People v. Capistrano

Filed 8/4/14

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S067394

v. )

)

JOHN LEO CAPISTRANO, )

) Los Angeles County

Defendant and Appellant. ) Super. Ct. No. KA034540

___________________________________ )

Defendant John Leo Capistrano was convicted at trial of one count of first degree

murder (Pen. Code, § 187),1 one count of attempted willful, premeditated murder

(§§ 664, subd. (a), 187, subd. (a)), six counts of first degree robbery (§§ 211, 212.5, subd.

(a), 213, subd. (a)(1)(A) & (B)), three counts of carjacking (§ 215), one count of first

degree burglary (§ 459), two counts of rape in concert (§§ 261, subd. (2), 264.1) and two

counts of forcible oral copulation in concert (§ 288a, subd. (a) & (d)), arising from four

separate incidents involving six victims. 2 The first incident, on December 9, 1995,

involved the murder and robbery of Koen Witters, who was found in his Rowland

Heights apartment strangled and with his wrists cut. The second incident, on December

15, 1995, in the City of Whittier, involved the carjacking and home invasion robbery of

J.S. and her husband, E.G., and the commission of the rape and forcible oral copulation

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 Defendant was tried with his codefendant, Michael Drebert, before separate juries.

of J.S. during that robbery. The third incident, on December 23, 1995, in the City of

West Covina, involved the carjacking and home invasion robbery of Ruth and Patrick

Weir. The fourth incident, on January 19, 1996, involved the home invasion robbery and

attempted murder of Michael Martinez, who was found in his apartment in West Covina

having been beaten on the head with a baseball bat and with his throat cut.

As to the murder of Koen Witters, the jury found true the two special circumstance

allegations that the killing was committed in the course of a burglary and a robbery

(§ 190.2, subd. (a)(17)(A), (G)). The jury also found defendant personally used a firearm

(§ 12022.5, subd. (a)), and a principal was armed with a firearm (§ 12022, subd. (a)(1)) in

the commission of the crimes against J.S. and E.G., and the Weirs. As to the crimes

against Michael Martinez, the jury found defendant personally used a deadly and

dangerous weapon (§ 12022, subd. (b)), and personally inflicted great bodily injury

(§ 12022.7, subd. (a)). After a penalty trial, the jury returned a verdict of death. The trial

court denied the automatic application to modify the verdict (§ 190.4, subd. (e)), and

sentenced defendant to death. As to the noncapital offenses, the court sentenced

defendant to consecutive indeterminate terms of life plus four years‘ imprisonment for

the Martinez attempted murder and 25 years to life plus 10 years‘ imprisonment for the

rape of J.S., and to various determinate terms on the remaining counts. This appeal is

automatic. (§ 1239, subd. (b).) We will order the trial court to correct the abstract of the

judgment in one respect and otherwise affirm the judgment.

I. FACTS

A. Guilt Phase

1. Prosecution Evidence

a. Defendant and His Associates

Defendant was 25 years old when the instant offenses occurred between December

9, 1995, and January 19, 1996. He lived with his cousins Jessica and Joanne Rodriguez

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at the Lido Garden Apartments in West Covina. Jessica Rodriguez had formerly lived at

the Pheasant Ridge apartment complex with her mother. Defendant had helped

Rodriguez‘s mother move out of the Pheasant Ridge apartments in November 1995.

Koen Witters, the murder victim, also lived in the Pheasant Ridge complex.

Defendant was regularly in the company of three youths, Michael Drebert, Eric

Pritchard and Anthony Jason Vera. Drebert and Pritchard called defendant ―Dad.‖

Gladys Santos, a key prosecution witness, met defendant in October 1995. Santos also

knew Drebert, Pritchard and Vera. Between December 1995 and January 1996, she saw

defendant, Drebert and Pritchard regularly, and Vera less so. One reason she saw

defendant so frequently during this period was because she was taking care of a 12-year-

old girl, Justine, whom defendant treated as his daughter, although he was not her father.

b. The Murder of Koen Witters on December 9, 1995

Koen Witters was in California as part of his work for a Taiwan-based company

called Free Free Industrial Corporation. He lived in a company-leased apartment in the

Pheasant Ridge apartment complex. Witters was scheduled to return to Taiwan on the

night of December 9, 1995. His coworker, Sheree Chen, dropped him off at his

apartment at 4:00 p.m. Chen arranged to return later that evening to collect Witters‘s

apartment key and company-owned cellphone. When she returned at about 9:30 p.m.,

Witters did not respond to her knocking at the door and calling his name. The airport

shuttle driver arrived and also tried knocking. When there was no response, he tried the

door and found it unlocked. He and Chen entered the apartment. The apartment was ―a

mess,‖ according to Chen. The driver looked into the bedroom and got Chen out of the

apartment, telling her, ―He‘s dead, he‘s dead.‖ They called 911 from the complex‘s

security office.

Police found Witters lying facedown on the bedroom floor, clad only in a pair of

swim trunks. His feet were tied at his ankles with a pair of athletic socks. His hands

were tied behind his back at his wrists with athletic socks and videotape. His mouth was

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gagged with another athletic sock secured by a plastic bag. There were large cuts to his

forearms and a black luggage strap around his neck. In the living room police found a

black flight bag missing its strap. A steak knife was found wedged between the mattress

and the box springs in the bedroom. The medical examiner determined that strangulation

was the cause of death.

Witters‘s apartment had been ransacked. A suitcase on the bed had been forced

open and its contents strewn on and around the bed. Missing from the apartment was an

Apple computer, a videocassette player (VCR) and the company‘s cellphone.

Just before Christmas that year, Michael Drebert told Gladys Santos he, defendant

and Pritchard had robbed Witters and that defendant had murdered him. Following this

conversation, Santos asked defendant if it was true that he had ―kill[ed] someone with a

belt?‖3 Defendant laughed and said, ―. . . Mike told you, huh?‖ Santos denied Drebert

had told her and again asked him if it was true. Defendant said, ―Yeah.‖ Although at

first unwilling to talk about the murder, defendant eventually admitting killing Witters,

even demonstrating how he had strangled the victim.

Defendant told Santos that he, Drebert and Pritchard had been ―scoping‖ out

Witters‘s apartment to rob it. Defendant told her he killed Witters because Witters saw

him without a mask. He strangled rather than shot him because a gun would have been

too loud and ―shanked‖ Witters because Witters ―wouldn‘t die.‖ In a later conversation,

he told her he had asked Drebert to help him strangle Witters, and he strangled the victim

3 As noted, defendant and Drebert were tried simultaneously before different juries

to avoid Aranda/Bruton issues. (People v. Aranda (1965) 63 Cal.2d 518; Bruton v.

United States (1968) 391 U.S. 123.) (See post, pt. II.C.2.) When Santos testified before

defendant‘s jury—Drebert‘s jury having been excused from the courtroom—she did not

use Drebert‘s name but testified only that she had a conversation with someone other than

a police officer who claimed to have been present at a murder. She testified further that

after this conversation, she then had the conversation with defendant, who revealed the

details of the murder.

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three times before cutting him. Santos testified further that after the Witters murder,

defendant asked her if she knew anyone who might want a large computer. She also

testified that after defendant was arrested he told her that if she talked to the police, he

would kill her children.

c. Robbery and Sexual Assault Offenses Involving J.S. and E.G. on

December 15, 1995

About 9:30 p.m. on December 15, 1995, J.S. and her husband, E.G., returned to

their Whittier home after visiting E.G.‘s family. E.G. pulled into the garage and got out

while J.S. remained in the passenger seat. A man inside the garage wearing a ski mask

pointed a gun at E.G.‘s face and said, ―Give me your money.‖ J.S. heard her husband

yell and saw a man with his hand outstretched toward her husband. A second man was

standing behind the first one. One of the men came over to her, pointed a gun at her and

motioned to her to get out of the car. One of the men told her husband, ―We‘re gonna go

in the house.‖

The men led J.S. and E.G. into the master bedroom and tied their wrists behind

their backs. The men also used belts and ties to bind the victims‘ ankles and knees, then

laid them on the bed. Two other men joined the two men who had brought them into the

house. All the men wore gloves and their faces were covered; two of them carried guns.

Despite their masks, J.S. later identified two of the men from police lineups as Eric

Pritchard and Anthony Jason Vera. The man who appeared to be the leader of the group

was over six feet tall and had a ―good build.‖ At trial, a police detective testified that

defendant is six feet four inches tall and weighs 210 pounds. (The fourth man was not

identified at trial.)

One of the men asked J.S. if they had children, were expecting anyone or owned

firearms, and what their neighbors were like. Two of the men, including Pritchard, put

guns to the victims‘ heads and repeatedly asked, ―Where‘s the money?‖ The men

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rummaged through the dresser and the closet in the bedroom, and J.S. heard doors and

boxes being opened elsewhere in the house.

One of the men removed a bullet from his gun, put it on the bed between the

victims and asked, ―Isn‘t it big?‖ Two of the men, one of them Pritchard, asked both J.S.

and E.G. if they would ―suck dick‖ to save their lives.

The tall man who appeared to be the leader eventually took J.S. into the bathroom

where he twice forced her to orally copulate him and then twice raped her. The second

time he ejaculated into her. Afterwards, he took her into a second bedroom where

Pritchard also forced her to orally copulate him. After Pritchard left, a man with a gun

came in and stood guard. The tall man came in and out of the room. He pulled down

J.S.‘s pants, fondled her buttocks and made sexual comments about her husband. At one

point, after ascertaining that J.S. was of Mexican descent, he told her that he would not

kill her because she was Mexican. E.G., meanwhile, remained tied up in the master

bedroom. Eventually the men left and the victims were able to free themselves and call

911.

The victims‘ home was ransacked. The robbers took stereo equipment, a VCR,

two telephone answering machines, jewelry, small appliances and a Scepter brand laptop

computer, among other items. They also took the victims‘ 1989 Honda Accord.

J.S. was taken to a hospital where a sexual assault examination was conducted;

oral and vaginal swabs were taken and later subjected to DNA testing.

Blood samples were obtained from J.S., defendant, Drebert, Pritchard and Vera,

and also subjected to DNA testing. Testing performed on the vaginal swab indicated that

defendant‘s blood sample was consistent with sperm from the vaginal swab. 4 Gladys

4 Defendant refused to provide a blood sample voluntarily, and it had to be obtained

by a court order. Similarly defendant refused to participate in the series of lineups at

(footnote continued on next page)

6

Santos testified that defendant brought to her house an answering machine and laptop

computer matching the description of the computer stolen from J.S. and E.G. Drebert

later removed the computer from Santos‘s apartment. After defendant‘s arrest, Santos

gave police an answering machine with the same serial number as one of the machines

stolen from J.S. and E.G.

d. The Weir Robbery on December 23, 1995

About 5:30 p.m. on December 23, 1995, Ruth Weir arrived at her Conlon Street

home in West Covina after grocery shopping. She pulled into her garage, which was

detached from her house, and took groceries from the trunk into her house. When she

returned to the garage she was accosted by two men wearing ski masks, one of them

armed with a gun. The armed man told her to go into the house. Once inside, the men

asked her if she was expecting anyone and asked about her neighbors. She told them she

was expecting her husband. She heard her husband‘s car pull into the driveway. She

glanced out the window and saw a third man standing in the backyard.

One of the men told her to go into the dining room and lie down on the floor. She

complied. She heard her husband, Patrick, come in the house and say something like,

―What‘s going on?‖ She was taken from the dining room to the family room, where her

husband was lying facedown on the floor. There were three intruders in the room; two of

them wore ski masks while the third concealed his face by lifting his coat over it. One of

them told her to lie down next to her husband. While one of the men sat on the couch

with a knife, the others brought wrapped Christmas presents into the room. One of the

men asked her if she had money and, when she said, ―No,‖ threatened to kill her if money

(footnote continued from previous page)

which J.S. identified Pritchard and Vera. He was ordered to participate at a later lineup,

but J.S. did not identify him.

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was discovered. Another one found her senior citizen volunteer badge for the West

Covina Police Department and asked her where she kept her gun. She explained she was

not a police officer but only a volunteer. One of the men went through her pockets and

her husband‘s pockets while another asked her where she kept her car keys and then took

them. The men also took the Christmas packages. When she protested, one of them put a

gun to her head and said, ―Would you rather have your Christmas gifts or your life?‖

Angela Phillipson, a neighbor of the Weirs, saw an older two-toned beige four-

door American-model car and Ruth Weir‘s Taurus parked on the nearby cross-street. The

Taurus drove away quickly while the other car drove away at a normal speed. She later

saw the same two-toned car in the vicinity of the Weirs‘ home after the police had

arrived.

After the robbers left, Ruth Weir called 911. When the police arrived, she

inspected her house and found numerous items missing in addition to her Christmas

presents. These included jewelry, cash and two sets of three ceramic angels. Her Taurus

and a Ziploc bag containing commemorative coins were also missing.

The police found the Taurus the next day in the parking lot of an auto parts store

near where Gladys Santos lived. The car‘s stereo had been taken.

Santos testified that on the day of the Weir robbery, defendant called her and

asked her to pick him up at a location near where he was staying. When she did, and she

asked him what he had been doing, he said, ―Well, we just robbed somebody.‖ He had

her drive by a house in West Covina and told her a police officer lived there. He said he

had stolen Christmas presents, a white car, and groceries. He directed her to another

location where he said he had hidden some coins. He got out of the car, but when he

returned he told her there was nothing there. Defendant brought some jewelry to

Santos‘s apartment, which Santos later gave to the police. The jewelry belonged to Ruth

Weir.

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On January 6, 1996, police stopped a beige-and-brown Buick being driven by

defendant‘s cousin, Jessica Rodriguez. Drebert and Vera were passengers. 5 The car was

impounded and searched. In it, police found three ski masks, a pair of cotton gloves, and

three knit gloves.

e. The Attempted Murder of Mike Martinez on January 19, 1996

In January 1996, Mike Martinez lived in Lido Garden Apartments, the same

apartment complex as did defendant‘s cousins, Joanne and Jessica Rodriguez, with whom

defendant, Drebert, Pritchard and Vera were staying. Also living with Martinez was

Amy Benson, the pregnant daughter of a friend. Defendant and his confederates ―hung

out‖ with Benson at Martinez‘s apartment almost every day. The owner of the apartment

building told Martinez that if defendant and his friends continued to come to his

apartment, he would be evicted. In late December or early January, Martinez told

Benson and defendant that defendant and his friends could no longer come to Martinez‘s

apartment. They ignored him. Martinez did not say anything more to defendant, whom

he believed to be a gang member, because he was afraid of him.

On January 13, 1996, Eric Pritchard was detained by police investigating a report

of a suspicious person loitering at the apartment complex. Martinez saw the detention

take place. Pritchard was taken into custody because he had been reported as a runaway

and was ultimately released into the custody of his mother.

Six days later, on January 19, Martinez returned home from work around 6:30

p.m. and ate dinner. He left the apartment for a while, returning around 8:00 p.m. to take

5 In a bench conference before the testimony of the officer who detained Rodriguez,

the prosecutor noted the car had been detained because it and the occupants matched the

description of the vehicle involved and the people who had committed a series of street

robberies in the City of Montebello. Neither Vera nor Drebert was charged with those

robberies because the victims were unable to identify them. Consequently, the reason for

the stop was not revealed to the juries in defendant‘s and Drebert‘s trial.

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a shower. When he emerged from the bathroom, defendant, Pritchard, Drebert and Vera

were in the apartment. Drebert and Vera were rummaging through Martinez‘s closet and

desk. Someone had closed the curtains. In an angry and aggressive tone, defendant told

Martinez to sit on the couch. Drebert locked the door.

Defendant accused Martinez of calling the police on Pritchard, which Martinez

denied. Drebert held up a set of keys and asked Martinez which were the keys to his car.

Martinez told him. He also noticed his pager, a watch and some change were missing

from the top of the dresser. Defendant struck Martinez in the jaw with such force it tore

his lower lip and knocked him backwards. He asked Martinez how much money he had

in the apartment and, after Martinez told him a few hundred dollars, said he would kill

Martinez if he found more.

Defendant told Drebert to get some belts from the closet. Defendant used them to

bind Martinez‘s arms behind his back and to bind his legs. Martinez saw Drebert take a

baseball bat out of the closet and hand it to defendant. Defendant placed a shirt or a

towel over Martinez‘s head. He felt a blow to his head. The next thing he remembered

was waking up in the hospital.

The officer who responded to a neighbor‘s 911 call found Martinez lying face up

on the floor in a pool of blood, unconscious and gasping for air. Martinez‘s eyes were

swollen shut and some of his teeth lay on the carpet beside him. A bloody bat was

leaning against the couch. When the paramedics rolled Martinez onto his stomach, the

officer saw puncture wounds on Martinez‘s back. A bloody screwdriver was found on

the couch.

Martinez had surgical staples placed in his head, he lost some of his teeth, and he

was treated for stab wounds to his back. The staples were removed after about a month.

Martinez endured 12 root canals, the loss of his sense of smell and a 60 percent loss of

hearing, which lasted for three months. Martinez identified defendant, Drebert, Vera and

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Pritchard as his assailants from photographs. Martinez‘s vehicle was stolen but was

recovered a few days later.

Defendant and his confederates went to Gladys Santos‘s apartment after the attack

on Martinez. Defendant told Santos he had ―played baseball‖ with Martinez‘s head.

Two patrol officers who received a radio call about the assault on Martinez at the Lido

Garden Apartments were told that a red Camaro spotted there three days earlier may have

been involved. Their search for the car took them to the apartment complex where

Santos lived, about a half-mile from the Lido Garden complex. Eric Pritchard was

detained as he attempted to drive out of the complex in a red Camaro. Pritchard

ultimately led the police to Santos‘s apartment, where defendant, Drebert and Vera were

arrested. Santos was also arrested because she lied to the police about knowing Pritchard

and about who was in her apartment. No charges, however, were filed against her. A

subsequent search of Santos‘s apartment yielded several items belonging to Martinez.

2. Defense Evidence

The defense was one of mistaken identity. To that end, defendant introduced

evidence to show that on various occasions he had been welcomed in Martinez‘s

apartment and had socialized with Martinez. He also introduced evidence regarding the

physical appearance of Eric Pritchard‘s brother, Willie, who was about the same height

and build as defendant. Additionally, he offered evidence that a gun was found in the

trunk of the car occupied by Joanne Rodriguez, Drebert, and Vera when police stopped

them on January 6, 1996, introduced apparently to suggest Drebert and Vera could have

committed the charged offenses without defendant‘s involvement. Finally, and evidently

in response to J.S.‘s testimony concerning her sexual assault, he introduced evidence

regarding the length of his penis.

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B. Penalty Phase

1. Prosecution Evidence

At the penalty phase, the prosecution‘s evidence in aggravation consisted of the

circumstances of the offenses of which defendant was convicted, defendant‘s prior felony

convictions, and his violent criminal activity while in custody. (§ 190.3, factors (a)-(c).)

The prosecution presented evidence of defendant‘s felony convictions for sale of

marijuana and vehicle theft. The prosecution also presented evidence of four separate

attacks by defendant on other jail inmates, three of which occurred while he was in

custody on this case.

On June 4, 1994, defendant attacked Victor Rodela at the Los Angeles County jail

apparently because he believed Rodela was homosexual. He kicked and punched Rodela.

Rodela sustained a swollen and bloody upper lip and complained of pain to his jaw, back,

ribs, and groin.

On October 4, 1996, defendant kicked Ricky Crayton in the mouth with sufficient

force to break Crayton‘s jaw.

On February 18, 1997, defendant and another inmate stabbed Mauricio Gonzalez

as Gonzalez was being transported to his cell with his hands cuffed behind his back and

attached to a waist chain. In the opinion of the officer who testified as an expert on

Hispanic prison gangs, defendant and the other inmate were carrying out a ―hit‖ on

Gonzalez ordered by the Mexican Mafia prison gang. Prior to the instant trial, defendant

was convicted of attempted murder for his attack on Gonzalez.

On June 23, 1997, defendant attacked Raymond Gonzalez in the holding cell at the

courthouse in Pomona evidently because he believed Gonzalez—a prosecution witness in

another case—was a ―snitch.‖ Gonzalez sustained a golf-ball-size knot on his forehead, a

bloody nose and blood on his lip and around his teeth.

In addition to this evidence, the prosecution introduced evidence that defendant

mouthed the words ―Get that fucker,‖ to another inmate as defendant nodded toward

12

Drebert when they were all in court. As a result, Drebert‘s jail status was changed to K-

10, meaning that he was kept away from all other inmates.

2. Defense Evidence

Defendant‘s girlfriend, Claudia Meza, testified she had known defendant for 11

years and had dated him from October 1995 to January 1996. According to Meza,

defendant had never participated in gang activities, nor had he used drugs in Meza‘s

presence. Defendant told Meza he had had a troubled life, had been in and out of jail,

and no one had been there for him. Meza testified that defendant planned to change his

life by getting a job as a certified nurse‘s assistant and having his tattoos removed.

Defendant‘s father, John Catani, also testified. Catani was in prison at the time he

testified. He testified he had been in prison when defendant was born in 1970 and was

incarcerated in 1976 and again from 1988 to 1990. He and defendant‘s mother were

together from 1975 to 1990. They fought constantly and one or the other of them would

often leave for extended periods. Catani had a drug problem and defendant‘s mother had

a drinking problem. When defendant was 14 or 15 years old, Catani noticed his tattoos.

Catani believed defendant joined a gang in his late teens. Catani had visited defendant

when he was incarcerated in the California Youth Authority when he was 15 or 16, and

had scolded him and warned him against becoming a gang member.

II. DISCUSSION

A. Assertedly Improper Joinder of Charges

Defendant argues the trial court abused its discretion when (1) it denied his request

to sever the Martinez (home invasion robbery, attempted murder), Weir (home invasion

robbery, carjacking) and J.S./E.G. (home invasion robbery, sex offenses, carjacking)

charges from each other; and (2) when it joined those charges to the Witters capital

charges, over his objection. We find no abuse of discretion.

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1. Denial of Defendant’s Severance Motion

On November 18, 1996, defendant moved to sever the Martinez, Weir and J.S./

E.G. cases, which had previously been joined by the trial court at the prosecution‘s

request. Defendant also joined codefendant Vera‘s motion to sever the J.S./E.G. case

from the Martinez case. Defendant argued severance was required in the interests of

justice because, contrary to the prosecution‘s contention, the various crimes were of

different classes. In addition, he argued a joint trial would be unfair because the evidence

was much stronger in the Martinez case, where the victim positively identified him as a

perpetrator, than it was in the other two cases, where there was little or no evidence

identifying him. Vera argued there was an absence of ―commonality‖ with respect to the

nature and timing of the offenses and the witnesses to them; the evidence was not cross-

admissible; and there was a danger of a ―spillover‖ effect in which the stronger evidence

in the Martinez case might bolster the weaker J.S./E.G. case. The court denied the

motions. It properly did so.

― ‗[B]ecause consolidation or joinder of charged offenses ordinarily promotes

efficiency, that is the course of action preferred by the law.‘ ‖ (People v. Hartsch (2010)

49 Cal.4th 472, 493.) ―Section 954 governs the issue of joinder of counts and it provides

in pertinent part: ‗An accusatory pleading may charge two or more different offenses

connected together in their commission, . . . or two or more different offenses of the same

class of crimes or offenses, under separate counts, . . . provided, that the court in which a

case is triable, in the interests of justice and for good cause shown, may in its discretion

order that the different offenses or counts set forth in the accusatory pleading be tried

separately or divided into two or more groups and each of said groups tried separately.‘ ‖

(People v. Jones (2013) 57 Cal.4th 899, 924.) The crimes involved here—attempted

murder, robbery, the sexual offenses, and carjacking—―are . . . deemed to be of the ‗same

class,‘ insofar as [they] share common characteristics as assaultive crimes against the

person.‖ (People v. Lucky (1988) 45 Cal.3d 259, 276.) ―Because the charges were

14

properly joined under section 954, ‗defendant must make a clear showing of prejudice to

establish that the trial court abused its discretion in denying defendant‘s severance

motion.‘ ‖ (People v. Valdez (2004) 32 Cal.4th 73, 119.) That is, defendant must

demonstrate the denial of his motion exceeded the bounds of reason. (People v.

Manriquez (2005) 37 Cal.4th 547, 574.)

― ‗ ―Refusal to sever [charges] may be an abuse of discretion where: (1) evidence

on the crimes to be jointly tried would not be cross-admissible in separate trials;

(2) certain of the charges are unusually likely to inflame the jury against the defendant;

(3) a ‗weak‘ case has been joined with a ‗strong‘ case, or with another ‗weak‘ case, so

that the ‗spillover‘ effect of aggregate evidence on several charges might well alter the

outcome of some or all of the charges; and (4) any one of the charges carries the death

penalty or joinder of them turns the matter into a capital case.‖ ‘ ‖ (People v. Geier

(2007) 41 Cal.4th 555, 575.) Regarding cross-admissibility, however, ―section 954.1

expressly provides that ‗where two or more accusatory pleadings charging offenses of the

same class of crimes or offenses have been consolidated, evidence concerning one

offense or offenses need not be admissible as to the other offense or offenses before the

jointly charged offenses may be tried together before the same trier of fact.‘ (Italics

added.) Thus, ‗cross-admissibility is not the sine qua non of joint trials.‘ ‖ (Ibid.)

Moreover, ―[a]s we explained in People v. Johnson (1988) 47 Cal.3d 576, the

issue of cross-admissibility ‗is not cross-admissibility of the charged offenses but rather

the admissibility of relevant evidence‘ that tends to prove a disputed fact. (Id. at p. 589;

see Evid. Code, § 210.)‖ (People v. Geier, supra, 41 Cal.4th at p. 576.) Thus, we have

said, ― ‗complete (or so-called two-way) cross-admissibility is not required. In other

words, it may be sufficient, for example, if evidence underlying charge ―B‖ is admissible

in the trial of charge ―A‖—even though evidence underlying charge ―A‖ may not be

similarly admissible in the trial of charge ―B.‖ ‘ ‖ (People v. Hartsch, supra, 49 Cal.4th

at p. 493.)

15

Here, all three incidents involved a home invasion robbery, and in all three a

victim‘s car was taken. The offenses occurred within the same geographical area (the

eastern San Gabriel Valley) and within a relatively short period of time (between

December 13, 1995, and January 19, 1996). Additionally, the J.S./E.G. and Weir

robberies shared common characteristics in their commission. In both cases, the victims

were initially approached in their garages as they returned home. The perpetrators

covered their faces with ski masks and asked similar questions of the victims. Such

evidence would have been cross-admissible to show a common plan or design. (Evid.

Code, § 1101, subd. (b).) Defendant maintains that these similarities were not distinctive.

But ―[t]o establish the existence of a common plan or scheme [under Evidence Code

section 1101, subdivision (b)], ‗the common features must indicate the existence of a plan

rather than a series of similar spontaneous acts, but the plan thus revealed need not be

distinctive or unusual.‘ ‖ (People v. Avila (2006) 38 Cal.4th 491, 586.) The J.S./E.G.

and Martinez cases featured another common characteristic: In each case, the

perpetrators used items taken from the closets of the victims to tie them up. 6 Finally,

stolen items from all three of the noncapital offenses were stored at Gladys Santos‘s

apartment. Thus, the evidence was potentially cross-admissible in these three connected

robberies.

―We emphasize, however, that, even if cross-admissibility did not support

consolidation of the cases, the absence of cross-admissibility alone would not be

6 Defendant argues that the prosecutor‘s offer of proof regarding the cross-

admissibility of evidence, made in opposition to defendant‘s severance motion, was not

supported by the record of the preliminary hearing. Defendant did not object to the offer

of proof, so we may assume the prosecutor‘s representations about the evidence were

accurate and made in good faith. Moreover, defendant fails to cite any authority that

would limit the prosecutor‘s offer at a pretrial hearing on severance to the record of the

preliminary hearing.

16

sufficient to establish prejudice where (1) the offenses were properly joinable under

section 954, and (2) no other factor relevant to the assessment of prejudice demonstrates

an abuse of discretion.‖ (People v. Geier, supra, 41 Cal.4th at p. 577.)

Defendant attempts to establish prejudice by pointing to two other factors: (1) the

facts of the J.S/E.G. and Martinez cases assertedly would have inflamed the jury against

him and prevented a fair assessment of the evidence in the Weir case and; (2) there was a

danger of a ―spillover‖ effect by the joinder of the stronger Martinez case, where

defendant was identified as the perpetrator, to the J.S./E.G. crimes, where evidence of his

participation was weak. We are not persuaded.

Defendant asserts that the sexual offenses perpetrated against J.S. and the attack

on Martinez were so brutal as to ―evoke an emotional bias against the defendant as an

individual and make the jury convict on bad character rather than subjecting the

prosecution‘s evidence to scrutiny.‖ The issue is not whether evidence of a violent

offense evokes repulsion, but whether ― ‗strong evidence of a lesser but inflammatory

crime might be used to bolster a weak prosecution case‘ on another crime.‖ (People v.

Mason (1991) 52 Cal.3d 909, 934.) First, it is not the case that the evidence of his

participation in the J.S./E.G. and Weir home invasion robberies was ―weak.‖

Defendant‘s connection to those crimes was established by evidence that both J.S. and

E.G. had identified defendant as a perpetrator—J.S. in open court during the preliminary

examination and E.G. at a live lineup. Additionally, J.S. had repeatedly identified

Pritchard and Vera, defendant‘s confederates, as perpetrators. While neither Ruth Weir

nor her husband was able to identify any of their assailants, the prosecutor represented

that defendant had admitted his participation in the Weir robbery to a witness, Gladys

Santos. Thus, even to the extent the Martinez incident could be viewed as more

inflammatory, joinder was not likely to prejudice him with regard to the jury‘s decision

on the other charges.

17

Second, evidence of the Martinez attempted murder was not more inflammatory

than the other crimes. Defendant himself equates the potentially inflammatory nature of

the sexual assault on J.S. with the attempted murder of Martinez. His contention that

evidence adduced regarding these charges would inflame the jury with respect to the

―nonviolent robbery‖ of the Weirs minimizes the terrifying circumstances of the latter

offense: Two days before Christmas, an elderly woman was confronted by armed,

masked assailants who forced her at gunpoint into her own home; forced her and her

husband to lie on the floor while they ransacked her residence; told her they would kill

her if she was lying about whether there was money in the house; and when she protested

the theft of her Christmas presents, held a gun to her head and asked her to choose

between the presents and her life. These circumstances do not support defendant‘s

characterization of the Weir home invasion robbery as ―nonviolent.‖ Accordingly, we

reject defendant‘s claim that evidence of the J.S. and Martinez offenses was so much

more inflammatory it would have rendered the jury incapable of fairly assessing the

evidence pertaining to the Weir robbery.

Finally, defendant contends the consolidation of the Martinez case, in which

defendant was identified as a perpetrator, with the J.S./E.G. and Weir cases, in which

evidence of his identity was more circumstantial, would have had a ―spillover‖ effect by

―improperly bolstering the prosecution‘s weak evidence implicating [defendant] in the

Weir and [J.S./E.G.] crimes.‖ As explained above, the evidence connecting defendant to

the latter crimes was not weak. Accordingly, the trial court could reasonably find that the

jury would be able to fairly assess defendant‘s guilt as to all the charges, and did not

abuse its discretion by denying the severance motion with respect to the J.S./E.G., Weir

and Martinez crimes.

18

2. Consolidation of Noncapital Charges With Special Circumstance Case

Defendant contends the trial court abused its discretion when, after denying his

severance motion, it subsequently consolidated the noncapital charges with the Witters

capital murder case. Again, we find no abuse of discretion.

a. Background

The prosecution filed an information charging defendant and Drebert with the

special circumstance murder of Witters and moved to consolidate that case with the case

charging them, along with Pritchard and Vera, with the J.S/E.G., Weir and Martinez

crimes. Defendant and Vera opposed consolidation. Vera, in particular, argued that he

would be prejudiced because he was not involved in the murder. The court agreed and

denied the consolidation motion. The prosecution responded by asking the court to sever

defendant and Drebert from Pritchard and Vera, and then consolidate the capital and

noncapital charges against defendant and Drebert. Over defendant‘s continued objection,

the court granted the request.

b. Discussion

As noted, section 954 represents a legislative preference for the consolidation of

charges ―connected together in their commission‖ or ―of the same class of crimes or

offenses‖ (ibid.) because such joinder ― ‗ordinarily promotes efficiency.‘ ‖ (People v.

Hartsch, supra, 49 Cal.4th at p. 493.) Unquestionably, the Witters murder case, like the

noncapital charges, involved an ―assaultive crime‖ against a person (People v. Lucky,

supra, 45 Cal.3d at p. 276) and could be properly joined.

Defendant nonetheless contends consolidation was error because evidence of the

noncapital crimes would not have been admissible in the guilt phase of the Witters

special circumstance case had it been tried separately. The prosecutor‘s theory of cross-

admissibility was that defendant admitted his participation in both the Witters and Weir

cases to the same witness, Gladys Santos. The prosecutor also argued Drebert‘s

participation in the Witters case was admissible to defeat any claim by Drebert that he

19

was unaware that defendant intended to attack Martinez when Drebert agreed to enter

Martinez‘s apartment and commit a robbery. On appeal, defendant contends Santos‘s

testimony regarding defendant‘s admission that he robbed the Weirs would not have been

admissible at a separate trial of the Witters murder, nor would his admission that he killed

Witters have been admissible at a separate trial of the Weir case. He argues further that

the cross-admissibility of evidence regarding Drebert‘s knowledge and intent is,

essentially, irrelevant to the question of the cross-admissibility of the evidence as to

defendant himself.

Although the prosecutor did not argue this point below, we have already noted that

evidence of the geographic and temporal proximity of the four home invasion robberies,

along with certain common characteristics of those crimes, would have been admissible

to show a common plan for purposes of Evidence Code section 1101, subdivision (b). In

any event, even if we assume there was no cross-admissible evidence between the Witters

case and the other three cases, the absence of such evidence is not dispositive. ― ‗Cross-

admissibility . . . is sufficient but not necessary to deny severance. [Citation.] As the

four-part test is stated in the conjunctive, joinder may be appropriate even though the

evidence is not cross-admissible . . . .‘ ‖ (People v. Ramirez (2006) 39 Cal.4th 398, 440.)

The remaining relevant considerations favor consolidation. The murder of Koen

Witters was not less inflammatory than the evidence of the sexual assault of J.S., the

attempted murder of Martinez or the invasion of the Weirs‘ home. Thus, joinder was not

― ‗ ― ‗unusually likely to inflame the jury against the defendant.‘ ‖ ‘ ‖ (People v.

Ramirez, supra, 39 Cal.4th at p. 439.) Nor was the evidence in the Witters case weaker

than such evidence in the other cases so as to create the danger of a spillover effect.

(Ibid.) Finally, the fact the Witters case was a capital case did not cut against

consolidation where the ―evidence of each charge [was] so strong that consolidation is

unlikely to [have affected] the verdict.‖ (People v. Ochoa (2001) 26 Cal.4th 398, 423.)

20

Accordingly, we conclude the trial court properly exercised its discretion in

consolidating the capital and noncapital charges.

3. Gross Unfairness

Defendant lastly contends that, even if the trial court‘s severance and

consolidation rulings were correct when made, reversal of the judgment is required

because the joint trial resulted in such gross unfairness as to amount to a due process

violation. (People v. Hartsch, supra, 49 Cal.4th at p. 494.) The claim is meritless.

Defendant contends joinder allowed the prosecutor to improperly use Martinez‘s

identification of defendant as his assailant to bolster weaker evidence of defendant‘s

participation in the remaining offenses. We perceive no such impropriety.7 Evidence

that defendant was the ringleader of a group that included Drebert, Pritchard and Vera,

and that J.S. identified Pritchard and Vera as two of the perpetrators, along with DNA

evidence connecting defendant to the sexual assault against J.S., could, combined with

other evidence, support the inference that defendant was one of the other men involved in

the other incidents. As we explained in similar circumstances, a prosecutor may properly

argue that defendants probably acted in concert when the evidence established they had a

history of doing so. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 152.) In short, we

reject defendant‘s claim that there was anything unfair, much less grossly unfair, in the

manner in which the prosecutor connected defendant to the four crimes.

Defendant also argues he was denied due process because consolidation of the

cases allowed the prosecutor to present inflammatory evidence suggesting defendant

belonged to a gang. The only evidence that defendant was a gang member was

7 To the extent defendant is asserting that the prosecutor committed misconduct by

misstating the evidence in his closing argument, that claim is forfeited by his failure to

have lodged a timely objection to the statements at issue. (People v. Linton (2013) 56

Cal.4th 1146, 1205.)

21

Martinez‘s testimony that he feared defendant because he believed defendant was a gang

member. The prosecutor did not refer to this testimony. The prosecutor made a few

references to the gang-like appearance and behavior of defendant and his three cohorts,

but these references, fleeting and ambiguous, did not identify defendant as a member of a

known street gang. To the extent defendant‘s complaint is that there were suggestions

defendant, Drebert, Pritchard and Vera acted like a gang in the colloquial sense, the short

answer is that they did. Such a colloquial understanding is quite different, however, from

a potentially prejudicial suggestion that defendant belonged to one of the well-established

criminal street gangs operating in Southern California. Other than Martinez‘s brief

testimony, no such connection was made by the evidence or suggested by the prosecutor.

B. Asserted Errors During Voir Dire of Prospective Jurors

1. Dismissal of Jurors Who Stated They Would Be Unable to Impose the

Death Penalty

Defendant contends the trial court violated his right to a fair trial by an impartial

jury by excusing 22 prospective jurors who, in response to the court‘s query, stated they

would be unable or unwilling to impose the death penalty regardless of the evidence. In

support of his claim, he relies on People v. Stewart (2004) 33 Cal.4th 425 (Stewart), and

People v. Heard (2003) 31 Cal.4th 946 (Heard), in which we found error. We reject

defendant‘s claim the circumstances of this case are analogous to those in the cited cases.

The trial court conducted a preliminary screening of four panels of prospective

jurors. The court first considered financial hardship requests. It then described in general

terms the nature of the case. It told the first panel: ―One of the charges against

[defendant] in this case is murder, and it‘s alleged that it‘s murder in the first degree. [¶]

It‘s further alleged that due to the manner in which the murder was committed, that

special circumstances exist. [¶] If the jury in this case finds [defendant] guilty of murder

in the first degree, and further finds that the special circumstances allegation is true, the

jury in this case will be asked to determine the penalty in this case. [¶] The jury will

22

have two options, and two options only, and that will be life without the possibility of

parole, that will be life in prison, or death. [¶] The reason I‘m mentioning that is this:

Now, without knowing anything at all about this case, is there any juror sitting in the

audience right now that, regardless of what the evidence might be, has such feelings

about the death penalty that he or she would be unable to vote to impose the death

penalty in this case. [¶] If the answer is yes, if you‘d rise, please.‖

Ten jurors in the first panel responded affirmatively. The court questioned each of

them to confirm they would refuse to impose the death penalty regardless of the

evidence. For example, the court asked Prospective Juror C.M.: ―Miss [M.], that is

regardless of what the evidence is; is that correct?‖ When she answered ―yes,‖ the court

excused her. Prospective Juror D.G. was asked, ―Miss [G.], your answer is that you

would be unable to vote to impose the penalty of death, regardless of the evidence?‖ The

juror answered ―yes‖ and was excused. The court asked essentially the same question of

the remaining eight jurors: whether, regardless of the evidence, the prospective juror

would be unable to vote to impose the death penalty. It excused the jurors when they

answered affirmatively.

The trial court asked a similar question with respect to whether any prospective

jurors would vote to impose the death penalty regardless of the evidence. No prospective

juror responded affirmatively. Only after this screening was completed were the

remaining prospective jurors asked to fill out the juror questionnaire.

Defendant‘s objection to the procedure was overruled, as was his renewed

objection later in the proceedings, and the trial court used the same procedure when

conducting its preliminary screening of the other three panels. The court briefly

explained the charges against defendant and the penalty options that would be before the

jury should defendant be convicted and the special circumstances found true. The court

then asked whether, because of a prospective juror‘s feelings about the death penalty, that

person would be unable to vote to impose death regardless of the evidence. The court

23

questioned each prospective juror who answered affirmatively to confirm he or she would

not vote to impose the death penalty regardless of the evidence. Some of these colloquies

were more extensive than others, and on three occasions when there was ambiguity in the

prospective juror‘s response the trial court did not excuse the individual. In all, the trial

court used this procedure to excuse 22 prospective jurors.

―Under decisions of the United States Supreme Court, prospective jurors who

express personal opposition to the death penalty are not automatically subject to excusal

for cause as long as ‗they state clearly that they are willing to temporarily set aside their

own beliefs in deference to the rule of law.‘ (Lockhart v. McCree (1986) 476 U.S. 162,

176; see Witherspoon v. Illinois (1968) 391 U.S. 510, 522 . . . .) To determine if a

prospective juror is excusable for cause without compromising a defendant‘s

constitutional rights, we inquire whether the prospective juror‘s views on the death

penalty ‗would ―prevent or substantially impair the performance‖ ‘ of the juror‘s duties in

accordance with the court‘s instructions and his or her oath. (Wainwright v. Witt (1985)

469 U.S. 412, 424 (Witt).)‖ (People v. Riccardi (2012) 54 Cal.4th 758, 778.) ―Under

Witt, a prospective juror is ‗substantially impaired‘ and may properly be excused for

cause if he or she is unable to follow the trial court‘s instruction and ‗conscientiously

consider all of the sentencing alternatives, including the death penalty where

appropriate.‘ ‖ (People v. McKinnon (2011) 52 Cal.4th 610, 635.) ―In according

deference on appeal to trial court rulings on motions to exclude for cause, appellate

courts recognize that a trial judge who observes and speaks with a prospective juror and

hears that person‘s responses (noting, among other things, the person‘s tone of voice,

apparent level of confidence, and demeanor), gleans valuable information that simply

does not appear on the record. [Citation.] As the high court observed in Witt, supra, 469

U.S. 412, 428, ‗the question whether a venireman is biased has traditionally been

determined through voir dire culminating in a finding by the trial judge concerning the

venireman‘s state of mind . . . based upon determinations of demeanor and credibility that

24

are peculiarly within a trial judge‘s province.‘ Indeed, as the high court noted in Witt,

‗ ―[T]he manner of the juror while testifying is oftentimes more indicative of the real

character of his opinion than his words. That is seen below, but cannot always be spread

upon the record. Care should, therefore, be taken in the reviewing court not to reverse

the ruling below upon such a question of fact, except in a clear case.‖ ‘ ‖ (Stewart, supra,

33 Cal.4th at p. 451.)

Defendant characterizes the trial court‘s questioning of prospective jurors as

―perfunctory‖ and argues it was inadequate to protect his right to a fair trial by an

impartial jury because the court failed ―to explain[] the applicable law or conduct[] any

inquiry into whether the jurors could temporarily put aside [their opposition to the death

penalty] and follow the law in this case.‖8 We are not persuaded.

―Recent decisions of this court have emphasized the importance of meaningful

death-qualifying voir dire. We have reminded trial courts of their duty to know and

follow proper procedure, and to devote sufficient time and effort to the process.

[Citations.] At bottom, both the court and counsel ‗must have sufficient information

regarding the prospective juror‘s state of mind to permit a reliable determination as to

whether the juror‘s views [on capital punishment] would ― ‗prevent or substantially

impair‘ ‖ the performance of his or her duties.‘ [Citation.] . . . [¶] Nonetheless, the trial

court has broad discretion over the number and nature of questions about the death

8 The Attorney General contends defendant has forfeited this claim because he

failed to specifically object to the adequacy of the trial court‘s voir dire of the prospective

jurors. Defendant objected twice to the trial court‘s excusal of the prospective jurors. In

any event, at the time of defendant‘s trial, a no-forfeiture rule was in effect with respect

to Witherspoon/Witt claims. (People v. McKinnon, supra, 52 Cal.4th at p. 637.) We

abandoned that rule in McKinnon, and now require an objection to preserve such claims,

but ―because at the time of this trial we had not expressly held that an objection is

necessary to preserve Witherspoon/Witt excusal error on appeal, we do not apply this rule

here.‖ (Id. at p. 643.)

25

penalty. We have rejected complaints about ‗hasty‘ [citation] or ‗perfunctory‘ voir dire.‖

(People v. Stitely (2005) 35 Cal.4th 514, 539–540.) While the trial court‘s preliminary

screening of the prospective jurors here was relatively brief, the question it posed to the

prospective jurors—whether, regardless of the evidence, they would be unwilling or

unable to impose the death penalty—was unequivocal. (See People v. Riccardi, supra,

54 Cal.4th at p. 780.)

In Riccardi, question No. 68 of the juror questionnaire asked: ― ‗Do you have

such an opinion concerning the death penalty that, regardless of the evidence that might

be developed during the penalty phase of the trial . . . you would automatically and

absolutely refuse to vote for the death penalty in any case?‘ ‖ (People v. Riccardi, supra,

54 Cal.4th at p. 780.) The defendant argued that four prospective jurors were improperly

excused based solely on their answers to the juror questionnaire because, taken as a

whole, their responses were ambiguous and required further examination. Three of those

prospective jurors had answered ―yes‖ to question No. 68. In rejecting the defendant‘s

argument, we observed: ―Given that question No. 68 was phrased unequivocally, a

prospective juror‘s decision to write ‗yes‘ as an answer clearly established that the

prospective juror held a bias against the death penalty that ‗would ―prevent or

substantially impair‖ ‘ the performance of his or her duties as a juror even if the evidence

leaned in favor of imposing death.‖ (Ibid.; see People v. Avila, supra, 38 Cal.4th at p.

531 [―The questionnaire at issue here . . . asked whether a prospective juror held such

conscientious objections to the death penalty that, regardless of the evidence or the

strength of proof, he or she ‗automatically‘ would refuse to return a first degree murder

verdict, find a special circumstance true, or impose the death penalty. Any juror who

‗automatically‘ would vote in ways that precluded the death penalty would clearly be

disqualified under [Wainwright v.] Witt[, supra, 469 U.S. 412].‖].)

Here, too, the trial court asked whether any prospective juror‘s opposition to the

death penalty would preclude her or him from imposing it regardless of the evidence.

26

Those who answered ―yes,‖ and whose answer was confirmed by further questioning by

the trial court, were disqualified. While brief, the trial court‘s questioning was not rote.

Some prospective jurors expanded their responses making it even clearer their opposition

to the death penalty would preclude them from imposing it. For example, one

prospective juror informed the court, ―I am strongly against the death penalty. I‘m

against it.‖ When the court asked, ―In any case?‖ the prospective juror replied, ―In any

case. Life imprisonment, I‘m okay; but death, I‘m against it.‖ The court continued the

colloquy, asking, ―So you would be unable to vote to impose the death penalty in this

case or in any case; is that right?‖ ―Yes,‖ the prospective juror replied. She answered

―yes‖ again when the court asked a final question: ―Regardless of the evidence?‖

Another juror explained that even killing a fish while fishing had been so upsetting to her

that ―there is no way I could even consider anything like [the death penalty].‖ The court

asked, ―You couldn‘t conceive of an instance so terrible that you would vote to impose

the death penalty?‖ The prospective juror replied, ―No, not at all.‖ Still, the court probed

further, eliciting from the prospective witness repeated statements affirming she would

not impose the death penalty in any case (―Everything has a right to live‖), under any

circumstance (―No circumstance‖), and regardless of the evidence (―Regardless‖).

On the other hand, the three prospective jurors whose answers were confused or

ambiguous were not excused. Moreover, unlike in People v. Riccardi, supra, 54 Cal.4th

758, or People v. Avila, supra, 38 Cal.4th 491, the trial court had the opportunity to

observe the prospective jurors as they responded to its questions, permitting it to evaluate

their credibility and their conviction. The trial court‘s ability to ―assess the demeanor of

the venire, and of the individuals who compose it, [is] a factor of critical importance in

assessing the attitude and qualifications of potential jurors.‖ (Uttecht v. Brown (2007)

551 U.S. 1, 9.) Thus, ―the trial court makes a judgment based in part on the demeanor of

the juror, a judgment owed deference by reviewing courts.‖ (Ibid.) Finally, ―[w]hen a

juror has clearly expressed an inability to vote for the death penalty regardless of the

27

evidence that may be produced at trial, the court has discretion to limit further voir dire

directed toward persuading the juror that there may be some circumstance which he has

not considered that could cause him to modify his conscientious or moral attitude toward

the death penalty.‖ (People v. Mattson (1990) 50 Cal.3d 826, 846; accord, People v.

Fuiava (2012) 53 Cal.4th 622, 714.)

Defendant‘s reliance on Stewart, supra, 33 Cal.4th 425, and Heard, supra,

31 Cal.4th 946, is misplaced because those decisions involve factual circumstances not

present here. ―[T]he trial court in Stewart excused prospective jurors based solely on

their answers to a written question concerning whether their death penalty views would

‗ ―prevent or make it very difficult‖ ‘ to determine the appropriate penalty, and without

engaging in oral voir dire. (Stewart, supra, 33 Cal.4th at pp. 444, 446–447, italics

omitted.)‖ (People v. Watkins (2012) 55 Cal.4th 999, 1017.) ―As we observed, even one

who gave a straightforward ‗yes‘ answer to such questions would not necessarily

demonstrate disqualification under Witt, because mere difficulty in imposing the death

penalty does not, per se, prevent or substantially impair the performance of a juror‘s

duties. The prospective juror might nonetheless be able to put aside his or her personal

views and deliberate fairly under the death penalty law. Yet the Stewart questionnaire

did not inquire whether the prospective juror could do so.‖ (People v. Avila, supra, 38

Cal.4th at p. 530.) In this case, unlike in Stewart, the jurors were personally questioned

by the trial court. And unlike the questionnaire in Stewart, the court‘s questions here did

not use the ―make it very difficult‖ formulation, but asked the jurors unequivocally

whether he or she would be unable to apply the death penalty. Accordingly, Stewart is

inapplicable here.

Heard, supra, 31 Cal.4th 946, also involved circumstances quite different from

those presented in this case. In Heard, a prospective juror indicated on the juror

questionnaire he believed life without possibility of parole was a worse penalty than

death. When questioned by the trial court about his response, however, the prospective

28

juror ―made it quite clear that he would not vote ‗automatically‘—in other words, ‗no

matter what the evidence showed‘—either for life imprisonment without the possibility

of parole or for death, and also that he would not be reluctant to find the defendant guilty

of first degree murder or to find the special circumstances true ‗so as to avoid having to

face the issue of the death penalty.‘ ‖ (Id. at p. 964.) Given the prospective juror‘s oral

responses, we concluded the trial court had improperly excused him for cause. (Ibid.) In

this case, by contrast, the excused jurors clearly stated they would be unable to impose

the death penalty regardless of what the evidence showed. We thus reject defendant‘s

contention that Stewart and Heard require reversal in this case.

The dissent maintains that the trial court‘s excusal of 16 prospective jurors from

the first two panels was error because the trial court did not conduct a further inquiry

after they unequivocally stated they would not impose the death penalty regardless of the

evidence. The dissent would have had the trial court explain to the prospective jurors the

bifurcated nature of a capital case, the possibility that evidence in aggravation and

mitigation might be presented at the penalty phase and the weighing process the jury

engages in with respect to such evidence, and have inquired of them whether they could

put aside their views and follow the law.

As noted, the trial court exercises its discretion over the number and nature of

questions about the death penalty. (People v. Stitely, supra, 35 Cal.4th at pp. 539–540.)

There is no requirement that a trial court engage in the exposition the dissent would

impose upon it. The issue here is not whether the prospective jurors were simply

opposed to the death penalty or ―did not believe in it,‖ a circumstance that would require

further voir dire, but whether their opposition would disable them from imposing the

death penalty regardless of the evidence. Although the trial court did not ask the jurors if

they could set aside their feelings and follow the court‘s instructions, the court‘s inquiry

did call on the jurors to assess their ability to vote for death. If a prospective juror states

unequivocally that he or she would be unable to impose the death penalty regardless of

29

the evidence, the prospective juror is, by definition, someone whose views ―would

‗prevent or substantially impair the performance of his duties as a juror in accordance

with his instructions and his oath.‘ ‖ (Witt, supra, 469 U.S. at p. 424.) Further inquiry

concerning the juror‘s ability to follow the law is not required.

In reviewing the trial court‘s determination, we apply a ―rule of deference‖

(Uttecht v. Brown, supra, 551 U.S. at p. 7) based on the trial court‘s ability to assess the

demeanor and credibility of the prospective witness (Darden v. Wainwright (1986) 477

U.S. 168, 178). The dissent rejects application of the rule here, asserting the trial court

spent insufficient time questioning the individual prospective jurors to have drawn any

conclusions regarding their demeanor or credibility. (Dis. opn., at pp. 14–15.) Certainly

the trial court could have conducted a fuller inquiry and the better practice is to do so.

But the reviewing court applies the rule to the circumstances before it, not the

circumstances it might have wished for. (Uttecht v. Brown, supra, at p. 7 [―Deference is

owed regardless of whether the trial court engages in explicit analysis regarding

substantial impairment.‖].) The fact remains the trial court was present at the voir dire

and we were not. The dissent cites no authority for the proposition that the trial court

must spend a certain amount of time, give certain explanations, ask certain questions, or

make findings on the record in support of its determination before a reviewing court

applies the rule of deference.

The dissent‘s reliance on the Darden decision is misplaced. That opinion does not

stand for the proposition that a trial court cannot excuse a prospective juror based on his

or her unequivocal answer to a single question unless the record reveals the prospective

juror received additional information regarding assessment of the penalty. The claim

raised and rejected in Darden was that the trial court had misstated the Witt standard.

(Darden v. Wainwright, supra, 477 U.S. at pp. 175–178.) The court‘s examination of the

context in which the challenged question was asked was to determine whether the court

had ―stated the correct standard when questioning individual members of the venire.‖

30

(Id. at p. 177.) The court concluded it had and that the jurors whose excusal was

challenged had heard the court repeatedly do so. (Id. at pp. 177–178.)

In sum, we conclude the trial court did not improperly excuse those jurors who

expressed an unequivocal inability to apply the death penalty regardless of the evidence.

Although not a model for future courts, the voir dire technique used here resulted in no

constitutional impropriety. We note, however, that a more complete voir dire by trial

courts would assist our review of a defendant‘s claim of Witt error, and we encourage

trial courts to question prospective jurors at sufficient length to clearly establish their

views on their ability to impose the death penalty.

2. Dismissal of Prospective Juror No. 2361

Defendant contends the trial court improperly excused for cause Prospective Juror

No. 2361, a juror who, although not excused in the initial questioning discussed ante, was

subsequently found to be unable to fairly consider the death penalty. We reject the claim.

Asked in his juror questionnaire about his ―general feelings‖ toward the death

penalty, Prospective Juror No. 2361 wrote, ―I don‘t believe in death penalty.‖ He

indicated further his view that California should not have a death penalty and that the

death penalty should not be used. In response to a question whether he would be able to

impose the death penalty ―if you believed, after hearing all of the evidence, that the

penalty was appropriate,‖ he answered, ―No.‖ Finally, in response to a question that

asked, ―What do you believe the purpose of the death penalty to be?‖ he responded, ―I

don‘t believe in death penalty.‖

When questioned by the trial court about these responses, however, the

prospective juror stated he could vote to impose the death penalty ―[d]epending on the

evidence.‖ When asked by the court whether he could set aside his personal beliefs and

apply the law objectively, he responded, ―Right.‖ Upon questioning by the prosecutor,

the prospective juror repeated his statement he could vote for the death penalty

31

―depending on the evidence.‖ The prosecutor then asked: ―Is there a reason why [when]

the questionnaire asked you that question, or asked you the question of whether or not

you could impose death on someone, despite your personal views, you indicated that you

couldn‘t? [¶] Have you changed your mind since the questionnaire?‖ The prospective

juror replied, ―No.‖ The defense made no further effort to rehabilitate him. Over

defendant‘s objection, the trial court excused the juror, explaining, ―he . . . indicated in

response to the district attorney‘s questions that his basic decision hasn‘t changed from

what he wrote down on the questionnaire, [on] which he indicated he did not believe in

the death penalty.‖

As noted, under Witt, a prospective juror may be excluded for cause because of

that individual‘s views on the death penalty if such views would ― ‗prevent or

substantially impair the performance of his duties as a juror in accordance with his

instructions and his oath.‘ ‖ (Wainwright v. Witt, supra, 469 U.S. at p. 424.) Witt

instructs further that ―this standard . . . does not require that a juror‘s bias be proved with

‗unmistakable clarity.‘ This is because determinations of juror bias cannot be reduced to

question-and-answer sessions which obtain results in the manner of a catechism. What

common sense should have realized experience has proved: many veniremen simply

cannot be asked enough questions to reach the point where their bias has been made

‗unmistakably clear‘; these veniremen may not know how they will react when faced

with imposing the death sentence, or may be unable to articulate, or may wish to hide

their true feelings. Despite this lack of clarity in the printed record, however, there will

be situations where the trial judge is left with the definite impression that a prospective

juror would be unable to faithfully and impartially apply the law. . . . [T]his is why

deference must be paid to the trial judge who sees and hears the juror.‖ (Id. at pp. 424–

426, fn. omitted.) ―[I]n determining whether the removal of a potential juror would

vindicate the State‘s interest [in having jurors who are able to apply the death penalty

within the framework of the law] without violating the defendant‘s right [to an impartial

32

jury], the trial court makes a judgment based in part on the demeanor of the juror, a

judgment owed deference by reviewing courts.‖ (Uttecht v. Brown, supra, 551 U.S. at p.

9.) ― ‗ ―On appeal, we will uphold the trial court‘s ruling if it is fairly supported by the

record, accepting as binding the trial court‘s determination as to the prospective juror‘s

true state of mind when the prospective juror has made statements that are conflicting or

ambiguous.‖ ‘ ‖ (People v. Edwards (2013) 57 Cal.4th 658, 752.)

The explicit reason given by the trial court for excusing the prospective juror was

that, notwithstanding his oral assertion that he could vote to impose the death penalty

―depending on the evidence,‖ he also said the strongly anti-death-penalty views he had

expressed in his juror questionnaire had not changed. In the questionnaire he stated he

would decline to apply the death penalty regardless of the evidence, a statement in direct

conflict with what he said in court. The record thus supports the trial court‘s ruling

because it shows the juror gave inconsistent statements regarding his ability to vote to

impose the death penalty. Implicit in the trial court‘s ruling was its conclusion the

prospective juror‘s questionnaire responses, rather than those he gave in court about his

willingness to consider the death penalty, reflected his true state of mind. ―This

determination of [his] state of mind is binding.‖ (People v. Edwards, supra, 57 Cal.4th at

p. 752.) We thus reject defendant‘s challenge to Prospective Juror No. 2361‘s dismissal

for cause.

3. Denial of Request for Individual Sequestered Voir Dire Concerning the

Death Penalty

At the time of defendant‘s trial, Code of Civil Procedure section 223 (section 223)

provided in relevant part: ―Voir dire of any prospective jurors shall, where practicable,

occur in the presence of the other jurors in all criminal cases, including death penalty

cases.‖ This statute, enacted in 1990 as part of Proposition 115, abrogated our decision in

Hovey v. Superior Court (1980) 28 Cal.3d 1, which, as a rule of judicial procedure, had

33

required the death-qualification portion of voir dire in capital cases to be sequestered.

(People v. Burney (2009) 47 Cal.4th 203, 240.)

Defendant filed a pretrial motion asking the trial court to exercise its discretion

under section 223 and conduct sequestered voir dire. Citing Hovey, the motion asserted

generally that such sequestered voir dire ―is the most effective method of preventing

prospective jurors from being influenced by others in the responses to the death-

qualification aspect of the voir dire process and enabling the parties to discover bias.‖

Without ruling on the motion, the trial court conducted its preliminary screening

of the first and second panels of prospective jurors, during which, as noted, it excused

some members of the panel based upon their professed inability to vote for the death

penalty. During a break in the proceedings following the screening of the second panel,

the trial court took up defendant‘s sequestration motion. The prosecutor joined in the

motion, although he acknowledged ―the Court has the discretion to go either way, and I‘ll

submit on [defendant‘s] papers.‖ The court denied the motion without further discussion.

Defendant asserts that the trial court failed to exercise its discretion under section

223, resulting in a miscarriage of justice. (Cal. Const., art. VI, § 13.) He also contends

the trial court‘s ruling violated his state and federal constitutional rights to due process,

equal protection, trial by an impartial jury, effective assistance of counsel, and a reliable

death penalty. (U.S. Const., 6th, 8th, & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16.)9

The claims are without merit.

9 ―As to this and virtually all other appellate claims, defendant contends that an

issue raised and decided in the trial court resulted in constitutional violations, but he did

not present those constitutional theories below. In such instances, it appears that (1) the

appellate claim is the kind that required no trial court action to preserve it, or (2) the new

arguments do not invoke facts or legal standards different from those the trial court was

asked to apply, but merely assert that the trial court‘s act or omission, in addition to being

wrong for reasons actually presented to that court, had the legal consequence of violating

the United States and California Constitutions. To that extent, defendant‘s new

(footnote continued on next page)

34

Defendant claims the trial court‘s failure to provide reasons for its ruling

amounted to a failure to have exercised its discretion under section 223. Not so.

Unquestionably, the trial court was aware of its discretionary authority, given that

defendant‘s motion and the prosecutor‘s comments explicitly mentioned it. There is

nothing in the statute requiring the trial court to set forth its reasons for its rulings on such

a request. Moreover, defendant‘s motion was a generic, boilerplate one that made no

attempt to show specifically why open court voir dire in this case was not practicable.

(See People v. Vieira (2005) 35 Cal.4th 264, 288 [group voir dire may be impracticable

―when, in a given case, it is shown to result in actual, rather than merely potential,

bias‖].) Accordingly, nothing in defendant‘s motion required a detailed trial court ruling.

―In view of the circumstance that defendant offered only generalized grounds for

conducting individual voir dire, not specific to his case, the trial court‘s ruling did not fall

outside the bounds of reason.‖ (People v. Burney, supra, 47 Cal.4th at p. 241.) Thus, we

reject defendant‘s claim that the trial court failed to exercise its discretion and, to the

extent he also contends denial of his motion was an abuse of discretion, we reject that

argument as well. (People v. Watkins, supra, 55 Cal.4th at p. 1011.)

4. “Death Qualification” of the Prospective Jurors

Defendant contends the process by which a death penalty jury is selected in

California, and which was used in this case, violates the Sixth, Eighth and Fourteenth

(footnote continued from previous page)

constitutional arguments are not forfeited on appeal. (People v. Boyer (2006) 38 Cal.4th

412, 441, fn. 17 . . . , applying People v. Partida (2005) 37 Cal.4th 428, 433–439.) In the

latter case, no separate constitutional discussion is required or provided where rejection

of a claim that the trial court erred on the issue presented to that court necessarily leads to

rejection of any constitutional theory or ‗gloss‘ raised for the first time here.‖ (People v.

Contreras (2013) 58 Cal.4th 123, 139, fn. 17.) We apply this principle here and

elsewhere where defendant asserts on appeal constitutional claims not advanced below.

35

Amendments to the United States Constitution and article I, section 16 of the state

Constitution, by depriving him of his rights to due process, a fair trial, a fair and reliable

guilt and penalty phase determination and to a jury selected from a representative cross-

section of the community. He acknowledges both we and the United States Supreme

Court have rejected the claims he makes here. (Lockhart v. McCree, supra, 476 U.S. at

p. 176 [exclusion of prospective jurors based on their views of capital punishment does

not contravene a defendant‘s Sixth and 14th Amend. right to a jury selected from a fair

cross-section of the community or to an impartial jury]; People v. Lenart (2004) 32

Cal.4th 1107, 1120 [exclusion of prospective jurors based on their views of capital

punishment does not contravene a defendant‘s state constitutional right to due process

and jury protections]; People v. Watkins, supra, 55 Cal.4th at p. 1011 [there is no federal

or state constitutional right to individual sequestered voir dire in capital cases].)

Defendant contends that Lockhart was wrongly decided. His criticism of Lockhart is

more properly addressed to the United States Supreme Court. In any event, we are not

persuaded that our precedents were in error and thus decline to revisit our decisions.

C. Guilt Phase Claims

1. Assertedly Erroneous Limitations on Cross-examination of Prosecution

Witness Gladys Santos

Defendant contends the trial court erroneously restricted his cross-examination of

Gladys Santos when it precluded questioning her about (1) her two misdemeanor petty

theft convictions; (2) whether she bartered drugs for stolen property and whether her

credibility was affected by her concern this information would adversely impact her

custody of her children and her eligibility for public assistance; and (3) the prosecutor‘s

contacts with the department of children‘s services (Department) on Santos‘s behalf. The

claims are both forfeited and meritless.

36

a. Background

In an in camera discussion before he presented Santos‘s testimony, the prosecutor

disclosed Santos‘s two misdemeanor convictions for petty theft. He disclosed further

that, because of threats from defendant, the district attorney‘s office had relocated Santos

and her family. He also revealed that the Department had threatened to remove Santos‘s

children because, in its view, her status as a witness in this case endangered them. The

prosecutor said he had spoken to the Department on her behalf to prevent the removal of

her children. Finally, the prosecutor said Drebert‘s attorney had told him she intended to

ask Santos whether she had supplied methamphetamine to Drebert and defendant. The

prosecutor had a detective ask Santos about this allegation. According to the prosecutor,

Santos told the detective she had supplied defendant with methamphetamine twice

because defendant was ―bugging‖ his cousin, Joanne Rodriguez, with requests for drugs.

After revealing this information, the prosecutor argued Santos‘s misdemeanor

convictions were inadmissible. The trial court responded: ―[T]he law is quite clear that

the convictions themselves are hearsay, so the convictions themselves are not admissible.

[¶] However, if any witnesses are prepared to testify to exactly what she did on those

occasions, that would be admissible.‖ The prosecutor replied, ―There is [sic] no

witnesses I‘m aware of that are here.‖ At that point, defendant‘s counsel interjected that

Santos had been on probation at the time of the offenses and argued her probationary

status was admissible. The trial court agreed but ―without specifying what the offense

is.‖ The court granted the prosecutor‘s request her status be characterized as

misdemeanor probation.

The court excluded as irrelevant evidence of the prosecutor‘s dealings with the

Department. Defendant‘s counsel replied, ―I wasn‘t going to go into that.‖

The trial court further ruled that the defense could inquire into the issue of whether

Santos had supplied drugs to the defendants. The court confirmed, in response to a

37

question by the prosecutor, that the petty theft convictions were not admissible absent

witnesses who could testify to the underlying conduct.

On the issue of Santos‘s relocation, defendant argued that her request to be

relocated was relevant. The court responded: ―And it becomes relevant as to why she

made the requests,‖ impliedly referring to the fact that defendant had threatened her.

Defense counsel agreed: ―That‘s the other side of the coin.‖ The court replied: ―So you

decide if you really want to get into that, [counsel.]‖

Later in the proceedings, Drebert‘s attorney informed the court she intended to ask

Santos whether she had dealt drugs to individuals other than Drebert and defendant. She

argued Santos‘s drug dealing was relevant to her credibility because, if she were revealed

to be a drug dealer, she might lose custody of her children and her public assistance

benefits. When asked by the trial court whether she had any witnesses to testify to

buying drugs from Santos, Drebert‘s attorney replied she had had a phone call from a

potential witness but could not confirm if there were sufficient facts and details. The

prosecutor objected that such testimony would be collateral and irrelevant. The trial

court disagreed: ―The sale of drugs is an act of moral turpitude, and whether or not she‘s

ever been arrested or convicted for such conduct, the conduct in and of itself would

appear to me to be relevant.‖ The court limited evidence of Santos‘s prior narcotics

transactions to those with defendants unless, as Drebert‘s counsel stated, ―I produce

someone . . . that will take the stand.‖ At no point did defendant‘s counsel join in the

discussion of whether such evidence was admissible or indicate such witnesses were

available.

b. Discussion

―Cross-examination may expose facts from which jurors can appropriately draw

inferences about the reliability of a witness, including the possibility of bias. The trial

court, however, has wide latitude to restrict such cross-examination, and such testimony

38

is properly barred unless the defendant can show the prohibited cross-examination would

have produced a significantly different impression of the witness‘s credibility.‖ (People

v. Brady (2010) 50 Cal.4th 547, 560; see People v. Smith (2007) 40 Cal.4th 483, 513.)

Regarding Santos‘s misdemeanor convictions for petty theft, defendant contends

the trial court erroneously ruled that ―evidence of [the underlying] conduct had to be

supplied by someone other than Santos.‖ The record reveals some ambiguity about

whether the trial court so ruled. Consistent with our decision in People v. Wheeler (1992)

4 Cal.4th 284, the trial court ruled the fact of Santos‘s convictions was inadmissible

hearsay but evidence of the underlying criminal conduct was admissible ―if any witnesses

are prepared to testify to exactly what she did on those occasions . . . .‖ (See id. at pp.

295–300.) Obviously, Santos herself would have been a percipient witness to her own

conduct and the trial court‘s initial ruling did not explicitly preclude defendant from

questioning her about it. Later, however, the trial court did state that, while Santos could

be questioned about her probationary status, ―there will be no inquiry as to what

particular offense she was on probation for.‖ This does suggest the trial court intended to

preclude the defense from questioning Santos about the circumstances surrounding her

misdemeanor convictions. Such ruling would have been error. (Id. at p. 300, fn. 14

[―proof of impeaching misdemeanor conduct‖ may be in the form of a ―witness‘s

admission on direct or cross-examination that he or she committed such conduct‖ as well

as by other means].)

Nonetheless, any error was harmless. The jury heard evidence that Santos was on

probation, had supplied defendant with drugs, and initially had been arrested because she

had lied to the police about harboring him, and that her apartment had been a repository

for defendant‘s stolen goods. Evidence that she had also committed petty theft would not

have produced a significantly different impression of her credibility.

Defendant also argues the trial court improperly denied him the opportunity to

question Santos about whether she bartered drugs to third parties in exchange for stolen

39

property. Defendant forfeited this claim because it was Drebert, not he, who sought to

question Santos on this point. During the extensive discussion between Drebert‘s

counsel, the prosecutor, and the trial court about this issue, defendant‘s counsel remained

silent. He did not join Drebert‘s request, much less make an offer of proof as to the

relevance of the evidence to his defense (as opposed to Drebert‘s). His claim is therefore

forfeited. (Evid. Code, § 354.) Moreover, the trial court did not absolutely bar Drebert

(or defendant) from cross-examining Santos about her alleged drug dealing. To the

contrary, the trial court acknowledged that it would be a permissible area of inquiry for

impeachment purposes. Reasonably viewing the discussion, the court properly required

only that Drebert demonstrate a good faith basis for asking such questions by, for

example, identifying a potential witness to her having dealt drugs. (People v. Pearson

(2013) 56 Cal.4th 393, 434.) Drebert failed to do so; defendant did not add anything.

Similarly forfeited is defendant‘s claim the trial court improperly restricted him

from cross-examining Santos regarding the prosecutor‘s contacts with the Department on

Santos‘s behalf after the Department threatened to remove her children because of her

status as a witness in this case. The trial court ruled the subject matter was irrelevant, at

which point defendant‘s counsel replied, ―I wasn‘t going to go into that.‖ Defendant not

only failed to challenge the court‘s ruling, he indicated agreement with it and a

preexisting decision not to question her about the contacts, perhaps again to avoid

mention of the threats defendant had made. Accordingly, defendant may not now assert

the ruling was error, nor does the record support a conclusion that it was the ruling, rather

than his own tactical decision, that led to the absence of cross-examination on the subject.

2. Asserted Aranda/Bruton Error

Defendant claims that Gladys Santos‘s testimony regarding the circumstances

under which she questioned defendant about whether he had killed Koen Witters

constituted Aranda/Bruton error because it revealed the source of her information was

40

codefendant Drebert. (People v. Aranda, supra, 63 Cal.2d 518; Bruton v. United States,

supra, 391 U.S. 123 [a nontestifying codefendant‘s extrajudicial statement that

incriminates the other defendant is inadmissible as a violation of the latter‘s rights to

confrontation and cross-examination].)10 The claim is meritless.

Defendant and Drebert were tried together but before separate juries to avoid

defendant‘s jury hearing Drebert‘s detailed statement to Santos inculpating defendant.

Defendant‘s jury did, however, hear Santos testify to her conversation with defendant

during which he admitted to killing Witters. The source of Santos‘s information with

which she confronted defendant was Drebert. Before her testimony, the prosecutor

sought guidance from the trial court regarding how to approach that issue. The court told

the prosecutor he could not mention Drebert as the source of Santos‘s information.

Defendant‘s counsel suggested the Aranda/Bruton problem could be resolved if the

prosecutor asked Santos, ―Did you receive information about the homicide?‖ and ―[D]id

you receive that information from another party . . . ?‖ The prosecutor suggested he ask

Santos whether she had received the information about the murder from a civilian source

(as opposed to a police source). The trial court agreed: ―Yes, civilian source with

personal knowledge.‖

Before the jury, the prosecutor asked Santos whether in December 1995, she had

―a conversation with someone who had indicated that they were present at a murder?‖

When she responded affirmatively, the prosecutor clarified: ―This person . . . wasn‘t a

police officer; is that right?‖ After ascertaining the conversation occurred before

Christmas, the prosecutor asked: ―After you had this conversation with this person who

said he had been at a murder, did you have a conversation with [defendant]?‖ Santos

10 To the extent Aranda ―require[d] the exclusion of relevant evidence that need not

be excluded under federal constitutional law, it was abrogated in 1982 by the ‗truth-in-

evidence‘ provision of Proposition 8.‖ (People v. Fletcher (1996) 13 Cal.4th 451, 465.)

41

said, ―Yes, I did,‖ and that she talked to defendant three days after her conversation with

her source. Asked by the prosecutor how she had begun the conversation, Santos replied:

―I asked him, ‗Is it true? Did you really kill someone with a belt?‘ ‖ The prosecutor

asked to approach the bench.

At the bench, the prosecutor told the court he expected Santos would testify that

defendant responded to her question by asking, ―Did Mike [Drebert] tell you that?‖ The

prosecutor argued that because it was defendant himself who brought Drebert into the

conversation ―there is no Aranda problem.‖ The court allowed the prosecutor to proceed

with the questioning. Santos testified that, in response to her question, defendant

eventually said, ―That pussy Mike told you, huh?‖ whereupon she denied Drebert was her

source. When she asked defendant why he had done it, he changed the subject. Later

that evening, however, she again asked him whether he killed someone with a belt. He

admitted he had and described the murder of Koen Witters in great detail.

Defendant contends the trial court violated the Aranda/Bruton rule by allowing the

prosecutor to ask Santos whether the source of her information was a civilian with

personal knowledge of the murder. He also claims the violation was compounded when

Santos was permitted to testify about defendant‘s response—―Mike told you, huh?‖—

when she asked if he had committed the murder.

The Aranda/Bruton rule addresses a specific issue that arises at joint trials when

the prosecution seeks to admit the out-of-court statement of a nontestifying defendant that

incriminates a codefendant. As we have observed, ― ‗Aranda and Bruton stand for the

proposition that a ―nontestifying codefendant‘s extrajudicial self-incriminating statement

that inculpates the other defendant is generally unreliable and hence inadmissible as

violative of that defendant‘s right of confrontation and cross-examination, even if a

limiting instruction is given.‖ [Citation.]‘ [Citation.] The United States Supreme Court

‗limited the scope of the Bruton rule in Richardson v. Marsh (1987) 481 U.S. 200 . . . .

The court explained that Bruton recognized a narrow exception to the general rule that

42

juries are presumed to follow limiting instructions, and this narrow exception should not

apply to confessions that are not incriminating on their face, but become so only when

linked with other evidence introduced at trial. (Richardson, supra, at pp. 206–207.)‘ ‖

(People v. Homick (2012) 55 Cal.4th 816, 874, fn. omitted; see People v. Fletcher, supra,

13 Cal.4th 451, 463–464.) The high court went on to hold in Richardson that admission

of a nontestifying codefendant‘s confession against the defendant does not violate the

defendant‘s confrontation right if the confession is redacted to eliminate not only the

defendant‘s name but any reference to his existence. (Richardson, supra, at p. 211.)

―When, despite redaction, the statement obviously refers directly to the defendant, and

involves inferences that a jury ordinarily could make immediately, even were the

confession the very first item introduced at trial, the Bruton rule applies and introduction

of the statement at a joint trial violates the defendant‘s rights under the confrontation

clause.‖ (People v. Burney, supra, 47 Cal.4th at p. 231.)

This case does not present a conventional Bruton issue because the prosecution

was not attempting to directly introduce codefendant Drebert‘s confession at a joint trial

before the same jury. Separate juries had been impanelled precisely to avoid such a

problem. (See Gray v. Maryland (1998) 523 U.S. 185, 194–195 [because the use of an

accomplice‘s confession ―creates a special, and vital, need for cross-examination,‖ a

prosecutor desiring to offer such evidence must comply with Bruton, hold separate trials,

use separate juries or abandon the use of the confession].) Rather, the question is

whether defendant‘s confrontation right was violated by the manner in which the

prosecution sought to explain Santos‘s knowledge of the murder, resulting in introducing

defendant‘s admissions to her.

Defendant argues the prosecution had no valid reason to identify the source of

Santos‘s knowledge at all except to invite the jury to make the connection to Drebert.

That is a relevance objection he could have made at trial, but did not. The resolution of

the Bruton claim before us requires a determination whether the court improperly

43

admitted a statement by Drebert inculpating defendant. It did not. Santos never testified

that Drebert told her defendant killed Witters; in fact, her testimony included her denials

to defendant that Drebert was the source. The jury heard that Santos had a conversation

with someone who had been present at a murder, and she later asked defendant whether it

was true he had killed someone with a belt. The testimony implied that the unknown

person told her defendant killed someone with a belt. Statements that incriminate by

implication, however, are not within the scope of Bruton. (People v. Fletcher, supra, 13

Cal.4th at p. 463.) Moreover, the challenged testimony is reasonably viewed as

explaining the basis for Santos‘s questions to defendant and to give context to his

responses. Introduction of Santos‘s testimony, including recounting defendant‘s

accusations that ―Mike‖ must have told her, did not ―pose[] a substantial threat to

[defendant‘s] right to confront the witnesses against him.‖ (Bruton v. United States,

supra, 391 U.S. at p. 137.) Accordingly, his rights were not violated.

3. Asserted Violation of Constitutional Right to Confrontation

Citing Crawford v. Washington (2004) 541 U.S. 36 (Crawford), defendant

contends the trial court violated his Sixth Amendment confrontation rights when it

admitted (1) an expert witness‘s testimony about DNA testing the witness herself did not

conduct; and (2) testimony regarding the autopsy of Koen Witters by a pathologist who

did not conduct the autopsy. We need not decide whether the challenged DNA evidence

was erroneously admitted. Any error was harmless because, in addition to testifying to

her colleague‘s DNA testing, the expert conducted and testified about her own testing

that was consistent with her colleague‘s results. Similarly, even if we assumed error in

the admission the autopsy report, such error is harmless. (People v. Dungo (2012) 55

Cal.4th 608; People v. Edwards, supra, 57 Cal.4th 658.)

44

a. DNA Evidence

1. Background

Anjali Swienton, a forensic DNA analyst with Cellmark Diagnostics, testified

about DNA testing pertaining to the sexual assault of J.S. DNA was extracted from

blood samples provided by J.S., defendant, Drebert, Pritchard and Vera and then

compared to DNA extracted from oral and vaginal swabs taken from J.S. following the

sexual assault on her. Swienton explained that the type of DNA testing performed in this

case is called polymerase chain reaction (PCR). The PCR test allows the analyst to

identify certain points along a DNA chain and then compare those between known

samples and samples obtained from a crime scene or victim. There are three steps to

PCR testing. DNA is extracted from the known and the unknown samples and then the

DNA is amplified, a process Swienton described as making a ―genetic Xerox‖ of the

DNA. After amplification comes the ―typing step,‖ in which comparisons are made

between DNA profiles generated from known and unknown samples. Swienton

explained there are two different typing processes within PCR technology, the DQ-

alpha/polymarker test and the short tandem repeats test (STR). The DQ-

alpha/polymarker test uses six sites along the DNA chain as a basis of comparison among

the samples provided to the analyst. The STR test uses three sites and also allows the

analyst to determine the gender of the donor of the sample being tested.

In this case, both the DQ-alpha/polymarker test and the STR test were conducted,

the former by a Cellmark analyst named Lisa Grossweiler and the latter by Swienton

herself. Grossweiler‘s tests revealed that defendant could not be excluded as a donor of

the DNA present on a vaginal swab taken from J.S. after she was raped. Swienton‘s later

STR test revealed that defendant‘s DNA was consistent with the DNA from the vaginal

swab. On cross-examination, Swienton testified that the frequency of the STR marker

combination obtained from the vaginal swab was 1 in 1,300 for the Caucasian population

and 1 in 2,700 for the Latino population.

45

2. Discussion

Defendant contends his confrontation rights were violated by Swienton‘s

testimony regarding the DQ-alpha/polymarker test conducted by Grossweiler. ―The

Sixth Amendment to the federal Constitution guarantees a defendant‘s right to confront

adverse witnesses. [Citation.] In addition, the prosecution may not rely on ‗testimonial‘

out-of-court statements unless the witness is unavailable to testify and the defendant had

a prior opportunity for cross-examination. (Crawford, supra, 541 U.S. at p. 59 . . . .)‖

(People v. Harris (2013) 57 Cal.4th 804, 839–840.) At the outset, the Attorney General

contends defendant forfeited this claim by failing to object at trial. We have rejected this

assertion, noting that, because Crawford was ―a dramatic departure from prior

confrontation clause case law,‖ a defendant‘s failure to object is excusable in cases like

this one where the trial occurred long before Crawford was decided ―because defense

counsel could not reasonably have been expected to anticipate this change in the law.‖

(Harris, at p. 840.)

In Williams v. Illinois (2012) 567 U.S. ___ [183 L.Ed.2d 89, 132 S.Ct. 2221], the

United States Supreme Court considered whether the defendant‘s confrontation rights

were violated when an Illinois State Police forensic biologist testified that a DNA profile

generated by a Maryland laboratory from vaginal swabs taken from a rape victim

matched a DNA profile generated by the Illinois State Police Laboratory from a sample

of the defendant‘s blood. A four-judge plurality opinion ―concluded on two alternative

grounds that [the] expert testimony did not violate the federal Constitution‘s

confrontation right. First, the plurality reasoned that [the expert‘s] testimony was

constitutionally permissible because it was admitted not for its truth but only for the

limited purpose of explaining the basis of [her] independent conclusion, based on her

expertise, that the defendant‘s DNA matched the DNA in the semen found on the vaginal

swabs. [Citation.] Alternatively, the Williams plurality reasoned, there was no

confrontation right violation because the Maryland laboratory‘s report was prepared for

46

the primary purpose of finding a dangerous rapist who was still at large, not ‗for the

primary purpose of accusing a targeted individual.‘ [Citation.] In a separate concurring

opinion, Justice Thomas agreed with the plurality‘s conclusion that [the] expert testimony

did not offend the Sixth Amendment‘s confrontation right, but for a completely different

reason: The Maryland laboratory report on which [the expert] relied ‗lack[ed] the

solemnity of an affidavit or deposition‘ and was therefore not ‗testimonial.‘ [Citation.]

A dissenting opinion by Justice Kagan, and signed by Justices Scalia, Ginsburg, and

Sotomayor, disagreed with the reasoning of both the plurality and Justice Thomas, and

concluded that [the expert‘s] testimony violated the defendant‘s confrontation right.

These widely divergent views, none of which was able to garner majority support—as

reflected in the four-one-four decision—highlight the complexity of the issue.‖ (People

v. Dungo, supra, 55 Cal.4th at p. 618.)

We need not wade further into the complexities of the issue here because

Swienton properly testified that she, personally, performed one of the tests on the vaginal

swab. Like the DQ-alpha/polymarker test results, the STR test showed defendant‘s DNA

was consistent with and did not exclude defendant as a donor of the material on the

vaginal swab.

Even if we assumed it was error for Swienton to have also testified regarding the

results of Grossweiler‘s DQ-alpha/polymarker test, we would find the error harmless.

― ‗ ―Confrontation clause violations are subject to federal harmless-error analysis

under Chapman v. California (1967) 386 U.S. 18, 24.‖ [Citation.] We ask whether it is

clear beyond a reasonable doubt that a rational jury would have reached the same verdict

absent the error.‘ [Citation.]‖ (People v. Livingston (2012) 53 Cal.4th 1145, 1159; see

Neder v. United States (1999) 527 U.S. 1, 18.) Swienton‘s testimony about her own

DNA test results, combined with testimony from J.S. that identified defendant‘s protégés,

Pritchard and Vera, as two of the four men who invaded her residence, and her testimony

that the man who raped her appeared to be their leader and that he ejaculated into her

47

vagina, along with Santos‘s testimony that defendant gave her property matching the

description of property stolen from the J.S/E.G. residence, including their answering

machine, provided abundant evidence of defendant‘s guilt, quite apart from the additional

evidence of the DQ-alpha/polymarker results.

Accordingly, any assumed error was harmless beyond a reasonable doubt.

b. Autopsy Evidence

1. Background

The autopsy on Koen Witters was performed by Dr. Shayla Frisby, a pathology

fellow at the Los Angeles County coroner‘s department. Dr. Frisby produced a 14-page

autopsy report. Such reports document the pathologist‘s observations of the condition of

the decedent‘s body, including internal and external injuries, and provide conclusions

regarding the cause of death. The report is prepared at or about the time the autopsy is

performed. Additionally, the body is photographed before the autopsy and additional

photographs may be taken during the autopsy. Such photographs were taken in this case.

At the time of defendant‘s trial, Dr. Frisby no longer lived in Los Angeles County.

In her place, the prosecution called Dr. Eugene Carpenter, a medical examiner with the

coroner‘s office. Dr. Carpenter reviewed Dr. Frisby‘s autopsy report and the photographs

taken of Koen Witters‘s body. Based on his review of that material, he testified about the

injuries to Witters and opined that the cause of death was strangulation. The autopsy

report was subsequently admitted into evidence.

2. Discussion

Defendant contends the trial court violated his confrontation rights by admitting

the autopsy report prepared by a nontestifying pathologist. The Attorney General argues

the claim is forfeited because it was not asserted below. For the same reason we rejected

the forfeiture argument with respect to the DNA evidence, we reject it here. (People v.

Edwards, supra, 57 Cal.4th at p. 704.)

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Nonetheless, though not forfeited, any error in the admission of the autopsy report

was harmless. In People v. Dungo, supra, 55 Cal.4th 608, we held that statements in an

autopsy report describing a nontestifying pathologist‘s observations of the condition of

the victim‘s body are not testimonial because the primary purpose of recording such facts

does not pertain to a criminal investigation. (Dungo, supra, at p. 619; id. at p. 622 (conc.

opn. of Werdegar, J.); accord, People v. Edwards, supra, 57 Cal.4th at pp. 704–707.)

Therefore, we concluded that testimony by a pathologist based on the report (including

photographs) prepared by the nontestifying pathologist did not violate the defendant‘s

confrontation clause rights even though he was unable to confront and cross-examine the

nontestifying pathologist. (Dungo, supra, at p. 621.) In Dungo the autopsy report was

not admitted into evidence and thus we did not have to decide whether the entire report

was testimonial in nature. (Id. at pp. 618–619.) Nor do we need to decide that issue in

this case, even though the autopsy report was admitted. As was true in Dungo, Dr.

Carpenter‘s attribution of cause of death was based on his own independent assessment

of the material he reviewed and his testimony, therefore, did not encroach upon

defendant‘s confrontation clause rights. Moreover, there was no dispute as to his cause

of death opinion. Accordingly, even if we assume error in the admission of the autopsy

report, any error was harmless beyond a reasonable doubt.

4. Asserted Instructional Errors

a. Absence of Instruction to Consider Separately the Evidence Regarding

Each Count

Defendant contends the trial court erred by failing to instruct the jury, sua sponte,

to consider only the evidence pertaining to each count when considering defendant‘s guilt

of the particular count. The claim is both forfeited and meritless.

Pursuant to CALJIC No. 17.02, the jury was instructed as follows: ―Each Count

charges a distinct crime. You must decide each Count separately. The defendant may be

found guilty or not guilty of any or all the crimes charged. Your finding as to each Count

49

must be stated in a separate verdict.‖ The instruction was legally correct; to the extent

defendant contends the trial court should have done more, he ―failed . . . to propose a

modification of CALJIC No. 17.02, or to propose an additional instruction, thus forfeiting

the claim of instructional error.‖ (People v. Geier, supra, 41 Cal.4th at p. 579.)

Even were we to find this claim was preserved, it fails on the merits. The premise

of defendant‘s argument—the instruction was required because none of the evidence was

cross-admissible—is erroneous, as we pointed out in rejecting his severance claim.

Therefore, even had defendant requested such an instruction, it would have been properly

refused. (People v. Geier, supra, 41 Cal.4th at pp. 578–579.)

b. Instructions Concerning Circumstantial Evidence

Defendant contends that certain standard instructions given at his trial undermined

the requirement of proof beyond a reasonable doubt, impermissibly lightened the

prosecution‘s burden of proof, and denied him his rights to trial by jury, to due process

and to a reliable capital trial.11 The instructions in question are CALJIC Nos. 2.01

(sufficiency of circumstantial evidence) and 2.02 (sufficiency of circumstantial evidence

to prove specific intent or mental state). Defendant points to the following language that

appears in both instructions: ―If . . . one interpretation of [the circumstantial evidence]

appears to you to be reasonable and the other interpretation to be unreasonable, you must

accept the reasonable interpretation and reject the unreasonable.‖ He argues this

11 The Attorney General contends defendant forfeited any objection to these

instructions because he failed to object to them in the trial court. Where, however,

defendant asserts that an instruction is incorrect in law an objection is not required.

(People v. Smithey (1999) 20 Cal.4th 936, 976–977, fn. 7; § 1259 [―The appellate court

may . . . review any instruction given, . . . even though no objection was made thereto in

the lower court, if the substantial rights of the defendant were affected thereby.‖].) We

apply this principle to all such instructional claims except to those where we explicitly

conclude that defendant‘s failure to seek modification or clarification of an otherwise

correct instruction resulted in forfeiture.

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language allowed the jury to convict him if it found an incriminatory interpretation

reasonable even if guilt was not established beyond a reasonable doubt. He also argues

the instruction created an impermissible mandatory presumption ―that required the jury to

accept any reasonable incriminatory interpretation of the circumstantial evidence unless

[defendant] rebutted the presumption by producing a reasonable exculpatory

interpretation.‖

―We have previously rejected each of the claims that defendant makes, and we

decline to reconsider these decisions. Contrary to defendant‘s arguments, CALJIC Nos.

2.01 [and] 2.02 . . . , which direct the jury to accept reasonable inferences and to reject

unreasonable ones, do not permit the jury to base a determination of guilt on something

less than proof beyond a reasonable doubt.‖ (People v. Jurado (2006) 38 Cal.4th 72,

126–127.) Nor do they create a mandatory presumption of guilt in cases in which a

reasonable interpretation of evidence points toward guilt. (People v. Nakahara (2003) 30

Cal.4th 705, 714; People v. Crittenden (1994) 9 Cal.4th 83, 144.)

c. Asserted “Dilution” of the Reasonable Doubt Standard

Defendant points to five other standard instructions that he asserts individually and

collectively diluted the constitutionally mandated reasonable doubt standard: CALJIC

Nos. 1.00 (the respective duties of the judge and jury), 2.21.1 (discrepancies in

testimony), 2.21.2 (willfully false witnesses), 2.22 (weighing conflicting testimony), and

2.27 (the sufficiency of evidence of one witness). He maintains the instructions, by

directing the jury to decide material issues by determining which side presented relatively

stronger evidence, implicitly replaced the reasonable doubt standard with a

preponderance of the evidence standard.

Again, we have repeatedly rejected the same challenges to these instructions.

(People v. Jones, supra, 57 Cal.4th 899, 972–973; People v. Vines (2011) 51 Cal.4th 830,

885 [―we have previously considered and rejected the argument that these instructions

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improperly dilute the constitutional requirement that guilt be proven beyond a reasonable

doubt‖]; People v. Kelly (2007) 42 Cal.4th 763, 792 [―Each of these instructions ‗is

unobjectionable when, as here, it is accompanied by the usual instructions on reasonable

doubt, the presumption of innocence, and the People‘s burden of proof.‘ ‖]; People v.

Crew (2003) 31 Cal.4th 822, 848 [use of the word ―innocence‖ in CALJIC Nos. 1.00 and

2.00 ―mean[s] evidence less than that required to establish guilt, not [that] defendant must

establish innocence or that the prosecution has any burden other than proof beyond a

reasonable doubt‖].) We find nothing in defendant‘s arguments to warrant

reconsideration of our past decisions.

d. Instruction Concerning Motive

The jury was instructed with CALJIC No. 2.51, on motive, as follows: ―Motive is

not an element of any of the crimes charged and need not be shown. However, you may

consider motive or lack of motive as a circumstance in this case. Presence of motive may

tend to establish the defendant is guilty. Absence of motive may tend to show the

defendant is not guilty.‖ Defendant contends this instruction allowed the jury to convict

him based on the presence of motive alone and thereby lessened the prosecution‘s burden

of proof beyond a reasonable doubt. We have previously rejected this claim. (People v.

Jones, supra, 57 Cal.4th at p. 971.) We do so again here.

e. Instruction Concerning Possession of Recently Stolen Property

The jury was instructed with CALJIC No. 2.15, regarding a defendant‘s

possession of recently stolen property, as follows: ―If you find that the defendant was in

conscious possession of recently stolen property, the fact of that possession is not by

itself sufficient to permit an inference that the defendant is guilty of robbery, home

invasion robbery in concert, or carjacking. Before guilt may be inferred, there must be

corroborating evidence tending to prove defendant‘s guilt. However, this corroborating

evidence need only be slight, and need not by itself be sufficient to warrant an inference

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of guilt. [¶] As corroboration, you may consider the attributes of possession—time,

place and manner, that the defendant had an opportunity to commit the crime charged, the

defendant‘s conduct, or any other evidence which tends to connect the defendant with the

crime charged.‖

Defendant contends this instruction unconstitutionally lightened the prosecution‘s

burden of proof in that it created an improper permissive inference and also because it

permits only ―slight corroboration‖ to establish guilt. He argues further the instruction

allowed the jury to use evidence of his possession of the stolen property as to one crime

to convict him of other crimes as to which he was not in possession of such property;

specifically, he claims the jury could have used evidence of his possession of property

from Martinez to convict him of the murder of Witters, from which crime scene no

property was recovered. Finally, he also argues the evidence was insufficient to support

the instruction.

We have previously rejected the claim that the instruction creates either a

mandatory or a permissive presumption that lowers the prosecution‘s burden of proof.

(People v. Gamache (2010) 48 Cal.4th 347, 374–376; People v. Parson (2008) 44 Cal.4th

332, 355–356.) Regarding defendant‘s second point, the instruction by its terms was

clearly limited to the theft-related offenses—robbery, home invasion, robbery in concert

and carjacking—and not the murder count or the special circumstances. We presume the

jurors understood and followed the court‘s instructions. (People v. Homick, supra, 55

Cal.4th at p. 867.) Finally, there was more than sufficient evidence to support the

instruction in light of Gladys Santos‘s testimony that defendant gave her an answering

machine later matched by its serial number to an answering machine stolen from J.S. and

E.G., and gave her jewelry that was later determined to belong to Ruth Weir. The police

also found items belonging to Michael Martinez in Santos‘s apartment, where defendant

was arrested.

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f. Instruction Concerning Juror Misconduct

The jury was instructed with CALJIC No. 17.41.1, regarding jury deliberations, as

follows: ―The integrity of a trial requires that jurors, at all times during their

deliberations, conduct themselves as required by these instructions. Accordingly, should

it occur that any juror refuses to deliberate or expresses an intention to disregard the law

or to decide the case based on penalty or punishment or any other improper basis, it is the

obligation of the other jurors to immediately advise the Court of the situation.‖

In People v. Engelman (2002) 28 Cal.4th 436, 439-440, 449, we rejected the

defendant‘s argument that the giving of this instruction was error or violated his state or

federal constitutional rights. ―Nonetheless, [because] we believe[d] that CALJIC No.

17.41.1 create[d] a risk to the proper functioning of jury deliberations and that it is

unnecessary and inadvisable to incur this risk[,] . . . in the exercise of our supervisory

power [citations], we direct[ed] that CALJIC No. 17.41.1 not be given in trials conducted

in the future.‖ (Id. at p. 449.) Defendant acknowledges our holding and raises the issue

to preserve it for federal review. While he also suggests that in his case the instruction

actually abridged his right to a fair trial, ―he [cites nothing] in the record indicating the

jurors in his case were improperly influenced by the instruction in their deliberations.‖

(People v. Brown (2004) 33 Cal.4th 382, 393.)

g. Instruction Concerning Felony Murder; Deficiency in the Information

Defendant raises another claim we have repeatedly rejected. He ―contends the

trial court erred in instructing the jury on first degree murder because the information

charged him only with one count of murder in violation of section 187, subdivision (a).

He characterizes that provision as a statute defining second degree murder. Because,

according to defendant, the information charged only second degree murder, the trial

court lacked jurisdiction to try him for first degree murder. Defendant‘s argument is

premised on his reading of People v. Dillon (1983) 34 Cal.3d 441. The argument is a

familiar one that we have rejected many times. We do so again for the reasons

54

previously expressed. [Citations.] [¶] Defendant also contends the information failed to

allege all the facts necessary to subject him to punishment for first degree murder,

including the death penalty, rendering his conviction defective under Apprendi v. New

Jersey (2000) 530 U.S. 466, 476 . . . . As we [have] stated . . . : ‗The Apprendi claim is

illusory; the information included special circumstance allegations that fully supported

the penalty verdict.‘ ‖ (People v. DeHoyos (2013) 57 Cal.4th 79, 143–144.)

h. Instruction Concerning the Reasonable Doubt Standard

Defendant contends that CALJIC No. 2.90, the standard instruction defining

reasonable doubt given in this case, is constitutionally defective and violated his federal

due process rights. His claim is meritless. As given here, CALJIC No. 2.90 stated: ―A

defendant in a criminal action is presumed to be innocent until the contrary is proved, and

in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a

verdict of not guilty. The presumption places upon the People the burden of proving him

guilty beyond a reasonable doubt. [¶] Reasonable doubt is defined as follows: It is not a

mere possible doubt, because everything relating to human affairs is open to some

possible or imaginary doubt. It is that state of the case which, after the entire comparison

and consideration of all the evidence, leaves the minds of the jurors in that condition that

they cannot say they feel an abiding conviction of the truth of the charge.‖12

―Tracking the language of section 1096, the standard instructions describe the

presumption of innocence and the requirement of proof beyond a reasonable doubt, and

provide the legislatively approved definition of reasonable doubt. A court satisfies its

12 This version of CALJIC No. 2.90 was the post-1994 version omitting the phrase

―moral certainty‖ criticized by the United States Supreme Court in Victor v. Nebraska

(1994) 511 U.S. 1, 16–17. Although the high court upheld the constitutionality of the

earlier version of the instruction, ―moral certainty‖ was removed. (See People v.

Whisenhunt (2008) 44 Cal.4th 174, 221, fn. 13.)

55

statutory obligation to instruct on these principles by giving CALJIC No. 2.90 . . . .‖

(People v. Aranda (2012) 55 Cal.4th 342, 353, fn. omitted.) The constitutionality of

CALJIC No. 2.90 has been ― ‗conclusively settled.‘ ‖ (People v. Whisenhunt, supra, 44

Cal.4th at p. 221.)

Defendant asserts that CALJIC No. 2.90 required the jurors to articulate a reason for

their doubts. As defendant concedes, the instruction contains no such requirement. Thus,

CALJIC No. 2.90 is distinguishable from the reasonable doubt instruction condemned in

People v. Antommarchi (N.Y. 1992) 604 N.E.2d 95, upon which defendant principally

relies. There the jury was instructed that a reasonable doubt ― ‗is a doubt for which a

juror can give a reason if he or she is called upon to do so in the jury room,‘ ‖ and ― ‗[i]t

must be a doubt based upon the evidence or the lack of evidence in this case.‘ ‖ (Id. at p.

97.) Such an instruction, the New York court concluded, reversed the burden of proof.

(Id. at p. 98.) Neither expressly nor by implication does CALJIC No. 2.90 suffer from

this deficiency.

Next, defendant contends that the language of the instruction informing the jury that

reasonable doubt is not mere possible doubt was unconstitutional because it failed to

adequately limit the scope of possible doubt. This language was expressly found

constitutional in Victor v. Nebraska, supra, 511 U.S. 1, 17. We reject the claim.

In a pair of related claims defendant complains that the instruction failed to inform

the jury the presumption of innocence continued throughout the trial. We have

previously rejected a similar claim. (People v. Lewis (2001) 25 Cal.4th 610, 651–652.)

We do so again here.

Finally, defendant faults the instruction for failing to affirmatively inform the jury

that (1) he had no obligation to present or refute evidence; (2) any defense evidence he

did produce did not shift the burden of proof; and (3) a conflict in the evidence or a lack

of evidence could give rise to a reasonable doubt. CALJIC No. 2.90 clearly places upon

the state the burden of proof beyond a reasonable doubt. ―We presume the jury

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understood and followed the instruction.‖ (People v. Homick, supra, 55 Cal.4th at

p. 873.) There is no reasonable likelihood the jury would have applied the instruction in

a way that would have shifted or diluted the burden of proof. (Jones v. United States

(1999) 527 U.S. 373, 390.)

Accordingly, we reject defendant‘s challenges to CALJIC No. 2.90.

5. Effects of Asserted Guilt Phase Errors

Defendant claims cumulative prejudice arising from the asserted guilt phase errors

requires reversal. In three instances we have assumed error—the trial court‘s apparent

ruling that the criminal conduct underlying Gladys Santos‘s misdemeanor convictions

could be established only by third party testimony (ante, at p. 37), Anjali Swienton‘s

testimony about the results of DNA testing she did not personally conduct (ante, at p. 46),

and the admission of the autopsy report (ante, at pp. 47–48)—but found each to be

harmless under the applicable standard. Apart from these three instances, we have found

no error. Considering their cumulative effect, the assumed errors furnish no basis for

reversal of the judgment. (People v. Homick, supra, 55 Cal.4th at p. 884.)

D. Challenges to the Death Penalty Statutes and Instructions

1. Proportionality

Defendant contends his death sentence violates the proportionality requirement of

the Eighth Amendment to the federal Constitution and international law because the

death penalty was imposed on him without a finding he intended to kill or acted with

reckless indifference to human life. We have previously considered and rejected the

Eighth Amendment claim and, in the absence of a persuasive argument why our

precedents are in error, do so again. (People v. Letner and Tobin, supra, 50 Cal.4th at pp.

191–194; People v. Smithey, supra, 20 Cal.4th at pp. 1016–1017.)

We have also repeatedly rejected defendant‘s claim that the death penalty statute

violates international norms generally or, specifically, the International Covenant on Civil

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and Political Rights. (People v. Turner (2004) 34 Cal.4th 406, 439–440; People v.

Brown, supra, 33 Cal.4th at pp. 403–404.) Because defendant fails to explain why our

precedents on this issue should no longer be followed, we reject this claim as well.

2. Other Constitutional Challenges to the Death Penalty Statue

Defendant contends California‘s death penalty statute and accompanying

instructions are constitutionally invalid in numerous respects. We have repeatedly

rejected similar claims, and, in the absence of a persuasive argument why our precedents

are in error, do so again here as follows:

―The death penalty statute does not lack safeguards to avoid arbitrary and

capricious sentencing, deprive defendant of the right to a jury trial, or constitute cruel and

unusual punishment on the ground that it does not require either unanimity as to the truth

of aggravating circumstances or findings beyond a reasonable doubt that an aggravating

circumstance (other than § 190.3, factor (b) or (c) evidence) has been proved, that the

aggravating factors outweighed the mitigating factors, or that death is the appropriate

sentence. . . . ‗Written findings by the jury during the penalty phase are not

constitutionally required, and their absence does not deprive defendant of meaningful

appellate review.‘ ‖ (People v. Maciel (2013) 57 Cal.4th 482, 553; see People v. Hayes

(1990) 52 Cal.3d 577, 643 [―Because the determination of penalty is essentially moral

and normative [citation], and therefore different in kind from the determination of guilt,

there is no burden of proof or burden of persuasion.‖].)

―The death penalty statute is not deficient because it does not require that the jury

be instructed on the presumption of life, nor was there any error because the jury was not

so instructed.‖ (People v. Homick, supra, 55 Cal.4th at p. 904.)

Nor is CALJIC No. 8.88 unconstitutional because (1) the instruction‘s use of the

phrase ―so substantial‖ is impermissibly vague; (2) the instruction‘s use of the term

―warrants‖ is so overbroad it misleads the jury to believe it may impose the death penalty

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even when it concludes it is not the appropriate remedy; (3) the instruction fails to inform

the jury that if the mitigating factors outweighed those in aggravation it must return a

sentence of life without possibility of parole; or (4) the instruction fails to inform the jury

that defendant did not have to persuade them that death was not the appropriate penalty.

(People v. Linton, supra, 56 Cal.4th at p. 1211; People v. Duenas (2013) 55 Cal.4th 1, 27;

People v. Boyette (2002) 29 Cal.4th 381, 464–465; see People v. Hayes, supra, 52 Cal.3d

at p. 643.)

―The failure to require intercase proportionality does not guarantee ‗ ―arbitrary,

discriminatory, or disproportionate impositions of the death penalty.‖ ‘ . . . [¶]

Defendant contends that his death sentence violates international law and therefore his

rights under the Eighth and Fourteenth Amendments to the federal Constitution.

Defendant points to no authority that ‗prohibit[s] a sentence of death rendered in

accordance with state and federal constitutional and statutory requirements.‘ ‖ (People v.

Edwards, supra, 57 Cal.4th at p. 768.)

E. Noncapital Sentencing Claims

1. Asserted Error Under Cunningham v. California

Defendant contends the trial court violated his Sixth and Fourteenth Amendment

right to a jury trial when it sentenced him to the upper terms on the noncapital counts of

which he was convicted as well as on the firearm use allegations in connection with those

counts.

In Cunningham v. California (2007) 549 U.S. 270, the United States Supreme

Court, applying its earlier decisions in Apprendi v. New Jersey, supra, 530 U.S. 466

(Apprendi) and Blakely v. Washington (2004) 542 U.S. 296, held that California‘s

―determinate sentencing law did not comport with a defendant‘s Sixth Amendment jury

trial right. As Cunningham explained, ‗If the jury‘s verdict alone does not authorize the

sentence, if, instead, the judge must find an additional fact to impose the longer term, the

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Sixth Amendment requirement is not satisfied.‘ [Citation.] Because the aggravating

circumstances necessary for imposition of an upper term ‗depend on facts found

discretely and solely by the judge‘ [citation], the ‗statutory maximum‘ prescribed in

California‘s sentencing scheme is not the upper term but rather the middle term [citation].

[¶] Decisions by this court have further clarified the interplay between Sixth Amendment

requirements and our determinate sentencing scheme. People v. Black (2007) 41 Cal.4th

799 held in relevant part that imposition of the upper term does not violate a defendant‘s

jury trial right ‗so long as one legally sufficient aggravating circumstance has been found

to exist by the jury,‘ or ‗has been admitted by the defendant.‘ [Citation.] A companion

case, People v. Sandoval [(2007)] 41 Cal.4th 825 . . . , established that the erroneous

imposition of an upper term is subject to federal harmless error analysis under Chapman

v. California (1967) 386 U.S. 18.‖ (People v. Myles (2012) 53 Cal.4th 1181, 1220-1221.)

In this case, the trial court imposed the upper term for counts 2 (§ 459; burglary), 3

(§ 211; robbery of Koen Witters), 4 (§ 211/213, subd. (a)(1)(A); robbery in concert of

J.S.), 5 (§ 211/213, subd. (a)(1)(A); robbery in concert of E.G.), 6 (§ 288a, subd. (d);

forcible oral copulation in concert of J.S.), 7 (§ 288a, subd. (d); forcible oral copulation in

concert of J.S.), 8 (§ 261.1; forcible rape in concert of J.S.), 10 (§ 215, subd. (a);

carjacking of J.S. and E.G.), 12 (§ 211; robbery of Ruth Weir), 13 (§ 211; robbery of

Patrick Weir), 14 (§ 215, subd. (a); carjacking of Ruth Weir), and 16 (§ 211; robbery of

Michael Martinez). As to count 9 (§ 261.1; forcible rape in concert of J.S.), defendant

was sentenced to 25 years to life, pursuant to section 667.61, the jury having found true

the specified circumstances that the offense was committed while defendant was engaged

in the commission of a burglary and that the victim was tied or bound during the

commission of the offense. (§ 667.61, subd. (e)(2), (5).)

The trial court also selected the upper term for all firearm use enhancements.

(§ 12022.5, subd. (a).)

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The trial court indicated it had selected the upper term for the substantive offenses

because ―each crime was, in the court‘s view, planned and premeditated. Each of the

victims was particularly vulnerable, and they were surprised and outnumbered by

[defendant] and [his] associates. They were imprisoned, essentially, in their own homes.

They were bound, and in some cases, gagged. Further [defendant] occupied a position of

leadership, that [he] induced minors to participate in each of these crimes, that [he had]

served at least one prior prison term, and that [he was] on parole from the state prison at

the time‖ the crimes were committed.

The court gave as its reasons for selecting the upper term for the firearm use

enhancements that the ―use of this firearm was planned and premeditated, and the manner

in which [defendant] chose to use this firearm showed a high degree of viciousness,

callousness and cruelty.‖

Ultimately, only the upper terms for count 4 and the firearm use enhancements

alleged in connection with counts 4 and 9 were actually imposed. The sentences on the

remaining counts (5, 10, 12, 13, 14, and 16) were recalculated to one-third the midterm

and made consecutive to count 4.

Among the reasons given by the trial court for imposing the upper term on count 4

was defendant‘s criminal history, which included at least one prison term and the fact he

was on parole when he committed the offenses. Defendant‘s pattern of recidivism as

evidenced by this criminal history constitutes a legally sufficient circumstance in

aggravation justifying imposition of the upper term without violating his Sixth

Amendment right to a jury trial. (People v. Black, supra, 41 Cal.4th at pp. 818–820

[recidivism exception to Apprendi-Blakely-Cunningham line of authority ―include[s] not

only the fact that a prior conviction occurred, but also other related issues that may be

determined by examining the records of the prior convictions‖ (Black, supra, at p. 819)];

see People v. Thomas (2001) 91 Cal.App.4th 212, 220-223 [the exception recognized in

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Apprendi for ― ‗the fact of a prior conviction‘ ‖ (Thomas, supra, at p. 220) permits a trial

court to decide whether a defendant has served a prior prison term].)

With respect to imposition of the upper term for the firearm use enhancements

(§ 12022.5, subd. (a)) on counts 4 and 9, among the reasons given by the trial court was

that the use of the firearms in each case was planned and premeditated. The evidence

related to those two counts, both of which involved J.S. and E.G., shows that defendants

and his cohorts arrived at the victims‘ residence already armed with guns and used them

to threaten and subdue the victims. Given this evidence, we conclude the jury would

―unquestionably‖ have found true this aggravating circumstance had it been submitted to

it, thus rendering any Cunningham error harmless beyond a reasonable doubt. (Sandoval,

supra, 41 Cal.4th at p. 839.)

To the extent defendant challenges on constitutional grounds the trial court‘s

decision to impose consecutive sentences on counts 5, 10, 12, 13, 14 and 16, that

contention is foreclosed by the high court‘s decision in Oregon v. Ice (2009) 555 U.S.

160 (Apprendi line of decisions does not apply to factual findings that bear on the

question of whether multiple sentences are to be imposed consecutively or concurrently).

(See People v. Black, supra, 41 Cal.4th at p. 821 [trial court‘s imposition of consecutive

sentences does not violate a defendant‘s Sixth Amend. right to jury trial].)

2. Assertedly Improper Consecutive Sentences for Carjacking and Robbery

Defendant contends the trial court violated section 654 by sentencing him to

consecutive sentences on the robbery and carjacking counts involving E.G. and J.S.

(counts 4, 5 and 10) and the Weirs (counts 12 and 14). Defendant argues here, as he did

in the trial court, that in each incident the carjacking and robbery were part of a single

transaction and, therefore, he could be punished only once for these offenses. He

contends his sentences on the carjacking counts—counts 10 and 14—should have been

stayed. We reject the claim.

62

As relevant here, at sentencing, the trial court selected count 4 (robbery in concert

of J.S.; § 211/213, subd. (a)(1)(A)) as the principal term and sentenced defendant to nine

years plus the upper term of 10 years for the firearm use enhancement (§ 12022.5). The

sentences on all remaining relevant counts were to be served consecutive to the sentence

on count 4. On count 5 (robbery in concert of E.G.), defendant was sentenced to three

years four months, and on count 10 (carjacking of J.S. and E.G.), to three years.13 On

count 12 (robbery in concert of Ruth Weir), defendant was sentenced to one year four

months; on count 13 (robbery in concert of Patrick Weir), to one year four months; and

on count 14 (carjacking of Ruth Weir), to one year eight months.

Defendant does not advance a section 654 challenge to the multiple sentences

imposed on the four robbery counts; his quarrel is with the consecutive sentences on the

carjacking counts.

Section 654 states in relevant part: ―An act or omission that is punishable in

different ways by different provisions of law shall be punished under the provision that

provides for the longest potential term of imprisonment, but in no case shall the act or

omission be punished under more than one provision.‖ (See § 215, subd. (c) [specifically

prohibiting punishment for a carjacking and a robbery that are ―the same act‖].)

― ‗Whether a course of criminal conduct is divisible and therefore gives rise to more than

one act within the meaning of section 654 depends on the intent and objective of the

actor. If all of the offenses were incident to one objective, the defendant may be

13 Defendant had been charged with a separate count (count 11) of carjacking against

J.S., but that count was dismissed pursuant to defendant‘s motion under section 1118.1,

and the prosecution was permitted to amend count 10 to add J.S. In sentencing

defendant, however, and for reasons not apparent on the record, the trial court did not

impose a separate sentence on the carjacking count as to J.S.

63

punished for any one of such offenses but not for more than one.‘ ‖ (People v. Rodriguez

(2009) 47 Cal.4th 501, 507, italics omitted.)

―[T]he purpose of section 654 ‗is to insure that a defendant‘s punishment will be

commensurate with his culpability.‘ ‖ (People v. Latimer (1993) 5 Cal.4th 1203, 1211.)

―It is [the] defendant‘s intent and objective, not temporal proximity of his offenses, which

determine whether the transaction is indivisible.‖ (People v. Harrison (1989) 48 Cal.3d

321, 335.) ― ‗The defendant‘s intent and objectives are factual questions for the trial

court; [to permit multiple punishments,] there must be evidence to support [the] finding

the defendant formed a separate intent and objective for each offense for which he was

sentenced.‘ ‖ (People v. Coleman (1989) 48 Cal.3d 112, 162.)14

In this case, defendant was convicted of two distinct offenses in the E.G/J.S. and

Weir incidents, home invasion robbery and carjacking. With respect to home invasion

robbery, the jury was instructed, and required to find, that defendant, ―acting in concert

with two or more other persons, commit[ted] [a] robbery within an inhabited dwelling

house . . . .‖ (§ 213, subd. (a)(1)(A).) Thus, this was not mere robbery, but robbery

involving the particular circumstances of multiple perpetrators and the invasion of the

victims‘ home.

― ‗ ―Carjacking‖ is the felonious taking of a motor vehicle in the possession of

another, from his or her person or immediate presence, or from the person or immediate

presence of a passenger of the motor vehicle, against his or her will and with the intent to

14 The trial court found that the carjacking offenses against E.G. (count 10) and Ruth

Weir (count 14) were completed before those victims were forced into their respective

residences where the home invasion robberies occurred. We do not agree with the trial

court‘s reasoning because, as we concluded in a case decided after defendant‘s trial, a

completed carjacking requires asportation. (People v. Lopez (2003) 31 Cal.4th 1051,

1060–1963.) Nonetheless, we may still affirm the trial court‘s ruling, if it is supported by

substantial evidence, on any valid ground.

64

either permanently or temporarily deprive the person in possession of the motor vehicle

of his or her possession, accomplished by means of force or fear.‘ ‖ (People v. Ortega

(1998) 19 Cal.4th 686, 693; see § 215.) The completed offense of carjacking requires

―asportation or movement of the motor vehicle.‖ (People v. Lopez, supra, 31 Cal.4th

1051, 1055.) Carjacking is thus distinct from ordinary automobile theft because it is a

crime accomplished by fear or force. Thus, this case is unlike People v. Bauer (1969) 1

Cal.3d 368, a decision of this court rendered before the enactment of the carjacking

statute. In that case, the defendant entered the victims‘ residence and robbed them of

various items, including their car keys. We held the defendant‘s subsequent conviction

for automobile theft should be stayed pursuant to section 654, reasoning automobile theft

is not a crime of violence but a violation of property interests to which the proscription

against multiple punishments applies. (Id. at p. 378.) Here, carjacking is a crime of

violence, distinct from robbery, and not merely a violation of the victims‘ property

interest in their motor vehicle. It is also, of course, distinct from home invasion robbery

because it involves the taking of a motor vehicle from the victims‘ persons or immediate

presence.

Defendant attempts to cast his carjacking convictions as vehicle thefts that were

part and parcel of a single course of conduct, beginning when the victims were removed

from their cars and ending only when defendants left with the stolen items, which

included the vehicles. Accordingly, defendant argues, the trial court erred when it

declined to stay execution of the sentences on the carjacking counts. (See People v.

Ortega, supra, 19 Cal.4th at p. 692.)

We disagree. Defendant was charged in each incident with, and the jury convicted

him of, two distinct crimes of violence against the victims, robbery and carjacking. The

temporal proximity of the two offenses is insufficient by itself to establish that they were

incident to a single objective. Rather, viewing the evidence in the light most favorable to

65

the trial court‘s ruling, we affirm its conclusion that defendant harbored separate

objectives for each offense and was appropriately punished for both.

Defendant and his cohorts confronted the victims at two points. They first

accosted them at their cars and then again, inside the victims‘ residences when they

demanded the victims‘ money and property. Had defendant simply intended to commit a

carjacking, he could have done so at the initial point of contact. The evidence reveals,

however, that defendant had another, distinct purpose—to rob (and commit other crimes)

inside the victims‘ homes. The elevation of the threat to the victims by forcing them into

their homes where defendant committed additional crimes amounts to a separate criminal

objective. (See People v. Green (1996) 50 Cal.App.4th 1076, 1085 [defendant

approached victim in her vehicle, robbed her of her purse, and then drove her to a

secluded area where he attempted to rape her before driving off in her car; ―the record

contains sufficient evidence to support the trial court‘s explicit finding the taking of the

purse and the taking of the vehicle were separate incidents which merited separate and

additional punishment‖].) Accordingly, we find no error in the court‘s refusal to stay the

sentence on the carjacking counts.

3. Error in Abstract of Judgment

Defendant contends, and the Attorney General concedes, the abstract of judgment

incorrectly reflects a sentence of life without the possibility of parole on count 15, the

attempted murder of Michael Martinez. The sentence imposed by the trial court on this

count was life with the possibility of parole. We will direct the superior court to correct

the error.

66

III. CONCLUSION

The superior court is directed to amend the abstract of judgment to reflect that

defendant‘s sentence on count 15 is life with the possibility of parole and to forward the

amended abstract of judgment to the Department of Corrections and Rehabilitation. The

judgment is otherwise affirmed.

WERDEGAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

BAXTER, J.

CHIN, J.

CORRIGAN, J.

67

CONCURRING AND DISSENTING OPINION BY LIU, J.

Since the United States Supreme Court authorized reinstatement of the

death penalty in 1976, the ultimate punishment has been governed by the principle

that its imposition must be rationally guided by law, not left to the sentencer‘s

unfettered discretion. Accordingly, the test for whether an individual is qualified

to serve on a capital jury is whether he or she can faithfully apply the law in

accordance with instructions given by the court. Neither strong support for the

death penalty nor strong opposition to it is by itself disqualifying. The crucial

inquiry is whether prospective jurors can set aside their personal views on the

death penalty and follow the law.

This inquiry is not one that most people have thought much about. Most

people never have reason to confront such a question apart from the rare

circumstance of being evaluated for jury service in an actual death penalty case.

When ordinary people are put in that situation, it may be the first time that they are

being asked — under oath, by a person of authority, in a proceeding that really

matters — to state their views on the death penalty and to consider whether their

views should yield to their sense of civic duty or allegiance to the law.

Unsurprisingly, quite a few people do not find the question to be an easy

one, and trial courts face the necessary but ―difficult task of distinguishing

between prospective jurors whose opposition to capital punishment will not allow

them to apply the law or view the facts impartially and jurors who, though

opposed to capital punishment, will nevertheless conscientiously apply the law to

the facts adduced at trial.‖ (Wainwright v. Witt (1985) 469 U.S. 412, 421 (Witt).)

An adequate evaluation of each prospective juror‘s ability to follow the law is thus

essential to selecting a fair jury, and the erroneous disqualification of even a single

prospective juror requires reversal of the death judgment. (See Gray v. Mississippi

(1987) 481 U.S. 648, 659–668 (Gray); People v. Riccardi (2012) 54 Cal.4th 758,

783 (Riccardi).)

Today‘s opinion says a reliable answer to this all-important inquiry may be

gleaned from one-word answers given by prospective jurors in response to a single

question, bereft of any mention of the law or the proper role of jurors in a capital

trial. I disagree. In this case, the trial court excused 16 prospective jurors on the

basis of a single question that could have been — and, in fact, was — understood

by some jurors to ask only about their personal views on the death penalty, not

whether they could set aside their personal views and follow the law. Because the

trial court lacked an adequate basis for disqualifying these jurors, the jury that

sentenced defendant to death was not properly selected. Accordingly, I dissent

from today‘s affirmance of the death judgment.

I.

For nearly four decades, the constitutionality of the death penalty has rested

on the principle that its imposition must reflect a determination of culpability by

the sentencing authority that is ―reasoned‖ and ―rational,‖ not ―capricious or

arbitrary.‖ (Gregg v. Georgia (1976) 428 U.S. 153, 190–195 (joint opn. of

Stewart, Powell, & Stevens, JJ.); see Pulley v. Harris (1984) 465 U.S. 37, 54

[upholding California‘s reinstatement of the death penalty in 1977]; People v.

Tuilaepa (1992) 4 Cal.4th 569, 595.) Although the sentencer must have discretion

to consider all relevant information concerning the defendant and the crime (see

Woodson v. North Carolina (1976) 428 U.S. 280), it is imperative that this

2

discretion be ―channeled‖ and ―circumscribed by . . . legislative guidelines.‖

(Gregg, at pp. 206–207.) Such guidelines are important ―especially if sentencing

is performed by a jury.‖ (Id. at p. 192.) ―Since the members of a jury will have

had little, if any, previous experience in sentencing, they are unlikely to be skilled

in dealing with the information they are given.‖ (Ibid.) In order to prevent juries

from ―wantonly and freakishly impos[ing] the death sentence‖ (id. at p. 207), they

must ―be carefully and adequately guided in their deliberations‖ (id. at p. 193). In

short, a capital jury must make its sentencing decision in accordance with law, not

―untrammeled discretion.‖ (Gregg, at p. 153; see Furman v. Georgia (1972) 408

U.S. 238.)

From this principle, it follows that eligibility to serve as a juror in a capital

case does not turn dispositively on whether a person supports or opposes the death

penalty. In capital cases, ―as elsewhere, the quest is for jurors who will

conscientiously apply the law and find the facts.‖ (Witt, supra, 469 U.S. at

p. 423.) The ultimate test, as set forth in Witt, is not what a prospective juror

thinks of the death penalty but ―whether the juror‘s views would ‗prevent or

substantially impair the performance of his duties as a juror in accordance with his

instructions and his oath.‘ ‖ (Id. at p. 424.) Citizens called to jury service are

asked to assume the role of an impartial decisionmaker, and the high court has

long recognized that ― ‗[a] man who opposes the death penalty, no less than one

who favors it, can make the discretionary judgment entrusted to him by the

State.‘ ‖ (Uttecht v. Brown (2007) 551 U.S. 1, 6 (Uttecht), quoting Witherspoon v.

Illinois (1968) 391 U.S. 510, 519 (Witherspoon).) ―It is important to remember

that not all who oppose the death penalty are subject to removal for cause in

capital cases; those who firmly believe that the death penalty is unjust may

nevertheless serve as jurors in capital cases so long as they state clearly that they

are willing to temporarily set aside their own beliefs in deference to the rule of

3

law.‖ (Lockhart v. McCree (1986) 476 U.S. 162, 176 (Lockhart).) ―[A] sentence

of death cannot be carried out if the jury that imposed or recommended it was

chosen by excluding veniremen for cause simply because they voiced general

objections to the death penalty or expressed conscientious or religious scruples

against its infliction.‖ (Witherspoon, at p. 522.) The crucial question is whether

prospective jurors who oppose the death penalty are willing and able to set aside

their personal beliefs and conscientiously apply the law. (Witt, at p. 421.)

In conducting this inquiry, trial courts must take a practical approach to

assessing a prospective juror‘s fitness to serve. ―[D]eterminations of juror bias

cannot be reduced to question-and-answer sessions which obtain results in the

manner of a catechism.‖ (Witt, supra, 469 U.S. at p. 424.) In evaluating a

prospective juror‘s answers to voir dire questions, courts must focus on how the

questions ―might be understood—or misunderstood—by prospective jurors,‖ not

on ―how the phrases employed in this area have been construed by courts and

commentators.‖ (Witherspoon, supra, 391 U.S. at p. 515, fn. 9.) Further, the Witt

standard ―does not require that a juror‘s bias be proved with ‗unmistakable

clarity.‘ ‖ (Witt, at p. 424.) ―[M]any veniremen simply cannot be asked enough

questions to reach the point where their bias has been made ‗unmistakably clear,‘ ‖

even when ―the trial judge is left with the definite impression that a prospective

juror would be unable to faithfully and impartially apply the law.‖ (Id. at pp. 424–

425.) On appellate review, we defer to the trial court‘s ruling when it is aided by

an assessment of the prospective juror‘s demeanor. (See People v. Whalen (2013)

56 Cal.4th 1, 26 (Whalen).)

The high court applied these principles in Darden v. Wainwright (1986)

477 U.S. 168 (Darden). There the trial court asked a prospective juror named

Murphy, ― ‗Do you have any moral or religious, conscientious moral or religious

principles in opposition to the death penalty so strong that you would be unable

4

without violating your own principles to vote to recommend a death penalty

regardless of the facts?‘ ‖ (Id. at p. 178.) Murphy, who had worked at a Catholic

seminary, responded, ― ‗Yes, I have,‘ ‖ and on that basis, he was excused. (Ibid.)

In upholding the trial court‘s ruling, the high court said: ―The precise

wording of the question asked of Murphy, and the answer he gave, do not

themselves compel the conclusion that he could not under any circumstance

recommend the death penalty.‖ (Darden, supra, 477 U.S. at p. 178.) Instead,

Darden looked to ―the context surrounding Murphy‘s exclusion to determine

whether the trial court‘s decision that Murphy‘s beliefs would ‗substantially

impair the performance of his duties as a juror‘ was fairly supported by the

record.‖ (Id. at p. 176.)

The crucial context in Darden was that ―[d]uring voir dire, but prior to

individual questioning on this point, the trial court spoke to the entire venire . . .

saying: [¶] ‗Now I am going to ask each of you individually the same question so

listen to me carefully, I want to know if any of you have such strong religious,

moral or conscientious principles in opposition to the death penalty that you would

be unwilling to vote to return an advisory sentence recommending the death

sentence even though the facts presented to you should be such as under the law

would require that recommendation? Do you understand my question?‘ ‖

(Darden, supra, 477 U.S. at p. 176, italics added.) Murphy was present in the

courtroom when the trial court ―repeatedly‖ asked this more detailed and correct

formulation of the question to other prospective jurors. (Id. at pp. 176–177; see id.

at p. 177, fn. 3 [trial court further asked one juror: ― ‗[I]n the event that the

evidence should be such that under the law that should be the legal

recommendation you would be unwilling to return such a recommendation

because of your conscientious beliefs?‘ ‖].) Thus, by the time the trial court

questioned Murphy, he had been ―present throughout an entire series of questions

5

that made the purpose and meaning of the Witt inquiry absolutely clear.‖ (Id. at

p. 178.) In addition, the high court explained, ―[n]o specific objection was made

to the excusal of Murphy by defense counsel. Nor did the court perceive, as it had

previously [with other prospective jurors], any need to question further. Viewing

the record of voir dire in its entirety, we agree . . . that the trial court‘s decision to

exclude this juror was proper.‖ (Ibid.)

Thus, Darden held that Murphy‘s answer to the single question posed to

him was not adequate by itself to justify excusing him for cause. But the record as

a whole showed that Murphy would have understood that the trial court was

asking whether he was willing to follow the law despite being personally opposed

to the death penalty, and the trial court was entitled to interpret his answer

accordingly. (Ibid.; see Uttecht, supra, 551 U.S. at p. 13 [―The transcript of Juror

Z‘s questioning reveals that, despite the preceding instructions and information,

he had both serious misunderstandings about his responsibility as a juror and an

attitude toward capital punishment that could have prevented him from returning a

death sentence under the facts of this case.‖ (italics added)].)

II.

The case before us presents the converse of Darden: Here the trial court

excused 16 prospective jurors on the basis of their answers to a single question,

without any indication that those jurors understood the question to be asking

whether they were ―willing to temporarily set aside their own beliefs in deference

to the rule of law.‖ (Lockhart, supra, 476 U.S. at p. 176.) In fact, the record

contains affirmative proof that at least some prospective jurors did not understand

the question to adequately probe whether their views on the death penalty were so

unyielding as to substantially impair their performance as jurors in conformity

with the law.

6

In assessing the qualifications of prospective jurors, the trial court used a

two-step process. First, prospective jurors underwent an initial group screening

before being asked to fill out written questionnaires. Then, after filling out the

questionnaires and being instructed on the law and procedure governing capital

sentencing trials, the jurors were subject to individualized voir dire led primarily

by the attorneys. The venire was divided into four panels, and the trial court used

the same procedure with each panel. The first and second panels were screened on

Friday, October 10, 1997; the third and fourth panels were screened on Tuesday,

October 14, 1997. In addition to summarizing the process here, I have reprinted

the transcript of the screening process for each panel in an appendix to this

opinion. Before going further, the reader may wish to read the transcript in order

to see exactly what the trial court did. As explained below, the precise sequence

of events — in particular, the difference between the trial court‘s approach to the

October 10 panels and its approach to the October 14 panels — is critical to

understanding what went wrong in this case.

After the first panel was sworn in, the trial court told the prospective jurors

that this was a capital case and that ―[i]f the jury in this case finds [defendant]

guilty of murder in the first degree, and further finds that the special circumstances

allegation is true, the jury in this case will be asked to determine the penalty in this

case. [¶] The jury will have two options, and two options only, and that will be

life without the possibility of parole, that will be life in prison, or death.‖ The trial

court later gave the same information to the second panel and added: ―Now,

people do tend to have strong opinions when it comes to the death penalty, and

people are certainly entitled to have those opinions, and no such opinion is right or

wrong, but we do need to find out what your feeling is in general on the death

penalty before we can proceed any further, so I‘m going to ask you first the

7

following couple of very general questions.‖ The court gave similar introductory

remarks to the third and fourth panels.

After this brief introduction, the court began its screening of each panel by

asking the following question, which I will refer to as the initial screening

question: ―Because of your feelings about the death penalty in general, is there

anyone who would be una

This text is long and has been trimmed here. Open the source document for the complete record.