People v. Barrera

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

MARCOS ESQUIVEL BARRERA,

Defendant and Appellant.

S103358

Los Angeles County Superior Court

PA029724

June 1, 2026

Justice Kruger authored the opinion of the Court, in which

Chief Justice Guerrero and Justices Corrigan, Groban, and

Jenkins* concurred.

Justice Liu filed a concurring opinion.

Justice Evans filed a dissenting opinion.

*

Retired Associate Justice of the Supreme Court, assigned

by the Chief Justice pursuant to article VI, section 6 of the

California Constitution.

PEOPLE v. BARRERA

S103358

Opinion of the Court by Kruger, J.

A jury convicted defendant Marcos Esquivel Barrera of the

first degree murders of two of his children, five-year-old Ernesto

and two-year-old Guadalupe, and found true the special

circumstances of torture murder and multiple murders. (Pen.

Code, §§ 187, 190.2, subd. (a)(3), (18).) The jury also convicted

Barrera of child abuse homicide, child endangerment, and

corporal injury to a child, and found true additional

enhancement allegations concerning the latter two offenses.

(Pen. Code, §§ 273ab, 273a, subd. (a), 273d, subd. (a), 12022.7,

subd. (a), 12022.95.) After the penalty phase, the jury returned

a verdict of death. The trial court sentenced Barrera to death

on the murder counts and stayed punishment on the other

counts. This appeal is automatic. (Id., § 1239, subd. (b).) We

affirm the judgment in its entirety.

I. FACTUAL BACKGROUND

A. Guilt Phase

The prosecution presented evidence that, at the time of the

murders, Barrera maintained two families: a family of seven

children with his wife, Petra Ricardo, and a family of four

children with Petra’s younger sister, Maria Ricardo, who was

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Barrera’s codefendant in this case.1 Barrera and Maria Ricardo

lived together with nine of the children in the Pacoima

neighborhood in Los Angeles, while Petra and the other children

lived in a different place nearby.

Barrera had married Petra in Mexico in 1980. About five

years into his marriage, Barrera took Maria Ricardo with him

to the United States, leaving Petra in Mexico. Maria Ricardo,

who was 14 or 15 at the time, testified that Barrera took her to

the United States against her will and physically abused her.

Barrera and Maria Ricardo began to have children of their own.

The move created two families, one on each side of the border.

Maria Ricardo and her children lived in California, while Petra

and her children stayed in Mexico. Barrera lived with Maria

Ricardo in a converted garage with one living space, a bathroom,

and a kitchen.

For a time, Barrera lived with Maria and her children and

traveled back and forth between the two families. In 1997,

Barrera brought Petra and her children to the United States.

Petra and her children moved into a different place in Pacoima,

near the converted garage where Barrera and Maria Ricardo

lived. Barrera decided, against Petra’s wishes, that five of

Petra’s children would move into the converted garage where he

and Maria Ricardo lived. These five children included

Guadalupe (known as Lupita) and Ernesto. Lupita lived with

Barrera for about three months before her death at age two;

1

Maria Ricardo was charged with crimes including child

abuse and acting as an accessory to the crimes of murder and

child abuse homicide. She was found guilty of two counts of

child abuse (Pen. Code § 273a, subd. (a)), but not guilty as an

accessory (id., § 32).

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Ernesto lived with Barrera for about nine months before his

death at age five.

The prosecution presented evidence that Barrera

physically abused members of both family households.

Barrera’s daughter, Maria E., testified that when Barrera got

angry, he would pull her hair until it came out or hit her with

his leather shoes. He would also hit Petra’s 13-year-old twins,

Jose E. and Marcos E., with his shoes or thick belt. Another

daughter, Luz E., testified that Barrera beat all of them, and

that he beat her mother, Maria Ricardo, “almost every day” with

cords, coat hangers, shoes, broomsticks, and “anything that he

could grab.” Barrera would sometimes take Maria Ricardo to

the mountains for beatings, occasionally with the children in

tow. On one occasion, Luz tried to intervene as Barrera punched

her mother; Barrera threw a shoe at Luz and gave her a bloody

nose. Maria Ricardo testified that Barrera would beat her for

perceived disobedience, including, for example, going outdoors

on a hot summer day when he had commanded her to stay

indoors.

The prosecution also presented evidence that Barrera

controlled the family’s activities, including where his family

members would sleep, eat, and work. The family supported

itself by selling corn, and Barrera ordered the children to help

with selling, sometimes following them in his car as they pushed

carts of corn down the street. Barrera collected the earnings at

the end of each day and Maria E. testified he would sometimes

get angry if he felt the funds fell short. According to Maria

Ricardo, when Barrera was upset with her, she “always had to

kneel” and beg for forgiveness. Barrera had also threatened

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Opinion of the Court by Kruger, J.

Maria Ricardo in the past, telling her she “did not deserve to

keep on living.”

While he was abusive toward both families, witnesses

testified that Barrera favored Maria Ricardo’s children over the

children of his wife, Petra. Luz testified that Barrera used to

say that his children with Maria Ricardo were his favorites. He

would demonstrate occasional kindness towards Maria

Ricardo’s children — for instance, buying them a birthday

cake — that he did not demonstrate to Petra’s children. Petra’s

oldest daughter, Maria E., testified that her half-siblings “had

more than [she] did.”

Witnesses testified that Barrera targeted Lupita and

Ernesto, who were both Petra’s children, for particularly severe

abuse. According to Maria Ricardo, Barrera began beating

Lupita and Ernesto immediately after the two arrived at the

converted garage. When asked whether Barrera ever gave a

reason for abusing Lupita and Ernesto, witnesses testified that

Barrera said Lupita was disobedient and “did not love him,” and

that Barrera did not believe Ernesto was his biological son. Luz

explained this was because Ernesto “was light” and had light

brown hair.

Maria E. and her brother Jose both testified that Barrera

beat Lupita “every day.” Maria E. testified he would beat Lupita

“with his hands, and [that] he used to throw [Lupita] into the

wall,” which he did more than once. Maria E. also testified that

Lupita had marks on her that were “red” and “[o]n her back, on

her front,” though she could not remember whether Lupita had

those marks all of the time, nor whether Barrera ever hit Lupita

with his shoe or a belt.

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On the day of her death, two-year-old Lupita woke up

crying. Maria E. testified that Lupita had “gone to the bathroom

in her underwear.” When Barrera found out, he told Maria E.

to give Lupita a cold shower. Maria E. tried to use warm water

instead, but Barrera entered the room, ordered the tap turned

to cold, and put Lupita in the cold shower. After the cold shower,

Barrera took Lupita to the middle of the living area, clasped her

wrist, pulled her arm up straight into the air, and “started

hitting her” in the back with his flat hand at least three times.

Lupita was crying. Maria E. testified that Lupita’s head flopped

back and forth, “going down, up and down, up and down” as far

back as possible. Barrera then threw Lupita into a wall about

eight feet away.

Lupita’s head hit the wall with a loud crack. According to

Maria E., Lupita’s “neck went down,” she fell to the ground, and

she made no more noise. At this point, Maria Ricardo told

Barrera to stop hitting Lupita because “he was going to kill her,”

but Barrera told Maria Ricardo to “shut up.” He commanded

Lupita to “put her head up,” then asked Maria E. to try holding

Lupita’s head up. Maria E. tried, but Lupita’s head kept “falling

down.” Barrera cursed and twice commanded Lupita to “stand

up, you bitch.” Maria Ricardo and Barrera then tried

unsuccessfully to revive Lupita by putting alcohol under her

nose.

Maria Ricardo accused Barrera of killing Lupita. She

testified that she told Barrera they should call the police or take

Lupita to the doctor, but Barrera refused because Lupita “was

beaten and there would be investigations and they would

remove all the children.” Barrera told Maria Ricardo and Maria

E. not to tell anyone what had happened. At this point, Lupita

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was unconscious but still breathing. She was left on the floor

for several hours. While Lupita was on the floor, Barrera left

the converted garage to deliver corn to Petra to sell.

Jose testified that sometime that afternoon, Barrera

returned from Petra’s house and instructed him to take the

blame for Lupita’s injury or else he would “do the same thing [to

me] as to my sister.” Barrera then drove Jose, some of the other

children, and Lupita — who was then still breathing — to

Petra’s house. Jose told his mother, Petra, that he accidentally

threw Lupita into the wall when he meant to throw her onto the

bed. When Petra saw Lupita, she began to cry. She testified

that Lupita was “stressed,” “very cold,” and that she saw a belt

mark on Lupita’s leg as well as a cut. She wanted to take Lupita

to the hospital, but Barrera again refused, saying they could not

afford a hospital visit and that Jose would get into trouble.

Instead, Barrera took Petra and several of the children to buy

Pedialyte and Tylenol. Petra tried to give Lupita the Tylenol,

but she was unable to take it. According to Petra, during this

time, Barrera did “nothing,” kept saying “[i]t was just an

accident, woman,” and called Petra a “scandalous fucking bitch.”

Lupita died in Petra’s arms later that night.

After Lupita’s death, Petra wanted to take the child’s body

to a funeral home, but Barrera refused. Instead, Barrera bought

a pick, a shovel, and a bottle of acid. Taking Lupita’s body with

him, he brought several family members to nearby mountains,

instructed one of the children to dig, and poured acid on Lupita’s

body after she was placed into the hole. Her body was

discovered about eight months after she was buried. A crucifix

had been placed on her chest.

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The prosecution introduced expert testimony from Dr.

James Ribe, who examined Lupita’s body. Dr. Ribe found

evidence of hydrochloric and sulfuric acid on her body, which he

said complicated the exam by, for example, softening her bones

and causing certain parts of her skeleton to collapse.

Nonetheless, Dr. Ribe testified to several findings from the

autopsy. Based in part on an incision into Lupita’s skull, Dr.

Ribe found bruising inside the skull bone indicating intentional

blunt force trauma. In Dr. Ribe’s opinion, the bleeding also had

to be caused by an adult because a two-year-old could not

produce the amount of force required to generate that level of

bruising. Lupita also had a “diastatic fracture” to her skull,

likewise consistent with blunt force trauma. She had bruising

on her back and neck which were “suspicious” of a hemorrhage

and had likely been sustained within a week of death, though

the acid made closer examination difficult. Dr. Ribe stated an

injury like this would be painful, but whether such pain was

prolonged depended on how long the child remained conscious.

He also stated that such an injury “usually . . . cause[s]

instantaneous unconsciousness,” but he did not know whether

it did so in this case. Dr. Ribe also explained that he took x-rays

of Lupita’s body and sent them to a radiologist, Dr. Donald

Boger, who found healed or partially healed fractures in Lupita’s

arm, collarbone, and both femurs. Dr. Ribe independently

examined Lupita’s right femur and found evidence of a weeks to

months-old fracture. He opined there was no way the fracture

could have been caused accidentally, “not in a two-year old or

one-year old, which when this happened she was probably only

one-year old or in that range. A baby like that is barely even

walking.” He believed the injury was “intentionally done” and

would have been “painful for some period of time.” He did not

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independently examine the other three fractures, but believed

they were also intentionally caused: “When you have small

fractures on a child like that; one leg, you can believe, but three

or four fractures cannot be an accident.” Dr. Ribe acknowledged,

however, that the x-rays only “suggest[ed] the changes seen with

healing fractures”; it was “not definite” that what they revealed

were, in fact, healing fractures. Dr. Ribe also found evidence of

chronic neglect and malnutrition. Although Lupita was two

years old, she was the same size as a typical 18-month-old.

Based on the size and overall condition of her body, and

accounting for postmortem deterioration, Dr. Ribe estimated

Lupita had been chronically neglected and undernourished for

at least six months to one year before her death. Dr. Ribe

concluded Lupita “was definitely abused by an adult” and that

she suffered from battered child syndrome, having sustained

“repeated injuries over a period of time giving injuries of

different ages.”

During the same period, Barrera continued to abuse

Ernesto. The abuse temporarily subsided after Lupita’s death

but resumed weeks later. Maria E. and Jose both testified that

Barrera beat Ernesto “every day,” using not just his hands, but

also a wide belt, the belt buckle, leather shoes, a broomstick, and

“whatever he could find.” Barrera would tell Ernesto to lift his

arms and then hit his back, and he would hit the broomstick

against Ernesto’s feet and legs; he broke Ernesto’s legs at least

once. Barrera also beat Ernesto with an electrical cord. Maria

E. saw red marks and bruises “basically everywhere” on

Ernesto, “in the back, in the front, on his feet.” At one point,

Ernesto could no longer use both of his legs and had to hop on

one foot. When that happened, Barrera tied sticks, boards, and

some floor tile to Ernesto’s leg possibly as a makeshift splint,

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though the details are not entirely clear. Jose’s twin brother,

Marcos, testified that Barrera tied up Ernesto’s wrists and

ankles, and that Ernesto would be tied all day and night on the

floor of the kitchen. Luz remembered only Ernesto’s hands

being tied up all day.

The prosecution also presented evidence that Barrera

isolated Ernesto from the rest of the family. Maria E. testified

that Barrera made Ernesto eat “[b]y the wall,” even though the

other children could eat wherever they wanted. Ernesto was

sometimes fed last. Marcos remembered Ernesto being hungry,

and two of the children testified that Barrera would sometimes

instruct family members to withhold food from Ernesto. At

some point, Ernesto had to ask Barrera’s permission to eat.

Barrera also dictated where Ernesto would sleep, assigning him

to a spot away from the rest of the family. According to Jose,

Maria Ricardo’s children slept on the bed, Petra’s children slept

on the carpet, and Ernesto had to sleep “separate, over by the

door.” One child also testified that Ernesto’s job was to pick up

trash, which Barrera made him continue even when his leg was

in the makeshift splint.

At some point, Ernesto appeared to fall into a semi-

comatose state. Barrera placed him upright against a wall of

the garage, where Ernesto stayed all day, barely eating or

drinking. According to Jose, Ernesto remained in this state —

up against the wall with his head leaning forward — for about

two months. The children would give Ernesto food or water by

raising his head. Jose testified that one night, as Maria E. was

attempting to feed Ernesto, Ernesto “didn’t want to anymore.”

Barrera tried to force Ernesto to eat by alternately hitting

Ernesto, kicking Ernesto with his foot, and “grabb[ing] [Ernesto]

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by the hair” and yanking his head back. Barrera then punched

Ernesto three times in the chest and kicked him in the head,

knocking Ernesto’s head back into the wall. Jose heard a loud

noise when Ernesto’s head hit the wall, and Ernesto’s body

shook a little as he dropped to the floor. Ernesto stopped

moving. Maria Ricardo heard Barrera say to Ernesto, “ ‘Don’t

fall asleep, fatso. Don’t fall asleep.’ ” Barrera also commented

that Ernesto was dying. Barrera and the rest of the family then

went to sleep, leaving Ernesto on the floor where he had fallen.

Ernesto died sometime during the following 24 hours.

After Ernesto died, Barrera asked Maria E. to see whether

Ernesto’s body was cold. Barrera then brought the boy’s body to

Petra and told her that the boy had fallen — that he “had an

accident . . . like a cardiac arrest.” Petra asked Barrera why

Ernesto was “really thin” and said he “wasn’t like that” before.

She remembered seeing a bruise on his body.

The next evening, Barrera took Ernesto’s body and drove

several family members into the Angeles National Forest north

of Pacoima. That night, two Los Angeles deputies out on patrol

in the National Forest spotted an abandoned car on the side of

the road. They pulled over to investigate and found Barrera,

Maria Ricardo, and three of the children in a brush area off the

road. Maria Ricardo was lying on a shovel next to some loose

dirt. After taking the shovel and digging about a foot and a half

into the earth, one of the deputies uncovered a piece of blue

cloth; when he pulled on the cloth, Ernesto’s arm came along

with it. The officers called the homicide unit, and Ernesto’s body

was exhumed shortly after. Like Lupita, Ernesto had been

buried with a crucifix. One of the children later told

investigating detectives where Lupita was buried.

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Prosecution experts testified that Ernesto’s body exhibited

evidence of physical abuse and severe neglect and malnutrition.

Dr. David Whiteman, who performed Ernesto’s autopsy,

described Ernesto’s injuries as a “textbook case for child abuse.”2

Ernesto’s body was bruised, malnourished, and covered with

lesions and scars, including scars consistent with painful injury

caused by intentional whippings with some kind of cord or rope.

There were also marks suggesting that something had been tied

around Ernesto’s right leg, consistent with tiles tied around his

leg as a splint, as well as a line consistent with a ligature mark

on Ernesto’s neck. Some of these marks and bruises were fresh

and occurred within hours of Ernesto’s death; others were older

than six months. Ernesto was found wearing a diaper as

underwear. Dr. Whiteman opined that the injuries, taken

together, revealed a “complete constellation of intent”: there

were so many large, differently aged wounds that they pointed

to “an intentional beating over a long period of time.”

According to Dr. Whiteman, Ernesto also had 20 broken

bones: 13 rib fractures (including some rebreaks), four lower leg

fractures (both bones in each leg), an upper arm fracture, and

two fractures in his forearms. Dr. Whiteman stated that the rib

fractures had occurred at different times and that the amount

of force necessary to break Ernesto’s ribs would have required

“intentional compression.” The rib fractures would have made

it “extremely painful” for Ernesto to breathe. Dr. Whiteman

believed a fracture to Ernesto’s left tibia, which occurred within

a week of Ernesto’s death, was “most likely” an intentional

2

According to Dr. Whiteman, the list of injuries to Ernesto’s

skin and internal tissue occupied two and a half single-spaced

pages, and there were too many injuries to fit into one diagram.

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break, given the other injuries Ernesto had sustained. A

fracture to the left fibula, meanwhile, was at least a few weeks

old but less than a year old, and the right leg had an old fracture

that had never been adequately splinted or otherwise allowed to

heal correctly. Ernesto’s “feet and legs were chronically

deformed from repeated fractures” that never healed correctly,

meaning Ernesto would not have been able to walk normally.

Dr. Whiteman also described two blood clots found in Ernesto’s

skull, one old and one recent, both likely caused by intentional

blows to the head.

Dr. Whiteman also found evidence that Ernesto was

“deliberately starved.” Ernesto’s ribs and bones were visible

through his skin, his hair was thinning, and he was missing his

thymus — a gland in the chest that disappears in children with

a history of chronic starvation. Dr. Whiteman believed Ernesto

had been malnourished for at least six months and that he was

not being fed during the period before his death. Ernesto’s

weakened state also made it more difficult for Dr. Whiteman to

assess the force required to cause some of the boy’s injuries.

Based on the number of injuries to Ernesto’s body and the

boy’s weakened state, Dr. Whiteman concluded Ernesto suffered

from battered child’s syndrome, which occurs when a child is so

“injured over a long period of time, and it’s a continuum of

injuries, [that] you cannot pick out the effect of one single

injury.” In his view, Ernesto’s injuries had been intentionally

caused. The injuries were so extensive that Ernesto would have

died “from the constellation of injuries” even without the

hematoma in the brain. Dr. Whiteman testified he had never

seen a case of child abuse like Ernesto’s in his entire career.

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The defense put on no witnesses. Barrera conceded that

he was guilty of second degree murder, but “of no more than

second-degree murder.”

The prosecutor argued, and Barrera’s jury was instructed

on, two theories of first degree murder: (1) murder by torture

and (2) premeditated and deliberate murder. Without

specifying which theory or theories it relied on, the jury

convicted Barrera of first degree murder for the deaths of both

Ernesto and Lupita. (Pen. Code, § 187, subd. (a).) As to both

murders, the jury also found true both the torture-murder and

multiple-murder special circumstances. (See Pen. Code, § 190.2,

subd. (a)(3), (18).) The jury also convicted Barrera of assault of

a child under eight resulting in death (an offense sometimes

called child abuse homicide), child endangerment, and corporal

injury to a child; and the jury found true additional

enhancement allegations concerning the latter two offenses.

(Pen. Code, §§ 273ab [child abuse homicide], 273a, subd. (a)

[child endangerment], 273d, subd. (a) [corporal injury], 12022.7,

subd. (a), 12022.95.)

B. Penalty Phase

The prosecution presented testimony from four of

Barrera’s children. Each described their feelings of hatred and

fear towards their father and sense of loss from Ernesto’s and

Lupita’s deaths. They also described additional acts of violence

and abuse committed by Barrera. Edilberto E., Barrera’s oldest

child with Petra, testified that Barrera once threw him to the

ground and tried to choke him. Barrera also forced Edilberto,

who was about 16 years old at the time, to bury Lupita, and

Edilberto saw Barrera pour acid on her body. Edilberto also

testified that Barrera beat Petra with “whatever was at hand,”

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including when Petra was pregnant. Luz testified that she

hated her father, and that when she was living with Barrera,

she “didn’t know what was right and what was wrong.” She “felt

nothing” when she saw Ernesto lying unconscious against the

wall, and though she was initially scared when she heard

Lupita’s head hit the wall, “after, [she] felt the same”; events

like these seemed like the “normal state of affairs.” Juan E., one

of Petra’s sons, was 10 years old at the time of trial. He testified

that Barrera used to hit him with a belt; Edilberto had also

testified that Barrera would beat Juan with “whatever was at

hand.” Juan still had dreams that his father was “trying to kill

[him].” The prosecution also introduced a letter from eight-year-

old Guadalupe E., one of Maria Ricardo’s sons, after the child

had trouble recounting the letter on the stand. In the letter,

Guadalupe repeatedly described his fear of facing his father.

Guadalupe also testified that Barrera would beat him with a

belt and possibly a shoe.

The defense presented evidence concerning Barrera’s

childhood. Barrera’s parents testified that Barrera grew up on

a “ranchito” growing corn, and that the family lacked electricity,

plumbing, or a car. Barrera began working around 13 years old,

stopped attending school, and later moved to Mexico City to

work. He married Petra when he was 18 years old. Barrera’s

father and aunt both testified that the family was embarrassed

when Barrera later took Maria Ricardo to the United States and

left Petra behind but also testified that Barrera would send

Petra money. When asked whether Barrera was abused as a

child, both Barrera’s father and uncle said no.

The defense also presented the testimony of a cultural

expert, Professor Felipe Peralta, who described risk factors that

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might have put Barrera under stress, increasing the likelihood

that he would abuse his children: Barrera married at a young

age, lacked legal status in the United States, had no friends, was

isolated from his family in Mexico, had an uncertain economic

situation, and maintained two households with a large number

of children.

Following the presentation of evidence, the jury returned

a verdict of death, and the trial court entered judgment

accordingly.

II. GUILT PHASE ISSUES

A. Sufficiency of the Evidence

As noted, the prosecution presented, and the jury was

instructed on, two theories of first degree murder for the deaths

of Ernesto and Lupita: torture murder and premeditated and

deliberate murder. The jury returned guilty verdicts without

specifying which theory or theories it had relied on. It also found

true the torture-murder special-circumstance allegation as to

both murders. On appeal, Barrera concedes the evidence was

sufficient to convict him of the second degree murders of the two

victims, but he challenges the sufficiency of the evidence as to

his first degree murder convictions on either theory, as well as

to the true findings on the torture-murder special circumstance.

In reviewing a challenge to the sufficiency of the evidence,

“ ‘we review the entire record in the light most favorable to the

judgment to determine whether it contains substantial

evidence — that is, evidence that is reasonable, credible, and of

solid value — from which a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt.’ ” (People v. Powell

(2018) 5 Cal.5th 921, 944 (Powell).) We “ ‘presume[] in support

of the judgment the existence of every fact the trier could

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reasonably deduce from the evidence.’ ” [Citation.] The same

standard of review applies to the sufficiency of the evidence

supporting special circumstance findings.” (Ibid.)

Applying these well-settled standards, we conclude that

the evidence sufficed to sustain Barrera’s convictions for first

degree murder on both a theory of torture-murder and

premeditated and deliberate murder, as well as the jury findings

on the torture-murder special circumstance.

1. Murder by Torture and Torture-murder Special

Circumstance

“ ‘ “All murder which is perpetrated by means

of . . . torture . . . is murder of the first degree. ” ’ ” (Powell,

supra, 5 Cal.5th at p. 944, quoting Pen. Code, § 189, subd. (a).)

“ ‘Murder by torture requires (1) an act or acts causing death

that involve a high degree of probability of death, (2) a causal

relationship between the torturous act and death, (3) a willful,

deliberate, and premeditated intent to inflict extreme and

prolonged pain on a person for the purpose of revenge, extortion,

persuasion, or for any other sadistic purpose, and (4)

commission of the act or acts with such intent.’ ” (Powell, at

p. 944.) Murder by torture “does not require an intent to kill,

but requires the intent to torture, and requires the same proof

of deliberation and premeditation as is required of other kinds

of first degree murders.” (People v. Whisenhunt (2008) 44

Cal.4th 174, 201 (Whisenhunt), citing People v. Steger (1976) 16

Cal.3d 539, 546 (Steger).) The prosecution need not prove that

the victim suffered pain. (People v. Lopez (2018) 5 Cal.5th 339,

356 (Lopez), citing People v. Edwards (2013) 57 Cal.4th 658, 716

(Edwards).) The torture-murder special circumstance likewise

requires the intent to torture, but not “a premeditated and

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deliberate intent to torture.” (Edwards, at p. 718; see Pen. Code,

§ 190.2, subd. (a)(18)).) It also requires the “ ‘infliction of an

extremely painful act upon a living victim’ ” and the intent to

kill. (Edwards, at p. 718.) It does not require “a causal

relationship between the torturous act and death [citation], or

proof the victim subjectively experienced pain.” (Ibid.)

In challenging the first degree murder convictions and

torture-murder special-circumstance finding, Barrera disputes

only the evidence supporting his intent to torture — and

specifically, that the evidence supported his willful, deliberate,

and premeditated intent to inflict extreme and prolonged pain

on a person for the purpose of revenge, extortion, persuasion, or

for any other sadistic purpose. “ ‘The jury may infer the intent

to inflict extreme pain from the circumstances of the crime, the

nature of the killing, and the condition of the victim’s body.’ ”

(Lopez, supra, 5 Cal.5th at p. 356, quoting People v. Streeter

(2012) 54 Cal.4th 205, 237 (Streeter).) We have “cautioned

against giving undue weight to the severity of the wounds”

(People v. Chatman (2006) 38 Cal.4th 344, 390 (Chatman)), but

we have recognized that evidence “ ‘the defendant intentionally

inflicted nonlethal wounds’ ” may help demonstrate an intent to

torture, as such wounds “ ‘evidence[] deliberate and gratuitous

violence beyond that which was necessary to kill the victim’ ”

(Powell, supra, 5 Cal.5th at p. 945.) We also consider “ ‘the

totality of the brutal acts and the circumstances which led to the

victim’s death. . . . [It is not] whether any single act by itself

caused the death; rather, it is the continuum of sadistic violence

that constitutes the torture.’ ” (People v. Jennings (2010) 50

Cal.4th 616, 643 (Jennings), citations omitted, quoting People v.

Proctor (1994) 4 Cal.4th 499, 530–531 (Proctor).) With these

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principles in mind, we turn to the evidence concerning each of

Barrera’s victims.

a. Lupita

The evidence at trial showed Lupita was repeatedly

beaten in the months preceding her death at age two. Two of

Barrera’s children testified that Barrera hit Lupita “every day,”

and one said Barrera had thrown Lupita into the wall more than

once. Another child testified Barrera hit Lupita and Ernesto

more than anyone else. Family members recalled seeing marks

all over Lupita’s body, and Lupita’s mother, Petra, testified she

saw a cut and a belt mark on the child’s leg on the day that

Lupita died. The evidence of a “long course of painful abuse”

supports an inference that Barrera harbored an intent to

torture. (People v. Gonzales (2011) 51 Cal.4th 894, 942 (Veronica

Gonzales); accord, Lopez, supra, 5 Cal.5th at p. 359 [evidence of

repeated bruising leading to numerous injuries sufficed, among

other things, to establish intent to torture].)

In addition to the evidence of continuous physical abuse,

medical testimony showed Lupita was abnormally small for her

age and about six months behind in development, which

indicated that she, like Ernesto, was malnourished. As Barrera

emphasizes, the evidence did show that the family faced

poverty, and none of the trial witnesses testified that Barrera

deliberately withheld food from Lupita, as opposed to from

Ernesto. But based on the evidence concerning Barrera’s

considerable control over his family, as well as the extensive

evidence that Barrera had withheld food from another

disfavored child, a jury could reasonably infer that Barrera bore

responsibility for Lupita’s malnourished condition. This, too,

supported an inference of torturous intent. (Cf. Jennings, supra,

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50 Cal.4th at p. 645 [victim’s young age, underdeveloped weight,

and “chronic and acute physical abuse” relevant to establish

torturous intent].)

Evidence concerning the murder likewise supports an

inference that Barrera harbored the requisite intent. The

prosecution presented evidence that on the day Lupita died,

Barrera beat the child after she wet the bed. He ordered Lupita

be given a cold shower, taking it upon himself to turn the tap

back to cold after Maria E. tried to bathe Lupita in warm water

instead. Barrera then beat Lupita, holding her arm up with one

hand and hitting her in the back with the other as she cried and

her head flopped back and forth. The evidence shows he then

threw her into the wall about eight feet away, resulting in an

audible crack; twice told the child to “stand up, you bitch” when

she was unresponsive; and refused to take her to a hospital or

seek appropriate medical care, even though she continued to

breathe for hours after the fall.

As Barrera points out, there was evidence that he

attempted to revive Lupita after her initial fall and later bought

her Tylenol and Pedialyte when she was still breathing. But

this evidence does not negate the reasonable inferences the jury

could draw about Barrera’s state of mind from the remainder of

the evidence concerning his extreme abuse of Lupita. A

reasonable jury could have viewed these ineffectual actions as

stemming from a self-interested attempt to keep Lupita alive

and avoid discovery of his crimes, rather than a genuine effort

to seek appropriate treatment of the child. Barrera refused to

take Lupita to a hospital because, according to Maria Ricardo,

the child “was beaten and there would be investigations.” And

he thereafter refused to take Lupita to a funeral home after she

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died, instead burying her secretly in the mountains and pouring

acid on her body.

Finally, the jury heard that Barrera had a motive for his

harmful actions toward Lupita: that Lupita was disobedient and

did not love him. Motive is relevant in assessing a defendant’s

state of mind as to torture (see Lopez, supra, 5 Cal.5th at p. 356;

People v. Daugherty (1953) 40 Cal.2d 876, 886; People v. Cole

(2004) 33 Cal.4th 1158, 1214 (Cole); Streeter, supra, 54 Cal.4th

at p. 245), and a jury could reasonably have considered such

evidence.

The evidence is, in sum, sufficient to show Barrera’s

willful, deliberate, and premeditated intent to inflict extreme

and prolonged pain on Lupita for a sadistic purpose. (Cf., e.g.,

Lopez, supra, 5 Cal.5th at p. 356 [continued abuse when the

defendant was reasonably aware that victim was in pain

supported inference of intent to torture]; People v. Gonzales

(2012) 54 Cal.4th 1234, 1274 (Ivan Gonzales) [failure to seek

timely help for child victim despite visible signs of suffering

supported intent to torture]; Veronica Gonzales, supra, 51

Cal.4th at pp. 941–942 [same].) Barrera’s repeated insistence

that Lupita may have experienced “instantaneous

unconsciousness” after her head hit the wall does not compel a

contrary conclusion, as murder by torture does not require proof

that the victim suffered pain. (Lopez, at p. 356.)

Barrera contends that this case is controlled by Steger,

supra, 16 Cal.3d 539. In Steger, three-year-old Kristen died

from head injuries and suffered from multiple cuts, bruises,

fractures, and internal injuries that had been sustained at

different points in time. (Id. at p. 543.) This court concluded

that the evidence of multiple beatings did not establish the

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defendant’s “cold-blooded intent to inflict extreme and prolonged

pain,” but instead revealed the defendant as “a tormented

woman, continually frustrated by her inability to control her

stepchild’s behavior,” who beat Kristen in “several distinct

‘explosions of violence.’ ” (Id. at p. 548.)

We are not persuaded by Barrera’s reliance on Steger. The

jury in this case heard evidence not only that Barrera beat

Lupita over a prolonged period of time, but also evidence from

which they could have concluded that Barrera deliberately

starved her, resulting in substantial developmental delays;

evidence of Barrera’s callous behavior toward Lupita both before

and after delivering the fatal blow, including evidence that he

told Lupita to “stand up, you bitch,” when she was unresponsive;

evidence that he left her on the ground for hours after her fall;

and evidence that he refused to take her to a hospital or seek

appropriate medical care. The jury was not bound to interpret

Barrera’s behavior toward Lupita as merely the product of a

series of uncontrolled fits of rage. (See Lopez, supra, 5 Cal.5th

339, 356 [distinguishing Steger and concluding the evidence of

repeated bruising leading to numerous injuries sufficed, among

other things, to establish intent to torture].)

Our conclusion that the evidence was sufficient to support

the jury’s finding of intent to torture Lupita applies equally to

the first degree murder conviction and to the torture-murder

special circumstance. It is unclear whether Barrera means to

challenge the sufficiency of the evidence to support the jury’s

special circumstance finding that he intended to kill Lupita. But

such a claim lacks merit in any event. The trial evidence showed

that after a prolonged period of abuse, and knowing Lupita was

in a weakened state, Barrera threw her into a wall with

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sufficient force to render her unconscious. (Cf. Lopez, supra, 5

Cal.5th at p. 355.) Barrera then refused to seek appropriate

medical help and left Lupita on the ground for hours, continuing

to refuse to seek appropriate help until Lupita died in Petra’s

arms. By “failing to get help, [Barrera] ensured [Lupita’s] death.

The evidence of intent to kill was sufficient.” (Veronica

Gonzales, supra, 51 Cal.4th at p. 942.)

b. Ernesto

The evidence established that Barrera repeatedly beat

Ernesto over a prolonged period of time, leading to what the

forensic examiner described as a “constellation” of painful

injuries consistent with this history of intentional abuse.

Multiple family members testified that Barrera beat Ernesto

every day, either hitting, punching, or kicking the boy or

striking him with a belt, electrical cord, or broomstick. Jose

testified that Barrera whipped Ernesto with an electrical cord

and beat Ernesto’s legs with a broomstick, at one point breaking

Ernesto’s legs. The examiner found injuries to Ernesto’s body

and legs that were consistent with these injuries. Multiple

children testified Ernesto had been tied up for some period of

time, and that floor tiles may have been tied to his legs; the

examiner found “linear markings” and an ulcer that was

consistent with this description.

The evidence also showed that Ernesto eventually fell into

a semi-comatose state and had been left in that state for about

two months before Barrera kicked his head into the wall,

ultimately killing the child. Jose described the fatal kick to

Ernesto’s head, and the examiner found intracranial bleeding in

Ernesto’s skull that was consistent with Jose’s account. The

medical examiner testified that Ernesto had 20 broken bones,

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including fractures to his ribs that would have made it

“extremely painful” for the child to breathe. A reasonable jury

could conclude, based on this evidence, that Barrera intended

to, and did, torture Ernesto. (Veronica Gonzales, supra, 51

Cal.4th at p. 942 [“The long course of painful abuse suffered by

[child victim] suggested that defendant . . . habitually tortured

her”]; Whisenhunt, supra, 44 Cal.4th at p. 201 [evidence of

repeated beatings, including “brutal[]” kicks and punches, as

well as additional abuse after the victim was already

incapacitated supported inference of intent to torture]; Powell,

supra, 5 Cal.5th at p. 945 [evidence of intentional infliction of

nonlethal wounds can support inference of torture]; Proctor,

supra, 4 Cal.4th at p. 532 [evidence of physical abuse after

victim “rendered incapable of avoiding further attack” also

supports inference of torture].)

The evidence also indicated Barrera singled Ernesto out

for gratuitous punishment. Though the other children could eat

and sleep where they wanted, Ernesto had to sleep “separate,

over by the door.” In addition, two of Barrera’s children testified

that Barrera would sometimes withhold food from Ernesto, and

Petra stated Ernesto was “really thin” at the time of his death,

and that he “wasn’t like that” before. These observations

matched the forensic examiner’s testimony about the state of

Ernesto’s body: his ribs were visible through his skin, his hair

was thinning, and he was missing his thymus, signs suggesting

that the boy had been “deliberately starved.” These pieces of

evidence, too, supported a finding of intent to torture. (See Ivan

Gonzales, supra, 54 Cal.4th at p. 1247 [child torture-murder

victim could not sleep or eat with the other children]; Jennings,

supra, 50 Cal.4th at p. 642 [evidence of “physical violence and

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deliberate starvation” of child victim supported conviction for

first degree murder by torture].)

The evidence further indicated that Barrera made no

effort to seek help for Ernesto’s injuries. When Ernesto’s legs

were broken, Ernesto did not receive medical attention but

instead had sticks and floor tiles tied to his leg as a makeshift

splint; again, Dr. Whiteman found injuries consistent with this

account. During the two months Ernesto was in a semi-

comatose state, Barrera never made any effort to aid the child

as he lay on the floor unmoving. Instead, when the boy would

not eat, Barrera violently grabbed Ernesto’s hair, attempted to

pull his head back, and eventually kicked him in the head,

killing him; as Ernesto slumped to the ground, Barrera made no

effort to assist him or get medical help, remarking only that the

boy was “dying.” Barrera and the rest of the family then went

to sleep.

A jury could reasonably infer from this pattern of conduct

that Barrera harbored a willful, deliberate, and premeditated

intent to inflict cruel suffering on Ernesto. In Lopez, supra, 5

Cal.5th 339, we found the evidence sufficient to sustain a

conviction for torture murder where the child victim had bruises

all over her body, the medical evidence established she was

“ ‘repetitively exposed to multiple episodes of blunt trauma, with

pain being associated with each one,’ ” and the child’s cries could

be heard from the next door unit, a fact that supported the

inference that the defendant “was aware that the child was in

pain.” (Id. at p. 356; see id. at p. 345.) Similarly here,

eyewitness and medical evidence showed that Ernesto was

repeatedly beaten in painful ways, and that the child’s cries

were heard by multiple family members living in the household.

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The evidence also showed that Ernesto suffered visibly painful

injuries of which Barrera could not have been unaware.

According to the medical examiner, Ernesto’s “feet and legs were

chronically deformed from repeated fractures,” which would

have prevented the boy from walking correctly. Ernesto was

also visibly emaciated and covered with lesions, scars, bruises,

and injuries. Eventually, Ernesto fell into a semi-comatose state

and was unable to eat, drink, or keep his head up. 3 He was in

that state when Barrera inflicted the fatal blows.

As was true of Lupita, trial testimony also tended to show

that Barrera had a motive to single Ernesto out for special

abuse; indeed, Barrera particularly disfavored Ernesto because

he believed that Ernesto was not his biological son. And much

as in the case of Lupita, after inflicting the fatal blows, Barrera

made no attempt to get help for Ernesto; instead, commenting

that Ernesto was “dying,” Barrera went to sleep. From this

evidence, too, the jury could infer Barrera’s intent to torture

Ernesto. (See Veronica Gonzales, supra, 51 Cal.4th at p. 942

[evidence that defendant “witnessed the extreme and prolonged

pain that ensued as [child victim] lay dying, and did nothing to

secure assistance until her body began to stiffen” supported

3

On appeal, Barrera suggests that the prosecution failed to

show he was responsible for all of Ernesto’s injuries. As an

example, he identifies a single break to Ernesto’s arm that Petra

testified had been sustained in Mexico before Ernesto began

living with Barrera. But Petra’s testimony suggests Barrera

was also responsible for this particular injury. And in any event,

the prosecution was not required to show Barrera was

responsible for every injury. Barrera concedes he engaged in a

pattern of abuse, and the jury was entitled to draw reasonable

inferences from the evidence that Barrera repeatedly beat

Ernesto and the child suffered severe injuries as a result.

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inference of intent to torture]; Ivan Gonzales, supra, 54 Cal.4th

at p. 1274 [same].)

Again, Barrera fails to persuade that the jury was

obligated to view his actions toward Ernesto as the product of

an uncontrollable burst of rage or as a “misguided . . . attempt

at discipline.” (Steger, supra, 16 Cal.3d at p. 548.) The evidence

also established Ernesto had been systematically starved and

maltreated, not just occasionally beaten: he was visibly

emaciated, singled out for particularly severe abuse, forced to

sleep and eat apart from the other children, and left in a semi-

comatose state for months, during which time Barrera

continued to abuse him. It was not unreasonable, given the facts

presented, for the jury to infer that Barrera’s abuse was the

result of a willful, deliberate, and premeditated intent to inflict

extreme and prolonged pain for a sadistic purpose, and not

merely an isolated violent outburst.

This conclusion about the sufficiency of the evidence

supporting the torture-murder conviction concerning Ernesto

applies equally to Barrera’s challenge to the sufficiency of the

evidence supporting the intent to torture element of the torture-

murder special circumstance. (See Lopez, supra, 5 Cal.5th at

p. 357 [evidence supporting intent to torture for first degree

torture-murder also suffices to support intent to torture for

torture-murder special circumstance]; Proctor, supra, 4 Cal.4th

at p. 531 [same].) Substantial evidence also supports the

inference that Barrera harbored the requisite intent to kill.

Barrera notes that he does not concede this point, but neither

does he present any argument to the contrary. This is

unsurprising: The trial testimony established that Barrera

commented Ernesto was “dying” after Barrera kicked his head

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Opinion of the Court by Kruger, J.

into the wall and the boy fell to the ground, but nonetheless did

nothing to secure medical assistance and instead went to sleep.

“By failing to get help, [Barrera] ensured [Ernesto’s] death. The

evidence of intent to kill was sufficient.” (Veronica Gonzales,

supra, 51 Cal.4th at p. 942.)

2. Premeditated and Deliberate Murder

Barrera next contends the evidence was insufficient to

support a finding of premeditation and deliberation necessary to

support the first degree murder convictions on a theory of

premeditated and deliberate murder.

“ ‘An intentional killing is premeditated and deliberate if

it occurred as the result of preexisting thought and reflection

rather than unconsidered or rash impulse.’ ” (Lopez, supra, 5

Cal.5th at pp. 354–355, quoting People v. Stitely (2005) 35

Cal.4th 514, 543.) “[T]he intent to kill must be formed upon a

preexisting reflection and have been the subject of actual

deliberation or forethought.” (Whisenhunt, supra, 44 Cal.4th at

p. 201.) “The reflection may be arrived at quickly; it need not

span a specific or extended period of time.” (Lopez, at p. 355.)

“We have found planning activity, preexisting motive, and

manner of killing to be relevant, although these factors do not

‘ “exclude all other types and combinations of evidence that

could support a finding of premeditation and deliberation.” ’ ”

(Ibid.)

We conclude that the evidence is sufficient to support

findings of premeditation and deliberation with respect to both

victims.

a. Lupita

As previously explained, the evidence here showed that

Barrera physically abused Lupita for months. The jury could

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also infer Barrera intentionally starved Lupita, leaving her

approximately six months behind in development. Witnesses

also testified Barrera beat Lupita and Ernesto more than his

other children, and that he thought Lupita was disobedient and

did not love him.

On the day Lupita died, Barrera repeatedly hit the two-

year-old child with his hand and eventually threw her eight feet

into the wall, resulting in an audible crack and rendering her

unconscious. Though several witnesses testified that Lupita

was still breathing after her fall, Barrera left her on the ground

for hours and refused to seek appropriate medical care.

A reasonable jury could conclude Barrera’s actions showed

a premeditated and deliberate intent to kill Lupita. The facts of

this case are comparable to those of Lopez, supra, 5 Cal.5th 339,

in which we found the evidence sufficient to sustain a first

degree premeditated and deliberate murder conviction. We

explained that “[a] deliberate intention to kill is supported by

the fact that [the victim] Ashley was a small toddler, already

weakened by several days of extreme abuse, when Lopez lifted

her over his head and threw her to the ground. Lopez personally

inflicted the injuries on Ashley that caused her weakened state,

which placed him in a heightened sense of awareness of her

fragility, further supporting a finding of premeditation in the act

of harming her.” (Id. at p. 355.) “From this evidence of Lopez’s

escalating acts of abuse and conscious efforts to conceal his

actions and prevent Ashley from receiving needed medical

attention, a reasonable jury could conclude Lopez intentionally

killed Ashley with preexisting thought and reflection.” (Id. at

pp. 355–356.) Precisely the same is true here. As in Lopez, we

find the evidence was sufficient to sustain a conclusion that

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Opinion of the Court by Kruger, J.

Barrera was responsible for the first degree premeditated and

deliberate murder of Lupita.

b. Ernesto

As with Lupita, the evidence showed Barrera physically

abused Ernesto for months. In addition, the evidence tended to

show Barrera deliberately starved Ernesto. This maltreatment

resulted in severe injuries that left the boy in a semi-comatose

state, during which period the child could not eat, drink, or lift

his head on his own. While Ernesto was in this weakened state,

Barrera never sought medical attention but instead left Ernesto

lying immobile against the wall for two months until he died.

When Ernesto reached the point where he was either unable or

unwilling to eat, Barrera grabbed the child’s hair, tried to force

him to eat, punched him several times in the chest, and then

kicked his head into the wall, causing the boy to collapse to the

floor and eventually die. After Ernesto fell, Barrera commented

that the boy was “dying.” He then went to sleep. Witnesses also

testified that Barrera believed Ernesto was not his biological

son.

A reasonable jury could conclude Barrera’s actions showed

a premeditated and deliberate intent to kill Ernesto. Again,

much as in Lopez, the victim was a child already weakened by

considerable abuse when Barrera delivered the blow that killed

him. (Lopez, supra, 5 Cal.5th at p. 355.) Here, Barrera

repeatedly punched and then kicked a severely weakened five-

year-old child in the head — a child whose condition was due to

Barrera’s own abuse, giving Barrera heightened awareness of

the child’s fragile state. When Ernesto fell to the ground,

Barrera observed that the boy was “dying” yet did nothing to

help. (Cf. id. at pp. 355–356 [efforts to prevent child victim from

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Opinion of the Court by Kruger, J.

receiving medical attention supported inference of premeditated

intent to kill]; Whisenhunt, supra, 44 Cal.4th at p. 202 [same].)

Barrera also believed Ernesto was not his biological son,

“suggesting a motive to harm the child.” (Lopez, at p. 355.) His

“continuing and escalating acts of abuse caused [Ernesto]

prolonged pain,” further supporting a finding of premeditated

intent to kill. (Ibid.; see Whisenhunt, at pp. 201–202

[“continuing and escalating acts of abuse showed [defendant’s]

premeditated and deliberate intent” to kill]).

Finally, we note that defendant committed fatal acts

against both Lupita and Ernesto, just months apart. As we have

previously explained, “ ‘the more often one does something, the

more likely that something was intended, and even

premeditated, rather than accidental or spontaneous.

Specifically, the more often one kills, especially under similar

circumstances, the more reasonable the inference the killing

was intended and premeditated.’ ” (People v. Solomon (2010)

49 Cal.4th 792, 815.) Furthermore, the jury heard evidence that

after Lupita’s death, Barrera temporarily ceased abusing

Ernesto, only to resume the abuse after a matter of weeks. A

reasonable jury could infer that this break in abuse between

Lupita’s and Ernesto’s deaths reflects volitional control, and in

turn conclude that Barrera’s harmful acts were deliberate and

premeditated rather than the product of rash impulse.

We are not persuaded to reach a different conclusion by

Barrera’s criticism of the prosecutor’s arguments to the jury.

Barrera contends the prosecutor made “conclusory statements”

about Barrera’s state of mind and invited the jury to draw the

wrong inferences from the facts in evidence concerning his

treatment of Lupita and Ernesto. At the threshold, the focus of

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these arguments is misplaced. In a sufficiency challenge, our

inquiry on review is whether the evidence was sufficient for a

reasonable jury to reach its verdict, not the arguments of

counsel. (Powell, supra, 5 Cal.5th at p. 944.) But in any case,

for the reasons already explained, the jury could reasonably

infer from the facts cited by the prosecutor that Barrera

intended to kill both victims and that he did so with

premeditation and deliberation.

B. Admission of Statements by Non-Testifying

Expert

Barrera argues that portions of the trial testimony by Dr.

Ribe, the medical examiner who carried out Lupita’s autopsy,

conveyed case-specific testimonial hearsay in violation of both

state evidence law and the confrontation clause of the federal

Constitution. (See People v. Sanchez (2016) 63 Cal.4th 665

(Sanchez); Crawford v. Washington (2004) 541 U.S. 36, 53–54

(Crawford).) Specifically, Barrera contends that portions of the

testimony were improperly drawn from a report by Dr. Donald

Boger, a radiologist who did not testify at trial. Dr. Boger’s

report, which was reprinted in Dr. Ribe’s autopsy report, was

also admitted into evidence; Barrera argues the admission of the

report, too, violated state evidence law and the confrontation

clause.

We assume, without deciding, that Dr. Boger’s findings

were admitted in violation of the confrontation clause and state

hearsay law. We conclude, however, that any error was

harmless beyond a reasonable doubt.

1. Factual Background

Barrera’s trial took place in 2001. As noted, Dr. James

Ribe, a senior deputy medical examiner with the Los Angeles

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County Department of the Coroner, performed an autopsy on

Lupita’s body after her remains were discovered. He testified at

trial about his findings. At the outset, he explained that he had

difficulty completing a full autopsy due to the “natural

decomposition” of the body after eight months, as well as

“chemical deterioration” from the hydrochloric and sulfuric acid

that had been poured on her body at the time of burial.

According to Dr. Ribe, the acid was most present in Lupita’s

skeleton, back, left side of her head, and the left shoulder areas,

and had apparently “soaked into her body” from the ground up,

“kind of pooled in the left upper body area,” and eventually

“affected the entire body as far down as the knees, or a little

below.” The acid complicated the examination because it

softened Lupita’s bones, giving them the “texture of wet

cardboard.” That softening effect, when combined with the

weight of the soil under which Lupita was buried, caused parts

of her skeleton to flatten and collapse, including her rib cage,

spine, and pelvis. Lupita was also missing her internal organs;

her brain had become some sort of “pasty material”; and her skin

was “badly faded.” Dr. Ribe believed there must have been a

“fair amount” of acid poured onto Lupita’s body to create that

level of deterioration.

Much of Dr. Ribe’s testimony — including his testimony

regarding Lupita’s skull injuries, bruising, and

malnourishment — was based on his own observations during

the autopsy. Dr. Ribe also, however, took several X-rays and

sent them to a radiology consultant, Dr. Boger, who did not

testify at trial. Dr. Ribe’s testimony at trial included statements

that either quoted or directly referenced Dr. Boger’s radiology

report.

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Dr. Ribe testified that his own examination revealed

evidence of a diastatic fracture to Lupita’s skull. When asked to

relate his findings regarding “other breaks” to Lupita’s bones,

Dr. Ribe stated: “I took X-rays, and I had them referred to our

radiology expert consultant. And he found evidence of healed or

partially healed fractures in the right humerus, which is the

right upper arm bone, the right collarbone, and both femurs

which are the thigh bones.” Dr. Ribe conducted his own analysis

on Lupita’s right femur, examining part of the bone under a

microscope. Dr. Ribe explained that postmortem deterioration

complicated the examination because the coating of Lupita’s

bone, which is “what we really want to look at to evaluate a

fracture,” was completely gone. Nonetheless, based on the state

of the “inner bone” in Lupita’s right femur, Dr. Ribe found

evidence of a completely healed fracture that would have been

“weeks to months old.” Dr. Ribe also testified that given

Lupita’s young age — “[a] baby like that is barely even

walking” — the fracture would have had to be intentional, and

would have been “painful for some period of time.”

Dr. Ribe attributed findings concerning the three other

possible fractures to “the radiologist,” and Dr. Ribe confirmed

that he did not separately examine them. Asked if any of these

three fractures could be dated, Dr. Ribe again quoted from Dr.

Boger’s report: “[Dr. Boger] describes them as changes which

also suggest ‘changes seen with healing fractures.’ He doesn’t

say how much healing because he can’t tell, so we’re talking

about things that are weeks or up to about six weeks old, if you

call it healing.” When the prosecutor asked, “So possibly six

weeks old up to six weeks old?” Dr. Ribe said, “That would fit

with the wording that [Dr. Boger] has used . . . .” Dr. Ribe also

testified that, in his opinion, the additional fractures would not

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have been accidental: “When you have small fractures on a child

like that; one leg, you can believe, but three or four fractures

cannot be an accident.”

Dr. Ribe opined that the state of the Lupita’s body was

consistent with a finding of battered child syndrome, meaning

“repeated injuries over a period of time giving injuries of

different ages.” He also testified that, based on Lupita’s height

and size, she was about six months behind on her growth,

evidence consistent with malnourishment and chronic neglect.

During cross-examination, Barrera’s attorney confirmed

that Dr. Ribe examined only one of the fractures himself, and

that the fracture Dr. Ribe examined took place “a month to a

year, or even more” before Lupita’s death. Barrera’s attorney

also asked Dr. Ribe about the nature of the other three fractures:

“Are they actually indented fractures, or are they simply

thickening of the bone on the X-ray?” Dr. Ribe responded, “More

of the latter. They are thickening of the bone on the X-ray which

have an abnormal appearance and what the radiologist felt

suggest the changes seen with healing fractures.” When

Barrera’s attorney responded, “well, suggest is not exactly

saying it’s a fracture, is it?,” Dr. Ribe responded: “That’s right.

It’s not definite.”

Dr. Ribe’s report, which reprinted Dr. Boger’s two-page

radiology report in full, was admitted into evidence along with

other prosecution exhibits. Barrera did not object to the

admission of Dr. Boger’s report, although he did object to other

items of evidence, including parts of Dr. Whiteman’s report

regarding the autopsy of Ernesto. The court overruled Barrera’s

objection to Dr. Whiteman’s report, concluding that the

challenged pages of the report were admissible under the

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hearsay exceptions for business or official records. (Evid. Code,

§§ 1271, 1280.)

2. Legal Background

State evidence law generally forbids the admission of

hearsay evidence unless it satisfies a statutory exception.

(People v. Turner (2020) 10 Cal.5th 786, 821 (Turner), citing

Evid. Code, § 1200, subd. (b).) A statement is hearsay if it was

made by an out-of-court declarant and was “offered to prove the

truth of the matter stated.” (Evid. Code, § 1200, subd. (a).)

At the time of Barrera’s trial, courts generally took the

view that an expert could testify to case-specific out-of-court

statements not for the truth of the matter, but for the

nonhearsay purpose of explaining the basis for the expert’s

opinion. (Sanchez, supra, 63 Cal. 4th at pp. 680–681, 683–684

discussing People v. Gardeley (1996) 14 Cal.4th 605.) In our

2016 decision in Sanchez, supra, 63 Cal.4th 665, we rejected this

view. We explained: “When any expert relates to the jury case-

specific out-of-court statements, and treats the content of those

statements as true and accurate to support the expert’s opinion,

the statements are hearsay. It cannot logically be maintained

that the statements are not being admitted for their truth.” (Id.

at p. 686.) Though an expert can still “rely on hearsay in

forming an opinion, and may tell the jury in general terms that

he did so” (id. at p. 685), an expert cannot “relate as true case-

specific facts asserted in hearsay statements, unless they are

independently proven by competent evidence or are covered by

a hearsay exception” (id. at p. 686).

The federal Constitution likewise places limits on the

admission of case-specific hearsay through expert testimony.

The confrontation clause of the Sixth Amendment provides a

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criminal defendant the “right . . . to be confronted with the

witnesses against him.” (U.S. Const., 6th Amend.) At the time

of Barrera’s 2001 trial, United States Supreme Court precedent

had held that “the admission of hearsay did not violate the right

to confrontation if it bore ‘adequate “indicia of reliability.” ’ ”

(Sanchez, supra, 63 Cal.4th at p. 680.) Overruling this

precedent, the court in its 2004 Crawford decision interpreted

the confrontation clause to forbid the admission of “testimonial”

hearsay unless the declarant is unavailable to testify and the

defendant has had a prior opportunity to cross-examine the

declarant. (Sanchez, at p. 680.)

In Sanchez, explaining the import of Crawford to expert

testimony conveying out-of-court-statements, we articulated the

law as follows: “When any expert relates to the jury case-specific

out-of-court statements, and treats the content of those

statements as true and accurate to support the expert’s opinion,

the statements are hearsay. . . . If the case is one in which a

prosecution expert seeks to relate testimonial hearsay, there is

a confrontation clause violation unless (1) there is a showing of

unavailability and (2) the defendant had a prior opportunity for

cross-examination, or forfeited that right by wrongdoing.”

(Sanchez, supra, 63 Cal.4th at p. 686; accord, Smith v. Arizona

(2024) 602 U.S. 779, 802–803.)

3. Analysis

Barrera argues that Dr. Ribe’s testimony conveying Dr.

Boger’s radiology findings, as well as Dr. Boger’s report itself,

constituted case-specific hearsay and thus was admitted in

violation of Sanchez. He further argues that the hearsay was

testimonial hearsay and thus should not have been admitted

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under Crawford absent an opportunity to cross-examine the

declarant.

Barrera’s claim based on state evidence law confronts a

threshold difficulty. We have held that because Sanchez

expressly changed existing hearsay law, a defendant’s failure to

object to expert testimony relating case-specific hearsay was not

forfeited in cases tried before Sanchez. (People v. Perez (2020) 9

Cal.5th 1, 9, citing Edwards, supra, 57 Cal.4th at p. 705.) But

this is not a case, like Sanchez or Perez, in which a nontestifying

expert’s out-of-court statements were conveyed solely through

the testimony of a testifying expert, on a “not-for-truth”

rationale. Here, the challenged statements — Dr. Boger’s

written report — had already been admitted into evidence, as

part of Dr. Ribe’s report. Thus, although Dr. Ribe’s testimony

conveyed case-specific hearsay, one might say that the points he

conveyed were “independently proven” by evidence in the record.

(Sanchez, supra, 63 Cal.4th at p. 686.) Barrera could have

objected to the admission of Dr. Boger’s report, much as he had

objected to the admission of parts of Dr. Whiteman’s report

concerning his autopsy of Ernesto. (Overruling the objection,

the trial court held the challenged parts of Dr. Whiteman’s

autopsy report admissible either as a business record or an

official record.) But Barrera did not object either to Dr. Ribe’s

testimony about Dr. Boger’s findings or to the admission into

evidence of the portion of Dr. Ribe’s report that reprinted Dr.

Boger’s two-page radiology report.

The parties debate at length whether Barrera’s failure to

object to the admission of Dr. Boger’s written report amounted

to a forfeiture of his current Sanchez claims. There is, however,

no question that Barrera has a nonforfeited claim that the

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admission of Dr. Boger’s findings amounted to constitutional

error. We have held that a claim of Crawford error based on the

admission of any evidence — whether in the form of witness

testimony or documentary evidence — is not forfeited by a

defendant’s failure to object at a trial that occurred before

Crawford was decided, because Crawford dramatically changed

the law governing the admissibility of both types of evidence.

(People v. Leon (2015) 61 Cal.4th 569, 602; see People v. Rangel

(2016) 62 Cal.4th 1192, 1215.) Because Barrera’s trial occurred

several years before Crawford was decided, he has not forfeited

the claim. For reasons we will explain, our resolution of

Barrera’s Crawford claim makes it unnecessary for us to decide

whether Barrera has adequately preserved a claim under

Sanchez as well.

Again, under Crawford, supra, 541 U.S. 36, the federal

Constitution bars the admission of testimonial hearsay unless

the declarant is unavailable to testify, and the defendant has

had a prior opportunity to cross-examine the declarant. (Id. at

p. 68.) The high court in Crawford declined, however, to provide

a comprehensive definition of the term “testimonial.” (Ibid.)

And while both the United States Supreme Court and this court

have since addressed numerous questions concerning the scope

of the term, “[t]he question of whether and when statements in

technical reports qualify as ‘testimonial hearsay’ remains an

evolving area of the law.” (People v. Gonzalez (2021) 12 Cal.5th

367, 398.) Our cases applying Crawford to technical reports by

a nontestifying witness have generated numerous separate

opinions, and we have recently observed that “ ‘considerable

flux” [continues to] surround[ ] the high court’s Sixth

Amendment jurisprudence.” (People v. Schultz (2020) 10

Cal.5th 623, 660, fn. 8).

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But even if we assume that the introduction of Dr. Boger’s

report violated the confrontation clause, any error was harmless

beyond a reasonable doubt. (See People v. Gonzalez, supra, 12

Cal.5th at pp. 398–399 [setting out the applicable standard for

evaluating error].) Careful review of the record shows no

reasonable possibility the admission of those materials

contributed to Barrera’s conviction.

Dr. Boger’s report, and Dr. Ribe’s testimony about the

report, were introduced to demonstrate that Lupita’s death was

part of a pattern of abuse and suffering rather than the result of

an isolated incident of extreme violence. Based on his own

investigation, Dr. Ribe found evidence of intentional blunt force

trauma to the head — including internal bleeding in the skull,

contusions to the head, and a skull fracture — which was

consistent with family members’ accounts of how Lupita died.

Dr. Ribe also found independent evidence of a week- to months-

old fracture in Lupita’s right femur, which had to be intentional

and would have been painful for at least some period of time.

The challenged portions of the evidence, derived from Dr.

Boger’s analysis, suggested three additional healed or partially

healed fractures located in Lupita’s upper arm, collarbone, and

left femur.

Medical evidence indicating that Lupita’s body had three

possible healing fractures, in addition to the fracture Dr. Ribe

had independently identified, helped to show that Lupita was

repeatedly physically abused over a period of time. But the jury

was already well aware of that pattern of severe abuse, having

heard the unchallenged testimony of multiple family members

who witnessed the beatings firsthand. From those family

members, the jury heard that Barrera beat Lupita daily during

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the period when Lupita lived with Barrera, between ages one

and two; that he had thrown her into the wall on more than one

occasion; and that she had marks all over her body, including a

cut and a belt mark on the day she died. The jury also heard

detailed testimony describing the charged murder: that Barrera

beat Lupita with his hands; threw her eight feet across the room

into the wall with sufficient force to cause an audible crack; and

refused to get medical attention for several hours while Lupita

lay dying. In addition, the jury heard from the same family

members that Barrera had engaged in a similar pattern of abuse

against Lupita’s brother, five-year-old Ernesto, also over a

prolonged period of time. Their testimony as to Ernesto was

corroborated by the results of Dr. Whiteman’s autopsy, which

was conducted shortly after Ernesto’s death and showed that

Ernesto’s body was bruised, malnourished, covered with lesions

and scars, and that he had multiple broken bones inflicted at

different times. Dr. Whiteman testified that the presence of so

many severe, differently aged injuries pointed to “an intentional

beating over a long period of time.” In short, the evidence that

Barrera had engaged in a lengthy course of abuse of both

children was both overwhelming and undisputed.

Barrera contends that evidence of three additional

possible healing fractures was particularly damaging because it

illustrated not only the pattern of abuse, but its severity and

extent. But the jury already had ample evidence on this issue

from the testimony of family members, who described the nature

of the abuse and the visible physical marks it left on Lupita;

from Dr. Ribe’s independent findings concerning the presence of

at least one healing fracture on her right femur, which he

testified must have been the result of an intentional injury; and

from the extensive testimonial and medical evidence of

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Barrera’s severe physical abuse of Lupita’s brother Ernesto.

The severity of Barrera’s abuse of the two child victims was not

meaningfully contested at trial; Barrera’s primary argument

was instead that Lupita’s injuries and death were simply the

product of an explosive and uncontrollable rage, a mental state

consistent only with second degree murder. (Cf. People v. Leon,

supra, 61 Cal.4th at p. 604 [error harmless beyond a reasonable

doubt where the cause of death — for which the erroneously

admitted report was introduced to prove — was “undisputed”

and otherwise not germane to the “central trial dispute”]; People

v. Garton (2018) 4 Cal.5th 485, 507 [error harmless beyond a

reasonable doubt where any improperly admitted testimony

went to issues that were not disputed at trial].)

Nor were Dr. Boger’s findings a central focus of the

prosecution’s case. Evidence of the fractures — including both

those identified by Dr. Boger and those independently found by

Dr. Ribe — were mentioned only twice, both times briefly and

once only obliquely, in the prosecutor’s closing arguments to the

jury; the bulk of the prosecutor’s closing arguments instead

focused on the family members’ extensive accounts of Barrera’s

abuse of Lupita. (Cf. People v. Dworak (2021) 11 Cal.5th 881,

908 [error in admitting statements was harmless where the

statements were referenced only twice in closing argument].)

Moreover, the jury had ample reason to regard Dr. Boger’s

findings with caution, given the state of Lupita’s body at the

time it was discovered. Unlike Ernesto’s body, which was found

at the time of burial, Lupita’s body had been treated with

dissolving acid and left underground for eight months. Dr. Ribe

explained to the jury that the combined effect of the acid and

decomposition limited his ability to conduct a proper autopsy, in

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part because of the deterioration of Lupita’s bones. Dr. Ribe also

told the jury that the X-ray evidence was not conclusive: When

asked about the three additional fractures, Dr. Ribe

acknowledged that the X-rays only “suggest[ed] changes seen

with healing fractures,” and that it was “not definite” that what

the X-rays showed were, in fact, fractures. Dr. Boger’s report

likewise indicated only that there were certain “deformit[ies]”

and “sites of increased density” in the X-rays that “suggest

changes seen with healing fractures.”

These points would not have been lost on the jury, which

was reminded multiple times about the state of Lupita’s body

and the necessarily limited scope of the medical evidence

concerning her injuries. During closing arguments, the

prosecutor repeatedly contrasted the extensive medical evidence

concerning Ernesto with the limited medical evidence

concerning Lupita: “[W]ith Ernesto we have a complete coroner’s

report. We can look at Ernesto and tell exactly what happened.

But with Lupita we don’t because the defendant poured acid all

over her poor little body, and because she was in an unknown,

unmarked grave for over eight months. So we don’t have the

complete picture of Lupita . . . .” The prosecutor later repeated

the point in various ways, stating, for example: “As we

discussed earlier, Lupita’s a little harder to work with, but that’s

because the defendant . . . destroyed the evidence,” “Because of

the condition of [Lupita’s] body, it’s hard to determine [she was

intentionally starved] as well as we could with Ernesto,” and

again, reminding the jury that Lupita’s “been in the ground,

she’d been dehydrated, and she had acid poured on her.”

The prosecutor did state during opening argument that

the coroner was a “key to the case on Lupita,” but she also

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qualified that statement by previewing the evidentiary

limitations of the coroner’s testimony: “Now, true, we can’t

know exactly what happened to Lupita because Lupita’s body

has been destroyed in part by acid. So you can’t do a complete

autopsy. You can’t find all the injuries. But the coroner will

testify to that.” She then went on to state that “[t]he other key,

of course, is the children,” who were going to provide more

specific testimony about the way that Barrera hit his daughter,

and the pain Lupita would have experienced (and that Barrera

would have been aware of) from those repeated instances of

abuse. In closing argument, the prosecutor reiterated the

importance of the children’s testimony in light of the limitations

of Lupita’s autopsy: “We’ll have to work with what we have, and

what we know. What we have is a coroner doing as best an

autopsy as he could; and we have the children’s testimony; and

as I said to you, they’ve proven reliable. We can believe what

they have said.”

In sum, the admission of Dr. Boger’s findings was

harmless beyond a reasonable doubt, given the undisputed

testimony from multiple witnesses regarding Barrera’s regular

beatings and abuse of Lupita, including prior occasions when

Barrera had thrown her into the wall; Dr. Ribe’s independent

findings of injuries, including a healing fracture that he testified

must have been intentionally caused; Dr. Ribe’s

acknowledgment that Dr. Boger’s findings about additional

possible fractures were not conclusive; and the repeated

reminders to the jury about the limitations of the medical

examination of Lupita’s body given the state in which it was

found. Given the other evidence at trial, evidence of the three

possible additional fractures described in Dr. Boger’s radiology

report could have had no meaningful impact on the jury’s

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assessment of whether Barrera acted with premeditation and

deliberation for purposes of the first degree murder verdict or

with the torturous intent necessary to sustain the torture-

murder findings. We therefore conclude any confrontation

clause error in admitting Dr. Boger’s statements through Dr.

Ribe was harmless beyond a reasonable doubt.

It follows that, to the extent Barrera had preserved his

current objection under Sanchez, any such error was likewise

harmless under the standard applicable to errors of state

evidence law: there is no reasonable probability that excluding

the challenged findings would have yielded a different result.

(See People v. Watson (1956) 46 Cal.2d 818, 836.)

C. Second Degree Felony-Murder Instruction

Barrera argues the trial court should have instructed the

jury on second degree felony murder based on torture, as an

assertedly lesser included offense of first degree murder by

torture. We conclude that any error in failing to give the

instruction was harmless in light of both the other instructions

given and the evidence presented at trial.

1. Background

At the close of guilt phase testimony, the parties met with

the trial court to discuss jury instructions. The court reviewed

the list of instructions it planned to give, but announced on its

own that it would not give a second degree felony-murder

instruction because such an instruction would be “confusing” for

the jury. The court explained: “Since first-degree murder, based

on torture, need not have the intent to kill, but only the intent

to torture, for lack of a better term, felony murder/torture would

come into play only if the death would be accidental or things of

that nature. Otherwise, it would be confusing, and no different

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than the first-degree murder, based upon torture. So for that

reason, I crossed off felony murder, and will not give that as a

theory of second-degree murder, although there are two other

theories of second-degree murder that will be given.” Barrera’s

counsel then stated, “That’s what I was concerned about.” The

court responded, “I’ll get to that. This is the only theory of

second-degree murder that I would be giving.” The court

continued down the list of instructions it planned to give,

reiterating shortly after this exchange that it would be giving

the instructions on second degree unpremeditated murder and

second degree implied malice murder. Neither the court nor

counsel returned to the issue of second degree felony murder by

torture. After overruling defense counsel’s objections to other

instructions, the court asked Barrera’s counsel whether he had

“any other objection[s],” to which Barrera’s counsel replied, “no,

there are none.” Barrera’s counsel also confirmed he had no

requests for special instructions.

The jury was instructed on two theories of second degree

murder: (1) unpremeditated murder with express malice (under

a modified version of CALJIC former No. 8.30), and (2) implied

malice murder (CALJIC former No. 8.31). Under the

unpremeditated murder theory, the jury was told it had to find

Barrera “intended unlawfully to kill a human being but the

evidence is insufficient to prove deliberation and premeditation

or murder perpetrated by torture.” Under the implied malice

murder theory, the jury was instructed, in relevant part, that it

had to find “1. The killing resulted from an intentional act, 2.

The natural consequences of the act are dangerous to human

life, and 3. The act was deliberately performed with knowledge

of the danger to, and with conscious disregard for, human life.”

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The jury was not instructed on second degree felony murder

based on torture.

2. Analysis

Although Barrera did not request an instruction on second

degree felony murder based on torture, he contends the trial

court had an independent obligation to give the instruction.

That instruction would have stated: “The unlawful killing of a

human being, whether intentional, unintentional or accidental,

which occurs as the direct causal result of the crime of [torture]

is murder of the second degree when the perpetrator had the

specific intent to commit that crime.” (CALJIC former No. 8.32.)

The jury would have also been instructed on the underlying

felony of torture: “In order to prove this crime, each of the

following elements must be proved: (1) A person inflicted great

bodily injury upon the person of another; and (2) The person

inflicting the injury did so with the specific intent to cause cruel

or extreme pain and suffering . . . for any sadistic purpose.”

(CALJIC No. 9.90 (6th ed. 1996); see Pen. Code, § 206 [felony

torture].)

Barrera’s argument rests on certain historical features of

the law as it existed at the time of Barrera’s crimes. In 1990,

the Legislature enacted a statute creating a felony torture

offense (Pen. Code, § 206), but it was not until 1999 that the

Legislature added torture to the list of predicates for first degree

felony murder (id., § 189.) (See Cole, supra, 33 Cal.4th 1158,

1219–1220 [describing the relevant statutory background].)

Barrera contends that, because his crimes were committed

during this intervening period, he could have been convicted of

nonstatutory second degree felony murder based on torture. He

further contends that the trial court had a sua sponte duty to

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instruct on this theory because second degree felony murder

based on torture is a lesser included offense of first degree

murder by torture, and “ ‘[a] court must generally instruct the

jury on lesser included offenses whenever the evidence warrants

the instructions, whether or not the parties want it to do so.’ ”

(People v. Beames (2007) 40 Cal.4th 907, 926 (Beames).)

At the outset, the Attorney General argues Barrera’s

claim is barred by the invited error doctrine. We disagree. The

invited error doctrine holds that a defendant may not complain

“ ‘ “when, for tactical reasons, the defendant persuades a trial

court not to instruct on a lesser included offense supported by

the evidence.” ’ ” (Beames, supra, 40 Cal.4th at p. 927; see, e.g.,

People v. Hardy (1992) 2 Cal.4th 86, 185 [defendant may not

claim instructional error where counsel’s “agreement to the

omission of the instructions was ‘for tactical reasons and not out

of ignorance or mistake’ ”].) That is not what happened here.

The trial court announced on its own that it would not be giving

the second degree felony-murder instruction but would instruct

on the other two theories of second degree murder. Defense

counsel neither requested that the felony-murder instruction be

omitted nor signaled any affirmative agreement with the court’s

decision to omit the instruction.

The Attorney General focuses on defense counsel’s

response, “That’s what I was concerned about.” It is, however,

unlikely that counsel’s statement was intended to signal

agreement with the omission of this additional second degree

murder instruction, given that the overall aim of the defense

was to convince the jury to convict Barrera of second degree

murder rather than first degree murder. It is true, of course,

that defense counsel did not challenge the court’s decision to

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omit a second degree felony-murder instruction. But the record

does not indicate that counsel affirmatively agreed to the

omission of the instructions, much less that counsel did so for

“ ‘tactical reasons and not out of ignorance or mistake.’ ”

(Hardy, supra, 2 Cal.4th at p. 185.)

The Attorney General also argues that Barrera forfeited

his claim by failing to request a second degree felony-murder

instruction at trial. But the Attorney General acknowledges

that Barrera’s failure to request the instruction would not bar

the claim if second degree felony murder by torture was, as

Barrera now argues, a lesser included offense of first degree

murder by torture during the period from 1990 to 1999. If there

was such a lesser included offense, then the trial court had a

duty to instruct the jury on it, regardless of whether Barrera

requested the instruction. (See, e.g., Whisenhunt, supra, 44

Cal.4th at p. 217 [defendant does not forfeit instructional

challenge for “ ‘theories of a lesser included offense which find

substantial support in the evidence,’ ” because the court has a

“sua sponte duty” to issue all such instructions].)

We have previously considered this issue, but we have not

had occasion to resolve it. (See Beames, supra, 40 Cal.4th at

p. 926 & fn. 9; Cole, supra, 33 Cal.4th at pp. 1219–1220.) Nor

do we do so here. As in past cases, we can assume without

deciding Barrera’s theory that second degree felony murder

based on the predicate felony of torture constituted a lesser

included offense of first degree murder by torture. Thus, we

assume the trial court was required to instruct on the theory if

it was supported by substantial evidence, regardless of whether

the parties requested it. Barrera’s claim of reversible

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instructional error nonetheless fails because any error was

harmless. (See Beames, at pp. 928–929.)

In Beames, supra, 40 Cal.4th 907, the defendant was

convicted of first degree murder, with a jury finding true the

special circumstance of torture. At the request of trial counsel,

the court declined to give an instruction on second degree felony

murder with torture as the underlying felony. (Id. at p. 926.)

On appeal, the defendant argued the trial court’s failure to do so

was reversible error. (Id. at pp. 926–927.) We concluded

counsel invited any error by requesting the instruction not be

given. But in any event, and assuming without deciding the

merits of the underlying legal theory, we found any error

harmless because the jury “ ‘ “necessarily decide[d] the factual

questions posed by the omitted instructions adversely to

defendant under other properly given instructions.” ’ ” (Id. at

p. 928, quoting Chatman, supra, 38 Cal.4th at p. 392.) We

explained that “ ‘[i]f a jury is not satisfied that a defendant acted

with either express or implied malice, it may find the defendant

guilty of second degree murder on a felony murder theory.’ ”

(Beames, at pp. 928–929.) Here, by finding true the torture-

murder special circumstance, the jury “necessarily determined

that defendant intended to kill [the victim] when he tortured

her. Thus, there was no prejudice resulting from any erroneous

failure to instruct on second degree felony murder.” (Id. at

p. 928.)

Our reasoning in Beames relied on People v. Blair (2005)

36 Cal.4th 686, in which we rejected an identical challenge in

the context of murder by poison. We explained there that the

jury’s true finding on the special circumstance of murder by

poison, which required a finding of intent to kill, was

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inconsistent with any theory that “defendant intended only to

injure [the victim] when he poisoned her,” as would be required

to sustain a second degree felony-murder conviction. (Id. at

p. 746; see id. at pp. 745–746.) The court’s failure to instruct the

jury on second degree felony murder by poison was therefore

harmless. (Id. at p. 747.)

Here, as in Beames, the jury returned true findings on the

torture-murder special-circumstance allegations, meaning the

jury found that Barrera not only tortured both victims, but

intended to kill them. It follows from Beames that any error in

failing to instruct the jury on second degree felony murder was

harmless. (Beames, supra, 40 Cal.4th at p. 928.)

Barrera offers no persuasive reason to revisit our

precedent on this point. He argues that Beames erred in relying

on Blair for its harmlessness analysis because Blair’s conclusion

about the incompatibility of the special circumstance finding

and any theory of second degree felony murder depended on

specific features of the poisoning crime at issue. But Beames

effectively held that any theory of second degree felony murder

based on torture shares the same relevant features as second

degree murder based on poison. Thus, as with second degree

murder by poison, second degree felony murder based on torture

is negated by the jury’s special circumstance finding that the

defendant not only intentionally tortured, but intended to kill

the victim. (See Beames, supra, 40 Cal.4th at pp. 928–929.)

In any event, regardless of whether the special

circumstance finding alone means the jury necessarily would

have decided the second degree felony-murder issue adversely

to Barrera, Barrera is entitled to reversal only if it is

“ ‘reasonably probable’ [he] would have achieved a more

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favorable result” had the jury been instructed on the theory.

(People v. Breverman (1998) 19 Cal.4th 142, 149.) We conclude

that a more favorable result was not reasonably probable, given

the other instructions the jury received in this case. Jurors were

instructed on first degree premeditated murder, first degree

torture murder, second degree unpremeditated murder with

express malice, and second degree implied malice murder.

Barrera’s central argument appears to be that a second degree

felony-murder instruction might have made a difference

because it would have allowed the jury to express its judgment

that Barrera intentionally tortured both children without

having to make additional findings about whether he intended

to kill. But if the jury had misgivings about whether Barrera

intended to kill his children, they had ample alternatives for

expressing that judgment. The jury was instructed on two

theories of second degree murder, both of which would have

required finding a less culpable state of mind. In returning

verdicts for first degree murder and finding true the torture-

murder special circumstances, the jury rejected these theories,

instead indicating that it believed that Barrera intentionally

both tortured and killed his victims and that he committed the

torture, the murders, or both, with premeditation and

deliberation. We have already detailed the extensive evidence

from which the jury could reasonably have inferred that Barrera

killed both Lupita and Ernesto with premeditated and

deliberate intent. (See pt. II.A.2, ante.) Given the evidentiary

record and the instructions given, we find no reasonable

probability that instructing the jury on a third theory of second

degree murder would have changed the outcome.

Barrera argues in the alternative that at the time of his

crimes, first degree torture murder and second degree felony

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murder based on felony torture were substantively identical,

such that he could be only convicted of the lesser crime. (Pen.

Code, § 1097.) Beames effectively refutes the premise of the

argument. (See Beames, supra, 40 Cal.4th at pp. 928–929

[assuming the validity of a theory of second degree felony

murder based on torture, “ ‘[i]f a jury is not satisfied that a

defendant acted with either express or implied malice, it may

find the defendant guilty of second degree murder on a felony

murder theory’ ”].) Moreover, as we observed in Veronica

Gonzales, supra, 51 Cal.4th 894, unlike first degree murder by

torture, “the second degree offense does not require

premeditation.” (Id. at p. 939; see Whisenhunt, supra, 44

Cal.4th at p. 201 [first degree torture murder requires

premeditated and deliberate intent to torture, whereas second

degree murder does not require any such “preexisting

reflection”].)

We therefore reject Barrera’s invitation to set aside his

first degree murder conviction or reduce the conviction to second

degree felony murder based on torture.

D. CALJIC Former No. 8.71

Barrera also challenges the trial court’s instruction on

reasonable doubt as to the degree of murder. We have recently

rejected several similar challenges. (See People v. Mataele

(2022) 13 Cal.5th 372, 418–420 (Mataele); People v. Scully (2021)

11 Cal.5th 542, 596–598; People v. Potts (2019) 6 Cal.5th 1012,

1045–1047 (Potts); People v. Mitchell (2019) 7 Cal.5th 561, 579–

582; People v. Rivera (2019) 7 Cal.5th 306, 325–327; People v.

Buenrostro (2018) 6 Cal.5th 367, 428–429 (Buenrostro); People

v. Salazar (2016) 63 Cal.4th 214, 246–248 (Salazar); see also

People v. Moore (2011) 51 Cal.4th 386, 412 [1996 version of

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CALJIC No. 8.71 instruction harmless given the jury’s true

findings of two special circumstances in that case].) For similar

reasons, we reject Barrera’s argument here.

As an initial matter, the Attorney General argues Barrera

forfeited this argument by failing to object at trial. But because

Barrera’s claim concerns instructional error affecting his

substantial rights, we address the merits of the claim.

(Buenrostro, supra, 6 Cal.5th at p. 428 [reviewing CALJIC No.

8.71 instructional error claim despite lack of an objection]; see

Pen. Code, § 1259.)

Barrera’s jury received the 1996 version of CALJIC No.

8.71, which stated: “If you are convinced beyond a reasonable

doubt, and unanimously agree, that the crime of murder has

been committed by the defendant, but you unanimously agree

you have a reasonable doubt whether the murder was of the first

or second degree, you must give defendant the benefit of that

doubt, and return a verdict fixing the murder as of the second

degree.” (Italics added.) According to Barrera, this instruction

impermissibly told the jury that even if one juror “was in doubt

that the State had met its burden of proving every element of

first degree murder, the individual jurors were not obligated to

vote for second degree murder, unless all jurors agreed there was

reasonable doubt. Thus, former CALJIC 8.71 required a juror

who had a reasonable doubt about appellant’s guilt of first

degree murder to nonetheless convict appellant of that crime

because another juror disagreed, even though disagreement

should lead to no worse outcome than a hung jury.”

We have rejected this interpretation of the instruction as

“tortured.” (Salazar, supra, 63 Cal.4th at p. 247.) As we stated

in Salazar, “[i]f anything, [the 1996 version of CALJIC No. 8.71]

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skewed the deliberations in [the defendant’s] favor. [It] could

reasonably be understood to tell the jurors that if they all agreed

there was reasonable doubt as to the degree of the crime,

because some jurors were not convinced, then defendant was

entitled to the benefit of the doubt and a verdict of the lesser

offense. No logical reading of the instruction[] leads to a

compelled verdict of first degree murder.” (Id. at p. 247; accord,

e.g., Buenrostro, supra, 6 Cal.5th at p. 429; Mataele, supra, 13

Cal.5th at p. 420 [“We also rejected the very interpretation

advanced by defendant here — that the 1996 revised version

of CALJIC No. 8.71 lowered the prosecution’s burden of proof by

making first degree murder the default verdict”]; Potts, supra, 6

Cal.5th at p. 1046 [“From that point, the instruction redounded

to the benefit of the defendant; uncertainty about the degree of

the offense would not make first degree murder the default, it

would require that the defendant receive the benefit of the

doubt — an acquittal on the first degree murder charge”].)

In any event, Barrera’s jury also received a number of

other instructions that, when viewed as a whole, adequately

conveyed to the jury that each juror “must be individually

convinced of defendant’s guilt beyond a reasonable doubt before

convicting [the defendant] of first degree murder.” (Buenrostro,

supra, 6 Cal.5th at p. 429; see Salazar, supra, 63 Cal.4th at

p. 248 [we evaluate the “ ‘ “correctness of jury

instructions . . . from the entire charge of the court, not from a

consideration of parts of an instruction or from a particular

instruction’ ” ’].) These included CALJIC former No. 8.74 (jury

must unanimously agree as to degree of murder if it finds

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Barrera guilty of murder);4 CALJIC former No. 17.40 (each

juror must reach a decision individually and not just follow the

group or another juror);5 and CALJIC former No. 17.43 (during

deliberations, the jury should direct any requests or questions

to the trial court),6 as well as the elements of unpremeditated

second degree murder (CALJIC former No. 8.30). This

combination of instructions sufficed to clarify any confusion

caused by CALJIC former No. 8.71. (Buenrostro, at pp. 429–

430.) Viewing the instructions as a whole, “[a]ny jurors who

4

CALJIC former No. 8.74 read in full: “Before you may

return a verdict in this case, you must also agree unanimously

not only as to whether the defendant is guilty or not guilty, but

also, if you should find him guilty of an unlawful killing, you

must unanimously agree as to whether he is guilty of murder of

the first degree, or murder of the second degree.”

5

CALJIC former No. 17.40 read in full: “The People and

the defendant are entitled to the individual opinion of each

juror. [¶] Each of you must consider the evidence for the

purpose of reaching a verdict if you can do so. Each of you should

decide the case for yourself only after discussing the evidence

and the instructions with the other jurors. [¶] Do not hesitate

to change an opinion if you are convinced it is wrong. However,

do not decide any question in a particular way because a

majority of jurors, or any of them, favor that decision. [¶] Do

not decide any issue in this case by the flip of a coin, or any other

chance determination.”

6

CALJIC former No. 17.43 read in full: “During

deliberations, any question or request the jury may have should

be addressed to the court on a form that will be provided. Please

understand that counsel must first be contacted before a

response can be formulated. If a readback of testimony is

requested, the reporter shall delete objections, rulings, and side-

bar conferences so that you will hear only the evidence that was

actually presented. Please understand that it may take time to

provide a response. Continue deliberating until you are called

back into the courtroom.”

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might personally have been persuaded to give defendant the

benefit of the doubt regarding the degree of murder when other

jurors had concluded [defendant] was guilty of first degree

murder would have understood that they could not properly vote

to convict her of first degree murder because, in their view, the

prosecution had not proven her guilt of that offense beyond a

reasonable doubt.” (Id. at p. 430.)

E. Child Endangerment and Corporal Injury as

Lesser Included Offenses of Child Abuse

Homicide

Barrera also contends that his convictions for child

endangerment and corporal injury must be reversed because

they are lesser included offenses of child abuse homicide. (See

Pen. Code, §§ 273ab [child abuse homicide], 273a, subd. (a)

[child endangerment], 273d, subd. (a) [corporal injury on a

child].) Though a single act or course of conduct can give rise to

multiple convictions (see Pen. Code § 954; People v. Correa

(2012) 54 Cal.4th 331, 337 (Correa) [“Section 954 generally

permits multiple conviction”]), we have recognized a “judicially

created exception to this rule prohibit[ing] multiple convictions

based on necessarily included offenses.” (People v. Montoya

(2004) 33 Cal.4th 1031, 1034.) The exception, however, applies

only when the convictions arise out of “a single act or course of

conduct.” (Ibid.; see People v. Ortega (1998) 19 Cal.4th 686, 699

(Ortega) [“[W]hether defendants properly were convicted of both

robbery and theft depends upon whether those convictions were

based upon the same conduct”].) Here, the jury was presented

with evidence that Barrera committed multiple acts of abuse

and mistreatment spanning weeks — if not months — before

the fatal blows that ultimately killed both children. There is no

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bar to Barrera’s conviction of multiple offenses based on the

multiple acts shown at trial.

The crime of child abuse homicide, codified in Penal Code

section 273ab, has the following elements: “ ‘(1) A person, having

the care or custody of a child under the age of eight; (2) assaults

this child; (3) by means of force that to a reasonable person

would be likely to produce great bodily injury; (4) resulting in

the child’s death.’ ” (People v. Wyatt (2010) 48 Cal.4th 776, 780;

see ibid. [“The manifest purpose of section 273ab is ‘to protect

children at a young age who are particularly vulnerable’ ”].) The

assault element “requires an intentional act and actual

knowledge of those facts that would lead a reasonable person to

realize that great bodily injury would directly, naturally, and

probably result from the act.” (Id. at p. 786.) Child

endangerment, codified in Penal Code section 273a, subdivision

(a), covers “ ‘ “both active and passive conduct, i.e., child abuse

by direct assault and child endangering by extreme neglect.” ’ ”

(People v. Valdez (2002) 27 Cal.4th 778, 784; ibid. [statute

intended to protect children from abusive situations with high

probability of serious injury].) It applies to anyone who, “ ‘under

circumstances or conditions likely to produce great bodily harm

or death, [1] willfully causes or permits any child to suffer, or [2]

inflicts thereon unjustifiable physical pain or mental suffering,

or [3] having the care or custody of any child, willfully causes or

permits the person or health of that child to be injured, or [4]

willfully causes or permits that child to be placed in a situation

where his or her person or health is endangered . . . .’ ” (Id. at

p. 783, quoting Pen. Code, § 273a, subd. (a).) And the crime of

corporal injury, codified in Penal Code 273d, subdivision (a),

makes it a felony to “willfully inflict[] upon a child any cruel or

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inhuman corporal punishment or an injury resulting in a

traumatic condition.”

The evidence supporting Barrera’s convictions for child

endangerment and corporal injury spanned at least several

weeks, and it included multiple nonfatal acts Barrera

committed against the children before their deaths. For

Ernesto, as explained in part I.A., ante, the jury heard evidence

that Barrera beat Ernesto every day for months, sometimes

using a belt, electrical cord, or broomstick, and that Barrera

once broke Ernesto’s legs after beating the boy with a

broomstick. Barrera also withheld food from Ernesto, and the

medical examiner found evidence that Ernesto had been

deliberately starved, such as the boy’s missing thymus and

thinning hair. Ernesto later fell into a semi-comatose state,

where he remained for two months before Barrera kicked his

head into the wall and killed him. For Lupita, the jury heard

evidence that Barrera beat the child every day for about two to

three months, and Maria E. testified Barrera had thrown Lupita

into the wall more than once. Lupita was malnourished and

about six months behind in development. On the day Lupita

died, Barrera hit her multiple times and eventually threw her

into the wall, killing her. The record thus does not indicate that

Barrera’s convictions for child endangerment and corporal

injury were based on the same fatal blows that killed both

children here.

The cases on which Barrera relies in support of his

argument are all meaningfully distinguishable. Both cases

involve either convictions unquestionably premised on the exact

same act (People v. Reed (2006) 38 Cal.4th 1224 [three

convictions based on single possession of an automatic pistol]),

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or a series of acts in rapid succession (Ortega, supra, 19 Cal.4th

at pp. 689–691 [convictions based on same-day incident where

defendants assaulted victims, took wallet and pager, and then

entered victim’s van and drove away]; see also, e.g., People v.

Sloan (2007) 42 Cal.4th 110, 114–115, 119 [multiple convictions

based on same-day incident where defendant threw his wife to

the ground, kicked her, and broke her leg]; People v. Sanders

(2012) 55 Cal.4th 731, 734 [multiple convictions based on

simultaneous possession of two firearms]; Correa, supra, 54

Cal.4th at pp. 334–335 [multiple convictions for possessing

seven rifles and shotguns].) That is not the case here.

Barrera points to the prosecutor’s closing statements —

which discussed evidence of beatings alongside the children’s

death to support the child endangerment and corporal injury

charges — as evidence that both convictions were based on the

same conduct as the conviction for child abuse homicide. While

the prosecutor’s statements were not specific in identifying the

acts supporting each of the charges, referring more generally to

Barrera’s “beating” of the children, it is not clear the prosecutor

was inviting the jury to return multiple guilty verdicts,

involving necessarily included offenses, based solely on the fatal

act constituting child abuse homicide.7 In any event, the

7

For the child endangerment charge, the prosecutor argued

in closing: “He beat the hell out of those kids, and he killed

them.” For corporal injury, she argued: “He beat the kids. They

are dead. Pretty easy.” For child abuse homicide, the prosecutor

argued she had to prove “a lot of the same things I have already

proven to you,” including that Barrera committed an assault

(“this man tortured and beat and battered these children until

he finally killed them”); the force was one a reasonable person

would know would result in injury (“what do you think a

reasonable person thinks when they take a kid that has turned

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prosecutor’s description of the evidence is not controlling. (See

Ortega, supra, 19 Cal.4th at p. 699 [review of record indicates

robbery conviction was based on act of taking the van, despite

prosecution’s closing argument basing the robbery charge only

on theft of wallet and pager].) The fact remains that the jury

heard considerable evidence of Barrera’s abuse of the children

other than the fatal acts supporting the child abuse homicide

charge. We therefore reject Barrera’s contention regarding

lesser included offenses.

III. PENALTY PHASE ISSUES

A. Prosecutor’s Comments on Lack of Remorse

“The Fifth Amendment to the United States Constitution

provides that ‘[n]o person . . . shall be compelled in any criminal

case to be a witness against himself.’ ” (Lopez, supra, 5 Cal.5th

at p. 368.) This prohibition “ ‘ “forbids either direct or indirect

comment upon the failure of the defendant to take the witness

stand,’ ” ’ (People v. Hughes (2002) 27 Cal.4th 287, 372), and it

applies to both the guilt and penalty phase of capital trials

(People v. Zambrano (2007) 41 Cal.4th 1082, 1174 (Zambrano),

citing Estelle v. Smith (1981) 451 U.S. 454, 462.) Barrera argues

the prosecutor violated his privilege against self-incrimination

by alluding to his failure to testify at the penalty phase and

two, that is starved, and not only beat her but pick her up and

throw her across the room at that wall. Just like an egg, she

splatters on the wall”); and the force resulted in death (“This,

ladies and gentlemen, we have proven every which way there

is”). The mere fact that the prosecutor described the beatings

alongside the deaths does not mean the prosecutor was relying

on the exact same conduct for the child endangerment and

corporal injury charges as she was for the child abuse homicide

charge; instead, it appears the prosecutor was emphasizing the

level of force Barrera levied against the victims.

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either express remorse or confess guilt. (See Griffin v.

California (1965) 380 U.S. 609; People v. Coleman (1969) 71

Cal.2d 1159.) Upon review of the record, we conclude Barrera

has not established a basis for reversal of the penalty.

During the penalty phase, four of Barrera’s children

testified for the prosecution, describing additional acts of

violence from Barrera and their feelings of hatred and fear

towards their father. (See pt. I.B., ante.) The defense

introduced testimony from a cultural expert and from Barrera’s

relatives in Mexico, including his mother and father, who

described Barrera’s impoverished upbringing. In her closing

argument, the prosecutor referred to Barrera’s parents, stating

that the defense introduced their testimony as evidence of

extenuating circumstances under Penal Code section 190.3,

subdivision (k): “[T]hat’s why the parents were here. . . . They

were here to tell you that [Barrera is] a human being in their

mind, and that he’s their son, and to feel sorry for him. That’s

why they’re here. Good people. Good people. And he used that

most fully.” The prosecution then continued:

Why do I say that? We, the people of the State of

California, we the citizens, we don’t murder our

children. . . . Basic law of nature, we do not torture

and murder our children. We don’t do it. His

parents know that. That’s why they are here. And

he takes that very notion, the very basic law, and he

takes it and hides behind it. He violates it, and then

he hides behind it. That’s a blasphemy against

nature. How dare he. That’s how low he is.

Does he deserve to live? You weigh that in your

mind against what? There’s nothing that the

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defense can present to you that shows this, I can’t

say person, shows the defendant has any right to

live.

You know we cannot say to you that the absence of

remorse is a factor to consider when weighing. But

certainly I’m sure that the defense is going to focus

on asking for mercy for the defendant. That’s why

his family was here for mercy.

When you can’t talk about remorse, when you talk

about whether or not you should give mercy,

‘remorse[,]’ have you ever heard anywhere that he’s

sorry? He doesn’t admit any of this. His attorney

does.

Barrera’s counsel objected at this point, and the trial judge

overruled the objection. The prosecutor then continued,

referencing a series of letters Barrera wrote to Maria Ricardo

after he was imprisoned:

There is 60 something letters there. In all those

letters there is not one word of regret.

Unfortunately, all those letters deal with is what he

would like to do with Maria [Ricardo], and I’m not

going to go into that. But his big concern is whether

he can get conjugal visits and describing the kind of

sex he’s missing with her. . . .

Now, in all these things you have, you have that

report of the cultural expert, you have all these

letters, there’s never any mention of Lupita and

Ernesto. There’s never any mention of the harm he’s

done to his other children.

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Barrera challenges the italicized portions of the

prosecutor’s statements, arguing that they impermissibly

commented on Barrera’s failure to personally admit his crimes

by taking the stand. His challenge primarily centers on the

prosecutor’s statement that Barrera “ ‘doesn’t admit any of

this’ ” but “ ‘[h]is attorney does,’ ” and that Barrera has not said

anywhere “that he’s sorry.”

As we have previously explained, there is a material

difference between “a prosecutor’s comment that a defendant

failed to take the stand to express remorse and a prosecutor’s

comment that there was no evidence that a defendant had ever

expressed remorse.” (Lopez, supra, 5 Cal.5th at p. 368; see

People v. Hughes, supra, 27 Cal.4th at p. 372 [Griffin “ ‘ “does

not extend to comments on the state of the evidence” ’ ”].) When

read in context, the prosecutor’s rhetorical question to the

jury — “Have you ever heard anywhere that he’s sorry?” — are

not fairly interpreted as statements about Barrera’s failure to

take the stand, but rather about Barrera’s failure to ever

express remorse for his actions, including in his letters to Maria

Ricardo and in his interview with the cultural expert. (See

Lopez, at pp. 367, 368 [prosecutor’s rhetorical questions — “ ‘Did

you ever hear Mr. or Mrs. Lopez say: Michael Lopez told me,

sorry, Mom, for breaking your heart . . . [,] for having you come

to court and having you beg for my life.’ . . . ‘Did you ever hear

one word of remorse from him?’ ” — were permissible because

the prosecutor was referring to out-of-court statements, and not

defendant’s “failure to show remorse to the jury directly by not

testifying”]; Zambrano, supra, 41 Cal.4th at p. 1174

[prosecutor’s argument — “ ‘Is there any evidence that the

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defendant has repented or has expressed remorse? [¶] I

submit . . . there has been none’ ” — permissible under Griffin

because the statements were not that “defendant had failed to

take the stand to express remorse,” but rather, that “there was

no evidence that defendant had ever expressed remorse”].) So

understood, there was no error in the comment.

The matter is somewhat less clear as to whether the

prosecutor’s related comments — that Barrera “doesn’t admit

any of this. His attorney does” — are also properly considered

to be references to the evidence regarding Barrera’s lack of

remorse. Considered in isolation, the jury might conceivably

have understood the remarks to refer to Barrera’s failure to

personally admit his crimes, especially given the

contemporaneous remark that Barrera’s attorney was the one

making such admissions. These brief comments, however, were

sandwiched between a rhetorical question about whether the

jury had “ever heard anywhere that [Barrera was sorry]” and a

detailed description of Barrera’s lack of remorse in letters to

Maria Ricardo and in his interview with the cultural expert.

Viewed in that context, the prosecutor’s comments are perhaps

better understood as an inartful way of emphasizing Barrera’s

lack of remorse in his private communications, despite his

attorney’s concession at the guilt phase that Barrera killed his

children and was guilty of second degree murder. (See People v.

Frye (1998) 18 Cal.4th 894, 1020 [identifying similar statements

as mere references to the “dearth of mitigation evidence”

concerning remorse and therefore permissible under Coleman].)

But even assuming the comments were improper, the

error was harmless, as the comments were “brief and did not

overtly call attention” to the defendant’s failure to testify or

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admit guilt. (People v. Bloom (2022) 12 Cal.5th 1008, 1055

(Bloom); see People v. Fierro (1991) 1 Cal.4th 173, 244 [finding

no prejudice in prosecutor’s “brief and transitory” remark —

which, among other things, stated that defendant committed the

charged crimes and “ ‘for him to stand up now and deny it is the

abject opposite of sympathy’ ” and “ ‘shows a total lack of

remorse’ ”].)

We also reject Barrera’s challenge to the prosecutor’s

statement that Barrera “hides behind” the “basic law” against

murdering one’s children. As an initial matter, Barrera has

forfeited any challenge to these statements by failing to object

to them below. (People v. Tran (2022) 13 Cal.5th 1169, 1221.)

But even if we were to entertain the claim on the merits, we

would find it unavailing. The prosecutor argued that Barrera

violated a “basic law of nature” by killing his children; his

parents understand this law, which is “why they are here” —

presumably, to try to save his life — and Barrera “takes that

very notion . . . and hides behind it. He violates it, and then he

hides behind it.” Barrera argues that these comments

impermissibly suggested that he let his parents plead his case

instead of taking the stand and asking for mercy himself. We

disagree. In context, the prosecutor’s comments are most

naturally understood as referencing Barrera’s decision to have

his parents testify in his defense at all — thus effectively asking

his parents to shield their child from the consequences of his

fatal abuse of his own children — rather than his decision not to

testify. We perceive no Griffin error in the challenged

statement.

Finally, even if the comments had been improper, we

would find the error harmless. In view of all the evidence —

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including aggravating evidence about Barrera’s additional acts

of violence, the letters to Maria Ricardo, and the remaining

children’s testimonies in favor of a death verdict — “[w]e are

satisfied beyond a reasonable doubt that the prosecutor’s

fleeting remark[s] could not have prejudiced” the defendant.

(Bloom, supra, 12 Cal.5th at p. 1055; see People v. Turner (2004)

34 Cal.4th 406, 420 [harmless error where, among other things,

oblique references to defendant’s failure to testify were “ ‘brief

and mild’ ”].)

B. No Adverse Inference Instruction

Barrera also argues that the court erred in refusing to give

his requested instruction that the jury make no adverse

inferences based on his failure to testify. The jury received this

instruction at the guilt phase, but received the standard

instruction at the penalty phase to “[d]isregard all other

instructions given to you in other phases of this trial.”8 The

court’s refusal to give the no-adverse-inference instruction at

the penalty phase was error, but we conclude the error was

harmless beyond a reasonable doubt.

“[T]he Fifth Amendment requires that a criminal trial

judge must give a ‘no-adverse-inference’ jury instruction when

requested by a defendant to do so.” (Carter v. Kentucky (1981)

450 U.S. 288, 300 (Carter); see People v. Daveggio & Michaud

(2018) 4 Cal.5th 790, 852.) This rule extends to the penalty

8

The jury received CALJIC No. 2.60 at the guilt phase,

which provided in full: “A defendant in a criminal trial has a

constitutional right not to be compelled to testify. You must not

draw any inference from the fact that a defendant does not

testify. Further, you must neither discuss this matter nor

permit it to enter into your deliberations in any way.” (CALJIC

No. 2.60 (6th ed. 1996).)

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phase of a capital trial. (See People v. Leonard (2007) 40 Cal.4th

1370, 1424 [in penalty context, “the Fifth Amendment entitles a

criminal defendant, upon request, to an instruction that will

‘minimize the danger that the jury will give evidentiary weight

to a defendant’s failure to testify’ ” (quoting Carter, at p. 305)];

People v. Melton (1988) 44 Cal.3d 713, 758 (Melton).)

In denying Barrera’s request, the court relied on People v.

Box (2000) 23 Cal.4th 1153, but Box did not provide authority to

support the denial. The relevant discussion in Box stated,

without further context: “Defendant next contends it was error

not to instruct the jury to refrain from drawing any inference

from the fact that defendant did not testify at the penalty phase.

Not so.” (Id. at p. 1216.) As support, the Box court cited People

v. Davenport (1995) 11 Cal.4th 1171 (Davenport), which also

rejected a claim of no-adverse-inference instructional error —

but in the context of whether the court had a sua sponte duty to

give a no-adverse-inference instruction even if the defendant did

not request one. (Id. at p. 1231.) Davenport did not purport to

hold that a trial court can decline a no-adverse-inference

instruction if the defendant affirmatively requests one; on the

contrary, Davenport acknowledged the “general rule” (ibid.,

citing Melton, supra, 44 Cal.3d at p. 758) that a no-adverse-

inference instruction “need only be given upon his request”

(Melton, at p. 758). The consistent rule in these cases is that a

trial court must give such an instruction upon request but need

not do so sua sponte. The court in this case therefore erred in

failing to give a no-adverse-inference instruction despite

Barrera’s request for one.

The parties dispute whether the error here was structural,

requiring reversal of Barrera’s sentence, or subject to harmless

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error review under Chapman. Neither we nor the high court

has previously decided this question. (See Carter, supra, 450

U.S. at p. 304 [declining to address the prejudice standard];

Burns v. Secretary, Florida Dept. of Corrections (11th Cir. 2013)

720 F.3d 1296, 1304 [“no opinion by the Supreme Court has

answered whether Carter error is trial or structural”].) But

every California state and federal appellate court to consider the

issue has held that Carter error is subject to harmlessness

review under Chapman. (See People v. Evans (1998) 62

Cal.App.4th 186, 198 (Evans); U.S. v. Soto (9th Cir. 2008) 519

F.3d 927, 930 (per curiam); U.S. v. Brand (1st Cir. 1996) 80 F.3d

560, 568; Hunter v. Clark (7th Cir. 1991) 934 F.2d 856, 860; U.S.

v. Ramirez (5th Cir. 1987) 810 F.2d 1338, 1344; see also Burns,

at p. 1303 [rejecting habeas corpus petitioner’s argument that

“failure to give a no-adverse-inference instruction is so

fundamental, so structural that reversal would be automatic”];

U.S. v. Whitten (2d Cir. 2010) 610 F.3d 168, 200 [applying

Chapman to Carter error].) We now reach the same conclusion.

Our case law makes clear that “most errors implicating a

federal constitutional right, including most instructional errors,

are amenable to harmless error analysis.” (People v. Aranda

(2012) 55 Cal.4th 342, 363.) As the United States Supreme

Court has explained, “ ‘if the defendant had counsel and was

tried by an impartial adjudicator, there is a strong presumption

that any other [constitutional] errors that may have occurred

are subject to harmless-error analysis.’ [Citation.] Indeed, we

have found an error to be ‘structural,’ and thus subject to

automatic reversal, only in a ‘very limited class of cases.’ ”

(Neder v. United States (1999) 527 U.S. 1, 8 [instructional error

that omits element of offense is subject to harmless-error

analysis]; cf. ibid. [structural error includes, for example,

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complete denial of counsel, biased trial judge, and racial

discrimination in jury selection].) We agree with the weight of

authority that Carter error does not fall in the limited class of

instructional errors warranting automatic reversal without

regard to prejudice. Unlike the failure to give a reasonable-

doubt instruction, for example, the failure to give a no-adverse-

inference instruction is not an error that “always results” in a

“fundamentally unfair” trial. (Weaver v. Massachusetts (2017)

582 U.S. 286, 296, citing Sullivan v. Louisiana (1993) 508 U.S.

275, 279; see, e.g., Evans, supra, 62 Cal.App.4th at pp. 193–194

[citing cases].) “Moreover, a Carter instruction is not required

in every criminal trial; it is merely available if a defendant so

requests.” (U.S. v. Soto, supra, 519 F.3d at p. 930.) It is not the

type of error that “ ‘affect[s] the framework within which the

trial proceeds’ ” (ibid.), nor is it the type of error, like the denial

of the right to select one’s own attorney, whose effects “are

simply too hard to measure” (Weaver v. Massachusetts, at p.

295, citing Vasquez v. Hillery (1986) 474 U.S. 254, 263).

Accordingly, we hold that the erroneous failure to give a no-

adverse-inference instruction when the defendant has requested

one is, like most constitutional errors, subject to harmless error

review under the Chapman standard.

In this case, the court’s failure to give the no-adverse-

inference instruction was harmless beyond a reasonable doubt

for the same reasons that any asserted Griffin error was

harmless: the prosecution presented extensive aggravating

evidence about Barrera’s additional acts of violence and severe

impact on his children. And though the defense attempted to

offer a “partial explanation,” it also acknowledged “there’s a lot

we don’t have an explanation for.” (See pt. I.B., ante.) Viewing

the record as a whole, there is no reasonable doubt the jury

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would have returned the same verdict and made the same

findings even if it received a no-adverse-inference instruction.

IV. OTHER ISSUES

A. Racial Justice Act Challenges

While the appeal in this case was pending, the Legislature

enacted the California Racial Justice Act of 2020 (RJA or Act)

(Stats. 2020, ch. 317, § 1), which creates a statutory basis for

challenging a conviction or sentence on grounds that it was

obtained by means of racial, ethnic, or national origin

discrimination. Barrera has raised a number of claims under

the RJA. In evaluating these claims, we have considered the

parties’ arguments concerning the relevant provisions of the

RJA as first enacted, as well as subsequent legislative

amendments that have taken effect since the appeal in this case

was first argued. Based on our review of the trial record, we

conclude that Barrera has not established grounds for reversal

of his guilt or penalty judgments.

1. Racial Justice Act Background

The central provision of the RJA is Penal Code section 745

(section 745), which declares that “[t]he state shall not seek or

obtain a criminal conviction or seek, obtain, or impose a

sentence on the basis of race, ethnicity, or national origin.”

(§ 745, subd. (a).) A defendant may establish a violation by, as

relevant here, proving by a preponderance of the evidence that

“[d]uring the defendant’s trial, in court and during the

proceedings, the judge, an attorney in the case, a law

enforcement officer involved in the case, an expert witness, or

juror, used racially discriminatory language . . . or otherwise

exhibited [racial] bias or animus towards the defendant . . .

whether or not purposeful.” (§ 745, subd. (a)(2).)

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The statute defines the term “ ‘[r]acially discriminatory

language’ ” to mean “language that, to an objective observer,

explicitly or implicitly appeals to racial bias, 9 including, but not

limited to, racially charged or racially coded language, language

that compares the defendant to an animal, or language that

references the defendant’s physical appearance, culture,

ethnicity, or national origin. Evidence that particular words or

images are used exclusively or disproportionately in cases where

the defendant is of a specific race, ethnicity, or national origin is

relevant to determining whether language is discriminatory.”

(§ 745, subd. (h)(4).) In cases in which the judgment was

entered before the effective date of the RJA, the use of language

that appeals to implicit bias requires reversal unless the People

demonstrate the violation was harmless beyond a reasonable

doubt. (People v. Bankston (June 1, 2026, S044739) __ Cal.5th

__ [2026 Lexis ____] [pp. 108–123.] (Bankston).)

As the statutory text reflects, RJA claims presented for the

first time on appeal may in some cases require additional factual

development in the trial court. But here there is no dispute that

the claims Barrera raises can be resolved on appeal based on the

existing trial record. We therefore proceed to consider the

merits of Barrera’s claims.

2. Pretrial RJA Claims

Barrera claims that three different RJA violations

occurred during jury selection at his 2001 trial. The first alleged

9

We understand the phrase “racially discriminatory

language” and its definition in section 745, subd. (h)(4), in

context, to refer not only to bias based on race, but also to bias

based on ethnicity or national origin, consistent with the

overarching prohibition in subdivision (a).

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violation is based on statements made by prospective jurors who

were later excused for cause; the second and third alleged

violations are based on voir dire questions asked by

codefendant’s counsel and by his own counsel in order to elicit

jurors’ potential biases. We conclude that no reversible RJA

error occurred.

a. Statements by Prospective Jurors

During voir dire, two prospective jurors made statements

indicating that they would be biased against Barrera based on

his nationality and immigration status. Both prospective jurors

were excused for cause.

The first prospective juror, R.C., answered yes to the

following item on the written juror questionnaire: “A party,

attorney, or witness may come from a particular national, racial,

or religious group, or has a lifestyle different from your own.

Would that fact affect your judgment, or the weight and

credibility you would give his or her testimony?” During voir

dire, in response to questions from codefendant Maria Ricardo’s

counsel, Larry Baker, Prospective Juror R.C. explained that

“nationality” would affect her credibility judgments. She

explained that she “work[s] with Hispanic people; and it’s just,

sometimes, immigration issues.” She said that it was “possible”

that the fact that a testifying defendant is Mexican would “play

into how [she would] view her evidence [and] testimony.” And

that it was “possible” that the mere fact that a defendant is

Mexican would weigh in to how she would judge her.

The second prospective juror, F.C., wrote in response to

the same questionnaire item: “I resent the flood of non-

European immigrants to the U.S. in recent years.” In an

exchange with Baker during voir dire, Prospective Juror F.C.

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expanded on the statement. “That was badly put.” “What I

really meant by that is, I feel sorry for all the people being let in

with almost no education, and extremely poor circumstances

and background; and I think they tend to become a burden on

everyone else, and have no chance of succeeding here. I wish

our policies were different.”

Although both of these prospective jurors were

disqualified from service, Barrera contends that the prospective

jurors’ statements violate section 745, subdivision (a)(2) (section

745(a)(2)). A violation occurs under that provision when “the

judge, an attorney in the case, a law enforcement officer involved

in the case, an expert witness, or juror” uses “racially

discriminatory language about the defendant’s race, ethnicity,

or national origin, or otherwise exhibit[s] bias or animus

towards the defendant because of the defendant’s race,

ethnicity, or national origin.” (Ibid.)

We find no violation. The statutory list in section 745(a)(2)

includes jurors, but it does not, by its terms, include prospective

jurors. This is presumably because a prospective juror who is

not seated as a juror plays no role in the process of “seek[ing] or

obtain[ing] a criminal conviction or . . . sentence.” (Id., subd.

(a).) Barrera argues that the prospective jurors’ statements

should nonetheless be treated as RJA violations because they

were made in open court and may have influenced other persons

who were selected to serve on the jury. But the RJA contains no

provision addressing expressions of bias made by persons who

play no role in the prosecution or adjudication of a criminal

matter, simply because these statements may have been heard

by others who do play a role. In any event, there was no

meaningful risk that the prospective jurors’ confessions of bias

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would have encouraged bias in others. In both instances, after

making the challenged statements, the prospective jurors were

removed for cause, as unqualified to serve. If anything, the

process of jury selection would have reinforced the vital message

that bias is disqualifying and can play no role whatsoever in the

adjudicative process.

b. Questioning by Codefendant’s Counsel

Barrera also claims that Baker, who was representing his

codefendant, violated the RJA by “singl[ing] out” prospective

jurors who appeared to be Latino for additional questioning at

voir dire. We agree that counsel’s questioning during the voir

dire process is not exempt from scrutiny under section 745 (a)(2).

A violation is established when “an attorney in the case” —

including a defense attorney — uses “racially discriminatory

language about the defendant’s race, ethnicity, or national

origin, or otherwise exhibit[s] bias or animus towards the

defendant because of the defendant’s race, ethnicity, or national

origin.” (§ 745(a)(2).) But we find no violation of the RJA in the

comments Barrera challenges here.

First, in an exchange with one prospective juror, Baker

asked: “Being Hispanic yourself, sir, and seeing that the

defendants are each Hispanic, does that anger you one way or

another?” The juror replied, “No.” Baker then asked, “Does it

embarrass you in any way, shape or form?” The juror replied,

“Maybe.” He responded to a question from the court that he

would not be close-minded to anything codefendant Maria

Ricardo would offer in testimony. Baker then asked him if he

believed he “might have a better insight into cultural

considerations here?” to which he replied, “I’d just put that

aside, and I’ll go with the evidence and all that stuff.” Baker

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asked a second prospective juror with a common Hispanic

surname, “Do you have any feelings about the defendants as you

sit here one way or another because they are Hispanic?” Finally,

Baker asked a third prospective juror, “I note you have a

Hispanic surname, [codefendant Maria Ricardo] is Hispanic

herself. [¶] Do you feel somewhat able to prejudge her or have

any further insight into her because of a shared heritage?”

Barrera argues that this questioning violated the RJA

because it evoked stereotypes “that nonwhite jurors [can] not be

trusted to judge a defendant who shares their race.” Although

we emphatically agree with Barrera that the deployment of

racial stereotypes in jury selection can have corrosive effects on

the fair administration of justice, we are not persuaded that

counsel’s conduct here violated defendant’s rights under the

RJA. In relevant part, the RJA provides that a violation occurs

when either (1) a specified person exhibits bias or animus

toward the defendant because of the defendant’s race, ethnicity,

or national origin, or (2) a specified person “use[s] racially

discriminatory language about the defendant’s race, ethnicity,

or national origin, or otherwise exhibited bias or animus

towards the defendant.” (§ 745(a)(2).) “ ‘Racially discriminatory

language’ ” is language “that, to an objective observer, explicitly

or implicitly appeals to racial bias.” (Id., subd. (h)(4).) Here, no

objective observer would have understood Baker’s questioning

as either exhibiting or implicitly appealing to racial bias against

his Latina client, Maria Ricardo, or against Barrera. Counsel’s

questioning is most reasonably understood as an effort to ensure

that no jurors, regardless of their own background, harbored

racial or other biases toward either of the defendants. Just as

the juror questionnaire had asked jurors whether they would be

biased against parties or witnesses who came from a “national,

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racial or religious group . . . different from your own,” counsel

evidently sought to determine at voir dire whether any

prospective jurors would harbor biases against parties or

witnesses because they shared somewhat similar backgrounds.

In so concluding, we do not condone the manner in which

counsel conducted the questioning. Counsel could have explored

his concerns about prospective jurors’ potential racial and ethnic

biases without engaging in a disparate pattern of questioning

based on prospective jurors’ perceived race or ethnicity. But the

manner in which counsel questioned the Latino prospective

jurors about the possibility of bias against his client does not

raise any genuine concern about whether Barrera’s conviction

or sentence was obtained through impermissible discrimination

against him because of his race, ethnicity, or national origin. We

therefore conclude it does not constitute a violation of the RJA.

(See § 745, subd. (a).)

c. Statements by Defense Counsel

Barrera next contends that an RJA violation occurred

during jury selection when Barrera’s counsel twice used the

term “illegal alien” in questioning prospective jurors about their

biases. Specifically, in his questioning of R.H., who was

eventually seated as a juror, counsel asked, “Do you have any

prejudices against illegal aliens?” Then, after describing that

question as “unfair,” counsel rephrased, asking: “Do you have

any prejudices that would interfere with you being fair and

impartial to Mr. Barrera?” Similarly, in questioning

Prospective Juror J.L., counsel said, “you heard what I

mentioned earlier about the fact that [Barrera] — he doesn’t

speak English, might be an illegal alien, is a citizen of Mexico.

[¶] Is that going to make a difference to you?” Barrera contends

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counsel’s use of the term “illegal alien” constitutes racially

discriminatory language that requires reversal.

The Attorney General argues, for his part, that defense

counsel’s use of the words “ ‘illegal aliens’ in the general sense

. . . did not amount to ‘racially discriminatory language’ ”

because defense counsel’s questions were used “for tactical

reasons . . . to identify and excuse prospective jurors who may

have any bias against Barrera as a Mexican citizen residing

illegally in the United States,” and because the statements did

not “exhibit ‘bias or animus’ towards Barrera.”

We agree with the Attorney General that counsel’s efforts

to probe whether prospective jurors had impermissible biases

against “illegal aliens” do not constitute a violation of the RJA.

We caution, however, that the inquiry under section 745(a)(2)

does not turn on whether counsel had subjectively benign

reasons for using racially discriminatory language. Counsel’s

subjective motivations are not, in general, determinative of

whether the language was an RJA violation — using

discriminatory language or otherwise exhibiting bias or animus

toward a defendant is a violation “whether or not purposeful.”

(§ 745(a)(2).) The operative question is whether an objective

observer would understand counsel’s comments as explicitly or

implicitly appealing to bias against Barrera because of his race,

ethnicity, or national origin. (§ 745, subds. (a)(2), (h)(4).)

As we explain more fully in Bankston (June 1, 2026,

S044739) __ Cal.5th __ [2026 Lexis ____] [pp. 86–87], the RJA’s

prohibition on uses of discriminatory language is necessarily

sensitive to context. It extends to facially neutral language that

implicitly appeals to racial bias, not just uses of racial epithets

or overtly racial overtures. As such, the prohibition requires a

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nuanced inquiry. There are many uses of facially neutral

language that may or may not reflect racial or other bias,

depending on the manner in which they are used. The RJA

recognizes that the discriminatory character of a word or phrase

may not be evident from examining the language in isolation,

which is why it advises on the one hand that “[e]vidence that

particular words or images are used exclusively or

disproportionately in cases where the defendant is of a specific

race, ethnicity, or national origin is relevant to determining

whether language is discriminatory,” (§ 745, subd. (h)(4)), and

excludes on the other hand, potentially discriminatory

statements that “relat[e] language used by another that is

relevant to the case or if the person speaking is giving a racially

neutral and unbiased physical description of the suspect” (id.,

subd. (a)(2)).

Courts have noted that the term “illegal alien” may evoke

racial bias in certain contexts. (See, e.g., Alhaj v. New York City

Health and Hospitals Corporation (N.Y.Sup.Ct. 2022) 77

Misc.3d 1063, 1080 [177 N.Y.S.3d 433] [“certain facially

nondiscriminatory terms can invoke racist concepts that are

already planted in the public consciousness — words like . . .

‘illegal alien.’ ”].) But considering the context, we are not

persuaded that an objective observer would view defense

counsel’s question in this manner. As the Attorney General

suggests, an objective observer would understand that counsel

was asking the question to ensure that no prospective juror

harbored impermissible biases against his client based on his

status as an undocumented Mexican immigrant. And while

counsel might well have worded his question differently if he

were asking it today, Barerra has not shown that an objective

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observer at the 2001 trial would have understood counsel’s

choice of language as racially discriminatory.10

Given the time and the context, we are not persuaded that

the manner in which counsel questioned prospective jurors

about their potential biases was itself a demonstration of bias

that violated the RJA.

We are mindful that, as Barrera emphasizes, his 2001

trial took place at a time when there were strong public

sentiments about “illegal immigrants,” as evidenced by the 1994

10

Compare, e.g., Hoffman Plastic Compounds, Inc. v. NLRB

(2002) 535 U.S. 137, 147 [“In 1986, . . . Congress enacted [the

federal Immigration Reform and Control Act of 1986], a

comprehensive scheme prohibiting the employment of illegal

aliens in the United States”]; Jie v. Liang Tai Knitwear Co.

(2001) 89 Cal.App.4th 654, 659 [“Thus, the [federal Immigration

and Nationality Act] now provides for criminal and civil

sanctions against an employer who knowingly hires or recruits

for employment an illegal alien”]; Congress of Cal. Seniors v.

Catholic Healthcare West (2001) 87 Cal.App.4th 491, 511 [“ ‘In

that case, plaintiff migratory farmworkers sought an injunction

prohibiting defendant ranch owners from knowingly employing

illegal aliens’ ”], quoting People ex rel. Dept. of Transportation v.

Naegele Outdoor Advertising Co. (1985) 38 Cal.3d 509, 523).

The dissent observes that after asking the first prospective

juror if he had any prejudices against “illegal aliens,” Barrera’s

counsel withdrew the question as “unfair” and restated it

without using the term. (Dis. opn. of Evans, J., at pp. 8–9, fn.

3.) But the record of this exchange does not support the

conclusion that counsel (or “any objective observer” at the time)

recognized “the pejorative and implicitly discriminatory

meaning of the term.” (Ibid.) Moments later, counsel used the

phrase again, asking the next prospective juror whether the fact

that Barrera might be “an illegal alien” would “make a

difference.”

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passage of Proposition 187, a ballot measure that limited the

“availability of public benefits, including elementary school

education and medical care” to undocumented immigrants,

based on findings that Californians were “suffering economic

hardship” and “suffering personal injury and damage” due to the

presence of “illegal aliens” in the state. (Prop. 187, § 1, as

approved by voters, Gen. Elec. (Nov. 8, 1994).) As the record of

jury selection in this very case suggests, negative sentiment

against “illegal aliens” could be difficult to disentangle from

racial or ethnic bias. But as any objective observer would have

understood, this is precisely why counsel was asking the

questions in voir dire: to ensure that such sentiments played no

role in the jury’s determinations of Barrera’s guilt or penalty.

Under the circumstances, no objective observer would have

understood counsel’s questioning about prospective jurors’

potential prejudices as either exhibiting or implicitly appealing

to racial bias.

3. Guilt Phase RJA Claims

Barrera claims that the prosecutor’s opening statement

violated the RJA by commenting unfavorably on his work as a

street vendor and that the prosecutor’s closing argument

violated the RJA by using language comparing him to an

animal. We find no RJA error in the opening statement. We

assume the prosecutor’s statement at closing violated the RJA,

but conclude that any error was harmless beyond a reasonable

doubt.

a. Comments on Barrera’s Occupation

Barrera argues that the prosecutor’s comments in her

opening statement about his occupation as a street vendor

violated the RJA. He contends the prosecutor “mocked Mr.

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Barrera for having his kids help him sell corn on the street.” He

takes particular issue with the prosecutor describing him as “an

enterprising man” and the “big boss.” He also argues that the

prosecutor’s questioning of Barrera’s children about street

vending and his codefendant’s counsel’s comments about his

street vending violated the RJA.

Barrera asserts that the comments about the corn selling

business “demonized a common and highly visible occupation for

poor Latinxs who migrate to this country and cannot find other

work due to their immigration status.” He notes that “[i]n Los

Angeles, street vending is heavily associated with Latinx

migrants” and that “[c]hildren are frequently involved in the

street vending business, often after school, to help support the

family.” He points out that “[a]t the time of [his] trial, Los

Angeles had just criminalized street vending” following the 1994

passage of Proposition 187. Against this backdrop, Barrera

argues, mentioning his participation in street vending was an

“appeal[] to . . . anti-Latinx bias[].”

We find no violation in the challenged comments. To

establish an RJA violation, Barrera must show that the

prosecutor either “used racially discriminatory language” about

him or “otherwise exhibited bias or animus” toward him based

on his race, ethnicity, or national origin. (§ 745(a) (2).) The RJA

does not forbid presentation of, or comment on, relevant

evidence concerning a defendant’s activities.

Here, in the comments Barrera challenged, the prosecutor

sought to draw attention to evidence relevant to the jury’s

consideration of the case before it: namely, that Barrera did not

sell corn on the street himself, but instead directed his children

and codefendant Maria Ricardo to sell corn late into the night,

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and punished them if they did not bring home enough money.

These comments provided relevant context about Barrera’s

family dynamics and the way he treated his children. This

context was, in turn, highly relevant to the charges that Barrera

had severely abused and ultimately murdered two of the

children. The same is true of the comments made by

codefendant’s counsel about Barrera’s decision to bring Petra

and her children to the United States because “he needs a bigger

labor force” to sell corn and the prosecutor’s questions to

Barrera’s children about their experience street vending. While

these comments and questions were not favorable to Barrera, an

objective observer would not conclude that they explicitly or

implicitly appealed to bias against him because of his race,

ethnicity, or national origin.

b. Language at Closing Argument

Barrera argues that the prosecutor violated the RJA

when, during her closing argument at the guilt phase, she used

dehumanizing language to describe Barrera. In the challenged

portion of the argument, after describing the evidence

concerning Barrera’s treatment of Ernesto, the prosecutor said:

“That’s intent to kill. [¶] It’s also torture. It’s also sadistic, and

it’s also inhuman. And it’s also, I don’t know, to say it’s the work

of the devil doesn’t even say it. [¶] I don’t even know what to

call this man. I would like to say that he’s an animal, but I

would not insult animals. And for sure he’s not a human

because I don’t want to belong to the same specie[s] he does.

What is he? He’s evil. Evil in the shape of a man. I don’t know

what else you could call him. [¶] The defendant does all of these

things to Ernesto and never gets him medical care because he

wants him to die. That’s intent to kill.”

82

PEOPLE v. BARRERA

Opinion of the Court by Kruger, J.

In his briefing in this court, Barrera has at times

suggested that he is entitled to relief because the RJA broadly

prohibits the use of any “ ‘language that compares the defendant

to an animal.’ ” (§ 745, subd. (h)(4).) As our opinion in Bankston

explains, however, the RJA does not categorically forbid all such

language. (Bankston, supra, __ Cal.5th at p. __ [2026 Lexis ___

at p. ____] [p. 101].) “A prosecutor might, for instance, refer to

a defendant as an ‘eager beaver,’ ‘happy as a clam,’ ‘free as a

bird,’ or ‘quiet as a mouse.’ Each example involves language

comparing a defendant to an animal; none would appear to raise

racial discrimination concerns. The legally operative provision

of the RJA is the p

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