what appeared to be coagulated blood.” Hazel could not

find a camera to take pictures of the cell but testified that cell

146 did not look “trashed,” as would be expected after a cell fight.

After defendant was escorted out of cell 146, Wysocki,

Hazel and a medical technical assistant, Michael Greene,

entered the cell to check on Richmond. Greene placed Richmond

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on the floor. Greene checked Richmond’s vital signs; he had no

pulse, was cold to the touch, and exhibited no signs of life.

Greene administered cardiopulmonary resuscitation (CPR), but

Richmond was unresponsive. Greene observed that rigor mortis

was setting in. After Greene unsuccessfully administered CPR,

an ambulance arrived to transport Richmond to the prison

emergency room. Greene recorded that Richmond had six chest

wounds, puncture wounds to his abdomen and shoulder, and a

wound on the left side of his face.

Joann Huelsen, a registered nurse, was working in the

prison emergency room on the morning of April 9, 1996. She

testified that Richmond showed no signs of life upon his arrival

to the emergency room at around 5:15 a.m., but “there was an

unstated rule that no one died on grounds.” Richmond was

transported by ambulance at about 5:50 a.m. to Pioneers

Memorial Hospital. He was pronounced dead while in route to

the hospital.

On the morning of April 9, 1996, Ralph Smith, an

investigator with the Coroner’s Division of the Imperial County

Sheriff’s Office, was called to Pioneers Memorial Hospital to

investigate Richmond’s death. Upon his arrival at the hospital

at 7:19 a.m., he preliminarily examined Richmond’s body.

Richmond was five feet, nine inches tall, and weighed 160

pounds. He had visible stab wounds to his face, neck, chest, and

left hip. Based on rigor mortis to Richmond’s neck and

shoulders and some lividity, Smith opined he had been dead for

at least a couple of hours, but no more than three hours.

In the meantime, while defendant was in the holding cell,

Correctional Officers Raymond Leon and William Brumbaugh

observed him squatting down and looking around, which raised

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their suspicions. The officers decided defendant should be x-

rayed for contraband. Brumbaugh asked defendant how his

cellmate was doing, and defendant said he had “ ‘steel

poisoning.’ ”

Marco Pineda was working as an x-ray technologist at

Calipatria on April 9, 1996 when defendant was brought to the

infirmary for an x-ray. Pineda took an x-ray of defendant’s

pelvis and abdomen. Based on his training and experience with

x-rays, Pineda suspected defendant was hiding contraband in

his body. Defendant was then placed on “contraband watch.”

Correctional Officer William Wright oversaw defendant while

he was on contraband watch. Defendant called Wright over to

his cell in the infirmary and said, “ ‘Here is the weapon’ ” and

slid a razor blade with some tape for a handle under the cell

door.

At about 8:50 a.m. on April 9, 1996, Katrina Sweet, a

medical technical assistant working in Ad Seg at Calipatria, was

called to perform an examination of defendant. Defendant

refused to allow her to examine him because he preferred to be

examined by a male. Sweet did not see any wounds on

defendant. Defendant subsequently refused to allow a male

medical technical assistant, Roberto Victa, to examine him.

Victa observed some open blister-like sores on defendant’s

hands, but his hands were not swollen or bruised. Victa did not

observe any defensive wounds on defendant.

Robert Swetich, a correctional officer with the Calipatria

Security and Investigations Unit, also met with defendant on

the morning of April 9, 1996. He did not recall seeing any

defensive wounds on defendant. According to Swetich,

defendant appeared calm and acted arrogantly, joking about

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Swetich’s wife. Richmond’s death was the first homicide

Swetich had investigated. He recorded a video of cell 146 and

its contents on the day of Richmond’s death, which was played

for the jury. There appeared to be blood on the floor, underneath

the desk, and on the chair, and blood spatter on the wall. Both

mattresses and the bed linens were on the lower bunk; there was

blood on the sheets and pillowcases. Swetich did not find any

weapons or contraband. The cell looked neater than was typical

after a cell fight. Swetich testified that he did not interview any

inmates housed in nearby cells.

At around 8:45 a.m. on April 9, 1996, Samuel Tozer, a

plumber at Calipatria, arrived at the Ad Seg building and was

directed to cell 146 to retrieve an item from the toilet. He pulled

a piece of metal with white cloth on it from the toilet in cell 146;

it could not have come from any other cell.

At around 9:15 a.m. on April 9, 1996, Correctional Officer

Raymond Leon arrived in Ad Seg to pick up the item retrieved

by Tozer. Leon photographed the item and described it as being

a piece of flat metal stock measuring about eight and one-half

inches long, three quarters of an inch wide, and one-inch thick

at its thickest point. The metal was sharpened to a point on one

end, with a “handle” on the other end consisting of “material

wrapped around one end to use so that a person won’t injure

their hand[.]” Leon photographed the steel desk in cell 146,

which had a missing piece of metal that was consistent in size

with “the inmate-manufactured weapon” that Leon retrieved

from Tozer. Leon testified that inmates can sharpen weapons

on the concrete floor, ceiling, and walls of their cells.

Dr. Christopher Swalwell, a deputy medical examiner,

performed an autopsy of Richmond’s body on April 9, 1996.

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Richmond had a stab wound on the left side of his cheek, as well

as one on the back of his head that went through the scalp. He

also had four stab wounds on the right side of his chest, a stab

wound on his left arm near his shoulder, a couple of wounds on

the left side of his back, two wounds on the left side of his chest,

and a wound on his left hip. He had two cuts on his hands. Dr.

Swalwell testified that Richmond’s cause of death was “the

multiple stab wounds.” Six of Richmond’s stab wounds were

potentially fatal. Dr. Swalwell could not determine where

Richmond was in the cell when he received his wounds.

Richmond’s wounds were consistent with having been inflicted

during a struggle. Based on a hypothetical describing a weapon

consistent with that retrieved by Tozer from the toilet in cell

146, Swalwell opined that such a weapon could have been used

to inflict Richmond’s wounds.

Ray Vialpando, a correctional case records analyst

assigned to Calipatria, testified that defendant was serving an

indeterminate 26-year-to-life sentence for a 1987 conviction at

the time of Richmond’s death.

2. Defense Evidence

Vialpando was recalled by the defense. He testified that

Richmond had been convicted of three counts of second degree

robbery and one count of burglary, for which he was sentenced

to 13 years in prison. These serious felony convictions could

qualify as strikes.

Defendant testified on his own behalf. He explained how

prisoners generally “segregate themselves according to race or

gang affiliation.” Defendant had never been in a gang. He could

be said to be a “wood,” or a White inmate in good standing with

other White inmates. “Snitching” on a cellmate would probably

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be a violation of acceptable behavior within any prison

community.

Defendant met Richmond when they became cellmates in

Ad Seg in March of 1996. The men exchanged “114s,” which are

“just basically institutional paperwork with a summary of why

you’re being placed in ad seg.” Defendant explained to

Richmond how Ad Seg worked and “[l]et him know who’s here

as far as our people [other White inmates] were concerned and

who was all right.” Richmond told defendant he was in Ad Seg

because he claimed responsibility for knives found in his cell,

even though the knives did not belong to him. Defendant and

Richmond got along well and committed rules violations

together, including a joint attempt to bring weapons to the yard.

Following a “flooding” incident, defendant and Richmond were

separated and defendant was moved to cell 146. During the

time they were separated from each other, defendant witnessed

Richmond get extracted from his newly assigned cell; Richmond

told defendant he was extracted for possessing weapons.

Defendant also became aware that Richmond “gass[ed] a couple

of officers,” though he did not personally witness the gassing.

Defendant defined “gassing” as “[t]hrowing any liquid substance

on someone. It could be any combination of substances, some of

them foul.”

Defendant started making a knife from the steel desk in

cell 146 when Richmond was not housed with him. Richmond

was later rehoused with defendant in cell 146 and defendant

“enjoyed his company.” Defendant could not hide the fact that

he was making a weapon and Richmond assisted defendant in

sharpening the knife. Defendant had Richmond stop

sharpening the knife when he became suspicious of Richmond

receiving “kites,” or inmate written notes, that Richmond did

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not share with him. It was “courtesy” to share kites with your

cellmate. Richmond offered no explanation for his behavior.

Richmond also began acting “uptight” and “tense,” as though

“something was on his mind.” Defendant did not inquire with

Richmond about his behavior because such an inquiry could be

viewed as disrespectful. Defendant did not like “what was going

on,” but gave Richmond “the benefit of the doubt.”

Defendant testified that, on April 8, 1996, Richmond

received an unwrapped knife with a handle through the side of

their cell door. An unwrapped knife is intended for immediate

use and defendant considered stabbing Richmond right then.

Defendant “thought for sure it was a setup for [Richmond] to use

the knife.” Richmond told defendant he was asked to hold the

knife for another inmate. Defendant speculated that Richmond

did not immediately attack him because defendant had his own

knife in his hand at the time. Defendant did not stab Richmond

at that point because he was not sure what Richmond’s

intentions were and he could think of no reason why Richmond

would want to attack him. Defendant eventually got on the

bottom bunk and put his own knife under his pillow. He did not

get under the covers as that would put him “in a more

vulnerable position.” Richmond got in the top bunk with his

knife.

After the first count of inmates, “something very unusual

happened.” Richmond “slid his legs over the top bunk by my

desk . . . [a]nd he stepped down onto the desk,” which was an

uncommon way to exit the bunk. “There was no doubt in

[defendant’s] mind that” he “was going to come after me.”

Defendant grabbed his knife and jumped up. He saw Richmond

had a knife in his left hand. Defendant, who was afraid and

thinking Richmond was going to attack him, stabbed Richmond.

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Defendant stabbed Richmond “several times” until Richmond

climbed back onto the top bunk. Defendant continued to stab

Richmond “while he was on the top bunk.” Richmond grabbed

the mattress off the top bunk and tried to block defendant as he

came down off the top bunk to the desk again. Richmond still

had his knife. Richmond and defendant struggled over the

mattress and defendant continued to try to strike Richmond.

Richmond ended up “either falling or sitting to the edge of the

bunk.” They were both breathing heavily. They stared at each

other for about a minute and Richmond started to get up.

Defendant struck Richmond in the chest as he was trying to get

up. Neither Richmond nor defendant called for help, as that is

“not done.” Richmond fell backwards, and defendant struck him

several more times. Defendant was “afraid of what he may do.”

Defendant stopped when Richmond stopped moving.

After it was apparent Richmond was not breathing,

defendant looked to see if he had been wounded. Defendant had

not. Defendant then washed the blood off himself and flushed

his clothes down the toilet. Defendant did not touch Richmond.

He found Richmond’s knife under the bunk; he “snapped it in

half and flushed it down the toilet.” Defendant then broke the

handle off his knife and flushed it, followed by the blade, down

the toilet. Defendant did not want correctional officers finding

any weapons. He explained, “if you can keep them from getting

it, you don’t let them get it.” Defendant straightened up the cell

and looked for other contraband to hide. The officers came by

the cell for second count, but did not stop. Defendant “was

flabbergasted.” He did not know why they did not stop. He

thought “[m]aybe they had something to do with it” and “got

paranoid.” Defendant then turned on the cell light and stood by

the door for third count. He did not recall what words he

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exchanged with Officer Wysocki. Defendant eats when he is

nervous, so he began eating an apple. Defendant “absolutely”

did not tell anyone Richmond died from “steel poisoning.” He

initially refused to undergo a physical examination without a

lawyer and due to modesty, but he eventually complied.

On cross-examination, defendant admitted killing

Richmond. Defendant also admitted several prior acts of

misconduct while incarcerated. In February 1995, he

approached an inmate from behind and “stabbed, I think it was

a child abuser several times in the back while he was reading

Bible Scriptures on the yard.” In May 1995, he was caught with

a piece of metal in his “anal cavity.” In August 1995, defendant

“slashed” another inmate. In September 1995, defendant was

found in possession of a weapon. In February 1996, defendant

assaulted another inmate in the yard. In February 1999,

defendant was found in possession of weapons. In January

2000, a weapon was found in defendant’s cell wall. In February

2000, defendant possessed razorblades. In March 2002,

defendant “assaulted an inmate with a weapon on the yard.” He

could not recall specifically but testified that the weapon was

“[p]robably a slashing instrument.” Defendant denied that the

razorblades he possessed on two other occasions were weapons.

Returning to the circumstances of Richmond’s killing,

defendant testified that, on April 9, 1996, he continued

attacking Richmond as Richmond retreated to the top bunk

because Richmond still had his knife. Defendant could not

remember if he continued striking Richmond while he was on

the top bunk, but he “may have.” The whole struggle lasted “[a]

brief time.” Defendant did not call for help. He sat in the cell

with Richmond for “several hours,” and cleaned up while

Richmond was dead. Defendant destroyed Richmond’s weapon.

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Defendant testified that it was a “fair statement,” that he

destroyed the “one piece of evidence that may have exonerated”

him. Defendant acknowledged the plumber only retrieved his

weapon from the toilet in cell 146.

On redirect, defendant testified that, before Richmond’s

death, he had received no negative information about Richmond.

Richmond won defendant’s trust by going to the yard with him

with a weapon. Richmond’s other acts of weapon possession and

“gassing” officers showed defendant that “[h]e was trying to

ingratiate himself to the people around him.” These acts were

inconsistent with “snitching on white inmates or giving up

voluntary weapons.” Defendant “keistered” a weapon away

from the scene after Richmond’s killing because he felt his life

might be in continued danger.

Lisa DiMeo, a forensic specialist, testified as a defense

expert. She underwent specialized training in bloodstain

analysis and crime scene reconstruction. She described what it

meant to “secure a crime scene” and “protect the integrity of the

evidence that’s within that crime scene.” She reviewed

documents in defendant’s case, as well as photographs and a

video of the scene. She opined that the processing of the crime

scene “was less than perfect. It was adequate for what I needed

to do, but there — there should have been more done. It would

have answered more questions.” According to DiMeo, “[m]ore

attention should have been given to the integrity of the evidence,

the construction of the mattress, the construction of the bedding

and their position. The bloodstain evidence was not

photographed properly with proper equipment.” Not all of the

bedding and clothing was preserved, some blankets were

improperly labeled, and some blood stains were not properly

documented. Based on her review of the evidence, “all the blood

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evidence at the scene and the evidence of, you know, items

strewn all over the place, it’s obvious that there was a fight.”

DiMeo opined that “the cuts on the [bed]sheet” evidenced that

Richmond had a weapon. If the weapon were caught in the

sheet, that would account for defendant’s lack of injuries.

On cross-examination, DiMeo said she spoke briefly to

defendant, but not about her analysis in the case. DiMeo did

“[n]ot for a fact” know that Richmond had a weapon.

Christopher Poore, a former Calipatria inmate who was on

death row at San Quentin State Prison at the time of

defendant’s trial, testified that he knew defendant and

Richmond when he was in Ad Seg at Calipatria from 1995

through 1997. Richmond communicated with Poore through

kites that he wanted a weapon and wanted to cell up with

defendant so he could kill him. Poore saw a weapon being

transferred to Richmond “on the line.” On the “night of April

8th, April 9th,” Poore “woke up to the sound of the struggle.”

During cross-examination, Poore testified that he never told

defendant that Richmond wanted to kill him. Poore saw a

couple unpackaged knives moving around the night of

Richmond’s death, “the smaller one” went to cell 146.

3. Prosecution Rebuttal

In rebuttal, the prosecution called three inmates to testify.

Robert Wilson was housed in Ad Seg at Calipatria at the time of

Richmond’s death and shared a cell with Poore. Wilson did not

see any weapons go across the floor on the evening of April 8,

1996. Wilson testified that he and Poore received a few kites

from defendant prior to April 9, 1996. The kites indicated that

defendant thought Richmond was a “rat” and was going to “deal

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with him.” Richmond never sent a kite into Wilson’s cell asking

for a weapon.

Inmate Michael Hill testified that he was in Ad Seg at

Calipatria in April 1996; his cell was connected by air vents to

the cell defendant shared with Richmond. Hill talked to

defendant through the vents. He did not have any direct

conversations with defendant about why he killed Richmond.

Hill had information that defendant was “going to hit”

Richmond because Richmond got himself sent to Ad Seg by

turning over “two knives” to the “cops” to avoid paying a debt on

“C yard.” Hill and defendant argued over whether defendant

had enough proof to kill Richmond. Hill suggested defendant

send Richmond out to “hit” someone on the yard as a “heart

check.” Defendant instead told Hill he would kill Richmond.3

On the morning of April 9, 1996, Hill woke up to Richmond

“yelling ‘why?’ ” He also heard defendant call out his (Hill’s)

name because he wanted help removing the knife from his cell.

Inmate James Magee testified that he met defendant at

Calipatria in 1993 and then reunited with him at Pelican Bay

Prison in 1997. Defendant moved into the cell next to Magee’s

cell at Pelican Bay. Magee was an “affiliate” of the Aryan

Brotherhood, “the primary white prison gang in California.”

Magee “ran that particular [cell] block” where he and defendant

were housed, so defendant would talk to him. Defendant was

not in the Aryan Brotherhood, but the Aryan Brotherhood gang

3

The Attorney General concedes that Hill’s testimony “was

contradictory at times.” For instance, “Hill testified that he and

[defendant] argued through the vents about the killing of

Richmond, [but] he also denied having such conversations with

[defendant].”

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controlled White inmates “in maximum security prisons where

they have a presence.” Defendant “had got[ten]wind” that the

Aryan Brotherhood was questioning the validity of “his murder”

and whether he “conduct[ed] a thorough enough investigation

before he committed his murder.” Defendant wanted to “explain

his case” to Magee so that a murder contract would not be put

out on his life. The Aryan Brotherhood has “standing orders to

kill all rats,” but an inmate who commits a killing that was not

“sanctioned” by the Aryan Brotherhood, like Richmond’s killing,

would have to “justify his murder.” Magee testified that

defendant told him he murdered Richmond because he had

information that Richmond was “a rat.” Defendant never

mentioned self-defense or there being two weapons. He told

Magee that he had cut a knife from a desk and stabbed

Richmond in the heart and liver. Defendant thought the guards’

reactions to seeing Richmond’s dead body were “rather

amusing.”

Elissa Mayo, a crime scene reconstructionist and senior

criminalist with the Department of Justice testified that, on her

review of the evidence, there was no indication more than one

weapon was used during the events in cell 146. Mayo explained,

“[t]he evidence was not taken or collected in a manner one would

normally expect if a scene was processed properly,” so she could

“make only a few determinations from the evidence.”

Vialpando, the case records analyst at Calipatria, was

recalled by the prosecution. He testified that Richmond had no

documented in-prison misbehavior until he entered Ad Seg in

February of 1996.

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4. Defense Surrebuttal

On surrebuttal, defendant denied making the statements

that Hill, Wilson, and Magee attributed to him. Defendant

knew Hill and Magee to be well-acquainted with each other;

they were “homeboys from Sacramento.” Defendant “had no

idea” he and Richmond would be in “a mortal conflict” until April

9, 1996.

Inmate Edward Vargas, who was housed next door to

Richmond and defendant in Ad Seg at Calipatria in April 1996,

did not remember having a conversation with an officer about

Richmond’s death. He did not remember telling an officer

shortly after the incident that he knew “everything about it.” He

did not recall telling an officer that “ ‘[t]he knife came from an

inmate upstairs by the name of Shorty.’ ”

Michael Capeci, a sworn peace officer working as an

investigator for the District Attorney’s Office, testified that he

had contacted Vargas at the time of Richmond’s death. Vargas

told Capeci he was “apprehensive on testifying,” but explained

to Capeci that there was a hole in the wall separating his cell

from cell 146. Vargas looked through the hole at one point and

saw Richmond sharpening a “sharp instrument.” Vargas said

he knew the knife that killed Richmond came from an “inmate

upstairs by the name of Shorty[.]” During cross-examination by

the prosecutor, Capeci testified that Vargas told him that he

heard Richmond plead for his life on the night of the assault,

saying “ ‘Stop. Why are you doing that?’ ” According to Vargas,

there were 10 to 15 minute periods of quiet before the assault

would resume. Capeci understood Vargas to be saying that he

saw Richmond sharpening a weapon on the night of his death.

Vargas also heard Richmond pounding on the cell door and

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yelling, “ ‘Get me out of here[.]’ ” Vargas said he heard

defendant call Richmond “[a] little bitch.”

The prosecution then called Capeci as its own witness.

Capeci testified that Vargas only described one weapon to him;

he never said that both defendant and Richmond had weapons.

Vargas described “Mr. Richmond as a harmless person.” Vargas

wanted to get help for Richmond during the assault, “but he just

didn’t do it.” On cross-examination, Capeci testified that,

according to the transcript of his interview with Vargas, Vargas

said he saw “a knife going into [cell] 146 from above.” Apart

from Vargas’s statement, Capeci did not know if there was any

evidence to support that “Richmond was banging on the cell door

during the alleged assault.”

B. Prior Murder Special Circumstance

During a bifurcated proceeding, the parties stipulated

that, in 1987, defendant was convicted of first degree murder in

San Francisco County Superior Court.

C. Penalty Phase

1. Prosecution Evidence

a. Juvenile Crimes

Kenneth Condencia testified that, on April 19, 1982, at

around 3:00 p.m., defendant, armed with a knife, and another

individual robbed him as he was getting off a bus in San

Francisco. Defendant ordered Condencia, who was 14 years old

at the time, to give him all of his money. Condencia complied,

giving defendant all he had, which was less than a dollar.

Defendant and his cohort then ordered Condencia to remove his

clothes, which he did, except for his pants. Defendant and his

companion then left. On cross-examination, Condencia said

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defendant did not attempt to harm him. He also said defendant

appeared to be his age (defendant was 12 years old at the time).

Andrew Dimitrou testified that, at approximately 3:15

p.m. on the same day Condencia was robbed (April 19, 1982), he

and his friend Ebenezer were robbed by defendant and his

cohort “Mr. LaMar” in San Francisco’s Marina District.

Dimitrou was 11 years old at the time. Defendant and Mr.

LaMar confronted Dimitrou and Ebenezer with a brick and a

knife and demanded their money. Dimitrou and Ebenezer

complied, handing over approximately $7. Defendant and Mr.

LaMar also took Ebenezer’s jacket and backpack. During cross-

examination, Dimitrou said he was not harmed aside from

“losing a dollar.”

Christopher Spychala testified that, at about 8:00 p.m. on

October 11, 1986, defendant approached him and his female

friend, who apparently knew defendant, as they walked down

Market Street in San Francisco. The three continued to walk

and encountered “some African Americans on the street.”

Defendant confronted them, “calling them [n-words]”4 as he held

a knife behind his back. Spychala and his female friend “didn’t

want to be involved in what was going on” and “walked off.”

Defendant caught up with them and asked Spychala’s friend to

buy him beer. She told defendant to buy his own beer and

defendant said, “ ‘Well, fuck you. What’s your boyfriend going

to do?’ ” Defendant then attacked Spychala, who had said

nothing, with his knife. Spychala threw up his hand and

defendant’s knife cut the left side of Spychala’s neck and

shoulder area. Spychala was able to escape down the street.

4

Epithet redacted.

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On cross-examination, Spychala admitted he had been

convicted of several drug offenses.

Frank McCoy, a retired San Francisco police detective,

testified that he responded to the scene of James (Jim) Jackson’s

homicide on October 5, 1986. Jackson was killed with a 10-

pound dumbbell in his apartment. Defendant’s fingerprints

were found on the dumbbell. McCoy came into contact with

defendant on October 11, 1986, after defendant was

apprehended for Spychala’s assault. On that date, McCoy

interrogated defendant, who confessed in detail to killing

Jackson (see more, post, at pp. 147–151). An audiotape of

defendant’s confession was played for the jury, accompanied by

a transcript of the interrogation.

b. In-Prison Misconduct

The prosecution called several correctional officers to

testify about instances of in-prison misconduct by defendant

that occurred between 1991 and 2003. On nine different

occasions, defendant was found in possession of weapons or

“weapon stock.” On six different occasions, defendant assaulted

fellow inmates, including a February 1995 incident during

which he stabbed another inmate in the back in the yard. On

four different occasions, defendant assaulted correctional

officers, including punching a correctional officer in the face in

February 1997.

c. Victim Impact Testimony

The prosecutor presented victim impact testimony from

Richmond’s mother and sisters. Richmond’s mother, Carlyn

Ann Cox, “just crumbled” when she found out her son had died.

Since her son’s death, she had been “under a doctor’s care for my

nerves and my whole body is just — I have a heart problem

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now.” Cox testified, “My family is not the same anymore. I’m

not the same. [¶] I mean, he took my heart. Tommy was my

heart. He took that.”

Richmond’s older sister, Kimberly Ann Colangelo, “broke”

when she found out about her brother’s death. Richmond was

the “only male left in the family” that her children could look up

to and he kept the family together. After her brother’s death,

her “mom mentally broke.” When her brother died, the family

was unable to emotionally reconnect; “[h]e was everything to

us.”

Richmond’s younger sister, Christina Nicole Richmond,

testified that she felt “alone” after her brother’s passing; “when

I lost my brother I lost my mom, too. And I need her, too.” The

family had once been “so close and strong,” but was now “so far

apart.”

2. Defense Evidence

Charles Rand, defendant’s former juvenile probation

officer, testified about the challenges defendant faced growing

up and how defendant came to be assigned to him. (See more,

post, at pp. 160–162.) Rand was able to meet with defendant the

day of his testimony and believed defendant had shown some

positive growth.

James Esten, a retired correctional consultant with the

California Department of Corrections and Rehabilitation,

testified about the secure housing conditions at Pelican Bay in

which defendant would likely live if sentenced to life without the

possibility of parole.

Defendant testified on his own behalf. He took “sole

responsibility for where I’m at” and did not want his mom and

sister coming in and pleading for his life. Defendant did not

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believe in the legal system. Defendant hoped that his

experience could be of “benefit in some way.” Defendant had

never been a gang member. Defendant detailed some aspects of

his childhood, including moves to different homes. Defendant

spoke about his crimes as a juvenile and the realities of prison

life. He read a statement in allocution to the jury, in which he

said, “I pose no danger to anyone who is not a threat to me in

some way.” The assaults he committed in the prison yard were

“mutual situations.” During the prosecutor's cross-examination,

Barrett admitted to assaulting an elderly man and beating him

with his own cane around the same time as defendant’s other

juvenile crimes.

II. DISCUSSION

A. Jury Selection Issues

1. Motion to Exclude All Correctional Department

Employees from the Jury Pool

Defendant contends the trial court’s refusal to excuse all

employees of the California Department of Corrections and

Rehabilitation (CDCR) as prospective jurors deprived him of his

right to an impartial jury. According to defendant, “the average

person employed by the CDC[R] would be economically, socially,

and emotionally identified with the Department” and therefore

incapable of being impartial in his in-prison murder case.

a. Background

In August 2003, during a hearing on pretrial motions,

defense counsel first raised the possibility of excluding all CDCR

employees from the prospective jury pool. At that hearing, the

trial court observed that, because of the location of the trial,

there would be a “fair amount” of CDCR employees called for

jury duty. Defense counsel pointed out that, in his experience,

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the parties often stipulate to excluding CDCR employees as

jurors. The trial court responded that it could not “exclude a

group of people like that on speculation. I’m not going to do it.”

The court further noted that “[y]ou can’t decide which way these

people will go. They all have their own mind.” The court

explained that “we routinely, as long as the prisons have been

here in this county, have corrections officers and other [CDCR]

personnel sit as jurors in criminal cases.” The trial court told

defense counsel that “unless somebody can find some specific

law that says correctional officers or any other [CDCR] employee

can’t sit on a criminal case, I’m going to allow them on the jury

panel.” It would “allow maybe a little leeway on voir dire.”

Thereafter, on October 2, 2003, defense counsel asked the

court to remove all CDCR personnel as prospective jurors,

emphasizing that several witnesses would be correctional

officers. The trial court denied the request, stating it was not

“legally required” to exclude CDCR personnel and would instead

examine prospective jurors “one at a time” rather than “exclude

any cognizable segment of the population of Imperial County. I

want to talk to them, see what they say.”

During Hovey5 voir dire, which began on October 9, 2003,

the trial court excused for cause several CDCR employees whom

it concluded could not be impartial. After Hovey voir dire

concluded, there remained at least 17 CDCR employees in the

prospective jury pool.

Before general voir dire, defendant filed a written motion

to exclude all remaining CDCR personnel. He asserted that

5

See Hovey v. Superior Court (1980) 28 Cal.3d 1, 80

(Hovey).

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“[p]ermitting employees of CDC[R], especially correction

officers, to sit as jurors in this case will violate the accused[’s]

rights to a fair and impartial jury. It would be equivalent to

letting inmates sit as jurors . . . .” Defendant underscored how

CDCR personnel would be implicitly biased as a result of their

interests in the case — they “investigated the incident, gathered

and processed evidence, secured it, and referred the matter to

the prosecuting authorities. They comprise a very substantial

number of the prosecution’s guilt and penalty phase witnesses,

including experts.” Moreover, CDCR employees would

presumably be aware of “security procedures in the court room

that are hidden from other jurors,” and are at greater risk of

exposure to outside information. According to defendant, CDCR

personnel “likely have predisposed belie[fs] that CDC[R] is a

dangerous place to work, as well as entrenched opinions

regarding prisoner assaults on staff or on each other,” “may be

familiar with prison codes,” “may have submitted information

concerning an inmate’s alleged gang activities,” “could possibly

end up working on death row,” and “are likely to be biased.”

The trial court heard and denied the motion. The trial

court noted that “every other small county in the state that has

a state prison . . . [treats an employee of CDCR] just like any

other prospective juror” and that it had already excused a large

number of CDCR employees during Hovey voir dire “because of

the number of witnesses that they have known or because of the

evidence, they’re biased.” Defense counsel repeated his

contention to the court that, in his experience, the parties

usually stipulate to excusing all correctional officers from the

jury panel in prosecutions involving in-prison offenses. The trial

court reiterated that “there is no case that says you can’t do this.

And to the extent they answer the questions correctly, I can’t

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treat them like a separate part of society and say, ‘You can’t be

on a jury.’ ” Defense counsel responded in part, “Well, I think

that common sense applies to the analysis of C.O.’s, especially

from Calipatria, that are sitting as potential jurors. I mean,

they’re going to make credibility findings against officers

conceivably. These are the same people they might need for

backup emergency situations. And make that in favor of

inmates?” The trial court understood counsel’s “concern [a]nd I

can see potentially that maybe this would become an issue for

the appellate court, but it hasn’t yet at any other part of the

state.” The trial court had “to assume people, when they answer

questions under oath, they’re being honest.”

At the close of jury selection, one CDCR employee, a

correctional officer from Centinela who had been employed by

the CDCR for 10 years, was seated on defendant’s jury as Juror

No. 12.

b. Failure to Remove CDCR Personnel from the

Jury Pool

Under the particular circumstances of his case, defendant

argues that the trial court was compelled to find all prospective

jurors who were CDCR personnel were impliedly biased as a

matter of law. The Attorney General contends defendant has

not preserved his claim that the trial court erred in denying his

blanket for-cause challenge to CDCR personnel because he did

not exhaust his remaining six peremptory challenges before his

jury was sworn in, nor did he express dissatisfaction with the

jury as constituted. As an initial matter, we agree that

defendant has forfeited his claim.

We have repeatedly held that, “[t]o preserve a contention

that the court erred in denying a challenge for cause to a

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prospective juror, the defendant must (1) exercise a peremptory

challenge to remove that prospective juror, (2) exhaust all

peremptory challenges or somehow justify the failure to do so,

and (3) express dissatisfaction with the jury that is ultimately

selected.” (People v. Rices (2017) 4 Cal.5th 49, 75, citing People

v. Souza (2012) 54 Cal.4th 90, 130; People v. Mills (2010)

48 Cal.4th 158, 186–187 & fn. 8.) Defendant acknowledges our

precedent in this regard, but he asserts that it is misconceived

and his failure to exhaust his peremptory challenges should be

excused because the trial court’s refusal to excuse all CDCR

employees precluded him from “intelligently exercis[ing] his

peremptory challenges.” Defendant’s arguments are

unavailing.

After the trial court denied defendant’s blanket challenge

to all CDCR personnel on the ground that challenges were

better pursued on an individual basis (see more below),

defendant used only 14 of his 20 peremptory challenges. During

general voir dire, he exercised seven peremptory challenges to

excuse CDCR employees from the jury pool and one CDCR

employee was excused for cause.6 However, defendant did not

challenge Juror No. 12 individually for cause and he did not use

a peremptory challenge to remove her. Nor did defendant

express dissatisfaction with the jury as ultimately constituted.

In other words, apart from the blanket challenge to all CDCR

personnel, the trial court was never asked by defense counsel to

remove Juror No. 12 and counsel never voiced dissatisfaction

6

This prospective juror was a fire captain at CDCR who

supervised inmates at Centinela; he was excused for cause after

acknowledging that he would immediately assume “officers”

were being truthful.

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with Juror No. 12 being seated on the jury. On this record,

defendant cannot now claim the trial court erred by retaining

Juror No. 12 on his jury.

Defendant asserts that, given the sheer number of CDCR

personnel in the jury pool, trial counsel was faced with the

impossible “choice of whether to preserve the strength of

whatever tactical decisions he had been able to make during

selection, knowing that one biased juror would remain on the

jury, or to strike Juror No. 12, and risk running out of

peremptory challenges while an even more biased CDCR

employee juror remained in the jury box, alongside other

undesirable prospective jurors who counsel would have also

excused if he had peremptory challenges remaining.” In

defendant’s view, “[t]hese circumstances justify counsel’s

difficult decision not to use the remaining six peremptory

challenges and should not result in the forfeiture of [his] right

to an impartial jury.” More specifically, defendant argues that,

at the time defense counsel accepted the jury, “six CDC[R]

employees lurking in the jury pool were far worse,” as they

expressed, inter alia, views in favor of the death penalty and one

prospective juror knew defendant. He admits, “it is conceivable

that some of these remaining CDC[R] employees might have

been removed for cause, [but] the actual likelihood was very

low.” He continues, “other remaining jurors who were not

CDC[R] employees could have also potentially been removed for

cause, increasing the probability that the six CDC[R] employees

would be seated. And while the jury pool contained about 50

more jurors, the prosecution had 11 peremptory challenges

remaining, allowing the state to excuse other non-CDC[R]

employees, further increasing the chances that CDC[R]

employees would be seated.”

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We are unpersuaded by defendant’s argument that, after

he used seven peremptory challenges to remove CDCR

employees, he was not reasonably able to challenge Juror No.

12, the only seated CDCR employee, due to the large number of

CDCR employees remaining in the jury pool. Defendant elected

to deplete a substantial number of his peremptory challenges

against a purportedly biased class, which he broadly identified

to include all CDCR employees. As explained below, the trial

court acted well within its discretion to deny a blanket challenge

to all CDCR employees, and to insist that the defendant

individually challenge particular CDCR employees, whom he

believed were properly subject to a challenge for cause for

additional reasons. If the defendant wished to preserve a

challenge on some narrower basis, for instance, due to

prospective jurors’ status as a correctional officer in a nearby

prison, or their familiarity with prosecution witnesses or the

facts of the case (or some combination thereof), he was obliged

to subsequently challenge jurors for cause on such a ground.

With respect to Juror No. 12 — and for that matter all the other

CDCR employees excluded via defense peremptory challenge —

he chose not to do so.

For these reasons, defendant’s arguments, by their very

terms, are speculative. It is unclear from the record that the

trial court would have rejected a cause challenge against Juror

No. 12, had defendant attempted to raise one, or how many

peremptory challenges defendant would have expended had he

raised (potentially successful) additional cause challenges based

on prospective jurors’ individual characteristics. We have

rejected similar efforts to justify, on speculation, trial counsel’s

failure to comply with the exhaustion requirement, and the

record here necessitates the same. (See, e.g., People v.

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Manibusan (2013) 58 Cal.4th 40, 61; People v. Hoyos (2007)

41 Cal.4th 872, 905; see also People v. Mills (2010) 48 Cal.4th

158, 186 [“acceptance of this excuse would swallow the

[exhaustion] rule entirely, for a defense attorney might in every

case wish to hold challenges in reserve for strategic reasons”].)

Thus, defendant’s contentions of erroneous jury inclusion are

forfeited. However, as described below, even if we were to reach

the merits, defendant cannot show error, let alone any prejudice,

because the trial court reasonably denied his blanket challenge

to CDCR personnel.

From the outset, it is important to underscore that, as a

general matter, there is no authority establishing that CDCR

personnel cannot sit as jurors in criminal cases. (Cf. People v.

Ledesma (2006) 39 Cal.4th 641, 670, fn. 4 (Ledesma) [explaining

that custodial officers are not statutorily excluded from jury

service in California, even though some law enforcement

officials are, citing former section 219, subdivision (a) of the

Code of Civil Procedure].) Instead, defendant’s claim “is one of

implied bias” under the particular circumstances of his case.

Defendant relies on four subdivisions of Code of Civil Procedure

section 229 to argue that all CDCR employees in his jury pool

were impliedly biased: “(1) where a prospective juror has an

employment relationship with a party (§ 229, subd. (b)); (2)

where a prospective juror has a direct interest in the outcome of

the litigation (§ 229, subd. (d)); (3) where a prospective juror has

a pre-existing unqualified opinion as to the merits of the case

based on knowledge of the material facts (§ 229, subd. (e)); and

(4) where a prospective juror harbors enmity or bias toward a

party (§ 229, subd. (f)).” He asserts that subdivision (b) offers

“the most straightforward grounds for finding implied bias.” As

relevant to defendant’s argument, subdivision (b) of Code of

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Civil Procedure provides in part that a challenge for implied bias

may be taken when a prospective juror stands “in the relation

of, or being the . . . employer and clerk . . . to either party.”

Defendant asserts that CDCR was “a party” within the meaning

of subdivision (b), rendering all employees thereof impliedly

biased. To support his position, defendant relies heavily on the

reasoning in People v. Terry (1994) 30 Cal.App.4th 97 (Terry).

In Terry, the defendant challenged for cause, pursuant to

Code of Civil Procedure section 229, subdivision (b)’s provision

for implied bias where a prospective juror stands in “relation of

attorney and client with either party or with the attorney for

either party,” a juror who was a deputy district attorney in the

same district attorney’s office representing the prosecution in

the case. The trial judge denied the challenge because the

juror’s answers on voir dire showed he could be impartial and

because “ ‘the People are a party, the district attorney is not a

party.’ ” (Terry, supra, 30 Cal.App.4th at p. 100.) The Court of

Appeal in Terry interpreted section 229 differently. In its view,

subdivision (b) could be read to support a finding of implied bias

where “the juror has had an attorney-client relationship with

one of the attorneys.” (Id. at p. 102.) By logical extension, this

would apply to attorneys at the same firm or public office

because “the relationship among attorneys of the same firm or

office is of a fiduciary and confidential nature essentially the

same as that of attorney-client.” (Ibid.) Terry reasoned that

“the thrust and purpose of section 229, if not perhaps its specific

wording, requires that an attorney who is a member of the firm

of counsel trying a case should not be permitted, over objection,

to serve on the jury.” (Id. at p. 103.) Nonetheless, the Terry

Court of Appeal concluded that the defendant waived any claim

of prejudice from the trial court’s error because he had used a

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peremptory challenge to dismiss the deputy district attorney in

question and he did not express dissatisfaction with the jury as

empaneled. (Id. at pp. 103–104.)

Defendant relies on Terry to argue that CDCR was

necessarily “a party” because “[t]he charged offenses occurred in

a CDC[R] prison. CDC[R] was the investigating agency; a

correctional officer was the chief investigator who documented

the scene using videotape, photographs, and drawings, and then

created a ‘reenactment’ video to ‘document’ what responding

correctional officers saw when they first approached the cell

where the alleged victim’s body was found, and CDC[R]

employees gathered the evidence against [defendant].

Apparently concluding that [defendant] did not act in self-

defense as he claimed, CDC[R] directly referred the matter to

the district attorney.” Several of these cited circumstances

arose by simple virtue of the fact that the killing occurred in a

cell at Calipatria; they would not appear to convert CDCR into

a “party,” just as the police department would not be considered

a party to a criminal prosecution for a crime committed outside

of a prison. (See People v. Punzalan (2003) 112 Cal.App.4th

1307, 1310 [“In criminal matters, the parties are the defendant

and the People of California. The arresting law enforcement

agency is not a party”]; cf. U.S. v. Caldwell (D.C. Cir. 1974)

543 F.2d 1333, 1347 [“In several jurisdictions, the law is

established that ‘[t]he mere fact of membership on a police force

is not presumptively a disqualification for service on a jury in a

criminal trial’ ”]; U.S. v. Morales (2d Cir. 1999) 185 F.3d 74, 84

[“despite the fact that some of the charges against the

defendants related to the felony-murder and attempted murders

of police officers, the challenged jurors’ connections to law

enforcement in this case do not, standing alone, suffice to

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establish implied bias or ‘ “bias conclusively presumed as a

matter of law” ’ ”].) Terry is very different from the instant case:

the challenged juror in Terry was deemed a party in the truest

sense — he worked for the entity prosecuting the case and had

a confidential relationship, akin to an attorney-client

relationship, with the attorney who was presenting the case to

the jury. (See Terry, at p. 102.) The prosecuting attorney and

the juror were actual colleagues in the same office. By contrast,

defendant’s motion before the trial court was far-reaching,

“urg[ing] the court to excuse correctional officers, administrative

staff, and independent contractors in favor of drawing jurors

from a less likely contaminated jury pool.” There is nothing in

section 229 that suggests such a far reaching rule that would

find implied bias for any employee of CDCR, no matter how far

attenuated (e.g., administrative staff and independent

contractors) their employment is from working as a correctional

officer. Based upon defendant’s reasoning, even a CDCR

accountant or janitor would have to be removed because, inter

alia, they “may be familiar with prison codes” and are “likely to

be biased.” That cannot be. Terry addressed an individual for-

cause challenge to a juror who was an attorney in the same

district attorney’s office as that prosecuting the defendant; it

does not support the blanket use of Code of Civil Procedure

section 229, subdivision (b) to disqualify a whole class of

prospective jurors, irrespective of their positions, exposure to

information about the defendant’s alleged offense, and

geographic locations.

For similar reasons, defendant’s passing reference to

subdivisions (e) and (f) of Code of Civil Procedure section 229 in

his written motion to exclude CDCR personnel from the jury

pool (subdivision (d) was not referenced in the motion) did not

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compel the trial court to accept the argument that all CDCR

employees had to be automatically removed from the jury pool

for implied bias. Those subdivisions, by their terms, would seem

better suited to an individualized assessment of implied bias.

Subdivision (e) of section 229 speaks to a prospective juror

“having an unqualified opinion or belief as to the merits of the

action founded upon knowledge of its material facts.” (Italics

added.) As stated ante, the roles and locations of CDCR

personnel who remained in the jury pool at the time of

defendant’s motion varied. For instance, the jury pool included

CDCR employees who worked in accounting offices and at a

prison other than Calipatria. As such, one would expect the

jurors’ respective knowledge of the “material facts” of

defendant’s case to evade broad generalizations, as would their

“state[s] of mind” (Code Civ. Proc., § 229, subd. (f)) and their

“[i]nterest . . . in the event of the action” (id., subd. (d)). In sum,

defendant fails to persuade that the trial court was required,

pursuant to Code of Civil Procedure section 229, to find all

CDCR employees impliedly biased on the record before it.

We rejected a similar claim of error from a trial court’s

denial of a blanket challenge to all CDCR personnel in the jury

pool in People v. Ramirez (2022) 13 Cal.5th 997, a capital case

arising out of three carjacking incidents. There, the defendant

asserted without “independent proof” that “all correctional

officers in the jury pool were unfit to serve because the case was

‘a chief subject of concern and speculation in the numerous

correctional institutions of Kern County, and . . . falsities,

presumptions of guilt, and poisonous rumors were part of daily

talk in public areas of these institutions.’ ” (Ramirez, at

p. 1046.) We concluded the trial court acted within its discretion

in denying the defendant’s blanket challenge. First, we noted

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that, in Ledesma, supra, 39 Cal.4th at page 670, we rejected the

argument that a prospective juror’s “employment as a

corrections officer in the county jail system where defendant was

housed” made him impliedly biased under Code of Civil

Procedure section 229. (Ramirez, at p. 1047.) The Ramirez

court concluded, “[t]he same is true here” where the

“[d]efendant’s assertion about panelists’ exposure to case

information among correctional officers was explored on a case-

by-case basis” and the “voir dire record disproves defendant’s

expansive claim that ‘falsities, presumptions of guilt, and

poisonous rumors’ about the case were so prevalent in the

correctional institutions of Kern County that anyone who

worked there was automatically disqualified from service.”

(Ibid.)

Likewise here, the trial court reasonably concluded

defendant’s claim of implied bias amongst CDCR personnel was

better assessed on a “case-by-case basis.” (Cf. People v. Rhoades

(2019) 8 Cal.5th 393, 440 [the trial court’s ruling on a challenge

for cause will be upheld on appeal “ ‘ “if it is fairly supported by

the record” ’ ”].)

2. Denial of Batson/Wheeler Motion

Defendant contends the prosecutor improperly exercised a

peremptory challenge against the only African American

prospective juror, Lisa B., on the basis of race. (See Batson v.

Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978)

22 Cal.3d 258 (Wheeler).)

a. Background

The juror questionnaire provided to prospective jurors

asked various questions about their feelings towards the death

penalty, as well as jury service in general and its attendant

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responsibilities. Question 11 asked, “If we were to get to the

penalty phase, would you as a juror be able to listen to all the

evidence, as well as the judge’s instructions of law, and give

honest consideration to both death and life without parole,

before reaching a decision?” Lisa B. checked “Yes.” Question 12

queried, “What types of crimes, if any, do you think generally

warrant the death penalty?” Lisa B. wrote in response, “I would

think murder w/ the intent to kill. Not just one individual in a

lifetime. An individual that shows no emotion/remorse [and]

can kill again w/out provocation.” Question 59 asked, “How do

you feel about being on jury service?” Lisa B. responded, “Jury

service imposes the right of one person to pass judgment on

another person. I would not like the responsibility to have to do

that to another person. I have never had to serve on a jury

before so this is my unbiased opinion as I see it now.” Question

68 asked, “Do you have any religious or moral feeling that would

make it difficult or impossible for you to sit in judgment of

another person?” Lisa B. wrote, “Not quite sure. Have not been

able to define my own thoughts regarding being able to pass

judgment. I know I wouldn’t like to be responsible in that

position.” Question 87 inquired, “Is there any reason why you

would prefer not to serve as a juror in this case?” Lisa B.

checked “Yes,” and explained that she “wouldn’t like to be the

one to have to judge another person. Not based on any other

reason, but because that would be too much power for 1 person.”

During Hovey voir dire, the court asked Lisa B. a series of

questions regarding whether she had “any religious or

conscientious beliefs against the infliction of the death penalty

that would prevent or interfere with [her] ability to vote to

impose the death penalty without regard to the evidence.” She

repeatedly said “No.” The prosecutor thereafter asked Lisa B.

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what she meant when she stated in her questionnaire that the

“death penalty does not serve any purpose.” Lisa B. explained

that her response was “not a religious or conscientious belief,”

but rather in reference to “what we actually know. There are so

many people sitting on death row that are still sitting there. So

it doesn’t serve a purpose, in general.” She assured the

prosecutor that she would not automatically vote for life without

parole, and she would base a verdict on the “full circumstances”

of the case.

Lisa B. was ordered to return for general voir dire. During

the end of his allotted time for questioning, the prosecutor

questioned Lisa B. The prosecutor initially confused Lisa B.

with another prospective juror who had the same last name, but

the trial court thereafter gave the prosecutor “another minute”

to look at Lisa B.’s questionnaire and conclude his questioning.

The prosecutor then asked Lisa B. about her response on the

written questionnaire relating to her views on self-defense:

“The question was, ‘Do you have any problem with the concept

that [the] right of self-defense exists only as long as real or

apparent danger — threatened danger . . . continues to exist.

And when danger ceases to appear to exist the right to self-

defense ends.’ [¶] You responded first ‘Yes,’ and then you

responded ‘No.’ Do you recall that?” Lisa B. responded, “Yes.”

The prosecutor continued: “Then you went on to write a really

good response, ‘Once a person is not in any danger any longer

and the assailant cannot continue to threaten you you are no

longer trying to defend yourself against them.’ [¶] . . . [¶] Why

did you cross it out?” Lisa B. did not remember why she crossed

it out but assured the prosecutor that the answer expressed her

true views, “Yes, once you are no longer in danger.” The

prosecutor responded, “So we are on the same track. Thank you

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very much.” Defense counsel, who had also confused Lisa B.

with another juror, declined the court’s invitation to question

Lisa B.

While the parties were exercising peremptory challenges,

Lisa B. was called into the jury box and the prosecutor exercised

a peremptory challenge. Defense counsel made a Wheeler

motion, “There’s only one Black American in the jury panel, and

she was kicked seemingly with no cause. There’s nothing to

distinguish that juror from other jurors and, I think, to exclude

that juror would deprive my client of a fair defense.” The trial

court then asked the prosecutor to “articulate for the record the

reason why you excused Lisa B[.]” The prosecutor recited to the

court Lisa B.’s response to question 59 regarding her reluctance

to pass judgment on another person. He explained, “I didn’t get

to that question. I have her marked down as I was going to

challenge her for cause. I didn’t get to that question because I

was running out of time. All I got to ask her was one question.”

The prosecutor also quoted Lisa B.’s written response to

Question 68 for the court, expressing uncertainty over whether

she had any religious or moral beliefs that would make it

difficult to pass judgment on another. Lisa B. had written in

part, “I know that I wouldn’t like to be responsible in that

position.”

Defense counsel pointed out that the prosecutor “passed

for cause on Hovey. Now we are talking about a Hovey challenge

here.” The trial court responded, “No, that’s not death penalty,

just passing judgment in general,” which the prosecutor

confirmed. The trial court concluded, “I think that’s a valid, non-

racial reason. So I’ll deny the Wheeler.” The prosecutor then

stated, “For the record, it had nothing to do with the color of her

skin. It had to do with the answer to her questions period.” The

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trial court responded, “That’s what I’m assuming by the way you

responded. So let’s bring the people back in.”

b. Analysis

Defendant argues the prosecutor’s stated reason for

dismissing Lisa B. was pretextual. He underscores that the

prosecutor did not question Lisa B. about the responses he later

cited as cause for concern, which, to defendant’s mind, “strongly

suggests that [the prosecutor’s] reason for dismissing her was

not race-neutral.”

“ ‘Peremptory challenges may not be used to exclude

prospective jurors based on group membership such as race or

gender.’ [Citations.] ‘Excluding even a single prospective juror

for reasons impermissible under Batson and Wheeler requires

reversal.’ [Citation.] When a party opposing a peremptory

strike makes a prima facie case that the strike was motivated

by impermissible discrimination (step 1), the proponent of the

strike must offer a nondiscriminatory reason for that challenge

(step 2). [Citation.] The question then becomes (step 3) whether

the opponent of the peremptory challenge has shown it ‘ “more

likely than not that the challenge was improperly motivated.” ’

[Citations.]” (People v. Baker (2021) 10 Cal.5th 1044, 1071

(Baker).) The parties agree that “only the third step of the

Wheeler motion is at issue.”

“At the third stage of the Wheeler/Batson inquiry, ‘the

issue comes down to whether the trial court finds the

prosecutor’s race-neutral explanations to be credible.

Credibility can be measured by, among other factors, the

prosecutor’s demeanor; by how reasonable, or how improbable,

the explanations are; and by whether the proffered rationale has

some basis in accepted trial strategy.’ ” (People v. Lenix (2008)

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44 Cal.4th 602, 613.) “Review of a trial court’s denial of a

Wheeler/Batson motion is deferential, examining only whether

substantial evidence supports its conclusions. [Citation.] ‘We

review a trial court’s determination regarding the sufficiency of

a prosecutor’s justifications for exercising peremptory

challenges “ ‘with great restraint.’ ” [Citation.] We presume

that a prosecutor uses peremptory challenges in a constitutional

manner and give great deference to the trial court’s ability to

distinguish bona fide reasons from sham excuses. [Citation.] So

long as the trial court makes a sincere and reasoned effort to

evaluate the nondiscriminatory justifications offered, its

conclusions are entitled to deference on appeal.’ ” (Id. at

pp. 613–614.) “When the prosecutor’s stated reasons are both

inherently plausible and supported by the record, the trial court

need not question the prosecutor or make detailed findings.”

(People v. Silva (2001) 25 Cal.4th 345, 385.)

The prosecutor’s stated reason for dismissing Lisa B., i.e.,

her discomfort with passing judgment on another person, is both

plausible and supported by Lisa B.’s responses to Questions 59

and 68 in the questionnaire, which the prosecutor quoted for the

trial court. Nor does the prosecutor’s failure to further question

Lisa B. about her responses in this regard support a finding of

pretext, as defendant alleges. As in People v. Smith (2018)

4 Cal.5th 1134, 1152 (Smith), “the prosecutor’s stated concerns

[in this case] arose from . . . questionnaire responses that spoke

for themselves; no additional clarification was needed to

ascertain [Lisa B.’s] meaning. [Citations.] . . . Whatever

inference may arise from the prosecutor’s lack of questioning is

not so strong as to undermine the trial court’s determination

that [Lisa B.’s discomfort with passing judgment on others] did,

in fact, matter to the prosecutor.”

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Defendant asserts that the prosecutor had “ample

opportunity” to question Lisa B. about her “allegedly

concerning” answers to Questions 59 and 68 during Hovey voir

dire, and his failure to do so demonstrates that his explanation

for striking Lisa B. on the basis of her answers to those

questions was pretextual. To bolster this argument, defendant

points out that the prosecutor questioned other jurors during

Hovey voir dire about their “reticence to sit in judgment of

others.” For example, the prosecutor questioned Erika G. about

her response to Question 59 regarding how she felt about being

on jury service; in response to that question, she had written, “I

do think that my past experience with my dad’s murder would

partially influence my decision in this case.” Upon further

questioning, she explained that her dad was murdered by a drug

addict and that “may influence” her ability to serve on the jury;

Erika G. was excused for cause. Defendant explains, “[i]n short,

if the [prosecutor] had genuinely believed that [Lisa B.] might

be excused for cause based on her questionnaire responses, he

would have asked about her views during Hovey voir dire.”

We read the record differently. The fact that other

prospective jurors were excused for cause for voicing opinions

similar to Lisa B.’s during Hovey voir dire actually supports the

genuineness of the prosecutor’s assertion that he considered

challenging Lisa B. for cause, but did not do so because he ran

out of time. Moreover, as the record reflects, the prosecutor was

under significant time pressure during Lisa B.’s questioning

during general voir dire.7 Under these circumstances,

7

We caution that the imposition of time limits on voir dire

can serve the cause of efficiency. However, their use should not

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substantial evidence supports the trial court’s conclusion that

the strike was not motivated by racial discrimination.

Defendant further argues that a comparative juror

analysis compels a different conclusion. “When a court

undertakes comparative juror analysis, it engages in a

comparison between . . . a challenged panelist, and . . . similarly

situated but unchallenged panelists who are not members of the

challenged panelist’s protected group. [Citation.] In this case,

a comparative analysis would ask whether the prosecutor’s

justification for striking one [African American] individual

applies just as well to an otherwise similarly situated non-

[African American] individual who is permitted to serve on the

jury. The high court has held that comparative analysis may be

probative of purposeful discrimination at Batson’s third stage.

[Citation.]” (People v. Gutierrez (2017) 2 Cal.5th 1150, 1173.)

When, as here, “a defendant asks for comparative juror analysis

for the first time on appeal, we have held that ‘such evidence

will be considered in view of the deference accorded the trial

court’s ultimate finding of no discriminatory intent.’ ” (People v.

O’Malley (2016) 62 Cal.4th 944, 976.) Furthermore, when we

engage in a comparative juror analysis for the first time on

appeal, we focus our review on the jurors discussed in the

defendant’s briefing and “ ‘ “need not consider responses by

stricken panelists or seated jurors other than those identified by

the defendant.” ’ ” (Baker, supra, 10 Cal.5th at p. 1083.)

Defendant argues that “the prosecutor’s proffered reason

for striking [Lisa] B. applied to similar non-black jurors he did

not peremptorily excuse,” namely, Juror Nos. 8 and 12.

impede the creation a record that facilitates appellate review,

particularly in this significant context.

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Defendant asserts that “[t]here was no significant difference

between Lisa B. and Jurors [sic] Nos. 8 and 12,” as all three were

female, each had children, none had previously served on a jury,

Lisa B. and Juror No. 8 had family members who worked for the

CDCR, and Juror No. 12 was a correctional officer herself.

However, Lisa B. was the only one of the three prospective jurors

to explain that she would not like to be responsible for judging

another person.8 In fact, in response to question 59 asking how

she felt about jury service, Juror No. 8 wrote, “I feel it’s my duty

and obligation as a citizen.” She checked “No,” in response to

question 68 regarding whether she had “any religious or moral

feeling that would make it difficult or impossible” to judge

another individual. During Hovey voir dire, although Juror No.

8 initially indicated that she might “have a problem with

actually considering the death penalty,” she subsequently

assured the court that she did not think she “would have a

8

In a footnote, defendant also compares Lisa B. to Alternate

Juror No. 4, arguing that “Alternate Juror No. 4 was a less

desirable juror for the state, by virtue of her general opposition

to the death penalty.” However, despite expressing opposition

to the death penalty in general, elsewhere in her questionnaire

and during questioning by the prosecutor, Alternate Juror No. 4

indicated she would be able to listen to all of the evidence and

honestly consider the death penalty; she also listed crimes she

considered to be worthy of the death penalty. Furthermore, like

Juror Nos. 8 and 12, and unlike Lisa B., Alternate Juror No. 4

did not express any difficulty passing judgment on others. In

response to question 59 on the jury questionnaire addressing

her feelings towards jury service, Alternate Juror No. 4

answered “I feel [it] is my civic responsibility to serve as a juror.”

In response to question 68 regarding whether she had any moral

or religious feelings making it difficult to judge another, she

checked “No.”

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problem” with imposing the death penalty if the evidence so

justified. She repeatedly stated that her decision would be

based on the evidence. Juror No. 12, similar to Juror No. 8,

responded to question 59 by explaining that she believed it was

her “civic duty” to serve on a jury. She likewise checked “No,”

in response to question 68. During Hovey voir dire, Juror No. 12

confirmed that she was “neutral” on the death penalty and

“would be fair and impartial to both sides and wait to hear the

evidence from both sides before making a decision.” During

general voir dire, Juror No. 12 stated, “I have a job to do, a job

to listen to all the evidence before I make a judgment on this.”

On this record, a comparative juror analysis does not change our

conclusion that substantial evidence supports the trial court’s

ruling.9

B. Pre-Trial and Guilt Phase Issues

1. The Trial Court Properly Denied Defendant’s

Motion to Dismiss for Pre-charging Delay

Defendant contends the trial court erroneously denied his

motion to dismiss the charges for prejudicial pre-charging delay.

We disagree.

a. Background

Before trial, defendant moved to dismiss the case because

of the 27-month delay in bringing the charges against him. In

9

Defendant unpersuasively highlights that several other

prospective and seated jurors “expressed a desire not to serve,”

but were retained by the prosecutor. But defendant points to

jurors who expressed a desire not to serve for more general

reasons, like feelings of nervousness or worries over being

inconvenienced by a long trial. By contrast, Lisa B. expressed a

specific reluctance to pass judgment on another person.

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his motion, he contended that two critical defense witnesses died

during that timeframe and the District Attorney proffered no

justification for defendant’s delayed indictment. In a

declaration attached to the motion, defendant specifically

averred that inmates Cruz and Hogan,10 who were at Calipatria

State Prison the night of Richmond’s death, would have

corroborated his version of events: “Inmate Cruz would have

provided testimony that inmate Richmond was in fact the

aggressor in this case, that Richmond was given an order to kill

me, and that I was the victim of an imminent violent attack on

the night in question. . . . [¶] Inmate Hogan, like inmate Cruz,

would have also testified that my cellmate, inmate Richmond,

was given an order to kill me. Mr. Hogan would have testified

that he had personal knowledge that Mr. Richmond planned to

kill me and that Mr. Richmond was armed on the night in

question.” Defendant further averred that the delay had

compromised his recollection of the names of other

“witnesses/inmates who knew Richmond was armed on the

night of the incident.” Defense counsel also attached a

newspaper article to the dismissal motion, in which a former

deputy district attorney was quoted as saying with respect to

defendant’s case, “ ‘The reason we were so deliberate in this case

is we had the time given the uniqueness of this case. By that, I

mean he is an inmate who is not going anywhere.’ ” Defendant

argued that the prosecution’s “intentional delay” based on his

status as a prison inmate violated his right to due process and

was an insufficient justification to overcome the prejudice

defendant suffered from the delay.

10

No first names are provided for inmates Cruz and Hogan.

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In their response, the People asserted that defendant did

not meet his burden of showing actual prejudice — his “mere

conclusory statements in the form of affidavits” did not suffice.

With the agreement of the parties, the trial court deferred

ruling on the dismissal motion until after the guilt phase

evidence was presented. After the guilt phase concluded,

defense counsel requested a ruling, reiterating the arguments

made in his written motion. He underscored that the now

deceased inmates, Cruz and Hogan, would have given critical

testimony in support of defendant’s self-defense testimony.

With respect to the claim that they would have testified a knife

was sent into defendant’s cell on the evening of Richmond’s

death, defense counsel acknowledged, “Now, I realize that

[defendant] flushed that weapon down the toilet and in a sense

created some of the problems himself.” But defense counsel

asserted that defendant made a prima facie showing of prejudice

from the pre-charging delay and that the delay resulted from

defendant’s status as a “known life inmate,” not from any good

cause. The prosecutor submitted without argument.

The trial court denied the motion, explaining “Well, I wish

it [the motion] had been filed sooner. But under the

circumstances, I’m going to deny the motion. So it’s all done

within the statute of limitations. There is no statute of

limitations for this offense. It’s not that uncommon to see them

brought to trial years after the event.” Defense counsel

reminded the court that the parties and the court agreed to defer

a decision on the motion until after the close of the guilt phase

evidence. The trial court further opined that “[s]ome of the

things you’re alleging that Mr. Cruz would have said would have

been cumulative even if that were true.” Defense counsel

questioned how it could be “cumulative,” and the trial court said,

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“We had other testimony of the same effect as I recall.” Defense

counsel asserted that if the court found a prima facie showing,

then the prosecution had to justify the delay. The prosecutor

explained that all he knew was that “it went by way of an

indictment. And it took them approximately two years to get

him indicted. That’s all I know.” The prosecutor, in his almost

five years of experience, had “never seen a murder case come to

trial within two years.”

At the end of trial, defendant filed a motion for a new trial,

in which he renewed his claim that the pre-charging delay

violated his due process rights. Defense counsel asserted that,

“[b]y [his] unrebutted declaration,” defendant had established a

prima facie case of prejudice, shifting the burden to the

prosecution to justify the delay. The People referred the trial

court back to their opposition to defendant’s unsuccessful

“motion to dismiss on this issue.” The trial court denied the

motion without any discussion of the issue.

b. Analysis

“ ‘The due process clauses of the Fifth and Fourteenth

Amendments to the United States Constitution and article I,

section 15 of the California Constitution protect a defendant

from the prejudicial effects of lengthy, unjustified delay between

the commission of a crime and the defendant’s arrest and

charging.’ [Citation.] A defendant seeking to dismiss a charge

on this ground must first demonstrate prejudice arising from the

delay, ‘such as by showing the loss of a material witness or other

missing evidence, or fading memory caused by the lapse of time.’

(People v. Abel (2012) 53 Cal.4th 891, 908.) ‘ “The prosecution

may offer justification for the delay, and the court considering a

motion to dismiss balances the harm to the defendant against

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the justification for the delay.” ’ (People v. Nelson (2008)

43 Cal.4th 1242, 1250, quoting People v. Catlin (2001)

26 Cal.4th 81, 107.) However, ‘[i]f the defendant fails to meet

his or her burden of showing prejudice, there is no need to

determine whether the delay was justified.’ ” (People v. Mataele

(2022) 13 Cal.5th 372, 406 (Mataele).) “ ‘ “In the balancing

process, the defendant has the initial burden of showing some

prejudice before the prosecution is required to offer any reason

for the delay [citations]. The showing of prejudice requires some

evidence and cannot be presumed. [Citations.]” ’ [Citation.]”

(People v. Alexander (2010) 49 Cal.4th 846, 874.) “ ‘[W]hether

the delay was negligent or purposeful is relevant to the

balancing process. Purposeful delay to gain an advantage is

totally unjustified, and a relatively weak showing of prejudice

would suffice to tip the scales towards finding a due process

violation. If the delay was merely negligent, a greater showing

of prejudice would be required to establish a due process

violation.’ [Citation.] ‘The justification for the delay is strong

when there is “investigative delay, [and] nothing else.” ’

[Citation.] ‘A court should not second-guess the prosecution’s

decision regarding whether sufficient evidence exists to warrant

bringing charges.’ ” (Mataele, supra, 13 Cal.5th at p. 406.) We

review a trial court’s ruling on a motion to dismiss for pre-

charging delay for abuse of discretion and defer to any factual

findings supported by substantial evidence. (See id. at p. 407.)

“Because the trial court deferred ruling on defendant’s motion

to dismiss until after the [guilt phase evidence had been

presented], we will consider all evidence that was before the

court up to that time.” (Ibid.)

The trial court did not abuse its discretion by denying

defendant’s motion to dismiss. Defendant fails to demonstrate

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that the 27-month interval between Richmond’s death and the

filing of the indictment against him resulted in actual prejudice.

While he asserts that inmates Cruz and Hogan would have

provided exonerating information, defendant does not explain

how he had any knowledge of what Cruz and Hogan would have

said; in his declaration, he does not assert he knew them, spoke

with them, or interacted with them. Absent any facts as to the

basis of defendant’s personal knowledge, defendant’s conclusory

declaration, made only “to the best of [his] knowledge,

information and belief,” that inmates Cruz and Hogan would

have testified in accordance with his defense is, alone,

inadequate to establish actual prejudice. (See People v. Manzo

(2023) 96 Cal.App.5th 538, 541 [“[t]he showing of actual

prejudice must be made on competent evidence and ‘must be

supported by particular facts and not . . . by bare conclusionary

statements’ ”]; cf. Bowden v. Robinson (1977) 67 Cal.App.3d 705,

719–720 [“The phrase ‘[t]o the best of my knowledge’ ” did not

establish the declarant’s personal knowledge and “implies that

the declarant’s statement is based on something similar to

information and belief” — statements within the declaration

were “not admissible evidence of which declarant had personal

knowledge”].) Nor does defendant persuade that he was

prejudiced from his own fading memory resulting from the

charging delay. Defendant was able to testify in great detail

about events leading up to, and on, the night of Richmond’s

death and his vague assertion that the delay had compromised

his recollection of the names of other “witnesses/inmates who

knew Richmond was armed on the night of the incident” is

inadequate to establish prejudice. (See Abel, supra, 53 Cal.4th

at p. 909 [rejecting the defendant’s similar claim that a pre-

charging delay prejudicially affected his memory where the

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record reflected that he “had detailed recall of events occurring

on or near” the date the alleged offense took place].) We

therefore do not need to consider whether the prosecution’s pre-

charging delay was justified. (See Mataele, supra, 13 Cal.5th at

p. 406.) While we conclude the trial court did not abuse its

discretion, because the court’s remarks did not address the issue

of prejudice, we take this opportunity to emphasize that trial

courts should make a clear record of their rulings in this context

so as to aid appellate review.

2. Prosecutorial Misconduct: Communications with

Defendant

Defendant contends the prosecutor’s communications with

defendant, outside the presence of defense counsel, constituted

prejudicial misconduct requiring the trial court to grant both his

motion for acquittal and his motion for a new trial.

a. Background

Prior to trial, the trial court sealed the transcripts of the

grand jury proceedings in defendant’s case. In doing so, the trial

court noted the rarity of capital cases in Imperial County, the

small jury pool, and the desire to guard against widespread and

“inflammatory” pretrial publicity. The parties also stipulated to

a “gag order” upon the trial court’s suggestion. That order

prohibited, inter alia, the parties, witnesses, and attorneys from

“releas[ing] for public dissemination any statement of defendant

or witnesses, documents or exhibits, or any evidence admissible

or inadmissible about this case, nor express for public

dissemination any weight, value or effect of such evidence.”

On November 20, 2003, before opening statements in the

guilt phase of defendant’s trial, the trial court instructed jurors

not to “read or listen to any accounts or discussions of the case

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reported by the newspapers or other news media including

radio, television, the internet, or any other electronic source.”

On December 2, 2003, the trial court again admonished jurors

“not to read, listen to, or view any media accounts of the

proceedings in this trial.”

On December 4, 2003, outside the presence of the jury,

defense counsel called the court’s attention to an article about

defendant’s case printed the previous day in the Imperial Valley

Press. The article was lodged in evidence. It described “an

interchange between” defendant and the prosecutor occurring

on December 2nd in the absence of defense counsel. The article,

by reporter Mike Salorio, described defendant’s case and

summarized trial testimony from Correctional Officers Wysocki

and Avila. It then described an interaction between defendant

and the prosecutor as follows, “Barrett exchanged remarks

during a break in the proceedings with Imperial County Deputy

District Attorney Wayne Robinson, who is prosecuting the case.

Barrett asked Robinson if he was attempting to get a death

penalty conviction so he could run for political office. [¶] ‘Do you

have any political aspirations?’ asked Barrett. [¶] ‘No comment,’

said Robinson. [¶] Barrett then criticized the DA’s Office for

taking nearly eight years before finally bringing a trial against

him. [¶] ‘Hey, how long did it take the Board of Supervisors to

realize the state would give them money for this murder trial?’

asked Barrett. [¶] Barrett then criticized the DA’s Office for not

being able to get a first-degree murder conviction in the recent

trial of Pedro Archuleta for the murder of 15-year-old Jovita

Becerra. [¶] ‘How is that justice?’ asked Barrett. [¶] ‘You’re

forgetting about your past, Mr. Barrett. You were a 17 year old

who killed someone with a dumbbell,’ said Robinson. [¶] ‘I don’t

dispute that,’ responded Barrett. [¶] At the break’s end, Barrett

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asked Robinson to stir up the proceedings. [¶] ‘Maybe you can

agitate one of the witnesses, Mr. Robinson, and liven things up

a little bit,’ said Barrett.”

Since the exchange involved defendant’s prior murder

conviction, evidence of which was not admissible during the

guilt phase of defendant’s trial, defense counsel asked the trial

court to find that the prosecutor committed prejudicial

misconduct. As a remedy, defense counsel asked the trial court

to dismiss the case or strike the special circumstance allegation.

Defense counsel did not ask for a mistrial since the court

indicated it would not “do a hovey [sic] voir dire again” and “[w]e

feel we got, probably, the finest jury selection in this case on both

sides any counsel could get.” Defense counsel asked the court to

poll jurors “individually as to whether or not they saw the

article” and “whether anybody talked to them about the article

or asked them questions about it.” Further, defense counsel

asked “that the jury be admonished not to read specifically the

Imperial Valley Press or look at it for the rest of this trial.” The

trial court deferred ruling on the alleged misconduct but

proceeded to question the jurors about the article.

When the jurors returned to the courtroom, the trial court

explained, “As you recall, on numerous occasions throughout the

trial and jury selection, and specifically in the last couple of days

I advised everybody not to read, listen to or view any media or

news accounts of this case. [¶] Now, last night in the Imperial

Valley Press the case was the headline item, and I’m going to

have to ask each one of you individually.” The trial court asked

each juror individually whether they had read the article, and

each replied in the negative. The trial court then ordered jurors

not to read the Imperial Valley Press for the duration of

defendant’s trial. The trial judge explained, “I can’t have jurors

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reading the newspaper reporter’s interpretation of what goes

on,” and then thanked jurors for following his prior instruction

not to read media sources. When collectively asked whether

anyone tried to discuss the article with them, no juror answered

affirmatively. Juror No. 6 then stated that her husband told her

“there was an article,” but the couple “didn’t discuss it.” The

trial court thanked jurors again, and then had the prosecutor

call his next witness.

On December 16, 2003, after the prosecution presented its

case-in chief, defense counsel reraised his previously unresolved

allegation of prosecutorial misconduct as part of his motion for

acquittal pursuant to section 1118.1. Defense counsel cited

California Rules of Professional Conduct former Rule 2-100,11

prohibiting a lawyer representing a client in a matter from

communicating with a party represented by a different attorney

in the matter absent the attorney’s consent. Defense counsel

asked the trial court to impose sanctions for the prosecutor’s “ex

parte communication” with defendant in front of the reporter.

In terms of appropriate sanctions, the defense proposed the trial

court could dismiss the case, strike the death penalty and prior

murder enhancements, cite the prosecutor, and/or disqualify

him and the entire District Attorney’s Office.

The trial court heard the motion the same day. At the

outset, the trial court “want[ed] the record to be clear here for

any reviewing court that this was — all happened out of the

presence of the jurors.” The trial court could not find “a single

case” of prosecutorial misconduct occurring outside the presence

11

Those rules were revised and renumbered effective

November 1, 2018. The substance of former Rule 2-100 relied

upon here became Rule 4.2(a) of the revised Rules.

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of the trier of fact. Defense counsel referred to civil cases and

emphasized, among the other requested sanctions, the need to

remove the prosecutor from the case in the interest of

defendant’s constitutional rights since his conversation with

defendant concerned a special circumstance and potential

penalty phase evidence.

The prosecutor, Mr. Robinson, responded that there could

be no constitutional violation since he did not ask defendant a

single question; he only responded to defendant’s questions.

Robinson underscored that the jurors all denied reading the

article.

The trial court found there was no actual harm because all

jurors, under oath, indicated they had not read the article. The

court noted that it had openly observed “friendly banter” on

occasion between defendant and the bailiff, the transportation

officers, and even Robinson, with defense counsel present at

times. The trial court remarked, “Maybe I should have said

something then,” and acknowledged “these kinds of mistakes

can happen if we’re not very diligent.” Ultimately, because the

trial court could “find absolutely no harm that has occurred

because of this and because the initial conversation was

instituted by Mr. Barrett, I’m not going to propose any sanctions

except to admonish Mr. Robinson. [¶] For God’s sake, don’t do

that again. All right?”

While accepting the admonishment, Robinson pointed out

that defendant was talking to the reporter throughout the

break, only towards the end of which he directed questions

towards Robinson about his political aspirations. Robinson said

he was initially nonresponsive but responded after defendant

persisted. The trial court reminded Robinson that defendant “is

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not an officer of the court. He’s not held to knowledge of the

ethical canons about communication. You are. [¶] So that’s why

I’m going to go ahead and just make this an admonishment.

Don’t do it again.” The trial court explained that everyone was

going to have to be very careful going forward about what they

say and who may hear it.

Prior to the start of the penalty phase, defendant renewed

his request to exclude “any evidence of the underlying

circumstances of the prior conviction” as a sanction for the

prosecutor’s misconduct, but evidence of Jackson’s murder was

admitted. After the jury returned its death verdict, defendant

unsuccessfully moved for a new trial on several grounds,

including prosecutorial misconduct.

b. Defendant Fails to Show Prejudice

Defendant contends the prosecutor’s communication with

defendant, outside of defense counsel’s presence, was

misconduct in violation of defendant’s constitutional rights to

counsel, due process, an impartial jury, a reliable death

judgment, and the right against self-incrimination, as well as a

violation of the ethical rules applicable to attorneys. He asserts

that the trial court’s failure to impose any sanction for the

misconduct was prejudicial error requiring reversal of his

convictions or, at the very least, his death sentence.

“ ‘To constitute a violation of the federal Constitution,

prosecutorial misconduct must “ ‘ “so infect[] the trial with

unfairness as to make the resulting conviction a denial of due

process.” ’ ” [Citations.] Conduct by a prosecutor that does not

render a criminal trial fundamentally unfair is prosecutorial

misconduct under state law only if it involves “ ‘the use of

deceptive or reprehensible methods to attempt to persuade

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either the court or the jury.’ ” ’ (People v. Benavides (2005)

35 Cal.4th 69, 108.)” (People v. Camacho (2022) 14 Cal.5th 77,

126, italics added (Camacho).)

Here, where the alleged prosecutorial misconduct

occurred outside the presence of the jury and the jurors

expressly denied reading the article in question, the trial court

soundly concluded the fairness of defendant’s trial proceedings

was not compromised. Therefore, defendant has not

demonstrated prosecutorial misconduct under the federal

standard. However, similar to the trial court, we will assume

that the prosecutor’s conversation with defendant in front of a

reporter was misconduct under state law.12 Nevertheless,

defendant is not entitled to any relief. “In order to be entitled to

relief under state law, defendant must show that the challenged

conduct raised a reasonable likelihood of a more favorable

verdict.” (People v. Blacksher (2011) 52 Cal.4th 769, 828, fn. 35

(Blacksher).) Defendant unpersuasively contends the trial court

should not have credited jurors’ representations that they did

not read any articles about the case because the case received

widespread publicity. But, “[a]bsent a contrary indication in the

record, it must be assumed the jury followed its instruction to

avoid all publicity in the case.” (People v. Pride (1992) 3 Cal.4th

195, 226.) Here, we need not just assume the jurors avoided

publicity about the trial. Prior to the publication of the article

at issue, the trial court twice admonished jurors not to read any

newspaper accounts of the case and the record contains

12

The trial court also reminded the prosecutor that he had a

duty to uphold the “ethical canons about communication.”

Former Rule 2-100 (now Rule 4.2) prohibits ex parte

communications with represented parties “about the subject of

the representation” absent the consent of the parties’ lawyer.

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affirmative assurances from jurors that they did not read the

article in question nor discuss it with anyone. Defendant

further argues that the prosecutor’s conduct could have had “a

chilling effect on counsels’ efforts to vigorously represent their

client,” as defense counsel may have been hesitant to have

“frank conversations with their client in the courthouse” or may

have prepared less effectively during breaks for fear of leaving

defendant unaccompanied. These speculative claims are

unpersuasive. In sum, defendant fails to show that the

prosecutor’s misconduct affected the jury’s verdict.

3. The Trial Court Properly Admitted Evidence Under

Evidence Code Section 1103

Defendant argues that the trial court misinterpreted

Evidence Code section 1103, and violated his constitutional

rights, when it permitted the prosecution to introduce evidence

of defendant’s violent character during the guilt phase of trial,

after defendant testified about Richmond’s prison rules

violations. Defendant asserts that his testimony about

Richmond’s in-prison weapons possession and gassing of a

correctional officer should not have opened the door for

admission of evidence of his violent character under section

1103 because his testimony was not meant to characterize

Richmond as a violent person. (See Evid. Code, § 1103, subds.

(a)(2), (b).) Furthermore, defendant asserts the error in

admitting evidence of his prior violent acts was compounded by

the trial court’s inadequate prejudice analysis thereof under

Evidence Code section 352 and its instructions to the jury.

a. Background

On December 18, 2003, prior to putting on the defense

case, defense counsel explained his intent to introduce evidence

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of Richmond’s commitment crimes and defendant’s knowledge

of Richmond’s prior in-prison bad acts to counter the

prosecution’s theory “that Mr. Richmond was . . . somebody that

the other people in his particular gang or culture would want to

have taken out.” In other words, Richmond had proven himself

to be trustworthy to other White inmates by engaging in prison

misconduct and there was no reason to kill him. The prosecutor

responded that, if the defense attacked Richmond’s character,

then “under 1103 I should be able to attack Mr. Barrett’s

character through 115s.” Defense counsel underscored, “we’re

not introducing the evidence to show he’s a bad character in the

sense that he acted in conformity with his bad character. We’re

just showing that in the prison environment that he was a

respected person . . . .” The trial court decided “to wait and see

what happens,” and deferred ruling on the admissibility of

Richmond’s and defendant’s uncharged misconduct and crimes.

In his opening statement, defense counsel said: “Mr.

Richmond has been taken to another cell and has another cellie.

During the time he’s with that cellie he gets caught with

weapons, gets drunk, and he gases a CO. And I’m not saying it’s

anything to imply that that’s unusual but that — or to imply

that he’s a villain, but only to put in balance that he’s not an

innocent either.”

Later that day, defense counsel called Vialpando, the case

records analyst at Calipatria, as his first witness. Vialpando

testified that Richmond was convicted of four prior “strike”

offenses, including three convictions for second degree robbery

and one conviction for burglary. Regarding Richmond’s robbery

convictions, defense counsel asked Vialpando, “robbery, even

second degree, is by force or fear of violence; is that correct?”

When Vialpando replied that second degree robbery is a serious

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felony, but not a violent offense, counsel replied, “it’s threat-

related, but it’s taking from the presence of somebody or the

person of somebody; is that correct?” Vialpando replied,

“Correct sir.”

The defense subsequently called defendant to the stand.

Defendant testified that Richmond told him he was in Ad Seg

because an officer found knives in his pants during a cell search.

Defendant said that he and Richmond discussed bringing

weapons to the yard for protection. The prosecutor objected on

hearsay grounds, and the trial court sustained the objection.

Defense counsel argued in response that he was not introducing

the conversation between defendant and Richmond for its truth,

“but to explain why [defendant] had respect for this.” The trial

court observed, “It isn’t really used for the truth in a lot of ways.

But when you get a whole bunch of stuff out there that you’re

not using it for the truth, it’s hard to unring the bell. The jury

is going to remember that.” Defense counsel queried how the

jury would otherwise learn that defendant trusted Richmond.

The trial court suggested more direct inquiries, like “ ‘How did

you feel about him?’ ” Defense counsel continued with questions

about defendant and Richmond trying to bring a weapon to the

yard.

Defendant later explained that he and Richmond were

both cited for a rule violation for “flooding the cell.” Richmond

and defendant were thereafter placed in separate cells. Defense

counsel inquired whether Richmond partook in any noteworthy

activities while he was apart from defendant. Defendant

responded, “Cell extraction, gassing a couple of correctional

officers, got caught with a weapon during cell extraction.” The

trial court struck the cell extraction and weapon possession

testimony upon the prosecutor’s motion because defendant did

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not witness these incidents. Defense counsel then asked

defendant whether Richmond admitted these transgressions to

him, and defendant confirmed he did; the trial court thereafter

permitted the jury to consider the testimony about Richmond’s

weapon possession as “an admission against interest.”

Defendant later testified more generally about how he and

Richmond “got along pretty good.” Richmond assisted defendant

in making his weapon from the desk in the cell. At some point,

defendant had Richmond “stop sharpening [the knife] because

[he] became suspicious of [Richmond’s] activities” when

Richmond started receiving kites and not showing them to him.

Defendant then started detailing how Richmond received an

unwrapped knife in their shared cell shortly before his death.

During a break in defendant’s testimony, the trial court

turned back to the Evidence Code section 1103 question. The

judge advised defense counsel, “you’ve gotten into a situation

now, I believe, where [the prosecutor] can introduce evidence of

[defendant’s] violent past activities, including the murder in San

Francisco.” Defense counsel underscored that the only

“assaultive behavior that was talked about was the gassing . . .

[¶] . . . [¶] I don’t know that that establishes character.” The

trial court recognized the importance of the issue to defendant’s

trial and recessed early so that the parties could brief the issue.

The following day, the parties submitted their written

briefs. In support of the admission of the Evidence Code section

1103 evidence against defendant, the People argued that

defendant testified that Richmond “has been involved in acts of

violence, which includes possessing weapon [sic], gassing

officers, and a forced cell extraction” and “the prosecution should

now be allowed to introduce character evidence of defendant’s

violent propensities.” The People quoted our decision in People

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v. Ramos (1997) 15 Cal.4th 1133, 1173 for the proposition that

weapon possession in a prison environment “ ‘would reasonably

implicate a violent character whether defendant intended to use

the[m] offensively or defensively.’ ”

In their13 brief, defense counsel explained that “[t]he

defense has never ‘offered’ the evidence of Richmond’s bad acts

to show his propensity for violence against [defendant].” Rather,

these acts had “special relevancy” to negate the prosecution’s

theory of motive and demonstrate, consistent with defendant’s

testimony, that defendant would have had no reason to suspect

that “Richmond was a ‘snitch’ cooperating with the authorities

by telling on other inmates.” Defense counsel asserted, “[a]t

most, the prosecution would be entitled [to] an instruction that

evidence of Richmond’s ‘misconduct’ is limited to supporting an

inference that [defendant] would have no knowledge or reason

to believe Richmond gave up weapons or was a snitch[.]”

Finally, defense counsel objected on Evidence Code section 352

grounds that there was “great danger of undue prejudice in

admitting evidence under 1103(b).”

The trial court also heard argument from the parties.

Defense counsel asked the court to read Evidence Code section

1103 again and reiterated that there was “no offer to prove”

Richmond’s character for violence. The court responded, “Well,

it certainly wasn’t limited in any way when it came in.” The

prosecutor asserted, “Your Honor, it’s clear that the defense has

brought in the evidence against Mr. Richmond’s past for a

13

Defendant was represented by two attorneys at trial, one

who acted as the lead attorney and the other as second chair.

Defense counsel will be referred to in the singular unless

otherwise necessary for clarity.

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multiple number of reasons. And so it is being offered — I don’t

care what they say. It is being offered to attack Mr. Richmond’s

character. There is no other interpretation the jury is going to

get from that . . . . [¶] So now it’s my turn to be able to go after

[defendant].” The prosecutor explained that he did not intend

to bring in defendant’s prior murder conviction but wished to

introduce his other uncharged acts of violence. The court

agreed, “This evidence comes in for multiple purposes. You can’t

sanitize it. You just can’t do it, not this type of evidence. [¶] . . .

I’m going to let everything in but the murder under 352.”

Defense counsel repeated that Richmond’s misconduct

was never offered to prove his bad character. The trial court

replied, “Well, look. I’m going to say it appears to me that that

evidence was offered for multiple purposes . . . . It certainly is

going to have the effect on the jury that they’re going to think

[defendant] reasonably feared for his life because of Mr.

Richmond’s alleged violent character of gassing people, carrying

inmate manufactured weapons. It’s just too clear in that regard.

I can’t avoid section 1103-B.” The trial court continued, “The

jury is going to understand that [defendant] is now faced with a

violent Mr. Richmond who is receiving mysterious notes and

some sort of weapon. It’s just there.” The judge, however,

postponed his final ruling to think about the issue more.

When the parties and the trial court revisited the issue,

defense counsel again argued against the admission of any of

defendant’s uncharged violent acts and submitted that the court

could otherwise strike defendant’s testimony or provide a

limiting instruction. The trial court ruled that the prosecution

could introduce evidence of defendant’s prior violent acts, “this

is a tough call, and I don’t like to do it. The evidence wasn’t

limited when it went in. It would be too late to do it now.”

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When the jury returned to the courtroom, the trial court

gave an instruction addressing the anticipated evidence against

defendant: “At this time, [the prosecutor] is going to be seeking

to elicit testimony with — that can only be used by you pursuant

to the Evidence Code to show whether or not [defendant] has a

character for violence or a trait of character for violence. It

cannot be used to show he has a propensity to commit violent

crimes.” The trial court refused defense counsel’s request to

instruct the jury that defendant’s testimony “of the conduct of

Mr. Richmond in connection with holding weapons, going to the

yard with weapons, and gassing [correctional officers] was for

the limited purpose of showing that [defendant] had no

knowledge that he had [snitched].”

During his cross-examination of defendant, and over

defense counsel’s continuing objections, the prosecutor elicited

evidence of several violent acts (spanning from 1995 to 2003)

committed by defendant, including multiple assaults upon other

inmates and various weapon possession incidents (see ante, at

p. 12). The trial court cut the prosecutor off at the point at which

the evidence was becoming “cumulative.”

b. Analysis

Evidence of a person’s character is generally inadmissible

“to prove his or her conduct on a specified occasion” (Evid. Code,

§ 1101, subd. (a)), but it is admissible to prove some other fact,

such as opportunity or intent. (Evid. Code, § 1101, subd. (b).)

However, an exception to this general rule is that a criminal

defendant may offer evidence of the victim’s “character or a trait

of character (in the form of an opinion, evidence of reputation,

or evidence of specific instances of conduct)” in order “to prove

conduct of the victim in conformity with the character or trait of

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character.”14 (Evid. Code, § 1103, subd. (a)(1).) But if a

defendant chooses to introduce such evidence about the victim,

then the prosecution may rebut such evidence with evidence of

the defendant’s own character. (Evid. Code, § 1103, subd. (a)(2).)

Specific to violent character evidence, pursuant to Evidence

Code section 1103, subdivision (b), if “a defendant offers

evidence to establish that the victim was a violent person,

thereby inviting the jury to infer that the victim acted violently

during the events in question, then the prosecution is permitted

to introduce evidence demonstrating that . . . the defendant was

a violent person, from which the jury might infer it was the

defendant who acted violently.” (People v. Fuiava (2012)

53 Cal.4th 622, 696 (Fuiava).) Even if evidence of a defendant’s

character is made admissible under Evidence Code section 1103,

a trial court may still exclude it under Evidence Code section

352 if “its probative value is substantially outweighed by the

probability that its admission will (a) necessitate undue

consumption of time or (b) create substantial danger of undue

prejudice, of confusing the issues, or of misleading the jury.”

(See People v. Gutierrez (2009) 45 Cal.4th 789, 808 (Gutierrez I).)

We review the trial court’s ruling admitting evidence under

Evidence Code sections 1103 and 352 for abuse of discretion.

(People v. Cox (2003) 30 Cal.4th 916, 955.)

Here, defendant contends the trial court misinterpreted

Evidence Code section 1103 and did so in a manner that violated

his constitutional rights. Defendant repeats his argument

before the trial court that he never offered “evidence of

Richmond’s misconduct to show that he had a violent character

14

Except as limited in sex offense cases. (See Evid. Code,

§ 1103, subd. (c)(1).)

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and therefore was the aggressor on the night he died.” The

evidence was merely meant to show defendant’s “state of mind

and to counter the prosecution’s theory of murder.” In other

words, defendant insists he never “opened the door” for the

prosecution to present evidence of his violent character.

On the record before it, the trial court could reasonably

conclude that defense counsel presented evidence of Richmond’s

misconduct to show he was a violent person. As noted, during

his opening statement, defense counsel said: “Mr. Richmond has

been taken to another cell and has another cellie. During the

time he’s with that cellie he gets caught with weapons, gets

drunk, and he gases a CO. And I’m not saying it’s anything to

imply that that’s unusual but that — or to imply that he’s a

villain, but only to put in balance that he’s not an innocent

either.” While questioning Vialpando about Richmond’s robbery

conviction, defense counsel asked, “robbery, even second degree,

is by force or fear of violence; is that correct?” When Vialpando

replied that second degree robbery is a serious felony, but not a

violent offense, counsel replied, “it’s threat-related, but it’s

taking from the presence of somebody or the person of somebody;

is that correct?” Vialpando replied, “Correct sir.” These

arguments and inquiries seem aimed at portraying Richmond

as violent. On this record, the trial court did not have to accept

defense counsel’s representation that the evidence of

Richmond’s misconduct was admitted solely for purposes of

establishing defendant’s state of mind. The defense’s theory was

that defendant acted in self-defense after Richmond received an

unwrapped knife and attacked him, and the jury had evidence

before it that Richmond previously possessed a weapon and

gassed an officer, i.e., evidence showing that Richmond might

have acted in conformity with his prior violent behavior on the

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night of his death and been the aggressor. As defense counsel

argued, Richmond was “not an innocent.” Thus, the trial court

reasonably concluded the evidence of Richmond’s misconduct

served “multiple purposes” and it would have been improper to

give a limiting instruction to prevent jurors from considering it

as evidence of Richmond’s violent character. Moreover, the trial

court advised defense counsel, prior to the start of the defense

case, that it was going to wait to rule on whether evidence of

Richmond’s misconduct would open the door to rebuttal

evidence of defendant’s misconduct, but defense counsel

proceeded to elicit information about Richmond’s violent

character without waiting for a ruling. Under these

circumstances, the trial court did not abuse its discretion by

allowing the prosecutor to rebut such evidence with evidence of

defendant’s own violent character.15

15

In his second supplemental brief, defendant claims for the

first time that he received ineffective assistance of counsel as an

alternative claim to his argument that the trial court erred

when it permitted the prosecution to admit evidence of his prior

violent acts under Evidence Code section 1103, subdivision (b).

However, as the record reflects, defense counsel’s purpose for

eliciting evidence of Richmond’s prior violent conduct was to

contradict the prosecution’s motive theory. In doing so, defense

counsel risked opening the door to evidence of defendant’s prior

violent conduct. Defendant asserts the trial court induced

defense counsel’s ineffective choice by changing its ruling on the

Evidence Code section 1103 issue, but the record shows the court

did not definitively rule that it would not let in rebuttal evidence

if defense counsel presented evidence of Richmond’s violent acts

and defense counsel presented the evidence without waiting for

a ruling. On the present record, defendant’s belated claim of

court-induced ineffectiveness does not merit our consideration.

(See People v. Carrasco (2014) 59 Cal.4th 924, 990 [new theory

of ineffective assistance raised for first time at oral argument

and in subsequent supplemental reply brief is forfeited].)

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Nor did the trial court abuse its discretion under Evidence

Code section 352 by admitting this evidence, which defendant

contends was “marginally probative and highly prejudicial.”

“The prejudice which exclusion of evidence under Evidence Code

section 352 is designed to avoid is not the prejudice or damage

to a defense that naturally flows from relevant, highly probative

evidence. ‘[A]ll evidence which tends to prove guilt is prejudicial

or damaging to the defendant’s case. The stronger the evidence,

the more it is “prejudicial.” The “prejudice” referred to in

Evidence Code section 352 applies to evidence which uniquely

tends to evoke an emotional bias against the defendant as an

individual and which has very little effect on the issues. In

applying section 352, “prejudicial” is not synonymous with

“damaging.” ’ ” (People v. Karis (1988) 46 Cal.3d. 612, 638,

italics added.) Defendant’s own violent character in this self-

defense case was made highly relevant after the defense’s

presentation of evidence that Richmond possessed a weapon and

gassed a guard. Moreover, the trial court cabined the evidence

of defendant’s violent character, excluding evidence of his prior

murder conviction and cutting off the prosecution’s presentation

of evidence at the point it risked becoming cumulative. Nor did

the evidence “necessitate undue consumption of time” (Evid.

Code, § 352), as it was efficiently presented through defendant’s

own testimony. On this record, defendant fails to show the trial

court exercised its discretion “ ‘ “ ‘in an arbitrary, capricious or

patently absurd manner that resulted in a manifest miscarriage

of justice.’ ” ’ ” (People v. Mora and Rangel (2018) 5 Cal.5th 442,

480 (Mora and Rangel).)

For the same reasons, defendant fails to persuade that the

trial court’s application of Evidence Code section 1103 deprived

him of “his federal and state constitutional rights to due process

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and a fundamentally fair trial, to exercise his privilege against

self-incrimination, to fair notice, and to a reliable capital

proceeding.” “[T]he operation of [Evidence Code] section 1103(b)

is dependent upon a choice made by the defendant, in much the

same way that other strategic choices made by the defense

during a trial will make admissible evidence that otherwise

would have been excluded. [Citation.] It is not fundamentally

unfair to require the defendant to make that choice.” (Fuiava,

supra, 53 Cal.4th at p. 698; see also id. at p. 700 [Evidence Code

section 1103, subdivision (b) does not violate “any fundamental

constitutional principle of fairness and justice”].) Having chosen

to present evidence of Richmond’s violent misconduct,

defendant’s claims of constitutional error fail.

4. The Trial Court’s Instructions Addressing the

Evidence Code Section 1103, Subdivision (b)

Evidence Accurately Explained the Law

Defendant asserts the trial court’s jury instructions

addressing the violent character evidence (see Evid. Code,

§ 1103, subd. (b)) were erroneous in various respects. We

conclude there either was no error in the instructions, or any

error was harmless.

a. Background

As previously noted, before permitting the prosecutor to

question defendant about his prior acts of violence, the trial

court instructed the jurors that the evidence “can only be used

by you pursuant to the Evidence Code to show whether or not

[defendant] has a character for violence or a trait of character

for violence. It cannot be used to show he has a propensity to

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commit violent crimes.”16 Before the jury’s guilt phase

deliberations, and following extended discussions with the

parties, the trial court instructed the jury on the prior crimes

evidence with CALJIC Nos. 2.09, 2.50.2, and a modified version

of 2.50.

As modified, CALJIC No. 2.50 (Evidence of Other Crimes)

read: “Evidence has been introduced for the purpose of showing

that the defendant committed crimes other than that for which

he is on trial. [¶] Except as you will otherwise be instructed,

this evidence, if believed, may be considered by you for the

limited purpose of determining if it tends to show: [¶] The

existence of the intent which is a necessary element of the crime

charged; [¶] The defendant had knowledge or possessed the

means that might have been useful or necessary for the

commission of the crime charged; [¶] For the limited purpose for

which you may consider such evidence, you must weigh it in the

same manner as you do all other evidence in the case. You are

not permitted to consider such evidence for any other purpose.”

CALJIC No. 2.09 (Evidence Limited As To Purpose) read,

“Certain evidence was admitted for a limited purpose. [¶] At the

time this evidence was admitted you were instructed that it

could not be considered by you for any purpose other than the

limited purpose for which it was admitted. [¶] Do not consider

16

At the time of defendant’s trial, and “[t]o appellant’s

knowledge, neither CALJIC nor CALCRIM include[d] standard

jury instructions relating to Evidence Code section 1103.” In

March 2023, CALCRIM No. 352 (Character of Victim and of

Defendant) was added to the California Criminal Jury

Instructions; it addresses character evidence admitted under

Evidence Code section 1103.

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this evidence for any purpose except the limited purpose for

which it was admitted.”

CALJIC No. 2.50.2 (Definition Of Preponderance Of The

Evidence) read: “ ‘Preponderance of the evidence’ means

evidence that has more convincing force than that opposed to it.

If the evidence is so evenly balanced that you are unable to find

that the evidence on either side of an issue preponderates, your

finding on that issue must be against the party who had the

burden of proving it. [¶] You should consider all of the evidence

bearing upon every issue regardless of who produced it.”

The trial court did not instruct the jury with CALJIC No.

2.50.1, which would have told jurors that the prosecution must

prove a defendant committed other crimes for which he or she is

not on trial by a preponderance of the evidence. Nor did the trial

court give any of the special instructions related to Evidence

Code section 1103, subdivision (b) requested by defense counsel.

Defense counsel had proposed, inter alia, a special instruction

that would have told jurors: “It is not sufficient to sustain a

conviction on a particular charge to prove that the defendant is

guilty of some other charge or of generally bad and criminal

conduct. But the proof must establish his guilt of the particular

charge in the indictment.”

b. Analysis

First, defendant alleges the trial court’s instructions

“unfairly permitted the jury to consider other crimes evidence in

determining whether [defendant] — but not Richmond — had a

violent character.”

“A defendant is entitled to a pinpoint instruction, upon

request, only when appropriate. [Citation.] ‘Such instructions

relate particular facts to a legal issue in the case or “pinpoint”

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the crux of a defendant’s case . . . . [Citation.] They are required

to be given upon request when there is evidence supportive of

the theory, but they are not required to be given sua sponte.’ ”

(Gutierrez I, supra, 45 Cal.4th at p. 824.) “

Defendant does not contend that he specifically requested

a pinpoint instruction to the effect that Richmond’s prior

violence could be considered as relevant to the question of

whether he acted in conformity therewith on the night of his

death. In the absence of a request, defendant was not entitled

to a pinpoint instruction regarding Richmond’s violent

character, and he cannot complain that the jury instructions

were unfairly lopsided in that regard.17

17

During the parties’ subsequent discussions about how to

instruct the jury, the only special instruction requested by

defense counsel pertaining to the prior crime evidence spoke to

it being insufficient to “establish his guilt of the particular

charge in the indictment.” The trial court refused a requested

special instruction titled “ ‘Other Crimes, Risk of Prejudice,’ ”

deeming it “argumentative,” but told defense counsel he could

“certainly argue that.” Defendant points out that the record on

appeal does not include a complete set of all the special jury

instructions offered by the parties. For purposes of establishing

the record on appeal, the parties signed a “Stipulated Settled

Statement Re Jury Instructions.” In the statement, the parties

explain that defense counsel submitted a second and third

packet of proposed jury instructions, “[o]n January 5, 2004” and

“[o]n January 8, 2004” respectively, that could not be located.

The parties did not recall the content of these proposed

instructions. Both packets were before the trial court when, on

January 8, 2004, it ultimately refused defense counsel’s

proposed “ ‘Other Crimes, Risk of Prejudice’ ” instruction as

argumentative and there is no suggestion in the record that

counsel requested a pinpoint instruction to the effect that

Richmond’s prior violent misconduct could be considered to

demonstrate his character for violence.

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Second, defendant contends the modified CALJIC No. 2.50

instruction was inapplicable to his case because the trial court

did not admit his prison misconduct under section 1101 to show

his intent or knowledge in stabbing Richmond, but instead only

to show his character for violence under section 1103. In his

view, the court’s instructions, by permitting jurors to consider

his prior misconduct for the dual purposes of demonstrating his

intent and knowledge (see Evid. Code, § 1101, subd. (b)) and his

character for violence (id., § 1103, subd. (b)), gave him “the worst

of both worlds.” The People argue that the trial court

“implicitly” admitted the evidence of defendant’s prior

misconduct under Evidence Code section 1101, subdivision (b).

When initially discussing the CALJIC No. 2.50 instruction

with the trial court, including defense counsel’s assertion that

“1101-B was thrown out,” the prosecutor posited, “I don’t

believe, your Honor, that you did eliminate me from bringing in

1101-B evidence. In fact, before we selected the jury, we went

through that. And you were inclined to let it in. And you were

holding off to see how it all panned out during the course of the

trial. [¶] So I just saw another opening under 1103. And that’s

how I proceeded. But 1101-B did not specifically exclude the

evidence.” The court responded, “I think you’re right.” Later,

when revisiting its discussion of the CALJIC No. 2.50

instruction, defense counsel said, “I’m not sure it was admitted

on the intent stuff, but we’ll reserve the right to consider that

further because I think it was admitted solely on the issue of

violent character traits.” The court responded, “I think so.”

Defense counsel continued, “Not on the intent or knowledge. I

think you had ruled that out under 1101(b) except on the issue

of possession of weapons.” The court said, “No, if it’s admissible

under those sections, then, use it the way it is.”

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The trial court’s initial tentative ruling, at least as to

defendant’s prior possession and manufacturing of weapons,

was that the prior misconduct evidence was not admissible

under Evidence Code section 1101, subdivision (b) “unless

[Barrett] claims that [the weapons he possessed] were

Richmond’s weapons; that he didn’t have any weapons.” As

such, we will assume the trial court erred by instructing the jury

with CALJIC No. 2.50. Nevertheless, any error was harmless.

As previously explained, the evidence of defendant’s prior acts

of violence was properly introduced under Evidence Code section

1103 to prove defendant acted in conformity with his violent

character on the night of Richmond’s death. In conjunction with

admitting the evidence, the trial court instructed in part that it

“can only be used by you pursuant to the Evidence Code to show

whether or not [defendant] has a character for violence or a trait

of character for violence.” Thus, the trial court’s subsequent

instruction under a modified version of CALJIC No. 2.50, which

told jurors they could consider the evidence of defendant’s

uncharged acts for a purpose narrower than showing his

character for violence, i.e., “for the limited purpose of

determining if it tends to show” his intent or knowledge and for

no “other purpose,” could not have prejudiced defendant.

Third, defendant complains the trial court erred by failing

to instruct jurors under CALJIC No. 2.50.1. CALJIC No. 2.50.1

would have told jurors that “the prosecution has the burden of

proving by a preponderance of the evidence that a defendant

committed crimes other than those for which he is on trial” and

the evidence may not be considered “for any purpose” unless so

proved. The instruction also “remind[s] [jurors] that before a

defendant can be found guilty of any crime charged in this trial,

the evidence as a whole must persuade you beyond a reasonable

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doubt that the defendant is guilty of that crime.” Relatedly,

defendant asserts the trial court should have given a special

instruction at his request that “would have remedied some of

[the] prejudice caused by the absence of 2.50.1” by telling “the

jury that other crimes evidence was insufficient to sustain a

conviction of the charged offenses.” Under the trial court’s

instructions as a whole, the failure to instruct under CALJIC

No. 2.50.1 was harmless. After reading the instruction defining

“preponderance of the evidence” (CALJIC No. 2.50.2), the trial

court stated, “I don’t want to confuse you with this too much.

But the main burden here is beyond a reasonable doubt, not

preponderance. There’s one issue that has to be proved by a

preponderance. And at this moment it escapes me.” Defense

counsel asserted, “Other crimes.” The trial court then advised

the jury that “[t]he other crimes that were alleged that you

heard about that these people may have committed. Those only

have to be proved by a preponderance, which is the definition

used in civil cases. More likely than not. 51/49 is a

preponderance. [¶] The issue of guilt here and the finding of

special circumstances is governed by the reasonable doubt

standard, not by — beyond a reasonable doubt, not by

preponderance of the evidence.”

Defendant asserts the trial court’s “improvised oral

instructions” were an inadequate substitute for CALJIC No.

2.50.1, but the jury was told to consider the instructions as a

whole and additionally instructed that the People had the

burden of proving the charged crimes beyond a reasonable doubt

(CALJIC Nos. 2.01, 2.90). Taken together, these instructions

correctly advised the jury of the relevant law and compensated

for any alleged deficiency in the trial court’s deviation from the

standard instructions under CALJIC No. 2.50.1. Nonetheless,

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even though we find no prejudice on the instructional record

here, we take this opportunity to remind trial courts that, when

the standard instructions are complete, it is “often risky” for the

court to stray from them. (People v. Beardslee (1991) 53 Cal.3d

68, 97.)

In sum, with respect to each claim, defendant either fails

to demonstrate error or prejudice, and there was no risk of

cumulative prejudice. (See People v. Rogers (2006) 39 Cal.4th

826, 890 (Rogers) [where the issue posed by one incorrect

instruction was resolved against the defendant under other

instructions, it “did not result in any prejudice . . . that could

cumulate” and the other error, “standing alone did not render

the trial fundamentally unfair”].)

5. The Trial Court Properly Admitted Evidence that

Richmond Turned in Weapons

Defendant contends the trial court erred when it refused

to strike the testimony from Correctional Officers Longcor and

Borem that Richmond had voluntarily turned over weapons he

had received from another inmate. Defendant asserts this

testimony was inadmissible absent the “critical foundational

fact” that defendant knew Richmond had done so. Absent such

a showing, defendant argues that the testimony was irrelevant

because it could have no bearing on the prosecution’s theory that

defendant killed Richmond because he knew Richmond was “a

rat” working with prison officials.

a. Background

Before trial, the prosecution explained in its “Trial Brief

and In Limine Motions” that “[t]he evidence will show that

defendant Barrett decided to murder Mr. Richmond for

voluntarily turning in two inmate manufactured weapons to a

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correctional officer.” The prosecution was prepared to present

evidence to establish that, during their time sharing a cell,

defendant became suspicious of Richmond and started inquiring

about him with other inmates. “After defendant’s inquiries

about the victim, inmate Keith Barnard . . . sent a ‘kite’ back to

defendant Barrett,” informing him “that Richmond had turned

in two weapons he had been instructed to hold for another

inmate, to a Correctional Officer, and gave defendant Barrett

the ‘green light’ to assault the victim for giving up weapons.”

Barnard was on the prosecution’s witness list for trial.

After Longcor and Borem testified, the People called

Barnard to the stand, but he refused to testify even though he

was granted immunity; the trial court instituted contempt

proceedings against him. The expected letter or “kite” from

Barnard, informing defendant that Richmond had turned over

two weapons, was excluded from evidence for lack of foundation;

there was no evidence defendant actually received the kite.

During the defense case, when defendant’s cross-

examination by the prosecutor was interrupted to discuss the

admissibility of defendant’s prior misconduct under Evidence

Code section 1103, defense counsel moved to strike the evidence

that Richmond had given up weapons as irrelevant. Defense

counsel argued the evidence was irrelevant because the

prosecutor failed to prove that defendant knew Richmond had

given up weapons; counsel pointed out that the trial court

excluded Barnard’s letter on that basis. Defense counsel also

argued that, by extension, any evidence of defendant’s bad acts

should be excluded because Richmond’s violent acts of gassing

an officer and possessing a weapon were only mentioned to rebut

the prosecution’s unsupported theory of motive. The trial court

said the issue could be argued to the jury. The trial court then

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permitted the prosecution to question defendant about his prior

acts of violence. After the defense presented the remainder of

its case in chief, defense counsel “renew[ed] [his] motion to

strike the testimony of the two officers” that Richmond had

given up weapons as irrelevant because “there’s never been a

tie-up of that — those events or any evidence — any credible

evidence, any competent evidence to show that [defendant] had

knowledge of those things.” The trial court observed that the

motion “might be premature,” and declined to rule until all the

evidence was in. Defense counsel highlighted for the court that

only rebuttal witnesses remained; the court deferred a ruling “to

wait and see what they say.”

During the prosecution’s rebuttal, inmates Wilson, Hill

and Magee testified, inter alia, to the effect that defendant

thought Richmond was a “rat.” (See opn., ante, at pp. 14–16.)

Hill testified more specifically that defendant told him that

Richmond “had two knives” and Richmond “used those knives to

get at the cops and tell them he had knives,” so he could be sent

to Ad Seg and avoid “a debt on ‘C’ yard to another inmate.”

b. Analysis

When “[t]he relevance of the proffered evidence depends

on the existence of [a] preliminary fact,” the proponent of the

evidence bears the burden of producing evidence in support of

that preliminary fact. (Evid. Code, § 403, subd. (a)(1).) “We

have explained that the trial court’s role with regard to

preliminary fact questions under Evidence Code section 403,

subdivision (a), ‘ “ ‘is merely to determine whether there is

evidence sufficient to permit a jury to decide the question.” ’ ”

(People v. Brooks (2017) 3 Cal.5th 1, 47.) “ ‘The court should

exclude the proffered evidence only if the “showing of

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preliminary facts is too weak to support a favorable

determination by the jury.” ’ ” (People v. Jones (2013) 57 Cal.4th

899, 956, quoting People v. Lucas (1995) 12 Cal.4th 415, 466.)

“The determination regarding the sufficiency of the

foundational evidence is a matter left to the court’s discretion.

[Citation.] Such determinations will not be disturbed on appeal

unless an abuse of discretion is shown.” (Brooks, at p. 47.)

Here, the prosecution explained before trial that it would

produce evidence to establish that defendant knew Richmond

turned over two weapons to prison officials, namely, the

testimony and letter of fellow inmate Barnard. At that point,

defense counsel did not make any claim that the prosecution’s

anticipated foundational evidence would be insufficient to

permit the jury to determine the relevance of Richmond turning

over weapons. However, after Longcor and Borem testified,

Barnard was called by the prosecution to testify but ultimately,

and presumably unforeseeably, refused to do so despite a court

order. Defense counsel did not move to strike the officers’

testimony at that point in time. Instead, defense counsel waited

until after the prosecution’s case in chief had concluded to move

to strike the testimony. The trial court first said the question

could be argued to the jury. Defense counsel thereafter renewed

his motion to strike prior to the prosecution’s presentation of

rebuttal witnesses (i.e., after the defense and prosecution’s cases

in chief had concluded), and the trial court then deferred its

ruling until after the rebuttal testimony.

Defendant asserts the trial court erred by deferring its

ruling on his motion to strike the officers’ testimony until

hearing from the prosecution’s rebuttal witnesses, though he

admits he cannot find any case law prohibiting such a deferred

ruling. More specifically, defendant contends that permitting a

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court to defer a ruling in this manner “would be illogical” in light

of the longstanding rule that rebuttal evidence may “ ‘not

include a material part of the case in the prosecution’s

possession that tends to establish the defendant’s commission of

the crime.’ (People v. Carter (1957) 48 Cal.2d 737, 753

(Carter).)”

Where the trial court was first presented with a motion to

strike from defendant after the prosecution’s case in chief had

concluded, its ultimate conclusion that the rebuttal witnesses

could furnish the requisite foundational fact (that defendant

knew Richmond handed over weapons) was procedurally logical.

(See People v. Cox (1991) 53 Cal.3d 618, 700 [“[a] trial court has

inherent as well as statutory discretion to control the

proceedings to ensure the efficacious administration of justice”];

§ 1044 [“It shall be the duty of the judge to control all

proceedings during the trial . . . with a view to the expeditious

and effective ascertainment of the truth regarding the matters

involved”].) Had defense counsel moved to strike the officers’

testimony during the prosecution’s case-in-chief, after Barnard

refused to testify, then the prosecution could have been called

upon to remedy any alleged foundational deficiency during its

case-in-chief, with witness testimony like that ultimately

provided by Wilson, Magee, and Hill. (See People v. Viray (2005)

134 Cal.App.4th 1186, 1208–1209 [“Ordinarily a court cannot

commit error in the admission of evidence unless it is called

upon to rule on an objection by a party. (See Evid. Code, § 353,

subd. (a).) . . . For a court to take the initiative in enforcing such

rules would tend to interfere with the prerogatives of counsel”].)

The rebuttal testimony from Wilson, Magee and Hill that

defendant communicated to them that he thought Richmond

was a “rat,” and Hill’s specific testimony that defendant

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mentioned Richmond giving up two weapons “to get at the cops,”

was more than sufficient for the jury to infer that defendant

knew Richmond handed over weapons to prison officials —

thereby lending relevance to the officers’ testimony about

Richmond handing over weapons. On this record, the trial court

did not abuse its discretion by denying defendant’s motions to

strike the officers’ testimony.18 For the same reasons, defendant

fails to demonstrate any constitutional error. (Cf. People v.

Fudge (1994) 7 Cal.4th 1075, 1102–1103 [“As a general matter,

the ‘[a]pplication of the ordinary rules of evidence . . . does not

impermissibly infringe on a defendant’s right to present a

defense’ ”].)

6. The Trial Court Properly Denied Defendant’s

Motion for Judgment of Acquittal

Defendant contends the trial court erred by denying his

motion for acquittal (§ 1118.1).

a. Background

On December 16, 2003, after the prosecution presented its

guilt phase case-in-chief, defendant, pursuant to section 1118.1,

filed a written motion for “acquittal on the first degree murder

18

Defendant also argues that the trial court erred in denying

his first motion to strike the officers’ testimony about Richmond

giving up weapons. He argues that there was insufficient

foundation when the first motion was made, and the evidence

should have been excluded at that time. He therefore contends

that the trial court erred in concluding that the evidence could

be admitted, and that defense counsel could simply argue to the

jury that there was no evidence defendant knew Richmond

turned over weapons. However, as explained above, the trial

court subsequently and reasonably permitted the rebuttal

witnesses to provide the requisite foundational testimony.

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charge and the special circumstance of lying-in-wait[.]”19 As for

the first degree murder charge, defendant claimed the

prosecution did not introduce “substantial evidence that the

killing was a premeditated, willful, deliberated murder” and the

prosecution theory “that Richmond was killed because he was

an informant cannot be sustained.” According to defendant,

“[w]ithout the evidence of so called motive, the record is naked

concerning the question what prompted the violence.”

Defendant further challenged the sufficiency of the evidence of

the lying-in-wait special circumstance charge, claiming that the

prosecution did not prove “any substantial waiting period before

the confrontation began.”

The trial court heard argument on the motion the same

day. Defense counsel argued, “The position of defense is that

the first degree [premeditated] murder has not been established

since there was no evidence other than there was an eruption of

violence that is unaccounted for.” Defense counsel further

asserted the evidence was inadequate to show the killing was

accomplished by lying in wait since there was insufficient

evidence “establishing what occurred prior to the eruption of

violence.”

In response, the prosecutor emphasized that Officer

Wysocki saw both men lying in their bunks during second count,

and then Richmond was dead on the third count. “That’s

definitely an indication that any reasonable juror could come to

and reach an inference that that — that they were, in fact,

19

Defendant also moved for acquittal on the weapon

possession charge “for his secreting of the razor blade.”

Defendant does not challenge the trial court’s denial of his

motion as to that count and we need not discuss it.

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sleeping or resting at the time [defendant] attacked Mr.

Richmond. That is clearly lying in wait.” Considering this same

evidence, the jury could decide whether defendant committed

first degree premeditated murder.

The court denied the motion, explaining that, if the jury

accepted the prosecution’s “interpretation of the facts, they

could find that [defendant] was lying in wait.” With respect to

first degree murder, the trial court observed, “I think on this

record, the jury could conclude that the killing was

premeditated based on the fact that it certainly took time to cut

that prisoner manufactured weapon, the shank, out of the desk.

That didn’t happen quickly. [. . .] [¶] And the jury could, based

on that, find that this murder was premeditated.”

b. Analysis

“We review the denial of a Penal Code section 1118.1

motion using the same standard ‘employed in reviewing the

sufficiency of the evidence to support a conviction.’ [Citation.]

We thus examine ‘ “the entire record in the light most favorable

to the judgment” ’ to determine whether it discloses substantial

evidence — ‘ “evidence that is reasonable, credible, and of solid

value” ’ — ‘ “from which a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt.” ’ [Citation.] Our

review ‘ “ ‘presume[s] in support of the judgment the existence

of every fact the jury could reasonably have deduced from the

evidence.’ ” [Citation.] Even where . . . the evidence of guilt is

largely circumstantial, our task is not to resolve credibility

issues or evidentiary conflicts, nor is it to inquire whether the

evidence might “ ‘ “be reasonably reconciled with the

defendant’s innocence.” ’ ” ’ [Citation.] Instead, we ask whether

there is ‘ “ ‘substantial evidence of the existence of each element

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of the offense charged’ ” ’ such that any rational jury may have

convicted defendant.” (People v. Veamatahau (2020) 9 Cal.5th

16, 35–36 (Veamatahau).)

i. First- Degree Murder

Defendant contends the evidence was insufficient to show

Richmond’s murder was deliberate and premeditated so as to

constitute murder in the first degree. (See § 189, subd. (a).)

“ ‘ “An intentional killing is premeditated and deliberate if

it occurred as the result of preexisting thought and reflection

rather than unconsidered or rash impulse.” ’ [Citation.]”

(People v. Potts (2019) 6 Cal.5th 1012, 1027.) In People v.

Anderson (1968) 70 Cal.2d 15, 26 (Anderson), we identified

“three basic categories” of evidence that may be probative of

premeditation and deliberation: 1) planning activity, 2) motive,

and 3) manner of killing. However, “ ‘[u]nreflective reliance on

Anderson for a definition of premeditation is inappropriate.’

[Citation.] ‘The Anderson analysis was intended as a framework

to assist reviewing courts in assessing whether the evidence

supports an inference that the killing resulted from preexisting

reflection and weighing of considerations. It did not refashion

the elements of first degree murder or alter the substantive law

of murder in any way.’ [Citation.]” (People v. Gonzales and Soliz

(2011) 52 Cal.4th 254, 294.)

Focusing on the Anderson categories, defendant argues

that “the prosecution’s case-in-chief failed to present substantial

evidence of planning activity, motive, or manner of killing from

which the jury could have reasonably inferred that appellant

killed Richmond with premeditation and deliberation.” We

disagree.

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